J.M. et al v. City of Milwaukee et al

Filing 94

ORDER signed by Judge J.P. Stadtmueller on 4/12/2017. 45 Plaintiffs' Motion for Summary Judgment GRANTED. 48 Defendants' Motion for Summary Judgment DENIED. 76 Defendants' Motion for Leave to File Overlong Reply Brief GRAN TED. 85 Defendants' Motion for Leave to File Additional Exhibits Related to Their Reply GRANTED. 62 Plaintiffs' Motion to Seal Documents and 87 Defendants' Motion to Seal Documents GRANTED in part and DENIED in part in accord ance with the terms of this Order. Plaintiffs' Unredacted Brief in Opposition to Defendants' Motion for Summary Judgment (Docket #88) and Response to Defendants' Statement of Facts (Docket #89) to be UNSEALED by the Clerk of Court. See Order for further details. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
J.M. and
ESTATE OF DONTRE HAMILTON,
Plaintiffs,

Case No. 16-CV-507-JPS

v.
CITY OF MILWAUKEE and
CHRISTOPHER E. MANNEY,

ORDER

Defendants.

1.

INTRODUCTION
This litigation arises from the death of Dontre Hamilton (“Hamilton”)

on April 30, 2014. On that date, Hamilton was shot and killed by Defendant
Christopher E. Manney (“Manney”), an officer with the Milwaukee Police
Department (“MPD”), after a physical altercation between the two. Plaintiffs,
Hamilton’s estate and his surviving minor child, filed suit against Manney
and the City of Milwaukee (the “City”) on April 27, 2016. (Docket #1).
On February 1, 2017, the parties each filed motions for summary
judgment. (Plaintiffs, Docket #45; Defendants, Docket #48). As of March 15
and March 17, 2017, each respective motion became ripe for decision. See
(Briefing on Plaintiffs’ motion, Docket #56 and #75; Briefing on Defendants’
motion, Docket #78 and #88). As Plaintiffs’ motion is narrower than
Defendants’, the Court will address it first. The Court discusses the facts
relevant to the respective motions separately, to ensure that the proper
standard of review is preserved for each.

2.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides the mechanism for seeking

summary judgment. Rule 56 states that the “court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A
“genuine” dispute of material fact is created when “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). The Court construes all facts
and reasonable inferences in a light most favorable to the non-movant. Bridge
v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). In assessing
the parties’ proposed facts, the Court must not weigh the evidence or
determine witness credibility; the Seventh Circuit instructs that “we leave
those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688, 691
(7th Cir. 2010). Internal inconsistencies in a witness’s testimony “create an
issue of credibility as to which part of the testimony should be given the
greatest weight if credited at all.” Bank of Ill. v. Allied Signal Safety Restraint
Sys., 75 F.3d 1162, 1170 (7th Cir. 1996) (quoting Tippens v. Celotex Corp., 805
F.2d 949, 953 (11th Cir. 1986)). The non-movant “need not match the movant
witness for witness, nor persuade the court that [their] case is convincing,
[they] need only come forward with appropriate evidence demonstrating that
there is a pending dispute of material fact.” Waldridge v. Am. Hoechst Corp.,
24 F.3d 918, 921 (7th Cir. 1994).
3.

PLAINTIFFS’ MOTION
Plaintiffs seek judgment on their second cause of action, which asserts

that Manney unreasonably searched Hamilton in the course of events
preceding his death. (Docket #1 at 38).
Page 2 of 55

3.1

Relevant Facts

The operative facts of Plaintiffs’ motion are largely undisputed; the
parties’ disagreement is chiefly legal. On October 15, 2014, Milwaukee Chief
of Police Edward A. Flynn (“Flynn”) fired Manney for “failure to have
reasonable suspicion prior to conducting a pat-down search,” and “failure to
adhere to training and procedures regarding Use of Force considerations.”
(Docket #49-1 at 1). That same day, Flynn filed a complaint with the
Milwaukee Board of Fire and Police Commissioners (“FPC”) regarding
Manney’s discharge.1 The complaint stated, inter alia, that Manney “failed to
adhere to [department policy on pat-down searches] when he failed to have
reasonable suspicion that [Hamilton] was armed with a weapon and posed
a threat to him or others prior to conducting a pat-down search, and acted

1

All facts are drawn from Defendants’ response to Plaintiffs’ statement of
facts (Docket #55) unless otherwise noted. Depending on whether a fact has been
genuinely disputed, the Court may rely on Plaintiffs’ fact, Defendants’ response,
or a combination thereof.

Page 3 of 55

contrary to training he received on February 22, 2012, specific to the
engagement of homeless individuals.” (Docket #49-2 at 4).2
Manney appealed his discharge on October 17, 2014. The FPC held a
hearing on the matter spanning from March 19 to March 23, 2015. Plaintiffs
state that the FPC hearing “was essentially a court trial between Manney and
the MPD.” (Docket #55 at 11). Defendants maintain that there were
differences between the hearing and a standard trial, including that the
commissioners were entitled to ask questions of witnesses, and that the
matter was based on an appeal of a disciplinary order and was conducted
according to procedures mandated by state law. Id. at 11-12. Defendants
further assert that the MPD was not a party to the proceeding, but rather it
was solely between Manney and Flynn. Id.
The hearing officer himself stated that “this process is conducted very
much like a court trial.” (Docket #49-4 at 6). The hearing proceeded in two
phases: first, to determine “whether there was in fact a rule violation” by

2

Plaintiffs’ statement of fact on this point is as follows:

In the Complaint, MPD Chief Flynn presented his
conclusion that Manney violated MPD Standard Operating
Procedure (“SOP”) 085.25 Pat-Down Searches, because Manney
“failed to have reasonable suspicion that [Dontre] Hamilton was
armed with a weapon and posed a threat to him or others prior to
conducting a pat-down search …” (Patza Aff. at ¶4, Exhibit B at pp.
2-4).
(Docket #55 at 2). Defendants “do not dispute that the quoted language can be
found on page 4 of the cited complaint.” Id. They go on, however, to offer a nearly
nine-page explanation of why Flynn’s complaint “was based upon incorrect and
incomplete facts.” Id. at 2-10. This is not a “concise response” to a statement of fact,
as required by this District’s Local Rules, nor does it actually dispute the stated
fact. See Civil L. R. 56(b)(2)(B). Defendants’ statements are best left for legal briefs
or their own affirmative statements of fact. Defendants present no such statements
of fact, but they do argue the point in their legal brief. See (Docket #56 at 5-7).

Page 4 of 55

Manney as asserted by Flynn, and second, whether “the discipline [was]
appropriate based on the circumstances of what happened and based on
Officer Manney’s history with the department, his career, his performance,
etc.” Id. at 7-8. Both sides were represented by counsel, gave opening and
closing statements, and offered evidence. The parties introduced exhibits and
elicited witness testimony on direct and cross examination. Manney himself
testified at both phases of the hearing.
The FPC upheld Flynn’s action by unanimous written decision on
April 28, 2015 (the “FPC Decision”). The FPC Decision posed various
“findings of fact” and “conclusions of law” addressing the parties’
presentations at the hearing. The FPC agreed with Flynn that Manney lacked
reasonable suspicion before conducting a pat-down search of Hamilton.
Defendants assert that the FPC Decision relates to compliance with MPD
rules, not the Fourth Amendment, and reassert that Flynn and the FPC’s
decisions were based on incorrect sets of fact. (Docket #55 at 15). The FPC
Decision noted that it “must find by a preponderance of the evidence that
there is just cause to sustain the charges.” (Docket #49-9 at 8). The FPC then
applied seven standards mandated by statute to assist in making that
determination, and found each standard was met by a preponderance of the
evidence. Id. at 8-12. Defendants point out that the FPC had additional
considerations beyond those seven standards, including the seriousness of
Manney’s rule violations, Manney’s work history, and damage to the public’s
trust in the MPD. Id.
Manney appealed the FPC Decision to the Milwaukee County Circuit
Court (the “Circuit Court”) in accordance with state law. Manney and the
FPC were the parties to the appeal. Both parties filed briefs with the Circuit
Court. Manney also filed a petition for writ of certiorari with the Circuit
Page 5 of 55

Court, which was similarly briefed. The Circuit Court issued its decision on
both in a combined order on July 22, 2016.
Therein, it described Manney’s argument against MPD policy, namely
that he felt “it imposes an extra limitation on a police officer’s right to
conduct a weapons pat-down, a limitation that isn’t imposed by the state
statute or constitutional law principle that authorize such searches.” (Docket
#49-12 at 6). MPD policy mandates that to conduct a pat-down search, an
officer must believe that 1) the target poses a threat to the officer’s safety, and
2) the target possesses weapons. Id. at 6. Manney asserted that only the first
element was required by the Supreme Court’s applicable precedent, Terry v.
Ohio, 392 U.S. 1 (1968). The Circuit Court disagreed, citing Terry’s holdings
that an officer must suspect “that the persons with whom he is dealing may
be armed and presently dangerous.” Id. at 30. It further found that Wisconsin
law is consistent with Terry. (Docket #49-12 at 7). The Circuit Court
concluded that MPD policy did not conflict with the constitutional
prerequisites of a pat-down search, and thus the FPC did not apply an
improper legal standard to its decision in that regard. Id. at 8.
As to the facts of Manney’s appeal, the Circuit Court discussed the
parties’ vigorous disputes thereof. Id. at 9-13. The Circuit Court noted that it
was not at liberty “to weigh the evidence anew; the [FPC’s] choice of which
evidence to accept [or reject] is conclusive.” Id. at 9-10. It ultimately
concluded that the Decision had an adequate factual basis. Id. at 13. Manney
appealed that order on August 11, 2016, but only as it related to his petition
for a writ of certiorari. See Christopher E. Manney v. Bd. of Fire & Police
Comm’rs for the City of Milwaukee, 2016-AP-1598, Case History, available at:
https://wscca.wicourts.gov. That appeal is still pending. Id.

Page 6 of 55

3.2

Analysis

Plaintiffs argue that, in light of the Decision and Manney’s
unsuccessful appeals thereof (the “Discharge Proceedings”), Manney must be
precluded from contesting whether he had reasonable suspicion to conduct
a pat-down search of Hamilton. The direct basis for their motion is the
Circuit Court’s July 22, 2016 judgment and order (the “Judgment”). This
Court must give a state court judgment preclusive effect just as it would a
federal judgment, and because the Judgment was issued by a Wisconsin
court, it must apply Wisconsin’s law on preclusion. See First Weber Group, Inc.
v. Horsfall, 738 F.3d 767, 772 (7th Cir. 2013); Donald v. Polk County, 836 F.2d
376, 382 (7th Cir. 1988).
Issue preclusion prevents a party from re-litigating “an identical issue
of law or fact in a subsequent action.” Mrozek v. Intra Fin. Corp., 699 N.W.2d
54, 61 (Wis. 2005). The doctrine “wards off endless litigation, ensures the
stability of judgments, and guards against inconsistent decisions on the same
set of facts.” Gentilli v. Bd. of Police & Fire Comm’rs of City of Madison, 680
N.W.2d 335, 344 (Wis. 2004). There are two requirements for issue preclusion
to take effect. First, “the question of fact or law that is sought to be precluded
actually must have been litigated in a previous action and be necessary to the
judgment.” Id. Second, the Court must “conduct a fairness analysis to
determine whether it is fundamentally fair to employ issue preclusion given
the circumstances of the particular case at hand.” Id. The Court will address

Page 7 of 55

each requirement below, as well as Defendants’ other arguments in
opposition to Plaintiffs’ motion.3
3.2.1 Actually Litigated and Necessary to the Judgment
The reasonableness of Manney’s pat-down search of Hamilton was
actually litigated at each stage of the discharge proceedings. An issue is
“actually litigated” when “it is ‘properly raised, by the pleadings or
otherwise, and is submitted for determination, and is determined.’” In re
Estate of Felt, 647 N.W.2d 373, 376-77 (Wis. Ct. App. 2002) (quoting
Restatement (Second) of Judgments § 27 cmt. d (1980)). First, Flynn’s
discharge order stated directly that Manney’s search was unreasonable.
Second, after holding an evidentiary hearing on the matter, the FPC found
that a preponderance of the evidence supported Flynn’s decision. Finally, the
Circuit Court’s Judgment found that the FPC Decision had an appropriate
basis in fact and law. While the propriety of the search was not the only issue
addressed in the Discharge Proceedings, it was their primary focus. At each
stage of the Discharge Proceedings, the presiding authority expressly decided
that Manney’s search was unreasonable.
Defendants argue that while the reasonableness of the search was at
issue in the Discharge Proceedings, it was assessed in light of Manney’s
violation of MPD policy. They maintain that none of the decisions held that
the search was unreasonable pursuant to constitutional standards.

3

Preliminarily, Plaintiffs argue that they are entitled to use issue preclusion
offensively against Manney in this manner. (Docket #46 at 8). They anticipate that
Manney will oppose their motion because they were not a party to the disciplinary
proceedings. Id. Defendants gesture at that position in their factual briefing,
(Docket #55 at 11-13), but they have not advanced any supporting legal argument,
see generally (Docket #56), so the Court treats Plaintiffs’ proposition as given. See
Michelle T. by Sumpter v. Crozier, 495 N.W.2d 327, 335 (Wis. 1993).

Page 8 of 55

Specifically, Defendants contend that the Fourth Amendment reasonableness
analysis reviews the totality of the circumstances presented to the officer at
the time of the search, while Flynn and the FPC considered subsequent events
in arriving at their conclusions. Thus, in Defendants’ view, no preclusive
effect can attach to the Judgment.
As the Judgment shows, Defendants are incorrect. The Circuit Court
held that MPD policy, Wisconsin law founded on Terry, and Terry itself all
held Manney to the same reasonableness standard for his pat-down search.
(Docket #49-12 at 6-8). Based on that uniform standard, the Circuit Court
went on to affirm the FCP’s determination that the search was unreasonable.
Id. at 9-13. Though this was admittedly based on a deferential standard of
review, that does not change the fact that the reasonableness issue was
actually litigated in line with Terry and the Fourth Amendment.
The Court further notes that it must focus on the Judgment itself, as
issue preclusion may only attach to a judgment. See Mrozek, 699 N.W.2d at 61
(“In order for issue preclusion to be a potential limit on subsequent litigation,
the [issue] actually must have been litigated in a previous action and be
necessary to the judgment.”) (emphasis added).4 Defendants barely mention
the document, instead leveling criticism at Flynn and the FPC for applying an
improper legal standard. Even assuming their focus on Flynn and the FPC
was correct, it is meritless. The Seventh Circuit recently articulated the Terry
standard as simply “requiring the officer to hold a reasonable suspicion that
the subject is ‘armed and dangerous[.]’” United States v. Williams, 731 F.3d
4

The posture of preclusion is curious in this case, because the “trial” of the
Discharge Proceedings actually occurred in the FPC hearing. A court judgment is
necessary for preclusion to attach, and that was issued in Manney’s “appeal.”
Nevertheless, as discussed below, Defendants do not argue that this unusual
setting renders issue preclusion inapplicable.

Page 9 of 55

678, 686 (7th Cir. 2013) (quoting Terry, 392 U.S. at 27). Flynn’s discharge order
nearly parroted that language. The FPC decision applied the MPD policy,
which as already noted matched Terry’s rule. (Docket #49-9 at 10) (“The
policy allows for a pat-down for weapons if the [officer] believes the suspect
has weapons and poses a threat to the [officer’s] or another person’s safety.”).
No decisionmaker in the Discharge Proceedings considered postincident events in evaluating Manney’s compliance with this standard. At his
deposition in this matter, Flynn consistently testified that Hamilton’s death
was a factor bearing on punishment, not Manney’s reasonable suspicion (or
lack thereof). (Docket #61-6 at 35:15-36:5) (“Also, you know, this may come
up otherwise, but every officer who is found not to’ve had articulable
suspicion is not subject to firing. In the code of conduct we have also has in
it aggravating and mitigating factors. And one of the most significant
aggravating factors is the ultimate degree of harm that arose from your error.
. . . [T]he degree of harm was a loss of life.”); see also id. at 143:5-10 (“Given
the fact that, ultimately, the degree of harm was death, that’s why the
punishment was termination.”). Similarly, the FPC Decision limits its
discussion of post-incident events to evaluating whether Flynn’s decision to
terminate Manney was appropriate. (Docket #49-9 at 11-12).5 Finally, the
Judgment separated its analysis on Manney’s reasonable suspicion and the
propriety of his discharge. (Docket #49-12 at 9-13, 19-21).

5

The FPC apparently wished to ward off Defendants’ argument, concluding
its Decision by stating: “It should be noted that we have taken special care to guard
against ‘hindsight bias’ and have focused on what Manney stated he knew and
observed at the time of the incident.” (Docket #49-9 at 12). Though the comment
appears at the end of FPC Decision, it seems primarily addressed at the reasonable
suspicion analysis.

Page 10 of 55

At all stages of the Discharge Proceedings, then, the same pat-down
search standard was applied to Manney’s conduct. To the extent Defendants
continue to argue that the standard was wrong, or that it was incorrectly
applied to Manney, this is precisely what issue preclusion is meant to
prevent.6 The issue was essential to the Judgment and the rest of the
Discharge Proceedings and cannot be re-litigated here. Similarly, Defendants
cannot re-litigate the facts upon which Flynn’s discharge order, the FPC
decision, or the Judgment itself were based. Their time to argue that the
“totality of the circumstances” favored Manney was in those proceedings.
3.2.2 Fundamental Fairness
Having established that the reasonableness of Manney’s search was
actually litigated in the Discharge Proceedings and was necessary to the
Judgment, the Court moves to the Mrozek fairness analysis. Wisconsin courts
weigh a number of factors in assessing fairness, including:
(1) whether the party against whom preclusion is sought could
have obtained review of the judgment;
(2) whether the question is one of law that involves two distinct
claims or intervening contextual shifts in the law;
(3) whether there are apt to be significant differences in the
quality or extensiveness of the two proceedings such that
relitigation of the issue is warranted;
(4) whether the burden of persuasion has shifted such that the
party seeking preclusion had a lower burden of persuasion in

6

Manney’s position in the Discharge Proceedings was that the second
requirement of the MPD policy, a belief that a suspect is armed, is imaginary.
(Docket #55 at 17-18). Defendants’ current position is that it is not a proper
statement of constitutional law. They maintain that Terry requires a suspicion that
a suspect may be armed, not a suspicion that a suspect is armed. (Docket #55 at
18-19).

Page 11 of 55

the first trial than in the second; and
(5) whether matters of public policy or individual
circumstances would render the application of issue preclusion
fundamentally unfair, including whether the party against
whom preclusion is sought had an inadequate opportunity or
incentive to obtain a full and fair adjudication of the issue in the
initial litigation.
Mrozek, 699 N.W.2d at 61-62. Factors one, two, and four are questions of law,
and factors three and five require exercise of the Court’s discretion. Id. at 62.
As to the first factor, Manney has exhausted all review of the
Discharge Proceedings. His appeal to the Circuit Court, and the resulting
Judgment, are the final say on the matter pursuant to the governing
Wisconsin statutes. Wis. Stat. § 62.13(5)(b) (allowing Flynn to file charges
against Manney), (d)-(em) (establishing FPC hearing procedure), and (I)
(permitting appeal to the Circuit Court, stating that “[i]f the order of the
[FPC] is sustained it shall be final and conclusive.”). Manney has utilized all
levels of review available to him.
Defendants counter that Manney is in fact appealing the Judgment. As
noted previously, this matter is currently pending in the Wisconsin Court of
Appeals. Yet Defendants’ position obscures the nature of the appeal. When
Manney took the Discharge Proceedings to the Circuit Court, he filed two
actions, one for review of the FPC Decision pursuant to the above-cited
Wisconsin statute, and another for a writ of certiorari. See (Statutory Review,
Case No. 2015-CV-3881, Docket #49-10; Writ, Case No. 2015-CV-5081, Docket
#49-11). The Circuit Court consolidated the cases for purposes of issuing its
Judgment. His currently pending appeal is of the denial of certiorari, not of
the Circuit Court’s affirmance of the FPC Decision. (Docket #57-5 at 1, 10)

Page 12 of 55

(citing the writ action case number, and introducing the appeal as “a
Certiorari appeal”).
The Gentilli case is instructive, where a similar scenario unfolded.
Gentilli, a fire department employee, was charged with possessing and using
cocaine by the fire chief. Gentilli, 680 N.W.2d at 337. The charges were heard
by the FPC, which confirmed the charges and recommended firing him. Id.
Gentilli then filed two parallel cases in the circuit court, as did Manney: one
for his statutory appeal, pursuant to Section 62.13(5)(I), and one for a writ of
certiorari. Id. The circuit court ruled on the statutory appeal first and
concluded, as did our Circuit Court, that the discharge was supported by just
cause. Id. at 337-38. The circuit court then dismissed the certiorari action
because “all of the issues raised in the petition were encompassed within the
scope of the companion statutory appeal.” Id. (quotation marks omitted).
Gentilli appealed the dismissal of his certiorari action. Id.
The Gentilli court cited Section 62.13(5)(I) in holding that the circuit
court’s disposition of the statutory appeal was final and not subject to further
review. Id. at 338-39. The court’s main purpose was to determine whether a
separate certiorari action was permitted in light of the 1993 amendments to
the statutory action procedure (holding that it was allowable). Id. at 339-45.
Relevant to our purposes, the court went on to find that in the case of parallel
statutory and certiorari actions, an appeal of the certiorari action is strictly
limited to whether the FPC “kept within its jurisdiction and proceeded on a
correct theory of the law.” Id. at 344. As confirmed late last year, this means
that when parallel actions are pursued, and the statutory appeal fails in the
circuit court, the employee cannot re-argue whether he violated the
applicable departmental rules on certiorari appeal. Vidmar v. Milwaukee City
Bd. of Fire Police Comm’rs, 889 N.W.2d 443, 449 (Wis. Ct. App. 2016); see also
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Umhoefer v. Police and Fire Comm’n of City of Mequon, 552 N.W.2d 412, 415-16
n.4 (Wis. Ct. App. 2002) (“Umhoefer filed both a statutory review pursuant
to Wis. Stat. § 62.13(5)(I) and a certiorari review before the circuit court.
However, this court is limited to those issues brought under certiorari review
. . . . [I]f a circuit court sustains the commission’s determination, the
commission’s decision ‘shall be final and conclusive.’ Thus, this court is
without jurisdiction to review Umhoefer’s claims brought pursuant to §
62.13(5).”).
Manney’s pending appeal, then, is quite limited, and he cannot use it
to challenge the FPC’s or Circuit Court’s determination that he lacked
reasonable suspicion to search Hamilton. Defendants might have contended
that the remaining avenues to challenge the FPC Decision, jurisdiction and
applying an incorrect theory of law, work to keep the question unsettled.
Plaintiffs attempt to head this argument off at the pass, stating in their
opening brief that the FPC’s jurisdiction is not subject to challenge (as noted
above, it is provided by statute), and that the “theory of law” at issue is
whether Manney was properly discharged, not whether his search of
Hamilton was reasonable. Defendants make no attempt to respond to these
points; their entire argument is to cite to Manney’s appellate briefs in the
certiorari action, wherein he contends that “the FPC proceeded on incorrect
theories of law and that he was denied Due Process of law, and that
therefore, the decisions of the circuit court and the FPC should be reversed
in all respects.” (Docket #56 at 2). Such an underdeveloped position, which
fails to meaningfully address Plaintiffs’ contentions, is at best unpersuasive,
and at worst concedes the point. See Palmer v. Marion County, 327 F.3d 588,
597-98 (7th Cir. 2003) (failing to present an argument to the district court may
result in the argument being waived or, in the case of a plaintiff, the relevant
Page 14 of 55

claim being deemed abandoned). In light of Defendants’ lacking argument,
the finality of the statutory appeal, and the interaction of the statutory and
certiorari appeals, the Court finds that Manney’s pending appeal does not
affect the finality of the Judgment with respect to the reasonableness of his
search.
Returning to the fairness factors, the second factor has already been
resolved. The law applied in the Discharge Proceedings was both internally
consistent and in accordance with Supreme Court precedent. See supra Part
3.2.1. The third factor also favors Plaintiffs. The FPC hearing had all the
makings of a court trial and gave Manney a forum to present his case nearly
identical to that which he would receive in this Court. Likewise, his appeal
to the Circuit Court functioned similarly to an appeal from a trial court. Other
than passing references to potential inadequacies in their response to
Plaintiffs’ statement of facts, (Docket #55 at 11-12), Defendants raise little
concern with the quality or extensiveness of the Discharge Proceedings. The
Court must conclude that Defendants’ lack of opposition is a tacit agreement
that the Discharge Proceedings afforded Manney adequate process.
Defendants do, however, note one difference between the Discharge
Proceedings and normal civil litigation: the qualified immunity defense.
Manney asserts the defense here, where he could not in the Discharge
Proceedings. This observation, while true, is of no moment. As discussed
below, Manney is not entitled to qualified immunity at this juncture. See infra
Part 4.2.5. The facts describe a violation of Hamilton’s constitutional right to
be free of a suspicionless search, and that right was clearly established by
Terry nearly fifty years ago.
Defendants do not mention the fourth factor. Again, without
opposition, the Court finds that it favors Plaintiffs. Plaintiffs’ burden of proof
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in this Court is no greater than that imposed on Flynn in the Discharge
Proceedings. Plaintiffs must prove that Manney’s search was unreasonable
by a preponderance of the evidence. Seventh Circuit Pattern Civil Jury
Instruction 1.27. After its hearing, the FPC was bound to assess whether there
was “just cause” for Manney’s discharge. Wis. Stat. § 62.13(5)(em). One of the
seven standards it applied (see supra pg. 5) was “[w]hether [Flynn] discovered
substantial evidence that the [Manney] violated the [MPD search policy].” Id.
The Court concludes that the need for “substantial” evidence was at least as
burdensome as establishing the unreasonableness of the search as “more
probably true than not true.” Seventh Circuit Pattern Civil Jury Instruction
1.27.
As to the fifth factor, neither public policy nor Manney’s circumstances
make the application of issue preclusion unfair in this instance. Gentilli
explained the policy basis for making Manney’s statutory appeal final at the
circuit court level:
The public policy undergirding the finality of the
statutory appeal is to balance the benefits of a speedy judicial
process against the right of an accused to mount a full defense.
Finality limits the negative effects on public employees of long,
drawn-out proceedings while allowing the accused a fair
hearing.
Gentilli, 680 N.W.2d at 339. The FPC hearing gave Manney a fair hearing,
allowing him to mount his defense as he chose (save for qualified immunity).
His incentive to fully and fairly litigate the reasonableness of his search could
scarcely have been greater, as he was seeking to continue his thirteen-year
career as a police officer and absolve himself of serious charges.
In sum, it is fundamentally fair to apply issue preclusion on the
reasonableness of Manney’s search of Hamilton. That issue was fully litigated
Page 16 of 55

in the Discharge Proceedings and was resolved against Manney in a final
judgment. Allowing Manney to re-litigate the issue here threatens
inconsistency between the Judgment and the outcome of Plaintiffs’
unreasonable search claim in this case.
3.2.3 Subsequent Remedial Measure
Defendants’ only remaining argument is that the entirety of the
Discharge Proceedings are inadmissible in this matter as a subsequent
remedial measure. Federal Rule of Evidence (“FRE”) 407 prohibits admission
of evidence of “measures [ ] taken that would have made an earlier injury or
harm less likely to occur” to prove negligence or culpable conduct: in this
case, using the Discharge Proceedings to prove the unreasonableness of
Manney’s search. Fed. R. Evid. 407. Defendants’ theory fails for
misapprehension of the “remedial measure” at issue. Plaintiffs’ request for
issue preclusion is based the Discharge Proceeding findings that Manney’s
search was unreasonable. This is not itself a remedial measure; the remedial
measure was Manney’s termination.7
An excellent explanation of this issue is given by Judge Simon from the
District of Oregon. Aranda v. City of McMinnville, 942 F.Supp.2d 1096 (D. Ore.
2013). In Aranda, the court was faced with a similar scenario: a police
department conducted a “use of force review” after an officer allegedly used
excessive force on an arrestee. Id. at 1100, 1102. The defendants sought to

7

Defendants seem to acknowledge as much: “Clearly, the decision of Chief
Flynn to discharge Officer Manney from MPD service was a subsequent remedial
measure.” (Docket #56 at 11) (emphasis added). Additionally, “the actions of the
Chief of Police and the FPC in terminating Officer Manney’s employment was a
disciplinary measure taken which would arguably have made Mr. Hamilton’s
injury or harm less likely to occur.” Id. at 12. (emphasis added).

Page 17 of 55

strike that evidence from the summary judgment record as violating, inter
alia, FRE 407. Id. at 1102. The court described the applicable law:
By it terms, this rule is limited to measures that would
have made the harm less likely to occur; it does not extend to
post-incident investigations into what did occur. “The reason
[for finding Rule 407 inapplicable] is that such reports or
inspections are not themselves remedial measures, and do not
themselves even reflect decisions to take or implement such
measures.” Christopher Mueller & Laird Kirkpatrick, 2
FEDERAL EVIDENCE § 4:50, at 77 (3d ed. 2007). Although
“such reports or inspections might represent the first or most
preliminary steps that might eventually lead to decisions to
make or implement changes,” they are not themselves excluded
under Rule 407. Id.; accord Brazos River Auth. v. GE Ionics, Inc.,
469 F.3d 416, 429-32 (5th Cir. 2006); Prentiss & Carlisle Co., Inc.
v. Koehring–Waterous Div. of Timberjack, Inc., 972 F.2d 6, 10 (1st
Cir. 1992) (“The Rule prohibits ‘evidence of ... subsequent
measures,’ not evidence of a party’s analysis of its product. . .
.The fact that the analysis may often result in remedial
measures being taken (as occurred here) does not mean that
evidence of the analysis may not be admitted.”); Rocky
Mountain Helicopters, Inc. v. Bell Helicopters Textron, 805 F.2d
907, 918-19 (10th Cir. 1986) (“It would strain the spirit of the
remedial measure prohibition in Rule 407 to extend its shield to
evidence contained in post-event tests or reports. . . .[S]uch
tests are conducted for the purpose of investigating the
occurrence to discover what might have gone wrong or right.
Remedial measures are those actions taken to remedy any
flaws or failures indicated by the test.”).
County Defendants point out that the Ninth Circuit has
applied Rule 407 in an excessive force case to exclude evidence
regarding a police department’s internal disciplinary
proceeding. See Maddox v. City of L.A., 792 F.2d 1408, 1417 (9th
Cir. 1986). There is a distinction, however, between the actual
disciplining of officers for their conduct, which could constitute
a remedial measure, and the investigation that precedes a
disciplinary process. See, e.g., Wilson v. Beebe, 770 F.2d 578, 590
(6th Cir. 1985) (Rule 407 does not exclude a post-shooting
Page 18 of 55

report prepared by police department because “[t]he report did
not recommend a change in procedures following the shooting;
it was a report of that incident and nothing more”); cf. Specht
v. Jensen, 863 F.2d 700, 701–02 (10th Cir. 1988) (citing Maddox in
applying Rule 407 to city’s press release that acknowledged
officers had exercised poor judgment and reported that
disciplinary action would be taken: “[t]he release thus sets out
remedial measures taken by the City to prevent the recurrence
of the poor judgment the investigation revealed, and is
therefore within the ambit of Rule 407”).
Id. at 1103-04; see also In re Chicago Flood Litig., No. 93-C-1214, 1995 WL
437501, at *5 (N.D. Ill. July 21, 1995) (“City statements regarding the actions
of its employees are not themselves remedial; instead, they merely explain
why the city elected to pursue disciplinary action. The court will consider a
request by the city to redact references to disciplinary actions taken against
particular employees from any statement offered by plaintiffs.”); see Brazos
River Auth. v. GE Ionics, Inc., 469 F.3d 416, 430-31 (5th Cir. 2006) (“[B]y
themselves, post-accident investigations would not make the event ‘less likely
to occur;’ only the actual implemented changes make it so.”).
The Court concurs in Aranda’s assessment of FRE 407 in this context.
Put another way, the fact that Manney was fired is irrelevant to the
reasonableness of his search. The remedial act—firing Manney—is not
inextricably intertwined with the investigation leading to that act, namely the
determination in the Discharge Proceedings that his search was unreasonable.
Flynn and the FPC decided Manney’s “liability,” that he violated the MPD
search policy by unreasonably searching Hamilton, first. They then
determined, using post-incident events having no bearing on “liability,” that
his punishment should be discharge from the MPD. Per the text of FRE 407,
Manney’s firing “would have made [Hamilton’s] injury . . . less likely to

Page 19 of 55

occur,” but the individual determination that he lacked reasonable suspicion
in this case would not. Fed. R. Evid. 407.
Finally, permitting admission of this evidence comports with the spirit
of FRE 407. Its “major purpose is to avoid discouraging injurers from taking
such remedial measures as the accident may suggest would be appropriate
to reduce the likelihood of future accidents—and discouraged they would be
if they were penalized in court by having the measures treated as a confession
of fault in not having been taken earlier.” Kaczmarek v. Allied Chem. Corp., 836
F.2d 1055, 1060 (7th Cir. 1987). Defendants characterize the issue as “the City
of Milwaukee [being] forced to incur civil liability as a direct result of the
attempt by Chief Flynn and the FPC to prevent future harm to the public.”
(Docket #56 at 12). The MPD and the City are not being “penalized in court”
for the action that was meant to protect the public from future harm—firing
Manney.
3.3

Conclusion

In light of the foregoing, Plaintiffs’ motion for summary judgment
must be granted.
4.

DEFENDANTS’ MOTION
Defendants seek judgment in their favor on each of Plaintiffs’ claims

and request dismissal of this lawsuit in its entirety.
4.1

Relevant Facts

The Court begins with a timeline of the relevant events, and concludes
with a discussion of Manney’s relevant training and experience. The Court

Page 20 of 55

discusses the parties’ disputes where appropriate.8
4.1.1 Events of April 30, 2014
On April 30, 2014, at about 1:54 p.m., Officers Robert Fitchett
(“Fitchett”) and Andrew Fuerte (“Fuerte”) received a call to conduct a
welfare check on someone in Red Arrow Park (the “Park”).9 They discovered
Hamilton lying down near the Red Arrow monument. They asked Hamilton
to stand up and present identification, and also asked if he needed any help.
Hamilton complied and responded that he did not need help. Fitchett and
Fuerte found Hamilton to be “very cordial.” (Docket #61-12 at 15:14-21). They
found that Hamilton was not doing anything illegal or bothering anyone, so
they left him alone and departed the Park.
Shortly after driving away, they received a request to return to the
Park. A Starbucks employee, working at a store in the Park, had made
another call about a person in the Park.10 The employee in question, Jennifer
Kraemer, called the MPD’s non-emergency line and did not specifically
request for an officer to come. Fuerte went to speak with Hamilton, while
Fitchett contacted Kraemer. Kraemer said that Hamilton was not causing a
disturbance, though his presence was uncomfortable for her and the store’s
customers. Fitchett told Kraemer that Hamilton “had the right to be in the

8

As before, unless otherwise noted, these facts are drawn from the parties’
statements of fact and responses thereto. See supra note 1. The Court also observes
that Defendants have offered a “reply” in support of their own statement of facts.
(Docket #83). This document is neither contemplated nor permitted by this
District’s Local Rules. See Civil L. R. 56(b)(3). The Court has therefore ignored it.
9

The Park is less than a half mile northwest of this District's courthouse as
the crow files.
10

The store was temporarily located in a trailer in the Park.

Page 21 of 55

park just as they did. . . . He’s not breaking any law.” (Docket #61-12 at 18:1419:16). Fitchett and Fuerte then apparently left the Park again.
Manney, a thirteen-year veteran of the MPD, was also patrolling
downtown Milwaukee that day. His patrol area included the Park. At about
3:25 p.m., Manney was finishing a service call and checked his phone for
messages. He had a voicemail from desk sergeant Keith Cameron
(“Cameron”), who directed Manney to check on an issue in the Park.
Cameron’s voicemail stated:
Chris, this is Keith. Just got a call from your people there
at the Starbucks at Red Arrow Park. Apparently they have a
trailer they’re operating out of now. They say there’s a
homeless guy that’s sleeping alongside the trailer there if you
want to check on him. Black male, 30 to 40 years old, wearing
a blue (unintelligible) or navy coat and navy jeans. And kind of
take a peek on him. I'll give it to the dispatcher, too, so it’s on
the board. Bye.
(Docket #61-2 at 13:17-14:1).
Manney was familiar with that location and the employees who
worked there, and he maintains that those employees would only call the
police if they felt the situation was concerning for them. Manney had
previously responded to calls of disorderly, aggressive homeless persons in
the Park. He suspected the same might be true of this situation, and thus
described it as a “trouble with suspect” call.11 Plaintiffs note that Manney had
no indication at that time that Hamilton had caused any trouble in the Park,
and that accordingly Manney should have characterized the call as a “welfare
check.” They also cite Kraemer’s testimony that she previously heard Manney
make a disparaging remark about homeless people, though Defendants
11

Manney’s characterization was made to the police dispatcher. (Docket #52

at 3).

Page 22 of 55

maintain that her recollection is not ironclad and the statement probably
occurred well before April 30, 2014.
Manney decided to go to the Park. He parked his squad car south of
the park and walked north towards the Starbucks trailer. Manney was
dressed in his full MPD uniform and was armed with a wooden baton and
a semi-automatic pistol. As he approached the trailer, Manney observed
Hamilton lying on his back on the concrete pathway. Manney believed the
concrete would be a cold surface to lie on given the 50 degree temperature
that day, but Plaintiffs deny that he knew whether the concrete was cold.
Hamilton was lying on a blanket near the Red Arrow monument in the center
of the park. He was flat on his back, save for his left knee being bent upward
and twitching, and his palms were open and facing upward. Within arm’s
reach of Hamilton was a backpack. Hamilton’s eyes were closed and Manney
assumed he was sleeping.
Given Hamilton’s appearance and location, Manney believed he might
be homeless. Manney knew that homeless people often have trouble sleeping
outside because they are vulnerable to criminals, so they try to sleep in or
near businesses to gain some measure of protection. Manney further
suspected that Hamilton was suffering from mental illness or the effects of
alcohol or drugs, in light of his leg twitch and unusual posture. Manney
concluded that Hamilton was likely the person referenced in Cameron’s
voicemail. Manney characterizes Hamilton’s conduct as “disorderly,” while
Plaintiffs deny he had or was currently engaging in behavior which would
violate a disorderly conduct law. Manney counters that sleeping in a public
park is a county ordinance violation.
Manney felt it was best to contact the Starbucks employees first. As he
approached the trailer, he came within three or four feet of Hamilton’s head.
Page 23 of 55

When he did, Hamilton opened his eyes. Manney states that Hamilton had
a dazed, unfocused look, while Plaintiffs maintain that Manney had no idea
what Hamilton was thinking when he opened his eyes or whether his eyes
were focused. Hamilton’s reaction caused Manney to again suspect mental
illness or the involvement of drugs or alcohol. Plaintiffs deny this, attributing
Hamilton’s reaction to having been bothered by an MPD officer for the third
time in the past hour.
Though Manney did not see Hamilton in crisis or behaving violently,
Manney felt he should check on him anyway. Plaintiffs question this desire
to “check” on Hamilton, considering that Manney characterized the call as
one of “trouble with suspect” rather than as a “welfare check.” This
characterization came well before Manney had seen any “trouble” from
Hamilton. Because Hamilton had opened his eyes, Manney decided to talk
with him first, before speaking with the Starbucks employees. Manney
thought a conversation might reveal whether Hamilton had a mental health
issue or otherwise needed assistance. Manney had previously dealt with
homeless people numerous times and often directed them to support services
in the community. Plaintiffs again deny that Manney merely wanted to
“check” on Hamilton and note that he did not present himself as needing
assistance from Manney.
Manney bent over and said “[h]ey partner. Milwaukee police here. You
need to stand up. We need to have a quick chat.” (Docket #52 at 7). He was
still about three feet from Hamilton at the time. Manney claims he was being
friendly, though Flynn’s later investigation determined that Manney had
approached Hamilton as a criminal suspect. Manney admits that his
statement was an order to Hamilton to stand up. (Docket #61-3 at 139:3-16).
Manney, in any event, believed that his order was lawful. He does not
Page 24 of 55

dispute that he was detaining Hamilton at that point. (Docket #84 at 1).
Hamilton then stood up without assistance.
The parties disagree on the next sequence. Manney claims that
Hamilton, of his own accord, turned his back on Manney and raised his arms
straight out from his sides. To Manney, this suggested that Hamilton was
familiar with police contact and pat-down searches. Plaintiffs cite Manney’s
contrary statement to the Police Administration Bureau given that same day
(the “PAB Statement”). As memorialized in an MPD incident report, Manney
described that Hamilton stood up and turned away from him. (Docket #61-7
at 4). Manney then approached Hamilton and told him he was going to do
a pat-down search. Id. Manney reached under Hamilton’s arms to raise them
and Hamilton apparently did not resist. Id. At his deposition, Manney
disputed the exact content of the report, but admitted that “technically my
arm would have lifted [Hamilton’s] a little bit, but it was for me to get my
hand so I could pat his chest[.]” (Docket #61-3 at 146:15-152:24). The parties
further disagree on whether Manney had reasonable suspicion to search
Hamilton, but because that issue has already been resolved in Plaintiffs’
favor, the Court will not address their positions in detail.
Manney moved in to complete the pat-down search. He reached his
arm around Hamilton, under his arms, to feel Hamilton’s right breast and left
side near the waistline. Manney felt this contact would show whether
Hamilton was tense or his heartbeat was elevated. The touching reveled that
neither proposition was true. As he first touched Hamilton, Manney asked
Hamilton for his name, and Manney claims he said it was “something like
‘Terrell.’” (Docket #52 at 9). Manney says he was attempting to build rapport
with Hamilton. Plaintiffs assert that Manney’s touching was meant only to
complete his desired pat-down search, not build rapport. Further, Hamilton
Page 25 of 55

had provided his true name to other officers earlier that day, so it is unlikely
that he intentionally misidentified himself to Manney (whom he did not
know); to Plaintiffs, it is more probable that Manney simply misheard
Hamilton.
Manney’s usual pat-down method was to begin with the person’s
waistline. Before moving his hands from their locations on Hamilton’s chest
and side, Manney asked Hamilton if he possessed anything which could
injure Manney. He stated words to the effect of ““Hey Terrell, you don’t have
any knives, needles or guns. . . [.]” Id. at 10. Manney states that he could not
finish his statement, because at the word “guns,” Hamilton brought his arms
down, locking Manney’s forearms between his arms and torso. This change
in behavior surprised Manney. Prior to that point, Hamilton had been
cooperative and non-violent.
Hamilton was strong enough to keep Manney’s arms pinned. Manney
pulled and twisted his body in an effort to free himself. He believes he felt
“something hard” in Hamilton’s waistline during this struggle, and thought
that it might be a gun that Hamilton would reach for. Id. at 10. This was later
shown to be impossible; Hamilton did not have a gun or “hard” object in his
waistline area. Throughout this time, Manney said things like “relax,” “stop,”
“buddy, it’s not worth it,” and “Milwaukee police, stop.” Id.
Manney eventually freed his forearms from Hamilton’s grasp. Here
again the parties’ stories diverge. Manney claims that he backed away from
Hamilton. According to Manney, Hamilton spun around and advanced
toward him, fists clenched. Hamilton’s eyes were completely dilated and
unblinking. Manney thought Hamilton was about to hit him with his fists. He
continued to tell Hamilton to stop while stepping backward. Hamilton did
not respond to the commands and looked at Manney with “a thousand yard
Page 26 of 55

stare.” Id. at 11. Manney felt that Hamilton was looking right through him
and did not comprehend what he was being told. Plaintiffs deny Manney’s
story, citing witness accounts who saw Manney chasing Hamilton in the Park
like the two were playing a game. Hamilton was “making a figure eight” and
“zigzagging” like a child. (Docket #61-13 at 12:13-20; Docket #61-14 at 72:1825). They found the situation humorous. (Docket #61-13 at 12:13-20; Docket
#61-14 at 7:18-8:3).
Under either approach to events, Manney and Hamilton eventually
came back to close physical proximity. Manney claims that Hamilton
punched him several times in the head. Plaintiffs counter that Manney denied
head trauma at the emergency room immediately after the incident, and
photos of his injuries taken at the hospital are not consistent with being
repeatedly punched in the head.12 Further, a witness testified that he saw
Manney strike Hamilton first, after Hamilton stopped running away, with his
wooden baton. Manney maintains that after Hamilton struck him first, he hit
back, though it appeared to have little effect on Hamilton.
Manney pushed Hamilton and backed away. He knew that Hamilton
was much stronger than him, given the beginning of the violent portion of
their encounter. In Manney’s view, he was not confident he could win a fist
fight with Hamilton, and needed to get the situation under control, so he
retrieved his baton. Plaintiffs again counter that a witness saw Manney strike
first and that the evidence does not support Manney’s claim of being struck
repeatedly by Hamilton.

12

Manney did end up with a wound on his thumb after the incident, which
he and the emergency room personnel attributed to a human bite. (Docket #64 at
225:4-226:6; Docket #81-1 at 6). Manney assumes it was Hamilton that bit him, but
he did not actually see that happen. (Docket #64 at 225:4-226:6).

Page 27 of 55

The parties’ account of events separates for a final time. Manney
claims that Hamilton again refused to follow his directions. Manney was
forced to hit Hamilton with his baton. Hamilton trapped the baton with his
arm and torso and wrenched it out of Manney’s hands. Once Hamilton had
the baton, Manney punched him again in the jaw, but the strike had no effect.
Hamilton then advanced on Manney, striking him with the baton several
times in the head and neck. Manney continued to give verbal stop commands
to Hamilton which were ignored. Manney was in extreme pain and he felt
that one of the strikes actually fractured his skull. He believed that Hamilton
was trying to either kill him or inflict great injury. Based on this belief,
Manney drew his pistol and again ordered Hamilton to stop. When Hamilton
came toward him again with the baton raised, and in fear for his life, Manney
fired at Hamilton. Manney claims that he thought he saw bullets hitting
Hamilton, but he continued coming forward, so Manney kept firing. He did
not stop shooting until Hamilton was no longer a threat, namely, when he
was on the ground. Flynn has testified that “if someone’s advancing on [an
officer] with a weapon that could do you grievous injury, you can keep
shooting until they stop advancing on you.” (Docket #61-6 at 120:1-3).
Plaintiffs’ paint a different picture of the final moments of the
encounter. They stress that Manney was still chasing Hamilton when he took
out his baton. Witnesses state that Manney held Hamilton and struck him
repeatedly with the baton. Plaintiffs admit that Hamilton eventually got the
baton away from Manney. However, they again cite Manney’s lack of injury
to undermine his assertion that Hamilton used it to hit Manney’s head.
Witnesses variously saw Hamilton holding the baton in a defensive posture,

Page 28 of 55

or they saw him swing it at Manney but the strike failed to connect.13
Plaintiffs also note that a responding officer, Frederick Schroeder, testified
that when he arrived at the scene, Hamilton was on his back, holding the
baton across his chest.
As to the shooting itself, the witnesses disagree. One saw Manney
push away from Hamilton, then Hamilton took a few steps towards him, and
Manney began shooting. At the time, the witness observed Hamilton holding
the baton above his head and waving it around, taunting Manney to come get
it. Others did not see Hamilton advance on Manney. They agree that Manney
and Hamilton were at least ten feet apart when Manney started shooting.
They also remember hearing the events differently; one heard nothing from
Manney, while another thought he said “[s]o you want to fight?” to
Hamilton. (Docket #61-21 at 18:6-8).
Plaintiffs further question Manney’s memory those moments. In his
affidavit, Manney says he believed he fired five times, but later learned that
he had emptied the gun’s magazine. (Docket #52 at 14). In his deposition, he
and Plaintiffs’ counsel argued about his precise memory of each shot. (Docket
#61-4 at 228:21-234:2). Witnesses state that Hamilton was either falling or
already down while Manney continued firing.14 Manney believes these
13

Susan Ford testified that when Hamilton obtained the baton, he held it
close to his body, and she “got the impression that he was trying to protect
himself.” (Docket #61-21 at 17:3-:18:1). She never saw Hamilton raise the baton to
threaten Manney. Id. at 35:6-8. Larry McKenzie saw Hamilton raise the baton and
swing at Manney, but he did not actually see Manney get hit. (Docket #61-13 at
31:11-32:13). Pamela Thomas did not see Hamilton swing the baton. (Docket #61-14
at 62:3-12).
14

During the shooting, one witness verbalized something to the effect of
“[s]top or, you know, [w]hy is [Manney] shooting at [Hamilton]? [Hamilton]’s
already on the ground.” (Docket #61-25 at 26:18-23). Another heard that witness’s
exclamation. (Docket #61-26 at 29:7-14).

Page 29 of 55

witnesses were hearing the reverberations of the shots, and they also may
have misperceived when the shots were actually occurring because he kept
his gun pointed at Hamilton even after he fell. (Docket #61-4 at 230:22231:10). Finally, Plaintiffs point to Hamilton’s autopsy report, which noted
that several bullets entered him at a downward angle, suggesting that
Hamilton was falling or had fallen by the time of those shots. (Docket #61-30
at 35:15-36:6).
4.1.2 Manney’s Training
Defendants do not dispute that Flynn and the FPC both set the City’s
policies with respect to police officer discipline. The City (by its designee)
testified that MPD officers regularly encounter people with mental illness or
who are in a crisis situation. The City further acknowledged that Crisis
Intervention Team (“CIT”) training was meant to improve officer responses
to such people. Another purpose was to reduce incidents of use of force, and
use of excessive force, by MPD officers. CIT training also taught de-escalation
skills, which would assist an officer in appearing as a friend to a mentally ill
person, rather than as a police officer. Role-playing scenarios are also used to
reinforce the principle being taught. The MPD began CIT training in 2005.
In addition to CIT training, the MPD provides training to its officers
on, inter alia, “defensive and arrest tactics, use of force, encountering people
who are mentally ill, encountering people who are in crisis, and encountering
people who are homeless.” (Docket #59 at 82). MPD officers are also trained
on recognizing when subjects have symptoms of mental illness, drug or
alcohol dependency, or other disabilities. The MPD instructs that officers are
entitled to check on people who appear to have these problems for their
welfare and to connect them to appropriate support services. MPD training
includes materials published by the Wisconsin Department of Justice Law
Page 30 of 55

Enforcement Standards Board (“WLESB”). Defendants aver that the MPD’s
training is consistent with WLESB standards.
Manney claims that he received such training. Plaintiffs deny that he
received any specialized training on dealing with the mentally ill. He
admitted as much in his deposition. Though Manney did receive training on
identifying persons in crisis situations, including those with mental illness
crises, he cannot recall the content of that training. Manney’s only recollection
was that the training occurred in 2008 and was taught by a female instructor.
Plaintiffs further note that Manney has not received training on various topics
related to mental health intervention.15
Manney has not received CIT training from the MPD or completed any
mental health training using role-playing exercises. Plaintiffs’ expert on CIT
training, Dr. Douglas Smith (“Smith”), opines that had Manney received such
training, the outcome of the Hamilton incident may have been different. See
(Docket #61-32 at 6). Defendants counter that Karen Dubis (“Dubis”), a
former coordinator of the MPD’s CIT training, disagrees with Smith’s
conclusion. See (Docket #80). Dubis also states that CIT training is not
mandated by the WLESB, and was made available to officers on a voluntary
basis.16

15

These topics are “(a) emotional labeling; (b) identifying the difference
between a person in crisis and a person engaging in criminal behavior, (c) ‘cop
mode’ versus ‘social worker mode’; (d) tactical disengagement; (e) active listening
skills; (f) de-escalation skills; (g) using a slower approach; and (h) evaluating a
person’s capacity to understand a police officer’s directives.” (Docket #59 at 11).
Plaintiffs do not state where these terms come from, but the Court assumes these
topics would be taught in training sessions that they believe Manney should have
had.
16

Plaintiffs note that Fitchett had received CIT training in 2012. (Docket #6112 at 8:12-9:21).

Page 31 of 55

Manney further asserts that he received training on dealing with
homeless people. Plaintiffs similarly dispute the merits of this training. He
was given no specialized training on dealing with homeless people. The
entirety of his training on the issue was a ten to fifteen minute presentation
where he learned about the MPD’s Homeless Outreach Team. The
presentation was meant for that team to “say that this is who we are as
opposed to actually train.” (Docket #61-3 at 54:23-55:1).
With respect to encountering people in the field, MPD officers are
trained that they can conduct a Terry stop or field interview based on their
reasonable suspicion that a person has committed, is committing, or will
commit a crime. See Hiibel v. Sixth Jud. Dist. Ct. of Nev., Humboldt County, 542
U.S. 177, 185 (2004). The factors they should use to assess that suspicion
include the subject’s appearance, demeanor, actions, time of day, the
appropriateness of their location, whether they are carrying a suspicious item
or their clothing has bulges, and their proximity to an alleged crime scene.
MPD officers also receive training on pat-down searches. As noted
above, such searches may be conducted if the officer reasonably suspects that
they or another person are in danger from the subject. As with Terry stops,
the officer must also be able to articulate facts leading them to believe that
the person is involved in criminal activity. Officers are also trained that
consent is a valid basis for a search, provided that it is a “clear and voluntary
expression” of consent. (Docket #53-8 at 1).
Regarding use of force, the MPD trains officers to apply their training,
experience, and common sense to a situation and respond as events unfold.
When subjects become violent, officers are told they have the authority to
employ defensive force tactics. Specifically, if the officer is struck by a person,
the officer may either respond with the same level of force, or higher if the
Page 32 of 55

officer feels it is necessary for them to gain control of the situation. As
relevant here, if an officer is struck with fists, he may either use his fists or
draw his baton. Officers are trained that they may only use deadly force
when it would be reasonable to prevent great bodily harm or death to
themselves or others.
4.2

Analysis

At the time the instant summary judgment motions were filed,
Plaintiffs advanced the following substantive claims:
1)

Unlawful detention,

2)

Unreasonable search, and

3)

Excessive force, all against Manney; and

4)

Failure to train against the City, specifically with respect to
encounters with mentally ill people, in violation of the Monell
doctrine. See Monell v. Dep’t of Soc. Servs. of City of New York,
436 U.S. 658, 694-95 (1978).

(Docket #1 at 37-45 and #43).17 Defendants seek judgment on each claim. In
light of the Court’s ruling on Plaintiffs’ motion for summary judgment, the
second claim is no longer contestable. As to Defendants’ remaining requests
for judgment, they are doomed by the standard of review, and each must be
denied. Defendants have also advanced separate arguments related to the
Manney claims, specifically inadequate causation and qualified immunity, but
those too must be rejected.

17

Plaintiffs further assert two claims relevant to their damages: loss of
society and companionship against Manney, and indemnification against the City
pursuant to Wisconsin law. (Docket #1 at 39-40).

Page 33 of 55

4.2.1 Unlawful Detention
The Fourth Amendment imposes a limited burden on police officers
who wish to briefly detain a person to investigate criminal activity. It requires
that the officer have “reasonable suspicion based on articulable facts that a
crime is about to be or has been committed.” Williams, 731 F.3d at 683.
Reasonable suspicion is less than the probable cause required to obtain a
warrant to seize a person, but more than a mere hunch. Id. In analyzing
reasonable suspicion, a court “must examine the totality of the circumstances
in the situation at hand, in light of the individual officers’ own training and
experience, and should uphold the stop if it finds that ‘the detaining officer
ha[d] a “particularized and objective basis” for suspecting legal
wrongdoing.’” Id. at 683-84 (quoting United States v. Arvizu, 534 U.S. 266, 273
(2002)).
Viewing the evidence in a light most favorable to Plaintiffs, and
making all reasonable inferences in their favor, a reasonable jury could
conclude that Manney detained Hamilton without reasonable suspicion that
he committed any crime. The information at Manney’s disposal which
directly concerned Hamilton was limited. Cameron’s voicemail described
Hamilton’s appearance and stated that he was sleeping near the Starbucks
trailer. When Manney arrived at the Park, he saw Hamilton lying on a
concrete path with his eyes closed, knee bent and twitching. On Manney’s
way to discuss the matter with the Starbucks employees, Hamilton opened
his eyes and the two began their interaction. Manney’s first words to
Hamilton were an order to stand up, at which point Hamilton’s detention
began.
Prior to those words, none of the facts available to Manney
demonstrated an individualized suspicion connecting Hamilton to a crime.
Page 34 of 55

Defendants contend that Manney could have reasonably believed that
Hamilton had been criminally disorderly, based on Kraemer’s call, his prior
knowledge of the reliability of the Starbucks employees, and Hamilton’s
appearance and location in the Park. However, Manney had not heard the
content of Kraemer’s call prior to detaining Manney, nor had he spoken with
anyone, such as Cameron, Fitchett, Fuerte, or a Starbucks employee. Thus,
any belief in the reliability of Kraemer’s complaint was not the individualized
suspicion required when police officers seize a person. City of Indianapolis v.
Edmond, 531 U.S. 32, 37 (2000). Instead, Manney’s only source of suspicion
directly related to Hamilton was Cameron’s voicemail and Manney’s visual
observation upon arrival at the Park. Manney admits that the voicemail does
not suggest disorderly conduct. (Docket #61-3 at 90:2-6). Defendants do not
suggest, and the Court does not find, any suspicion of disorderly conduct
from Manney’s perception of Hamilton lying down in the Park.
Defendants’ factual briefing suggests that Hamilton may have also
violated a Milwaukee County ordinance by sleeping in the Park. (Docket #89
at 16-17). This argument fails for three reasons. First, Defendants make no
corresponding legal argument in the section of their opening brief dedicated
to this issue. (Docket #50 at 26-30). Second, assuming the position was
properly presented, Hamilton’s conduct did not constitute a crime. See
Milwaukee County Code of Ordinances §§ 47.25 (prohibiting sleeping in
parks) and 47.29 (penalty for violating Chapter 47 ordinances is forfeiture);
Wis. Stat. § 939.12 (“A crime is conduct which is prohibited by state law and
punishable by fine or imprisonment or both. Conduct punishable only by a

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forfeiture is not a crime.”).18 Third, even if Hamilton’s slumber could be
considered a crime, the facts do not support a reasonable suspicion that
Hamilton violated the ordinance. It is true that Cameron’s voicemail
mentioned Hamilton sleeping and that Hamilton’s eyes were closed upon
Manney’s approach. These facts were not consistent, however, with
Manney’s other observations. Hamilton’s knee twitched while he lay on the
ground, and he “awoke” even when Manney attempted to approach quietly.19
Further, Manney approached Hamilton at midday, not at nighttime. It would
thus be less reasonable to assume that Hamilton was sleeping. These facts
and circumstances support an inference that Hamilton was not asleep. Given
the totality of the circumstances presented to Manney, a reasonable jury
could conclude that he lacked appropriate suspicion that Hamilton was
sleeping in the Park.
In the alternative to suspicion of disorderly conduct, Defendants posit
that Manney’s action was not a detention, but instead a mere welfare check
pursuant to his “community caretaker” function. Wisconsin recognizes that
police officers “may exercise two types of functions: law enforcement
functions and community caretaker functions.” State v. Pinkard, 785 N.W.2d
592, 598 (Wis. 2010) (citing Cady v. Dombrowski, 413 U.S. 433, 448 (1973)).
Wisconsin maintains an exception to the Fourth Amendment’s prohibition on
warrantless searches and seizures when a police officer is “serving as a
community caretaker to protect persons and property.” Id. at 597. An officer

18

Defendants do not attempt to counter Plaintiffs’ argument on this point
in their reply brief. The Court thus treats the matter as conceded.
19

Manney tried to walk quietly towards the Starbucks trailer, including
holding onto his keychain which would otherwise jangle at his waist. (Docket #52
at 5-6).

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is a “community caretaker” when he “discovers a member of the public who
is in need of assistance.” Id. at 598. The officer’s law enforcement role need
not be entirely absent when engaging in community care; to claim the
exception, the officer need only “articulate[] an objectively reasonable basis
under the totality of the circumstances for the community caretaker
function[.]” State v. Kramer, 759 N.W.2d 598, 609 (Wis. 2009). If a court finds
that the community caretaker function is properly invoked, it balances
various considerations to determine whether the police conduct was
reasonable. Id. at 611.
A reasonable jury could find that Manney was not engaged in a
community caretaker function in dealing with Hamilton. As noted above,
Hamilton had done nothing unlawful up to the point of his detention.
Without knowing that Hamilton had caused any trouble, Manney
characterized his intervention in the Park as a “trouble with suspect” call. The
jury could potentially infer that this characterization showed preliminary bias
against Hamilton, in light of Cameron’s mention of a homeless person and
Kraemer’s recollection of an off-color comment by Manney regarding
homeless people. Further, upon contacting Hamilton, Manney did not ask
Hamilton how he was doing, but instead immediately ordered him to stand
and initiated a pat-down search. This suggests that Manney had not
“discover[ed] a member of the public who is in need of assistance.” Pinkard,
785 N.W.2d at 598.
Construing the facts in Plaintiffs’ favor, the Court finds that they do
not demand, much less suggest, judgment in Defendants’ favor. Whether
Manney had reasonable suspicion of unlawful conduct, or whether he was
acting as a community caretaker, are disputed factual inquiries which must

Page 37 of 55

be resolved by the jury. Defendants’ request for summary judgment on
Plaintiffs’ unlawful detention claim will be denied.
4.2.2 Unreasonable Search
Because Plaintiffs’ motion for summary judgment was granted, their
unreasonable search claim is no longer disputable. Thus, the Court need not
address the related portions of Defendants’ motion.
4.2.3 Excessive Force
When police officers use force against citizens in carrying out their
duties, the Fourth Amendment requires that the force used be reasonable.
Weinmann v. McClone, 787 F.3d 444, 448-49 (7th Cir. 2015). Reasonableness is
a fact-intensive inquiry in light of the totality of the circumstances, including
“the severity of the crime at issue, whether the person posed an immediate
threat to the safety of the officers or others, and whether the person was
actively resisting the officers.” Williams v. Indiana State Police Dep’t, 797 F.3d
468, 472-73 (7th Cir. 2015). The standard also accounts for the fluidity and
rapidity of use-of-force situations, and does not permit evaluation of the force
used based on hindsight. Id. at 473. The Seventh Circuit instructs that “[a]n
officer’s use of force is unreasonable if in light of all those circumstances at
the time of the seizure, the officer used greater force than was reasonably
necessary to effectuate the seizure.” Id. With respect to deadly force in
particular, “[t]he Supreme Court further has counseled that it is reasonable
for a law enforcement officer to use deadly force if an objectively reasonable
officer in the same circumstances would conclude that the suspect posed a
threat of death or serious physical injury to the officer or to others.” Marion
v. City of Corydon, Ind., 559 F.3d 700, 705 (7th Cir. 2009).
Plaintiffs’ brief appears to raise two species of excessive force. First,
they contend that the entirety of Manney’s use of force was unreasonable.
Page 38 of 55

(Docket #88 at 18-23). Second, assuming this was not true, Plaintiffs maintain
that Manney applied excessive force when he continued to shoot Hamilton
after he was no longer a threat. Id. at 16-18.
As to Manney’s overall use of force, the facts and inferences in
Plaintiffs’ favor suggest the following timeline. Manney initiated physical
contact with Hamilton in his attempt to complete a pat-down search. Before
that time, Hamilton had been non-violent. Hamilton then pinned Manney’s
arms to his sides and, after a struggle, the two separated. However, rather
than turn to face Manney and advance at him menacingly, Hamilton ran
away from Manney like a child playing a game, while Manney chased him.
The two eventually returned to close quarters. Manney’s assertion of head
strikes by Hamilton is undermined by his apparent lack of corresponding
injury during the emergency room visit later that day. Manney, however,
admits that he punched Hamilton. Manney then pulled out his baton. He
struck Hamilton repeatedly with the baton until Hamilton pulled it from his
hands. Again, though Manney believes Hamilton then hit him with the baton,
he did not complain of head trauma at the hospital or bear related injuries.
Finally, immediately prior to the shooting, Manney and Hamilton were at
least ten feet apart. Hamilton was standing still and either holding the baton
in a defensive position across his chest, or waving it in the air playing “keep
away” from Manney. Just before he began shooting, Manney said “so you
want to fight.”
Under this version of the facts, it was unreasonable for Manney to
escalate his use of force from fists, to his baton, to his gun. Hamilton’s crime,
if any, was not serious. Hamilton’s only violent act was to trap Manney’s
arms for a few moments. Afterwards, Hamilton began running away, which
did not suggest that he posed an immediate threat to Manney’s or another’s
Page 39 of 55

safety. In fact, Manney exacerbated the danger by chasing Hamilton and
beating him with his fists and baton. Manney’s use of deadly force was also
unreasonable. At the time he shot Hamilton, the two were ten feet apart.
Hamilton was not advancing toward him or threatening him with the baton.
This scenario did not present an imminent danger of death or great bodily
harm to anyone. While it is true that a suspect’s possession of a weapon
makes using force more reasonable, the suspect must actually threaten
someone with the weapon. See Bell v. Irwin, 321 F.3d 637, 639 (7th Cir. 2003)
(“Police may use . . . deadly force if the suspect poses a threat of serious
physical harm, either to the officer or to others. [I]f the suspect threatens the
officer with a weapon that risk has been established.”) (citation and
quotations omitted). Though Hamilton had Manney’s baton when the
shooting started, he did not wield it in a threatening manner.
With respect to the shooting itself, Manney’s testimony is not clear
regarding how many shots he remembered firing. This calls into question his
memory of the entire sequence. Further, Hamilton continued to remain still
while being shot, save for falling onto the ground. At least a few of the shots
occurred after Hamilton was falling or had already hit the ground. An officer
cannot continue to apply deadly force once the threat of harm has passed.
Scott v. Edinburg, 346 F.3d 752, 757 (7th Cir. 2003). Any shots which occurred
during or after Hamilton’s fall would violate that rule and remove Manney’s
privilege to use deadly force.
Of course, the jury may not find these precise facts upon their review
of the evidence and witness testimony. In particular, almost all of the
witnesses not only contradict each other in some manner, but even contradict
their own prior statements (including Manney himself). The wide gulf

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between the parties’ sequence of events on April 30, 2014 is for the jury to
resolve, not the Court.
In fact, Defendants’ arguments reinforce rather than detract from these
disputes. In their reply briefing, Defendants cite a number of witness
accounts which support various aspects of Manney’s story. (Docket #78 at 1118). They also question the reliability of the witness testimony cited by
Plaintiffs. Id. Initially, the Court notes that Defendants’ statement of facts
never mentions these witnesses, instead relying almost entirely on Manney’s
affidavit testimony. Thus, Defendants should be precluded from raising that
evidence now. See Hernandez v. Cook County Sheriff’s Office, 634 F.3d 906, 91314 (7th Cir. 2011); Kenall Mfg. Co. v. H.E. Williams, Inc., No. 09-C-1284, 2012
WL 4434370 at *3 (N.D. Ill. Sept. 24, 2012) (“[A]rguments and evidence that
could have been raised in the opening brief but are first raised in a reply brief
are generally deemed waived.”) (citing Judge v. Quinn, 612 F.3d 537, 542 (7th
Cir. 2010)).20 Assuming that testimony was properly presented, it cannot
simply override the contrary testimony and evidence. The Court is prohibited
from weighing evidence or deciding which witnesses to believe and which
witnesses not to believe. Plaintiffs have raised sufficient evidence to create
jury questions on their excessive force claim, and Defendants’ motion must
be denied on this point.

20

The Court assumes Defendants’ good faith, namely that this was not an
intentional ploy designed to deny Plaintiffs an opportunity to respond to that
testimony. Citizens Against Ruining the Env’t v. E.P.A., 535 F.3d 670, 675 (7th Cir.
2008) (“It is improper for a party to raise new arguments in a reply because it does
not give an adversary adequate opportunity to respond.”). If that were not the
case, such conduct might warrant denial of Defendants’ request for judgment on
this issue at the outset.

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4.2.4 Causation
Defendants maintain that the unlawful stop and pat-down search did
not cause Hamilton’s death, and without a causal link to the harm alleged,
those claims must be dismissed. Like any civil action, those pursued under
Section 1983 require a plaintiff to show causation. Whitlock v. Brueggemann,
682 F.3d 567, 582 (7th Cir. 2012). Causation is further divided into two
elements: 1) but-for causation, “i.e., the injury would not have occurred
absent the conduct,” and 2) proximate causation, “i.e., the injury is of a type
that a reasonable person would see as a likely result of his or her conduct.”
Id.
Defendants’ argument goes to the second element, proximate cause.
The causal chain between an unlawful act and the injury complained-of may
be broken by an intervening or superseding cause. Shick v. Ill. Dep’t of Human
Servs., 307 F.3d 605, 615 (7th Cir. 2002). Defendants contend that Hamilton
himself was the intervening cause; his attacks on Manney are what
precipitated Manney shooting him, not the earlier stop or search. To make
this determination, the Court weighs a number of factors, including the
nature of the intervening force, whether the resulting harm is different than
what was expected prior to the intervention, whether it was normal to expect
such intervention, and whether the intervention was wrongful. See
Restatement (Second) of Torts § 442 (1965).
Courts have found broken causation in scenarios similar to this one.
In Johnson, a police officer approached a suspect who was “standing in the
street, naked, high on PCP, and yelling and flailing his arms.” Johnson v. City
of Philadelphia, 837 F.3d 343, 345 (3rd Cir. 2016). This interaction did not go
well; the suspect slammed the officer into multiple cars and hit him in the
head. Id. at 346-48. When the suspect tried to take the officer’s gun, the officer
Page 42 of 55

shot and killed him. Id. at 346. The plaintiff argued that the officer caused the
suspect’s death by unreasonably approaching an obviously disturbed man
alone and without attempting to de-escalate the situation. Id. at 350-51. The
court held that the suspect’s “violent, precipitate, and illegal attack on Officer
Dempsey severed any causal connection[.] . . . Whatever harms we may
expect to ordinarily flow from an officer’s failure to await backup when
confronted with a mentally disturbed individual, they do not include the
inevitability that the officer will be rushed, choked, slammed into vehicles,
and forcibly dispossessed of his service weapon.” Id. at 352; see also Estate of
Sowards v. City of Trenton, 125 F. App’x 31, 42 (6th Cir. 2005) (“Sowards’s own
conduct of pointing the handgun toward the officers was the intervening or
superseding cause that set in motion the events that ultimately led to his
death,” not the officers’ earlier warrantless entry into his home.); James v.
Chavez, 511 F. App’x 742, 750 (10th Cir. 2013) (no proximate causation
between officers’ unlawful entry into the suspect’s home and his death, when
he attempted to stab an officer who approached him).
Causation is generally a question of fact for the jury to decide. Shick,
307 F.3d at 615 (“While generally the issue of proximate cause is a jury
question, in extreme circumstances . . . the question of proximate cause is an
issue of law properly resolved by a court.”); Gayton v. McCoy, 593 F.3d 610,
624 (7th. Cir. 2010) (in addressing a claim for deliberate indifference to an
inmate’s medical needs under the Eighth Amendment, “[p]roximate cause is
a question to be decided by a jury, and only in the rare instance that a
plaintiff can proffer no evidence that a delay in medical treatment
exacerbated an injury should summary judgment be granted on the issue of
causation.”). The issue may only be resolved on summary judgment “when
there is no evidence from which a jury could reasonably find the required
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proximate, causal nexus between the careless act and the resulting injuries.”
Johnson, 837 F.3d at 352.
With these principles in mind, the Court cannot agree with Defendants
that no reasonable jury could find causation between Manney’s stop and
search and Hamilton’s death. Here again, Defendants’ arguments ignore the
standard of review. Under their construction of the facts, Hamilton moved
aggressively at Manney, hit him repeatedly with his fists and the baton, and
in the final moments of the encounter, appeared to charge at Manney with
the baton poised for a potentially deadly blow. Clearly, those circumstances
would defeat proximate causation in light of the precedent cited above.
However, the Court is constrained to view the facts in Plaintiffs’ favor. The
timeline of events, described in Part 4.2.3 above, shows that other than
clamping his arms down on Manney’s and taking the baton away, Hamilton
was not aggressive. A jury could conclude that Hamilton’s actions were not
substantial enough to sever the causal chain between the beginning and end
of the encounter.
Johnson, cited by Defendants, provides additional and particularly apt
instruction for this case. Immediately after determining that proximate
causation was broken by the suspect’s crazed attack, the court commented on
the limitations of its finding:
Before continuing on, however, we sound a note of
caution. The question of proximate causation in this case is
made straightforward by the exceptional circumstances
presented—namely, a sudden, unexpected attack that instantly
forced the officer into a defensive fight for his life. As discussed
above, that rupture in the chain of events, coupled with the
extraordinary violence of Newsuan’s assault, makes the Fourth
Amendment reasonableness analysis similarly straightforward.
Given the extreme facts of this case, our opinion should not be
misread to broadly immunize police officers from Fourth
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Amendment liability whenever a mentally disturbed person
threatens an officer’s physical safety. Depending on the
severity and immediacy of the threat and any potential risk to
public safety posed by an officer’s delayed action, it may be
appropriate for an officer to retreat or await backup when
encountering a mentally disturbed individual. It may also be
appropriate for the officer to attempt to de-escalate an
encounter to eliminate the need for force or to reduce the
amount of force necessary to control an individual. Nor should
it be assumed that mentally disturbed persons are so inherently
unpredictable that their reactions will always sever the chain of
causation between an officer’s initial actions and a subsequent
use of force. If a plaintiff produces competent evidence that
persons who have certain illnesses or who are under the
influence of certain substances are likely to respond to
particular police actions in a particular way, that may be
sufficient to create a jury issue on causation. And of course,
nothing we say today should discourage police departments
and municipalities from devising and rigorously enforcing
policies to make tragic events like this one less likely. The facts
of this case, however, are extraordinary. Whatever the Fourth
Amendment requires of officers encountering emotionally or
mentally disturbed individuals, it does not oblige an officer to
passively endure a life-threatening physical assault, regardless
of the assailant’s mental state.
Johnson, 837 F.3d at 352-53.21 Plaintiffs’ theory, as revealed by their briefing,
appears to be that Hamilton’s actions were the product of mental illness, and
that Manney should have taken the Johnson court’s advice. Whether to believe
that theory lies within the jury’s exclusive province.
4.2.5 Qualified Immunity
Defendants’ final argument in opposition to the claims against
Manney is qualified immunity. That doctrine protects government officials

21

The dissent in Johnson makes a similar point while disagreeing with the
majority’s ruling on proximate causation. Johnson, 837 F.3d at 354-56.

Page 45 of 55

from civil liability when they perform discretionary functions “insofar as their
conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). “Put simply,” says the Supreme Court, “qualified
immunity protects ‘all but the plainly incompetent or those who knowingly
violate the law.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Malley
v. Briggs, 475 U.S. 335, 341 (1986)). Once the defense is raised, the plaintiff
bears the burden to defeat it. Weinmann, 787 F.3d at 450.
To defeat an assertion of qualified immunity, the plaintiff must first
proffer facts which, if believed, amount to an actual violation of his
constitutional rights. Saucier v. Katz, 533 U.S. 194, 201 (2001); Easterling v.
Pollard, 528 F. App’x 623, 656 (7th Cir. 2013). As discussed above, Plaintiffs
have achieved this. Next, the plaintiff must show that the violation of his
constitutional rights was “clearly established under applicable law at the time
and under the circumstances that the defendant official acted.” Easterling, 528
F. App’x at 656 (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). A right
is clearly established when its contours are “sufficiently clear that every
reasonable official would have understood that what he is doing violates that
right.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (internal quotation
marks and alterations omitted). Courts should “not require a case directly on
point, but existing precedent must have placed the statutory or constitutional
question beyond debate.” Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011). The
Supreme Court recently emphasized that courts must not “‘define clearly
established law at a high level of generality.’” Id. (quoting al–Kidd, 563 U.S.
at 742). The inquiry should be focused on particular conduct undertaken in
particular situations. Id. Alternatively, the plaintiff may satisfy this element
“by showing that the force was so plainly excessive that, as an objective
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matter, the police officers would have been on notice that they were violating
the Fourth Amendment.” Findlay v. Lendermon, 722 F.3d 895, 899 (7th Cir.
2013) (quotation omitted).
The qualified immunity defense does not protect Manney at this stage
of the litigation. As Defendants have done throughout their briefing, they
assume albeit incorrectly, that the Court will accept their version of events.
The Court must continue to construe the evidence in Plaintiffs’ favor when
assessing qualified immunity. Mordi v. Ziegler, 770 F.3d 1161, 1164 (7th Cir.
2014) (“The court cannot resolve disputed issues of fact when it addresses
[whether a constitutional violation occurred] because the ordinary rules
governing summary judgment apply in that situation.”). In keeping with the
most recent authority from the Supreme Court, this Court must apply that
construction of the facts to define the relevant constitutional right and tailor
it to this case. See Mullenix, 136 S. Ct. at 308. Here, this process results in the
following questions. Could Manney have reasonably believed that the
following were consistent with Hamilton’s Fourth Amendment rights:
1)

Detaining Hamilton without reasonable suspicion that he was
engaged in disorderly conduct or had otherwise violated a
criminal law;

2)

Conducting a pat-down search of Hamilton without reasonable
suspicion that he was armed; and

3)

Using deadly force against Hamilton during an encounter
where Manney was almost entirely the aggressor and was not,
in the final moments before shooting Hamilton, presented with
an imminent danger of death or great harm?

The answer to each question is no. Hamilton’s right to be free from
suspicionless detentions and searches was established by Terry nearly fifty
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years ago. Terry, 392 U.S. at 17-31. As the Seventh Circuit noted in Williams,
“[i]t is well-established—and has been since long before the shooting at issue
here—that a person has a right not to be seized through the use of deadly
force unless he puts another person (including a police officer) in imminent
danger or he is actively resisting arrest and the circumstances warrant that
degree of force.” Williams, 797 F.3d at 484 (citing Tennessee v. Garner, 471 U.S.
1, 11-12 (1985)). Thus, Manney’s use of force was proscribed at least thirty
years ago. Though Plaintiffs do not make the argument, Manney’s force could
also be considered “so plainly excessive that, as an objective matter,
[Manney] would have been on notice that [he was] violating the Fourth
Amendment.” Findlay, 722 F.3d at 899.
Given this controlling precedent, and an assessment of the relevant
questions in accordance with the standard of review, it was “beyond debate”
at the time Manney acted that his conduct violated Hamilton’s Fourth
Amendment rights. al-Kidd, 563 U.S. at 741. After the jury determines the
ultimate facts underlying the defense, however, Manney may revisit it.
4.2.6 Monell Claim
As noted above, only one Monell claim remains. As the Supreme Court
held in the eponymous case, local government entities, such as municipalities
and counties, cannot be held vicariously liable for constitutional violations
committed by their employees. Monell v. Dep’t of Soc. Servs. of City of New
York, 436 U.S. 658, 690 (1978). Such entities can, nevertheless, be liable under
Section 1983 if “the unconstitutional act complained of is caused by: (1) an
official policy adopted and promulgated by its officers; (2) a governmental
practice or custom that, although not officially authorized, is widespread and
well settled; or (3) an official with final policy-making authority.” Thomas v.

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Cook County Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2009) (citing Monell, 436
U.S. at 690).
Plaintiffs allege that the City failed to appropriately train its police
officers with respect to “recurring situations of encountering individuals
suffering from mental illness and/or experiencing a crisis situation[.]” (Docket
#43). The City will bear liability for its relevant policies if those policies
caused the unconstitutional harm Hamilton suffered, or in other words, if the
policies were the “moving force” behind the constitutional violation. Thomas,
604 F.3d at 303; Estate of Sims v. County of Bureau, 506 F.3d 509, 514 (7th Cir.
2007). Causation may be shown directly, “by demonstrating that the policy
is itself unconstitutional,” or indirectly, for instance when “a plaintiff cannot
identify any formal policy that is unconstitutional,” by pointing to “a series
of bad acts creating an inference that municipal officials were aware of and
condoned the misconduct of their employees.” Minix v. Canarecci, 597 F.3d
824, 832 (7th Cir. 2010) (quotations omitted).
This Court has further direction on failure-to-train claims in particular.
For these Monell derivatives, “the inadequacy of police training may serve as
the basis for § 1983 liability only where the failure to train amounts to
deliberate indifference to the rights of persons with whom the police come
into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989). The Dunn
court explained:
Deliberate indifference may be shown in one of two
ways. First, a municipality shows deliberate indifference when
it fails to train its employees to handle a recurring situation that
presents an obvious potential for a constitutional violation and
this failure to train results in a constitutional violation. Second,
a municipality shows deliberate indifference if it fails to
provide further training after learning of a pattern of
constitutional violations by the police.
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Dunn v. City of Elgin, Ill., 347 F.3d 641, 646 (7th Cir. 2003) (citations omitted).
In other words, “‘[i]t may happen that…the need for enhanced training is so
obvious, and the inadequacy of training is so likely to result in the violation
of constitutional rights, that a jury could reasonably attribute to the
policymakers a deliberate indifference to those training needs.’” Tapia v. City
of Greenwood, 965 F.2d 336, 338 (7th Cir. 1992) (quoting Erwin v. County of
Manitowoc, 872 F.2d 1292, 1298 (7th Cir. 1989)). If that were true, “the failure
to offer proper training constitutes a policy for which a city is liable when
improper training actually imposes injury.” Id. Further “[Plaintiffs] must
show that the failure to train reflects a conscious choice among alternatives
that evinces a deliberate indifference[.]” Rice ex rel. Rice v. Corr. Med. Servs.,
675 F.3d 650, 675 (7th Cir. 2012).
The facts and reasonable inferences therefrom support Plaintiffs’
failure-to-train claim at this stage. The City has agreed that encountering
mentally ill people is a recurring issue for MPD officers. It further recognized,
twelve years ago, that CIT training was an important tool to address that
issue, and that one of the purposes of CIT training was to reduce incidents of
excessive force. Manney nevertheless did not receive CIT training or any
other specialized training on dealing with the mentally ill. In Plaintiffs’ view,
this lack of training caused Manney to respond inappropriately to Hamilton,
escalating the violence of the situation, and ultimately leading to Hamilton’s
death.

Page 50 of 55

The City’s primary opposition to these facts is that its compliance with
WLESB training requirements absolves it of any failure-to-train liability.22 It
finds support for this proposition in Tapia. There, the plaintiff complained of
police officers making a warrantless entry into her home. Tapia, 965 F.3d at
337-38. In discovery, she asked for all documents in the defendant
municipality’s possession on its procedures for warrantless home entries. Id.
at 339. The defendant responded that there were none, and that its officers
were trained in accordance with state law at the police academy. Id. The
plaintiff emphasized the municipality’s lack of training materials at trial and
succeeded on her Monell claim. Id.
The appellate court found that a failure-to-train claim did not lie
because the need for further training was not obvious. Id. In support, the
court cited a number of factors. First, the plaintiff “offered no evidence to
indicate that the City failed to adhere to the minimum standards for training
police officers under Indiana law.” Id. Second, she failed to show that the
municipality was somehow required to have written training materials. Id.
Third, the municipality offered testimony that its officers were trained on
search procedures at state police academies and they received additional
training from other sources, including the FBI. Id.
The Court does not read Tapia as broadly as the City suggests. Tapia
mentions, in one sentence, that the plaintiff failed to show noncompliance
with state training standards. The court then cited further evidence of the
officers’ training both inside and outside the police academy. Based on this
22

In addition to referencing its mental illness training, the City also cites its
training on investigatory stops, pat-down searches, and use of force. See supra pg.
32-33. It is not clear how this bears on Plaintiffs’ sole remaining Monell claim.
Plaintiffs do not contend that the City maintained a defective stop, search, or use
of force policy which led to Hamilton’s death.

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evidence, it concluded that the need for further training was not obvious. If
Tapia had desired to create the blanket immunity the City desired, it could
have expressly stated that adherence to state training standards alone
supported judgment in the municipality’s favor. It did not, and in the fifteen
years since Tapia was decided, the Court of Appeals has not clarified that
Tapia’s holding is as the City believes.
The City also argues that causation is lacking. It first cites to
Hamilton’s “attack” which overrode any connection between Manney’s
mental illness training and Hamilton’s death. Construing the facts in
Plaintiffs’ favor, a jury could find that no such attack occurred. The City next
points to Dubis, its expert on the matter of CIT training, who opines that CIT
training would not have made a difference for Manney on April 30, 2014.
Her opinion is directly opposed by that of Plaintiffs’ expert Dr. Smith. The
Court cannot resolve this battle of experts on summary judgment.23
The Court finds, then, that Plaintiffs have raised a triable issue as to
their Monell claim. This ruling is no comment on the strength of that claim.
As Defendants point out, Plaintiffs bear a heavy burden to prove the City’s
alleged deliberate indifference—its intentional or criminally reckless
conduct—to the need for more or better training regarding the mentally ill.
The burden is made even heavier by the fact that the City considered
alternatives to its training regimen on the issue and apparently concluded
that the current program was best. (Docket #78 at 21-22). Beyond all this,
Plaintiffs must prove that any inadequate training was the moving force
behind Hamilton’s death. Defendants claim that the April 30, 2014 incident

23

Neither party has formally opposed the admissibility of the other’s expert
testimony. See Daubert v. Merrell Doe Pharm., Inc., 509 U.S. 579, 597 (1993).

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had no obvious connection to mental illness or a “crisis situation,” and thus
Manney’s actions were necessarily divorced from any of his deficient mental
illness training. Id. at 22-23. All of these questions must be left for the jury to
decide.
4.3

Conclusion

Distilled to its core, Defendants’ motion is defective because it bases
nearly all of its assertions on Defendants’ version of the facts. The Court is
required, however, to take the opposite viewpoint. In accordance with the
standard of review, these issues of material fact must await the jury’s
deliberation and verdict in May of this year.
5.

CONCLUSION
In light of the foregoing, Plaintiffs’ motion for summary judgment will

be granted, and Defendants’ will be denied. The Court will further address
other housekeeping matters. Defendants’ requests to file an overlong reply
brief and include certain misplaced exhibits in their reply are belatedly
granted. (Docket #76 and #85). The Court has also reviewed the parties’
motions related to sealing documents relevant to their summary judgment
briefing. (Docket #62 and #87). The motions will be granted and denied in
part; the parties agree that exhibits L, N, O, P, Q, and R should be unsealed.
(Docket #65, #67, #68, #69, #70, and #71, respectively). All other documents
currently filed under seal shall remain so for the time being.24 The issue of
confidentiality will be revisited at trial. Finally, the parties have stipulated

24

Defendants mention that they are also amenable to having unsealed
certain portions of Manney’s deposition transcript. (Docket #87 at 3-4). The
unsealed version which is currently available was redacted by hand. See (Docket
#61-3, #61-4, and #61-5). To the extent the redactions need to be changed to comply
with the parties’ agreement, a revised redacted transcript should be submitted
without seal.

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that Plaintiffs’ unredacted responsive briefs, filed on March 27, 2017, may be
unsealed. (Stipulation, Docket #90; Plaintiffs’ Brief in Opposition, Docket #88;
Plaintiffs’ Response to Defendants’ Statement of Facts, Docket #89). The
Court will lift the seal on those documents.
Accordingly,
IT IS ORDERED that Plaintiffs’ motion for summary judgment
(Docket #45) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Defendants’ motion for summary
judgment (Docket #48) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Defendants’ motion for leave to file
an overlong reply brief (Docket #76) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Defendants’ motion for leave to file
additional exhibits related to their reply (Docket #85) be and the same is
hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiffs’ motion to seal (Docket
#62) and Defendants’ motion to seal (Docket #87) be and the same are hereby
GRANTED in part and DENIED in part in accordance with the terms of this
Order; and
IT IS FURTHER ORDERED that Plaintiffs’ unredacted brief in
opposition to Defendants’ motion for summary judgment (Docket #88) and
response to Defendants’ statement of facts (Docket #89) shall be unsealed and
made publicly available by the Clerk of the Court.

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Dated at Milwaukee, Wisconsin, this 12th day of April, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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