Huber v. Beth
| Decision Date | 01 February 2023 |
| Docket Number | 21-C-0969 |
| Parties | JOHN HUBER, in his individual capacity and as Personal Representative of the ESTATE OF ANTHONY HUBER, Plaintiff, v. DAVID G. BETH, in his individual and official capacity as Kenosha County Sheriff, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
DECISION AND ORDER
Plaintiff John Huber commenced this civil action on behalf of himself and as the personal representative of the estate of his son Anthony Huber, who was one of three men shot by Kyle Rittenhouse during the protests that occurred in Kenosha Wisconsin, in the wake of the police shooting of Jacob Blake. Plaintiff seeks damages for wrongful death from Rittenhouse but in addition he seeks to hold the municipalities and lawenforcement officers involved in the police response to the protests liable for his son's death. Plaintiff brings federal civil-rights claims against these governmental defendants, including claims alleging the existence of a conspiracy to deprive protestors of their civil rights and due-process claims based on the government's exposing protestors to danger at the hands of armed civilians. Plaintiff also alleges that the governmental defendants are liable under state law, and that Rittenhouse is liable under federal civil-rights statutes for conspiring with law enforcement to cause harm to protestors.
The governmental defendants and Rittenhouse have separately moved to dismiss plaintiff's complaint. They contend that plaintiff has failed to properly allege federal civil-rights claims, and that therefore the complaint should be dismissed on the merits under Federal Rule of Civil Procedure 12(b)(6). A motion to dismiss under this rule challenges the sufficiency of the complaint's factual allegations. When deciding such a motion, I must accept the plaintiff's factual allegations as true, draw all reasonable inferences from those facts in favor of the plaintiff, and ignore any facts that may support the defendants' version of events if those facts are not alleged in the complaint. In other words, I must assume that the story told by the complaint is true. I then ask whether the law would permit the plaintiff to recover damages from the defendants if the plaintiff later proved that it is true. If the plaintiff could not prevail even if all the facts alleged in the complaint were true, then the complaint must be dismissed.
The subject matter of this case is well known. The shooting of Jacob Blake, the resulting protests (which gave way to rioting and arson), and the actions of Kyle Rittenhouse were extensively examined by news outlets. Rittenhouse was charged with crimes, including first-degree intentional homicide, for shooting Huber and the other two men, and his criminal trial was highly publicized. As a result, members of the public may be familiar with the events at issue and believe that plaintiff's allegations, which I describe below, are contrary to the facts reported in the news or leave out important details. For this reason, I again stress that a court confronted with a motion to dismiss a complaint must accept the plaintiff's factual allegations as true and ignore outside evidence that may contradict them. That would include matters reported in the news and evidence presented during Rittenhouse's criminal trial. Moreover, some may find certain of plaintiff's allegations-such as his allegation that law enforcement conspired to have armed civilians use violence against protestors-hard to believe. But this is not the stage of a civil case at which the court weighs evidence or decides whether the plaintiff is likely to be able to prove his allegations. Rather, so long as the facts alleged by the plaintiff are not fantastic or delusional, the court must accept them as true. Deciding whether the allegations are true or false comes later in the case, after all sides have had a chance to present their evidence.
In addition to the motions to dismiss filed by all parties, Kyle Rittenhouse has filed a separate motion to dismiss that raises an issue unique to him: that plaintiff failed to properly serve him with a copy of the summons and complaint. This motion asks whether the place at which plaintiff's process server left copies of these documents was Rittenhouse's residence at the time of service.
I address defendants' motions in this order.
Plaintiff's complaint alleges the following facts.
On August 23, 2020, a Kenosha police officer shot Jacob Blake, a Black man, in the back seven times. The event, which was recorded on video, sparked public outrage. That evening, hundreds of demonstrators gathered in downtown Kenosha to protest. Officers from the Kenosha Police Department and the Kenosha County Sheriff's Department were dispatched to monitor the demonstrations, police the actions of individuals present, and disperse the crowds. According to the complaint, the officers at the scene “were antagonistic toward the demonstrators, who were voicing their outrage at the racist and systemic violence conducted by the very officers who were policing the demonstrations.” (Am. Compl. ¶ 36.)
The complaint alleges that, on the evening of August 23, 2020, officials declared an emergency curfew that began at 10:15 p.m. According to plaintiff, the curfew “was aimed at protestors and not actually directed at, or enforced against, others in the City violating the order.” (Am. Compl. ¶ 37.) Officers from the police and sheriff's department fired tear gas and rubber bullets into the crowds to break up the demonstrations, and they arrested many demonstrators. On Monday, August 24, 2020, the demonstrations continued, and Sheriff Beth declared that the curfew would take effect at 8:00 p.m. that evening. The demonstrations resumed on August 25, 2020, and again the Sheriff declared a curfew that was to begin at 8 p.m.
The complaint alleges that, on August 25, 2020, municipalities from outside Kenosha County deployed officers and equipment to participate in the response and control of the protests, and that the officers from these municipalities “joined forces with the [Kenosha police department] and [Kenosha County Sheriff] and worked under their coordination and tactical command.” (Am. Compl. ¶ 41.) The municipalities that sent officers and equipment were Waukesha County, Racine County, Sauk County, Walworth County, Washington County, the Village of Menomonee Falls, and the City of West Allis.
On the evening of August 25th, “armed individuals” arrived in Kenosha. (Am. Compl. ¶ 48.) According to the complaint, these armed individuals were volunteers who intended to “patrol the demonstration armed, and with the intent to kill.” (Id. ¶ 50.) The armed individuals had arrived in part based on a Facebook post by Kevin Mathewson on behalf of a militia group he formed called the Kenosha Guard. (Id. ¶ 49.) Mathewson “put out a call on Facebook for ‘patriots willing to take up arms and defend our City tonight against the evil thugs.'” (Id.) He received hundreds of online responses, including many hundreds of people indicating that they would be attending. (Id.) Some wrote responses on Mathewson's Facebook post indicating that they intended to use violence. The complaint highlights the following responses:
(Id. ¶ 50.) According to the complaint, many of these armed individuals were “avowed racists.” (Id. ¶ 120.)
The complaint alleges that commanders of the law-enforcement presence in Kenosha “knew about the plans and intentions of the armed individuals, including the social media posts, and the plans and intentions of the pro-militia armed individuals that descended on downtown Kenosha.” (Am. Compl. ¶ 51.) This was in part because Mathewson was a former Kenosha alderman who spoke regularly with Daniel Miskinis, the Chief of the Kenosha Police Department at the time. (Id. ¶ 52.) Mathewson also sent an email to Chief Miskinis in which he expressed his intentions. The email stated: (Id. ¶ 53.) Matthewson also posted the email as an open letter to the Kenosha Chief of Police on social media. (Id.) The complaint alleges that “[n]either Defendant Miskinis nor Defendant Beth made any attempt to dissuade Mathewson or any other armed individuals from showing up in Kenosha to patrol the streets.” (Id. ¶ 55.) It further alleges that “Defendants Miskinis and Beth acknowledged that the [Kenosha Police Department] and [Kenosha Sheriff's Department] were aware that pro-militia, armed individuals intended to patrol and then did patrol downtown Kenosha.” (Id. ¶ 56.) Finally, the complaint alleges that officers of the other municipalities present during the demonstrations observed the armed individuals at the scene and reported their presence to superior officers. (Id. ¶ 57.)
On the evening of the 25th, armed individuals “could be seen patrolling the streets in and around the demonstrations brandishing weapons, threatening residents, and pointing weapons at peaceful demonstrators without provocation.” (Am. Compl. ¶ 48.) These armed individuals were all white and “espoused a viewpoint that was avowedly pro-police.” (Id. ¶¶ 115-16.) One of these armed individuals was ...
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