Lawrence v. Kenosha County

• Decision Date: 02 December 2004
• Docket Number: No. 04-1472.,04-1472.
• Citation: 391 F.3d 837
• Parties: Darrick LAWRENCE, Plaintiff-Appellant, v. KENOSHA COUNTY and Louis Vena, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 837

391 F.3d 837

Darrick LAWRENCE, Plaintiff-Appellant, v. KENOSHA COUNTY and Louis Vena, Defendants-Appellees.

No. 04-1472.

United States Court of Appeals, Seventh Circuit.

Argued September 27, 2004.

Decided December 2, 2004.

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Robert E. Sutton (argued), Milwaukee, WI, for Plaintiff-Appellant.

Marianne Morris Belke, Raymond J. Pollen (argued), Crivello, Carlson, Mentkowski & Steeves, Milwaukee, WI, for Defendants-Appellees.

Before POSNER, KANNE, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge.

As he attempted to exit the parking lot following a concert, Darrick Lawrence was involved in an altercation with Louis Vena, a Kenosha County police captain. Lawrence claims that he was seized illegally and that Vena used excessive force in removing him from his vehicle. The district court granted summary judgment in favor of Vena and Kenosha County. Lawrence appeals. We find that probable cause did exist for the stop and that Vena acted within the limits of his authority. We therefore affirm the grant of summary judgment.

I. History

On July 18, 2002, Darrick Lawrence attended a country music concert known as Country Thunder in Twin Lakes, Wisconsin. His girlfriend, Jessica Uccardi, and her young daughter were with him in his SUV as he attempted to leave the event. Kenosha County Sheriff's Department deputies William Peck and Chris Peck (no relation) were present to direct traffic. Captain Louis Vena was called to assist in this task. He wore plain clothes: a gray shirt, khaki pants, and a red baseball-type hat with a silver star patch on the front and the words "Kenosha County Sheriff's Department" embroidered in yellow around the star. Vena wore his full-sized gold badge on his belt as well as an exposed firearm, handcuffs, a magazine carrier, a pager, a cell phone, and a key holder with keys.¹

The officers decided to direct traffic into two eastbound lanes from the main gate so that cars could turn one way to travel north and the other way to travel south. Vena watched traffic from his squad car and noticed a few cars causing problems by attempting to change lanes. He got out of his car and directed the vehicles safely into their preferred lane. He then noticed a green SUV turning into the path of a compact car. He stopped in front of the SUV and asked the driver, Lawrence, which way he was going. According to Lawrence, Vena pounded on the hood of his SUV to get his attention as he asked this question. Lawrence replied that he was going south and then said, "you don't have to pound on my hood, you ass." Vena then approached the driver's window and told Lawrence that he had not touched his vehicle to make him angry. Lawrence again called Vena an "ass" and said that Vena should not have touched his truck at all.

Because of Lawrence's irrationally angry behavior, Vena believed that Lawrence might be under the influence of drugs or alcohol. He asked Lawrence for his driver's license in order to determine whether his motor skills were impaired and whether Vena could detect any smell of alcohol. Lawrence yelled, "Who are you to ask for my driver's license?" and refused to give it to Vena. At this point, the SUV was in motion and Vena determined that the vehicle was a threat to other cars and pedestrians. Vena ordered Lawrence to stop the vehicle. When he did not, Vena reached into the vehicle and attempted to put it in park. Because he was unable to do so, Vena opened the door, grabbed Lawrence's left arm, and tried again to stop the vehicle. In his deposition, Lawrence admitted that he was attempting to drive away from Vena.² At the time of his affidavit, he said that the vehicle was moving only because his foot had slipped off the brake during the scuffle. It is uncontested, however, that the vehicle was in motion.

As Vena and Lawrence struggled through the open door, Deputy W. Peck, a uniformed officer, approached the vehicle and asked Vena if he needed help. Lawrence testifies that he did not know Vena was a police officer until that point. Once he recognized that Vena was a police officer. Lawrence claims that he voluntarily exited his vehicle and was cooperative. He claims that Vena retained his hold on Lawrence's left arm and that after Lawrence exited the vehicle, Vena "jerked Lawrence's wrist upward until his wrist was touching his neck." After Lawrence was out of the vehicle, Vena asked Uccardi if she was able to drive the vehicle off to the side of the road. She answered in the affirmative and moved the vehicle. The officers continued to evaluate Lawrence. Lawrence stated that he had not been drinking alcohol and requested a breathalyzer test. Lawrence was questioned about his reaction to Vena's knock on the hood and he stated, "I don't let anybody touch my fucking truck." Lawrence was informed that if he continued to swear, he would be arrested for disorderly conduct. Vena took Lawrence's driver's license to his squad car where he checked for outstanding warrants pursuant to standard operating procedure. Vena then told Lawrence that he would be receiving a citation in the mail for failure to obey an officer's signal.

Lawrence then indicated that he would like to make a complaint against Vena regarding damage to his vehicle. Deputy W. Peck handled the report. Lawrence pointed to two scratches on his driver's side door that were about three inches in length. Lawrence claimed that this damage had been caused by Vena, but he did not claim that there was any damage to the hood of the vehicle.

II. Analysis

Lawrence argues that he was subject to a Fourth Amendment seizure when he was forcefully removed from his vehicle by Vena and that he was arrested without probable cause. He claims that Vena's suspicion that Lawrence might have been intoxicated was not reasonable. He further contends that Vena used excessive force in making this arrest and caused physical injury to Lawrence's shoulder. Lawrence also claims that Kenosha County is liable because it ratified the acts of its agent, Vena, in its official response to Lawrence's citizen complaint.

Kenosha County and Vena assert that even if Lawrence's version of the facts is accepted as true, his claim does not amount to a constitutional violation. Also, they argue that the § 1983 claims against Kenosha County must be dismissed because Lawrence has not shown any sort of unconstitutional policy or practice. Finally, they maintain that Vena's discretionary actions in performing an investigative stop of Lawrence cannot support a negligence claim because such actions are protected by governmental immunity under Wis. Stat. § 893.80(4).

A. Standard of Review

When summary judgment is granted below, we review de novo. See Lamers Dairy Inc. v. United States Dep't of Agric., 379 F.3d 466, 472 (7th Cir.2004); Indiana Family & Soc. Servs. Admin. v. Thompson, 286 F.3d 476, 479 (7th Cir.2002). Summary judgment is properly granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When determining whether a genuine issue of material fact exists, we consider evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Material facts are facts that "might affect the outcome of the suit" under the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute over material facts is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

In this case, Kenosha County and Vena have the burden of proving that there is not a genuine issue of material fact and that they are entitled to judgment as a matter of law. However, Lawrence retains the burden of producing enough evidence to support a reasonable jury verdict in his favor. See id. at 256, 106 S.Ct. 2505. "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48, 106 S.Ct. 2505 (emphasis in original).

B. Vena Had Probable Cause to Seize Lawrence

The facts in this case, taken in the light most favorable to Lawrence, do not amount to a constitutional violation. The Fourth Amendment protects people from unreasonable searches and seizures. A formal arrest is not valid unless there is probable cause. Probable cause exists "if the totality of the facts and circumstances known to a reasonable arresting officer would support the belief that the suspect has committed or is committing a crime." Driebel v. City of Milwaukee, 298 F.3d 622, 643 (7th Cir.2002). An investigative stop, however, requires only that the officer is able "to produce articulable facts giving rise to a reasonable suspicion that a defendant has been, is, or is about to be engaged in criminal activity." Smith v. Ball State Univ., 295 F.3d 763, 768 (7th Cir.2002) (internal quotations omitted). An investigative stop becomes a seizure at the point when a reasonable person would feel that he is not free to leave. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). There must also be "an intentional acquisition of physical control." Brower v. County of Inyo, 489 U.S. 593, 596, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989).

Lawrence was seized when Vena grabbed Lawrence's arm and attempted to physically remove him from his vehicle. A reasonable person, at that point, would have felt that he was not free to leave.³ This seizure, however, was not unconstitutional because it was based on probable...