Gonzalez v. Vill. of West Milwaukee

• Decision Date: 14 February 2012
• Docket Number: No. 10–2356.,10–2356.
• Citation: 671 F.3d 649
• Parties: Jesus GONZALEZ, Plaintiff–Appellant, v. VILLAGE OF WEST MILWAUKEE, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

671 F.3d 649

Jesus GONZALEZ, Plaintiff–Appellant,

v.VILLAGE OF WEST MILWAUKEE, et al., Defendants–Appellees.

No. 10–2356.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 29, 2010.Decided Feb. 2, 2012.Rehearing Denied Feb. 14, 2012.

Prior Version's Validity Called into Doubt

W.S.A. 941.23

John R. Monroe (argued), Attorney, Roswell, GA, for Plaintiff–Appellant.

Remzy D. Bitar (argued), Attorney, Crivello Carlson, S.C., Milwaukee, WI, for Defendants–Appellees.

Before BAUER, WOOD, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Jesus Gonzalez was active in Wisconsin's “open carry” movement, which advocates for the right to carry unconcealed firearms in public. On two occasions in 2008 and 2009, he openly carried a holstered handgun into retail stores in the Village of West Milwaukee and the City of Chilton, Wisconsin. On each occasion he was arrested for disorderly conduct and his gun was confiscated. He was not prosecuted for either incident, however, and his handguns were eventually returned.

Gonzalez sued the arresting officers and the two municipalities under 42 U.S.C. § 1983, asserting several claims for relief. First, he alleged that the officers falsely arrested him in violation of the Fourth Amendment because his open carrying was not disorderly conduct and was protected under the state and federal constitutions. On this claim he sought damages and prospective declaratory relief. He also claimed the municipalities retained his handguns for too long after each arrest, amounting to an unconstitutional seizure of his property. Finally, he alleged that West Milwaukee and its officers violated § 7(a) and § 7(b) of the Privacy Act of 1974 when they obtained his Social Security number during the booking process.

The district court granted summary judgment for the defendants on all claims. The judge held that the officers had probable cause to arrest Gonzalez for disorderly conduct, or alternatively, were entitled to qualified immunity. The property-seizure claim was dismissed as both underdeveloped and meritless. Finally, the judge rejected the Privacy Act claims for two reasons: The § 7(a) claim was factually insufficient, and § 7(b) grants no private right of action enforceable under § 1983.

Gonzalez appealed. In the meantime several developments changed the contours of the case. Effective November 2011, Wisconsin adopted a concealed-carry permitting regime and in connection with that legislation, amended its statutes to clarify that openly carrying a firearm is not disorderly conduct absent “circumstances that indicate a criminal or malicious intent.” Wis. Stat. § 947.01(2); see Wis. Act 35, 2011–2012 Wis. Legis. Serv. 825, 849 (West). Also in November 2011, Gonzalez was convicted of homicide and may no longer lawfully possess firearms. These events moot his claim for prospective declaratory relief; his various claims for damages remain.

On the remaining claims, we affirm. Although the district court's probable-cause analysis did not sufficiently account for the right to bear arms under the state and federal constitutions, we agree that the officers are entitled to qualified immunity. At the time of the arrests, the state constitutional right to bear arms was relatively new, and Wisconsin law was unclear about the effect of the right on the scope of the disorderly conduct statute. Moreover, the Supreme Court had not yet decided McDonald v. City of Chicago, Ill., –––U.S. ––––, 130 S.Ct. 3020, 3050, 177 L.Ed.2d 894 (2010), applying the Second Amendment to the States. Given this legal uncertainty, it was reasonable for the officers to believe that the circumstances of Gonzalez's open carrying gave them probable cause to arrest him for disorderly conduct. The delayed return of Gonzalez's handguns was not a “seizure” under the Fourth Amendment. Finally, Gonzalez's various Privacy Act claims fail for several reasons. Assuming the Act confers a private right of action, the officers did not violate § 7(a); they are entitled to qualified immunity for the alleged § 7(b) violation; and there is insufficient evidence that West Milwaukee had a policy, custom, or practice that would give rise to municipal liability for the alleged § 7(b) violation.

I. Background

Because we are reviewing a grant of summary judgment in favor of the defendants, the following account describes the facts in the light most favorable to Gonzalez.

A. Gonzalez's Arrest in West Milwaukee

On May 14, 2008, Gonzalez entered a Menards home-improvement store in West Milwaukee, a suburb immediately adjacent to the City of Milwaukee. The store was “fairly busy,” and there were about 75 employees in the building. Gonzalez wore a black leather trench coat and visibly carried a handgun in a black thigh holster. An employee saw the gun and was “startled”; he also thought the heavy trench coat was “out of place” for the season. He alerted assistant manager Kristopher McCloy and manager Jeffrey Jensen. McCloy regarded the alert as a “serious situation,” and Jensen was “shocked, surprised,” and concerned for the safety of his employees and customers.

McCloy, Jensen, and several other employees went to look for Gonzalez and found him near the children's play area. After debating the legality of having a firearm in the store, McCloy asked Gonzalez to secure the gun in his car before he continued shopping. Gonzalez refused. Some employees expressed concern about the children nearby and told Gonzalez that they would call the police if he refused to leave. Gonzalez eventually complied with McCloy's request that he put his gun in his car before continuing his shopping.

In the meantime Jensen called the West Milwaukee Police Department, where he reached Officer Patrick Krafcheck. Jensen told Krafcheck there was a man with a gun in the store who was argumentative and was “creep[ing] people out” and generally making them uncomfortable and nervous. Krafcheck later described the gist of the call this way: There was a “man in the store with a gun” who was making people “nervous, wigged out, freaked out, geeked out, something to that effect.” Krafcheck and Officer Charles Donovan went to Menards, where they found Gonzalez in the parking lot loading items into his pickup truck. Gonzalez was no longer carrying his gun but still wore the holster. Donovan asked Gonzalez where his gun was; Gonzalez refused to answer. Donovan then arrested Gonzalez for disorderly conduct. Krafcheck seized Gonzalez's gun, magazines, ammunition, and a gun case from the truck.

During the booking process at the West Milwaukee police station, Donovan and Krafcheck asked Gonzalez for his Social Security number, in addition to other basic identifying information. Neither officer informed Gonzalez whether disclosure of this information was mandatory, by what statutory authority they requested it, or what uses they would make of it. When Gonzalez resisted giving his identifying information, Krafcheck said “something to the effect of, [i]f we can't get the information, you're going to be here longer than you need to be.” The officers eventually obtained Gonzalez's Social Security card from his wallet. Gonzalez was released after booking with an order to attend a charging conference at the Milwaukee District Attorney's office. His gun and other property were held for several months until the district attorney decided not to press charges.

B. Gonzalez's Arrest in Chilton

Sometime after 11 p.m. on April 10, 2009, Gonzalez visited a Wal–Mart store in Chilton, a small town about 40 miles south of Green Bay. Gonzalez again openly carried a handgun at his side. Because of the late hour, only about four customers and ten employees were in the store at the time. Gonzalez headed toward the sporting-goods department to buy ammunition. An employee saw the gun and alerted assistant manager Jennifer Fairchild. Fairchild felt “uneasy” because it was “late in the evening, and the gentleman was asking to purchase ammunition,” which she found “very odd,” especially for “such a little town.” She was also alarmed because some employees were collecting money from the store's cash registers at the time, and she “did not know what [kind of] situation was truly going on.”

Fairchild called the Chilton Police Department, and Officer Michael Young responded to the scene. When Young arrived and spoke to Fairchild, she “seemed like she was anxious and nervous” or “upset.” Young found Gonzalez completing his ammunition purchase. Young drew his gun, pointed it at Gonzalez, and told him to “freeze.” Young arrested Gonzalez for disorderly conduct, took him to the police station, and tried to contact the Calumet County District Attorney for guidance about how to proceed. Unable to reach either the district attorney or the assistant district attorney, Young decided to release Gonzalez but retained his gun. About two weeks later, the district attorney notified Gonzalez that he would not be pressing charges and Gonzalez could retrieve his gun.

C. The District Court's Decision

Gonzalez sued Officers Krafcheck, Donovan, and Young, alleging that they falsely arrested him in violation of the Fourth Amendment. He also claimed the West Milwaukee and Chilton Police Departments retained his handguns too long in violation of the Fourth Amendment. Finally, he claimed that the request for his Social Security number in connection with his booking in West Milwaukee violated his rights under the Privacy Act.

The district court granted summary judgment for the defendants and dismissed all claims. The court held that the West Milwaukee and Chilton officers had probable cause to arrest Gonzalez for disorderly conduct because “[n]o reasonable person would dispute that walking into a retail store openly carrying a firearm is highly disruptive conduct which is virtually certain to create a disturbance.” The court added that even if the officers lacked probable cause, they were entitled to qualified immunity. The court dismissed...