Robinson v. City of West Allis, 98-1211.

• Decision Date: 13 December 2000
• Docket Number: No. 98-1211.,98-1211.
• Citation: 239 Wis.2d 595,2000 WI 126,619 N.W.2d 692
• Parties: Steven T. ROBINSON, Plaintiff-Respondent-Petitioner, and PRIMECARE HEALTH PLAN, INC., Plaintiff-Respondent, v. CITY OF WEST ALLIS, Officer Anthony R. Ball and Officer James Schumitsch, Defendants-Appellants.
• Court: Wisconsin Supreme Court

239 Wis.2d 595

2000 WI 126

619 N.W.2d 692

Steven T. ROBINSON, Plaintiff-Respondent-Petitioner, and PRIMECARE HEALTH PLAN, INC., Plaintiff-Respondent, v. CITY OF WEST ALLIS, Officer Anthony R. Ball and Officer James Schumitsch, Defendants-Appellants.

No. 98-1211.

Supreme Court of Wisconsin.

Oral argument October 5, 2000.

Decided December 13, 2000.

For the plaintiff-respondent-petitioner there were briefs by Phillip J. Ramthun, Patrick A. Callahan and Stern & Ramthun, LLP, Milwaukee, with oral argument by Phillip J. Ramthun.

For the defendants-appellants there was a brief by Michael J. Sachen, city attorney, and Scott E. Post, assistant city attorney, and oral argument by Scott E. Post.

¶ 1. ANN WALSH BRADLEY, J.

Petitioner, Steven T. Robinson (Robinson), seeks review of an unpublished decision of the court of appeals reversing the circuit court's denial of summary judgment as to Robinson's claims that the police used excessive force during his arrest and that the police failed to provide him with medical attention.¹ The court of appeals held that Robinson was unable to sustain his excessive use of force claim against defendants, the City of West Allis (City) and West Allis police officers Anthony T. Ball (Ball) and James Schumitsch (Schumitsch), because he did not proffer an affidavit of an expert countering that offered by the defendants. The court also held that Robinson's claim of failure to provide medical attention against the defendant-officers failed because the officers were not required to obtain medical treatment under the facts of this case.

¶ 2. We agree that under the facts of this case it is proper to grant summary judgment dismissing Robinson's claim of failure to provide medical attention. However, because we determine that Robinson was not required to submit an affidavit of an expert to avoid summary judgment on his excessive use of force claim and because we reject the several defenses to that claim raised by the defendants, we reverse the court of appeals and remand for further proceedings.

I.

¶ 3. This case arises from an altercation between the defendant-officers and Robinson at approximately 1:00 a.m. on June 10, 1995. The deposition testimony of the parties, incorporated into the summary judgment motion, reveals that the facts surrounding this altercation are in dispute.

¶ 4. Robinson, with Judy Schneider (Schneider) as his passenger, parked his motorcycle outside a West Allis establishment. After Robinson alighted from his motorcycle, he claims Officer Ball, who had stopped his squad car behind the motorcycle, approached Robinson and told him he was under arrest for eluding an officer and speeding.² Robinson asserts that he then put his hands on the car, while Ball patted him down. Ball, on the other hand, explains that Robinson refused to remove his hands from his pockets and that Ball forcibly removed them and placed them on the hood of the car. Meanwhile, at about this time, another squad car driven by Officer Schumitsch arrived at the scene.

¶ 5. Robinson states that after the pat-down he removed a folding knife he carried on his belt from its sheath and handed it to Schneider. Officer Schumitsch describes, however, that he saw Robinson with the closed knife and grabbed Robinson's hand ordering him to release the weapon. At this point, Schumitsch maintains that Robinson tossed the knife to Schneider who caught it, and Ball then retrieved it from Schneider.

¶ 6. The officers explain that they attempted to control Robinson by maneuvering him towards the hood of the vehicle. Both officers recount how during the struggle to control Robinson, he began stomping, striking Schumitsch in the foot. They indicate that they were unable to apply handcuffs to Robinson while he was standing and therefore moved him to the ground. Robinson, however, asserts that Schumitsch threw him onto the hood of the car and stated that he was under arrest for carrying a concealed weapon.

¶ 7. According to Robinson, while he was still bent over the hood of the squad car, Schumitsch conducted another pat-down and then ordered Robinson to place his hands behind his back. Robinson testified that, in response to what he perceived as the officer's aggressiveness, he refused to cooperate. He claims that the officers then managed to maneuver one of his hands behind his back and clasp a handcuff to that hand. Robinson maintains that the officers then pepper sprayed his face.

¶ 8. The officers admit pepper spraying Robinson, but claim it was done after Robinson was maneuvered to the ground, before either hand was cuffed. Under Robinson's version of events he was not maneuvered to the ground, but rather he states that after being sprayed, he turned around, and in a dazed and confused fashion staggered, until he was tackled to the ground.

¶ 9. Robinson alleges that one of the officers punched him in the side of the head and then grabbed him by the hair and smashed his face into the ground. However, at another point in the deposition, Robinson seems to state that he was punched in the face while bent over the hood of the squad car.

¶ 10. It is unclear when the officers affixed the handcuffs to both of Robinson's wrists. After being handcuffed, Robinson asserts that the officers picked him up by the belt at the back of his pants and carried him to the curb where he was dropped to the ground from a height of two and a half or three feet, landing on his chest on the curb. The officers deny striking Robinson with their fists or feet during the entire encounter and deny smashing Robinson's face into the ground. Both officers also deny picking Robinson up by the belt and dropping him.

¶ 11. Robinson states that while he lay across the curb with his face on the street, Schumitsch stood with his foot in the middle of Robinson's back. In response, Robinson testified that he told Schumitsch that he had high blood pressure and polycystic kidneys and asked that Schumitsch remove his foot from Robinson's back. Robinson told Schumitsch that because of his kidney condition, he ran the risk of bursting a cyst if punched in the back. Both officers deny that either of them stood upon Robinson or that he told either of them of a preexisting condition.

¶ 12. Robinson maintains that he was unconscious for an indefinite period of time. When he regained consciousness, rescue personnel from the fire department were present. The rescue squad flushed Robinson's eyes of the pepper spray. Robinson does not recall the rescue squad inquiring about any further medical attention and states that he did not volunteer any information regarding his kidney condition to the personnel treating his eyes.

¶ 13. Several minutes later, the police placed Robinson in a police van to be escorted to the police station. Robinson claims that at that point, he requested to go to the hospital because his face felt like it was "on fire" and because he could not "breathe good." The officers both recount Robinson complaining of the effects of the pepper spray. Once at the police station, he explains that he did not seek any further attention for the burning sensation to his face, because he had asked once and had been denied and because he did not believe the police would allow him any medical attention. Robinson eventually arrived at the Milwaukee County jail, by which point he acknowledges that he no longer needed medical attention.

¶ 14. During his deposition, Robinson describes the injuries he suffered as consisting of cuts, bruises, and abrasions to his head, and a large boot-print shaped bruise on his back. He also makes reference to treatment for a thumb injury and a shoulder injury apparently suffered during the altercation. Robinson's deposition contains no mention of any problems or pain caused by or associated with his kidney condition or reported high blood pressure.

¶ 15. Following his arrest, the Milwaukee County District Attorney's office issued charges against Robinson for the following violations: (1) operating a vehicle following revocation (4th offense); (2) carrying a concealed weapon; (3) resisting an officer; (4) battery to a law enforcement officer; and (5) disorderly conduct.

¶ 16. Pursuant to a plea agreement, Robinson agreed to plead guilty to the charge of carrying a concealed weapon and to plead no contest to the charge of battery to a law enforcement officer. The prosecution agreed to dismiss the three remaining charges in the complaint and allow them to be read in for sentencing purposes.³

¶ 17. A Milwaukee County circuit court accepted Robinson's pleas following a plea colloquy and entered a judgment of conviction for the two offenses. At the close of that colloquy, Robinson agreed to the use of the facts in the criminal complaint as the factual basis for the two charges to which he pled.

¶ 18. Robinson then began this civil action alleging violations of his constitutional rights.⁴ Relevant to this appeal, Robinson alleged that Ball and Schumitsch were liable for violations of his Fourteenth Amendment rights through their use of "unjustified and excessive force." In addition, the complaint alleged that the officers had denied him requested medical assistance for his injuries. He further alleged that the City of West Allis was liable for these violations on the grounds that it "authorized, tolerated as institutional practices, and ratified" Ball's and Schumitsch's actions.

¶ 19. The defendants moved for summary judgment. Despite the many disputes between the parties as to the facts, the defendants argued on various grounds that they were entitled to summary judgment because Robinson could not proceed with his causes of action as a matter of law.

¶ 20. In addressing the claimed excessive use of force, the City and officers argued that Robinson was foreclosed by the doctrine of issue preclusion from taking a position inconsistent with the facts as presented in the criminal complaint. In addition, they argued that...