Liebenstein v. Crowe

• Decision Date: 04 September 1992
• Docket Number: No. 89-C-782.,89-C-782.
• Citation: 826 F. Supp. 1174
• Parties: Audrey E. LIEBENSTEIN, Individually, and as Personal Representative of the Estate of Robert D. Liebenstein, Bert Liebenstein, Individually, and the Estate of Robert D. Liebenstein, Plaintiffs, v. Charles W. CROWE, Jr., James M. Knowles, Rodney Galbraith, Donald Theisen, Ozaukee County, Lloyds of London, St. Paul Insurance Company, City of Port Washington, and Scottsdale Insurance Company, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

826 F. Supp. 1174

Audrey E. LIEBENSTEIN, Individually, and as Personal Representative of the Estate of Robert D. Liebenstein, Bert Liebenstein, Individually, and the Estate of Robert D. Liebenstein, Plaintiffs, v. Charles W. CROWE, Jr., James M. Knowles, Rodney Galbraith, Donald Theisen, Ozaukee County, Lloyds of London, St. Paul Insurance Company, City of Port Washington, and Scottsdale Insurance Company, Defendants.

No. 89-C-782.

United States District Court, E.D. Wisconsin.

September 4, 1992.

COPYRIGHT MATERIAL OMITTED

Thadd J. Llaurado, Don C. Prachthauser, Gillick, Murphy, Wicht & Prachthauser, Milwaukee, WI, for plaintiffs.

Harold A. Laufer, William E. Callahan, Jr., Maria K. Myers, Davis & Kuelthau, Milwaukee, WI, for defendants Crowe, Knowles, Galbraith, Ozaukee County, Lloyds of London Ins. Co. and St. Paul Ins. Co.

Philip C. Reid, Robert F. Johnson, Cook & Franke, Milwaukee, WI, for defendants Theisen, Scottsdale Ins. Co. and City of Port Washington.

DECISION AND ORDER

WARREN, Senior District Judge.

This is a wrongful death action brought by the parents of Robert Liebenstein, who was shot and killed by police in front of his home in the early hours of October 16, 1989.¹ The defendants, who are law enforcement officials and their municipal employers, claim that they are not civilly liable for Liebenstein's death and have filed motions for summary judgment. In addition, defendant Ozaukee County has filed a motion for summary judgment as to its cross-claim for indemnification from defendant City of Port Washington. For the following reasons, the Court grants the defendants' motions for summary judgment on the federal and pendent state claims, and grants the motion for summary judgment on the cross-claim.

I. FACTUAL BACKGROUND

A. NIGHT OF OCTOBER 15, 1989

Robert Liebenstein ("Liebenstein") lived with his parents at 527 West Jefferson in Port Washington, Ozaukee County, Wisconsin. At the time of his death, Liebenstein was 37 years old and unmarried. Complaint at ¶ 5. Late in the evening of October 15, 1989, he became intoxicated and began firing a weapon from his front lawn, aiming at the family car, at a street light, and into the air. Complaint at ¶ 10. His behavior caused quite a disturbance in his neighborhood, and Mr. Albert Schoenfeldt, who lived across the street from the Liebensteins, telephoned the police department.

At approximately the same time, Liebenstein's cousin, Jim Erlwig, telephoned the police to inform them of his cousin's behavior. Liebenstein had called Erlwig earlier in the night and told him to come over to his house, or else he would start shooting. Liebenstein also warned Erlwig not to bring any police with him, or else they would be shot. Theisen Dep. at 28.² After receiving this call, Erlwig dialed the police emergency number and relayed this conversation to Bonnie Kelly, the police operator.³ She immediately notified Donald Theisen ("Theisen"), a sergeant in the Port Washington Police Department, of the incident at West Jefferson.

This was not the first time Theisen had heard of Liebenstein. Id. at 29. Liebenstein was mentally and emotionally unstable and was known to become violent when he was drunk. He had been the subject of many complaints and investigations. He was verbally abusive and often threatened others by stating he would come after them with one of the many guns he owned. On occasion, he would frighten his parents so much that they were forced to flee from their home. His father was afraid of him when he was drunk. Bert Liebenstein Dep. at 97, 100. Once, Liebenstein told his aunt that he was prepared to go down to Florida, where his parents were vacationing, to "take care of them." Liebenstein was married briefly; shortly after the marriage, he attacked his wife and began to strangle her. She left him, but refused to press charges. Liebenstein had also expressed his hatred of police, Theisen in particular, when he became embroiled in confrontational situations with them. Theisen was aware of these prior incidents; as sergeant, he read all the reports of the officers under his command.

Theisen was the commanding officer from Port Washington during the night of October 15. Theisen Dep. at 23. After receiving notice of Liebenstein's behavior, he equipped himself with his service revolver and his bulletproof vest, then travelled to the parking lot of St. Mary's Ozaukee Hospital. Id. at 24-26. Waiting there was Lieutenant James Knowles, the commander of Ozaukee County's Strategic Response, or SWAT, Team, along with other members of the SWAT team, including defendants Charles Crowe ("Crowe") and Rodney Galbraith ("Galbraith").⁴ These men had been called out to help with the situation by Sergeant Maher of the Port Washington Police Department. Theisen arrived at the hospital at approximately 12:30 or 12:35. Theisen Dep. at 26.

Knowles sent Galbraith and Crowe, who were designated Observer Team 1, to the Schoenfeldts' house, across the street from Liebenstein's yard, to send reports back to the hospital. Galbraith and Crowe radioed in at approximately 12:40 or 12:50, stating that they were situated at the Schoenfeldts' house. Theisen Dep. at 59; Knowles Dep. at 4. About ten minutes later, or at approximately 1:00, Knowles sent another group as Observer Team 2 to attempt to gain access to Liebenstein's back yard. Theisen Dep. at 60; Knowles Dep. at 9.

The police attempted to establish both an outer perimeter and an inner perimeter. The outer perimeter would keep civilians from coming too close to Liebenstein's house; the inner perimeter was intended to keep Liebenstein within a limited area. Although people were effectively blocked from entering West Jefferson Street, neither Theisen nor Knowles ever received any notification from Team 2 as to whether an inner perimeter had been established.

Liebenstein never left his property all night. He fired his gun from his front yard. Four or five times, he went inside the house. Before Liebenstein would go into the house, he would place his gun on the front porch, where other weapons were located.⁵ Sometimes, he picked up the telephone receiver and spoke into it for one or two minutes. Galbraith Dep. at 88.⁶ He would not hang up the phone; instead, he would set the receiver on the table when he was finished talking. Once, he stood near a window, looking down at something he was doing with his hands; it appeared as though he was loading a gun. Galbraith Dep. at 82. After speaking on the phone, he would emerge from the house, pick up a weapon, and commence firing.

Knowles and Theisen remained at the hospital and maintained radio contact with Crowe and Galbraith throughout the night. Neither Theisen nor Knowles was able to observe the events occurring on West Jefferson Street; they received all of their information about the developments of the night over the radio. Approximately five minutes before Liebenstein was shot, his shooting escalated. He aimed his gun in an eastward direction, roughly the location of the Schoenfeldt's house, and began to fire rapidly, walking toward the edge of his yard. Galbraith heard bullets going through the trees surrounding the house, and it appeared as if Liebenstein was firing directly at the Schoenfeldts' house. Galbraith Dep. at 94. Then Liebenstein turned around and walked back toward his house, firing his gun at the house as he was walking. Id. at 95. Once he reached his porch, he turned around and began walking away from his house again. Galbraith Dep. at 99. It appeared to Galbraith and Crowe that he might be leaving his property to go into the neighborhood.⁷ They informed Knowles and Theisen of this. At this time, Knowles turned to Theisen and said that something had to be done to get the situation under control. Theisen Dep. at 72. Theisen concurred.⁸ Id. at 73; Knowles Dep. at 23. Within fifteen to twenty seconds of receiving notice of the escalation of shooting, Knowles gave Crowe and Galbraith the "green light" to go ahead and "neutralize" the situation. Theisen Dep. at 74.⁹ Immediately after the green light was given, Liebenstein fired two shots at a street light that was west of the house and hit the light with the second shot, putting it out and limiting Crowe's ability to see him. Crowe Dep. at 117.¹⁰ Then Liebenstein turned around and headed back toward his front porch. He was carrying his rifle in the "port-arms" position, that is, across his chest with the barrel pointing upward at a 45-degree angle. As Liebenstein was sitting down on the front porch steps, with his body bent over, Crowe fired a single shot into Liebenstein's chest, killing him. Crowe Dep. at 118. Liebenstein was killed twenty or twenty-five seconds after the green light was given. Theisen Dep. at 80.¹¹

There is some dispute over the direction from which the bullet was fired. The defendants all contend that Crowe fired the gun from the front door of the Schoenfeldts' house while Galbraith held the door open. However, the plaintiffs have pointed out several inconsistencies in this version and claim that the bullet was actually fired from the storage room on the second floor of the house. First, Mr. Schoenfeldt has testified that he and his family were hiding in a room on the second floor when the actual killing took place, and they heard someone running down the second story hall and down the stairs immediately after the shot was fired. Later, he found a box of bullets in the storage room. When an investigation took place, measurements were taken from the second story. Finally, Mr. Schoenfeldt states that it would not have been necessary for Galbraith to hold the door open so Crowe could fire. There was an outer door and an inner door, both of which stayed ajar once they had been opened.

Throughout the night, Bonnie Kelly telephoned the Liebensteins' neighbors, advising them of the danger and warning them to go to their basements. Nevertheless, Theisen has stated that based upon his...