Gill v. City of Milwaukee et al

Filing 28

ORDER signed by Judge Rudolph T. Randa on 11/9/2015. 27 Defendant Peterson's MOTION to Strike Plaintiff's Letter in Sur-Reply DENIED. 17 Defendant Peterson's MOTION for Judgment on the Pleadings GRANTED; Mark Peterson DISMISSED. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
EDDIE GILL,
Plaintiff,
-vs-

Case No. 15-C-587

CITY OF MILWAUKEE, et al.,
Defendants.
DECISION AND ORDER
Eddie Gill brings a series of federal and state law claims against the
City of Milwaukee, Chief of Police Edward Flynn, and six Milwaukee police
detectives. One of those detectives, Detective Mark Peterson, moves for
judgment on the pleadings. Fed. R. Civ. P. 12(c). For the reasons that follow,
this motion is granted.
Background
Eddie Gill was charged with the February 3, 2013 homicide of Jordin
Crawley. Gill confessed to the murder and spent just over a year in jail
pending trial. Gill was never tried, however, at least partly because
Milwaukee County Circuit Court Judge Stephanie Rothstein suppressed Gill’s
confession. At the time of his arrest, Gill was an 18-year-old ninth grader
diagnosed with ADHD, functionally illiterate, and borderline mentally
retarded.

The background that follows is derived from the allegations in the
complaint, see Pisciotta v. Old Nat. Bancorp, 499 F.3d 629, 633 (7th Cir. 2007)
(courts “take the facts alleged in the complaint as true, drawing all reasonable
inferences in favor of the plaintiff” when ruling on a Rule 12(c) motion); the
February 24, 2014 suppression hearing conducted by Judge Rothstein, see
Scherr v. Marriot Int’l, Inc., 703 F.3d 1069, 1073 (7th Cir. 2013) (courts “may
take judicial notice of documents that are part of the public record, …”); the
transcript and interview incident report of Detective Peterson’s February 13,
2013 interrogation of Gill, see id.; see also 188 LLC v. Trinity Indus., Inc., 300
F.3d 730, 735 (7th Cir. 2002) (“documents attached to a motion to dismiss are
considered part of the pleadings if they are referred to in the plaintiff’s
complaint and are central to his claim”); and various other documents that are
either public records, referenced in the complaint, or both.
The Futuristic Lounge, a tavern located on 18th Street and Greenfield
Avenue in Milwaukee, was set to close for good on February 3, 2013. Among
those in attendance for its last night were Gill, Crawley, Berry Dytrail,
Sheontae Kennedy, and Ashley Hanson. At approximately 1:30 a.m., the bar
turned on its lights and began asking its patrons to leave. Around this same
time, Gill and Hanson exited the tavern after Kennedy was removed due to an
altercation with another guest over a spilled drink. A large crowd,
approximately thirty to fifty people, milled outside of the Futuristic Lounge as

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it closed.
At 2:15 a.m., across the street from the Futuristic Lounge, a group of
men in a green SUV pulled into a gas station. Gill recognized his friend
Marcus Parker among those men. Gill, along with Hanson, walked across the
street to the gas station. Gill told the group that Kennedy wanted to fight and
that he wanted to “go box.” Gill and the group followed Hanson back to the
crowd. At 2:17 a.m., gunshots were fired, hitting Dytrail and Crawley. Dytrail
survived but Crawley was pronounced dead at the scene.
Police officers began arriving on the scene at 2:22 a.m.. In the days that
followed, MPD detectives interviewed approximately twenty fact witnesses
regarding the night of the shooting. One witness was Tromain Collier, who
identified Gill from security video footage of the gas station parking lot.
Detective Peterson spoke with Gill over the phone and left his business card
and contact information with Gill’s mother, Sandra Deberry.
At approximately 7:30 p.m. on February 12, 2013, Gill voluntarily came
to the Milwaukee Police Administration Building to be interviewed. Detectives
Timothy Graham and Erik Gulbrandson conducted the interview. During the
course of the interview, Gill’s recollection of the night of the shooting was
inconsistent. For example, Gill said he was not upset immediately before the
shooting when the video clearly showed that he was upset; that he only met
up with one person at the gas station when the video showed him conversing

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with several people at the gas station; that he was standing at one location
before the shooting when he was clearly standing somewhere else; and that
there were not any problems inside the bar, but later stated that he got into
an argument with a woman over a spilled drink. Accordingly, Detectives
Graham and Gulbrandson arrested Gill for obstruction.
Detectives Graham and Gulbrandson read Gill his Miranda rights, at
which time Gill requested a lawyer, which ended the interrogation. While
being transported to booking, Gill expressed a desire to take a polygraph test
and that he wished to waive his right to a lawyer in order to do so. The next
morning at approximately 7:00 a.m., Gill was awakened in his cell by
Detective James Hensley for his polygraph. Prior to the examination,
Detective Hensley reiterated that Gill could not have the polygraph without a
lawyer, unless he waived his right to a lawyer. Gill alleges that he interpreted
this to mean that either he could have a polygraph without a lawyer or he
would not get a polygraph at all. At 7:40 a.m., Detective Hensley began
administering the polygraph. The examination concluded at 2:20 p.m..
At approximately 2:53 p.m., Detectives Peterson and Billy Ball began
to interrogate Gill. After being read his Miranda rights, Gill spoke to the
officers and denied being involved in the shooting. The next morning,
Detective Hensley interrogated Gill once again. Detective Hensley employed
various interrogation techniques, including social isolation, confrontation,

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theme development, and minimization. According to the complaint, Detective
Hensley falsely stated that Gill was identified as the shooter by an
eyewitness. Hensley also coerced Gill to waive his right counsel. Over the
course of the interrogation, Gill professed his innocence more than 140 times,
but in the end, he gave in and confessed. Gill was charged with First Degree
Reckless Homicide.
On February 20, 2014, Judge Rothstein learned that Detectives
Peterson and DeValkenaere each had filed an incident report of witness
interviews conducted over a year earlier. Detective Peterson’s report was
generated from an interview with a witness named Thomas Klitzka. On
February 21, 2014, Judge Rothstein held a hearing to discuss the delayed
disclosure of these interview reports. Detective Peterson’s explanation for the
delay was that it was an error on his part due to the volume of cases he was
working.
On February 24, 2014, Judge Rothstein held a hearing regarding Gill’s
motion to suppress his murder confession. Judge Rothstein determined that
Gill’s arrest was “an appropriate exercise of … authority” in light of the
“inconsistencies” in Gill’s interview answers. Judge Rothstein also concluded
that Gill knowingly and intelligently waived his right to counsel on February
12, 2013. However, Judge Rothstein found that Gill did not understand
whether he had a right to counsel before choosing to take the polygraph

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examination. Thus, the “statements that were made beginning in the morning
of February 13, 2013, and forward” were “not admissible” and “were not
voluntary and his request for counsel was not scrupulously honored.
Therefore, those statements will be suppressed for use by the state in their
case-in-chief.” In light of this ruling, the state chose not to proceed, the case
was dismissed, and Gill was released from custody.
Analysis
To survive a motion to dismiss, the plaintiff must plead enough facts to
state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Adams v. City of
Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). The Court accepts the well-pleaded allegations as true
and draws all reasonable inferences in favor of Gill, the non-moving party.
Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009).
Peterson contends that he is entitled to qualified immunity, which
protects government officials “from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Pearson v. Callahan, 555
U.S. 223, 231 (2009). To determine whether a state official is entitled to

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qualified immunity, the Court asks (1) whether the facts, taken in the light
most favorable to the plaintiff, make out a violation of a constitutional right;
and (2) whether the constitutional right was clearly established at the time of
the alleged violation. Williams v. City of Chi., 733 F.3d 749, 758 (7th Cir.
2013). A right is “clearly established” if “the contours of that right are
sufficiently clear that a reasonable officer would understand that his actions
violate that right – in other words, existing precedent must have placed the
constitutional questions beyond debate.” Williams v. Ind. State Police Dep’t,
797 F.3d 468, 473 (7th Cir. 2015) (quoting Reichle v. Howard, --- U.S. ----, 132
S. Ct. 2088, 2093 (2012)).
First, Gill alleges that the defendants coerced a false confession using
conscience-shocking behavior. “The Supreme Court has recognized that police
conduct that ‘shocks the conscience’ supports a due process claim under § 1983
…, and we have acknowledged that a free-standing due process claim may
succeed in a situation involving conscience-shocking interrogation tactics, …”
Fox v. Hayes, 600 F.3d 819, 841 (7th Cir. 2010) (internal citations omitted).
There is “no clear-cut analysis to determine what constitutes ‘conscienceshocking’ conduct; the question is whether the conduct is ‘too close to the rack
and the screw.’” Fox, 600 F.3d at 841 (quoting Rochin v. California, 342 U.S.
165, 172 (1952)). For example, forcing “an emetic down a person’s throat to
forcibly extract evidence from a suspect’s stomach shocks the conscience,” but

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“lying to, threatening, or insulting a suspect does not, …” Id. (citing Tinker v.
Beasley, 429 F.3d 1324, 1329 (11th Cir. 2005)).
Peterson did not procure Gill’s confession. It was Detective Hensley
who, according to the complaint, “employed various techniques including
social isolation, confrontation, theme development, and minimization to
obtain” Gill’s confession. Complaint, ¶ 31. This is not to say that the complaint
states a claim against Hensley, but not Peterson. On the other hand, if
Hensley did not engage in “conscience-shocking” behavior – the Court
expresses no opinion on whether he did or did not – then neither did Peterson.
Compared to Hensley, Peterson treated Gill with kid gloves.
Indeed, the transcript reveals that Peterson utilized ordinary
interrogation tactics:
DETECTIVE PETERSON: … You have the right to remain
silent. Anything you say can be used against you in a court of
law. You have the right to consult with a lawyer before
questioning, have a lawyer present with you during – if you
cannot afford to hire a lawyer, one will be appointed to represent
you at public expense before and during question [if] you so with.
If you decide to answer the questions now without a lawyer
present – remain silent at any time you wish, the right to ask to
have a lawyer any time you wish during questioning. Do you
understand each of these rights – make a statement. Basically
you’re saying it’s okay.
MR. GILL: Yeah.
DETECTIVE PETERSON: You can stop it whenever you want.
So it’s okay for me to talk to you?

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MR. GILL: Yeah.
DETECTIVE PETERSON: Okay.
Peterson explained at the suppression hearing: “After reading his rights, I
looked at Mr. Gill. Mr. Gill looked at me. I wanted to make sure he understood
each of the rights that were being read to him. I explained to him after
reading his rights that he had pretty much to pick and choose whatever
questions he wanted to ask or answer and that he could stop at any time he
wanted.”
Gill argues that Peterson’s behavior “shocks the conscience” because
Peterson exploited Gill’s obvious and known intellectual limitations. This is
not enough to state a claim for the violation of a clearly established right. The
Supreme Court has “never held” that “police can render a waiver of Miranda
rights involuntary simply by failing to take ‘special care’ that a suspect with a
mental disability understands his rights.” Collins v. Gaetz, 612 F.3d 574, 586
(7th Cir. 2010). If the failure to take “special care” is not enough to render a
Miranda waiver involuntary, it certainly is not enough to meet the very high
threshold of behavior that “shocks the conscience.” See also Young v. Walls,
311 F.3d 846, 850 (7th Cir. 2002) (“It is sufficient [for Miranda purposes] if
the suspect has enough mental capacity to make decisions in daily life”).
Second, Gill alleges that Peterson caused his wrongful arrest and
detention by eliciting a false confession. Peterson, however, did not place Gill

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under arrest or elicit his confession. Even if the complaint plausibly alleged
that Peterson was involved in these incidents, Gill does not dispute (as Judge
Rothstein concluded) that there was probable cause to arrest Gill for
obstruction. Stokes v. Bd. of Ed. of the City of Chi., 599 F.3d 617, 622 (7th Cir.
2010) (“Probable cause is an absolute bar to a claim of false arrest asserted
under the Fourth Amendment and section 1983”). Gill’s argument about the
lack of probable cause to arrest him for murder is misplaced because Gill was
not released and then re-arrested. Instead, Gill remained in custody until he
confessed. The existence of probable cause at the outset precludes any claim
for false arrest. See Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 682 (7th
Cir. 2007) (“probable cause to believe that a person has committed any crime
will preclude a false arrest claim, even if the person was arrested on
additional or different charges for which there was no probable cause”)
(emphasis in original). Gill also cannot shoehorn his false confession claim
into the Fourth Amendment context. See Wallace v. City of Chi., 440 F.3d 421,
429 (7th Cir. 2006) (“We reject the idea of a stand-alone ‘false confession’ claim
based on the Fourth Amendment, rather than the Fifth Amendment or the
due process clauses”).
Third, Gill argues that Peterson violated due process by concealing
exculpatory evidence. Brady v. Maryland, 373 U.S. 83, 87 (1963) (“the
suppression by the prosecution of evidence favorable to an accused upon

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request violates due process where the evidence is material either to guilt or
to punishment, …”). Setting aside the issue of whether the Klitzka interview
report was actually exculpatory,1 Gill’s Brady claim cannot survive because
Gill was never prosecuted. See Ray v. City of Chi., 629 F.3d 660, 664 (7th Cir.
2011) (no Brady claim “when the individual is merely charged with a crime,
but never fully prosecuted”). The Seventh Circuit has “entertained the
possibility that prejudice could be established if an acquitted defendant
showed that disclosure of the suppressed evidence would have altered the
decision to go to trial.” Alexander v. McKinney, 692 F.3d 553, 556 (7th Cir.
2012) (emphasis added). That scenario is different than the one at issue here
because the case against Gill was never brought to trial. Of course, any
uncertainty over whether such a claim is viable – with or without a trial –
demonstrates the absence of a clearly established constitutional right.
Fourth,

Gill

alleges

the

defendants

conspired

to

violate

his

constitutional rights. Peterson argues that this claim should be dismissed
because conspiracy “is not an independent basis of liability in § 1983 actions.”
Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008). Instead, “an actual denial
of a civil right is necessary before a cause of action [for conspiracy] arises.”
Goldschmidt v. Patchett, 686 F.2d 582, 585 (7th Cir. 1982). Gill has failed to
Klitzka stated that he was at the gas station when the homicide occurred, but
did not know where Gill was located and did not see Gill when the shots were being
fired.
1

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state a plausible claim for relief against Peterson, but Peterson could still be
liable in conspiracy if any of the remaining defendants violated Gill’s
constitutional rights. See, e.g., Boothe v. Sherman, 66 F. Supp. 3d 1069, 1077
(N.D. Ill. 2014) (rejecting the argument that state actors can never be liable
under § 1983 for conspiring with each other) (discussing Logan v. Wilkins, 644
F.3d 577, 583 n.1 (7th Cir. 2011)).
For the reasons already stated, Gill cannot state a false arrest claim,
nor can he state a Brady claim. This analysis applies across the board, as a
matter of law, to all of the defendants in this case. Therefore, Gill cannot state
a conspiracy claim with respect to Counts II and III. As to Count I – the
coercive investigation claim – the complaint generically alleges that the
defendants “reached an agreement amongst themselves to coercively
interrogate [Gill] in an extreme and outrageous manner.” Complaint, ¶ 73.
This is an insufficient allegation grounded in “collective responsibility.”
“Although every conspirator is responsible for others’ acts within the scope of
the agreement, it remains essential to show that a particular defendant joined
the conspiracy and knew of its scope.” Bank of Am., N.A. v. Knight, 725 F.3d
815, 818 (7th Cir. 2013). Put another way, Gill fails to plausibly allege that
Peterson helped, assisted, or otherwise conspired with any other defendant to
coercively interrogate Gill.
Fifth, Gill alleges that the defendants failed to intervene to prevent the

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violation of his constitutional rights. As the complaint makes clear, Peterson
was not present when Gill confessed to Detective Hensley. Peterson cannot be
liable for failing to stop a violation of which he was not aware. Yang v.
Hardin, 37 F.3d 282, 285 (7th Cir. 1994) (explaining duty to intervene to stop
violation in an officer’s presence “or otherwise within his knowledge”).
Finally, Gill brings a state law negligence claim against Peterson. The
Court will relinquish jurisdiction over this pendent party claim. RWJ Mgmt.
Co., Inc. v. BP Products N. Am., Inc., 672 F.3d 476, 479 (7th Cir. 2012) (“when
all federal claims in a suit in federal court are dismissed before trial, the
presumption is that the court will relinquish federal jurisdiction over any
supplemental state-law claims”).
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
1.

Peterson’s motion to strike Gill’s sur-reply letter [ECF No. 27] is

DENIED; and
2.

Peterson’s motion to dismiss [ECF No. 17] is GRANTED.

Dated at Milwaukee, Wisconsin, this 9th day of November, 2015.

BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge
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