Wisconsin Carry Inc et al v. City of Milwaukee et al

Filing 88

ORDER signed by Judge Lynn Adelman on 7/28/2014 granting in part and denying in part 53 & 58 Motions for Summary Judgment. The motion is GRANTED as to all plaintiffs claims for declaratory relief against all defendants;The motion is GRANTED as to plaintiff Al-Mujaahids claim for injunctive relief;The motion is GRANTED as to plaintiff Sutterfields state open records claim; and The motion is DENIED as to plaintiff Sutterfields excessive force claim. (cc: all counsel) (nts)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
_____________________________________________________________________
WISCONSIN CARRY, INC.,
KRYSTA SUTTERFIELD, and
NAZIR AL-MUJAAHID,
Plaintiffs,
v.

Case No. 12-CV-352

CITY OF MILWAUKEE,
JOHN CHISHOLM, in his official capacity
as District Attorney of Milwaukee
County, Wisconsin, DAVID ZIEBELL,
and ALAN SEER,
Defendants.
_____________________________________________________________________
DECISION AND ORDER

Plaintiffs, gun enthusiasts, bring this § 1983 action alleging that several City of
Milwaukee policies regarding the return of guns seized as evidence are unconstitutional.
Plaintiff Sutterfield also brings an excessive force claim against two officers with whom she
had a dispute while retrieving her gun from the police property room and a supplemental
state law open records claim. Defendants now move for summary judgment.
The first event giving rise to this case involved Sutterfield.

In March 2011,

Milwaukee police officers seized a gun, a magazine and ammunition from her home.
Subsequently, pursuant to Wis. Stat. § 968.20, Sutterfield successfully petitioned the circuit
court for the return of her property. When she went to the police property room to retrieve
it, defendant Ziebell brought Sutterfield her gun and magazine but not her ammunition and

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asked her to sign a receipt. He explained that the City had a policy of not returning guns
and ammunition on the same day. Sutterfield expressed disagreement with the policy,
declined to sign the receipt and called officer Michael Perez, administrator of the City’s “gun
desk.” At that point, Sutterfield and the officers had a brief confrontation which I will discuss
in more detail later in this opinion.
The second relevant event involved plaintiff Al-Mujaahid. In January 2012, AlMujaahid shot a man who was committing a robbery. During their investigation, Milwaukee
police seized his gun, magazine, ammunition and holster. The police declined to return his
property while the case against the robbers was pending because of the possibility that it
would be needed as evidence. Al-Mujaahid petitioned the circuit court for the return of his
property, and District Attorney Chisholm opposed such return until the case against the
perpetrators was completed. Soon after, however, the robbery defendants pleaded guilty,
the court granted Al-Mujaahid’s petition and the police returned his property.
All three plaintiffs claim that the City treats gun owners differently than other property
owners by requiring them to use the statutory return of property process, and they seek a
declaration that such policy constitutes an equal protection violation. They also claim that
the City’s policy of not returning guns and ammunition on the same day violates due
process and seek a declaration to that effect. I address first a jurisdictional issue, whether
plaintiffs have standing to challenge the above-described City policies. Federal courts are
courts of limited jurisdiction and can only hear “cases” and “controversies” as authorized
by Article III of the Constitution. Flast v. Cohen, 392 U.S. 83, 94 (1968). To have standing,
a plaintiff must allege (1) a “personal injury” or injury in fact, (2) that the injury is “fairly
traceable to the defendant’s allegedly unlawful conduct,” and (3) that it is “likely to be
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redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984). An injury in
fact is one “that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 180–81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61
(1992).
I cannot “infer [standing] argumentatively from averments in the pleadings.” Grace
v. Am. Cent. Ins. Co., 109 U.S. 278, 284 (1883). Rather, I must find standing from facts that
“affirmatively appear in the record.” Mansfield C. & L.M. Ry. Co. v. Swan, 111 U.S. 379,
382 (1884). The proponent of jurisdiction must “‘set forth’ by affidavit or other evidence
‘specific facts’” supporting standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992) (quoting Fed. R. Civ. P. 56(e)). Additionally, “a plaintiff must demonstrate standing
separately for each form of relief sought.” Friends of the Earth, Inc., 528 U.S. at 85.
While traditional claims seeking monetary damages almost always meet the
definition of an injury in fact, see Hein v. Freedom From Religion Found., Inc., 551 U.S.
587, 619 (Scalia, J., concurring) (describing a “wallet injury” as “the type of concrete and
particularized injury one would expect”), the analysis for claims seeking prospective relief
can be trickier. When deciding whether a plaintiff’s injury is sufficiently concrete,
particularized, and imminent, I keep in mind that “[p]ast exposure to illegal conduct does
not in itself show a present case or controversy regarding [prospective] relief . . . if
unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S.
488, 495–96 (1974). In other words, standing to seek prospective relief “depend[s] on
whether [the plaintiff is] likely to suffer future injury from the” allegedly unlawful conduct.
City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). The threshold for showing likelihood
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of future injury is relatively high; the plaintiff must show a “real or immediate threat” that he
or she “will be wronged again—a ‘likelihood of substantial and immediate irreparable
injury.’” Id. at 111 (quoting O’Shea, 414 U.S. at 502).
Plaintiffs Sutterfield and Al-Mujaahid ask me to declare that the City’s policies are
unlawful, but neither is currently affected by such policies because the City has returned
their guns.1 Thus, neither is presently suffering a sufficient injury to provide standing. While
Sutterfield and Al-Mujaahid may have been injured in the past, they fail to show “any
continuing, present adverse affects.” O’Shea, 414 U.S. at 495–96. Nor do they show that
they are likely to be subject to the City’s policies in the future. See Lyons, 461 U.S. at 111
(“[A] federal court may not entertain a claim by any or all citizens who no more than assert
that certain practices of law enforcement officers are unconstitutional.”). Sutterfield and AlMujaahid are no longer being harmed by the City’s allegedly unlawful policies, and
prospective relief cannot redress any past harm they may have suffered.
Unlike Sutterfield, Al-Mujaahid may have been suffering from a concrete injury when
he brought suit—because his gun had not yet been returned—but an “actual controversy”
must exist “at all stages of review, not merely at the time the complaint is filed.” Alvarez v.
Smith, 558 U.S. 87, 92 (2009) (internal quotation marks and citation omitted). “[M]ootness
[is] the doctrine of standing set in a time frame: The requisite personal interest that must
exist at the commencement of the litigation (standing) must continue through its existence
(mootness).” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980) (internal quotation

1

The City returned Sutterfield’s gun prior to the filing of this case and AlMujaahid’s soon after. Al-Mujaahid originally asserted a claim seeking the return of his
gun but agrees that that claim is now moot.
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marks and citation omitted). “[F]ederal courts are without power to decide questions that
cannot affect the rights of litigants in the case before them.” North Carolina v. Rice, 404
U.S. 244, 246 (1971). Because the City has returned his gun, Al-Mujaahid is no longer
suffering a cognizable injury. Any prospective relief I could order regarding Milwaukee’s
policies would no longer affect him.
Plaintiffs argue that an exception to the mootness doctrine—capable of repetition,
yet evading review—applies here. To come within the exception plaintiffs must show that:
“‘(1) the challenged action [is] in its duration too short to be fully litigated prior to its
cessation or expiration, and (2) there [is] a reasonable expectation that the same
complaining party would be subjected to the same action again.’” Honig v. Doe, 484 U.S.
305, 333 (1988) (emphasis added) (quoting Murphy v. Hunt, 455 U.S.478, 482 (1982)); see
also Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007). Sutterfield
and Al-Mujaahid fail to allege or present any evidence that they are likely to be subjected
to the City’s policies regarding the return of guns again. Thus, they do not establish “a
reasonable expectation or a demonstrated probability that the same controversy will recur
involving the same complaining party.” Murphy, 455 U.S. at 482 (citations omitted).
Therefore the capable of repetition, yet evading review exception to the mootness doctrine
does not apply.
Plaintiff Wisconsin Carry, Inc., is an organization of gun owners. As an organization,
it has standing if it can demonstrate an injury to itself or its members. If it alleges an injury
to itself as an organization, I apply the same standing analysis as I do to individual plaintiffs.
See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). Id. at 378. Alternatively,
an organization can bring claims on behalf of its members if: “(a) its members would
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otherwise have standing to sue in their own right; (b) the interests it seeks to protect are
germane to the organization’s purpose; and (c) neither the claim asserted nor the relief
requested requires the participation of individual members in the lawsuit.” Hunt v. Wash.
Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).
Wisconsin Carry alleges no direct injury to itself as an organization. It claims that it
satisfies the standing requirement because its members Sutterfield and Al-Mujaahid have
standing. As discussed, however, neither Sutterfield nor Al-Mujaahid has standing, and,
therefore, Wisconsin Carry doesn’t either. Wisconsin Carry also alleges in its second
amended complaint that it “has other members who have had firearms seized by the
Milwaukee Police Department” who have been required to use the statutory return of
property process and that it “has other members who have been required” to pick up their
firearms and ammunition on separate days. (emphasis added.) These allegations, however,
also do not support standing. The fact that Wisconsin Carry has members who “have had”
guns seized and “have been” subjected to the policies complained of does not establish
that Wisconsin Carry has members who are likely to suffer future harm. The allegations
contain no facts indicating a likelihood of future harm to any member.
Thus, no plaintiff has standing to challenge Milwaukee’s policies regarding the return
of seized weapons.2
I turn next to Summerfield’s excessive force claim against Ziebell and Seer. I may
grant defendants’ summary judgment motion only if there is no genuine dispute as to any

2

In its most recent submission, the City indicates that it has abandoned its policy
of returning guns and ammunition on different days. Plaintiffs object to the introduction
of this new information and request to reopen discovery. Because I reach my decision
on standing independent of this information, I need not address plaintiffs’ request.
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material fact and defendants are entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). I take the evidence in the light most favorable to plaintiff and may grant the motion
only if no reasonable juror could find for plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
An excessive force claim is analyzed under the Fourth Amendment’s “objective
reasonableness” standard. Graham v. Connor, 490 U.S. 386, 395 (1989). “This standard
requires that a fact finder analyze whether the officer’s actions are objectively reasonable
in light of the facts and under the circumstances confronting the officer at the time of the
incident” without the benefit of hindsight. Common v. City of Chicago, 661 F.3d 940, 943
(7th Cir. 2011). In determining whether an officer’s actions are reasonable, I balance “the
nature and quality of the intrusion on the individual’s Fourth Amendment interests against
the countervailing governmental interests at stake” and pay “careful attention to the facts
and circumstances of each particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490
U.S. at 396 (internal quotations and citations omitted). I keep in mind that police must make
split-second decisions in tense, uncertain situations. Id. at 396–97.
In the present case, Sutterfield claims that Ziebell and Seer used excessive force
during a confrontation that occurred on July 29, 2011, in the police property room.
Defendants dispute that they used excessive force, arguing that only incidental physical
contact occurred and that they acted reasonably. According to Sutterfield, Ziebell refused
to return her ammunition with her gun, and she wanted to call officer Perez to confirm that
this was City policy before signing a receipt. She states that when she refused to return the
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gun to Ziebell, he and Seer entered the waiting room and confronted her, that Ziebell
grabbed her wrist, twisted her arm behind her back, and eventually shoved her into a wall.
She claims that Ziebell used a crushing grip in order to get her to release her property and
that Seer used his body to block her movements and prevent her escape. She testified that
the confrontation agitated her because Ziebell wore a gun and Seer is much larger than she
is. Defendants dispute Sutterfield’s version of the facts, arguing that as Ziebell attempted
to take the gun from Sutterfield, Sutterfield turned away from him and placed her arm and
the gun behind her. They argue that they acted reasonably, pointing to Sutterfield’s
behavior prior to the incident; that she wore a holster, was argumentative, became agitated,
refused to sign the property receipt, said that she had ammunition and took the gun off the
counter. In response to defendants claim that they acted because of safety concerns based
on Sutterfield’s behavior, Sutterfield argues that this justification is undermined by Ziebell’s
having returned her gun after she signed the property receipt.
While it is true that “[n]ot every push or shove . . . violates the Fourth Amendment.”
Graham, 490 U.S. at 397 (internal quotation and citation omitted), it is also clear that an
officer cannot use physical force against an individual who is not making threats and who
is not suspected of illegal activity. See Morfin v. City of East Chicago, 349 F.3d 989, 1005
(7th Cir. 2003) (finding that a reasonable jury could conclude that officers violated 4th
Amendment when they “grabbed [individual], twisted his arm, shoved him toward the wall
and took him to the floor” when the individual “did not pose a threat to the officers”); Payne
v. Pauley, 337 F.3d 767, 779 (7th Cir. 2003) (finding that an officer’s force against a woman
when he “forc[ed] her arms behind her back, twisting her arms” was objectively
unreasonable because woman was not threatening harm, resisting or evading arrest, or
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attempting to flee); see also Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996) (“It is clear
. . . that police officers do not have the right to shove, push, or otherwise assault innocent
citizens without any provocation whatsoever.”). Sutterfield states that she did not verbally
or physically threaten the officers, did not attempt to leave the property room, and was not
suspected of illegal activity. Taking her statements as true, as I must, I conclude that a
reasonable fact finder could find that defendants used excessive force.
Defendants argue that the surveillance video of the incident conclusively indicates
that they acted reasonably. I disagree. While the video does confirm a time line of events,
it does not settle key factual disputes, especially since the video has no audio.
Ziebell and Seer also argue that they are entitled to qualified immunity. The doctrine
of qualified immunity shields government officials from liability for civil damages under §
1983 “insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 817–18 (1982). In order to determine whether defendants are entitled to qualified
immunity, I ask “(1) whether the facts alleged, taken in the light most favorable to the
plaintiff, amount to a constitutional violation; and (2) whether the constitutional right at issue
was clearly established at the time of the alleged violation.” McComas v. Brickley, 673 F.3d
722, 725 (7th Cir. 2012). I have already answered the first question, thus I turn to the
clearly established prong.
In order for a right to be clearly established, I do not need to find that “the very action
in question has previously been held unlawful,” only that the unlawfulness of it was
apparent “in the light of pre-existing law.” Anderson v. Creighton, 483 U.S. 635, 639–40
(1987). A case exactly on point is not required, but “[t]he contours of the right must be
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sufficiently clear that a reasonable official would understand that what he is doing violates
that right.” Id. at 640. The Seventh Circuit case law cited above makes clear that using
physical force against an individual who has made no verbal or physical threat in order to
seize property that is lawfully in the individual’s possession is a constitutional violation. See
Morfin, 349 F.3d at 1005; Payne, 337 F.3d at 779; Clash, 77 F.3d at 1048. Thus, the
constitutional right that Sutterfield alleges was violated was clearly established and
defendants are not entitled to qualified immunity.
Finally, Sutterfield claims the City violated the Wisconsin Open Records Law, and
she seeks $100 in damages. Wisconsin’s open records law states that “[e]xcept as
otherwise provided by law, any requester has a right to inspect any record.” Wis Stat. §
19.35(1)(a). However, the statutes also specify that the exclusive remedial procedure for
violations is an action for mandamus. § 19.37(1). A plaintiff may recover damages but only
“if the requester prevails . . . in any action [for mandamus] under sub. (1).” § 19.37(2). The
statute does not authorize a claim for damages on its own. See Capital Times Co. v. Doyle,
2011 WI App 137 ¶ 6, 337 Wis. 2d 544, 807 N.W.2d 666. Sutterfield seeks damages
without a mandamus action. Thus, her claim is not authorized by the statute must be
dismissed.
THEREFORE, IT IS ORDERED THAT defendants’ motions for summary judgment
(ECF Nos. 53, 58) are GRANTED IN PART and DENIED IN PART.
The motion is GRANTED as to all plaintiffs’ claims for declaratory relief against all
defendants.
The motion is GRANTED as to plaintiff Al-Mujaahid’s claim for injunctive relief.

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The motion is GRANTED as to plaintiff Sutterfield’s state open records claim.
The motion is DENIED as to plaintiff Sutterfield’s excessive force claim.
Dated at Milwaukee, Wisconsin, this 28th day of July, 2014.

s/ Lynn Adelman
Lynn Adelman
District Judge

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