Flint v. City of Milwaukee et al

Filing 92

ORDER signed by Judge J P Stadtmueller on 3/20/15: DENYING 49 Plaintiff's Motion for Partial Summary Judgment; GRANTING 43 and 48 Milwaukee County and Deputy David Jonas's Motion for Summary Judgment; DISMISSING Milwaukee County a nd Deputy David Jonas from this action; GRANTING in part and DENYING in party 53 the City Defendants' Motion for Summary Judgment as specified; and, DISMISSING Officers Jaimie Hewitt and Gregory Colker from this action. See Order. (cc: all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JANE FLINT,
Plaintiff,
v.

Case No. 14-CV-333-JPS

THE CITY OF MILWAUKEE,
MILWAUKEE COUNTY,
PHILLIP C. SIMMERT, PAUL FELICIAN,
KENNETH DAUGHERTY,
JAIMIE HEWITT, GREGORY COLKER,
DAVID JONAS, ANDREW MOURTY, and
JUTIKI JACKSON,

ORDER

Defendants.
1.

INTRODUCTION
The plaintiff, Jane Flint (“Flint”), pursuant to 42 U.S.C. § 1983, filed a

complaint in this matter on March 25, 2014, alleging the defendants violated
her civil rights. (Docket #1). On October 24, 2014, the Court granted, inter alia,
Flint’s motion to amend the complaint to add Milwaukee Police Department
(“MPD”) Sergeant Jutiki Jackson1 as a defendant (Docket #39), and thus the
first amended complaint (Docket #41) became the operative complaint in this
matter.
Flint’s amended complaint alleges two overarching causes of action,
both rooted in the Fourth Amendment: (1) an unlawful seizure of two
of her dogs—they were shot and killed during the execution of a search
warrant at her residence—against Sgt. Jackson, Detective Phillip C. Simmert,
Lieutenant Paul Felician,2 Officer Kenneth Daugherty, Officer Andrew
Mourty, Officer Jamie Hewitt, and Officer Gregory Colker (collectively “the

1

Jackson was a sergeant during the events at issue; he is now a captain.

2

Felician was a lieutenant during the events at issue; he is now a captain.

City defendants”), id. at 16-17; and (2) unlawful detention against the City
defendants, id. at 17, and Milwaukee County Deputy Sheriff David Jonas, id.
at 18. Flint also alleges a failure to intervene claim against all of the City
defendants. Id. at 17.
The City of Milwaukee (“the City”) and Milwaukee County (“the
County”) are defendants in this action because Flint alleges that both
municipalities “are liable to defend this action against the [d]efendants,
and to satisfy any judgment entered against them, by virtue of Wis. Stat.
§ 895.46.” Id.
On November 14, 2014, cross-motions for summary judgment were
filed; specifically: (1) the County and Deputy Jonas filed a motion for
summary judgment on the only claim against them—unlawful detention
(Docket #48); (2) the City and the City defendants filed a motion for summary
judgment on both claims against them (Docket #53); and (3) Flint filed a
motion for partial summary judgment, requesting resolution of the liability
aspect of both causes of action in her favor, but reserving the question of
damages for a jury. (Docket #49). Both the City defendants and Deputy Jonas
have asserted that they are entitled to qualified immunity on Flint’s claims.
On January 13, 2015, the Court, in light of the Supreme Court’s
December 15, 2014 decision in Heien v. North Carolina, — U.S. —, 135 S. Ct.
530 (2014), requested that the parties file supplemental briefs “explaining
what effect, if any, the Heien decision ha[d] on their respective arguments in
support of and in opposition to summary judgment.” (Docket #84). The
parties did so, (see Docket #85, #86, #87), and thus on January 27, 2015, all
three motions for summary judgment were fully briefed and ready for
adjudication.

Page 2 of 58

Accordingly, the Court now turns to those motions and will deny
Flint’s motion in its entirety, grant in part and deny in part the City
defendants’ motion, and grant Deputy Jonas’s motion for the reasons
outlined below.
2.

LEGAL STANDARDS
2.1

Summary Judgment

When a party files a motion for summary judgment, it is their
“contention that the material facts are undisputed and the movant is entitled
to judgment as a matter of law.” Hotel 71 Mezz Lender LLC v. Nat. Ret. Fund,
— F.3d —, 2015 WL 499571, at *5 (7th Cir. Feb. 6, 2015) (citing Fed. R. Civ. P.
56(a)).“Material facts” are those facts which “might affect the outcome of the
suit,” and “summary judgment will not lie if the dispute about a material fact
is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Thus, to have a genuine dispute about a material fact, a party
opposing summary judgment “must do more than simply show that there
is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 474 U.S. 574, 586 (1986); namely, the party in
opposition “must set forth specific facts showing that there is a genuine issue
for trial,” Fed. R. Civ. P. 56(e).
“Where…the movant is seeking summary judgment on a claim as to
which it bears the burden of proof, it must lay out the elements of the claim,
cite the facts it believes satisfies these elements, and demonstrate why the
record is so one-sided as to rule out the prospect of a finding in favor of the
non-movant on the claims.” Hotel 71 Mezz, 2015 WL 499571, at *5. When
analyzing whether summary judgment should be granted, a court must draw
all reasonable inferences from the materials before it in favor of the nonPage 3 of 58

moving party. See Johnson v. Pelker, 891 F.2d 136, 138 (7th Cir. 1989). When a
court denies a motion for summary judgment it “reflects the court’s
judgment that one or more material facts are disputed or that the facts relied
on by the motion do not entitle the movant to judgment as a matter of law.”
Hotel 71 Mezz, 2015 WL 499571, at *6.
2.2

Qualified Immunity

As noted above, the City defendants and Deputy Jonas have both
argued that they are entitled to qualified immunity. As such, the Court will
briefly sketch out the legal standard for qualified immunity before more fully
analyzing it in relation to each of Flint’s claims and the parties’ respective
motions for summary judgment.
Qualified immunity is available when a defendant’s 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, 818
(1982); see Beaman v. Freesmeyer, 776 F.3d 500, 508 (7th Cir. 2015). Qualified
immunity is not a defense, it is an immunity from suit, i.e., an entitlement not
to stand trial. See Pearson v. Callahan, 555 U.S. 223, 231 (2009); Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985). Consequently, the Supreme Court has
repeatedly emphasized the importance of resolving qualified immunity at
the earliest possible stage in litigation. Pearson, 555 U.S. at 232.
A court must answer two questions to determine if qualified
immunity applies: first, whether a constitutional right “would have been
violated,” Viilo v. Eyre, 547 F.3d 707, 710 (7th Cir. 2008) (quoting Saucier v.
Katz, 533 U.S. 194, 200 (2001)); and second, “whether the right at issue was
clearly established at the time and under the circumstances presented.”
Beaman, 776 F.3d at 508; Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir.

Page 4 of 58

2012).3 To answer the first question, “a court must decide whether the facts
that a plaintiff has…shown make out a violation of a constitutional right.”
Pearson, 555 U.S. at 232 (citing Saucier, 533 U.S. at 201).
Flint can provide the answer to the second question—whether a right
was “clearly established” at the time and under the circumstances
presented—“in at least two ways: (1) he can point to a clearly analogous case
establishing the right to be free from the conduct at issue; or (2) he can show
the conduct was ‘so egregious that no reasonable person could have believed
that it would not violate established rights.’” Beaman, 776 F.3d at 508 (quoting
Smith v. City of Chicago, 242 F.3d 737, 742 (7th Cir. 2001)); Anderson v.
Creighton, 483 U.S. 635, 640 (1987) (“This is not to say that an official action
is protected by qualified immunity unless the very action in question has
previously been held unlawful, but it is to say that in the light of pre-existing
law the unlawfulness must be apparent.”); Viilo, 547 F.3d at 710-11. Thus,
novel factual circumstances are no bar to showing a clearly established right,
“so long as the state of the law at the time gave the defendants fair warning
that their conduct was unconstitutional.” Beaman, 776 F.3d at 509 (citing Hope
v. Pelzer, 536 U.S. 730, 741 (2002)); see also Estate of Escobedo v. Martin, 702 F.3d
388, 404 (7th Cir. 2012) (“A constitutional right is clearly established when ‘it
would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.’”) (quoting Saucier, 533 U.S. at 202).

3

Prior to 2009, courts were instructed to analyze the questions in order, see
Pearson, 555 U.S. at 232 (noting that Saucier made addressing the questions in order
“a mandate”), but in Pearson the Supreme Court held that “while the sequence set
forth [in Saucier] is often appropriate, it should no longer be regarded as
mandatory.” Id. at 236.

Page 5 of 58

3.

DISCUSSION
3.1

Fourth Amendment Seizure Claim for Killing of the Dogs

Flint alleges that the City defendants violated her Fourth Amendment
right to be free from unreasonable searches and seizures when they shot and
killed two of her dogs while executing a search warrant at her residence.
(Docket #41 at 16-17). The Court will begin by summarizing the undisputed
facts and the parties’ various arguments in support of and against summary
judgment; afterwards, the Court will determine whether either party is
entitled to judgment as a matter of law and whether qualified immunity
applies.
3.1.1

Undisputed Facts

On or around May 6, 2010, Illinois authorities took a complaint from
a woman4 who alleged that Terry Cullen (“Cullen”)—Flint’s employer,
(Docket #75, ¶ 21)—was in possession of four “Tibetan Wolves” and also
possibly illegal animals and reptiles at a residence in Milwaukee. Id. at ¶ 9.
During a conversation with Detective Simmert and Officer Hewitt on May 7,
2010, the woman alleged that Cullen sexually assaulted her at his house; she
further stated that Cullen had taken her to Flint’s house before the assault.
Id. at ¶ 13. The woman informed the officers that there was a crocodile living
in the bathtub at Flint’s residence, and she believed that it was illegal to be
in possession of that type of crocodile. Id. at ¶ 15. That same day, Detective
Simmert drove the woman past Flint’s and Cullen’s residences and she
confirmed those were the places she had been; in addition, she said Flint’s
residence was the location where the wolves were. Id. at ¶17. Detective

4

While the filings identify this woman, the Court sees no need to publish her
name in this order, especially given the nature of her allegations against Cullen.

Page 6 of 58

Simmert later learned, via an internet search, that the “Tibetan Wolves” were
actually Tibetan Mastiffs, a domesticated breed of dog. Id. at ¶ 19. And,
Detective Simmert spoke with Flint on May 10, 2010, and, among other
things, discussed Flint’s dogs. (Simmert Dep. at 39:19-40:13).
Based on the belief that there may be a critically endangered alligator
living in the bathtub at Flint’s residence (after consulting with the
Department of Natural Resources (“DNR”)), on May 12, 2010, at 8:53 a.m.,
Detective Simmert applied for and received a search warrant to search Flint’s
residence.5 (Docket #75, ¶¶ 25, 28); (Docket #82, ¶ 101); (Docket #69, ¶ 30).
The search warrant for Flint’s residence was for the purpose of investigating
a violation of Wis. Stat. § 29.604, which, inter alia, criminalizes certain conduct
related to endangered and threatened species.6 (Docket #75, ¶ 28). The search
warrant did not authorize a no-knock entry. Id. at ¶ 31; (Docket #69, ¶ 49).
Detective Simmert requested DNR Warden Nick Blankenheim assist during
the execution of the search warrant because of the alleged presence of
alligators and anacondas. (Docket #75, ¶ 26); (Docket #69, ¶ 31).
Detective Simmert and Lt. Felician were responsible for overseeing the
planning and execution of the search warrant. (Docket #82, ¶ 121); (Docket
#75, ¶ 32). Sgt. Jackson, via telephone, assigned Tactical Enforcement Unit
(“TEU”)7 Officers Daugherty and Mourty to execute the search warrant at

5

The search warrant for Flint’s residence was obtained in conjunction with
a second search warrant for Cullen’s residence. It seems clear that searching Flint’s
residence was part of the larger investigation into the sexual assault allegations
against Cullen.
6

Wis. Stat. § 29.604(4)(a) provides, in pertinent part, that “no person may
take, transport, possess, process or sell within this state any wild animal specified
by the department’s endangered and threatened species list.”
7

The TEU is analogous to a SWAT team. (Docket #69, ¶ 37).

Page 7 of 58

Flint’s house; the search warrant was classified as “low risk.” (Docket #69,
¶ 39). Officers Daugherty and Mourty were assigned to breach the door,
which normally requires two people. (Daugherty Dep. at 14:8-15:1).
Fifteen minutes prior to executing the search warrant, Detective
Simmert held a short—fifteen minutes or less—briefing outside the police
administration building to go over the search warrant. (Docket #75, ¶ 44);
(Docket #69, ¶ 40). All of the City defendants were present at the briefing,
except Sgt. Jackson and Officer Colker. (See, e.g., Docket #75, ¶ 72). During
the briefing, the officers discussed that the search warrant was being
executed in connection with a sexual assault investigation, there was
supposedly an endangered alligator or crocodile in the house, and there
would be big dogs and anacondas. (Docket #75, ¶¶ 45, 46, 50); (Docket #69,
¶ 40). With respect to the dogs, Detective Simmert informed everyone that
four Tibetan Mastiffs were at the residence; however, there was no tactical
discussion regarding how to handle the dogs. (Docket #75, ¶ 50). At some
point the officers did discuss contacting the Milwaukee Area Domestic
Animal Control Council (“MADACC”) to help assist with executing the
warrant. (Docket #75, ¶¶ 26, 79 ). Yet MADACC was not called until, at the
very earliest, after MPD had entered Flint’s residence. (Docket #52, Ex.3 at 7).
Before execution of the search warrant, Officers Daugherty and
Mourty were both concerned about what they heard at the briefing
regarding, inter alia, the presence of dogs8; accordingly, Officer Daugherty

8

Officer Daugherty was concerned that because it took two officers to breach
the door and there were dogs, they would have no cover and thus needed
additional officers. (Daugherty Dep. at 16:11-17:10). In addition to the dogs, Officer
Mourty was concerned about the size of the building, the presence of video
cameras, and the possible presence of alligators and anacondas. (Mourty Dep.
20:9-22).

Page 8 of 58

called Sgt. Jackson to inform him of what they learned at the briefing and to
ask for more tactical officers. (Docket #69, ¶ 41). Sgt. Jackson denied this
request and told the officers to proceed. Id. at ¶ 42.
On his way over to Flint’s house, Detective Simmert contacted Flint
and let her know that MPD was going to be executing a search warrant on
her house. (Docket #75, ¶ 59); (Docket #69, ¶ 46). Detective Simmert’s
intention in making this call was to give Flint an opportunity to control her
dogs, thereby avoiding any number of bad outcomes that could occur.
(Docket #75, ¶ 59); (Simmert Dep. at 145:1-147:10). Flint informed Detective
Simmert that she was at work but could be home in twenty minutes and
would be glad to control the dogs. (Docket #75, ¶ 60); (see also Docket #69,
¶46).
When Detective Simmert arrived on scene, he decided not to wait for
Flint to arrive before executing the search warrant. (Docket #75, ¶ 63);
(Docket #69, ¶ 46). Lt. Felician appears to have concurred in this decision and
directed the officers to proceed. (Docket #69, ¶ 47). The reasons Detective
Simmert gave for proceeding with the search warrant without waiting for
Flint were: (1) a concern for officer safety; (2) the lack of the element of
surprise; and (3) the welfare of the animals inside. (Docket #69, ¶ 46); (Docket
#75, ¶ 64).
Thus, at 1:34 p.m. on May 12, 2010, Detective Simmert executed the
search warrant at Flint’s residence. (Docket #75, ¶ 71); (Docket #69, ¶ 48). On
scene, in addition to the City defendants noted above, was DNR Warden
Blankenheim. Officers Daugherty and Mourty approached the door and
Officer Mourty became concerned because he could hear what sounded like
numerous large dogs. (Mourty Dep. at 25:14-26:10); (see also Docket #82,

Page 9 of 58

¶ 150). The officers knocked loudly, announced “police,” and then breached
the door. (Docket #69, ¶¶ 49, 51, 52); (Docket #75, ¶ 75).
Upon entering the house, Officer Daugherty immediately observed
the dogs. (Docket #69, ¶ 54). Officers Daugherty and Mourty entered into the
kitchen area and the dogs were located off to the right, in the living room.
(See Docket #52, Ex. O (DVD)); (Docket #69, ¶ 57). After the kitchen and
immediate areas had been cleared, Officer Hewitt, Lt. Felician, and others
entered the premises. (Docket #75, ¶ 75). Officer Hewitt took video of the
premises, although the camera is turned off repeatedly. (See Docket #52, Ex.
O (DVD)); (Docket #75, ¶ 84).
At this point, the evidence becomes very conflicting. For the sake of
brevity and clarity, the Court will summarize the events with limited citation
to the record. According to Officers Daugherty and Mourty, they placed a
garbage can between the kitchen and the living room to prevent the dogs
from approaching them. And, the video does appear to show a garbage can
between the kitchen and the living room prior to the shooting of the dogs.
(See Docket #52, Ex. O (DVD)). The video also shows the dogs behind a baby
gate as well. Id. Therefore, it appears there were two barriers between the
officers and the dogs.
Officer Daugherty stated that he kept the dogs at bay by aiming his
M4 carbine rifle at them and flashing the light on his gun. This made the
dogs scurry back. Officer Daugherty also stated that at this point in time, it
would have been reasonable to attempt to use a dog snare to catch the dogs,
and believes MADACC could have done so. While Officer Daugherty was
keeping the dogs at bay, Officer Mourty continued to search the areas
adjacent to the kitchen.

Page 10 of 58

The video shows officers walking around the kitchen and areas
adjacent to it; the officers do not appear to fear for their safety, as laughter is
heard. (See Docket #52, Ex. O (DVD)). The video shows many animals in
cages and boxes, and what appears to be a crocodile or alligator in a large
tub. Id. The dogs can also be heard barking in the background during the
entirety of the pre-shooting video.
At some point, Officer Mourty stated that he told the other officers
that there was too much going on—due to the sheer number and type of
animals—and that everyone should back out of the house. However, other
testimony, specifically that of Officer Hewitt, indicates that while Officer
Hewitt was told to back out, a decision was made that Officers Daugherty
and Mourty should clear the rest of the house. To do so, the officers would
first need to go through the living room, where the dogs were located.
Regardless, it is around this point in time that two of the dogs were shot.
Officer Daugherty stated that while the dogs had responded to the
flashes of light from his M4 carbine rifle before, one dog continued to
advance in spite of the light, got down in what he interpreted as an attack
posture, and bared its teeth. At this time Officer Daugherty was still in a
position behind the garbage can. Officer Daugherty believes he said “stand
by” and then when the dog charged, he shot it three times. Then, according
to Officer Daugherty, another of the dogs came charging, growling and
barking, and leapt at him over the dog he had just killed. Thus, he shot at
that dog as well, this time discharging his gun nine times. Officer Daugherty
stated that the second dog landed mere inches away from him,.
The only officer that witnessed the actual shooting of the dogs,
according to the City defendants, was Officer Daugherty. Officer Hewitt and
Detective Simmert were outside when it occurred, and Lt. Felician was in a
Page 11 of 58

warehouse portion of the residence. (See Docket #69, ¶ 71). According to
Officer Hewitt, from outside the residence she heard the tactical officers
inside yelling “back up, back up” before hearing gun shots.
It is also disputed whether MADACC was called just prior to, at the
same time, or after the dogs were shot. Nevertheless, MADACC did not
arrive on scene until many minutes after the dogs were killed.
At some later point in time, Officer Hewitt returned to the kitchen area
and shot additional video. (See Docket #52, Ex. O (DVD)). According to MPD,
the two dead dogs are shown on the video in the same position they ended
up after Officer Daugherty shot them. (Docket #69, ¶ 83). Just after the video
resumes, someone steps around the dogs’ bodies and can be heard stating
“this is beyond our scope; that’s all I keep thinking, this is way beyond our
scope.” (See Docket #52, Ex. O (DVD)). One dog is positioned just behind the
baby gate and the other is farther back, towards the living room. Id.
Flint arrived after her dogs had been shot, but before their bodies had
been removed by MADACC. (Docket #75, ¶ 91). Flint was understandably
upset when she arrived on scene and was informed that two of her dogs had
been killed. (Docket #75, ¶ 92).
3.1.2

Unreasonably Killing Dogs Violates the Fourth
Amendment

The Court begins by determining whether the City defendants’
conduct would have violated the Fourth Amendment. Viilo, 547 F.3d at
709-10.
The Seventh Circuit has made answering this question eminently easy.
Namely, “[e]very circuit that has considered the issue has held that the
killing of a companion dog constitutes a ‘seizure’ within the meaning of the
Fourth Amendment.” Id. at 710; see also Carroll v. Cty. of Monroe, 712 F.3d
Page 12 of 58

649, 651 (2d Cir. 2013) (“As a number of our sister circuits have already
concluded, the unreasonable killing of a companion animal constitutes
an unconstitutional ‘seizure’ of personal property under the Fourth
Amendment.”). And the Seventh Circuit elaborated that “[b]oth common
sense, and indeed Wisconsin law, counsel that the use of deadly force against
a household pet is reasonable only if the pet poses an immediate danger and the
use of force is unavoidable.” Id. (citation omitted) (emphasis added).
This makes sense, given that “[t]he emotional attachment to a family’s
dog is not comparable to a possessory interest in furniture.” San Jose Charter
of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th Cir.
2005). Dogs, for many people, are akin to children; they are, quite often,
treated with the same care, kindness, and respect as any other member of the
family. And, the loss of a dog is often devastating to those who have cared
for him or her, see id., reflecting the high esteem and sacred place they hold
in people’s hearts. See Carroll, 712 F.3d at 651 (stating that the shooting of a
dog is “a severe intrusion given the emotional attachment between a dog and
an owner”). Dogs are referred to as “man’s best friend” for a reason.
Thus, to show that her Fourth Amendment rights were violated, Flint
must show that the killing of her dogs was unreasonable. She alleges
unreasonableness on multiple fronts: (1) that the City defendants acted
unreasonably by failing to have any articulable plan to deal with the dogs,
other than shooting them; (2) that the on-scene officers acted unreasonably
by creating the very situation that compelled shooting the dogs; and (3) that
Officer Daugherty acted unreasonably when he shot the dogs because they
were not a threat to him or others. The Court will address each of Flint’s
grounds in turn.

Page 13 of 58

3.1.2.1

Failure to Plan

Flint alleges that “[t]here were no instructions given, nor plans
created, in regards to how to deal with the dogs, other than shooting them
if they posed a threat.” (Docket #50 at 13). And, this was unreasonable given
that “the [City] [d]efendants knew for at least five days prior to May 12th
that they would be conducting a search at Ms. Flint’s residence, where the
dogs were.” Id. at 12. Flint suggests that MPD could have: (1) discussed the
dogs with DNR when consulting with them about the alleged alligators at
Flint’s residence; (2) learned the names of the dogs so that they could
communicate with them in a friendly manner; (3) brought treats or other
distractions to contain the dogs in a non-violent manner; (4) planned to use
pepper spray instead of shooting the dogs; (5) brought a dog snare to attempt
to catch the dogs; and (6) called MADACC prior to executing the search
warrant instead of minutes before or after the dogs were shot. (Docket #68
at 5-6).
The City defendants argue that Flint has failed to identify any
statements by the City defendants that “the officers explicitly discussed,
stated or even decided individually that they would deal with the dogs
simply by shooting them.” (Docket #81 at 2). Strangely, the City defendants’
argument appears to be that there was no plan to shoot the dogs because
there was little or no planning at all. See id. (stating that “the uncontroverted
facts establish that without explicit planning, but, perhaps, only with “common
sense” or training and experience, the tactical officers effectively kept the dogs
at bay . . .”) (emphasis added); id. (“The facts [Flint] actually adduces amount
to nothing more than evidence that none of the supervising or tactical officers
explicitly planned certain actions to capture or contain the dogs in a certain
manner.”) (emphasis added).
Page 14 of 58

The only plan that the City defendants can articulate is the plan to get
MADACC on scene to help deal with the dogs. (Docket #81 at 6); (Docket #73
at 5). But, it is undisputed that MADACC was called during the execution of
the search warrant, shortly before or after the dogs were shot. The City
defendants counter this by stating that “[e]ven assuming that the call came
after the shooting, there is no dispute that the officers intended to call
MADACC to catch the animals, and just may have waited too long to place
the call,” which “amounts to nothing more than mere negligence.” (Docket
#81 at 6); (Docket #54 at 18) (“Flint might argue that the animal control
officers could have been brought in sooner but such a claim amounts to
nothing more than the argument that the officers were negligent in the way
they dealt with the dogs.”).
Finally, as to the various ways the City defendants could have
planned for the execution of the search warrant offered by Flint, the City
defendants assert that Flint cannot prove that any of those methods would
have been successful. Id. at 3-8. Thus, the City defendants argue that, at
bottom, their failure to use any of these methods amounts to mere negligence
and “[n]egligence is insufficient to support a Fourth Amendment claim”
under § 1983. Id. at 4.
3.1.2.2

On-Scene Actions

Flint alleges that the on-scene actions of MPD were unreasonable
in two distinct ways. First, she alleges that by proceeding with the search
warrant instead of waiting for Flint to come home and assist with controlling
her dogs, the City defendants acted unreasonably. (See, e.g., Docket #50
at 14-16). Specifically, Flint contends that the City defendants’ purported
reasons for executing the search warrant instead of waiting for

Page 15 of 58

Flint—namely, concerns about officer safety, the welfare of the animals,9 and
losing the element of surprise—are specious. Id. at 15; (Docket #68 at 3)
(stating that “the [City] [d]efendants executed the search warrant without
waiting for Ms. Flint, despite having no articulable reason for refusing to
wait 20 minutes”).
The City defendants aver that the reasons for proceeding with the
search warrant do not show the officers acted unreasonably. Rather, “[t]he
lieutenant and detective were concerned about jeopardizing officer safety by
waiting—there were surveillance cameras, and there may have been
someone in the premises who could harm the officers, especially with
additional time to plan.” (Docket #54 at 16-17); (Docket #73 at 7) (observing
that the existence of surveillance cameras meant the officers could have been
observed without themselves seeing someone inside). And, “while the
officers did not expect someone to be in the house and Flint had represented
in a telephone call that she was away at work, the officers did not know that
no one was in the premises.” (Docket #73 at 7).
And, with regard to safety in general, the City defendants aver that
“[t]he supervisors and officers could not…simply focus their attention on
the dogs, and allow unarmed civilians such as MADACC personnel into the
premises without first searching it for the presence of people who might
harm a person.” Id. Finally, the City defendants assert that “the officers knew
that there would be dogs in the home and they too could have been used to
attack someone coming to the house.” Id.

9

The City defendants do not press the contention that the officers were
concerned for the safety for the animals inside any further. Perhaps because of the
irony of doing so, given that the officers ended up killing two animals inside.

Page 16 of 58

Second, Flint contends that, even if the search warrant was executed
properly at the outset, the City defendants nevertheless placed themselves
in a situation to shoot the dogs by choosing to enter the area where the dogs
were located (and safely contained), instead of backing out and waiting for
MADACC or Flint to control the dogs. (Docket #50 at 16-17). To wit, Officer
Hewitt testified that the tactical officers had personnel back out so that they
could proceed to clear the residential area; this decision, according to Flint,
would force the officers to confront the dogs to do so. And, proceeding in
that manner would be unreasonable, given that Flint was on her way home
and the officers could have also waited for MADACC to arrive (assuming
they had already been called).
The City defendants counter this second point by stating that Officer
Hewitt did indeed state that, but she did not observe exactly what happened
since she had backed out, which does not actually call into question the
testimony of Officers Daugherty and Mourty. Namely, it is still possible that
the dogs charged at them as they themselves were backing out or holding in
place.
3.1.2.3

Officer Daugherty’s Killing of the Dogs

Finally, Flint contends that even if the dogs came towards Officer
Daugherty as the City defendants suggest, the DVD evidence does not
support the testimony of Officer Daugherty as to how the events actually
occurred. (Docket #68 at 7-12). Specifically, Officer Daugherty stated that the
first dog charged and was shot, and then the second dog charged, jumped
over the first, and was shot inches before reaching Officer Daugherty.
The City defendants appear to concede that the video does not
exactly corroborate Officer Daugherty’s recounting of the events. Namely,
“the police video and testimony corroborates rather than undermines
Page 17 of 58

Officer Daugherty, at least with respect to the second dog.” (Docket #54 at 15)
(“Consistent with [Officer] Daugherty’s testimony that the second dog leap[t]
over the first shot dog and came very close to [Officer] Daugherty’s position
at the doorway between the kitchen and family room, the video shows a dog
lying very close to the doorway with its head facing towards the kitchen.”).
Of course, this begs the question: why was the first dog so far away from
where Officer Daugherty represented he was? The City defendants appear
to offer no answer to this question. Id. at 15 (“The other dog appears to be
lying perpendicular to the doorway, some distance away. The position of the
body does not, however, indicate whether the dog dropped instantly…or
whether it began to turn away after the first shot…There would, therefore,
be nothing but speculation that the dogs were retreating from [Officer]
Daugherty.”).
Flint also argues that the video does not corroborate Officers
Daugherty and Mourty with respect to where the dogs were and what they
were doing—barking or growling. The video shows the dogs quite a distance
back from the kitchen when they are first recorded—which was during the
time officers are doing their initial search of the kitchen and adjacent areas.
And, while Officers Daugherty and Mourty stated that the dogs were
growling the entire time officers were there, the video at no time records the
dogs growling or doing anything other than barking.
The City defendants attempt to rebut this argument by pointing out
that the video camera that Officer Hewitt used was turned off repeatedly
during the time before the dogs were shot. Thus, according to the City
defendants, “the video recording of the dogs before the shooting is only
fleeting and the audio recording, though longer, appears to capture sounds
from other areas and is often obscured by officers’ voices.” (Docket #81 at 8).
Page 18 of 58

Thus, “[i]t is mere speculation, therefore, that one or more of the dogs were
not growling given the poor recording.” Id.
At bottom, Flint argues that Officer Daugherty was not in immediate
danger and his shooting of the dogs was avoidable.
3.1.3

Genuine Disputes of Material Fact Preclude Granting
Summary Judgment for Either Party

The Court need not belabor the analysis much on the killing of
the dogs. This case epitomizes: (1) contested facts; (2) credibility contests;
and (3) swirling unknowns. A reasonable jury, considering the contested
issues, against the backdrop of the DVD evidence, could find for either party,
on all three points of unreasonableness asserted by Flint.
There is certainly evidence to support Flint’s theory of the case:
namely, that the police entered her residence without a plan, see Jones v. City
of Chicago, 856 F.2d 985, 993 (7th Cir. 1988) (“In constitutional-tort cases as
in other cases, ‘a man is responsible for the natural consequences of
his actions.’”) (quoting Monroe v. Pape, 365 U.S. 167, 187 (1961)), created the
situation that necessitated the use of force, and then further acted
unreasonably by forging ahead instead of waiting for Flint or MADACC. See
Brown v. Blanchard, 31 F. Supp. 3d 1003, 1010 (E.D. Wis. 2014) (noting that “an
officer who shoots a suspect in an effort to protect himself cannot escape
liability if the danger he faced was created by his own unreasonable
conduct”) (citing Estate of Starks v. Enyart, 5 F.3d 230, 234 (7th Cir. 1993)).
A jury, finding that the officers acted reasonably at one step, would
also be free to find that, in light of the totality of the circumstances, the City
defendants’ conduct, overall, was unreasonable. See Deering v. Reich, 183 F.3d
645, 649, 652 (7th Cir. 1999) (noting that the totality of the circumstances is
not “limited to the precise moment when [the officer] discharged his
Page 19 of 58

weapon,” but includes “all of the events that occurred around the time of the
shooting”); Hells Angels, 402 F.3d at 975 (“We look to the totality of the
circumstances to determine if the destruction of property was reasonably
necessary to effectuate the performance of the law enforcement officer’s
duties.”); Carroll, 712 F.3d at 651 (“To determine whether a seizure is
unreasonable, a court must ‘balance the nature and quality of the intrusion
on the individual’s Fourth Amendment interests against the importance of
the governmental interest alleged to justify the intrusion’ and determine
whether ‘the totality of the circumstances justified [the] particular sort of…
seizure.’”) (quoting Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)). Unreasonable,
that is, because the shooting of the dogs was clearly avoidable, see Ganwich
v. Knapp, 319 F.3d 1115, 1122 (9th Cir. 2003) (“A seizure becomes unlawful
when it is ‘more intrusive than necessary.’”) (quoting Florida v. Royer, 460
U.S. 491, 504 (1983)), and there was no immediate danger, but that which was
caused by the City defendants’ own actions. See Viilo, 547 F.3d at 710.
A reasonable jury could also find, based on the foregoing evidence,
that the City defendants, despite having an admittedly questionable plan, did
nothing wrong up and through the shooting. Specifically, the jury could find
that after executing the search warrant, the officers attempted to retreat and
wait for assistance, and during that time, the dogs attempted to attack and
Officer Daugherty had no choice but to shoot. See, e.g., Hells Angels, 402 F.3d
at 978 (“The Fourth Amendment allows officers to use a certain amount of
force because they are ‘often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving…‘“) (quoting
Graham v. Connor, 490 U.S. 386, 397 (1989)).
In light of the foregoing, the Court finds that wading any further into
this morass would usurp the role of the jury, whose province is fact-finding,
Page 20 of 58

credibility assessments, and weighing contested facts in light of the
circumstances. The only question that remains then, is whether the City
defendants are nonetheless entitled to qualified immunity because their
conduct did not violate a clearly established right.
3.1.4

The City Defendants Are Not Entitled to Qualified
Immunity On the Unlawful Seizure Claim

The City defendants assert, almost half-heartedly, that qualified
immunity nonetheless bars Flint’s claim for killing her dogs because Flint
cannot show they violated a clearly established right. Conceding that the
Seventh Circuit has found that unreasonably killing dogs is a Fourth
Amendment seizure, the City defendants nonetheless argue that “Flint
cannot show that ‘various courts have agreed that…conduct [comparable to
that of these officers] is a constitutional violation under facts not
distinguishable in a fair way from the facts presented in the case at hand….”
(Docket #54 at 19) (quoting Campbell v. Peters III, 256 F.3d 695, 701 (7th Cir.
2001)); (Docket #73 at 9) (reiterating that “Flint has not cited to any decision
by the [S]eventh [C]ircuit or by a number of other courts indicating a
consensus that what the officers actually did here was a violation of the dogs’
owner’s rights.”).
The City defendants’ argument is all but disingenuous. First, the
Seventh Circuit stated in Viilo (in 2008), in the context of qualified immunity
for shooting dogs, that analogous cases were unnecessary given its prior
holding in Siebert which “held that domestic animals are ‘effects’ within the
meaning of the Fourth Amendment.” 547 F.3d at 711 (citing Siebert v.
Severino, 256 F.3d 648, 656 (7th Cir. 2001)). Thus, the court held that “[t]he
Siebert decision is enough to give police officers reasonable notice that
unnecessarily killing a person’s pet offends the Fourth Amendment.” Id. So,
Page 21 of 58

the City defendants have been on notice since 2001 that unnecessarily killing
a person’s dog violates a constitutional right.
But, even supposing that analogous cases are necessary here, as the
Ninth Circuit pointed out in Hells Angels, “the Supreme Court recognized [in
Hope v. Pelzer, 536 U.S. 730 (2002)] that previous cases do not have to be
‘fundamentally similar’ and that officials can still be on notice even in novel
factual circumstances.” 402 F.3d at 977 (quoting Hope, 536 U.S. at 741)
(emphasis added). Nor does a plaintiff necessarily need myriad courts to have
agreed on the issue, so long as Flint can “point to a clearly analogous case
establishing the right to be free from the conduct at issue.” Beaman, 776 F.3d
at 508.
Second, the City defendants’ argument that various courts have not
agreed that conduct comparable to that which occurred here is a
constitutional violation obtusely ignores the decisions of the Ninth Circuit in
Hells Angels and the Second Circuit in Carroll; both decisions discuss the
failure of officers to have a plan for dealing with dogs (other than shooting
them) resulting in their death, see Carroll, 402 F.3d at 652-54; Hells Angels, 402
F.3d at 976-78—which is a conclusion a reasonable jury could reach here.
In Hells Angels, the Ninth Circuit found that shooting dogs during the
execution of a search warrant was unreasonable when, despite having “a
week to plan the execution of [the search warrant],” and “advance
knowledge of the presence of two guard dogs,” the “full extent of the plan
to protect the entry team from the dogs was to either ‘isolate’ or shoot the
dogs.” 402 F.3d at 976. The Ninth Circuit also found that the “little plan” of
one of the officers, which was “pok[ing] [the dogs] through the fence with his
shotgun to try and scare them,” and if that was unsuccessful, to “‘engage’ the
dogs to ensure the safety of [the officers],” was no plan at all; namely,
Page 22 of 58

“despite a week to plan for the entry, the officers developed no realistic plan
other than shooting the dogs while serving the search warrants.” Id.
Additionally, the Hells Angels court was unconvinced by the officers’
purported reasons for the intrusion; specifically: (1) the need to execute the
search warrant to seek evidence for a murder; (2) the need for stealth and
speed; and (3) the safety of the officers. Id. First, the court was not convinced
of the need to execute the search warrant as it was, given that “none of the
plaintiffs were potential suspects” in the murder. Id. Second, the court found
that the officers need for stealth and speed was torpedoed by their own
conduct; to wit, breaking down the door with a ram and shooting at the
dogs. Id. Third, and most importantly, the Hells Angels court found that,
“[w]hile the governmental interest of safety might have provided a sound
justification for the intrusion had the officers been surprised by the presence
of the dogs, the same reasoning is less convincing given the undisputed fact
that the officers knew about the dogs [for a week].” Id. at 977. In particular,
this gave the officers “substantial time to develop strategies for immobilizing
the dogs.” Id. What happened, instead, was that “the officers created an
entry plan designed to bring them in close proximity of the dogs without
providing themselves with any non-lethal means for controlling the dogs,”
leaving themselves no choice “but to kill the dogs in the event they—quite
predictably—attempted to guard the home from invasion.” Id. (internal
quotation marks omitted).
The Ninth Circuit concluded by stating that the shooting of dogs is
impermissible when “less intrusive, or less destructive, alternatives exist,”
especially when officers are not “reacting to a sudden unexpected situation”
where exigent circumstances might excuse the conduct. Id. at 978. Therefore,
“the failure to develop any realistic non-lethal plan for dealing with the dogs
Page 23 of 58

is simply not the type of reasonable mistake in judgment” entitling officers
to qualified immunity. Id.
In Carroll, the Second Circuit concurred with the Ninth Circuit, noting
that “the failure to plan adequately for the presence of dogs during a
search could contribute to a Fourth Amendment violation under certain
circumstances.” 712 F.3d at 652. This was especially so, according to the
court, where “officers ha[ve] ample time to utilize non-lethal means without
compromising their safety or the search,” and particularly where officers are
“not executing no-knock warrants.” Id. But, even failing to plan during
no-knock warrants might be impermissible. Id. at 653 (“There may well be
circumstances under which a plaintiff could prove that lack of an adequate
plan rendered the shooting of his or her dog unreasonable even during
execution of a no-knock warrant, and we urge the defendants to consider
whether more comprehensive training and planning would better serve the
public, as well as officers, in the future.”).
The City defendants’ attempt to evade Hells Angels on two fronts,
neither of which is convincing. First, the City defendants argue that Hells
Angels is readily distinguishable because: (1) Hells Angels involved the killing
of dogs in a backyard and here, “the dogs were all inside the very confined
space of the very cluttered premises,” (Docket #73 at 4); and (2) here, “no
officer shot either dog upon sight and without any effort to use non-lethal
means”—i.e. the light on the M4 Carbine, the large trash can that was placed
between the officers and the dogs, and the attempts of Officer Daugherty to
use verbal commands to keep the dogs back—whereas in Hells Angels, there
was no indication that such measures were used. As such, the City
defendants argue that “[g]iven all the factual distinctions between this case

Page 24 of 58

and the searches considered in Hells Angels, this Court should not be
persuaded to follow that decision here.” Id. at 6.
Second, the City defendants argue that the Ninth Circuit “either did
not have evidence before it or the benefit of argument that training,
experience, and just ‘common sense’ can be a legally sufficient substitute for
dealing with guard dogs in the course of executing a search warrant.” Id. In
support of this proposition the City defendants cite to the fact that Officer
Mourty had prior training on dealing with dogs, and Officers Daugherty and
Mourty had “substantial experience in executing searches.” Id. The City
defendants then double down on the “common sense” argument, stating that
“there is the apparent and partially successful role of ‘common sense’ and
improvisation in dynamic and unknown circumstances; [Officer] Daugherty
backed up the dogs and kept them at bay by using a light on his weapon and
a large garbage can apparently found in the home.” Id. Finally, the City
defendants argue that the requirement in Hells Angels to have a plan is a
decision that “should not be followed because if applied in this context could
result in an unreasonable sacrifice of officer safety.” (Docket #81 at 1).
However, the City defendants do not support this final proposition with any
facts or arguments.
However much the City defendants would like to escape the Hells
Angels (and Carroll) they cannot do so. In the Court’s view, Hells Angels is on
all fours with the facts in this case. While it is true that the defendants in Hells
Angels shot the dogs in a backyard and Flint’s dogs were shot inside her
home, this is a distinction without a difference. The focus is not on the events
immediately preceding the shooting, but whether there were appreciable
efforts to develop a plan to avoid a shooting altogether. And, as stated above,
a reasonably jury could find that the City defendants made no such plan.
Page 25 of 58

This case is also similar to Hells Angels, in that both search warrants were
executed with little or no planning and were not of the type that needed to
be executed imminently.
Moreover, to the extent that the City defendants argue that “common
sense” and improvisation can supplant the need for a plan altogether, they
misunderstand what “planning” actually entails. “Planning” is to engage in
“the act or process of making a plan to achieve or do something.” Planning
Definition, Mirriam-Webster’s Online Dictionary, http://www.merriamwebster.com/dictionary/planning (last visited March 3, 2015). A person
cannot be said to have a plan if the details of the plan are merely a reaction
to events transpiring in front of him or her. Stated another way, using
common sense and training in a dynamic situation might prepare a person
for certain events that might transpire, but that knowledge does not
magically transform into an articulable plan. Nor is that the type of plan that
the courts in Hells Angels or Carroll could possibly have intended. Nascent or
non-existent plans are insufficient; to state it colloquially, you can’t just
“wing it.” Finally, in making this argument, the City defendants also ignore
that Officer Daugherty—the person who actually shot the dogs—stated that he
could not recall having any formal training on how to deal with dogs.
Finally, while the City defendants argue that requiring officers to have
non-lethal methods to deal with dogs could jeopardize officer safety, they fail
to support that argument. Nor, in the Court’s view, could they. In particular,
having a plan to deal with dogs in such a manner might actually enhance
officer safety. Here, for example, having MADACC on scene after the kitchen
had been cleared would have been highly advantageous. The dogs could
have been appropriately restrained, avoiding the need to guard them while
the search was ongoing, thus permitting the officers to focus on whether
Page 26 of 58

other individuals were in the non-searched areas of the house. And, outside
the facts of this case, having non-lethal means to address dogs that officers
might encounter prevents the risks that accompany firing a weapon at them.
Shooting at anything always carries the risk of injuring others nearby
(including officers), whether it be by ricochet, friendly fire, or an errant shot.
Accordingly, the Court finds, in light of Viilo, Hells Angels, and Carroll,
that the City defendants are not entitled to qualified immunity on Flint’s
Fourth Amendment seizure claim. Consequently, both Flint’s and the City
defendants’ motions for summary judgment will be denied on this claim,
except as noted below.
3.1.5

The Unlawful Seizure Claim Against Officers Hewitt
and Colker Cannot Proceed

The City defendants, in their motion for summary judgment, argue
that Officers Hewitt and Colker were not personally involved in the seizure
of Flint’s dogs. (Docket #54 at 10). Indeed, “[i]ndividual liability under § 1983
requires ‘personal involvement in the alleged constitutional deprivation.’”
Minix v. Canarecci, 597 F.3d 824, 833 (7th Cir. 2010) (quoting Palmer v. Marion
County, 327 F.3d 588, 594 (7th Cir. 2003)).
While Flint’s complaint alleges this claim against Officers Hewitt and
Colker (see Docket #41, ¶502), Flint did not respond to the City defendants’
argument in their brief in opposition (see Docket #68), nor did Flint allege
Officers Hewitt and Colker were personally involved in the shooting of her
dogs in her own motion for summary judgment. (See Docket #50). Alas,
buried in a footnote Flint states that she is not proceeding on the unlawful
seizure claim against Officers Hewitt and Colker. Accordingly, the Court is
obliged to grant summary judgment in favor of Officers Hewitt and Colker
on this claim.
Page 27 of 58

3.1.6

Flint’s Failure to Intervene Claim Relating to the
Shooting of the Dogs Will Also Proceed to a Jury

In their motion for summary judgment, the City defendants also argue
that Flint cannot maintain a failure to intervene claim against any of the City
defendants relating to her unlawful seizure claim. Flint did not move for
summary judgment on this claim, and merely opposes the City defendants’
motion.
“Omissions as well as actions may violate civil rights. Generally,
however, the Constitution creates only negative duties for state actors.” Yang
v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). However, even as a bystander, an
officer can be held liable under § 1983 if Flint can show the officer: “(1) had
reason to know that a fellow officer was using excessive force or committing
a constitutional violation, and (2) had a realistic opportunity to intervene to
prevent the act from occurring.” Lewis v. Downey, 581 F.3d 467, 472 (7th Cir.
2009); see Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994).
“A realistic opportunity to intervene may exist whenever an officer
could have called for a backup, called for help, or at least cautioned the
violating officer to stop.” Miller v. City of Harvey, No. 13-CV-9257, 2014 WL
3509760, at *2 (N.D. Ill. July 15, 2014) (internal quotation marks omitted).
Liability applies to supervisory and nonsupervisory officers alike. Lanigan v.
Vill. of E. Hazel Crest, Ill., 110 F.3d 467, 478 (7th Cir. 1997).
The Court will permit Flint’s failure to intervene claim—except against
Officers Hewitt and Colker—to proceed to a jury for the same reasons noted
earlier. This makes sense, given that “[w]hether an officer had sufficient time
to intervene or was capable of preventing the harm caused by the other
officer is generally an issue for the trier of fact unless, considering all the

Page 28 of 58

evidence, a reasonable jury could not possibly conclude otherwise.” Id.
3.2

Unlawful Detention Claim Against the City Defendants and
Deputy Jonas

Flint also brings a claim for unlawful detention against the City
defendants and Deputy Jonas. Flint alleges that she was detained for an
unreasonable amount of time because the City defendants erroneously
charged her with felonies. She also alleges that Deputy Jonas continued this
unreasonable detention by not correcting the City defendants’ error when
she arrived at the County jail The Court will begin by outlining the
undisputed facts applicable to both the City defendants and Deputy Jonas
before turning to the claim as it pertains to each, individually.
3.2.1

Undisputed Facts

After the shooting of the dogs, the City defendants continued the
search of Flint’s house until 3:40 p.m. (Docket #26, Ex.1 at 3). During that
time—and also during the time before the dogs were shot—officers observed
a litany of animals within the house, including alligators, crocodiles, turtles,
large snakes, rats, mice, and spiders. (E.g., Docket #52, Ex. O (DVD)); (Docket
#52, Ex. G at 1); (Docket #26, Ex.1 at 2-3).
During the search, DNR Warden Blankenheim positively identified an
ornate box turtle in the house, which is an endangered species and illegal to
possess without a special permit; he relayed this information to Detective
Simmert. (Docket #69, ¶ 87); (Docket #75, ¶ 98). DNR Warden Blankenheim
also informed the officers that possession of the turtle was a felony, under
Wis. Stat. § 29.604. (Docket #75, ¶ 97). Lt. Felician had no independent
knowledge of that statute, so he relied solely on DNR Warden Blankenheim’s
statement that it was a felony. (Felician Dep. at 67:7-68:18). Detective Simmert
also believed a violation of that statute was a felony. (Simmert Dep. at 92:1Page 29 of 58

13). Both Lt. Felician and Detective Simmert were mistaken, and the City
defendants admit as much. (See Docket #54 at 21) (noting that Wis. Stat.
§ 29.604 “does only provide for a misdemeanor penalty under state law for
the intentional possession of a wild animal on the state’s endangered species
list and so was mistakenly described by Detective Simmert as a felony”).
During the search, the officers observed conditions for the animals
that were quite disconcerting. (See, e.g., Simmert Dep. at 110:20-22) (referring
to the conditions as “deplorable”); (Felician Dep. at 69:18-20, 69:25-70:22)
(stating that the conditions were “abysmal” and that “the place was
absolutely filthy,” with “the top floor, where these animals were being
housed[,] was rotting”). In addition, the officers observed animal “carcasses”
in the house, including that of an alligator or a crocodile, mice and rats, and
perhaps a snake. (See Hewitt Dep. at 89:1-91:5) (observing dead alligator or
crocodile and a dead snake); (Simmert Dep. at 89:7-90:22) (observing dead
rats and mice which were feeder animals for the carnivores and a dead
alligator in a sealed off bin).
In light of the foregoing conditions, Lt. Felician and Detective Simmert
made the decision to arrest Flint. (Docket #69, ¶ 88); (Docket #75, ¶ 96).
Detective Simmert directed Officer Hewitt to place Flint in custody at 3:09
p.m.; however, Officer Hewitt had no part in the decision to arrest Flint other
than following the instructions given to her. (Docket #69, ¶ 91) Detective
Simmert instructed Officer Hewitt to arrest Flint on two felony charges: (1)
Wis. Stat. § 29.604; and (2) Wis. Stat. § 951.02, which criminalizes cruelty to
animals. (Simmert Dep. at 124:16-125:6). On what is called a “blue card,”
which listed the violations Flint was arrested on, both crimes were denoted

Page 30 of 58

as felonies. (See Docket #69, ¶ 90).10 However, Lt. Felician testified at his
deposition that he was aware that the animal cruelty charge as it pertained
to Flint was merely a misdemeanor. (Felician Dep. 69:4-6).
While Flint was arrested on a felony charge of Wis. Stat. § 951.02
—which has a range of penalties, from a fine all the way up to imprisonment
if it is a felony—Detective Simmert stated in his deposition that he was
arresting Flint only for not having the animals properly fed, sheltered, or
watered. (Simmert Dep. at 111:25-112:10). Those offenses, however, could
only rise to the level of a misdemeanor and are normally charged under a
different statute altogether. See Wis. Stat. §§ 951.13, 951.14. Additionally,
when speaking with Flint during her arrest, Detective Simmert told her she
was being arrested because “the conditions inside of [the house] were
deplorable, and that clearly she wasn’t caring for the animals.” (Simmert
Dep. at 110:18-111:1). He also testified at his deposition that he may have had
further dialogue with Flint and said something to the effect of “‘I don’t think
you’re an evil person. I think you just got in over your head.’” Id.
The search of the house was eventually ceased at 3:40 p.m. when it
was determined that the house was a hazard; the house was sealed and
placarded until the officers could return with proper safety equipment and
personnel. (See Docket #75, ¶ 104); (Docket #26, Ex. 1 at 3). Shortly thereafter,
some of the officers traveled to Cullen’s residence and executed the other
search warrant Detective Simmert had obtained.
Officer Colker arrived at Flint’s residence at 3:27 p.m., just before the
search was called off; he did not enter the premises and merely transported

10

The parties dispute whether Officer Hewitt or Detective Simmert filled out
this card. (See Docket #69, ¶ 90)

Page 31 of 58

Flint to MPD’s District 2 police station for booking on the charges noted
above. (See Docket #69, ¶ 97). Flint’s Arrest and Detention Report indicates
that the arresting officers were Officers Hewitt and Colker and the charges
against Flint were “Viol/Endang/Threat S” under Wis. Stat. § 29.604 and
“Intentionally Mistreat” under Wis. Stat. § 951.02. (Docket #38, Ex. 3 at 2).
Both crimes are listed as “F,” indicating they were charged as felonies.
Detective Simmert drafted a probable cause statement that evening,
which was notarized and signed by Lt. Felician at 10:37 p.m. (See Docket #52,
Ex. G at 1); (Simmert Dep. at 125:7-23). The probable cause statement lists the
same offenses against Flint, except that the Wis. Stat. § 951.02 charge, which
was previously denoted as “Intentionally Mistreat” on the Arrest and
Detention Report, is now listed as “Mistreating animals.” (Docket #52, Ex. G
at 1). The statement begins by stating that the search warrant MPD executed
was obtained “specifically” for the purpose of locating endangered species
“kept by [] Jane E. Flint,” and describes the basis for her arrest as follows:
Upon making entry, I observed animals numbering in the
100’s, including alligators, crocodiles, turtles, and spiders.
Warden Nick Blankenheim…and members from [MADACC]
were present. These trained professionals did positively
identify one recovered species as being a Chinese Alligator
which is classified as critically endangered and illegal to
possess. Due to public health concerns, the Department of
Neighborhood Services declared the residence unfit for human
or animal habitation. There was an overpowering stench
of ammonia consistent with urine and feces throughout the
residence. Dead animal carcasses were in close proximity
to live animals, and animal waste was observed throughout
the residence. In the basement area alone, mice and rats
numbering in the 100’s formed a carpet on the basement floor.
The conditions of the animals were as follows: mold and
fungus growing on a vast majority of the animals; alligators,
crocodiles, and turtles were kept in containers which did not
Page 32 of 58

allow them to turn around in their containers and were filled
with animal waste….Further endangered animals are in the
residence, but specific species and genus could not be
established based on the public health hazard.
Id.
Detective Simmert, after submitting the probable cause statement (a
copy of which goes to the City Jail), placed a hold on Flint so that he could
speak with her sometime later. (Simmert Dep. at 125:24-128:2). The hold
would prevent her from being released until Detective Simmert directed
otherwise. Id.
The search of Flint’s residence continued on May 13, 2010. (Docket
#69, ¶ 98). Sometime late that day, Detective Simmert went to speak with
Flint and obtain a statement from her. (Simmert Dep. at 127:4-128:2).
Detective Simmert stated that the delay in speaking with Flint was due to the
continuing search at Flint’s residence and also a search the previous day at
Cullen’s residence. (Simmert Dep. at 153:9-154:6) (noting that it took “16
hours worth of work on the 13th” at Flint’s residence). Flint told Detective
Simmert that she did not want to make a statement without an attorney
present. Id. So, Flint was released back to her jail cell and then Detective
Simmert filled out an “Order to Release” which served to transfer Flint to the
Milwaukee County Jail. Id.; (Docket #75, ¶114). She was transferred to
Milwaukee County Jail, according to Detective Simmert, because “we were
asking the courts to hold her on…felony charges.…You go to the county jail
because that’s where the court system is, where a commissioner would find
probable cause, and that’s where the bail reviews and all that stuff goes on.”
(Simmert Dep. at 134:19-135:3). If a person is not charged with a felony, that
person automatically has bail set pursuant to a state statute and a bail
schedule. (Docket #69, ¶ 99); (Docket #71, ¶ 28).
Page 33 of 58

Flint was transported to the Milwaukee County Jail around 11:30 p.m.
on May 13, 2010, and transferred into the custody of the County. (Docket #67,
¶ 117). Deputy Jonas was the intake officer at the County Jail and reviewed
Flint’s Arrest and Detention Report and the probable cause statement.
(Docket #71, ¶ 34); (Docket #67, ¶ 119). Deputy Jonas researched the two
statutes to determine if the documents he received were correct. (Docket #71,
¶ 34). He could not find Wis. Stat. § 29.604 and thus assumed that it was a
felony based on the documents from MPD. (Docket #67, ¶ 124). Deputy
Jonas also questioned whether the Wis. Stat. § 951.02 should actually be a
felony, at least at first. Id. ¶ 121. However, after looking up the statute and
observing that a felony was possible under § 951.02, see Wis. Stat. § 951.18,
he believed that the crime was properly a felony. Id. This was so, according
to Deputy Jonas, because the probable cause statement referred to “dead
animal carcasses,” and § 951.18(1) states, interalia, that “[a]ny person who
intentionally violates § 951.02, resulting in the mutilation, disfigurement
or death of an animal, is guilty of a Class I felony.” (Docket #67, ¶ 121).
However, Deputy Jonas later admitted during his deposition that his belief
that dead animal carcasses were sufficient to raise the charge to a felony was
erroneous. (Docket #79, ¶ 50). He also stated that if he wanted to, he could
have called MPD to clarify whether that charge was intended to be a felony.
(Docket #79, ¶ 51).
Deputy Jonas also knew that when those charges are entered into the
computer system at the County Jail by the clerk, the computer would tell
them whether or not the charges were actually felonies. (Docket #67, ¶ 125);
(Docket #71, ¶¶ 27, 35). The County’s computer printout shows that the
§ 951.02 charge could be a felony and the § 29.604 was listed as “O/U,”
which stands for ordinance, unclassified. (Docket #67, ¶¶ 125-127). Having
Page 34 of 58

confirmed that at least one of the crimes was a felony, Deputy Jonas marked
“FEL” on the paperwork for both charges, indicating that both charges were
felonies and thus making bail unavailable to Flint. (Docket #79, ¶ 55). Had
the § 951.02 charge ultimately been determined, by whatever means, to only
be a misdemeanor, Flint would have been automatically subject to $500.00
bail and would not have been required to wait for a judge to set bail. Id. at
¶ 57.
Flint was eventually brought before a County Commissioner at 1:46
p.m. on May 14, 2010; the commissioner found probable cause for two
felonies and set cash bail at $15,000.00. (Docket #79, ¶ 62); (Docket #71, ¶ 36);
(Docket #67, ¶ 131). Flint was later bailed out by a friend early the next
morning. (Docket #67, ¶ 133). Deputy Jonas was the release officer and went
through the same process of reviewing everything upon her release as he did
on intake. Id. at ¶ 134. According to the probable cause determination
paperwork, Flint was in custody for 46 hours and 43 minutes before probable
cause was found by the court commissioner. (Docket #71, ¶ 37).
A criminal complaint was filed against Flint on May 27, 2010, but did
not charge her with a felony. (Docket #67, ¶¶135-136).11 Eventually, all of the
misdemeanor and forfeiture charges against Flint were dismissed with
prejudice; to date, she has not been convicted of any offense. (Docket #67,
¶¶ 138-139).12

11

The defendants have objected to this fact on relevancy grounds; the Court
overrules that objection.
12

The defendants have objected to this fact on relevancy grounds; the Court
overrules that objection.

Page 35 of 58

3.2.2

Wisconsin Statutes Applicable to Flint’s Unlawful
Detention Claim

Before the Court turns to the parties’ arguments, the Court will outline
the relevant statutes that govern all of its analysis. Specifically, the criminal
statutes that Flint was charged with violating. First, Wis. Stat. § 29.604(4)(a)
states that, “[n]o person may…possess…within this state any wild animal
specified by the department’s endangered and threatened species list.” It is
undisputed that the Ornate Box Turtle that was found at Flint’s house was
on the endangered and threatened species list. The statute provides that,
“[w]hoever violates sub. (4)(a) shall forfeit not less than $500 nor more than
$2,000. Whoever intentionally violates sub. (4)(a) shall be fined not less than
$2,000 nor more than $5,000 or imprisoned for not more than 9 months or
both.” § 29.604(5)(a)(1).
Therefore, a violation of the statute is either a forfeiture, or if it is
violated intentionally, could involve a prison term. Because the statute does
not state whether it is a felony or a misdemeanor, one must look to Wis. Stat.
§ 973.02 which states that if a statute authorizes imprisonment but does not
define where the place of imprisonment is, then “a sentence of less than one
year shall be to the county jail…” And, turning to Wis. Stat. § 939.60, leads
to the conclusion that § 29.604(4)(a) is a misdemeanor, given that § 939.60
states that any crime that is not punishable by imprisonment in the
Wisconsin state prisons is a misdemeanor.
Second, § 951.02 states that, “[n]o person may treat any animal,
whether belonging to the person or another, in a cruel manner…“ The word
“cruel” is defined in § 951.01(2) as “causing unnecessary and excessive pain
or suffering or unjustifiable injury or death.” The penalties for violations of
the statute are either a forfeiture, a misdemeanor, or a Class I Felony. To wit:
Page 36 of 58

“Any person violating § 951.02 is subject to a Class C forfeiture.…Any person
who intentionally or negligently violates [inter alia, § 951.02] is guilty of a
Class A misdemeanor. Any person who intentionally violates § 951.02,
resulting in the mutilation, disfigurement or death of an animal, is guilty of
a Class I felony” § 951.18(1).
Two other statutes are also relevant: § 951.13, which criminalizes the
failure to provide proper food and drink to confined animals, and § 951.14,
which criminalizes the failure to provide proper shelter (i.e. the proper
temperature, ventilation, space, and sanitation). Violations of either §§ 951.13
or 951.14 are at most Class A misdemeanors. See § 951.18.(1).
3.2.3

Legal Standard for Unlawful Detention

“The Fourth Amendment protects against unreasonable seizures; an
arrest is a seizure, and the Fourth Amendment affords persons who are
arrested the further, distinct right to a judicial determination of probable
cause ‘as a prerequisite to extended restraint of liberty following arrest.’”
Lopez v. City of Chicago, 464 F.3d 711, 718 (7th Cir. 2006) (quoting Gerstein v.
Pugh, 420 U.S. 103, 114 (1975)). In Gerstein, the Supreme Court held the
judicial determination of probable cause must be “prompt,” a holding that
“acknowledges that prolonged pretrial detention occasions serious
interference with liberty rights.” Willis v. City of Chicago, 999 F.2d 284, 287
(7th Cir. 1993). And, in County of Riverside v. McLaughlin, 500 U.S. 44 (1991)
the Court refined “prompt” with the “general rule that persons arrested
without a warrant must receive a judicial determination of probable cause
within 48 hours.” Lopez, 464 F.3d at 719 (citing McLaughlin, 500 U.S. at 56-57).
Riverside’s rule established a “48-hour burden-shifting approach,”
meaning, as applicable here, that detentions less than 48 hours are
presumptively reasonable and “the arrested person bears the burden of
Page 37 of 58

establishing that the length of his custody is nonetheless unreasonable.”
Portis v. City of Chicago, 613 F.3d 702, 704 (7th Cir. 2010). In Riverside, the
Supreme Court gave examples of unreasonable delays: “delays for the
purpose of gathering additional evidence to justify the arrest, a delay
motivated by ill will against the arrested individual, or delay for delay’s
sake.” 500 U.S. at 56. The Seventh Circuit has also held that “prolonging the
detention of an arrestee to investigate crimes other than the one for which he
had been arrested” runs afoul of Riverside. Wells v. City of Chicago, 2010 WL
116040, at *6 (N.D. Ill. Jan. 16, 2012) (citing Willis v. City of Chicago, 999 F.2d
284, 288-89 (7th Cir. 1993)).
It must be noted, however, that “the 48-hour burden shifting approach
does not apply when the police don’t plan to present the suspect to a
magistrate for a probable-cause hearing.” Portis, 613 F.3d at 704. This is often
the case when a statutory bail schedule directs that persons arrested for
minor offenses (typically forfeitures, fines, and most misdemeanors) be
granted cash bail and released from custody. In these situations, an “officer’s
‘on-the-scene assessment of probable cause’ justifies an arrest and ‘a brief
period of detention to take the administrative steps incident to arrest.’”
Chortek, 356 F.3d 740, 746 (7th Cir. 2004). The length of time taken to complete
these administrative steps must be reasonable in light of the circumstances,
see Portis, 613 F.3d at 704 (noting that “McLaughlin tells us that
reasonableness must be assessed one case at a time” and “‘courts must allow
a substantial degree of flexibility’”) (quoting Riverside, 500 U.S. at 56).
However, the Seventh Circuit has suggested that “[i]f police choose to
perform time-consuming tasks after an arrest, perhaps they must do so on
their own time rather than the suspect’s, issuing a citation rather than
keeping the suspect locked up in the interim.” Gramenos v. Jewel Cos., Inc., 797
Page 38 of 58

F.2d 432, 437 (7th Cir. 1986). In that vein, the Seventh Circuit has twice
required an explanation for delays of less than five hours. See Gramenos, 797
F.3d at 437; Moore v. Marketplace Rest., Inc., 754 F.3d 1336 (7th Cir. 1985).
3.2.4

The Unlawful Detention Claim Against the City
Defendants13
3.2.4.1

The Parties’ Arguments

Flint asserts that the City defendants unlawfully detained her because
they made an unreasonable mistake of law in detaining her for two felonies,
when the facts and relevant law could only support forfeiture or
misdemeanor charges. (Docket #50 at 20). Because of this mistake, she was
required to wait for a judicial probable cause determination instead being
released according to the statutorily defined bail schedule. Id. at 22.Flint also
alleges that Detective Simmert made false statements and material omissions
in his probable cause statement that effectively ensured that she would be
detained for an unreasonable amount of time. Id. at 25. Additionally, she
alleges that Detective Simmert held her for additional time in the hopes that
he could extract information about Cullen, and implied that if she talked, she
would be released. Id. at 20. Flint also asserts that her detention was
unreasonably delayed because the City defendants spent the day after her
arrest gathering additional evidence to justify her arrest, which is
impermissible. See, e.g., Wells v. City of Chicago, 2010 WL 116040, at *5 (N.D.
Ill. Jan. 16, 2012) (noting that “delay for gathering additional evidence to
justify the arrest is unreasonable”) (internal quotation marks omitted).

13

Flint’s complaint alleges unlawful detention against all of the defendants.
(Docket #41 at 17). However, Sgt. Jackson and Officers Mourty and Daugherty
clearly had nothing to do with her arrest or detention. The unlawful detention
claim against all three, to the extent there ever was one, will be dismissed.

Page 39 of 58

Conversely, the City defendants argue that, while Flint may have
erroneously been arrested and detained on a felony charge pertaining to the
endangered species statute, that alone is irrelevant given that she could
properly be detained on a felony violation of Wis. Stat. § 951.02. (Docket #54
at 21). In particular, the City defendants argue that the presence of the dead
animals and the conditions of the house were sufficient to show that Flint
intended to treat the animals cruelly which resulted in their death, thereby
allowing for detention on a felony charge, pursuant to §§ 951.02 and
951.18(1). Id. at 22. (“It…appeared to a reasonable layperson in their position
[at] that time that the animals were treated in a cruel fashion,” resulting in
the death of at least one alligator); (Docket #73 at 12) (“[Detective] Simmert
and [Lt.] Felician did not have to have evidence…that Flint had intended to
kill any of the animals, but, rather, that she intended to treat them in a cruel
manner.”). And, the City defendants argue that even if they did make
mistakes of law regarding the statutes Flint was charged under, those
mistakes were reasonable and thus permissible under Heien.
As to Flint’s contention that she was impermissibly detained to shore
up her arrest, the City defendants flatly deny this claim as unsupported by
the evidence. (Docket #81 at 12). As to why Flint was held without a probable
cause determination all day May 13, 2010, the City defendants point to “the
extensive and more than day-long search of [her] property that occurred the
day after the warrant execution.” Id. at 10; see id. at 11 (explaining further that
“the officers would have been derelict in their duties if they had not
thoroughly searched [Flint’s residence]…on the day following Flint’s arrest.”
But, the City defendants assert that the subsequent search was not “required
in order to gather evidence to ‘justify the arrest’ because evidence had

Page 40 of 58

already been obtained in the short-circuited search on the day the warrant
was executed.” Id.
Finally, the City defendants argue that they are entitled to qualified
immunity on Flint’s unlawful detention claim because, in sum, Flint has not
come forward with similar cases showing that the violations she alleges ran
afoul of a clearly established right.
The Court will first address whether the City defendants made
reasonable mistakes of law in interpreting the two statutes that Flint was
arrested and detained on. Afterwards, the Court will address the balance of
the City defendants’ and Flint’s arguments to determine whether summary
judgment is appropriate for either party on the unlawful detention claim.
3.2.4.2

The City Defendants Did Not Make
Reasonable Mistakes of Law

The City defendants argue that, even if what they asserted as probable
cause for Flint’s arrest on the felony animal mistreatment charge was
insufficient to detain her because it was merely a misdemeanor (or, perhaps,
a forfeiture), that mistake was a reasonable mistake of law. And the City
defendants parrot that argument as it pertains to the endangered species
charge.
The Supreme Court held, a few short months ago, “that reasonable
suspicion can rest on a mistaken understanding of the scope of a legal
prohibition.” Heien, 135 S.Ct. at 536. As the Court put it, “reasonable men
make mistakes of law, too, and such mistakes are no less compatible with the
concept of reasonable suspicion.” Id. The Supreme Court made clear,
however, that the Fourth Amendment only tolerates objectively reasonable
mistakes of law and those mistakes cannot be the product of an officer’s
“sloppy study of the laws he is duty-bound to enforce.” Id. at 539; see also id.

Page 41 of 58

at 541 (Kagan, J., concurring) (explaining that “the government cannot
defend an officer’s mistaken legal interpretation on the ground that the
officer was unaware of or untrained in the law”).
The Supreme Court’s decision is further cabined by the question
presented to it, which it summarized as: “Whether a police officer’s
mistake of law can provide the individualized suspicion that the Fourth
Amendment requires to justify a traffic stop.” See Heien v. North Carolina, No.
13-604, Question Presented, available at http://www.supremecourt.gov/qp/1300604qp.pdf (last visited March 3, 2015). The Court made no indication that
its holding was meant to encompass determinations of probable cause to
arrest, or, for that matter, any reasonable mistake of law outside of those
made to justify reasonable suspicion. See Heien, 135 S.Ct. at 540 (Kagan, J.,
concurring) (noting that the Court’s opinion “explains why certain mistakes
of law can support the reasonable suspicion need to stop a vehicle under the
Fourth Amendment”).
Finally, the Court noted that ignorance of the law continues to be an
impermissible excuse for police officers, just as it is for the citizenry. Id. at
540. Thus, its holding does not change that “the government cannot impose
criminal liability based on a mistaken understanding of the law”; however,
from that it does not follow that reasonable mistakes “cannot justify an
investigatory stop.” Id. Stated another way, reasonable mistakes of law can
justify the seizure incident to an investigatory stop, but even reasonable
mistakes cannot

justify

imposing

criminal

liability

founded

on

misconceptions about the scope or application of the law.
There also appears, in this Court’s view, to be a condition precedent
to even asserting that a mistake of law is reasonable. That is, as stated by
Justice Kagan in her concurrence, that the statute be “genuinely ambiguous,
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such that overturning the officer’s judgment requires hard interpretive
work.” Id. at 541 (Kagan, J., concurring) (“The critical point is that the statute
poses a quite difficult question of interpretation…”). If the statute is not, then
officers are effectively foreclosed from arguing that any mistake of law
predicated on that statute could be objectively reasonable. The point to be
made in expounding upon all of this is that Heien’s reach is to those
“exceedingly rare” cases where truly conflicting yet objectively reasonable
interpretations of the law are possible. See id.
Against the foregoing backdrop, the Court has qualms about even
applying Heien here, given that this is not a reasonable suspicion case. But see
J Mack LLC v. Leonard, No. 13-CV-808, 2015 U.S. Dist. LEXIS 15259, at *22
(S.D. Ohio Feb. 9, 2015) (stating that the court “has no reservation in
extending Heien’s rational to the probable cause analysis, especially given
that the Supreme Court’s decision is based in part on nineteenth century
precedent that it characterized as establishing the proposition that a mistake
of law can support a finding of probable cause”). Nevertheless, the Court will
analyze the City defendants’ arguments in light of Heien for the sake of
clarity.
First, the City defendants argue that “Heien now establishes that the
[endangered species] arrest as a felony was ‘reasonable’…because an officer
could reasonably rely upon the DNR’s classification of the violation as a
felony.” (Docket #87 at 4); id. at 5 (“Warden Blankenheim’s apparentlycredible word that the possession of the turtles was a felony under Wisconsin
law provided a reasonable basis for [Lt.] Felician and Detective Simmert to
arrest Flint for that offense as a felony.”). The City defendants’ argument
fails, however, because Heien simply does not apply. Relying on DNR
Warden Blankenheim’s own mistake of law does not involve Lt. Felician and
Page 43 of 58

Detective Simmert reasonably misinterpreting an ambiguous statute. Rather,
it underscores their own lack of knowledge about the statute ab initio. An
officer cannot make a reasonable mistake about the law or the facts if he has
no knowledge of either. See Heien, 135 S.Ct. at 541 (Kagan, J., concurring)
(“…the government cannot defend an officer’s mistaken legal interpretation
on the ground that the officer was unaware of…the law”).
Second, the City defendants argue that “even if Heien were only to
apply to legal determinations made by the officers themselves, [Lt.] Felician
and Detective Simmert could still have reached the reasonable, though
mistaken, conclusion that the possession of the endangered species was a
felony rather than a misdemeanor.” (Docket #87 at 5). This, the City
defendants assert, would not be through some slipshod study of the statute,
but because “[i]t takes…a relatively complex analysis of several statutes
before one can determine the nature of such a violation.” Id. The City
defendants describe this process as “strikingly similar to the complicated
analysis” that faced the officer in Heien. Id. at 8. So, the City defendants
conclude, “these officers, in analyzing the pertinent statutes, could have made
a ‘reasonable mistake of law’ and concluded that the violation of the endangered
species law…was a felony.” Id. (emphasis added). And, consequently, the
officers “would have acted reasonably in processing Flint’s arrest on this
charge as a felony and not a misdemeanor.” Id.
The Court disagrees. This argument fails for the same reason the first
argument did; the officers did not know the law and thus could not make a
reasonable mistake about it. Heien involved an officer making a reasonable
mistake of law based on his understanding of the law; and the mistake was a
reasonable one because conflicting interpretations of the statute—as
evidenced by later judicial decisions that struggled to interpret it—resulted
Page 44 of 58

in different, but objectively reasonable conclusions as to its applicability.
The City defendants’ use of the phrases “could…have reached the
reasonable…conclusion” and “could have made a ‘reasonable mistake of
law’” crystallize the fallacy of this argument. Namely, Heien does not stand
for the proposition that lack of knowledge about or sloppy study of a statute
can be transformed into a reasonable mistake of law by hypothesizing that
the statute could be ambiguous or confusing. Officers cannot shore up their
lack of knowledge by proposing that if they had properly reviewed the law
they would have been nonetheless confused, thus justifying their mistake.
Especially when officers choose to arrest someone for a violation of that law.
Finally, even if the Court were to entertain this argument, the City
defendants’ route to determine that § 29.604(4)(a) is a misdemeanor is only
“complex” because they made it so. In reality, one must merely read three
statutes. And, they are abundantly clear. This is not difficult interpretive
work. Plus, even if “a relatively complex analysis of several statutes” is
required to determine the punishment, that does not make the statute
ambiguous or permit two reasonable interpretations of its scope. Statutes
frequently cross-reference each other and require some effort to connect the
dots. If reasonable mistakes of law were permitted on this basis alone
(without showing concomitant ambiguity), virtually no mistakes of law
would be unreasonable, given the often dense and inartful structure of such
statues, writ large.
The Court finds that the City defendants made an unreasonable
mistake of law by detaining Flint on the imaginary charge of felony
possession of an endangered/threatened species. As noted above, the City
defendants readily admit that this was a mistake. And, despite their
bandying about in an attempt to frame the mistake as reasonable, it is no
Page 45 of 58

such thing given that Lt. Felician admitted to having no independent
knowledge of the statute and he, along with Detective Simmert, based their
belief that the statute was a felony on the word of DNR Warden
Blankenheim. Cf. Reynolds v. Jamison, 488 F.3d 756, 768 (7th Cir. 2007)
(“[The collective knowledge] doctrine permits arresting officers to rely on
the knowledge, but not necessarily the conclusions (such as whether
probable cause exists), of other officers.”); Woods v. Indiana University-Purdue
University, 996 F.3d 880, 887 (7th Cir. 1993) (noting that, “in essence, all public
officials are presumed to know clearly established law, whether or not they
have in fact ever cracked a law book.”).
The City defendants’ third argument—which focuses on §§ 951.02 and
951.18(1)—is that even if the officers “somehow lacked the requisite basis for
[the animal mistreatment] felony arrest, Heien now makes clear that an officer
in their position would reasonably conclude that there was probable cause
for such an arrest.” (Docket #87 at 9). This is so, the City defendants explain,
because it is possible to interpret § 951.02 to allow a cruelty to animals charge
for failing to provide food, water, or shelter. As the City defendants explain,
“it would certainly be possible for a person to inflict ‘unnecessary and
excessive pain or suffering or unjustifiable injury or death’ by starving an
animal, failing to provide it with water as required, or otherwise failing to
provide proper shelter.” (Docket #87 at 10).
The City defendants go on to note that §§ 951.02 and 951.18(1) were
interpreted by the Wisconsin Court of Appeals in 2012, and the court held
that a Class I Felony for intentionally violating §§ 951.02 and 951.18(1) did
not require the intent to cause death, disfigurement, or mutilation of an

Page 46 of 58

animal but merely the intent to treat the animal in a cruel manner. See State
v. Klingelhoets, 814 N.W.2d, 885, 890, 341 Wis. 2d 432 (Ct. App. 2012).14
Based on the foregoing, the City defendants state that its analysis (and
that of the court in Klingelhoets) “undermines Flint’s contention that all
instances of a failure to provide food, water, and shelter can only amount to
a misdemeanor.” (Docket #87 at 11). Thus, the officers, after observing the
dead carcasses and the deplorable conditions in the premises, could
“reasonably conclude that both felony elements of §§ 951.02 and 951.18(1)
had been met. The animals had been treated in a ‘cruel’ manner, that is, they
have been subjected to ‘unnecessary and excessive pain or suffering or
unjustifiable injury or death.’” Id. And, “that intended cruel treatment
resulted in the death of the animal.” Id.
This argument is somewhat confusing, but if the Court understands
it correctly, the City defendants are arguing that § 951.02 was indeed the
correct charge because they could have reasonably concluded that a felony
violation of that statute can occur solely on the lack of food, water, and
shelter they observed, coupled with the officers’ observations of the
conditions of the house and the presence of animal carcasses.
The Court agrees that, in certain circumstances, the failure to feed,
provide water or shelter for an animal, if done with the intent to “caus[e]
unnecessary and excessive pain or suffering or unjustifiable injury or death,”

14

It should be noted that Klingelhoets was issued after the events in this case,
so perhaps its holding should not fit into the calculus here. See Herrera v. City of
Albuquerque, 589 F.3d 1064, 1071 (10th Cir. 2009) (noting whether probable case
exists at the time of arrest is governed by cases published before the arrest).
Nevertheless, Klingelhoets nowhere stated that the statutes at issue were ambiguous,
which significantly undercuts the City defendants’ own reasonable mistake of law
argument. And, in the end, the holding in Klingelhoets has no effect on the Court’s
instant order.

Page 47 of 58

§ 951.02, resulting in death, disfigurement, or mutilation of that animal,
could permit a felony arrest. But, this is not a mistaken reading of the statute;
it is a reasonable interpretation of it. Thus, it cannot be a mistake of law.
In light of the foregoing, the Court is unpersuaded by the City
defendants’ arguments that they made reasonable mistakes of law regarding
the two statutes at issue. At bottom, all of their arguments fall outside the
scope of Heien by failing to actually allege reasonable mistakes of law.
Instead, they are either: (1) impermissible attempts to transform lack of
knowledge into a reasonable mistake of law; or (2) permissible readings of
the statute, which do not demonstrate a mistaken understanding of the law.
3.2.4.3

A Jury Could Find the City Defendants
Unreasonably Detained Flint

As the City defendants correctly argue, their mistake regarding the
endangered species charge could not, standing alone, prolong Flint’s
detention if she was properly detained on the felony animal mistreatment
charge. The Court will now turn to that issue.
The Court finds that no matter what reading of the statute the City
defendants allege could have been the basis for a felony animal mistreatment
charge, they cannot escape one fatal flaw: intentional conduct is required, see
Klingelhoets, 814 N.W.2d at 890 (stating that intentional animal requires “that
“‘the thing’ or ‘the result’ the actor had ‘the purpose to do’ or ‘cause’ is
unnecessary and excessive pain or suffering or unjustifiable injury or death”)
(quoting Wis. Stat § 939.23(3)), and the City defendants gloss over this
element. See, e.g., Stokes v. Bd. of Educ. of the City of Chicago, 599 F.3d 617, 622
(7th Cir. 2010) (“A police officer’s probable cause determination depends on
the elements of the applicable criminal statute.”).

Page 48 of 58

While it is true that probable cause does not “require the same type of
specific evidence of each element of the offense as would be needed to
support a conviction,” Adams v. Williams, 407 U.S. 143, 149 (1972), this does
not mean that “the police can[] establish probable cause without at least some
evidence supporting the elements of a particular offense, including the
requisite mental state.” Wesby v. District of Columbia, 765 F.3d 13, 20 (D.C. Cir.
2014).
The City defendants’ failure to point to any evidence that Flint’s
conduct rose to the level of intending the unjustifiable death of the animals
that ended up as “carcasses,” severely undermines this argument. See BeVier
v. Hucal, 806 F.2d 123, 126 (7th Cir. 1986) (holding that to have probable cause
under a statute requiring knowing or willful conduct, officers “needed some
evidence” to satisfy this element). As Flint points out, there is nothing in the
probable cause statement indicating intent, and not a single officer has
testified that they understood the facts to show or held the belief that Flint
intended to kill the animals or otherwise intended to treat them cruelly. See
Ahlers v. Schebil, 188 F.3d 365, 371 (6th Cir. 1999) (observing that “officers
may [not] make hasty, unsubstantiated arrests with impunity. Several cases
both from this and other circuits, caution against incomplete, poorly
conducted investigations”).
Of course, the officers’ subjective understanding of the facts is
irrelevant to whether probable cause exists. See Carmichael v. Vill. of Palatine,
Ill., 605 F.3d 451, 457 (7th Cir. 2010) (“The Supreme Court has made clear that
the probable cause inquiry is an objective one.”); see also Devenpeck v. Alford,
543 U.S. 146, 153 (2004) (“Our cases make clear that an arresting officer’s state
of mind (except for the facts that he knows ) is irrelevant to the existence of
probable cause.”) And, officers are permitted “latitude to make reasonable
Page 49 of 58

judgments” and inferences “in light of the circumstances.” Stokes, 599 F.3d at
624. In addition, “no police officer can truly know another person’s subjective
intent.” Jordan v. Mosley, 487 F.3d 1350, 1355 (11th Cir. 2007). Thus, probable
cause must normally be inferred from circumstantial or indirect evidence. See
Krause v. Bennet, 887 F.2d 362, 371 (2d Cir. 1989) “[A]cts indicate the intention
is an old maxim.” United States v. Martinez, 96 F.3d 473, 478 n.7 (11th Cir.
1996) (internal quotation marks omitted).
The Court believes that a reasonable jury could find that the City
defendants lacked probable cause to arrest and detain Flint on the felony
animal cruelty charge. Chelios v. Heavener, 520 F.3d 678, 686 (7th Cir. 2008)
(“The probable cause determination must be made by a jury if there is room
for a difference of opinion concerning the facts or the reasonable inferences
to be drawn from them.”) (internal quotation marks omitted).
That does not end the inquiry, however. It is undisputed that the City
defendants had probable cause to arrest Flint on at least a civil forfeiture or
a misdemeanor, regardless of whether the City defendants could not have
arrested her for a felony. Therefore, Flint could be detained for a reasonable
amount of time incident to her lawful arrest regardless. See Holmes v. Village
of Hoffman Estate, 511 F.3d 673, 682 (7th Cir. 2007) (“An arrested individual
is no more seized when he is arrested on three grounds rather than one; and
so long as there is a reasonable basis for the arrest, the seizure is justified on
that basis even if any other ground cited for the arrest was flawed.”).
In the Court’s view, whether Flint’s approximately forty-seven hour
detention was unreasonable is a fact-intensive question that must be left for
a jury. See Chortek v. City of Milwaukee, 356 F.3d 740, 747 (7th Cir. 2004)
(stating that “the reasonableness of a length of detention typically ‘is a
question best left open for juries to answer based on the facts presented in
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each case’”) (quoting Lewis v. O’Grady, 853 F.2d 1366, 1370 (7th Cir. 1988));
Wells v. City of Chicago, 2010 WL 116040, at *6-8. This is so for two reasons.
First, even assuming that Flint was properly detained on the felony
animal cruelty charge, the Court finds that Flint has shown that there are
sufficient facts to allow a jury to find the Riverside 48-hour presumption of
reasonableness rebutted. See Portis, 613 F.3d 702, 704 (7th Cir. 2010) (noting
that “the arrested person bears the burden of establishing that the length of
his custody is nonetheless unreasonable”). Flint has shown sufficient facts to
infer that the subsequent searches of Cullen’s residence on May 12, 2010, and
Flint’s on May 13, 2010, which delayed her release, could have been for the
purpose of shoring up Flint’s arrest, using Flint as leverage against Cullen,
or investigating other uncharged crimes against her or Cullen.
The City defendants all but conceded as much by stating that Flint was
detained while they continued to search her house because “there might
have been additional evidence of animal cruelty or…something that would
exonerate Flint.” (Docket #81 at 11). In addition, Detective Simmert stated
that the questions he would have asked Flint if she had not invoked the right
to counsel pertained to, inter alia, “whether she had responsibility for the
care[] of these animals, [and] whose turtle it was.” (Simmert Dep. 131:1-5).
(See Docket #73 at 15) (“[Detective] Simmert merely admitted to the
possibility, however remote, that something in a statement by Flint…could
have eliminated any charge against her for cruelty to animals and left it
solely against Cullen.”). Detective Simmert stated that he would also have
asked Flint about Cullen’s involvement in the animal mistreatment and
inquired into the ongoing sexual assault investigation of Cullen. (Simmert
Dep. at 132:16-22). The foregoing questions give rise to the inference that the
City defendants were not even sure of Flint’s culpability and were really
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focused on Cullen. See Tilson v. Forrest City Police Dept., 28 F.3d 802, 815 (8th
Cir. 1994) (“The jury reasonably could have believed that the parole violation
was a mere subterfuge for Tilson's warrantless arrest and detention.”).
Second, if the jury finds that the City defendants lacked probable
cause to arrest and detain Flint on the felony animal mistreatment charge,
which a reasonable jury could find, the unreasonableness of the foregoing
delays may become more significant. Cf. Moore, 754 F.2d at 1350 (“The
principle is clear[,]detention must be justified,” and if it is not, “it amounts
to punishment prior to conviction”).
Notwithstanding the foregoing, a reasonable jury could also find the
length of Flint’s detention reasonable because the City defendants had
probable cause for the felony charge.
In the end, as with Flint’s unlawful seizure claim, genuine disputes of
material fact, coupled with issues of culpability and credibility that tend to
mirror those in the unlawful seizure claim, require that the Court deny both
the City defendants’ and Flint’s motions for summary judgment on the
unlawful detention claim, except as outlined below.
3.2.4.4

Qualified Immunity Depends on the Jury’s
Findings

What remains, then, is whether the City defendants are nonetheless
entitled to qualified immunity on this claim. At this juncture, it is impossible
to answer that question.
To wit, whether the City defendants are entitled to qualified immunity
depends upon the jury’s answers to each of the following questions:
(1) whether the City defendants had probable cause to detain Flint on the
felony animal cruelty offense; (2) whether the length of Flint’s detention was

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unreasonable; and (3) whether the City defendants intended to prolong Flint’s
detention for an impermissible reason.
After these disputes have been resolved by the jury, the City
defendants are free to reassert their entitlement to qualified immunity in light
of the jury’s findings.
3.2.4.5

Failure to Intervene Claims Against Officer
Hewitt and Lt. Felician

Flint argues that because Lt. Felician and Officer Hewitt approved
Detective Simmert’s probable cause statement, they were obligated to
intervene when they observed “false facts and significant material
omissions.” (Docket #68 at 23). The City defendants argue that Flint cannot
maintain a failure to intervene claim against Officer Hewitt and Lt. Felician
because the information in the probable cause statement was consistent with
their understanding of the facts and, therefore, they were unaware of any
constitutional violation. (Docket #81 at 14).
The Court agrees with the City defendants that Lt. Felician is not liable
for failing to intervene. This result obtains because he directly participated
in the decision to arrest and detain Flint and thus is personally liable for his
own actions. An officer cannot intervene in his own constitutional violation.
As to Officer Hewitt, the Court finds that Flint’s failure to intervene
claim cannot proceed based solely on Officer Hewitt’s review of the probable
cause statement. This task, alone, would not provide a sufficient basis to alert
her to a constitutional violation; nor is it clear what exactly she could have
done, in concrete terms, to intervene.

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3.2.4.6

Unlawful Detention Claim Against Officers
Hewitt and Colker Cannot Proceed

The City defendants also move for dismissal of Officers Hewitt and
Colker because they argue that neither was personally involved in the
decision to arrest and detain Flint; nor did either officer’s conduct contribute
in any meaningful way to the length of Flint’s detention. (Docket #54 at 12).
Flint asserts that the unlawful detention claim should not be dismissed
against Officer Hewitt, because she arrested Flint, and Officer Colker because
he assisted in the arrest and transported Flint for booking. (Docket #68 at 2325).
If, perhaps, this were a false arrest case, the Court would be obliged
to deny the City defendants’ request. However, the simple act of arresting
Flint and transporting her to booking did not have any appreciable effect on
the length of Flint’s detention; these steps would have occurred regardless,
no matter what offense—erroneous or not—underlying the arrest. See Tibbs
v. City of Chicago, 469 F.3d 661, 665 (7th Cir. 2006) (noting that an arresting
officer is not responsible for Flint’s continuing detention once he turns Flint
over to jailers at the police station) (citing Brown v. Patterson, 823 F.2d 167, 169
(7th Cir. 1987)). Accordingly, the Court will grant summary judgment in
favor of Officers Hewitt and Colker on the unlawful detention claim.
3.2.5

Unlawful Detention Claim Against Deputy Jonas

Flint alleges that Deputy Jonas is also liable for unlawful detention
because he made an unreasonable mistake of law when he booked Flint into
the County Jail. (Docket #50 at 23-24). Plus, Flint argues that Deputy Jonas
had a duty to investigate whether there was probable cause to detain her on
two felonies. (Docket #76 at 14). In addition, she argues that Deputy Jonas
made an unreasonable mistake of law when he concluded that the presence
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of animal carcasses next to live animals was sufficient probable cause to
detain Flint on felony animal cruelty charges. Id. at 23. Lastly, Flint alleges
that additional conduct by the County during her detention—high bail and
the delay in obtaining a judicial probable cause determination—continued
her unlawful detention unreasonably. (Docket #50 at 25).
Deputy Jonas argues that he made no mistake at all during his intake
of Flint, but merely reasonably relied on the information that was provided
to him by MPD. (Docket #66 at 6). In addition, the County asserts that, while
Deputy Jonas did independently review the probable cause statement to
determine if Flint could be held on felonies, he came to a reasonable
conclusion based on the law he researched and the facts in the probable cause
statement. Id. at 6-7. Deputy Jonas also argues, similar to the City defendants,
that even if he did in fact make a mistake, it was a reasonable mistake of law.
(Docket #85 at 5). Finally, Deputy Jonas asserts that his conduct did not run
afoul of a clearly established right, thus entitling him to qualified immunity.
(Docket #47 at 14-15).
In the Court’s view, Flint’s claim against Deputy Jonas is plainly
foreclosed by Wood v. Worachek, where the Seventh Circuit held that:
generally, a jailer is liable for the illegal detention of an inmate
when he unreasonably detains the inmate for arraignment or
release, or possesses an affirmative knowledge of the illegality
of the arrest. But if the errors upon which liability is asserted
take place beyond the scope of his responsibility, he cannot be
found liable where he has acted reasonably and in good faith.
618 F.2d 1225, 1231 (7th Cir. 1980); see also Dry v. United States, 235 F.3d 1249,
1259 (10th Cir. 2000) (“We agree with the district court that absent any
objectively apparent lack of a basis for a detention which should arouse
suspicion, a jailer cannot be expected to assume the mantle of a magistrate to

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determine the probable cause for an arrest.”) (internal quotation marks
omitted).
Here, Deputy Jonas was performing essentially a ministerial task
during Flint’s intake: that of determining whether the arrest and detention
report matched the probable cause statement—two documents that were
provided to him by MPD. Any errors in those documents took place “beyond
the scope of his responsibility”—that is, if there was no probable cause for
Flint’s arrest and detention, that error would not be attributable to him—and
thus he cannot be held liable for Flint’s continued detention so long as he
acted reasonably and in good faith. Worachek, 618 F.2d at 1225.
And, while Flint rests much of her argument on the fact that Deputy
Jonas harbored some doubt as to whether Flint’s animal cruelty charge was
indeed a felony, this path leads nowhere. This is because he acted in good
faith to check that the statute could be a felony; specifically, he looked up the
animal cruelty charge in a reference book and compared the probable cause
statement to the statute’s felony provision. Even if his ultimate determination
was erroneous, which Deputy Jonas now admits, it is the process he
undertook that determines whether he acted reasonably and in good faith.
The Court finds that Deputy Jonas did not believe or know that Flint’s
arrest or detention was unlawful, and thus he had no duty to re-investigate
Flint’s charges or re-examine the sufficiency of the probable cause statement.
In addition, he took steps to confirm that at least one of the offenses could
have been a felony and thus he acted reasonably and in good faith.
Moreover, to the extent that Flint is arguing that jailers must
independently assess probable cause for each person they detain, she cites no
law in support of this supposed right. Perhaps because no such duty exists
in this circuit. See Worachek, 618 F.2d at 1225 (stating that “[i]t [is] not the
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obligation of jailers to determine whether or not probable cause exist[s] for
[an] arrest”). This excludes, however, those situations where the jailer has
affirmative knowledge of the illegality of an individual’s continued detention
and is either personally involved in continuing the detention or fails to
intervene despite possessing that knowledge.
In addition, Flint was in the County Jail for under fourteen hours, and
she has alleged no viable facts to conclude that this amount of time was
unreasonable or the result of an intentional effort by Deputy Jonas to delay
her release. At bottom, the full length of Flint’s detention is directly
attributable to the decisions of the City defendants.
4.

CONCLUSION
In light of the foregoing, the Court is obliged to: deny Flint’s motion

for partial summary judgment; grant in part and deny in part the City
defendants’ motion for summary judgment; and, grant the County and
Deputy Jonas’ motion for summary judgment.
For the sake of clarity, the unlawful seizure claim will proceed against
Officers Daugherty and Mourty, Detective Simmert, Lt. Felician, and Sgt.
Jackson. Summary judgment will be granted for Officers Hewitt and Colker
on the unlawful seizure claim. The corresponding failure to intervene claim
will proceed against all of the City defendants, excepting Officers Hewitt and
Colker.
The unlawful detention claim will proceed against Detective Simmert
and Lt. Felician. Summary judgment will be granted for Officers Hewitt,
Colker, Daugherty, and Mourty, and Sgt. Jackson on this claim. No failure to
intervene claim for the unlawful detention will proceed.
Accordingly,

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IT IS ORDERED that the plaintiff’s motion for partial summary
judgment (Docket #49) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that the County and Deputy Jonas’s
motion for summary judgment (Docket #43, #48) be and the same is hereby
GRANTED; Milwaukee County and Deputy Jonas be and the same are
hereby DISMISSED from this action; and
IT IS FURTHER ORDERED that the City defendants’ motion for
summary judgment (Docket #53) be and the same is hereby GRANTED in
part and DENIED in part, as outlined above; Officers Hewitt and Colker be
and the same are hereby DISMISSED from this action.
Dated at Milwaukee, Wisconsin, this 20th day of March, 2015.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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