Grow v. City of Milwaukee
| Decision Date | 25 February 2000 |
| Docket Number | No. 97-C-0572.,97-C-0572. |
| Citation | 84 F.Supp.2d 990 |
| Parties | Mark A. GROW, Therese Barwinski-Gipp, Jean Docter and Ronald L. Lindsey, Plaintiffs, v. CITY OF MILWAUKEE and City of Milwaukee Police Department, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Wm. Rettko, Milwaukee, WI, for plaintiffs.
Jan Smokowicz, for defendants.
DECISION AND ORDER
Plaintiffs Mark A. Grow, Therese Barwinski-Gipp, Jean Docter, and Ronald L. Lindsey are Milwaukee police officers. They bring this action under 42 U.S.C. § 1983 alleging that the defendants, the City of Milwaukee and its police department, subjected them to unreasonable searches and seizures in violation of their rights under the Fourth and Fourteenth Amendments. Both parties have moved for summary judgment. The principal issues presented by the summary judgment motions are whether the plaintiffs were searched and seized and, if so, whether the seizures were reasonable. Plaintiff Grow also alleges that the entry into and search of his home violated the Fourth Amendment and § 1983. Defendants contend that even if the plaintiffs' constitutional rights were violated the City of Milwaukee may not be held liable because the violations did not arise from a municipal policy or custom. On its own motion the court raises the question of whether the police department is a suable entity separate from the City of Milwaukee. In this decision I address the summary judgment motions, as well as a motion to preclude defense witnesses submitted by plaintiffs and a motion in limine submitted by defendants.
Three Milwaukee Police Department rules are relevant to the issues in this case. One such rule, MPD Rule 4 § 2/025.00 (), provides:
Members of the police force shall have regular hours assigned to them for active duty each day, and when not so employed they shall be considered "off duty." Normal hours of work shall consist of work shifts of eight (8) consecutive hours which in the aggregate results in an average work week of forty (40) hours. The regularly scheduled eight hour shift shall be established by the Chief of Police in accordance with the foregoing. Members of the police force shall, however, be always subject to duty although periodically relieved from the routine performance of it. They are always subject to orders from proper authority and to call from civilians. The fact that they may be technically "off duty" shall not be held as relieving them from the responsibility of taking required police action in any matter coming to their attention at any time.
A second relevant rule, MPD Rule 4 § 2/095.00 (the "intoxication rule"), states:
Whenever members of the Department are found intoxicated, whether on or off active duty, they shall be immediately suspended, and a charge of "intoxicated" shall be preferred against them. The word "intoxicated" as used in this section, shall mean any abnormal state or condition resulting from the use of intoxicating liquor and/or fermented malt beverages which renders such member unfit to properly perform police duties.
( )1
The third relevant rule (the "testing rule") provides:
All Department members ... are to take notice and be cognizant of the fact that current Department policy requires a member to submit to an alcohol test whenever two or more supervisors observing the member have a reasonable suspicion to believe that the member is in violation of ... Rule 2/095.00 (Intoxicated On or Off Duty.)
Positive test results shall constitute grounds for discipline, which may result in discharge. A member's refusal to submit to an alcohol test when ordered to do so by a supervisor shall constitute grounds for discipline, which may include discharge.
The term "alcohol test" as herein means breathalyzer/ intoxilyzer/ blood test/urinalysis testing procedures established by the Department....2
The foregoing rules were reviewed and approved by the Milwaukee Board of Fire and Police Commissioners. (Pls.' FOF ¶ 7.) Taken together, these rules provide that a Milwaukee police officer is always subject to duty, may not be intoxicated on or off duty and must submit to an alcohol test, whether on or off duty, whenever two supervisors reasonably suspect the officer to be intoxicated.
The facts underlying each plaintiff's claim are as follows: plaintiff Lindsey was off duty and at home on the morning of July 8, 1991, when he got into an argument with his wife. In the course of the quarrel Lindsey tipped over an ironing board and punched a cabinet. He was not alleged, however, to have committed any act of abuse. (Smokowicz Aff. of 6/1/99, Attach. A at 16.) After the quarrel Lindsey went to bed. (Id.) At some point Lindsey's wife called the police. (Id. at 20.) At 8:30 a.m. two police officers were dispatched to the Lindsey residence and were admitted by Mrs. Lindsey. Shortly thereafter, two police supervisors arrived and were admitted by Mrs. Lindsey. (Id.)
The supervisors went into the bedroom where Lindsey was sleeping and awoke him. They noted a strong odor of alcohol on his breath. (Id.) They ordered him to get out of bed and accompany them to a police station for an alcohol test. (Id. at 24.) The supervisors refused his request to wash up, brush his teeth and comb his hair. (Id. at 25.) They then took him to a police station where he was ordered to take an intoxilyzer test. The test resulted in a reading of 0.18 grams of alcohol in 210 liters of breath. Subsequently, the police chief suspended him for five days without pay for violating the intoxication rule.
On August 23, 1996, plaintiff Jean Docter, while off duty, attended the Serbian Day festival in Milwaukee. At the festival a fight broke out. Docter attempted to stop the fight and was struck in the head. (Pls.' FOF ¶¶ 63 & 64.) She then called 911, and several on-duty police officers were dispatched to the festival. (Id. ¶ 65.) She approached one of the officers, a sergeant, to make a battery complaint against the person who struck her. The sergeant suspected that she was intoxicated and contacted the department. The sergeant then ordered Docter to stand nearby, permitted her to use the restroom only with an escort, and refused her request to leave. Subsequently a second supervisor arrived. The supervisors ordered Docter to accompany them to the police station for an alcohol test. At the station they ordered Docter to take an intoxilyzer test which resulted in a reading of 0.17 grams of alcohol per 210 liters of breath. Subsequently, the police chief suspended Docter for five days without pay in part for violating the intoxication rule.
On December 18, 1996, plaintiff Therese Barwinski-Gipp was on injury leave. At about 8:45 p.m., a sergeant began calling her to determine whether she was complying with the department rule that officers on injury leave are, under certain circumstances, not permitted to leave home without receiving permission.3 Barwinski-Gipp did not answer these calls. Two supervisors went to her home and found no one there. The supervisors saw her car in the parking lot of a nearby restaurant. At 11:30 p.m. they entered the restaurant and observed Barwinski-Gipp in the bar with what they thought was an alcoholic beverage. (Id.¶ 39.) They asked if she had been drinking to which she responded sarcastically that she was "drinking a lot." (Id. ¶ 41.) The supervisors ordered Barwinski-Gipp to accompany them to a police station to take an alcohol test. At one point they escorted her back into the restaurant to get her jacket. (Smokowicz Aff. of 6/1/99, Attach. C Vol. I at 76.) They placed her in their squad car and transported her to the police station. At the station, Barwinski-Gipp was ordered to submit to an intoxilyzer test the result of which was .00 grams of alcohol per 210 liters of breath.
On January 12, 1997, plaintiff Mark A. Grow came home from work and got into an argument with his wife. At some point Grow broke a wine glass and threw it on the ground. Grow was not alleged, however, to have committed any act of abuse. During the argument Grow's wife talked on the telephone to her mother. Grow's mother-in-law called the police. The department dispatched two supervisors to Grow's home. Prior to the supervisors' arrival Grow's wife left the home. When the supervisors arrived they found the outer front door closed, but the inner front door open. They knocked and received no response. The police then instigated a "knock and talk" technique calling out, "Police, anyone here?", and got no response. (Williams Aff. of 5/20/99 ¶¶ 3-6.)
The supervisors entered Grow's home. Grow was alone in the home. He told the supervisors to leave. The supervisors refused to leave and concluded that Grow was intoxicated. They then ordered Grow to accompany them to the police station for an alcohol test. However, before leaving, they searched his house. They retrieved an unloaded shotgun from the second floor and took Grow's badge and service revolver. The supervisors transported Grow to a police station and administered an intoxilyzer test, the result of which was 0.11 grams of alcohol per 210 liters of breath. Subsequently, the police chief suspended Grow for one working day for violating the intoxication rule.
With respect to all of the plaintiffs the parties agree as follows: at no time during any of the incidents did the police supervisors have probable cause to believe that any of the plaintiffs had committed or was about to commit a crime, ; none of the plaintiffs were arrested; none of the plaintiffs were armed; the only reason that the supervisors ordered the...
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