Monfils v. Taylor

Decision Date28 January 1999
Docket Number97-4179,Nos. 97-2338,s. 97-2338
Citation165 F.3d 511
PartiesSusan MONFILS, as special administrator of the Estate of Thomas Monfils, Susan Monfils, Theresa Monfils, and John-Thomas Monfils, by Bruce R. Bachhuber, guardian ad litem, Plaintiffs-Appellees, v. James TAYLOR; City of Green Bay, a municipal corporation, City of Green Bay Police Dept., Cities and Villages Mutual Insurance Company, a Wisconsin insurance corporation, et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Michael R. Fox (argued), Fox & Fox, Madison, WI, Bruce R. Bachhuber, Hanaway, Weidner, Bachhuber, Woodward & Maloney, S.C., Green Bay, WI, for Plaintiffs-Appellees.

Gregg J. Gunta, Decker & Gunta, Milwaukee, WI, for Defendant-Appellant.

Before FLAUM, MANION, and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

It was a gruesome discovery. On a Sunday night in November of 1992, a two-story pulp vat at the James River Paper Mill in Green Bay, Wisconsin, was drained. The body of a James River employee, Thomas Monfils, was discovered at the bottom of the vat. The body was mutilated--the vat had propellers that stirred the thick pump mixture. A rope, with a 50-pound weight, was tied to Monfils' neck.

Eventually, six James River employees were convicted of murdering Monfils. They are serving life sentences. This case concerns a claim that the Green Bay Police Department and several of its officers bear some responsibility for Monfils' death. The facts follow.

On November 10, 1992, the 35-year-old Monfils called the Green Bay Police Department with an anonymous tip. He said a fellow worker at the James River plant, Keith Kutska, was going to steal an electrical cord when he left work. The police called security at the plant and Kutska was stopped on his way out the door. He refused to submit to a search and, because of his refusal, was suspended from work for 5 days. Incensed that someone reported him, Kutska went about trying to discover who the informant was. Kutska made no secret of what he was doing, and Monfils realized he was in peril.

What followed were several more calls to the police by Monfils, trying to prevent release of a tape recording of his November 10 call, and by Kutska, trying to obtain a copy of the tape of the call so he could identify the informant. As fate would have it, members of the police department acted efficiently, if inappropriately, in response to Kutska's calls and ineptly, at best, to those placed by Monfils. The only police officer who seemed willing and able to locate a tape recording of the call released it to Kutska, who quickly recognized Monfils' voice when the tape was played. On November 21, 1992, Monfils was beaten and thrown, alive but, mercifully, unconscious, into the pulp vat with the 50-pound weight tied around his neck. It was thought that the heavy metal blades at the bottom of the vat would dispose of Monfils' body, but it was discovered 2 days later. Three years later, six of Monfils' co-workers, including Kutska, were found guilty of murder.

The details regarding the calls to the police department show that the left hand did not know--or much care--what the right hand was doing.

As we said, Monfils made his theft report telephone call to the Green Bay Police Department on November 10. At 4:45 a.m. he talked with Michelle Wickman, a GBPD Communications Center operator. Monfils said he wanted to remain anonymous (as he did in all the conversations) because Kutska was "known to be violent." Wickman then made a call to James River security and told someone there about the theft report. Because police were not dispatched to the plant, Wickman did not prepare a written report of the call. Had she written a report, it could have been accessed by using a police computer. The telephone call, however, was tape-recorded by the police consistent with department policy.

Two days later, on November 12, Monfils called the police again; this time he spoke with GBPD Detective Denise Servais. He told her of his previous call and of his fear of what would happen if Kutska found out who reported him. Kutska, said Monfils, was "crazy and a biker type." Monfils wanted to be sure the tape would not get out and Servais assured him there was "no way in hell" it would be released. Servais made no written report of this call until after Monfils' body was pulled out of the pulp vat.

In his attempt to obtain the tape, Kutska called the police department on November 17 and spoke to Lieutenant Michael Mason. Kutska said he was trying to find out who reported him to James River security because that person got him in trouble. Mason said he would need to know what time the call came in, and he told Kutska to call another officer who might remember. Somehow Kutska learned the time of the call and said at work, in the presence of a number of workers, including Monfils, that he was going to get a copy of the tape.

After 10 p.m. on November 17, obviously frightened by Kutska's statements, Monfils called the police again and asked to speak to the "highest guy up." He was put through to Lieutenant Kenneth LaTour, the acting shift commander. Monfils told LaTour that he had placed an anonymous call, that Kutska was trying to get a copy of the tape, and if he did, Kutska would recognize his voice. He described Kutska as a biker type with nothing to lose and said he was afraid that one day he would not come home--that the guy would "take him out." LaTour told Monfils that he was pretty sure the tape could not be released, but he advised Monfils to call John Lampkin, who worked in the GBPD's communication section. Even though he understood Monfils' fear that he might be killed or badly hurt, LaTour did not refer the information to anyone or take any other steps. He also did not make a written report of this call.

On the 18th, Monfils called Lampkin, as LaTour had suggested. It was to Lampkin that a request for a copy of the tape would normally be directed, Police Chief Robert Langan later testified. Lampkin told Monfils that the tape would not be released because it would have to cross his desk first. He prepared a two-sentence note regarding this call, but not until a week after the murder.

Meanwhile Kutska was persisting in his attempt to obtain a tape of the November 10 anonymous call. On the 19th he called Lt. Mason, who located the tape of the call and listened to it. Mason had also checked the computer but found no written report relating to the call because, of course, up to this point no one had written one. Mason talked to an office worker, Shay Gierczak, about whether the tape should be released. The two of them called Assistant City Attorney Judith Schmidt-Lehman to discuss the issue. Of the three, only Mason had heard the tape. Schmidt-Lehman asked whether there had been a specific promise that the caller would be kept anonymous. Mason said no. He was basing his answer on the tape itself. He did not know about the other calls Monfils had made. He also had not checked with any other member of the department about the call. Even though he was not ordinarily the person who released records, that afternoon Mason called Kutska and told him that if he brought in $5 (and a blank tape) the next day he could get a copy of the tape of the call. In turn, Kutska told people at James River, including Monfils, that he would be picking up a tape recording of the call after he got out of work.

On the 20th at 10 a.m. Monfils called Lampkin, who said the tape would not be released. Lampkin transferred the call to Deputy Chief of Detectives James Taylor, to whom Monfils related what had been happening and that he feared what would happen if Kutska and his co-workers found out he snitched. Taylor assured him that the tape would not be released. But after the conversation, Taylor did nothing to prevent the release and, in fact, at that very time, the tape was on a desk in the records office 30 feet away awaiting release.

Despite Taylor's assurance that the tape would not be released, Monfils took yet another step to protect himself. He called the Brown County district attorney's office and spoke with Assistant District Attorney Pat Hitt. Hitt immediately thought there were grounds to refuse to release the tape under Wisconsin's Open Records Law, and he told Monfils that he would call Taylor to tell him not to release it. As he said he would, Hitt immediately made that call; Taylor said he knew about the case. Hitt offered to call Lampkin to make sure the tape was not released but Taylor said he would take care of it, and he assured Hitt that the tape would not be released. But all Taylor did was check the computer system for a report of the November 10th call. Finding no report because, as we know, none was prepared, he did nothing. He did not talk to Lampkin. He did not look for the tape. In his words, he "just let it go." And "go" it did.

The next day Kutska obtained a copy of the tape and played it. He recognized Monfils' voice, as did others for whom it was played. The rest is history. Monfils was dead by 7:30 a.m.

Monfils' widow, his children, and his estate filed this lawsuit under 42 U.S.C. § 1983 and Wisconsin law. It included a substantive due process claim against Deputy Chief Taylor and a claim against the City of Green Bay for ratifying Taylor's conduct. There was also an equal protection claim against the City for treating anonymous informants differently from those who disclose their identity; the individual defendants--Taylor, Servais, LaTour, Lampkin, and Mason--were sued for common law negligence.

Taylor filed a motion for summary judgment based on qualified immunity. It was denied and he appealed. While that appeal was pending, the rest of the case went to trial. At trial, there was no specific § 1983 finding against Taylor, although the jury entered a verdict...

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