Estate of Derek Williams Jr. et al v. City of Milwaukee et al

Filing 74

ORDER signed by Judge J.P. Stadtmueller on 8/4/2017: DENYING 35 Defendants' Motion for Summary Judgment; DENYING 67 Defendants' Motion to Strike; GRANTING 59 Defendants' Motion for Leave to File Oversized Reply Brief; DISMISSING with prejudice Count One of the Complaint; DISMISSING with prejudice Defendant Chad Boyack; and GRANTING 22 Plaintiffs' Motion to Seal. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ESTATE OF DEREK WILLIAMS, JR.,
TANIJAH WILLIAMS, DEREK
WILLIAMS III, and TALIYAH S.
WILLIAMS,

Case No. 16-CV-869-JPS

Plaintiffs,
v.

ORDER

CITY OF MILWAUKEE, JEFFREY
CLINE, RICHARD TICCIONI,
PATRICK COE, JASON
BLEICHWEHL, ROBERT THIEL,
TODD KAUL, ZACHARY THOMS,
GREGORY KUSPA, CRAIG THIMM,
CHAD BOYACK, and DAVID
LETTEER,
Defendants.
1.

INTRODUCTION
This action arises from the death of Derek Williams, Jr. (“Williams”)

on July 6, 2011 while in the custody of the City of Milwaukee Police
Department (“MPD”). See (Docket #1). Plaintiffs, Williams’ estate and
surviving minor children, have sued the City of Milwaukee (the “City”) and
various

police

officers

whom

they

contend

violated

Williams’

constitutional rights in the events leading to his death. Id. On April 24, 2017,
Defendants filed a motion for summary judgment, seeking dismissal of
each of Plaintiffs’ claims. (Docket #35 and #36). Plaintiffs responded to the
motion on May 24, 2017, and Defendants replied on June 7, 2017. (Response,

Docket #55; Reply, Docket #60).1 For the reasons explained below,
Defendants’ motion must be denied in its entirety.
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 nonmovant. 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

Defendants also filed a motion for leave to submit an oversized reply brief
in light of Plaintiffs’ own overlong briefing. (Docket #59). That motion will be
granted.
1

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demonstrating that there is a pending dispute of material fact.” Waldridge
v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).
3.

FACTUAL BACKGROUND
3.1

Relevant Facts

Upon review of the parties’ factual briefing, the Court finds that the
following facts are material to Defendants’ motion.2 The Court presents a
timeline of events first, then addresses other relevant topics. As an aside,
Defendants have moved to strike certain expert opinions. (Docket #67). That
motion will be denied in its entirety. Because it is helpful to understand the
background facts prior to analyzing the experts’ opinions, the Court will
turn to that issue after it discusses the facts.
3.1.1

Timeline

In July 2011, Williams was a 22-year-old African-American man,
with a tall, thin build, and in generally good physical shape. He and his
girlfriend, Sharday Rose (“Rose”), had three children, Tanijah, Derek III,
and Taliyah.3 On July 3, 2011, Williams was arrested and jailed. He was
released two days later. On the evening of July 5, 2011, Williams went to
Rose’s home to visit her and the children. Late that night, Williams and
Rose’s stepfather, Tyrone Mathis (“Mathis”), left the home to go buy snacks.
At approximately 12:35 a.m. on July 6, 2011, Williams crossed the
intersection of North Holton and East Center Streets, about two miles north

All facts are drawn from the parties’ factual briefing unless otherwise
noted. (Docket #56 and #61).
2

Defendants dispute Taliyah’s paternity. (Docket #61 at 1). However, if
Defendants believe that Taliyah is not a proper plaintiff in this action, their
summary judgment motion should have raised the point. It does not. The dispute
is thus immaterial for present purposes.
3

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of this District’s courthouse. In doing so, Williams approached Samuel
Tooke (“Tooke”) and Zhanna Godkin (“Godkin”), who were walking home
from the Summerfest festivities. At the same time, Defendants Jason
Bleichwehl (“Bleichwehl”), Gregory Kuspa (“Kuspa”), Jeffrey Cline
(“Cline”), and Zachary Thoms (“Thoms”) were driving in two police cars
near the intersection, proceeding north on Holton Street. Cline and Thoms
then turned east onto Center Street, and observed Williams approaching
Tooke and Godkin.
Cline and Thoms thought Williams was attempting to rob Tooke and
Godkin. They believed that Williams had a gun, though he did not.
Williams did have a mask over his mouth “with a sinister smile printed on
it, which looked much like the smile of the ‘Joker’ character from the old
Batman series.” (Docket #56 at 12). He also held a cell phone under his
clothing which suggested that he was armed. Mathis, however, states that
he and Williams never discussed a robbery and saw no indication that
Williams intended to rob Tooke and Godkin as he approached them. In fact,
Williams had told Mathis that he knew Godkin when they first saw the
couple.
Cline and Thoms stopped their car in the street. When they did so,
Williams ran back across Holton Street towards an alley between Holton
and the next street to the west, Buffum. Cline ran after him. Cline lost
Williams in the alley and began searching in the adjacent yards. Thoms,
meanwhile, moved his car onto Buffum Street, and Bleichwehl and Kuspa
followed. Bleichwehl joined Cline’s search. Defendants Richard Ticcioni
(“Ticcioni”), Patrick Coe (“Coe”), Robert Thiel (“Thiel”), Todd Kaul
(“Kaul”), Chad Boyack (“Boyack”), Craig Thimm (“Thimm”), and David
Letteer (“Letteer”) (all defendant police officers referred to collectively as
Page 4 of 58

the “Officer Defendants”) responded to the scene to set up a containment
perimeter and assist in locating Williams. Ticcioni and Coe in particular
moved south down the alley, checking for Williams in various backyards.
At 12:44 a.m., Ticcioni and Coe found Williams hiding under a table
in a backyard, curled up in a ball. This was approximately eight minutes
after Williams first ran away from Cline. To reach that position, Williams
had run about 200 to 300 yards and jump over a fence. When he saw
Williams, Ticcioni yelled for Williams to show his hands. Williams
complied. Bleichwehl, Cline, Thoms, Kuspa, Thimm, and Letteer began
moving to that area when they heard Ticcioni yell. Thiel and Kaul also did
so soon afterward.
When Ticcioni attempted to grab Williams’ arm, his hands slid off
because Williams was soaked with sweat. It was still over 70 degrees in the
early morning hours of July 6, and Cline says he was breathing heavily and
sweating from his exertion. Williams was also breathing heavily but Cline
attributed this to his flight. Ticcioni and Coe say that Williams briefly
struggled with them, so they pulled Williams down such that he was laying
on his back. Ticcioni then flipped Williams over and put his knee in
Williams’ back as Coe applied handcuffs. Thoms, Kuspa, Cline, and Thimm
were present as Ticcioni and Coe handcuffed Williams.4 Bleichwehl, Theil,
Kaul, and Letteer arrived shortly after.5

Defendants attempt to dispute whether Cline was there, but Thimm
testified that Cline was in the group. (Docket #54-13 at 78:4-11).
4

Again, Defendants’ dispute of who was present is belied by Kaul’s
deposition testimony. (Docket #54-12 at 96:21-97:20).
5

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After handcuffing Williams, Ticcioni remained on top of him.
Williams complained that he could not breathe, so Ticcioni shifted the
majority of his weight off of Williams’ back. Ticcioni radioed to dispatch
that Williams was in custody, and during that transmission, Williams can
be heard stating that he cannot breathe. Ticcioni and Coe searched
Williams’ pockets while he was on the ground. They then pulled Williams
up to his feet. During this time, Williams repeated that he could not breathe.
Once standing, Williams went limp, so Thiel told Ticcioni and Coe to put
him back on the ground. Thiel gave this instruction so he could evaluate
Williams’ condition and because “I don’t want my officers hurting their
back holding dead weight.” (Docket #54-11 at 89:15-17).
Cline, Kuspa, Thoms, Thimm, Letteer, and Kaul variously began
searching for the gun they believed Williams carried and went back to
check on the alleged victims.6 Plaintiffs claim that this is no excuse for them
to ignore Williams or claim that they could not hear his breathing
complaints. Kuspa, Coe, Bleichwehl, and Ticcioni admit that they heard
Williams, but did not believe that he was having a medical emergency.
Cline, Thoms, Letteer, Theil, and Kaul deny hearing Williams’ requests for
help.
Once Williams was returned to the ground, Thiel attempted to speak
with him. Williams was breathing heavily and sweating, his eyes were
closed, and he was unresponsive to Thiel.7 Ticcioni felt that Williams was

Boyack never actually went into the backyard; he was entirely engaged in
searching for evidence.
6

The Officer Defendants differ on the intensity of Williams’ breathing; Thiel
did not see him breathing heavily. (Docket #54-11 at 91:21-92:6). Thoms and
7

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faking distress in order to make it more difficult for officers to remove him
from the backyard, so he told Williams to “stop messing around.” (Docket
#54-14 at 4). Thiel then performed a “sternum rub” on Williams, which
involves rubbing one’s knuckles across a person’s sternum. This painful
procedure is meant to determine whether the person is truly unconscious.
Thiel’s sternum rub caused Williams to open his eyes and become
responsive. Thiel claims that Williams said he was “just playing around”
with the alleged victims and that they were his friends. (Docket #48 at 8).
Theil and Coe agreed with Ticcioni’s conclusion that Williams was simply
resisting arrest.
Ticcioni and Coe were then able to bring Williams back to his feet
and move out of the backyard. Williams continued to claim that he could
not breathe. On the way out of the backyard, Thiel did another sternum rub
while Williams was standing. After that, Thiel told Ticcioni and Coe to take
Williams “out front.” (Docket #69-1 at 83:9-16).
Terri Giles (“Terri”) lived in a home near the yard where Williams
was hiding. From her porch, she saw Williams after he was arrested. She
could hear someone saying “I can’t breathe,” though she could not identify
the source of the statement. She also heard the officers talking and another
woman screaming. Her son, Terrance Giles, also saw Williams and heard
him complain about being unable to breathe, loudly enough that all of the
officers could have heard. He further heard the officers telling Williams to
shut up. While observing the scene from the porch, Terri’s boyfriend,

Ticcioni, however, did observe heavy breathing. (Docket #54-4 at 99:3-7; Docket
#54-14 at 4). At this stage, this inconsistency must be interpreted in Plaintiffs’ favor.

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Chauncey Wright (“Wright”), called someone and told them that the police
were killing someone, and that this person said they could not breathe.8
From the time Williams was found in the backyard to when Thiel
performed the second sternum rub, none of the officers called for medical
assistance. Approximately five minutes elapsed between the time Ticcioni
called in that Williams was in custody and the time dispatch asked for
officers to meet with the victims. Ticcioni and Coe then led Williams out of
the backyard towards Buffum Street. Cline, Bleichwehl, and Thoms went
with them. The distance to the front of the house was approximately fifty
feet. During the journey, Plaintiffs claim that Williams went limp and had
to be dragged by officers, who told him to stop “playing games.” (Docket
#54-7 at 183:11-21). Defendants believe that Williams dragged his feet and
went limp intentionally to obstruct the officers’ efforts to move him. As
Williams was being moved, he repeated that he could not breathe.
The group was blocked by a “for sale” sign on their way to the street.
Coe let go of Williams to move the sign, and when he did, Williams fell face
first onto the ground. Defendants note that Williams was not intentionally
dropped; in their view, Williams himself caused the fall. Ticcioni and Coe
picked Williams back up by his arms and dragged him to the front yard.
Austin states that Williams’ body was limp and he “looked like he was
already dead.” (Docket #54-25 at 2). Ricardo Fernandez, another neighbor,

Wright has not actually offered testimony to this effect. Plaintiffs cite the
affidavits of Teirra Giles (“Teirra”), Terri’s daughter, and Sharon Austin
(“Austin”), another neighbor, to prove that Wright had called 911. Defendants are
correct that these statements are inadmissible hearsay to the extent they are used
to prove that Wright actually called 911 or as to what the 911 operator said in
response. However, the statements are not hearsay when used to show what Teirra
and Austin heard Wright say.
8

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indicates the opposite was true; according to him, Williams was taken to
the car without difficulty. During this movement, Williams continued to
say that he could not breathe, and the officers “cursed” at him (the precise
curse words used are not stated). Lachelle Brown (“Brown”) saw what was
happening and called 911, informing the operator that Williams was yelling
about being unable to breathe and calling for help. The operator responded
that because police officers were on scene, only they could call for medical
assistance. Ticcioni, Coe, and Bleichwehl do not recall Williams saying that
he could not breathe during the trip to the squad car.
Once the group reached the squad car, Ticcioni commanded
Williams to get in the back seat. Williams did not respond. Defendants
assert that Williams was then “bent . . . at the waist and directed . . . into
the rear seat”; Plaintiffs contend that Williams was thrown into the vehicle.
(Docket #54-14 at 4; Docket #54-21 at 15:24-16:1). There were a number of
other officers present when Williams was put in the car, including Cline
and Kaul. None of the other officers, however, discussed their prior
observations of Williams’ condition with Cline, in whose car Williams had
been placed.
Cline sat in the driver’s seat of his car and activated the recording
system therein. The audio recording did not start until thirty seconds after
the video recording was activated. As soon as he entered the car, the video
shows Williams rocking back and forth and moving his mouth as if he was
saying something. Cline admits that he noticed Williams’ movements. Cline
denies hearing any complaints about being unable to breathe during this
time. According to Plaintiff’s lip-reading expert Consuelo Gonzalez
(“Gonzalez”), Williams at one point said “I’m gonna die.”

Page 9 of 58

Once the audio was activated, Williams, Cline, and Bleichwehl spoke
at various times, though not in a form that could be described as a dialogue.
Cline first asked Williams for his name. Williams did not answer the
question, but instead continually repeated that he could not breathe and
said “I’m dying.”9 He rocked around in the back seat of the car while
moaning, saying “sir” frequently, and begging for help. At one point,
Williams specifically asked for an ambulance. Cline told Williams that he
was “breathing just fine” and commented that he was “playing games.”
(Docket #54-30 at 2). Cline nevertheless rolled the rear window down and
turned on the air conditioner. Ticcioni and Bleichwehl were standing beside
the car while this went on.
Defendants dispute what the officers heard or did not hear Williams
say. However, while standing outside her house, Austin could hear
Williams’ cries. Rose arrived at the scene during this period and spoke
briefly with Cline near the car. Cline apparently told her that Williams had
tried to rob a house. Rose could hear her boyfriend saying that he could not
breathe and saw him rocking around in the back seat.
During the entire time he was seated in the car, Cline did not request
medical assistance for Williams or even look at him, either by turning his
head or switching on a video feed at the computer by the driver’s seat.
Cline, like the other officers, thought Williams was engaged in petty
obstructionism rather than suffering genuine distress. Cline eventually left
the car to assist with evidence gathering, and Bleichwehl took his place in

Defendants attempt to dispute that Williams ever said “I’m dying.” The
Court is confused by this; at 12:49:18 a.m. (1:36-38 of the video file) Williams can
be clearly heard making that statement. (Docket #54-29). Admittedly, the second
instance of Williams saying “I’m dying,” at 12:53:07 a.m. (5:27 of the video file), is
rather muddled. Id.
9

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the driver’s seat. The two had a brief exchange about Williams (with
Ticcioni present) but it did not concern Williams’ breathing complaints. By
the time Bleichwehl asked for Williams’ name, Williams was slumped over
in the seat and was non-responsive. Williams’ final actions were slight
jerking movements of his arms. Like Cline, Bleichwehl did not use his
computer to view the backseat, and only turned his head about thirty
seconds after Williams’ final movement.
Upon observing Williams motionless, Bleichwehl got out of the car
and opened the rear door. He checked Williams for a pulse and breath, but
neither were present. By this point, Bleichwehl had not concluded that
Williams’ medical situation was serious; he left open the possibility that
Williams was continuing to simply be uncooperative. Rose approached the
car from that side, but Bleichwehl told her to return to the side of the street.
Bleichwehl then went to the other side of the car and lifted Williams to a
seated position. He again checked for a pulse but found none.
Bleichwehl did not immediately seek medical assistance. Instead, he
went to another police car for help. Apparently, none was forthcoming, as
he returned to Cline’s car alone. Bleichwehl pulled Williams from the car
and called for help from other officers via his radio. Boyack responded and,
for the first time, requested medical help. This was approximately fifteen
minutes since Williams had been taken into custody, twelve minutes after
he was put in the back seat of the car, and three minutes after Bleichwehl
first saw him motionless. Bleichwehl did not start applying CPR to
Williams until he found a plastic bag or mouth guard to use as a barrier

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between their mouths.10 Many more officers came to help and they rotated
giving mouth-to-mouth and chest compressions. Fire department
paramedics took over at 1:08 a.m., twenty-four minutes after Williams was
found under the table in the backyard. At that point Williams still lacked a
pulse or breath. Paramedics were unable to revive Williams and he was
pronounced dead at 1:41 a.m.
3.1.2

Cause of Death and Related Medical Evidence

On August 30, 2011, Milwaukee County Assistant Medical Examiner
Christopher Poulos (“Poulos”) signed the first autopsy protocol for
Williams, declaring that his death was caused by sickle cell crisis11 due to

By affidavit filed with Defendants’ reply materials, Bleichwehl says that
he began CPR without mouth protection. (Docket #64 at 3). Boyack, however,
states that he did not think CPR was started prior to finding a mouth barrier.
(Docket #54-33 at 118:19-119:9). As it favors Plaintiffs, the Court must credit
Boyack’s account.
10

11

The Centers for Disease Control and Prevention describe cell sickling:

Healthy red blood cells are round, and they move through
small blood vessels to carry oxygen to all parts of the body. In
someone who has [sickle cell disease], the red blood cells become
hard and sticky and look like a C-shaped farm tool called a “sickle”.
The sickle cells die early, which causes a constant shortage of red
blood cells. Also, when they travel through small blood vessels,
they get stuck and clog the blood flow. This can cause pain and
other serious problems such infection, acute chest syndrome and
stroke.
Centers for Disease Control and Prevention, Facts About Sickle Cell Disease,
https://www.cdc.gov/ncbddd/sicklecell/facts.html. Milwaukee County Medical
Examiner Brian Peterson describes death by sickle cell crisis: “fundamentally
what’s happening is asphyxia at the blood vessel level as the blood vessels plug. I
think a patient will experience that as difficulty breathing.” (Docket #38-5 at 98:2299:5).

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Williams’ sickle cell trait,12 and that the death was natural. A second
autopsy protocol was prepared on September 17 and 18, 2012. In the second
protocol,

Milwaukee

County

Medical

Examiner

Brian

Peterson

(“Peterson”) and Poulos revised the cause of death, stating that the sickle
cell crisis was brought about by Williams’ flight from and altercation with
police. They declared that the manner of death was homicide.13 They moved
mention of Williams’ sickle cell trait to the “other significant conditions”
section of the form.
The second protocol went on to address other facts relevant to
Williams’ death. After his death, Williams’ blood tested positive for
marijuana. Peterson testified that marijuana use alone would not cause
sickling and result in death, though smoking it may be one of many bodily
stressors which can induce sickling.14 Peterson said that other stressors
could include heat, dehydration, situational stress, and hypoxemia—low
blood oxygen—which may have stemmed from Williams wearing the joker
mask. Both protocols also reported blunt force injuries to Williams’ head,

Sickle cell trait is the presence of one sickle cell gene in a person, inherited
from either parent, and is generally not considered a serious medical condition.
(Docket #68-12 at 48:18-49:25). Sickle cell disease, the existence of sickle cell genes
inherited from both parents, is a recognized medical condition which can cause
sickling (outside the context of the acute crisis described by Peterson). Id. The
disease is usually discovered soon after birth, via blood tests, or otherwise in the
first year of life. Centers for Disease Control and Prevention, Facts About Sickle Cell
Disease, https://www.cdc.gov/ncbddd/sicklecell/facts.html.
12

In the parlance of medical examiners, “homicide” simply means that
someone died with another person involved, not that anyone wrongfully caused
the death.
13

Rose reported that Williams seemed normal when he left the house on
July 5, 2012, and did not appear to be on any drugs. Defendants note that Mathis
thought Williams was “very hyper.” (Docket #38-3 at 62:15-18).
14

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neck, torso, and limbs, though the precise cause—whether force applied by
the officers or something else—is not stated. None of those injuries were
fatal and Peterson opined that they did not trigger the crisis.
Poulos and Peterson’s cause of death determination was based on
their review of tissue samples showing blood vessels distended with
sickled cells (such clumps are known as “thrombi”), their belief that the
sickling was an ante-mortem process, and Peterson’s review of the squad
car video. Alice Briones (“Briones”), a medical examiner with the United
States Armed Forces Medical Examiner System, reviewed the autopsy
reports at the FBI’s request. Briones found that while Williams’ sickle cell
trait may have contributed to his death, the actual cause of death was
indeterminable. She did not see evidence establishing the cause of sickling,
whether it occurred before or after death, or explaining why other areas of
Williams’ body lacked thrombi.
The next medical opinion on Williams’ cause of death came from
Harry Jacob (“Jacob”), a hematologist and oncologist who was called to
testify at the inquest into Williams’ death. Jacob, an expert on sickle cell
disease, stated that those who bear the sickle cell trait can die of it suddenly
in the form of sickle cell crisis. Jacob testified that it can take minutes to
hours for the blood cells to sickle. Jacob did not think that Williams would
have survived even if Defendants had taken him to the hospital when they
reached the street, instead of putting him in the car. Jacob says that Williams
would not have lasted long enough for doctors to complete a blood
transfusion, the only sure treatment for sickle cell crisis.
Lieutenant James Arps (“Arps”), a Milwaukee Fire Department
paramedic, also testified at the Williams inquest. Arps opined that if
paramedics had been called earlier, when Williams was responsive and had
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a pulse, their treatment options would have been greater. These options
would include speaking with Williams about his condition, evaluating his
breathing and blood oxygen level, and treating him with oxygen or other
medicines. Paramedics are trained to stabilize critical conditions in general
and treat patients on the way to a hospital. Thus, Arps concluded, whether
or not paramedics had specific knowledge that Williams carried the sickle
cell trait, their treatment approach would have remained the same.
Plaintiffs retained emergency room physician Trevonne Thompson
(“Thompson”) to review Williams’ treatment (or lack thereof). Thompson
opines that had Williams been provided medical treatment prior to losing
consciousness, his chances of survival were high. The rate of survival for
patients who present to a hospital’s emergency room with some measurable
vital signs is over ninety-nine percent. In Thompson’s view, the stabilizing
care paramedics could have afforded a responsive and breathing Williams
would likely have kept him alive long enough to reach an emergency room.
Defendants counter with the opinion of Daniel DeBehnke (“DeBehnke”),
another emergency room physician, who claims that establishing a
likelihood of survival without a definitive cause of death is speculative.
3.1.3

MPD Policies Related to Williams’ Death

Plaintiffs’ policy evidence can be divided into two sets. The first
supports their view that the MPD’s training is deficient with respect to
suspects who report breathing complaints. The second posits that the
combination of a recurrent failure to appropriately discipline officers, along
with a code of silence among MPD personnel, emboldened Defendants to
ignore Williams’ complaints and act in concert to cover up their
wrongdoing after the fact. The Court discusses each set of evidence in turn.

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3.1.3.1

Respiratory Distress

Plaintiffs maintain that one of the reasons none of the officers sought
timely medical care for Williams was defective training. Specifically, they
note that Defendants were trained using the principle that “if you can talk
you can breathe.” Defendants acknowledge that this principle was part of
their training and practice prior to the Williams incident, and that it played
a role in their response to Williams’ distress. Plaintiffs contend that this
principle, as well as general CPR training, was the entire extent of MPD
training on dealing with people in custody who have respiratory problems.
Defendants dispute this, pointing to the plethora of topics addressed
in officer training regarding medical care for breathing conditions. Officers
are trained as first responders, which includes evaluating people in medical
distress and, inter alia, checking their breathing. Officers are specifically
trained to assess strokes, seizures, diabetic emergencies, poisoning, and
allergic reactions, all of which involve assessment of, and sensitivity to,
breathing problems. Further, the training materials provided to officers
provide guidance on evaluating a person’s ability to breathe. Defendants
maintain that they knew that being able to talk did not indicate the quality
of a person’s breathing. They further note that prior to Williams, no person
had died while in MPD custody due to sickle cell crisis.
Relatedly, Defendants note that in their time as MPD officers, each
has encountered someone who ran from them and, when apprehended,
stated that they could not breathe. Defendants attributed those statements
to the person’s recent physical exertion, not a medical issue, and did
likewise in Williams’ case. Defendants do not dispute, however, that there
is a difference between being out of breath and being unable to breathe.

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Plaintiffs counter by showing that the MPD knew its breathingrelating training was deficient well before the Williams incident. Police
academy instructor Rupert Reilly (“Reilly”) knew that the “if you can talk
you can breathe” principle was incorrect at least by 2009. The Milwaukee
Fire Department updated this aspect of its training at that time, but the
MPD did not do so until after Williams’ death. Reilly also acknowledged
that he could not recall ever training officers on evaluating the authenticity
of a breathing complaint. Further, prior to Williams’ death, the MPD had
no rules or standard operating procedures dictating when officers should
seek medical attention for a suspect complaining of breathing issues.
Plaintiffs also point to prior incidents involving the MPD and
persons in respiratory distress. In September 2010, James Perry (“Perry”)
died in MPD custody with, among other things, complaints of being unable
to breathe. At one point, an officer related the “if you can talk you can
breathe” principle to him. Milwaukee Chief of Police Edward Flynn
(“Flynn”) was briefed on the Perry incident but made no changes to MPD
training or regulations. The MPD investigation into Perry’s death found no
wrongdoing by any officer. Defendants maintain that the Perry incident is
distinguishable from Williams’ because it involved many other conditions,
including multiple seizures, drooling and spitting from the mouth, and at
least some professional medical attention (at a hospital and in jail).
Turning to Williams himself, Flynn was briefed on the matter in the
days after July 6, 2011, which included watching the squad car video. At his
deposition in this case, Flynn called the video “disturbing.” (Docket #54-46
at 33:17-19). However, Flynn did not conclude that the officers had done
anything wrong, because their perception of Williams was auditory rather
than visual, and “they did not perceive his breathing problems as
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authentic[.]” Id. at 36:1-8. Of course, Cline or Bleichwehl could have simply
switched on the video feed showing Williams in the back of the car. Flynn
claims that he did not know this was possible, either in 2011 or at his
deposition in April 2017.
MPD Standard Operating Procedure (“SOP”) 090.10, titled “Physical
Restraint of Prisoners,” provides that officers should constantly monitor
those in custody, remain cognizant of changes in their medical condition,
and if treatment becomes necessary, radio for assistance.15 Reilly teaches
officers that this monitoring must include visual and auditory contact with
the suspect. Flynn, nevertheless, claims that although no officer looked at
Williams during the entire eight minutes he was in the car, SOP 090.10 was
not violated.
Theil and Kaul, as sergeants, were responsible for supervising the
Williams incident and were ultimately responsible for Williams’ wellbeing. Neither paid much attention to Williams being handcuffed and were
worried about other matters, like finding a weapon and tracing Williams’
flight path. Both lost contact with Williams as he was led out to the car, and
they did not see Williams in the car. Kaul did not come back to Williams

15

SOP 090.10 specifically states:

It cannot be overemphasized that [officers] shall continually
monitor and remain cognizant of the condition of a person in
custody, especially when he/she is in restraints. The arrestee may
encounter immediate or delayed physical reactions that may be
triggered by the change in physical or environmental factors.
Therefore, caution and awareness on the part of the officer is
constantly required.
(Docket #54-48 at 3).

Page 18 of 58

until the medical assistance call went out, and Theil did not return until
Williams was dead.
In July 2012, in light of the Williams case, the Milwaukee Fire and
Police Commission (the “Commission”) recommended that the MPD
consider changes to officer training. In September 2012, the squad car video
was publicly released for the first time.16 Later that month, Flynn gave an
interview with a local news station, wherein he acknowledged that the
officers had made an “error in judgment” in responding to Williams, and
that the MPD took responsibility for not reacting more rapidly to William’s
medical needs. Id. at 88:5-23. On the same day as the interview, Flynn issued
a memorandum to the entire MPD, directing that in response to the
Williams incident, officers must seek medical attention for anyone they
have contact with who is in medical distress, including breathing problems.
This new rule removed officers’ discretion to ignore or discount a subject’s
respiratory complaints. A training video was also shown at all MPD officer
roll calls which dispensed with the “if you can talk you can breathe”
principle and reiterated the new policy in Flynn’s memorandum.17
3.1.3.2

Code of Silence

The Officer Defendants know that, according to MPD policy, they
must report the misconduct of their fellow officers to supervisory
personnel. They claim that they would report such misconduct if they saw

Flynn claims the delay in releasing the footage was initially due to the
ongoing investigation, and later because the MPD was waiting for the Williams
family’s permission to do so. Plaintiffs counter that the family’s lawyer had been
requesting public release of the video from the outset.
16

These changes were formally codified in a revised SOP 090 which was
issued a year later.
17

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it and believe that other officers would do the same. The Officer Defendants
state that they did not observe any misconduct throughout the Williams
incident and none is aware of any of their co-defendants failing to report
any such misconduct. Defendants also assert that all citizen complaints
received by the MPD are thoroughly investigated and, if substantiated,
discipline is imposed accordingly.
Plaintiffs disagree, arguing that the evidence in this case and the
recent history of the MPD reveals a “widespread and deeply rooted code of
silence within the MPD[.]” (Docket #56 at 11). Plaintiffs describe the code’s
application here:
There is compelling evidence . . . that the District 5 Late
Power Shift officers were engaged in a pattern and practice of
unconstitutional conduct against African American suspects
in their District for years before Derek Williams’ death, that
this conduct was not revealed by these officers and was not
subjected to any discipline or supervision until well after
Derek Williams’ death, that these officers, including several
of the main defendants herein, not only did not reveal their
knowledge and participation in that pattern and practice
before Williams’ death, but also participated in a cover-up of
the true nature of his death, all against a backdrop of the
broader operation of the code of silence in these and other
preceding high profile police misconduct cases.
Id.
Applying the code to Williams’ case, Plaintiffs first question the
validity of the MPD’s internal investigation into Williams’ death. Neither
Theil nor Kaul was interviewed by MPD detectives, made any police
reports on the incident, or were disciplined in any way for their actions.
Detectives did not discuss with Cline the fact that he was sitting in the car
during the first portion of the video. In fact, investigators did not initially

Page 20 of 58

identify Cline as a subject of the investigation, and once that changed, they
conducted only one brief interview with him. The detective who
interviewed Ticcioni allowed him to review the detective’s report to “verify
its accuracy.” (Docket #54-52 at 2). Flynn believes the investigation was
“thorough and complete.” (Docket #54-46 at 180:15-22). In April 2012, the
investigation was closed and found no wrongdoing by any of the officers.
Flynn, having reviewed the investigation materials and the squad car video,
concurred in that assessment. Further, Flynn found no violations of any
MPD SOP in the Williams incident.
Flynn gave an interview to another news outlet in October 2012.
There, he made various comments, including that the officers’ conduct
appeared “callous and uncaring,” and that the public was “understandably
horrified.” (Docket #54-62 at 3). Flynn maintained, however, that the
officers were simply negligent; they had not done anything willfully wrong,
because they did not believe Williams’ complaints. Flynn also made
statements at a Commission hearing on the Williams case. In sum, these
were that his new September 2012 policy removed officers’ discretion in
whether or not to believe someone when they claim breathing difficulties.
Flynn also emphasized that going forward, the MPD should err on the side
of caution in seeking medical help for people in respiratory distress.
In February 2013, the Williams inquest was concluded and the jury’s
verdict recommended that Ticcioni, Cline, and Bleichwehl be criminally
charged for violating Wisconsin law in failing to come to Williams’ aid.18
The MPD, however, did not reopen its investigation and determined that

At his deposition, Flynn expressed no concern with the fact that Cline,
Bleichwehl, Coe, and Ticcioni invoked the Fifth Amendment to avoid testifying in
the inquest proceedings.
18

Page 21 of 58

its findings of exoneration should stand. Flynn agreed. During his
deposition, Flynn maintained that under then-existing policy, it was not a
violation of MPD policy to not call for medical assistance absent “bleeding
or a clear inability to breathe or some clear undeniable evidence of medical
distress.” (Docket #54-46 at 157:2-158:15).
In the same timeframe as the Williams case, a strip search scandal
arose involving the MPD. In brief, the scandal involved a certain group of
MPD officers, also part of the District Five late power shift, who unlawfully
searched many citizens for drugs or other illegal contraband by pulling
down their pants, or reaching into their underwear, in public places. In
October 2012, Flynn spoke at a press conference addressing the scandal. The
press conference announced that four of the officers involved were being
charged criminally for their conduct. Flynn said he was “disgusted by the
willful actions of some of the officers in our police department and I’m
appalled by the willful inaction of some other officers . . . for failing to stop
egregious conduct.” (Docket #54-60 at 2-3). The group of officers in question
included Cline, Bleichwehl, Kuspa, and Thoms. Though Flynn’s discussion
of “egregious conduct” appeared to reference only the strip search issue,
not the Williams’ incident, he was aware that there was some identity
between the officers involved in each. (Docket #54-46 at 98:12-22). When the
strip search scandal broke in March 2012, Flynn stated that the matter was
a serious training issue, and his belief was echoed by the officers who had
been charged.19

Plaintiffs claim that in the strip search scandal, no officer reported the
illegal searches and during the subsequent investigations, no officer voluntarily
gave inculpatory information. For this proposition, they cite only to the expert
report prepared in one of those cases. The strip search report is hearsay when
offered to prove the truth of that proposition and therefore cannot be considered
19

Page 22 of 58

Thoms cooperated in the strip search investigation after being
granted immunity from prosecution. Plaintiffs note that he was later called
a “snitch motherfucker” by Vagnini (one of the four officers who were
prosecuted) and had a bullet placed in his locker. Defendants minimize the
snitch comment, as Thoms claimed it arose from a time when he had
“tr[ied] to help Officer Vagnini when he was inebriated.” (Docket #54-71 at
129:11-23). Besides the four officers who were criminally charged, no other
officers of the District Five power shift or their supervisors were disciplined
as a result of the strip search scandal, and all but Bleichwehl remain
working as officers or are on paid disability leave. Flynn reviewed at least
some of the strip search investigations and approved their findings that no
discipline should be imposed. Finally, Flynn approved multiple
promotions for Michael Brunson and Edith Hudson, while knowing that
each had presided over the District Five power shift during their rash of
illegal strip searches.
The remainder of Plaintiffs’ evidence on the MPD’s failure to
discipline and code of silence is best presented in a bulleted timeline:
i.

In 1991, the City mayor formed a citizen commission to
review police-community relations. The citizen commission’s
investigation led to its determination that a “code of silence”
existed within the MPD.

ii.

Between 2000 and 2007, Jason Mucha (“Mucha”) worked on
the District Five power shift. He was involved in dozens of

at summary judgment. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th
Cir. 1996) (“The evidence relied upon [at summary judgment] must be competent
evidence of a type otherwise admissible at trial.”). Though Plaintiffs might have
supported their assertion with other evidence, they did not do so.

Page 23 of 58

alleged uses of excessive force, theft, and planting of drugs.
Mucha was not, however, disciplined for any of this, and was
in fact encouraged to continue his street activities by his
supervisors. Mucha was promoted to sergeant in 2005 and
became the supervisor of the District Five power shift.
iii.

In 2004, Frank Jude (“Jude”) was beaten by MPD officers. In
2006, officer Nicole Belmore testified against her fellow
officers who did the beating. She was retaliated against
severely, including being called a rat, having her property
vandalized, making obvious and coordinated attempts to
avoid

her

presence,

interfering

with

her

radio

communications, and refusing to provide backup in the field.
iv.

In June 2006, Richard Jerome (“Jerome”) of the Police
Assessment

Resource

“Promoting

Police

Center

issued

Accountability

a
in

report

titled

Milwaukee:

Strengthening the Fire and Police Commission.” (Docket #5465). Jerome found that the Commission’s citizen complaint
system was “broken beyond repair.” Id. at 52. One of the goals
of the system is to identify trends of police misconduct, but
the atypically low complaint sustainment rate revealed that
the system was not working. The Commission further failed
to audit MPD policies, citizen complaints received by it or the
MPD, or civil actions filed against the MPD or its officers.
v.

In January 2009, the local radio station WUWM published an
article on an interview with Flynn after his first year as police
chief. The article stated:

Page 24 of 58

Flynn says he’s trying to change police
culture and the code of silence that has plagued
the department in the past. He says other big
city police departments have experienced
similar behavior on the part of officers to cover
up misconduct. He says he’s working with the
International Association of Chiefs of Police on
a new leadership code.
(Docket #54-68 at 3).
vi.

Nanette Hegerty (“Hegerty”), former chief of the MPD, gave
a deposition in 2015, in the context of one of the civil lawsuits
arising from the strip search scandal. Hegerty stated that
there was a code of silence in the organization, though with
the caveat that many organizations have such codes. Flynn
says that her opinion is erroneous. In his deposition in this
case, Flynn disagreed with Plaintiffs’ counsel’s suggestion
that the code’s effect was apparent in the strip search
scandal.20

Plaintiffs’ final item of evidence comes from Roger Clark (“Clark”),
an expert on policing practices. Clark opines that Defendants’ conduct in
handling the Williams incident fell below the standard of proper police
practices. Clark believes, unlike Flynn, that the officers’ conduct violated
SOP 090.10. He further finds that the MPD failed to conduct a thorough
investigation or appropriately discipline those officers who were involved.
Clark contends that the MPD’s training on respiratory distress was

In fact, Flynn felt the MPD was hard-done by criticism from the local
newspaper, the Milwaukee Journal-Sentinel, and accused them of having a code of
silence (though to what end, the Court does not know).
20

Page 25 of 58

woefully inadequate. His primary conclusion is that the MPD does indeed
have a pervasive code of silence.
3.2

Motion to Strike

In opposing summary judgment, Plaintiffs have offered the opinions
of a number of experts. Defendants subsequently moved to strike the
opinions of three: Gonzalez, Clark, and Thompson. Federal Rule of
Evidence (“FRE”) 702 controls the admissibility of expert opinions. It
provides that
[a] witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the form
of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and methods
to the facts of the case.
Fed. R. Evid. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the
Supreme Court set forth a list of factors to aid in assessing the FRE 702
elements. 509 U.S. 579, 593-94. These factors include:
(1) whether the expert's technique or theory is testable or has been
tested;
(2) whether the technique or theory has been subject to peer review
and publication;
(3) the known or potential rate of error in applying the technique or
theory;
(4) whether standards and controls exist and were maintained; and
(5) whether the technique or theory is generally accepted in the
scientific community.

Page 26 of 58

United States v. Lewisbey, 843 F.3d 653, 659 (7th Cir. 2016) (citing Daubert, 509
U.S. at 593-94). These factors are “neither exhaustive nor mandatory,” and
“[u]ltimately, reliability is determined on a case-by-case basis.” C.W. ex rel.
Wood v. Textron, Inc., 807 F.3d 827, 835 (7th Cir. 2015).
The district court serves as a gatekeeper of expert testimony,
determining its admissibility prior to such testimony being presented to the
trier of fact. United States v. Moshiri, 858 F.3d 1077, 1083 (7th Cir. 2017). This
gatekeeping function applies to all forms of expert testimony, not just that
based on traditional science (medicine, life and physical sciences,
economics, etc.). The focus of this inquiry “is not the ultimate correctness of
the expert’s conclusions. Instead, it is the soundness and care with which
the expert arrived at her opinion[.]” Schultz v. Akzo Nobel Paints, LLC, 721
F.3d 426, 431 (7th Cir. 2013). “So long as the principles and methodology
reflect reliable scientific practice,” the Seventh Circuit instructs,
“‘[v]igorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.’” Id.
(quoting Daubert, 509 U.S. at 596).
Plaintiffs’ experts opine on different topics and the parties have
addressed them separately. With the above principles in mind, the Court
will follow suit.
3.2.1

Consuelo Gonzalez

Gonzalez is offered as an expert in lip reading. See (Docket #68-1 at
1). She is a “native” lip reader, having utilized that process for all verbal
interactions since she was four years old. Id. at 3. Gonzalez has taught lip
reading since 1982, and has provided professional lip-reading translation
services since 1987. Id. As to her efforts in this case, Gonzalez was retained
Page 27 of 58

to convey what Williams said during the initial thirty seconds of the squad
car footage, which lacks audio. Gonzalez reviewed that segment and could
only transcribe one phrase: “I’m gonna die.” Id. at 2. As to the remainder of
the non-audio portion of the recording, Gonzalez states that the poor video
quality, lighting, and camera orientation make further transcription
impossible. Id.
Defendants attack Gonzalez’s opinion in two ways. Their first
argument is directed at her qualifications. Their position is bizarre and so
the Court quotes it precisely: “Ms. Gonzalez provides no description of her
prior experience in reading the lips of a speaker, whose speech is captured
on videotape which lacks an audio component.” (Docket #67 at 9). This is
the very purpose of lip reading; if audio had been recorded along with the
video, Gonzalez’s services would be unnecessary. Defendants nevertheless
maintain that Gonzalez is unqualified because “the plaintiffs utterly fail to
provide this Court with any citation to any court case in which Ms.
Gonzalez has been certified as an expert, with reference to accurately
transcribing the speech of a speaker, which is captured on poor-quality
videotape, and for which there is absolutely no audio component.” (Docket
#73 at 2). This is not the standard for expert qualifications, though. Gonzalez
need not have been previously accepted as an expert by some other court
for this Court to do so. The Court is satisfied that Gonzalez’s lifetime of
practice and decades of professional lip-reading adequately equip her to
opine on the subject.
Defendants’ second contention is unreliability, both that the science
of lip reading is generally questionable, and that the poor video quality in
this case makes Gonzalez’s efforts suspect. As to the first proposition,
Defendants cite various internet articles, including one from Wikipedia,
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which find that the percentage of accurate translation in lip reading is
something less than thirty percent. Gonzalez counters, by affidavit, that
Defendants’ articles misrepresent the accuracy confidence that can be
applied to lip-reading. In her view, accuracy can range from zero to onehundred percent depending on the circumstances. The thirty percent
accuracy figure is “an urban myth that has spread with increased use of the
Internet . . . and with the relaxed documentation of sources.” (Docket #70-1
at 3). The Court finds that this dispute is best left to cross-examination and
does not form a basis for outright exclusion of Gonzalez’s opinion. As
explained by the Supreme Court, recognized science is not the only valid
basis for expert testimony; “[i]n [some] cases, the relevant reliability
concerns may focus upon personal knowledge or experience.” Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999). Here, Gonzalez’s expertise is
more than adequately grounded in her personal experience to warrant
admitting her testimony. Defendants are free to challenge her testimony by
explaining to the jury their belief that lip reading is unreliable.
As to the reliability of Gonzalez’s opinion in this case, it is unlike that
of the lip-reading expert in the Quinn case cited by the parties. There, the
court assumed that lip-reading was a valid area of expertise and that the
expert was appropriately qualified. Quinn v. Pipe & Piling Supplies (U.S.A.)
Ltd., No. 09-CV-161, 2011 WL 13124629, at *2 (W.D. Mich. Mar. 21, 2011).
The court nevertheless excluded the opinion due to the poor quality of the
video at issue, the fact that the subjects were not always facing the camera,
and distortion in the video due to it being substantially reformatted. Id. The
expert

could

only

produce

“scattered,

incomplete,

and

nearly

incomprehensible snippets of dialogue” which would “serve to confuse
rather than assist the jury.” Id. at *3. The transcript of the video confirmed
Page 29 of 58

this, as it was “riddled with omissions due to lack of visibility, time
variability, or poor video quality.” Id.
By contrast, Gonzalez openly acknowledges that the poor video
quality in this case prevented her from translating most of the relevant
segment. She specifically states that at the time Williams says “I’m gonna
die,” he is looking directly at the camera. Upon its own review of the
footage, the Court agrees that even with generally poor lighting conditions
and Williams’ erratic movements, this statement can be seen clearly. Thus,
while the translation Gonzalez produced is exceedingly brief, it is not so
scattered or incomplete such that it must be considered wholly unreliable.
3.2.2

Roger Clark

Clark offers opinions on the Officer Defendants’ conduct in this case
and the MPD’s policing practices, namely how each were deficient and how
those deficiencies led to Williams’ death. Clark worked in the Los Angeles
County Sheriff’s Department for twenty-seven years and spent most of that
time in a supervisory role. (Docket #68-5 at 19). At the time of his retirement,
he had certification in California Peace Officer Standards and Training
(“POST”), and also graduated from the POST Command College. Id.
During his service, Clark performed regular duties as a sheriff’s deputy, in
the field as well as the county jail, and taught at the department’s patrol
school. Id. at 20.
Toward the end of his policing career, Clark commanded a
specialized unit called NORSAT, created to investigate career criminals and
arrest them. Id. at 21. In the first three months of his command of NORSAT,
Clark’s officers had three instances where they had to fire their weapons,
and in the subsequent five years, they arrested more than two thousand
hardened criminals without firing a shot. Id. Clark attributes this record to
Page 30 of 58

proper training, management, and supervision of officers, as well as
adherence to high moral and ethical standards of police practice. Id. Clark
states that these same principles have been adopted by every state (as far as
he knows) and the U.S. Department of Justice. Also during his NORSAT
command, Clark was tasked with writing a field operations manual on
tactical deployments during arrests and seizures. Id. at 22.
Since his retirement from policing in 1993, Clark has worked as a
policing practices consultant, having been retained as a consultant or expert
in more than 1,500 cases. Id. at 21-24. He has testified or offered an expert
report in a substantial number of state and federal courts throughout the
country. Id. at 22. Recently, Clark has evaluated the practices and
procedures of the MPD in connection with the strip search scandal and
resultant civil lawsuits. See Chavies Hoskin v. City of Milwaukee, et al., 13-CV920-JPS, (Docket #110-218).
Defendants first claim that “policing practices” is not a recognized
subject for expert testimony. Defendants’ opening brief rests this argument
on questionably relevant caselaw more than two decades old. Whren v.
United States, 517 U.S. 806, 815 (1996); Berry v. City of Detroit, 25 F.3d 1342,
1352 (6th Cir. 1994); Peterson v. City of Plymouth, 60 F.3d 469, 475 (8th Cir.
1995). Plaintiffs respond that recent Seventh Circuit authority finds policing
practices expert testimony “relevant and helpful” in giving “a jury a
baseline to help evaluate whether a defendant’s deviations from [policing]
standards were merely negligent or were so severe or persistent as to
support an inference of intentional or reckless conduct that violated a
plaintiff’s constitutional rights.” Jimenez v. City of Chicago, 732 F.3d 710, 72122 (7th Cir. 2013); see also Avery v. City of Milwaukee, No. 11-CV-408-RTR,
2015 WL 247991, at *1-2 (E.D. Wis. Jan. 20, 2015). Defendants, recognizing
Page 31 of 58

the weakness of their position, make no attempt to defend it in their reply.
This Court, like many before it, accepts that “policing practices” is a valid
area of expertise.
Defendants next question Clark’s qualifications, the sufficiency of
his data, and the reliability of his methods as applied to the facts of this case,
all in an intertwined and difficult to parse argument. As to Clark’s
qualifications, they are not subject to reasonable dispute. He has decades of
experience and training on policing practices and his testimony on that
subject has been accepted by numerous courts. Defendants’ suggestion that
he has been out of law enforcement practice too long goes to the weight of
his opinions, not their admissibility. The same is true for the alleged lack of
specific experience and expertise in rendering emergency medical care to
arrestees or dealing with sickle cell crisis. Defendants further contend that
Clark should not be able to criticize Theil or Kaul as supervisors, which is
an odd attack considering the bulk of Clark’s experience was in a
supervisory role. Finally, Defendants fault Clark for not conducting a
literature review or having published articles on the subjects of his instant
opinions. However, Kumho Tire permits expert opinions to be based on
experience, and Defendants do not cite any analogous case where a policing
practices expert was rejected for failing to do what is usually reserved for
academics. Kumho Tire, 526 U.S. at 150.
Finally, Defendants believe that Clark lacks data on which to base
his opinion that a code of silence exists in the MPD and contributed to the
Williams incident. See (Docket #68-5 at 18). They do not, however, challenge
any of the facts he detailed in his report, but rather claim that he lacks
empirical evidence of any particular instance of Flynn or of the Officer
Defendants participating in the code’s execution. If such evidence existed,
Page 32 of 58

Clark’s testimony would be unnecessary and the MPD would have far more
serious problems than this lawsuit. Instead, Clark grounds his code of
silence opinion on a review of all the evidence detailed above, including the
strip search scandal, other prior incidents of police misconduct, studies of
MPD practices, and comments by Hegerty and Flynn himself. See Part
3.1.3.2. This, in conjunction with Clark’s expertise, is an accepted form of
data and an accepted method by which to form a policing practices opinion.
See Roberson v. City of Philadelphia, No. 99-3574, 2001 WL 210294, at *4 (E.D.
Pa. Mar. 1, 2001) (“Waters reaches his conclusions by applying his
significant experience, training and skills to the facts provided to him. In
formulating his opinions and making his report, Waters reviewed
numerous materials, including deposition transcripts of all the parties,
Pelosi’s case file, various Philadelphia Police Department memoranda and
directives, bail guidelines, and relevant case law. While not a formal,
testable method, it is the one used by police practices experts and accepted
by the courts.”) (citation omitted).
In sum, Clark’s opinions are based on a reliable application of his
expertise to the facts he reviewed. Defendants’ specific concerns with those
facts, Clark’s particular areas of experience, and the generality of his
opinions are best addressed by cross-examination. The Court will not,
therefore, bar Clark’s testimony.21

In their opening brief, Defendants explained that Clark’s deposition
could not be completed in the time allotted and that it would be finished on June
26, 2017. Defendants stated that they reserved the right to supplement their filing
after that time. (Docket #67 at 11-12). No such supplement has been received. This
is a further reason to approach Clark’s opinions cautiously at this stage. Plaintiffs
have not been afforded an opportunity to clarify any of Clark’s answers given to
Defendants’ questions. (Docket #72 at 2 n.1).
21

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3.2.3

Trevonne Thompson

Thompson is an emergency room physician with fifteen years’
experience in emergency medicine in practice and teaching. (Docket #68-10
at 1). Thompson presents two overarching opinions in this case. His chief
opinion is that had medical attention been provided to Williams prior to
him losing consciousness (as shown in the squad car video), he would have
had a high likelihood of survival. Id. at 2. Specifically, Thompson states that
if Defendants had called paramedics at any point where Williams was still
complaining about respiratory distress, those medical professionals would
likely have stabilized Williams’ condition so that he could be transported
to a hospital. Id. Thompson notes that over ninety-nine percent of people
who arrive alive at a hospital’s emergency department stay alive through
medical intervention. Id. at 3.
Thompson’s secondary opinion is that the cause of death is
undetermined. Id. at 2. This belief is based on Thompson’s experience in
treating patients with sickle cell disease, and the fact that the lack of medical
attention prior to Williams’ death makes it more difficult to establish a
definite cause thereof. Id. Thompson further states, though equivocally, that
Williams may have died at the moment he lost consciousness. Id.
Regardless of the precise time or cause of death, however, Thompson
maintains his opinion that medical intervention prior to Williams’ loss of
consciousness most likely would have saved his life. Id.
Defendants do not question Thompson’s credentials as an expert on
emergency medicine in an emergency department. They contend, however,
that Thompson lacks specific expertise as to his secondary opinion.
Defendants note that Thompson is not an expert on determining a cause of
death, either generally or with respect to sudden onset sickle cell crisis in
Page 34 of 58

particular. Though it could be more clearly stated in his report or
deposition, Thompson appears to agree with Briones that there are too
many unresolved variables to definitively state, as Poulos and Peterson
have done, that the death was caused by sickle cell crisis. See (Docket #6810 at 2; Docket #68-12 at 55:6-58:6, 82:25-84:22). This is based on his
experience, knowledge of medical literature, and the lack of pre-death
medical care. Id. While certainly not the most forceful opinion, it is at least
minimally based on “principles and methodology reflect[ing] reliable
scientific practice,” such that Defendant’s “‘[v]igorous cross-examination’”
can draw out any faults therein. Schultz, 721 F.3d at 431 (quoting Daubert,
509 U.S. at 596).
Defendants also attack Thompson’s primary opinion in various
ways. They assert that he cannot opine about Williams’ survival chances
because: 1) he is not an expert on paramedic training generally or for
paramedics in Milwaukee; 2) he is not an expert on treating sickle cell crisis
in persons diagnosed only with sickle cell trait, as opposed to the disease
itself; and 3) without knowing why Williams died, Thompson can only
speculate as to what could have saved his life. Each of these concerns is
defeated by assessing Thompson’s opinion on the matter holistically. His
report states that “[r]egardless of the the [sic] actual cause of Mr. Williams’
death, it is highly likely that he would not have died had medical
intervention begun before his loss of consciousness[.]” (Docket #68-10 at 2).
Thompson further posits that paramedic attention “would have reduced
his likelihood of death, regardless of the medical illness or condition he was
experiencing.” Id. at 3. In Thompson’s experience, this is in fact a
“hallmark” of emergency care—stabilizing a patient without knowing
precisely what is wrong with them. Id.
Page 35 of 58

Defendants may not agree with his conclusions, but that is no basis
for wholesale exclusion of Thompson’s opinion. The Court finds Thompson
should be allowed to base his opinion on his understanding of emergency
medicine, namely an opinion on the efficacy of emergency treatment which
disregards the cause of the medical crisis. Jacob and DeBehnke do not state
that such an opinion is totally outside accepted medical practice, only that
they disagree with it. The Court will not resolve this battle of the experts by
simply striking one competing opinion. The jury is entitled to hear both and
decide which is to be believed.
3.2.4

Conclusion

Defendants’ motion to strike will be denied as to each expert. Their
opinions have been fully considered in addressing the facts material to
Defendants’ request for summary judgment.
4.

ANALYSIS
Defendants seek summary judgment on each of Plaintiffs’ claims

and request dismissal of the entire lawsuit. In the Complaint, the claims are
stated in seven counts:
1)

Excessive force, in violation of the Fourth Amendment,
against Ticcioni and Coe;

2)

Failure to provide medical attention, in violation of the Fourth
Amendment, against the Officer Defendants;

3)

Loss of companionship, in violation of the Fourteenth
Amendment, against the Officer Defendants;

4)

Corporate liability pursuant to the Monell doctrine, by its
adoption and maintenance of unconstitutional de facto
policies, against the City;

Page 36 of 58

5)

Wrongful death, in violation of Wisconsin law, against the
Officer Defendants;

6)

Respondeat superior, establishing the City’s joint liability
along with the Officer Defendants for the wrongful death
claim; and

7)

A right of indemnification, pursuant to Wisconsin law,
against the City for any damages assessed against the Officer
Defendants.

(Docket #1 at 15-21). In their opening brief, Defendants state the issues
presented as follows:
1. Did either Officer Coe or Officer Ticcioni use
excessive force against Mr. Williams?
2. Were any of the defendant officers and/or sergeants
unreasonable with regard to any medical need of Mr.
Williams?
3. Are the defendant officers and sergeants each
entitled to qualified immunity from the excessive force and/or
failure-to-provide-medical-care claims raised against them?
4. Was any action or inaction of any officer the cause of
Mr. Williams’ death?
5. Did the City of Milwaukee fail to 1) train its police
officers regarding providing medical care to persons in their
custody, or 2) supervise officers, and if so, did any such failure
cause Mr. Williams’ death?
6. Can plaintiffs maintain a state law wrongful death
cause of action?
(Docket #36 at 25). Other than those conceded by Plaintiffs, summary
judgment is not warranted in Defendants’ favor on any count of the
Complaint or as to any issue presented in their motion.

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4.1

Excessive Force

In their response, Plaintiffs agreed to dismiss their excessive force
claim. (Docket #55 at 2 n.1). Unrelatedly, Plaintiffs further agreed to dismiss
Boyack as a defendant with respect to all of their claims. Id. Plaintiffs did
not request dismissal without prejudice. Id. The Court will, therefore,
dismiss Count One of the Complaint and Boyack from this action with
prejudice.
4.2

Williams’ Medical Care

Defendants first seek summary judgment on Plaintiffs’ claim
pursuant to the Fourth Amendment for their failure to adequately attend to
Williams’ medical needs. Because Williams was an arrestee, not a prisoner,
the Fourth Amendment’s reasonableness standard applies to the claim,
rather than the Eighth (or Fourteenth) Amendment’s more stringent
“deliberate indifference” analysis. Ortiz v. City of Chicago, 656 F.3d 523, 530
(7th Cir. 2011). In Williams, the Court of Appeals announced four factors to
guide the Court’s determination as to whether Defendants’ medical care
was unreasonable: “(1) whether the officer has notice of the detainee’s
medical needs; (2) the seriousness of the medical need; (3) the scope of the
requested treatment; and (4) police interests, including administrative,
penological, or investigatory concerns.” Williams v. Rodriguez, 509 F.3d 392,
403 (7th Cir. 2007). Defendants do not expressly address any of these
factors. The Court gathers from their arguments that they contest the first
and second; the third and fourth are not even arguably mentioned.
The parties expend substantial effort exploring the minutiae of each
of the Officer Defendants’ conduct to determine whether they had notice of
Williams’ condition, and whether they believed the condition was
sufficiently serious to merit calling for help. Having already labored
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through their factual submissions, the Court need not join them in this
endeavor. The evidence, viewed in a light most favorable to Plaintiffs and
drawing all reasonable inferences in their favor, clearly presents jury
questions on each factor and as to each Officer Defendant. In short, the jury
could reasonably infer that each Officer Defendant actually heard, or
studiously avoided hearing, Williams’ complaints of respiratory distress. In
many instances, people far away from Williams reported hearing his cries
while a nearby officer claimed to have heard nothing. A jury could further
conclude that Williams’ breathing problems presented so serious a medical
need that the Officer Defendants’ non-response was unreasonable.22
Two recent Seventh Circuit cases provide helpful analogies and
address some of Defendants’ specific arguments. In Ortiz, May Molina
(“Molina”) died while in Chicago Police Department custody. Ortiz, 656
F.3d at 527. Molina was arrested during execution of a search warrant and
taken to jail. Id. She had a number of severe medical conditions which
required regular medication to control. Id. Despite repeated requests for
medical care from Molina herself, her mother, her lawyer, and others,
officers did not transport Molina to a hospital or allow her to take her
medications. Id. at 527-29. Molina died in her cell within twenty-four hours
of her arrest. Id. at 529.

When assessing the second factor, “[t]he severity of the medical condition
. . . need not, on its own, rise to the level of objective seriousness required under
the Eighth and Fourteenth Amendment[s]. Instead, the Fourth Amendment’s
reasonableness analysis operates on a sliding scale, balancing the seriousness of
the medical need with the third factor—the scope of the requested treatment.”
Williams, 509 F.3d at 403. Though breathing problems may not always signal the
direst of medical issues, when balanced against the desired treatment—taking a
few seconds to activate a radio and call for an ambulance—a jury question arises.
22

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The Court of Appeals held that summary judgment was improper in
the officers’ favor on Ortiz’s (Molina’s daughter) Fourth Amendment claim.
Id. at 534. The evidence, viewed in Ortiz’s favor, allowed at least an
inference that each officer knew of Molina’s deteriorating condition and did
nothing. Id. at 532-34. The court observed:
This is not a case where prison officials provided
substandard medical care and we must decide whether they
crossed the line from medical malpractice (negligence) to
deliberate indifference (recklessness). Ortiz’s claim is that
each of the defendants knew that Molina suffered from a
serious medical condition, yet they failed to take any step in
response.
Id. at 538-39. In our case, if Plaintiffs’ evidence is believed, the Officer
Defendants did not simply fail to intervene earlier to help Williams.
Instead, they were well aware that his condition was real and required
immediate attention but consciously ignored him. In other words,
Defendants’ argument is turned on its head. Rather than supporting their
assessment that Williams was malingering, the evidence that Cline and
Ticcioni took limited actions to assuage Williams’ distress (rolling down the
car window and leaning off of Williams’ back) supports the inference that
they knew his condition was serious.
Ortiz offers additional relevant instruction. First, a jury is not
required to believe the Officer Defendants’ accounts of the night’s events
simply because there may be no direct contradictory evidence. Id. at 532.
Williams was the person best situated to offer that evidence, but Plaintiffs
allege that the Officer Defendants’ inaction contributed to cause his death.
In any event, there are ample contradictions even amongst the Officer

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Defendants’ own accounts, as well as testimony from citizen witnesses, to
dispute Defendants’ version of events.
Next, the Officer Defendants emphasize that they believed Williams
was faking his distress. This too is answered by Ortiz. One of the Ortiz
defendants, Ramirez, was working the front desk, answering incoming
calls. Id. at 528-29. During her shift, Ramirez “received five to ten calls from
a number of different people informing her that Molina needed to take her
medications or go see a doctor.” Id. at 529. Ramirez did nothing other than
inform her supervisor of the calls. Id. Ramirez argued that the calls did not
put her on notice of Molina’s condition because the caller could have been
lying. Id. at 533. The court found the argument “nonsensical.” Id. “That
explanation,” it noted,
may shed light on why Ramirez failed to act once she was on
notice—because she thought the caller was lying—but it does
not refute the receipt of notice. Was it reasonable to do
nothing aside from notifying her supervisors after receiving
the calls? That, in our view, is the very question that the jury
should decide. So we conclude that there is a triable issue as
to whether Ramirez was on notice that Molina needed
medical care.
Id. In hindsight, we all know that Williams was not faking. Whether it was
reasonable for the Officer Defendants to believe that at the time is for a jury
to determine.
Finally, the Officer Defendants maintain that none of them knew that
Williams was in the midst of a sickle cell crisis rather than simply being out
of breath. This position is inconsistent with the standard of review; the
precise cause of death is disputed. Further, the Ortiz factors merely require
knowledge of the detainee’s serious medical condition, not its precise
origin. Id. (“The question is not whether a particular defendant knew what
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was wrong with Molina, but rather whether the defendant, based on what
she observed herself and learned from others, should reasonably have
known that Molina needed medical care.”). From Plaintiffs’ perspective, the
seriousness of the condition was obvious. The jury must be permitted to
weigh the parties’ evidence on this point.
Florek stands in stark contrast to both the instant case and Ortiz.
Linda Florek (“Florek”) was also arrested during execution of a search
warrant. Florek v. Vill. of Mundelein, Ill., 649 F.3d 594, 595-96 (7th Cir. 2011).
While officers searched her apartment, Florek asked for some baby aspirin.
Id. at 596. This request was denied. Id. Later, while being taken to a police
van for transport to jail, Florek complained of chest pains. Id. at 597. Officers
immediately requested paramedic assistance. Id. Florek was taken to the
hospital and treated for a heart attack. Id.
Unlike Ortiz, the Florek court found that summary judgment was
appropriate in the officers’ favor. The court stressed that “[o]ne should not
fixate on [the Williams] factors.” Id. at 600. Instead, “the intuitive, organizing
principle is that police must do more to satisfy the reasonableness inquiry
when the medical condition they confront is apparent and serious and the
interests of law enforcement in delaying treatment are low.” Id. “That is not
the situation here,” the court held, and it proceeded to analyze the Williams
factors. Id. Prior to informing officers that she had chest pains, it was
reasonable for them to deny Florek baby aspirin. Id. Once the chest pains
were known to officers, they responded appropriately by seeking medical
assistance. Id. at 600-01.
The Florek officers made no credibility determination with regard to
Florek’s statement that she was experiencing chest pains. The Officer
Defendants, by contrast, chose to do so with Williams’ complaints of
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respiratory distress. They did so at the peril of their conduct later being
found unreasonable by a jury. Further, “the medical condition [the Officer
Defendants] confront[ed] [was] apparent and serious,” while “the interests
of law enforcement in delaying treatment” appeared low. Id. at 600. Indeed,
whatever law enforcement interests may have been served by delaying
Williams’ treatment, they were not even advanced by Defendants in their
motion. In light of Ortiz and Florek, the Court must deny Defendants’
request for summary judgment on this claim.23
4.3

Monell Liability

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. Cook
County Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2009) (citing Monell, 436
U.S. at 690). These are colloquially referred to as “Monell” claims.

Neither in their opening brief nor in their reply do Defendants analogize
to any case holding that a police officer (or other government agent) can defeat a
Fourth Amendment medical care claim by asserting that they knew a detainee was
suffering a medical emergency but were unaware of their true medical condition.
In fact, a lack of legal authority plagues all of Defendants’ argument on the Fourth
Amendment claim. They cite three cases in the entirety of that argument, and all
merely for general legal propositions, not for analogy. On summary judgment,
Defendants bore the burden of not only presenting adequate undisputed evidence,
but also supplying the law which warranted judgment in their favor on that
evidence. See Florek, 649 F.3d at 601. They have failed to do either.
23

Page 43 of 58

The City will bear liability for its relevant policies if those policies
caused the unconstitutional harm Williams suffered, or in other words, if
the policies were the “moving force” behind the constitutional violation. Id.
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).
Plaintiffs present two variants of a Monell claim. The first is that the
City’s training regarding suspects presenting respiratory distress was
“woefully insufficient.” (Docket #55 at 43). Second, the City’s “inadequate
discipline and code of silence created an environment where police
misconduct was not adequately scrutinized and a resultant attitude of
impunity, particularly with regard to District 5 and its Late Power Shift
officers, . . . was a moving force behind Derek Williams’ unconstitutional
treatment.” Id. at 43-44. Though this second claim seems to be an
amalgamation of other recognized Monell theories, such as failure to
investigate, discipline, or supervise, Defendants take no issue with it on a
theoretical level. (Docket #36 at 46-51; Docket #60 at 17-18).
Each of Plaintiffs’ Monell theories must be viewed through the lens
of “deliberate indifference.” Glisson v. Ind. Dep’t of Corr., 849 F.3d 372, 38182 (7th Cir. 2017). As described by the Supreme Court, “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

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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.
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).
When viewing the evidence most favorably to Plaintiffs, the Court
concludes that they have raised triable issues of fact as to both of their
Monell theories. As with Plaintiffs’ Fourth Amendment claim, the Court will
not belabor the point. For the failure to train claim, Plaintiffs’ evidence and
Clark’s opinions suggest a lack of adequate training on how to approach
complaints of breathing difficulties. Plaintiffs have further shown that the
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City knew or should have known that its training was deficient prior to the
Williams incident. For the code of silence claim, Plaintiffs’ evidence
admittedly appears scattershot. Nevertheless, Plaintiffs have woven at least
a tenuous thread through the history of alleged MPD misconduct, including
the strip search scandal, as well as Clark’s opinions, the various studies, and
the Williams incident itself, showing that the code existed with Flynn’s
knowledge and approval, and that this is what motivated Defendants’
inactions on the morning of July 6, 2011. Whether the thread will snap
under the strain of the City’s opposing evidence is for the jury to decide.
The City’s arguments to the contrary lack merit. First, the City
maintains that it provided at least some medical training to MPD officers,
defeating any assertion of indifference. It is for a jury, however, to
determine whether this is sufficient to disprove the City’s alleged
indifference. Second, the City contends that it could not be expected to train
its officers, who were given limited first responder training, to recognize
that Williams was suffering from a sickle cell crisis. Not only does this
assume that Williams was in such a crisis—a matter in dispute—but it also
mischaracterizes Plaintiffs’ failure to train claim. Plaintiffs assert that the
City’s training on respiratory distress was not only inadequate, but entirely
incorrect; the “if you can talk you can breathe” principle was taught even
though the MPD should have known it was wrong. Further, MPD policy
allowed officers to exercise discretion to determine whether a breathing

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complaint was genuine.24 Flynn later acknowledged that the training was
mistaken by changing the policy.25
Third, the City attacks Plaintiffs’ code of silence evidence by
showing that nothing prior to the Williams incident involved sickle cell
crisis. In the same vein, the City asserts that circumstances of the strip
search cases are factually distinguishable, and thus offer no support for a
purported code of silence or lack of discipline. Plaintiffs’ theory is not so
narrow. They argue that the code of silence and lack of discipline enabled
Defendants to treat Williams callously, as they believe occurred in prior
incidents like those involving Perry and Jude. Finally, the City argues that
the code of silence theory fails because the moving force behind Williams’
death was the Officer Defendants’ failure to recognize the seriousness of his
medical condition, not some underlying, institutionalized freedom to

The City’s position is that “[Defendants] did not believe that [Williams]
was truly experiencing a medical emergency. This conclusion on their part was
not the result of any failure in their training. Rather, it was based upon their
discretionary application of their training[.]” (Docket #60 at 21). This discretion is
one of the very failings Plaintiffs attribute to the City’s training scheme.
24

In its reply, the City contends that Flynn’s policy changes are
inadmissible pursuant to FRE 407 as subsequent remedial measures. (Docket #60
at 21-22). A potential problem underlies this argument: waiver. The City of course
participated in discovery and knew that this evidence, and the instant FRE 407
argument, were relevant to its motion for summary judgment. Its opening brief,
however, makes no mention of the argument. See generally (Docket #36). Thus, the
Court might deem the argument waived at this stage. See Hernandez v. Cook County
Sheriff’s Office, 634 F.3d 906, 913-14 (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)). Nevertheless, even without this evidence, Plaintiffs’
submissions would still raise viable jury questions. Defendants may interpose a
FRE 407 objection to the policy change evidence, if they still deem it appropriate,
prior to trial.
25

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mistreat African-American men. The parties’ positions are, unsurprisingly,
diametrically opposed on this point and a jury must be called upon to find
the truth.
4.4

Qualified Immunity

The Officer Defendants assert that even if their actions violated
Williams’ constitutional rights, they are shielded by qualified immunity.
That doctrine protects government officials 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 v. McClone, 787 F.3d 444, 450 (7th Cir. 2015).
To overcome 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 the above discussion shows,
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
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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). In January of this year, the
Supreme Court emphasized “the longstanding principle that ‘clearly
established law’ should not be defined ‘at a high level of generality.’” White
v. Pauly, 137 S. Ct. 548, 552 (2017). The “clearly established law” must
instead “be particularized to the facts of the case.” Id.
To evaluate the “clearly established law” element, the Court must
define the relevant constitutional right at issue as framed by the facts
presented. The Officer Defendants initially describe the right as this: “[N]o
caselaw requires officers to provide access to emergency medical care for a
prisoner, when they do not perceive that the prisoner is experiencing a
medical emergency.” (Docket #36 at 40). In their reply, the Officer
Defendants expound on the point:
[N]one of [the cases cited by Plaintiffs] put any of the
defendants [sic] officers in the instant case on notice that a
complaint of being unable to breathe, made by a person who
had just been taken into custody, and who had been caught
attempting an armed robbery of a couple and had run 250-300
yards from the police on a hot, humid night, was experiencing
a medical situation which required them to obtain emergency
medical help. None of these cases indicated that upon
receiving a complaint of being unable to breathe or having
difficulty breathing, officers are required to immediately call
for emergency medical personnel to respond to the scene.
Additionally, none of these cases advised that any police
department was required to disallow its officer’s use of
discretion, in evaluating the complaint of an arrestee and
determining whether or not the arrestee is experiencing an
emergency medical situation, which requires calling for the
response of emergency medical personnel.

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(Docket #60 at 13). Unfortunately for the Officer Defendants, the Court
cannot accept any of their formulations of the right. Their descriptions do
not coincide with the evidence as construed in Plaintiffs’ favor. See Mordi v.
Ziegler, 770 F.3d 1161, 1164 (7th Cir. 2014). Rather, when taking the
inferences from Plaintiffs’ evidence to their fullest extent, one can conclude
that the Officer Defendants knew that Williams’ breathing complaints
stemmed from a serious medical condition and that they intentionally did
nothing (until it was too late) because they were confident that they would
suffer no discipline and that their mistreatment would not come to public
light.
Thus, the tailoring exercise required by White becomes quite limited
in this case. The relevant legal question is whether the Officer Defendants
could have reasonably believed that intentionally refusing to take a few
seconds to call for paramedics for a suspect they knew was in serious
medical distress would not violate that suspect’s constitutional rights. The
answer is, of course, no. An arrestee’s right to “objectively reasonable”
medical attention has been established since at least 2007. Williams, 509 F.3d
at 403-04; Sides v. City of Champaign, 496 F.3d 820, 828 (7th Cir. 2007).
Attempting to find a factually analogous case is therefore purposeless. No
police officer could ever reasonably conclude that deliberately ignoring an
arrestee’s genuine and severe medical emergency would satisfy the
Williams factors described above, regardless of the particular factual
scenario presented. See supra Part 4.2.26

Both parties cite cases addressing the right to medical care in the face of
varying medical complaints, including those of respiratory distress. None of these
cases are apposite in light of the true question presented. When the question is
framed as stated by the Court, the precise nature of the malady or care needed
becomes almost entirely irrelevant. Though it was handed down after the Williams
26

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Given this controlling precedent, and an assessment of the relevant
right in accordance with the standard of review, it was “beyond debate” at
the time the Officer Defendants acted (or failed to act), their conduct
violated Williams’ Fourth Amendment rights. al-Kidd, 563 U.S. at 741. In
other words, if Plaintiffs’ version of events is true, the Officer Defendants
did indeed “knowingly violate the law.” Mullenix, 136 S. Ct. at 308
(quotation omitted). The Officer Defendants cannot, therefore, find shelter
in qualified immunity at this stage of the litigation. After the jury
determines the ultimate facts underlying the defense, however, the Officer
Defendants may revisit it.

incident, and thus provided no direct guidance to the Officer Defendants, Ortiz
confirms the propriety of this approach:
But even if we were to assume that the [Fourth
Amendment’s reasonableness] standard we have applied in this
case was not clearly established at the time Molina died, the
outcome of this case would be unaffected. To survive summary
judgment, Ortiz would then be required to satisfy the more
stringent deliberate indifference standard. This, however, is not a
case that turns on the difference between the two standards. Ortiz’s
argument, if credited by a jury, satisfies the deliberate indifference
standard because she argues that defendants were subjectively aware that
Molina had a serious medical condition that needed care and they failed to
respond adequately. See Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir.
2000). . . . The question is only whether the officers’ failure to act
was not only negligent, but deliberately indifferent. Yet it is well
settled that providing no medical care in the face of a serious health risk
constitutes deliberate indifference. See Walker v. Benjamin, 293 F.3d
1030, 1037 (7th Cir. 2002).
Ortiz, 656 F.3d at 538 (emphasis added). Like Ortiz, the Officer Defendants’
conduct would satisfy the deliberate indifference standard, and must have
therefore infringed on Williams’ right to reasonable medical attention.

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4.5

Causation

Defendants argue that Williams’ own conduct was the cause of his
death. They believe that Williams died of sickle cell crisis, brought on
primarily by Williams’ drug use, dehydration, wearing the joker mask,
flight from police, and the heat that night. As noted above, Jacob opined
that there was little that could have been done to save Williams’ life once
he was in custody; the sickling process had already begun. Thus, in
Defendants’ view, nothing they did or did not do would have changed the
outcome of their interaction with Williams.
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). 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 (2d) of Torts § 442
(1965).
The Court must nevertheless remember that 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
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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 proximate,
causal nexus between the careless act and the resulting injuries.” Johnson v.
City of Philadelphia, 837 F.3d 343, 352 (3d Cir. 2016).
With these principles in mind, the Court cannot agree with
Defendants that no reasonable jury could find proximate causation between
Defendants’ actions and Williams’ death. Defendants’ position again fails
to accept the evidence and reasonable inferences in Plaintiffs’ favor.
According to Thompson, it was not only possible but likely that Williams
could have been saved if paramedics had been summoned earlier. If this is
true, Defendants were certainly responsible for failing to act. Neither
Williams nor anyone else intervened to prevent them from calling for
medical assistance, and Williams in fact begged for it repeatedly.
This case is thus unlike Defendants’ citation, Gant v. City of Chicago,
No. 13-CV-6231, 2017 WL 590279 (N.D. Ill. Feb. 14, 2017). There, prior to
being arrested, Gant was stabbed in the eye, requiring treatment by surgery,
medication, and eye drops. Id. at *1-2. Police refused to let him use his eye
drops while he was in custody, which was about 24 hours. Id. at *2. A few
weeks later, a second eye surgery was unsuccessful at restoring Gant’s
vision. Id. The court found causation lacking between Gant’s eye injury and
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the officers’ alleged failure to provide him adequate medical care. Id. The
court held that “[n]o reasonable jury could find that the defendants’ failure
to respond to Plaintiff’s request for treatment caused or exacerbated the
damage to his eye; there is simply no evidence that Plaintiff’s condition
worsened after missing his eye drops while in police custody.” Id. at *3. The
court noted that although Gant had a “serious medical condition, he had no
serious need for the prescribed medication during the relatively limited
period of time he was in lockup.” Id. (emphasis added). In Williams’ case,
the opposite is true. A jury could conclude not only that Williams had a
serious medical condition, but that the need for treatment was exceedingly
urgent and was ignored by Defendants.27 Summary judgment is therefore
not warranted on the issue of causation.
4.6

Wrongful Death

Plaintiffs’ wrongful death claim is made pursuant to Wisconsin
Statute § 895.03. As explained by the Wisconsin Supreme Court,
[a] wrongful death action is a cause of action for the
benefit of designated classes of relatives, enabling them by
statute to recover their own damages caused by the wrongful
death of the decedent. It is a new action. However, the
plaintiff in a wrongful death action has no claim if the

Williams’ situation is also different than that of the late Dontre Hamilton,
whose death also involved the MPD. Hamilton was shot and killed by an MPD
officer after a struggle between the two. J.M. v. City of Milwaukee, No. 16-CV-507JPS, 2017 WL 1364971, at *9-13 (E.D. Wis. Apr. 12, 2017). The parties disputed
whether Hamilton’s alleged aggression during the incident functioned as a
superseding cause of his death. Id. at *18-20. This Court held that it could not find
a break in causation as a matter of law in light of that factual dispute. Id. Here,
there is no suggestion that Williams fought with Defendants with anything close
to the violence of the altercation involving Hamilton. At best for Defendants,
Williams dragged his feet and otherwise engaged in petty obstruction to prevent
them from taking him to jail. This in no way prevented them from calling for
medical help on their radios.
27

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decedent would not have been able to “maintain an action
and recover damages” in his own right if he had not died.
Wis. Stat. § 895.03. What this means is that “if death had not
ensued,” a deceased person would still have been alive and
able to discover all the elements of the tort that resulted in his
death. Thus, the beneficiary in a wrongful death action is
simply recognizing and establishing a claim that is based on
the claim that the decedent would have made if the decedent
were still alive.
Christ v. Exxon Mobil Corp., 866 N.W.2d 602, 690-91 (Wis. 2015) (citations
and quotations omitted).
Defendants argue that even if the other claims in this lawsuit survive
(which they do), Wisconsin law affords them immunity from Plaintiffs’
wrongful death claim. Wisconsin municipalities and their agents are
immune from civil suit when their actions “involve[] the exercise of
discretion and judgment.” Wis. Stat. § 893.80(4); Lodl v. Progressive N. Ins.
Co., 646 N.W.2d 314, 335 (Wis. 2002). An act is ministerial, and thus not
discretionary and entitled to immunity, “only when it is absolute, certain
and imperative, involving merely the performance of a specific task when
the law imposes, prescribes and defines the time, mode and occasion for its
performance.” Lister v. Bd. of Regents of Univ. Wis. Sys., 240 N.W.2d 610, 622
(Wis. 1976). Defendants assert that the provision of medical care to a person
in custody falls outside this narrow definition of ministerial acts.28

The Court is compelled to note that nearly all of this section of
Defendants’ opening brief is lifted, verbatim, from the late Judge Rudolph T.
Randa’s opinion on summary judgment in Estate of Perry v. Wenzel from May of
last year. Compare 185 F. Supp. 3d 1087, 1099-1100 (E.D. Wis. 2016), with (Docket
#36 at 51-52). Judge Randa’s opinion, however, is not cited anywhere in the brief.
The Court expects that in this and any future litigation in this Court, Defendants’
counsel will provide proper attribution for the analysis of others. See Consol.
Paving, Inc. v. County of Peoria, Ill., No. 10-CV-1045, 2013 WL 916212, at *5-6 (C.D.
28

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Plaintiffs counter with the “known danger” exception to
discretionary immunity. Scott v. Savers Prop. & Cas. Ins. Co., 663 N.W.2d 715,
721 (Wis. 2003). This exception applies when “a danger known to a public
officer or employee is of such a compelling force, it strips that person of
discretion or judgment and creates an absolute, certain and imperative duty
to act.” Dargenio v. Comm. Ins. Corp., No. 2015-AP-809, 2016 WL 3619365, at
*7 (Wis. Ct. App. July 7, 2016) (quotation omitted). In other words, a known
danger transforms a potential act from discretionary to ministerial,
removing the protection of Section 893.80(4). Id. Plaintiffs believe that
Williams’ obvious respiratory distress and erratic movements could
support a jury finding that Defendants knew of a serious medical danger to
Williams.
Defendants offer little in response to the invocation of the known
danger exception. They simply reiterate that they did not know that
Williams was suffering from a sickle cell crisis and that they believed he
was faking his distress. Again, these are the facts viewed in Defendants’
favor, not Plaintiffs’. From the correct vantage point, a jury could
reasonably infer that Defendants knew Williams’ medical condition was
quite serious. Further, “Wisconsin law does not require knowledge of the
specific cause of the injury; it determines knowledge from the general
danger of the circumstances.” Id. at *8. It is therefore irrelevant that
Defendants did not know of Williams’ correct diagnosis. Defendants are
not entitled to summary judgment as to Section 893.80(4) immunity because
a jury could find that they knew of circumstances “sufficiently dangerous

Ill. Mar. 8, 2013) (“Plagiarism is a serious issue, and several courts have found such
behavior unacceptable and a violation of the Rules of Professional Conduct that
govern attorneys’ behavior[;]” also collecting cases in agreement).

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to require an explicit, non-discretionary municipal response,” namely
calling for medical help. Id. at *7.
5.

CONCLUSION
Disputes of material fact preclude summary judgment as requested

by Defendants. The issues in this case must await resolution by the jury at
the end of August.29
Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment
(Docket #35) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Defendants’ motion to strike
(Docket #67) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Defendants’ motion to file an
oversized reply brief (Docket #59) be and the same is hereby GRANTED;
and
IT IS FURTHER ORDERED that the following be and the same are
hereby DISMISSED from this action with prejudice:
i)

Count One of the Complaint; and

ii)

Defendant Chad Boyack.

IT IS FURTHER ORDERED that Plaintiff’s motion to seal (Docket
#22) be and the same is hereby GRANTED.

Upon its review of the docket, the Court notes that it inadvertently failed
to grant a motion to seal filed by Plaintiffs back on February 14, 2017. (Docket #22).
The motion to seal relates to a confidential document Plaintiffs attached to a
motion to compel. Id. The Court will belatedly grant the motion.
29

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Dated at Milwaukee, Wisconsin, this 4th day of August, 2017.
BY THE COURT:

____________________________
J. P. Stadtmueller
U.S. District Judge

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