Shaw v. Leatherberry

• Decision Date: 06 December 2005
• Docket Number: No. 2003AP2316.,2003AP2316.
• Citation: 706 N.W.2d 299,2005 WI 163
• Parties: Connie Anne SHAW, Plaintiff-Appellant, v. Greg LEATHERBERRY, Roger L. Finch and Amy Elve, Defendants-Respondents.
• Court: Wisconsin Supreme Court

706 N.W.2d 299

2005 WI 163

Connie Anne SHAW, Plaintiff-Appellant, v. Greg LEATHERBERRY, Roger L. Finch and Amy Elve, Defendants-Respondents.

No. 2003AP2316.

Supreme Court of Wisconsin.

Argued October 7, 2005.

Decided December 6, 2005.

For the plaintiff-appellant there were briefs (in the court of appeals) by A. Steven Porter and Porter, Jablonski & Associates, S.C., Madison, and oral argument by A. Steven Porter.

For the defendants-respondents there were briefs by John M. Moore, Sheila M. Sullivan and Bell, Gierhart & Moore, S.C., Madison, and oral argument by Sheila M. Sullivan.

An amicus curiae brief was filed by Mark J. Steichen and Boardman, Suhr, Curry & Field, LLP, Madison, on behalf of the Civil Trial Counsel of Wisconsin.

An amicus curiae brief was filed (in the court of appeals) by Jeff Scott Olson and the Jeff Scott Olson Law Firm, S.C., Madison, on behalf of the Wisconsin Academy of Trial Lawyers and the Wisconsin Employment Lawyers Association, and there was oral argument by Jeff Scott Olson.

An amicus curiae brief was filed (in the court of appeals) by G. Michael Halfenger and Foley & Lardner LLP, Milwaukee, and Laurence J. Dupuis, Milwaukee, on behalf of the American Civil Liberties Union of Wisconsin Foundation, Inc., and there was oral argument by G. Michael Halfenger.

ON CERTIFICATION FROM THE COURT OF APPEALS

¶ 1 JON P. WILCOX, J

This case comes to us on certification from the court of appeals. The appellant, Connie Anne Shaw (Shaw), appealed an order of the Circuit Court for Dane County, Gerald C. Nichol, Judge, denying Shaw's motion for a new trial, and from the court's decision at trial imposing the middle burden of proof — clear and convincing evidence — on the liability questions put to the jury in the special verdict.

I

¶ 2 The court of appeals certified the following question: What standard of proof applies to cases alleging excessive use of force by the police brought pursuant to 42 U.S.C. § 1983 (1994 & Supp. III 1998)¹ in Wisconsin courts?

¶ 3 We conclude that the Supremacy Clause of the United States Constitution² requires Wisconsin courts to apply the lowest burden of proof — preponderance of the evidence — in civil rights actions under 42 U.S.C. § 1983, alleging excessive use of force by police personnel. As such, we reverse the order of the circuit court, and remand for a new trial on the issue of liability.

II

¶ 4 In the early morning hours of January 17, 1998, Shaw was the victim of a hit-and-run accident on the Capitol Square in Madison. As Shaw exited her vehicle to survey the damage, the other vehicle drove away. Shaw pursued the car around the Square to the 600 block of West Washington Avenue, whereupon a female driver and two other female passengers exited their vehicle. Shaw also left her car, and before she could say anything, the other driver punched her in the face. A fight ensued, and eventually Shaw's attackers got back into their vehicle and sped away.

¶ 5 Shaw chased the other vehicle back around the Square and down East Washington Avenue at speeds of up to 80 miles per hour. Shaw stated that she had hoped to spot a police officer along the way for help. Eventually, they ended up in a commercial business parking lot. Although she thought she could go to jail for her actions, she chased the occupants of the vehicle around the lot and rammed the other vehicle with her car. The police later arrived at the scene, and Shaw was arrested by Officer Carrie Hemming. Shaw was then taken to the Dane County Jail to be booked on charges of criminal damage to property and reckless endangerment of safety.

¶ 6 Deputy Sheriff Greg Leatherberry (Leatherberry) was the booking deputy on duty that night. Leatherberry testified that Shaw was cooperative and quiet at times, while at other times she was angry, loud, and noncompliant. As part of the booking process, Leatherberry asked Shaw some standard medical questions. Shaw told Leatherberry that she had post-traumatic stress disorder. Furthermore, Leatherberry testified that when he asked Shaw if she was contemplating suicide, she did not immediately answer him. When he asked a second time, Shaw exclaimed: "You're God damn right I am!" Leatherberry then asked the normal follow-up question of if she had ever thought about how she would try to commit suicide. Shaw started to say something about how a person could "stuff," but she never completed the answer. This triggered Leatherberry's recollection of an incident in the prison where a person had committed suicide by stuffing a sock in his mouth. Based on everything Shaw told him, Leatherberry made the decision to strip Shaw of her clothing.

¶ 7 Leatherberry handcuffed Shaw and escorted her to a segregation cell in the female housing area. Deputy Roger Finch (Finch) was waiting at the holding cell when Leatherberry and Shaw arrived. Because Shaw was female, Deputy Amy Elve (Elve) was summoned to assist. When asked to remove her clothing voluntarily, Shaw refused, and Leatherberry told her that the deputies would be forced to remove her clothing. Shaw denies ever being given the opportunity to voluntarily remove her clothing in the sole presence of Elve.

¶ 8 Shaw testified that Leatherberry threw her across a cement block bunk, where she struck a cement block wall and fell face-first on the bunk. She also testified that Leatherberry put his knee in the back of her neck and jerked her handcuffed hands up so that her arms were perpendicular to her body. The deputies proceeded to remove her clothes, and Shaw stated that Finch, who was holding the door of the cell open, stood in the doorway grinning at her. After her clothing had been removed, Shaw was given a jail smock to wear. Shaw testified that Leatherberry's actions caused her great pain and emotional distress, and Finch and Elve did not attempt to intervene to prevent Leatherberry from using excessive force, though they had the opportunity to do so.

¶ 9 The deputies, on the other hand, testified that Shaw's head never hit the wall, Leatherberry never put his knee on her, and no one pulled her handcuffed arms up. Leatherberry testified that he used the necessary force to remove her clothing given Shaw's physical resistance.

¶ 10 Shaw filed an action in Dane County Circuit Court on November 4, 1998, which alleged four claims for relief: (1) that the deputies subjected her to an illegal strip search under Wis. Stat. § 968.255 (1997-98); (2) that the deputies tortiously assaulted and battered her; (3) that the deputies deprived her of her rights to be free from an illegal strip search and subjection to excessive force as guaranteed by the Fourteenth Amendment of the United States Constitution and made actionable pursuant to 42 U.S.C. § 1983; and (4) that Dane County and the Sheriff of Dane County negligently trained the deputies.³ In regard to her § 1983 claim, Shaw claimed deprivations of her constitutional rights by Leatherberry's alleged use of excessive force and by Elve and Finch's failure to intervene on her behalf while Leatherberry mistreated her.

¶ 11 On October 23, 2000, the defendants moved for summary judgment. In an order dated February 13, 2001, the court granted summary judgment and dismissed each of Shaw's claims except for her claim that she was subjected to excessive force under 42 U.S.C. § 1983.

¶ 12 On May 9, 2002, the deputies moved for summary dismissal of the complaint as they had not been personally identified or served. At the hearing on the motion to dismiss, Shaw's counsel failed to appear, and the circuit court granted the motion. Shaw moved to reopen and to amend her complaint to include the names of the individual deputies — Leatherberry, Finch, and Elve. On May 22, 2002, the court vacated the dismissal and granted Shaw leave to amend her complaint.

¶ 13 The jury trial was held from May 19 to May 22, 2003. The circuit court utilized an amended version of Wisconsin Jury Instruction-Civil 2155 entitled "Excessive Force in Maintaining Jail Security Federal Civil Rights: § 1983 Action" as agreed upon by the parties, except with respect to the appropriate burden of proof on the issue of liability. Over Shaw's objection, the court used the middle burden of proof contained in Wisconsin Jury Instruction-Civil 205 for the liability questions in the special verdict.⁴ On the question of damages, the jury was instructed on the lower burden of proof. Shaw argued that the jury should have been instructed on the lower burden of proof for each question in the special verdict. The court was sympathetic to Shaw's position, but it felt obligated to follow the law in Wisconsin as articulated in cases such as Johnson v. Ray, 99 Wis.2d 777, 299 N.W.2d 849 (1981) and Wirsing v. Krzeminski, 61 Wis.2d 513, 213 N.W.2d 37 (1973), which stated that in civil claims alleged against police officers for excessive force, the proper standard is the middle burden of proof.

¶ 14 At one point, the jury reported to the judge that it was "at a block" on the question relating to Leatherberry's liability. However, after nearly five hours of deliberation in total, the jury later returned a verdict of 11-1 in favor of Leatherberry and Elve on the issue of liability, and 10-2 in favor of Finch on the issue of liability.⁵ In regard to damages, the jury voted 11-1 that Shaw should receive no money for past medical expenses; pain, suffering and disability; or future medical expenses. However, the jury was unanimous in its decision to award Shaw $5000 in damages for mental pain and emotional distress.

¶ 15 Shaw filed a motion for a new trial claiming, in part, that the circuit court erred by instructing the jury that she had to establish liability under the middle burden of proof. In an order filed on July 17, 2003, the circuit court denied Shaw's motion for a new trial. The court stated that under Wisconsin law, the middle burden of proof is used in excessive force cases involving police officers. It also noted that the...