Green, Steven v. Chvala, Steven et al
Filing
102
ORDER denying 45 Motion for Reconsideration ; denying 50 and 54 Defendants Motions for Summary Judgment ; granting 76 Motion to Supplement; granting 80 Motion for Assistance in Recruiting Counsel ; and denying as moot 85 Motion for Extension of Time. Signed by District Judge William M. Conley on 10/09/15. (mfh),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
STEVEN A. GREEN,
Plaintiff,
OPINION AND ORDER
v.
12-cv-761-wmc
STEVEN T. CHVALA and BRADLEY
SCHROEDER,
Defendants.
In this civil action, plaintiff Steven A. Green brings: (1) a Fourteenth Amendment
claim against defendant Dane County Deputy Sheriff Bradley Schroeder and (2) a
Fourth Amendment claim against defendant City of Madison police officer Steven T.
Chvala. Both claims arise out of Green’s attempt to flee from law enforcement officers
after the same, initial traffic stop. Green contends that Schroeder unjustifiably shot at
his car as Green fled from the traffic stop and that Chvala used excessive force in the
course of apprehending him after his attempt to elude the officers.
Before the court are defendants’ motions for summary judgment. (Dkts. #50,
#54.)
Also pending are various motions filed by plaintiff, including a motion for
reconsideration (dkt. #45), a motion for leave to amend (dkt. #76), a renewed motion
for assistance in recruiting counsel (dkt. #80), and a motion for extension of time (dkt.
#85).
UNDISPUTED FACTS1
Shortly after 7:00 p.m. on September 4, 2010, Deputy Schroeder was riding in a
marked, Dane County Sheriff squad car with his deputy trainee at the wheel. Spotting a
vehicle with no front license plate in violation of Wis. Stat. § 341.15(1) heading in the
opposite direction, the deputies made a U-turn. When behind the vehicle, the deputies
also flashed their lights.
Plaintiff Steven A. Green was the only occupant of the vehicle. Initially, he sped
up when he saw the deputies, but eventually he pulled into a parking lot at 2910 Hoard
Street and parked the vehicle. After the trainee had parked the squad car at an angle
behind Green, Schroeder exited the squad car, but waited for the trainee to finish
reporting information about the vehicle. Shroeder did this to allow the trainee to make
the first contact with Green.
1
Defendants argue that Green has failed to create genuine issues of material fact because his
summary judgment submissions are unsupported by any affidavit or declaration. They also argue
that the exhibits to which Green cited in responding to defendants’ proposed findings of fact -primarily consisting of excerpts of reports concerning the events that appear to be prepared by law
enforcement officers -- are both unauthenticated and inadmissible hearsay. Although the first
argument would ordinarily be well taken, Green responded by moving to amend his summary
judgment submissions with a declaration that his allegations were true, explaining that he
misplaced his certificate of declaration when he initially filed his responses. (Dkt. #76.) Given
Green’s status as a pro se litigant, the court will grant his motion to the extent his allegations could
reasonably be based on his personal knowledge. See Fed. R. Civ. P. 56(e) (stating that when a
party fails to support or address a fact according to Rule 56(c), the court may “give an
opportunity to properly support or address the fact”). With respect to the excerpts Green
submitted, the Seventh Circuit has recently noted that “the Federal Rules of Civil Procedure allow
parties to oppose summary judgment with materials that would be inadmissible at trial so long as
facts therein could later be presented in an admissible form.” Olson v. Morgan, 750 F.3d 708, 714
(7th Cir. 2014) (emphasis in original). If the excerpts were authenticated, then they likely would
be sufficient create a genuine issue of material fact. See Pullen v. House, No. 13-cv-827-bbc, 2015
WL 736679, at *3-4 (W.D. Wis. Feb. 20, 2015). Given that the excerpts include no evidence of
their authenticity, however, they cannot be used to create an issue of fact. Under these general
guidelines, the court finds the following to be material and undisputed facts for summary
judgment, except where otherwise noted.
2
After Schroeder had gotten out of his squad car, Green maneuvered his vehicle to
exit the parking lot the same way the cars entered it, which required him to drive past the
deputies’ squad car. Schroeder claims that Green’s car struck him as he passed by, despite
Schroeder’s attempts to backpedal out of the way, which prompted him to fire two shots
at Green in quick succession.2 Green concedes that he does not know whether he hit
Schroeder, but also avers that he did not accelerate or swerve toward Schroeder. After
Schroeder fired his weapon, Green continued out of the parking lot. Fortunately, neither
of the bullets hit Green, although one impacted the side window of Green’s car.
At approximately 7:10 p.m., Officer Chvala drove toward the 2900 block of Hoard
Street, having heard from dispatch that an officer was possibly injured by a suspect who
attempted to ram that officer in the course of a traffic stop. After dispatch reported that
officers had located Green’s vehicle, Chvala then headed to Myrtle Street near Packers
Avenue. Chvala eventually spotted the vehicle and then heard from dispatch that Green
had fled.
As Chvala drove along a path near Myrtle Street searching for Green, he noticed a
black male crouching behind a camper in a nearby backyard. Chvala broadcasted his
discovery on his police radio, then parked his vehicle. After seeing and hearing Chvala
park the car, Green ran away.
Green then encountered two other Madison Police
Department Officers, who drew their weapons and ordered Green to get on the ground.
Green got on his hand and knees in response.
2
On September 6, 2010, the Dane County District Attorney found that Schroeder’s use of deadly
force was justified.
3
Green and Chvala present somewhat different accounts of what happened after
Green got on his hands and knees. Chvala believed that Green was considering an escape
route while still on his hands and knees.
(Def.’s Repl. PFOF (dkt. #71) ¶#10.)
Accordingly, Chvala describes: (1) using his hands to push Green onto his stomach; (2)
pulling Green’s left arm behind Green’s back; and (3) securing it there by placing his
right knee along Green’s left elbow, close to his side. (Id. at ¶#11.) Consistent with
what he learned in his law enforcement training, Chvala claims he used this “three point
position” to stabilize Green to be handcuffed, applying only as much force with his knee
against Green’s side as necessary to keep Green’s arm under control. (Id. at ¶¶#12-15.)
Chvala also claims that he maintained this position of control on Green only until
another officer placed handcuffs on him. (Id. at ¶#17.) Finally, Chvala avers that he got
off of Green after officers handcuffed him and made no more physical contact with Green
outside of a custodial search. (Id. at ¶#18.)
Green disputes Chvala’s account of the arrest in a number of respects.
Specifically, he claims to have voluntarily laid on his stomach after the officers
commanded him to do so. (Pl.’s Resp. Def.’s PFOF (dkt. #64) ¶¶9-11.) He also claims
Chvala kneed him in his ribs after he was handcuffed and lying motionless on the ground.
(Pl.’s Resp. Br. (dkt. #63) 2.) Finally, Green alleges that he suffered bruised ribs as a
result of Chvala kneeing him. (Compl. (dkt. #1) 5.)
4
OPINION
I.
Fourteenth Amendment Claim Against Deputy Sheriff Schroeder
The substantive component of the Due Process Clause of the Fourteenth
Amendment prohibits the government from engaging in conduct toward citizens that
“shocks the conscience.” Palka v. Shelton, 623 F.3d 447, 453-54 (7th Cir. 2010); see also
County of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998). In the context of an arrest,
conscience-shocking behavior would include acts “intended to injure in some way
unjustifiable by any government interest.” Steen v. Meyers, 486 F.3d 1017, 1023 (7th Cir.
2007) (quoting Lewis, 523 U.S. at 849).
Making lawful traffic stops and pursuing
individuals who fail to stop are certainly justifiable government interests, but an officer
violates the Fourteenth Amendment when he intends deadly harm “that goes beyond the
traffic stop [or] the decision to pursue.” Steen, 486 F.3d at 1024. The Supreme Court
has instructed that in this context, an “[a]sserted denial [of due process] is to be tested
by an appraisal of the totality of facts in a given case.” Lewis, 523 U.S. at 850 (quoting
Betts v. Brady, 316 U.S. 455, 462 (1942)); see also Porter v. Osborn, 546 F.3d 1131, 1141
(9th Cir. 2008) (describing the similarities between the context-sensitive analyses
involved in both Fourth Amendment and Fourteenth Amendment claims).
The court originally denied Green leave to proceed on his claim against Schroeder
on the ground that it was barred by the rule in Heck v. Humphrey, 512 U.S. 477 (1994).
Green had pled no contest in state court and was convicted of second-degree recklessly
endangering safety in violation of Wis. Stat. § 941.30(2). (Dkt. #9.) On appeal, the
Seventh Circuit held that Green stated a viable Fourteenth Amendment claim against
5
Schroeder, based on his allegation that Schroeder shot at Green despite his slowly driving
past Schroeder.
See Green v. Chvala, 567 F. App’x 458, 460 (7th Cir. 2014).
Accordingly, the Seventh Circuit vacated this court’s decision and remanded the case for
further proceedings.
There is no dispute that Green turned his car to head out of the parking lot and
drove it toward the squad car from which Schroeder had just exited. Consistent with
Schroeder stating that Green’s car hit him, the audio content of the video recording of
the traffic stop captures Schroeder’s deputy trainee broadcasting over his radio that
Schroeder was injured immediately after he fired his gun. Additionally, medical records
indicate that Schroeder received emergency treatment at Meriter Hospital on the night of
September 4, 2010, where he was prescribed pain medication for thigh and elbow
contusions. (Aff. of Sheila M. Sullivan Ex. A (dkt. #75-1) 2, 4, 6.)
Viewing the facts in the light most favorable to Green, however, the court cannot
conclude that Schroeder’s actions were justified in light of the context of the traffic stop.
Green maintains that he did not swerve or accelerate toward Schroeder, who Green says
was never in front of his vehicle.
The video shows that after parking his car for a
moment, Green then slowly backed out, paused with his car in drive and turned his
wheels in the direction of the parking lot exit before accelerating toward the exit through
an opening between the squad car and other parked cars. Nearly twenty seconds elapsed
between the reverse lights on Green’s car first illuminating after he initially parked and
Green accelerating out of the parking lot. At no time in the video is Schroeder visible,
but after Green’s vehicle begins moving forward, the audio captures Schroeder yelling at
6
Green to park the car, then a muffled sound before two gunshots are fired in rapid
succession.
As a result, the video does not resolve the material disputes of fact regarding the
manner in which Green drove out of the parking lot and whether Schroeder fired his gun
in self-defense.3 See, e.g., A.D. v. Cal. Highway Patrol, 712 F.3d 446, 455 (9th Cir. 2013)
(observing that self-defense is a legitimate law enforcement objective). Rather than the
fast-paced and chaotic situation that Schroeder’s account suggests, the video indicates
that Schroeder had adequate time to assess what would constitute a justifiable response
to Green’s actions. In fairness, Schroeder does contend that he heard his deputy trainee
report that Green’s vehicle was moving over his radio, then “turned to see Green heading
directly for him.” (Def.’s Repl. PFOF (dkt. #74) ¶¶#17-18.)
Contrary to these assertions, however, the video suggests that Schroeder yelled at
Green to park the car several seconds before he accelerated toward the exit, permitting an
inference at least that the encounter did not unfold so quickly that the clarity of
Schroeder’s judgment would have been diminished.
Cf. Abbott, 705 F.3d at 733
(explaining in the Fourth Amendment excessive force context that “an officer will not be
held liable if the circumstances under which the force was used evolved so rapidly that a
reasonable officer would not have had time to recalibrate the reasonable quantum of
force”). Even though it appears that Schroeder was hit (or at least bumped) by Green’s
car, therefore, there is a genuine dispute about whether Schroeder unjustifiably created a
3
Schroeder does not contend that he had any reason to believe Green presented a serious threat
to the deputies or others at the time the deputies pulled him over, nor as he began to drive out of
the parking lot.
7
situation necessitating self-defense, given that Green maneuvered his car toward
Schroeder’s general direction relatively slowly in an area where Schroeder could have
arguably avoided the danger of getting hit. See Estate of Starks v. Enyart, 5 F.3d 230, 234
(7th Cir. 1993) (finding that an officer was not entitled to summary judgment on a
Fourth Amendment claim because the central question was whether the officer stepped in
front of the driver’s vehicle, leaving the driver no time to brake and thereby
“unreasonably creat[ing] the encounter that ostensibly permitted the use of deadly force
to protect him[self]”); see also Abraham v. Raso, 183 F.3d 279, 293-94 (3d Cir. 1999)
(holding that summary judgment was not appropriate for a Fourth Amendment excessive
force claim in part because questions regarding the severity of the officer’s injuries, how
fast the driver accelerated and the degree to which the space was open raised genuine
disputes about whether the officer could have gotten out of harm’s way or reasonably
believed she was in danger).
Furthermore, given the dispute about the timing of the gunshots and the fact that
at least one of the bullets went through Green’s side window, a reasonable jury could find
that Schroeder’s self-defense justification had passed by the time he shot at Green. See
Ellis v. Wynalda, 999 F.3d 243, 247 (7th Cir. 1993) (holding in Fourth Amendment
context that “[w]hen an officer faces a situation in which he could justifiably shoot, he
does not retain the right to shoot at any time thereafter with impunity”). Accordingly,
because the video does not resolve the issues concerning whether Schroeder drew his gun
as he backpedaled away from Green’s approaching car and shot at Green only in
8
self-defense, Schroeder is not entitled to summary judgment on Green’s Fourteenth
Amendment claim.
Finally, Schroeder argues that even if he violated Green’s Fourteenth Amendment
rights, he is entitled to qualified immunity. Qualified immunity protects government
officials from civil liability “when their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have been aware.”
Siliven v. Ind. Dep’t of Child Servs., 635 F.3d 921, 925 (7th Cir. 2011) (citing Pearson v.
Callahan, 555 U.S. 223, 231 (2009)).
This defense requires the court to determine
whether the right violated was “clearly established” at the time of the alleged violation.
Pearson, 555 U.S. at 232.
Put differently, the qualified immunity doctrine “provides
ample room for mistaken judgments” by protecting “police officers who act in ways they
reasonably believe to be lawful.” Wheeler v. Lawson, 539 F.3d 629, 639 (7th Cir. 2008)
(quotation marks omitted). A plaintiff can defeat qualified immunity by: (1) citing case
law clearly establishing the pertinent right; or (2) showing that the conduct is sufficiently
egregious that “no reasonable person could have believed that it would not violate clearly
established rights.” Id.
Schroeder is not entitled to qualified immunity because, Schroeder’s actions were
objectively unreasonable if viewing the facts in the light most favorable to Green.
Officers cannot use deadly force against a suspect who does not present an immediate
threat to them or others. See Tennessee v. Garner, 471 U.S. 1, 11-12 (1985). Schroeder
may well have been justified in shooting at Green, but not if he no longer faced a threat
9
of serious physical harm or death.
Therefore, Schroeder is not entitled to qualified
immunity.
II.
Fourth Amendment Claim Against Officer Chvala
The Seventh Circuit also vacated the court’s order denying Green leave to proceed
on his Fourth Amendment claim against Officer Chvala. See Green, 567 F. App’x at 461.
Assuming that the facts alleged in the complaint were true, the Seventh Circuit allowed
Green to proceed on his Fourth Amendment claim that Chvala applied significant force
against him after he was lying on his stomach in handcuffs, unable to resist. (See id.)
An objective reasonableness standard governs a Fourth Amendment excessive force
claim.
See Lester v. City of Chicago, 830 F.2d 706, 713 (7th Cir. 1987). Under this
standard, whether an officer used reasonable force “depends on the totality of the facts
and circumstances known to the officer at the time the force is applied.”
Abbott v.
Sangamon County, 705 F.3d 706, 724 (7th Cir. 2013). In the context of this case, the
primary question is whether Chvala “used greater force than was reasonably necessary to
make the arrest.” Gonzalez v. City of Elgin, 578 F.3d 526, 539 (7th Cir. 2009). Moreover,
what constitutes reasonable force during the course of making an arrest is variable: “as
the threat changes, so too should the degree of force[.]” Cyrus v. Town of Mukwonago, 624
F.3d 856, 863 (7th Cir. 2010).
Given that alleged excessive force was applied just after Green was subdued, and
in a manner that could have been consistent with maintaining control, the court is
skeptical a jury will find that Chvala applied significant force against Green based on the
10
assertion of a single knee thrust. Nevertheless, there remains a genuine issue of fact
regarding whether Chvala kneed Green in the side after he was handcuffed, lying
face-down and vulnerable. In Green, the Seventh Circuit emphasized what it had held
earlier -- “once a suspect[] is subdued, violent force can be excessive.” 567 F. App’x at
461; see also Abbott 705 F.3d at 732 (describing as “well-established” the principle that
“police officers cannot continue to use force once a suspect is subdued”); Miller v.
Gonzalez, 761 F.3d 822, 829 (7th Cir. 2014) (the “prohibition against significant force
against a subdued suspect applies notwithstanding a suspect’s previous behavior -including resisting arrest, threatening officer safety, or potentially carrying a weapon”);
Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 686 (7th Cir. 2007) (finding that an
officer who slammed an arrestee’s head against a car could be held liable for excessive
force).
Moreover, while there may be multiple witnesses who corroborate Chavla’s
account and none who agree with Green’s, the court cannot consider this possibility,
likely as it may be, at summary judgment. See Abdullahi v. City of Madison, 423 F.3d 763,
772 (7th Cir. 2005) (“[T]he fact that the available eyewitnesses support the defendants’
account of things does not preclude the possibility of genuine factual questions.”). This
is true even if, as Chvala argues in his reply brief, Green cannot show that he suffered any
injury to his ribs, since force need not result in severe injury to be considered excessive.
See Chelios v. Heavener, 520 F.3d 678, 690 (7th Cir. 2008) (stating that “an excessive
force claim does not require any particular degree of injury”) (collecting cases); Williams
v. Boles, 841 F.2d 181, 183 (7th Cir. 1988) (“The state is not free to inflict [] pains
11
without cause just so long as it is careful to leave no marks.”). As the Seventh Circuit has
recognized, “since the [Fourth Amendment] reasonableness inquiry ‘nearly always
requires a jury to sift through disputed factual contentions, and to draw inferences
therefrom, . . . summary judgment or judgment as a matter of law in excessive force cases
should be granted sparingly.’” Abdullahi, 423 F.3d at 773 (quoting Santos v. Gates, 287
F.3d 846, 853 (9th Cir. 2002)).
Alternatively, Chvala argues that he is entitled to qualified immunity. Contrary to
Chvala’s assertions that Green must show that he had a constitutional right to not be
“forcibly handcuffed,” Green’s claim turns on Chvala’s alleged conduct after Green was
handcuffed and incapable of resisting.
Long before the events in this case, “it was
well-established in [the Seventh Circuit] that police officers could not use significant
force on nonresisting or passively resisting suspects.” Abbott, 705 F.3d at 732 (collecting
cases); Johnson v. Scott, 576 F.3d 658, 660 (7th Cir. 2009) (“It is well established that a
police officer may not continue to use force against a suspect who is subdued and
complying with the officer’s orders.”). Since the evidence Green presented at summary
judgment fit within this prohibition, if accepted by the jury, Chvala cannot enjoy
qualified immunity protection.
III.
Other Motions
A. Renewed Motion for Assistance in Recruiting Counsel
Earlier in this case, the court denied Green’s motion for assistance in recruiting
counsel without prejudice, finding that he demonstrated an ability to ably represent
12
himself at that particular stage of the case. Green renews his motion, asserting that he
lacks the legal knowledge and experience to litigate his case as it approaches trial. As the
court pointed out in the order denying Green’s first motion for assistance in recruiting
counsel, Green has done well presenting his case and has demonstrated an understanding
of the Federal Rules of Civil Procedure. Moreover, Green’s remaining claim is relatively
simple and does not appear to require much investigation. For these reasons, the court
finds that Green is capable of trying his own case. See Pruitt v. Mote, 503 F.3d 647, 655
(7th Cir. 2007).
Still, the court agrees that Green would benefit from having trial counsel and will
at least undertake the effort to recruit counsel for this purpose. Accordingly, the court
will grant Green’s renewed motion for assistance in recruiting counsel.4 Of course, the
fact that Green has submitted ten rejection letters from counsel underscores that the
court may not be successful.
B. Motion for Extension of Time
Finally, Green moves the court to grant him an extension of time, apparently for
him to respond to defendants’ discovery requests. (Dkt. #85.) It appears that Green’s
motion is based on certain difficulties he perceives as a result of not having the assistance
of counsel.
Given that the court will attempt to recruit trial counsel for Green, his
motion will be denied without prejudice to its being renewed by recruited counsel.
4
Green’s motion for reconsideration of the court’s order denying his first motion for assistance in
recruiting counsel will be denied as moot.
13
ORDER
IT IS ORDERED that:
1) plaintiff’s motion for reconsideration (dkt. #45) is DENIED as moot;
2) defendant Chvala’s motion for summary judgment (dkt. #50) is DENIED;
3) defendant Schroeder’s motion for summary judgment (dkt. #54) is DENIED;
4) plaintiff’s motion for leave to amend his summary judgment submissions (dkt.
#76) is GRANTED;
5) plaintiff’s renewed motion for assistance in recruiting counsel (dkt. #80) is
GRANTED;
6) plaintiff’s motion for extension of time (dkt. #85) is DENIED as moot.
Entered this 9th day of October, 2015.
BY THE COURT:
/s/
______________________________________
WILLIAM M. CONLEY
District Judge
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