Gullick v. Ott

• Decision Date: 09 October 2007
• Docket Number: No. 06-C-707-C.,06-C-707-C.
• Citation: 517 F.Supp.2d 1063
• Parties: Thomas GULLICK, Plaintiff, v. Terry OTT (in his individual capacity), Defendant.<SMALL><SUP>1</SUP></SMALL>
• Court: U.S. District Court — Western District of Wisconsin

517 F.Supp.2d 1063

Thomas GULLICK, Plaintiff, v. Terry OTT (in his individual capacity), Defendant.¹

No. 06-C-707-C.

United States District Court, W.D. Wisconsin.

October 9, 2007.

Robert J. Gingras, Gingras, Cates & Luebke, S.C., Madison, WI, for Plaintiff.

James R. Scott, Lindner & Marsack, S.C., Milwaukee, WI, for Defendant.

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

The facts of this case sound like they came straight from a bad movie on cable tv: a contentious county election, a mysterious traffic stop on a country road and competing allegations of politically motivated retaliation and public urination. The story begins in the middle of a campaign for Columbia County sheriff in the summer of 2006. Plaintiff Thomas Gullick was an avid supporter of one of the candidates, Roger Bradner, and disliked by supporters of another candidate, Dennis Richards. Defendant Terry Ott, a Columbia County deputy sheriff, was a Richards supporter.

On August 3, 2006, defendant observed plaintiff's parked car on the side of a road outside Columbus, Wisconsin. After defendant saw plaintiff near a Richards sign and noticed plaintiff had a Bradner sign in his car, defendant stopped plaintiff and began to ask him questions. More than an hour later, defendant allowed plaintiff to leave, after issuing a citation to him for public urination and searching his car for "negative" fliers. The parties dispute much of what happened in between. Defendant says that plaintiff admitted to urinating near the Richards sign. Plaintiff says he was only checking to see whether the sign was placed illegally (it was) and that defendant continued to hold him without justification, despite his repeated pleas to use the restroom. (Plaintiff has a medical condition requiring him to urinate frequently.) The Columbia County district attorney later dismissed the citation.

In this lawsuit brought pursuant to 42 U.S.C. § 1983, plaintiff alleges that defendant detained him and issued the citation because of plaintiff's support for Bradner in the sheriff's race, in violation of the First Amendment. Defendant has moved for summary judgment, raising four issues:

• whether plaintiff must prove the absence of probable cause to maintain a First Amendment retaliation claim against defendant and whether defendant had probable cause to issue plaintiff a citation for public urination;

• whether plaintiff has adduced sufficient evidence that defendant detained him and issued a citation because of plaintiff's support for a particular candidate;

• whether defendant's actions were sufficiently "adverse" to constitute retaliation under the First Amendment; and

• whether defendant is entitled to qualified immunity.

For the reasons discussed below, I find in favor of plaintiff on each of these issues. Accordingly, I will deny defendant's motion for summary judgment.

From the parties' proposed findings of fact and the record, I find the following facts to be undisputed for the purpose of defendant's motion for summary judgment.

UNDISPUTED FACTS

A. 2006 Campaign for Columbia County Sheriff

In spring 2006, the sheriff of Columbia County, Wisconsin, Steven Rowe, decided not to run for reelection. Among the candidates competing to take Rowe's place were Dennis Richards and Roger Bradner, both of whom were officers in the sheriff's department and members of the Republican party.

Plaintiff Thomas Gullick, a retired naval officer, supported Bradner because Bradner had a political science degree and a reputation for honesty. Plaintiff believed that Richards was "uneducated" and had a reputation for being a "good ole boy."

Plaintiff was "actively involved" in Bradner's campaign. This included circulating nomination papers, distributing campaign literature, putting up signs and using his car to drive Bradner around in a parade. Plaintiff was well known by members of Richards's campaign, some of whom believed that plaintiff was "mean and nasty" and did "dirty work" for Bradner. In addition, they took pictures of plaintiff at public events to prove the extent of his association with Bradner.

Defendant Terry Ott, a Columbia County deputy sheriff, supported Richards. Defendant signed Richards's nomination papers, posted three signs for Richards in his yard, made a $25 donation and attended a Richards fundraiser. Defendant knew plaintiff, knew that plaintiff was "very political in nature" and knew that he was one of Bradner's supporters.

The campaign leading up to the Republican primary was "heated." Because both candidates were sheriff's deputies, many Columbia County officers had strong feelings about one candidate or the other.

At the end of July 2006, plaintiff went to a fair on behalf of Bradner. Another Columbia County officer, Dan Garrigan, told plaintiff to "look out for" defendant. Garrigan said that Ott was a strong supporter of defendant and would not treat plaintiff fairly if they had a dispute.

B. The Citation

On the morning of August 3, 2006, plaintiff was driving westbound on Highway 60/16 outside Columbus, Wisconsin. He pulled off the road and parked his car. (The parties dispute why plaintiff pulled over. Plaintiff says it was to make a call on his cellular phone; defendant says it was to urinate.)

While defendant was patrolling the highway in a marked squad car, he saw plaintiff's parked car. After defendant saw plaintiff near a sign that said "Richards for Sheriff," defendant turned on his flashing lights. Defendant parked and walked toward plaintiff, who was now in his parked car. When defendant reached plaintiffs car window, he saw a sign in the car that said "Bradner for Sheriff."

Plaintiff complied when defendant asked for plaintiff's driver's license. (The parties dispute what plaintiff said to defendant. Defendant's version is that plaintiff told defendant that he went near the sign to urinate. Plaintiff says he told defendant that he saw the sign after he parked and was trying to determine whether it had been placed illegally on a public right of way. As it turns out, plaintiff was right; the sign should not have been there.) Defendant asked plaintiff to wait in his car while defendant "looked around." Defendant did not examine the area around the sign to determine whether plaintiff had urinated there.

Defendant contacted the Columbia County sheriff's dispatch center. After identifying plaintiff to dispatch, he stated that "subject said he was relieving himself here in cornfield." In addition, defendant said, "I've got a political sign that is bent over onto the ground." (Apparently, defendant suspected that plaintiff had damaged one of Richards's signs, in violation of a Wisconsin statute. However, he did not see plaintiff damage the sign or issue plaintiff a citation for that offense, or for trespassing, another offense defendant says he suspected plaintiff of committing. When defendant's supervisor later visited the scene of the incident, he could not find any damage to the sign, with the exception that one post "had a slight bend to it." In addition, he concluded that plaintiff had not been trespassing.)

While plaintiff was still waiting in his car, defendant sent text messages on his mobile computer to Randy Martin (the police chief for Rio, Wisconsin) and Max Jenatschenk, a deputy for Columbia County. Jenatschenk wrote that plaintiff was "a political fanatic" and wanted defendant to call him. Defendant responded that his cell phone was dead and that he was looking for the statute on public urination.

Martin wrote, "Terry, I had a call about those negative fliers in Rio. Is your suspect in possession of any [of the] fliers in question?" Defendant wrote back, "I'll have to get consent." (Martin was "an active and vocal" Richards supporter, which defendant knew. Martin believed that plaintiff had been placing "anti-Richards" fliers in mailboxes.)

While the stop was ongoing, Richards called his campaign manager, Steven Sarbacker, to tell him plaintiff had been caught "peeing on a sign or bending a sign." Sarbacker responded that "they finally caught" plaintiff.

Eventually, defendant returned to plaintiff's car and gave him a citation for public urination, which is an ordinance violation and a forfeiture punishable by fine only. Defendant told plaintiff he was free to go, but before plaintiff could leave, defendant asked plaintiff for consent to search his car. Plaintiff agreed and defendant searched plaintiff's trunk and passenger compartment, including under the seats and in a "wet-wipe" container. Defendant did not find any fliers, but he did find medication in an unmarked bottle, which he confiscated. Later, it was determined the bottle contained medication for acidic stomach problems. (In his police report, defendant wrote that he was looking for the fliers as "evidence to support [his] case of criminal damage to a political sign.")

Defendant knew that plaintiff suffered from a medical condition causing him to have sudden and frequent urges to urinate. (The parties dispute whether plaintiff had a strong urge to urinate during the stop; whether he told defendant this and asked defendant as many as ten times whether he could leave to use the restroom; whether defendant told plaintiff each time that he could not do so, including one time that plaintiff asked after defendant told him he was free to leave; whether at least once defendant spoke to plaintiff "abusively" when plaintiff made the request; and whether plaintiff wet himself as a result of being unable to use the restroom.)

The stop lasted approximately one hour, from 11:38 a.m. to 12:46 p.m.

After the stop, defendant prepared a report for the Columbia County district attorney about a belief that plaintiff had damaged the sign.

C. Plaintiff's Complaint with the Sheriffs Office

The same day, plaintiff filed a complaint with the Columbia County sheriffs office about defendant's treatment of him. Darrel Kuhl, a captain at the sheriff's office and defendant's...