Hardy v. City of Milwaukee et al

Filing 93

ORDER signed by Judge J P Stadtmueller on 6/13/14 granting in part and denying in part 50 Defendants' Motion for Partial Summary Judgment. See Order. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LEO HARDY,
Plaintiff,
v.

Case No. 13-CV-769-JPS

CITY OF MILWAUKEE,
EDWARD FLYNN, MICHAEL GASSER,
OFFICER KEITH GARLAND, JR.,
PATRICK COE, MICHAEL VALUCH, JR.,
ROLANDO HERNANDEZ, and
UNKNOWN MILWAUKEE POLICE
DEPARTMENT EMPLOYEES AND
OFFICERS,

ORDER

Defendants.
The plaintiff, Leo Hardy, alleges that he was illegally strip searched
and falsely arrested, and seeks 42 U.S.C. § 1983 redress against the
Milwaukee Police Department officers who searched and arrested him, as
well as the City of Milwaukee and the officers’ supervisors. (Docket #34). The
defendants have moved for summary judgment on a portion of Mr. Hardy’s
claims. (Docket #50). That motion has been fully briefed (Docket #51, #68,
#83), and the Court now turns to decide it.
1.

SUMMARY JUDGMENT STANDARD
The Court begins this order by setting forth the legal standard

applicable to summary judgment motions. “The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). “Material facts” are those under the applicable substantive law that
“might affect the outcome of the suit.” Anderson, 477 U.S. at 248. A dispute

over a “material fact” is “genuine” if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id.
However, in deciding whether there are any genuine issues of material
fact, the Court must view the record in the light most favorable to Mr. Hardy
and draw all reasonable inferences in his favor. Id., at 255. The Court cannot
weigh the evidence or decide which party’s submissions and testimony are
more believable. Id.
This standard is very important in this case, because the parties have
submitted conflicting evidence on several of Mr. Hardy’s claims. Thus, in
discussing the background of the case, the Court must be sure to view the
record and draw all reasonable inferences in Mr. Hardy’s favor. Id. Thus, in
a situation like this—where the parties have submitted conflicting evidence
and do not agree on the import of that evidence—it is very difficult for the
Court to find that summary judgment is appropriate.
2.

BACKGROUND
The Court now turns to discussing the factual and legal background

before it.
2.1

Factual Background

Mr. Hardy is an African-American resident of the City of Milwaukee.
(PPFF ¶ 1).1 For a period of time, Mr. Hardy lived in Mayflower Court; his
mother continued to live there through March of 2012. (PPFF ¶ 2).

1

The Court will refer to the defendants’ proposed findings of fact as “DPFF”
and Mr. Hardy’s proposed findings of fact as “PPFF.” Of course, as already
mentioned, the Court is bound to view the record and draw all reasonable
inferences in Mr. Hardy's favor without weighing the evidence. Anderson, 477 U.S.
at 255. Therefore, the Court will take its discussion of the facts largely from Mr.
Hardy’s proposed findings, particularly where the defendants do not dispute those
facts. Where there is a dispute between the parties, the Court will note the dispute,
but draw every reasonable inference in Mr. Hardy’s favor.

Page 2 of 28

On March 13, 2012, at 4:16 p.m., the Milwaukee Police Department
received a trespassing report from a citizen. (PPFF ¶ 3). The citizen stated
that an individual named Marquis Kirksey (“Kirksey”) had been seen
trespassing around Mayflower Court. (PPFF ¶ 3).
Milwaukee Police Department Officers Gasser and Garland were
dispatched to investigate this report, and arrived in the area, near the corner
of Seventh Street and Walnut Street, shortly after 5:13 p.m. (PPFF ¶¶ 4–5).
After arriving, Officers Gasser and Garland drove around the area searching
for a white Acura, which reportedly belonged to Kirksey, the suspect. (PPFF
¶¶ 4, 6). The officers searched the area for approximately eight minutes, but
found nothing. (PPFF ¶ 7). They then parked their car and began to run a
warrant check for Kirksey. (PPFF ¶¶ 7–8).
While the officers were parked, Christopher Wichgers (“Wichgers”),
a security guard for the housing complex, pulled up next to their vehicle.
(PPFF ¶ 8). He spoke with the officers for less than a minute, during which
time he told officers that Mr. Hardy was an acquaintance of Kirksey. (PPFF
¶¶ 9–10).
Around the same time, Mr. Hardy drove to visit his mother at
Mayflower Court. (PPFF ¶ 2). While the officers were speaking with
Wichgers, Mr. Hardy drove past them. (PPFF ¶ 11). Wichgers identified Mr.
Hardy’s car, and reported that both Mr. Hardy and Kirksey hang around in
an area where people deal drugs. (PPFF ¶ 12). The officers then began to

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follow Mr. Hardy’s car, seeking to speak with Mr. Hardy about Kirksey and
to check whether Kirksey happened to be in Mr. Hardy’s car. (PPFF ¶ 13).2
The officers followed Mr. Hardy’s car for a very short time; during
that time, they did not observe Mr. Hardy commit any traffic violations, nor
did they activate their lights or sirens or pull Mr. Hardy over. (PPFF
¶¶ 15–16). Rather, Mr. Hardy parked the car of his own volition in front of
his mother’s home. (PPFF ¶¶ 16, 19). He then exited his car to begin walking
towards his mother’s residence. (PPFF ¶¶ 19, 21).3
The officers parked their squad car behind Mr. Hardy’s car, and
requested that Mr. Hardy return to the area of the cars. (PPFF ¶¶ 19, 21–22,
24). Hardy complied, returning to his vehicle, at which time he either
provided the officers with his driver’s license or received a pat-down search
from the officers. (See PPFF ¶ 23, and Def.’s Resp. thereto).
The Court must stop here to point out several important facts. At this
point, the officers did not have any information that Mr. Hardy was involved
in criminal activity: they did not observe any traffic violations, had not

2

Officer Garland testified to these facts. (See Def.’s Resp. to PPFF ¶¶ 12–13).
Officer Gasser, on the other hand, testified that Wichgers reported that Mr. Hardy,
himself, dealt drugs, and that the officers followed Mr. Hardy’s car to check up on
these drug-dealing suspicions. (See Def.’s Resp. to PPFF ¶¶ 12–13). The defendants
would like the Court to adopt Officer Gasser’s version of events, but the Court will
not weigh the credibility of the statements at this stage. Instead, reading the
evidence in the light most favorable to Mr. Hardy—particularly when considering
that Officer Garland’s version of events is more consistent with Wichgers’ (see PPFF
¶ 14 and Def.’s Resp. thereto)—the Court must adopt Officer Garland’s testimony
for the purpose of deciding this summary judgment motion.
3

The defendants argue that Mr. Hardy had merely exited his vehicle, and
was not walking towards his mother’s house at the time of the events. (See Def.’s
Resp. to PPFF ¶¶ 19, 21). However, the parties have submitted conflicting
deposition testimony on this topic; the Court may not weigh it, and so views the
evidence in Mr. Hardy’s favor.

Page 4 of 28

performed a warrant check to discover whether Mr. Hardy had any
outstanding warrants, and readily observed that he was not with Kirksey.
(PPFF ¶¶ 18, 20).4 Moreover, there were no drugs clearly visible on Mr.
Hardy’s person—and a later search would establish that Mr. Hardy did not
have any drugs on him throughout this entire ordeal—and Mr. Hardy did
not smell like marijuana. (PPFF ¶ 27; see PPFF ¶¶ 28–29).5 With those
important points in mind, the Court now returns to recounting the relevant
events.
After returning to his car at the officers’ request, Hardy seems to have
spoken with the officers for a very short period of time, asking why they
were stopping him. (PPFF ¶¶ 25).6 In response, the officers did not even
4

The defendants dispute this, arguing that the Court should credit Gasser’s
recollection of being told that Mr. Hardy was involved in drug dealing. (Def.’s
Resp. to PPFF ¶¶ 18, 20). The Court cannot do so. Moreover, the remaining
information that defendant tries to rely on to establish suspicion of involvement in
criminal activity—that Mr. Hardy hangs out with the suspect they were looking for,
that Mr. Hardy was on probation, and that Mr. Hardy hangs out in an area where
people deal drugs (Def.’s Resp. to PPFF ¶ 18)—is hardly probative of criminal
activity. In actuality, as the Court will discuss further below, this information is
extremely non-particularized. Regardless, reading the record in Mr. Hardy’s favor,
the Court accepts these proposed facts.
5

The defendants try to justify the officers’ actions by arguing that there is
evidence that Mr. Hardy smelled of marijuana. (See Def’.s Resp. to PPFF ¶¶ 27). In
support, they cite only Officer Gasser’s self-serving deposition testimony that he
smelled marijuana—a fact that he did not include in the incident report he filled out
on the day of Mr. Hardy’s arrest. (PPFF ¶¶ 28–29). The Court, of course, cannot
weigh the evidence, here, but suffice it to say that the defendants stretch their
credibility by seeking to have the Court credit Mr. Gasser’s testimony. As with most
factual aspects of this case, this must be presented to a jury.
6

The defendants deny this fact, but assert only that neither officer could
recall what was said during the conversation. (Def.’s Resp. to PPFF ¶ 25). Seeing as
the defendants have not set out any credible evidence that truly calls into question
Mr. Hardy’s proposed fact, the Court, again, views the record in Mr. Hardy’s favor
and adopts his version of the events.

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mention Kirksey—the trespassing subject whose whereabouts the officers
were nominally investigating. (PPFF ¶ 26).7
Instead, Officer Gasser simply ordered Mr. Hardy to submit to a
search, instructing Mr. Hardy to put his arms out and pushing Mr. Hardy
against the car. (PPFF ¶¶ 30–31). While performing this search—in public, on
the street—Officer Gasser reached down Mr. Hardy’s pants and touched Mr.
Hardy’s bare buttocks. (PPFF ¶ 33). Officer Gasser then moved his hand to
the front of Mr. Hardy’s pants and grabbed Mr. Hardy’s penis. (PPFF ¶ 34).
Throughout this period, Officer Garland was in the proximity and could
observe the search taking place; he did nothing to stop the search. (PPFF
¶¶ 35–36).8
Perhaps frightened by this under-the-clothes genital search, Mr.
Hardy ran from the officers. (PPFF ¶ 37). The officers pursued Mr. Hardy
through Mayflower Court, and apprehended him in less than forty-five
seconds. (PPFF ¶¶ 38–39). Mr. Hardy maintains that he did not have any
drugs on his person throughout these events; the defendants disagree,
asserting that, after Mr. Hardy ran from the officers, he discarded a bag of
narcotics, which was picked up by a person in a white car. (See PPFF ¶ 40,
and Def.’s Resp. thereto).9

7

The defendants do not dispute this fact, but instead simply try to muddle
it with other, irrelevant representations.
8

The defendants’ and Mr. Hardy’s versions of events on all of these points
conflict. The Court credits Mr. Hardy’s version at this stage of the proceedings.
9

The resolution of this dispute will boil down to the credibility of the parties’
statements and evidence; the Court cannot resolve the question at this time. As
with every other factual assertion at this stage, though, the Court must view the
record and draw all reasonable inferences in Mr. Hardy’s favor; therefore, the
Court will credit his version of events at this stage of the proceedings.

Page 6 of 28

Officer Garland apprehended Mr. Hardy at gunpoint, at which point
he handcuffed Mr. Hardy and searched Mr. Hardy again. (PPFF ¶¶ 41–43).
Officer Gasser then performed an additional search of Mr. Hardy’s
waistband, pants, and pockets. (PPFF ¶ 45).
At some point after Mr. Hardy’s having been handcuffed and formally
arrested, a Milwaukee Police Department conveyance van arrived on the
scene. (PPFF ¶¶ 42, 44, 46). Officer Rolando Hernandez drove that van to the
scene. (PPFF ¶ 46). Meanwhile, Officers Michael Valuch and Patrick Coe also
arrived on the scene. (PPFF ¶ 47).
Officers Hernandez and Garland escorted Mr. Hardy to the
conveyance wagon and placed him inside of it. (PPFF ¶ 48). Mr. Hardy was
in the van for approximately five minutes, after which time Officer Valuch
removed him from the van for an additional search, at Officer Gasser’s
request. (PPFF ¶¶ 49, 51).
Officer Valuch then conducted that additional search at the back of the
van, in public while Mr. Hardy was handcuffed. (PPFF ¶¶ 52, 54). In doing
so, he pulled Mr. Hardy’s pants to the ground, leaving Mr. Hardy standing
with only his underwear to cover his genitals. (PPFF ¶¶ 52–53). While Mr.
Hardy was standing with only his underwear on, Officer Valuch pulled the
waistband of the underwear away from Mr. Hardy’s body and looked down
Mr. Hardy’s underwear. (PPFF ¶ 53). Throughout this search, Officers
Garland, Coe, and Hernandez were present and did not stop the search;
moreover, several residents of Mayflower Court were present and saw the

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search occurring. (PPFF ¶¶ 56–57).10 After the search, Officer Valuch placed
Mr. Hardy back into the van. (PPFF ¶ 58).
Mr. Hardy sat in the van for another ten to fifteen minutes, after which
time Officer Valuch again removed Mr. Hardy from the van to perform
another search, in public at the back of the van. (PPFF ¶¶ 60, 63). Officer
Valuch again pulled Mr. Hardy’s pants down, and this time grasped Mr.
Hardy’s penis over his underwear. (PPFF ¶ 61). Officer Valuch then looked
into Mr. Hardy’s underwear. (PPFF ¶ 62). Officers Gasser, Garland, Coe, and
Hernandez observed this search and did not stop it; at least one of Mr.
Hardy’s neighbors observed this search. (PPFF ¶¶ 65, 66).11 Officer Valuch
then again returned Mr. Hardy to the van.
The officers then took Mr. Hardy to the Fifth District police station,
whereafter he was transferred to the Criminal Justice Facility. (PPFF ¶ 69).
Officers Gasser and Garland, likewise, returned to the Fifth District
police station. (PPFF ¶ 70). Once there, they prepared incident reports
regarding the events in question. (PPFF ¶ 70). As the Court already
mentioned, the officers’ reports did not include any mention of being told

10

The defendants dispute all of these proposed facts, but primarily disagree
with Mr. Hardy as to whether Officer Valuch pulled Mr. Hardy’s pants down. (See
Def.’s Resp. to PPFF ¶¶ 52–58). As with most everything else the Court has
discussed, this determination relies on a weighing of the evidence; the Court cannot
resolve the dispute at this point, and therefore views the record in Mr. Hardy’s
favor.
11

The defendants dispute whether this additional search occurred,
and—seemingly—if it did occur, whether Officer Valuch pulled down Mr. Hardy’s
pants to effectuate the search. (See Def.’s Resp. to PPFF ¶¶ 60–68). Because this
determination requires weighing the evidence, the Court cannot decide it at this
stage, and resolves it in Mr. Hardy’s favor.

Page 8 of 28

that Mr. Hardy was involved in drug activity nor of Mr. Hardy’s smelling
like marijuana. (PPFF ¶ 70).
Mr. Hardy was eventually charged with resisting or obstructing an
officer, pursuant to Wis. Stat. § 946.41(1), as a result of his having run from
Officer Gasser’s first search. (PPFF ¶ 71). He was held in the Criminal Justice
Facility for 21 days, during which time he reported the allegedly improper
searches to his parole officer, who eventually made a formal complaint on his
behalf, which was found to be baseless. (PPFF ¶¶ 72–74). Eventually, after
being held in the Criminal Justice Facility for 21 days, Mr. Hardy apparently
pled guilty to resisting or obstructing an officer, and was then released. (E.g.,
Docket #86, Exs. 1–3).
2.2

Legal Background

Mr. Hardy filed this suit on July 10, 2013. (Docket #1). He filed an
amended complaint on February 5, 2014, which serves as the operative
complaint and contains the following claims:
(1)

a due process claim against all of the defendants, for allegedly
depriving Mr. Hardy of his liberty and violating his right to
bodily integrity (Compl. ¶¶ 29–33);

(2)

a Fourth Amendment claim—presumably for both the initial
stop and also the strip search—against the defendant officers
(Gasser, Garland, Hernandez, Coe, and Valuch), for violating
Mr. Hardy’s right to be free from unreasonable searches and
seizures (Compl. ¶¶ 34–40);

(3)

a false arrest claim against the defendant officers for detaining
Mr. Hardy without justification and probable cause;

(4)

a failure to intervene claim against all of the defendants, for
their failures to stop the illegal searches and arrests in spite of
their knowledge thereof (Compl. ¶¶ 41–45);

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(5)

a conspiracy claim against the defendant officers, for their prior
agreements to violate Mr. Hardy’s rights (Compl. ¶¶ 51–56);
and

(6)

an indemnification claim, seeking to require the City of
Milwaukee to indemnify its employees, who are defendants in
this matter (Compl. ¶¶ 57–59).

The defendants moved for judgment on the pleadings on Mr. Hardy’s
complaint, which the Court denied on February 25, 2014.
Now, the defendants have jointly moved for partial summary
judgment, seeking dismissal of a number of Mr. Hardy’s claims. (Docket #50,
#77).
Specifically, the defendants request that the Court dismiss
(1)

any claims regarding unknown defendants (Def.’s Br. in Supp.
at 18), for failure to satisfy 42 U.S.C. § 1983’s requirements;

(2)

Mr. Hardy’s due process claim (Def.’s Br. in Supp. at 19–20),
because the claim is not supported by the record;

(3)

any claims over Officers Coe, Valuch, and Hernandez for lack
of jurisdiction (Def.’s Br. in Supp. at 20–21);

(4)

the false arrest claims against Officers Coe, Valuch, and
Hernandez, because they did not arrest Mr. Hardy (Def.’s Br.
in Supp. at 21);

(5)

the Fourth Amendment claim (presumably, along with the
false arrest claim) against Officers Gasser and Garland, because
they had reasonable suspicion to stop Mr. Hardy and probable
cause to arrest him (Def.’s Br. in Supp. at 21–24);

(6)

the Fourth Amendment and false arrest claims against Officers
Gasser and Garland, because those two officers are entitled to
qualified immunity on those claims (Def.’s Br. in Supp. at
24–27);

(7)

the Fourth Amendment claims against Officers Garland, Coe,
and Hernandez, because those officers did not perform any
allegedly unlawful searches (Def.’s Br. in Supp. at 27); and

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(8)

the conspiracy claim against all of the officers, for lack of
evidence of conspiracy (Def.’s Br. in Supp. at 28–29).

Mr. Hardy concurs with or does not dispute several of the defendants’
arguments. Specifically, he has:
(1)

agreed to dismiss his due process claim (Pl.’s Resp. at 27);

(2)

conceded that Officers Coe, Valuch, and Hernandez were not
present at the time of Mr. Hardy’s arrest, and therefore that his
false arrest claim and his Fourth Amendment claim for
unlawful stop against those officers, must be dismissed (Pl.’s
Resp. at 10, n.3); and

(3)

not objected to the defendants contention that he cannot
maintain his claim against the unknown defendants (see
generally, Pl.’s Resp.), and therefore he has waived any
argument that he should be permitted to maintain such claims,
e.g., Diadenko v. Folino, 741 F.3d 751, 757 (7th Cir. 2013) (finding
that party waived consideration of issue before a district court
by failing to raise issue in her summary judgment materials).

Moreover, the defendants have agreed that Officers Coe, Valuch, and
Hernandez have now been served and have answered the complaint, giving
the Court jurisdiction over them.
Thus, the first four of the defendants’ arguments are moot. Likewise,
the Court must grant summary judgment in the defendants’ favor on: Mr.
Hardy’s due process claim; his claims against any unknown defendants; his
false arrest claim against Officers Coe, Valuch, and Hernandez; and his
Fourth Amendment claim for unlawful stop against those defendants.
3.

DISCUSSION
With that background in mind, there remain four issues for the Court

to address. First, whether Officers Gasser and Garland had reasonable
suspicion to stop Mr. Hardy, such that they cannot be held liable on Mr.
Hardy’s Fourth Amendment unlawful stop claim, and whether they had

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probable cause to arrest Mr. Hardy, such that they cannot be held liable on
Mr. Hardy’s false arrest claim. Second, whether Officers Gasser and Garland
are entitled to qualified immunity on those two claims. Third, whether the
Court must dismiss the Fourth Amendment illegal search claims against
Officers Garland, Coe, and Hernandez, because those officers did not actually
perform the allegedly-illegal searches, and whether the Court must dismiss
the failure to intervene claims against all officers, because those officers did
not see the strip searches occurring. Fourth, whether the Court must dismiss
the conspiracy claim in its entirety for lack of evidence. The Court addresses
each of these issues in turn.
3.1

Fourth Amendment Unlawful Stop and False Arrest Claims
Against Officers Gasser and Garland

This first issue actually involves to sub-issues: whether Officers Gasser
and Garland were justified in stopping Mr. Hardy and whether they were
justified in arresting him.
3.1.1

Unlawful Stop

The Court clearly cannot dismiss Mr. Hardy’s Fourth Amendment
unlawful stop claims against Officers Gasser and Garland because there are
significant disputes of material fact surrounding that claim. Police officers
may not perform investigatory stops of individuals without a reasonable,
articulable suspicion that criminal activity is afoot, as judged by an objective
inquiry into all of the circumstances the officer knows at the time of the stop.
See, e.g., Huff v. Reichert, 744 F.3d 999, 1004 (7th Cir. 2014); United States v.
Snow, 656 F.3d 498, 500 (7th Cir. 2011); United States v. Riley, 493 F.3d 803, 808
(7th Cir. 2007) (quoting United States v. Lawshea, 461 F.3d 857 859 (7th Cir.
2006)).

Page 12 of 28

The defendants offer five reasons that Officers Gasser and Garland
had a reasonable, articulable suspicion to perform an investigatory stop, but
each of those reasons fails to establish a reasonable, articulable suspicion. The
first— that Wichgers had told them that Mr. Hardy was engaged in the sale
of drugs—is not established by the evidence, seeing as Officers Gasser and
Garland testified in inconsistent ways on the fact. Moreover, even if it was
established, the defendants have not offered any case law to show that such
a generalized statement would create the particularized sort of suspicion
necessary to perform an investigatory stop. See United States v. Williams, 731
F.3d 678, 684 (7th Cir. 2013) (citing United States v. Arvizu, 534 U.S. 266, 273);
Huff, 744 F.3d at 1004 looking for “reasonable articulable suspicion that [the
defendants] had committed, were committing or were about to commit an
offense.”).12 The second, third, and fourth reasons offered by the
defendants—that Mr. Hardy was on probation; that Wichgers told the
officers that Mr. Hardy hangs out with Kirksey; and that Mr. Hardy hangs
out in an area known for illegal activity—likewise fail to create a reasonable
articulable suspicion. If such facts could support a reasonable articulable
suspicion, then: every parolee could be stopped at any time; any person who
associated with suspects of crimes could be stopped for investigative reasons;
any person living in or visiting a high-crime area would be subject to such
stops. These are all very slippery slopes that the Court does not wish to
traverse.
The only reason that could potentially satisfy the reasonable
articulable suspicion requirement is the fifth—that the officers could smell

12

If the defendants disagree, they may provide the Court with case law to
support their position prior to trial, at which time the Court may reconsider the
issue.

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marijuana on Mr. Hardy. See, e.g., United States v. Peters, 743 F.3d 1113 (7th
Cir. 2014); United States v. Clark, 657 F.3d 578 (7th Cir. 2011); United States v.
Franklin, 547 F.3d 726, 734-35 (7th Cir. 2008) (all of these cases standing for
the proposition that the smell of marijuana creates probable cause to perform
a search). The problem is that there are significant factual issues that must be
resolved regarding this fact: the only evidence offered by the defendants in
favor of this assertion is Officer Gasser’s sole and self-serving testimony that
he smelled marijuana, which conflicts with Mr. Hardy’s testimony, and is not
supported by the officers’ incident reports.
Thus, at this point, the Court must deny the defendants’ motion for
summary judgment on Mr. Hardy’s Fourth Amendment unlawful stop
claims against Officers Gasser and Garland. To the extent that the defendants
can establish that Mr. Hardy smelled of marijuana, then they had a
reasonable articulable suspicion to stop him; if they cannot establish that fact,
then they did not have the required suspicion and their stop of him (as well
as the subsequent search of his person) was illegal. This is, thus, a material
fact that remains for the jury to decide. See, e.g., Huff, 744 F.3d at 1004–05
(citing with approval district court’s decision on summary judgment that
genuine issue of material fact remained whether officer perceived a traffic
violation, such that he had reasonable articulable suspicion to make a stop);
United States v. Carlisle, 614 F.3d 750, 754 (7th Cir. 2010) (citing United States
v. Burnside, 588 F.3d 511, 516 (7th Cir. 2009) for proposition that reasonable
suspicion involves a question of fact, particularly when “what happened?”
is at issue).
To end this portion of the discussion, the Court must address the
defendants’ argument that—though not made explicitly clear—Mr. Hardy
was not the subject of an investigative stop. (See Def.’s Reply at 5). The
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defendants state that “[n]othing prevents a law enforcement officer from
approaching a citizen to ask him or her questions if the citizen is free to walk
away.” (See Def.’s Reply at 5). The defendants are correct, as they also are in
their assertion that a “person is seized for Fourth Amendment purposes”
only when “a reasonable person would have concluded that he is not free to
leave police custody.” (See Def.’s Reply at 5 (Hardrick v. City of Bolingbrook,
522 F.3d 758, 762 (7th Cir. 2008))). Be that as it may, the defendants have
failed to set out any cogent facts to establish that Mr. Hardy felt that he was
free to leave. In fact, the evidence suggests that is emphatically not the case,
here: the deposition testimony that has been submitted, in fact, seems to
show that—without any attempt to approach Mr. Hardy in a non-Fourth
Amendment/non-investigatory stop fashion—Officer Gasser immediately
decided to perform a search of Mr. Hardy. Any reasonable person who is
made to submit to a pat-down search will believe that he or she is not free to
leave. To the extent that the defendants are attempting to argue that the
officers approached Mr. Hardy lawfully without intending to stop him, at
which time they smelled marijuana and then decided to stop him and search
him, then they circle back around to the exact same place they are left above:
the smell of marijuana remains disputed and is an issue for trial.
3.1.2

False Arrest

The defendants’ arguments that the Court must dismiss Mr. Hardy’s
false arrest claims against Officers Gasser and Garland are extremely
complex—more complex than the defendants seem to realize.
If the officers had probable cause to arrest Mr. Hardy, then the Court
must dismiss his false arrest claim against them. Abbott v. Sangamon Cty., Ill.,
705 F.3d 706, 713–714 (7th Cir. 2013) (probable cause is an absolute defense
to a false arrest claim). “Probable cause to justify an arrest exists if the totality
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of the facts and circumstances known to the officer at the time of the arrest
would warrant a reasonable, prudent person in believing that the arrestee
had committed, was committing, or was about to commit a crime.” Id., at 714
(citing Thayer v. Chiczewski, 705 F.3d 237, 246 (7th Cir.2012); Michigan v.
DeFillippo, 443 U.S. 31, 37 (1979); Beck v. Ohio, 379 U.S. 89, 91 (1964)). This
requires “more than a hunch,” but not “a finding that it was more likely than
not that the arrestee was engaged in criminal activity.” Abbott, 705 F.3d at 714
(citing Henry v. United States, 361 U.S. 98, 102 (1959); Fox v. Hayes, 600 F.3d
819, 833 (7th Cir. 2010)). It is a purely objective inquiry, requiring an
examination of how a reasonable officer would act, knowing what the
arresting officer knew at the time of the arrest. Abbott, 705 F.3d at 714 (citing
Devenpeck v. Alford, 543 U.S. 146, 152 (2004); Maryland v. Pringle, 540 U.S. 366,
371 (2003); Whren v. United States, 517 U.S. 806, 813 (1996); Ornelas v. United
States, 517 U.S. 690, 696 (1996); Tebbens v. Mushol, 692 F.3d 807, 817 (7th Cir.
2012)).
The defendants make two separate arguments regarding the false
arrest claim, both boiling down to an alleged lack of probable cause. First,
they argue that Mr. Hardy should be precluded from arguing a lack of
probable cause, where he previously pled guilty to resisting arrest. Second,
they argue that the facts surrounding Mr. Hardy’s arrest establish that the
officers had probable cause to arrest him. The Court addresses each of these
arguments in turn.
3.1.2.1 Preclusion by Plea
In their reply brief, the defendants seek to establish probable cause by
using Mr. Hardy’s plea agreement to the resisting a police officer charge for
preclusive effect. (Def.’s Reply 2–3). In other words, the defendants argue
that, because Mr. Hardy pled guilty to that charge, he has essentially
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admitted that the officers had probable cause to arrest him. (Def.’s Reply
2–3). In support, the defendants cite only one case: Allen v. McCurry, 449 U.S.
90, 102 (1980). And, to be sure, that case does allow common law preclusion
rules to apply in 42 U.S.C. § 1983 case. Id. The problem is that this issue is
extremely nuanced. The defendants have entirely ignored that nuance, failing
to submit appropriate arguments or evidence to support their preclusionrelated argument, thus dooming their motion for summary judgment in this
regard.
The Court starts its analysis by noting that, while Allen, 449 U.S. at
102, certainly does allow for a plea agreement to have preclusive effect in a 42
U.S.C. § 1983 action, it does not—under any circumstances—compel such
effect in this case. Since Mr. Hardy pled guilty in Wisconsin state court, the
Court must look to Wisconsin’s law of preclusion to determine what effect
his plea should be given. Reynolds v. Jamison, 488 F.3d 756, 762-63 (7th Cir.
2007) (preclusive effect of Illinois plea agreement must be analyzed under
Illinois law) (citing Allen, 449 U.S. at 101). See also Cannaday v. Sandoval, 458
F. App’x 563, 566 (7th Cir. 2012) (citing 28 U.S.C. § 1738; Allen, 449 U.S. at
95–96). In Mrozek v. Intra Fin. Corp., the Wisconsin Supreme Court declined
to give a plea agreement preclusive effect. 2005 WI 73, ¶¶ 17–21, 281 Wis. 2d
448, 699 N.W.2d 54. In that case, before engaging in a thorough discussion of
legal authority and the facts of the case, the Wisconsin Supreme Court stated,
“we conclude that Mrozek's guilty pleas do not fulfill the ‘actually litigated’
requirement for issue preclusion.” Id., at ¶ 21. Thus, the Court cannot be sure
whether it should read Mrozek for the bright-line rule that guilty pleas cannot
ever be used for preclusive effect, or whether each guilty plea must be
analyzed, individually, under Wisconsin’s preclusion law to determine its
effect. See, id.
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Regardless, even accepting that Mrozek stands for the proposition that
guilty pleas may be used for preclusive effect, cf. Reynolds v. Jamison, 488 F.3d
756, 765-66 (7th Cir. 2007) (under Illinois law, “any preclusive effect of a
guilty plea on subsequent litigation must be determined on a case-by-case
basis”), it would still be defendants’ burden to establish that the guilty plea
is entitled to preclusive effect under Wisconsin law. Masko v. City of Madison,
2003 WI App 124, ¶ 4, 265 Wis. 2d 442, 665 N.W.2d 391 (“The party seeking
to use issue preclusion bears the burden of demonstrating that the doctrine
should be applied.”) (citing State ex rel. Flowers v. H & SS Dept., 81 Wis.2d 376,
389, 260 N.W.2d 727 (1978)).
To establish that issue preclusion applies under Wisconsin law, the
defendants would have to satisfy two separate steps. At the first step, they
would have to show that the guilty plea required an actual adjudication of
the issue of probable cause or of facts that would establish probable cause.
See, e.g., First Weber Grp., Inc. v. Horsfall, 738 F.3d 767, 773 (7th Cir. 2013)
(citing Mrozek for the proposition that “the question of fact or law that is
sought to be precluded actually must have been litigated in a previous action
and [have been] necessary to the judgment.”). See also McBride v. Grice, 576
F.3d 703, 707 (7th Cir. 2009) (examining elements of a crime to determine
whether guilty plea preclusively established probable cause). At the second
step, the defendants would have to convince the Court that “it is
fundamentally fair to employ issue preclusion given the circumstances of the
particular case at hand,” using some or all of a list of five factors described

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by the Wisconsin Supreme Court. See, e.g., First Weber Grp., 738 F.3d at 773;
Michelle T. v. Crozier, 173 Wis. 2d 681, 689, 495 N.W.2d 327, 330–31 (1993).13
The defendants have not even begun to recognize, much less
appreciate, the necessary depth of this analysis, nor have they attempted to
meet their burden to establish issue preclusion. The Court must, therefore,
deny their request for summary judgment on this basis of Mr. Hardy’s guilty
plea.
They may still attempt to establish preclusion, but, if they wish to do
so, they should be sure to pay close attention to the following provisos. First,
they will have to provide cogent evidence and analysis in support of such a
request. Second, they should be aware that there are various reasons that the
Court is reluctant to grant preclusive effect to a plea agreement. To begin, the
Mrozek court noted the fact that the guilty plea, there, did not satisfy the
actually litigated step, for reasons that may very well apply to this case.
Moreover, the Wisconsin Court of Appeals recently noted that “[a] guilty
plea does not necessarily establish an admission of all the facts of the charged

13

The five factors are:

(1) could the party against whom preclusion is sought, as a matter
of law, have obtained review of the judgment; (2) is the question one
of law that involves two distinct claims or intervening contextual
shifts in the law; (3) do significant differences in the quality or
extensiveness of proceedings between the two courts warrant
relitigation of the issue; (4) have the burdens of persuasion shifted
such that the party seeking preclusion had a lower burden of
persuasion in the first trial than in the second; or (5) are matters of
public policy and individual circumstances involved that would
render the application of collateral estoppel to be fundamentally
unfair, including inadequate opportunity or incentive to obtain a
full and fair adjudication in the initial action?
Michelle T., 173 Wis. 2d at 689, 495 N.W.2d at 330-31.

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crime.” Blake v. Racine Cnty. Human Servs. Dep't, 2013 WI App 45, ¶ 15, 347
Wis. 2d 499, 831 N.W.2d 439. Therefore, mere admission of guilt does not
necessarily prove probable cause (the defendants will have to provide a very
cogent analysis of the plea, itself, to establish otherwise). Finally, given the
fact that Mr. Hardy may have had a very strong incentive to plead guilty—to
be released from confinement—even if he did not commit the crime he was
accused of, there may be significant differences in the quality or
extensiveness of proceedings that would make application of issue preclusion
fundamentally unfair, here.
In other words, while the Court will not foreclose the defendants’
opportunity to persuade the Court to employ issue preclusion, here, the
defendants should be aware that it will be their burden—and a tall one at
that—to establish that the Court should do so.
Finally, on the off chance that the defendants are attempting to argue
that Heck v. Humphrey, 512 U.S. 477, forecloses Mr. Hardy’s ability to seek
relief for his false arrest claim, because he is still subject to a state judgment
that has not been nullified, the Seventh Circuit has emphatically rejected such
a position. Reynolds, 488 F.3d at 766-67 (notwithstanding Heck,“a claim for
false arrest, because it does not by its nature call into question the validity of
a conviction, may go forward immediately, without nullification of the
underlying criminal conviction”) (citing Booker v. Ward, 94 F.3d 1052, 1056
(7th Cir.1996); Wallace v. City of Chicago, 440 F.3d 421, 423 (2006), aff'd, 549
U.S. 384 (2007)).
In sum, defendants have fallen far short of satisfying the Court that
Mr. Hardy’s guilty plea should prevent him from proceeding on his false
arrest claim. While the Court will allow the defendant to brief this issue

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further, if they wish to do so, it certainly cannot find that this is a sufficient
basis for granting summary judgment at this stage.
3.1.2.2 Factual Basis for Probable Cause
The defendants also argue, purely on the factual record and regardless
of the preclusion issue, that Officers Gasser and Garland had probable cause
to arrest Mr. Hardy. If they are correct, of course, then the Court must
dismiss Mr. Hardy’s false arrest claim against those officers, because
probable cause is an absolute bar to a false arrest claim. Abbott, 705 F.3d at
713–714.
The argument is essentially this: Mr. Hardy fled from the officers,
necessitating a foot chase; thus, when he was apprehended the officers
clearly had probable cause to arrest him for resisting or obstructing an officer
in violation of Wis. Stat. § 946.41(1). The Court disagrees.
To reach that conclusion, the Court begins with the pertinent text of
the statute: “whoever knowingly resists or obstructs an officer while such
officer is doing any act in an official capacity and with lawful authority is
guilty of a Class A misdemeanor.” Wis. Stat. § 946.41(1). The Court can
identify four elements in that text: (1) resistance or obstruction of an officer,
occurring while the officer (2) was acting in official capacity and (3) with
lawful authority, and (4) further that the act was done knowingly.
As already mentioned, probable cause exists where “the totality of the
facts and circumstances known to the officer at the time of the arrest would
warrant a reasonable, prudent person in believing that the arrestee had
committed, was committing, or was about to commit a crime.” Abbot, 705
F.3d at 714 (citing Thayer, 705 F.3d at 246; DeFillippo, 443 U.S. at 37; Beck, 379
U.S. at 91). Thus, the question becomes whether the totality of the facts

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known at the time would convince a reasonable person that Mr. Hardy
violated Wis. Stat. § 946.41(1).
The Court will take as a given that the totality of the circumstances
would give any reasonable person reason to believe that Wis. Stat.
§ 946.41(1)’s first and second elements are satisfied. To be sure, Mr. Hardy
actually did resist or obstruct arrest by running away from the officers.
Moreover, both officers were acting in their official capacity. The Court will
also assume arguendo that the officer had reason to believe that Mr. Hardy
was acting knowingly, given that they were not privy to his internal thought
processes, but had reason to believe he was acting volitionally.
The problem for this portion of the defendants’ argument, however,
is in the third element. That element requires that, for an individual to have
violated Wis. Stat. § 946.41(1), the officer who arrested that individual must
have been acting “with lawful authority” while doing so. In this case, the
parties dispute whether Officers Gasser and Garland were acting with lawful
authority when they stopped and searched Mr. Hardy. Moreover, there is
still a dispute over whether that search was an obviously-illegal strip search.
Any reasonable person confronted with those alleged facts—their lack of
authority to stop and search Mr. Hardy and their doing so in a clearly illegal
and violative fashion—would know that Mr. Hardy was not, in fact, violating
Wis. Stat. § 946.41(1). This conclusion is further buttressed by the Supreme
Court’s statement in United States v. Di Re, 332 U.S. 581, 594 (1948), that “One
has an undoubted right to resist an unlawful arrest, and courts will uphold
the right of resistance in proper cases.” This is the proper case. Any contrary
determination would allow police officers apparent authority to arrest any
person for fleeing an arrest, even if those officers were acting totally
unlawfully in effectuating an arrest. That rule would lead to absurd and
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unjust results, and, therefore, the Court rejects the defendants’ argument in
this regard.
Nonetheless, this decision does not close the probable cause
determination in its entirety. In fact, probable cause may exist. If, for
example, the record ultimately establishes that Mr. Hardy did smell of
marijuana and the officers had reasonable suspicion to stop and search him,
and likewise that their search was not an unlawful strip search, then they
likely were acting with lawful authority. In that case, they would likewise
have had probable cause to arrest Mr. Hardy. These are all fact-bound
determinations, though, better left for trial.
Accordingly, Mr. Hardy’s false arrest claims cannot be dismissed on
this basis.
3.2

Qualified Immunity for Officers Gasser or Garland on
Fourth Amendment and False Arrest Claims

The defendants next argue that Officers Gasser and Garland are
entitled to qualified immunity on Mr. Hardy’s Fourth amendment and False
Arrest claims against them.
To resolve a question of qualified immunity, the Court must engage
in a two-prong inquiry. The first prong requires the Court to decide whether
the facts, “[t]aken in the light most favorable to the party asserting the injury,
…show the officer’s conduct violated a [federal] right.” Saucier v. Katz, 533
U.S. 194, 201 (2001). The second prong requires the Court to answer whether
the right in question was “clearly established” at the time of the violation,
such that the state of the law at the time of the incident provided fair warning
to the defendants that their conduct was unconstitutional. Hope v. Pelzer, 536
U.S. 730, 739, 741 (2002). In performing this analysis, the Court must be sure
not to resolve genuine factual disputes in favor of the party seeking
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summary judgment. Brosseau v. Haugen, 543 U.S. 194, 195 n.2 (2004) (per
curiam); Saucier, 533 U.S. at 201; Hope, 536 U.S. at 733, n.1.
The facts, here, are so radically in dispute that the Court cannot find
the officers are entitled to qualified immunity. Taking the facts in Mr.
Hardy’s favor, he clearly states Fourth Amendment and false arrest claims.
He asserts that he was stopped and searched without cause, which would
clearly violate his Fourth Amendment rights. He asserts that Officer Gasser
performed a strip search during that first stop, which would also clearly
violate his Fourth Amendment rights. Finally, he asserts that his arrest
resulted from the officers’ own unlawful activity in effectuating the arrest,
making his arrest unlawful. On this latter point, the Court finds that, if Mr.
Hardy’s version of events is correct, then the officers did not even have
arguable probable cause to arrest him, because they would clearly have
known that their arrest was illegal, as it was based upon their own illegal
search of Mr. Hardy. Finally, the Court points out that all of these
violations—if Mr. Hardy can establish that they, in fact, occurred—violated
clearly established law at the time they occurred. No one can doubt that such
unlawful stops, searches (including strip searches), and illegal arrests were
clearly prohibited at the time this activity occurred, as such outrageous
conduct is obviously unconstitutional. E.g., Safford Unified Sch. Dis. v. Reding,
557 U.S. 364, 377 (2009) (citing Wilson v. Layne, 526 U.S. 603, 615 (1999)).
For all of these reasons, the defendants’ qualified immunity argument
also fails.

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3.3

Fourth Amendment Illegal Search Claims Against Officers
Garland, Coe, and Hernandez and Failure to Intervene
Claims Against All Officers

The defendants next argue that Officers Garland, Coe, and Hernandez
cannot be held liable for the strip search because they did not actually
perform the strip search. If Mr. Hardy opposes this portion of the
defendants’ motion, the Court cannot find where in his brief he did so,
although he noted in a footnote that his strip-search related claims against
Officers Garland, Coe, and Hernandez relate only to those officers’ failure to
intervene. (Pl.’s Resp. at 27 n.7).
So, to clarify this point: to the extent Mr. Hardy had a claim against
Officer Garland, Coe, or Hernandez for actively participating in a strip
search, he has effectively waived that claim, and it must be dismissed.
On the other hand, the Court cannot dismiss Mr. Hardy’s failure to
intervene claims. The defendants’ only argument in favor of dismissal of
those claims is that all of the officers testified that they did not see any other
officer perform a strip search. (Def.’s Reply at 4). In doing so, they again
make the mistake of requesting that the Court credit their evidence over Mr.
Hardy’s and draw reasonable inferences in their favor. Mr. Hardy testified
that he was strip searched in the presence of other officers, from which the
Court can reasonably infer that the officers observed the unlawful conduct,
knowing it was unlawful14 and did nothing to stop it, despite an opportunity
to do so. Thus, crediting Mr. Hardy’s testimony and drawing inferences in
his favor, the Court must sustain Mr. Hardy’s failure to intervene claims
through this motion for summary judgment.

14

As discussed more fully above, they would have known that such activity
was unlawful.

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Of course, the evidence at trial may show that Mr. Hardy is incorrect,
but, again, all of this is a question of fact rather than law. The Court must,
therefore, deny the City’s motion for summary judgment on the failure to
intervene claims.
3.4

Conspiracy Claim

The defendants’ motion to dismiss Mr. Hardy’s conspiracy claim is
complicated by the fact that the defendants had not turned over all relevant
documents at the time they moved for summary judgment on the claim.
Rather, as Mr. Hardy points out, even at the time he filed his response brief,
he still had not received potentially-relevant documents. Mr. Hardy,
therefore, requested additional time to gather evidence, under Federal Rule
56(d), before opposing the defendants’ motion for summary judgment on the
conspiracy claim. (Pl.’s Resp. at 22–26). The defendants tried to short-circuit
that request by providing limited information about the additional
materials—which they have now turned over to Mr. Hardy—and arguing
that the materials are irrelevant.
They may very well be correct, but the Court finds it would be
inappropriate to grant summary judgment on that basis without offering Mr.
Hardy an opportunity to respond. Therefore, the Court will deny this portion
of the defendants’ motion for summary judgment without prejudice. The
Court will revisit the issue, at the parties’ request, prior to trial.
4.

CONCLUSION
In sum, there are significant factual disputes remaining to be resolved,

which largely prevent the Court from granting the defendants’ motion for
summary judgment. Specifically, the Court is obliged to deny the defendants’
motion to the following extent:

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(1)

the Court must deny the defendants’ motion for summary
judgment on Mr. Hardy’s Fourth Amendment illegal stop and
search and false arrest claims against Officers Gasser and
Garland, because the Court cannot give Mr. Hardy’s plea
agreement preclusive effect, find probable cause, or grant
qualified immunity at this summary judgment stage of the
proceedings (see Section 3.1 and Section 3.2, supra);

(2)

the Court must deny the defendants’ motion for summary
judgment on Mr. Hardy’s failure-to-intervene claims against all
of the officers, because there is conflicting evidence as to
whether the officers observed illegal strip searches occurring
(see Section 3.3, supra); and

(3)

the Court must deny the defendants’ motion for summary
judgment on Mr. Hardy’s conspiracy claims, because Mr.
Hardy has not had an adequate opportunity to respond to the
defendants’ motion, having just recently received discovery
(see Section 3.4, supra).

On the other hand, the Court is obliged to grant summary judgment in the
defendants’ favor on a number of claims that Mr. Hardy either agreed should
be dismissed or ignored, as follows:
(1)

Mr. Hardy agreed to dismiss his due process claim (Pl.’s Resp.
at 27), and therefore the Court grants the defendants’ motion
for summary judgment on that claim (see Section 2.2, supra);

(2)

Mr. Hardy conceded that Officers Coe, Valuch, and Hernandez
were not present at the time of Mr. Hardy’s arrest (Pl.’s Resp.
at 10, n.3), and therefore the Court must grant the defendants’
motion for summary judgment on his false arrest claim and his
Fourth Amendment claim for unlawful stop against those
officers, must be dismissed (see Section 2.2, supra); and

(3)

Mr. Hardy did not object to the defendants contention that he
cannot maintain his claim against the unknown defendants (see
generally, Pl.’s Resp.), and therefore he has waived any
argument that he should be permitted to maintain such claims,
e.g., Diadenko v. Folino, 741 F.3d 751, 757 (7th Cir. 2013) (finding
that party waived consideration of issue before a district court
by failing to raise issue in her summary judgment materials),
Page 27 of 28

and the Court must grant the defendants’ motion for summary
judgment on that claim (see Section 2.2, supra); and
(4)

Mr. Hardy stated that his strip-search related claims against
Officers Garland, Coe, and Hernandez relate only to those
officers’ failure to intervene, (Pl.’s Resp. at 27 n.7), and
therefore the Court must grant the defendants’ motion to
dismiss Mr. Hardy’s claims against those officers to the extent
Mr. Hardy sought relief under a theory that those officers had
actually participated in a strip search (see Section 3.3, supra).

As should be quite clear, there are still very significant factual issues
remaining for trial. If they have not yet done so, it is time for the parties to
get serious about their preparations for that trial and to work with one
another to resolve disputes where possible, so as to streamline the
presentation of their respective cases to the Court and the jury.
Accordingly,
IT IS ORDERED that, as more fully discussed above, the defendants’
motion for partial summary judgment (Docket #50) be and the same is hereby
GRANTED in part and DENIED in part.
Dated at Milwaukee, Wisconsin, this 13th day of June, 2014.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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