Rodriguez v. City of Milwaukee

• Citation: 957 F.Supp. 1055
• Decision Date: 07 March 1997
• Docket Number: No. 95-C-1232.,95-C-1232.
• Parties: Beatriz M. RODRIGUEZ, individually, and as Administrator of the Estate of Jose Rodriguez, Deceased, and Julian Ramon Rodriguez, a minor, by his mother and next of friend, Beatriz M. Rodriguez, Plaintiffs, v. The CITY OF MILWAUKEE, a municipal corporation and body politic, Defendant.
• Court: United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin

Page 1055

957 F.Supp. 1055

Beatriz M. RODRIGUEZ, individually, and as Administrator of the Estate of Jose Rodriguez, Deceased, and Julian Ramon Rodriguez, a minor, by his mother and next of friend, Beatriz M. Rodriguez, Plaintiffs, v. The CITY OF MILWAUKEE, a municipal corporation and body politic, Defendant.

No. 95-C-1232.

United States District Court, E.D. Wisconsin.

March 7, 1997.

Brustin Law Offices by Marvin A. Brustin, Chicago, IL, for Plaintiffs.

Grant F. Langley, City Attorney, Jan A. Smokowicz, Asst. City Attorney, Milwaukee, WI, for Defendant.

DECISION AND ORDER

MYRON L. GORDON, District Judge.

This action arises from the death of Jose Rodriguez on May 27, 1994, in Chicago. The plaintiffs claim that two allegedly intoxicated off-duty Milwaukee police officers, Gabriel Bedoya and John Koch, shot and killed Mr. Rodriguez. The plaintiffs filed this action against the city of Milwaukee ["the city"] on December 4, 1995, asserting claims under 42 U.S.C. § 1983 and under state law. The defendant's motion for summary judgment on both claims is presently before this court.

The plaintiffs contend that Mr. Bedoya and Mr. Koch were acting under color of state law on May 27, 1994, and that the defendant had a policy and practice of failing to evaluate its police officers for factors related to their continued employment, of failing to maintain proper supervision over department-issued firearms, and of requiring all police officers to carry a weapon at all times. The plaintiffs also claim that the city negligently failed to monitor Mr. Bedoya's and Mr. Koch's activities and their ongoing ability to serve as police officers.

I. UNDISPUTED FACTS

The following facts are taken from the parties' proposed findings of fact. Pursuant to Local Rule 6.05(d), the court will conclude that there is no genuine issue as to any material fact to which a specific response has not been set forth. Hartley v. Wisconsin Bell, Inc., 930 F.Supp. 349, 354 (E.D.Wis. 1996); see Stewart v. McGinnis, 5 F.3d 1031, 1034 (7th Cir.1993), cert. denied, 510 U.S. 1121, 114 S.Ct. 1075, 127 L.Ed.2d 393 (1994).

Plaintiff Beatriz M. Rodriguez is a citizen of the state of Illinois and the widow of Jose Rodriguez, who was also an Illinois citizen. (Defendant's Proposed Findings of Fact ["DPFF"] ¶ 1). Ms. Rodriguez is the administrator of the estate of Jose Rodriguez. (DPFF ¶ 1). Plaintiff Julian Ramon Rodriguez is the only child born of the marriage of Beatriz and Jose Rodriguez. (DPFF ¶ 2). Julian Rodriguez is an Illinois citizen. (DPFF ¶ 1). The city is a municipal corporation existing under the laws of the state of Wisconsin. (DPFF ¶ 3).

For some time prior to May 27, 1994, the city employed Gabriel Bedoya and John Koch as police officers and had issued them both weapons and police identification. (DPFF ¶ 4). On May 26, 1994, Mr. Bedoya and Mr. Koch consumed large quantities of alcohol in Milwaukee. (DPFF ¶ 5). Armed with the weapons issued to them by the city and in possession of their police identification, they left Milwaukee and traveled to Chicago. (DPFF ¶ 5). At all times relevant to this action, Mr. Bedoya and Mr. Koch were each wearing a holster issued by the Milwaukee police department designed for off-duty use. (Plaintiffs' response to the defendant's motion for summary judgment ["Plaintiffs' response"], Ex. B, January 22, 1996, transcript of State of Illinois v. Bedoya ["Bedoya transcript"] at 52-56). During their trip, they continued to drink alcoholic beverages. (DPFF ¶ 5).

Upon arriving in Chicago, Mr. Bedoya and Mr. Koch went to Casanova's Bar, where they were served several more intoxicants. (DPFF ¶ 6). After leaving Casanova's Bar, Mr. Bedoya and Mr. Koch went to the Dynasty Club and Bar [the "club"] in Chicago. (DPFF ¶ 7). They were stopped at the front entrance of the club by Jose Rodriguez. (DPFF ¶ 7). Mr. Rodriguez was employed as a bouncer at the club. (Plaintiffs' response, Ex. A, Marin Dep. at 28-29). Mr. Rodriguez informed them that they could not enter the club with their weapons. (DPFF ¶ 9).

It was the policy of the club to search all of its customers for weapons upon entering the club. (Plaintiffs' response, Ex. A, Marin Dep. at 31, 101). It was also the policy of the club to permit police officers with proper identification who were on duty to enter the club with weapons, (Plaintiffs' response, Ex. A, Marin Dep. at 63-64), but not to permit off-duty police officers to bring their weapons into the club. (DPFF ¶ 10).

Mr. Bedoya and Mr. Koch told Mr. Rodriguez that they were police officers and that they were trying to find an unnamed individual. (DPFF ¶ 11). They told Mr. Rodriguez that the unnamed individual had the same physical characteristics as Mr. Rodriguez. (DPFF ¶ 12). The two Milwaukee police officers then asked to see Mr. Rodriguez's identification. (DPFF ¶ 13). Mr. Rodriguez asked whether they intended to arrest him. (DPFF ¶ 14). Mr. Bedoya and Mr. Koch then walked past Mr. Rodriguez into the club. (DPFF ¶ 15).

While they were at the club, Mr. Bedoya and Mr. Koch were served more liquor. (DPFF ¶ 16). Mr. Bedoya also told an off duty police officer that he was carrying a weapon. (Plaintiffs' response, Ex. B, Bedoya transcript at 103-04). They subsequently left the club and went to Mother's Bar, where they drank more liquor. (DPFF ¶ 17). Mr. Bedoya and Mr. Koch were allowed to enter Mother's Bar by showing their guns and badges. (Plaintiffs' response, Ex. B, Bedoya transcript at 56). After leaving Mother's Bar, Mr. Bedoya and Mr. Koch returned to the club. (DPFF ¶ 18).

As Mr. Bedoya pushed open the outermost door of the club to exit the club, he was grabbed from behind on his left shoulder by Mr. Rodriguez. (Plaintiffs' response, Ex. B, Bedoya transcript at 71, 72). In grabbing Mr. Bedoya, Mr. Rodriguez said words to Mr. Bedoya to the effect of "police shit." (Plaintiffs' response, Ex. B, Bedoya transcript at 71, 134, 135). Mr. Bedoya and Mr. Koch became engaged in a verbal argument with Mr. Rodriguez which escalated into a physical altercation. (DPFF ¶ 19). Mr. Bedoya and Mr. Koch assaulted and battered Mr. Rodriguez. (DPFF ¶ 20). Mr. Bedoya drew his police issued firearm and, while Mr. Koch restrained Mr. Rodriguez, fatally shot Mr. Rodriguez. (DPFF ¶ 21).

Jeffrey Bialk is a captain in the city of Milwaukee police department and held that rank in May 1994. (Bialk aff. ¶ 1). With respect to the administration of the city of Milwaukee police department, the city is divided into seven geographic districts numbered 1 through 7. (Bialk aff. ¶ 2). Mr. Bialk is the commander of district 1, and he was such in May 1994. (Bialk aff. ¶¶ 2-3).

As the commander of district 1, Mr. Bialk is responsible for the supervision and direction of all police officers assigned to that district. (Bialk aff. ¶ 5). In May 1994, Mr. Bedoya and Mr. Koch were assigned to district 1 as police officers. (Bialk aff. ¶ 6). As a captain for the city of Milwaukee police department, Mr. Bialk was familiar with and had access to the time sheets for police officers under his supervision, including those of Mr. Bedoya and Mr. Koch. (Bialk aff. ¶ 7). Both Mr. Bedoya's and Mr. Koch's time sheets reflect that they had a scheduled regular day off on May 27, 1994. (Bialk aff. ¶¶ 8-9).

Mr. Bialk did not have the power to authorize police officers within his district to leave Wisconsin for any official duties as a city of Milwaukee police officer. (Bialk aff. ¶ 10). Mr. Bialk would need to obtain that authority or be made aware of such authorization by an officer or officers above him in the chain of command within the Milwaukee police department. (Bialk aff. ¶ 10). Mr. Bialk did have the authority to permit officers within his district to leave the city for official business elsewhere within Milwaukee county. (Bialk aff. ¶ 11).

At no time through May 27, 1994, did Mr. Bialk ever authorize either Mr. Bedoya or Mr. Koch to leave the territorial jurisdiction of the city on May 26 or May 27, 1994, for any official police business. (Bialk aff. ¶ 12). At no time through May 27, 1994, was Mr. Bialk ever advised by anyone that someone within the chain of command above him had ever authorized either Mr. Koch or Mr. Bedoya to leave the limits of the city for official police business outside of Wisconsin. (Bialk aff. ¶ 13).

Mr. Bialk is aware that the inspector in charge of the criminal investigation bureau or the assistant chief of police operations are the only command level officers authorized by the chief of police for the city to permit a city police officer to travel outside of the state of Wisconsin for the purposes of prisoner transfer. (Bialk aff. ¶ 14). In Mr. Bialk's experience as a captain of police, he has never become aware of an instance in which the inspector for the criminal investigation bureau has authorized police officers assigned to street patrol duty to travel to another state in order to effect a prisoner transfer. (Bialk aff. ¶ 15). In May 1994, both Mr. Bedoya and Mr. Koch were assigned to district 1 only as patrol officers and were not assigned to interstate prisoner transfer duties. (Bialk aff. ¶ 16).

In his capacity as a captain in the Milwaukee police department, Mr. Bialk is generally familiar with and has access to the rules and regulations of the city of Milwaukee police department. (Bialk aff. ¶ 17). Milwaukee police department rule 4, section 3, provides, in pertinent part, that "[m]embers shall also observe the laws and ordinances in effect in any other jurisdiction while within such jurisdiction." (Bialk aff. ¶ 20). Rule 4, section 5 provides that police officers "shall have regular hours assigned to them for active duty each day, and when not so employed they shall be considered `off duty.'" (Bialk aff. ¶ 21).

Rule 4, section 3 of the general rules and regulations of the Milwaukee police department provides that "[m]embers of the police force shall, at all times within the boundaries of the City, preserve...