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

Filing 85

ORDER signed by Judge J.P. Stadtmueller on 8/15/2017: DENYING 78 Plaintiffs' Motion to Certify Defendants' Appeal as Frivolous; VACATING the 8/22/2017 Final Pretrial Conference, 8/28/2017 Jury Trial, and related deadlines of the Court&# 039;s Trial Scheduling Order (Docket #17); GRANTING 77 Defendants' Motion to Stay Proceedings in this Court; and STAYING these proceedings until receipt of the Court of Appeals' mandate in appellate case number 17-2603. See Order. (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,
and DAVID LETTEER,
Defendants.
On August 4, 2017, the Court denied Defendants’ motion for
summary judgment on, inter alia, the Officer Defendants’ qualified
immunity defense. (Docket #74 at 48-51). The Officer Defendants are
entitled to take an immediate appeal of the Court’s ruling on that issue,
without seeking leave, because “it is a final decision on the defendant’s
right not to stand trial and, as such, a collateral order.” Gutierrez v. Kermon,
722 F.3d 1003, 1009 (7th Cir. 2013); see Mitchell v. Forsyth, 472 U.S. 511, 524530 (1985) (describing collateral orders). Defendants gave notice of such an
appeal on August 7, 2017. (Docket #75).
The next day, Plaintiffs filed a motion asking that the Court certify
Defendants’ appeal as frivolous. (Docket #78). They cite the Seventh
Circuit’s Apostol opinion, which permits a district court to certify an appeal

as frivolous if it finds a claim of qualified immunity “is a sham.” Apostol v.
Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989). Plaintiffs argue that the Court
found disputed issues of fact on the qualified immunity issue, which
normally precludes appellate review. Guiterrez, 722 F.3d at 1009. They also
contend that Defendants have waived the basis of a qualified immunity
appeal because their summary judgment argument did not rest on the facts
as viewed in Plaintiffs’ favor.
Plaintiffs push this principle too far, as Guiterrez explains:
A district court’s finding that there are genuine issues
of material fact does not always preclude appellate review.
[The Supreme Court’s opinion in Johnson v. Jones, 515 U.S. 304
(1995)] prohibits us from reviewing the record to determine
whether the district court erred in finding that a genuine issue
of material fact exists, . . . and so we may not make
conclusions about which facts the parties ultimately might be
able to establish at trial[.] But Johnson does not prohibit us
from considering the abstract legal question of whether a
given set of undisputed facts demonstrates a violation of
clearly established law. In reviewing this purely legal
question, we take the facts as the district court assumed them
when denying summary judgment, . . . or in a light most
favorable to the plaintiff, the nonmovant[.]
Id. Defendants may not contest the Court’s determinations regarding
disputes of fact. They are free, however, to assert that even when the facts
are viewed favorably to Plaintiffs, they warrant qualified immunity.
Whatever the likelihood of success in this endeavor, it is no sham.
The Court recently addressed this same issue in the case concerning
the death of Dontre Hamilton. See J.M., et al. v. City of Milwaukee, et al., No.
16-CV-507-JPS (E.D. Wis. May 1, 2017) (Docket #106). The Court agrees with
Plaintiffs that Defendants’ qualified immunity appeal appears to be even
less meritorious than that from the Hamilton case. Nevertheless, the Court
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believes it is most prudent to allow Defendants’ appeal to proceed. As
Apostol instructs, the power to declare an appeal frivolous “must be used
with restraint[.]” 870 F.3d at 1339. Plaintiffs are free to seek appropriate
relief in the Court of Appeals regarding any perceived frivolousness or
waiver. The Court of Appeals has, of course, its own power to apply
sanctions to Defendants if it believes them appropriate.
Plaintiffs’ instant motion must be denied; Defendants’ appeal will
continue. Additionally, the Court will grant a stay of this matter in this
Court, as Defendants have requested. (Docket #77). There is no logic in
proceeding to trial, currently scheduled in less than three weeks, if the
Court of Appeals ultimately finds any merit in Defendants’ appeal. See
Allman v. Smith, 764 F.3d 682, 685-86 (7th Cir. 2014). This stay will be lifted
when the mandate is issued by the Court of Appeals. If a trial is still
required, it will be completed within 60 days following remand. The parties
and their counsel should be guided accordingly.
Accordingly,
IT IS ORDERED that Plaintiffs’ motion to certify Defendants’
appeal as frivolous (Docket #78) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that this matter’s August 22, 2017 final
pretrial conference, August 28, 2017 jury trial, and all other related
deadlines (Docket #17) be and the same are hereby VACATED;
IT IS FURTHER ORDERED that Defendants’ motion to stay
proceedings in the district court (Docket #77) be and the same is hereby
GRANTED; and
IT IS FURTHER ORDERED that these proceedings be and the same
are hereby STAYED until the mandate of the Court of Appeals is received
in appellate case number 17-2603.
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Dated at Milwaukee, Wisconsin, this 15th day of August, 2017.
BY THE COURT:

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

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