Rivera, Briana v. City of Madison et al
Filing
57
ORDER denying plaintiff's 28 Motion for Summary Judgment; granting in part and denying in part defendants' 17 Motion for Summary Judgment. Granted with respect to plaintiff's false arrest claim and her claims against the City of Madison, denied in all other respects. Signed by District Judge Barbara B. Crabb on 1/31/2018. (jls)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - BRIANA RIVERA,
OPINION AND ORDER
Plaintiff,
16-cv-673-bbc
v.
CITY OF MADISON, OFFICER GABRIEL HECK
and OFFICER DAVID WHITE,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - In this civil action for monetary relief under 42 U.S.C. § 1983, plaintiff Briana Rivera
brings false arrest and excessive force claims under the Fourth Amendment and state law
assault and battery claims against defendants Officers Gabriel Heck and David White,
stemming from her arrest on January 25, 2014. She also brings municipal liability claims
against the City of Madison for inadequate training, supervision and discipline. Both sides
have moved for summary judgment. Dkt. ##17, 28.
For the reasons stated below, I am
denying plaintiff’s motion for summary judgment on her false arrest claim because a
reasonable officer in the position of defendants Heck and White could have concluded that
plaintiff was reasonably subject to arrest for disorderly conduct. I am denying her motion for
summary judgment on her warrantless arrest claim because there are still genuine disputes
about the legality of the officers’ entry into her home. I am granting defendants’ motion with
respect to plaintiff’s false arrest claim and her claims against the City of Madison, which are
based upon the allegedly unconstitutional acts of defendants Heck and White, but am
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denying the motion with respect to plaintiff’s claims of excessive force, warrantless entry and
state law assault and battery claims.
From the parties’ proposed findings of fact and evidence in the record, I find the
following facts to be material and undisputed unless otherwise noted.
UNDISPUTED FACTS
A. The Parties
Plaintiff Briana Rivera is a biracial African American. At the time of the relevant
incident, she was 22 years old and worked as a certified nursing assistant. She lived in an
apartment on Dawn Road in Madison, Wisconsin, with her then-fiancé (now husband)
Vickson Magada, their two-year old daughter, N.M., and plaintiff’s two young sisters.
Defendants David White and Gabriel Heck were police officers for the City of Madison
Police Department who attended the department’s police academy and received ongoing onthe-job police training on arrest tactics, use of force and domestic violence incidents. At the
time of the incident, plaintiff was five feet five inches tall and weighed approximately 140
pounds; Officer White was six feet two inches tall and weighed around 230 pounds; and
Officer Heck was six feet tall and weighed around 170 pounds.
B. Background Events of January 24 and 25, 2014
At approximately 10:00 p.m. on January 24, 2014, plaintiff drove Magada and N.M.
to visit Magada’s friend, Modou Sonko, at Sonko’s residence on Melody Lane. She expected
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that Magada and N.M. would want to be picked up in about 30 to 60 minutes. However,
Magada never called plaintiff about coming to get them.
Starting around 11:00 p.m.,
plaintiff attempted to call Magada about picking him up. Between midnight and 2 a.m.,
plaintiff called about a dozen times, but Magada never answered. Instead, N.M., the twoyear-old, kept answering the phone and hanging it up. Plaintiff was upset because her
daughter was awake so late and because she believed that Magada and Sonko were
encouraging N.M. to hang up the phone on her. Plaintiff and one of her young sisters finally
went over to Sonko’s apartment around 2:00 a.m.
When plaintiff and her sister arrived at the apartment, they were buzzed in and went
inside Sonko’s apartment on the third floor. Plaintiff picked up N.M., told Magada he was
an “ass” and could stay at Sonko’s for the night and attempted to leave with N.M. and her
sister. Magada grabbed plaintiff violently and struggled with her while she held N.M. Sonko
got between plaintiff and Magada and then plaintiff ran down to the second floor of the
apartment building. Magada caught up with plaintiff on the second floor, pinned her to the
wall, raised his arm and drew his fist back as if to strike her while she continued to hold N.M.
At that moment, Marguerite Tate, who resided in a second floor apartment, opened her door
and told Magada that he better not hit plaintiff and that she was calling the police. Magada
then released plaintiff and she ran downstairs to the parking lot with N.M. and her sister.
Magada followed and they all left together.
Tate called 911 and reported seeing a man “looking like he was going to beat up his
wife,” who “had babies in her hand.” Dkt. #40-1 (transcript of 911 call). She further stated
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that the people had come from upstairs, the man was “yelling” and “pushed [the women] up
against the wall,” while “she had a baby in her arms,” and that the woman was scared. Tate
said that the people had gotten into a silver van and left the parking lot. Id.
C. Defendant White’s Investigation at Melody Lane
At approximately 2:53 a.m., defendant White was dispatched to Melody Lane as the
result of Tate’s 911 call. (According to the dispatch notes sent to White’s computer, the
caller was upset because a male pushed a female with children. White does not recall whether
he reviewed the dispatch notes. He recalls only that dispatch told him that the caller had
observed a physical disturbance between a man and woman in the hallway of her building.)
Defendant White went to Tate’s apartment first. White does not recall everything
Tate told him during their conversation. He remembers that she told him she had seen a
disturbance where she thought she saw a black male push a black female and that the female
had a child. White also remembers that Tate told him she yelled at the couple that she was
calling the police, after which the people got in a van and left. (White dep., dkt. #34, at 7980, 84, 224). According to Tate’s affidavit, Tate told White that she had heard running on
the steps of the stairwell located next to her apartment. When she opened the door, she saw
a man and a woman in an argument and saw the man push the woman up against the wall
and raise his hand as if he were going to hit her. Tate told White that the woman had a baby
or young child in her arms and another child standing next to her. She also told White that
the woman and children were quiet and were not crying, but looked scared of the man. Tate
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told White that she yelled at the man and woman that she was going to call the police, at
which point they left the building, got into a silver van and drove away. (Tate Aff., dkt.
#55.)
After speaking with Tate, defendant White went upstairs, where he made contact with
Sonko, who told White that he had had some friends over that night and that these friends
had caused the disturbance. Sonko told White that plaintiff had dropped Magada and their
two-year-old daughter, N.M., off at Sonko’s house earlier that night. While Magada and
N.M. were at his apartment, plaintiff started calling Magada’s phone and did so several times.
Sonko told Officer White that, each time, N.M. would answer the phone, say hello and then
hang up the phone. Sonko also told White that, at approximately 2:45 a.m., plaintiff arrived
at Sonko’s apartment very upset and yelling at both Magada and N.M. Sonko also told
White that plaintiff slapped N.M. (The parties dispute exactly what Sonko told White
regarding plaintiff’s slapping N.M. Neither side submitted a statement from Sonko regarding
what exactly he said to White. White states in his declaration that Sonko told him that
plaintiff was “physically striking” N.M. “all over her upper body,” although White testified
at trial that Sonko had told him that plaintiff was “slapping” N.M. Plaintiff objects to
White’s declaration on hearsay grounds as to his description of what Sonko told him, but his
statement is not hearsay because it is not being offered for the truth of Sonko’s statements.
On the other hand, defendant’s attempt to rely on Sonko’s trial testimony about what Sonko
told White is barred by hearsay rules, because defendants seek to introduce Sonko’s trial
testimony for the truth of the matter asserted, namely, that he told White something in
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particular.)
Sonko also told defendant White that plaintiff had thrown a pair of tennis shoes at
Magada. Sonko told White that, after throwing the shoes, plaintiff continued to yell at
Magada and N.M. and that plaintiff and Magada were pushing each other. Finally, Sonko
told White he was concerned for the safety of Magada and N.M. because he knew from past
experiences that plaintiff had a problem controlling her anger. (Plaintiff and Magada dispute
much of Sonko’s account of what happened at his apartment, denying that plaintiff yelled,
threw shoes or hit N.M. Plaintiff further argues that Sonko’s account of her hitting N.M.
contradicts Tate’s account that N.M. was not crying. Regardless whether Sonko’s account
was accurate, plaintiff has no personal knowledge of what Sonko told White.)
D. Events at Plaintiff’s Apartment
Defendant White believed he should investigate the situation further to make sure that
plaintiff, Magada and N.M. were safe. From telephone information provided by Sonko,
defendant White located plaintiff’s and Magada’s residence, at 2810 Dawn Road, Apartment
B, in Madison.
Defendant White knocked on plaintiff’s door, stated that he was there because of the
incident on Melody Lane and asked to come inside. Plaintiff’s apartment is a second level
apartment. The front door opens to a small entryway, measuring between 4 and 5 feet
square. Opposite the front door is a stairwell with approximately 20 to 25 steps that leads
upstairs to a combination living room, kitchen and dining area. Plaintiff told White that he
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could not come upstairs, but could come into the downstairs entryway. Plaintiff told White
that the children were upstairs. (The parties dispute whether plaintiff told White he could
not go upstairs with his shoes on, suggesting that he would be able to go upstairs if he took
his shoes off. White says plaintiff told him he could go upstairs with shoes on, while plaintiff
says that although she may have mentioned that the family did not go upstairs with shoes on,
she made it clear that she did not want White upstairs, with or without shoes.)
Defendant White agreed to stay downstairs and sent Magada upstairs so he could
speak to plaintiff alone. White stated that his partner was coming and would take Magada
outside to talk. White then asked plaintiff what had happened on Melody Lane and plaintiff
told him that she went to pick up her daughter and “some words were exchanged” between
her and Magada. Plaintiff told White that things had been resolved and there would be no
more problems that evening. White noticed that plaintiff had a cut on her chin. (It appears
that plaintiff had injured her chin a couple of days earlier.) White did not ask plaintiff about
her chin or inspect it at the time. He also did not tell plaintiff anything about Sonko’s
allegations that she had harmed N.M. or ask whether N.M. was all right.
Shortly after defendant White began talking with plaintiff, Officer Heck arrived at
plaintiff’s apartment. Heck had been dispatched to assist White with the investigation and
to provide backup.
Heck had not communicated with anyone at the Melody Lane
apartments regarding the incident. White let Heck into the entryway of the apartment and
told Heck to interview Magada, who was still upstairs. (The parties dispute what happened
next. Plaintiff says that White told Magada to get his coat and Heck responded that he
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would just interview Magada upstairs. White then told Heck that plaintiff did not want
anyone upstairs, especially with shoes on, so Heck slipped his shoes off and jogged up the
stairs. According to defendants, plaintiff stated that she did not want Magada to go outside,
but she had indicated the officers could go upstairs if they took their shoes off.) It is
undisputed that as soon as Heck went upstairs, plaintiff immediately told White and Heck
that she did not want anyone upstairs and she had not consented to their being in her house.
She yelled up the stairs to Magada that Heck needed to come down to talk to Magada
outside. Upstairs, Magada asked Heck repeatedly whether they could go outside. Heck
refused, telling Magada they could talk inside. (Defendants say that Magada ultimately said
it was “fine” if they talked upstairs, but Magada denies saying this.)
After defendant Heck went upstairs, defendant White continued trying to interview
plaintiff but could not because plaintiff was yelling that Heck and Magada needed to come
back downstairs and that she did not want Heck walking around up there. (Defendants say
that plaintiff was shouting “at the top of her lungs” in a “very aggravated manner,” while
plaintiff says she was using a “raised voice” just loud enough to be heard upstairs. Defendants
also say that White attempted to explain to plaintiff that he and Heck were in the apartment
legally and would not leave until their investigation was complete, that she could not control
whether Magada spoke with Heck and that Heck would not walk around the apartment
unless Magada was with him or gave him permission. Plaintiff denies that White said this.)
At the time she was yelling up the stairs, plaintiff was standing toward the bottom of
the staircase facing defendant White. At some point, she took a few steps up the stairs away
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from White. The parties dispute what happened next.
Defendant White says that when plaintiff started going up the stairs away from him,
he immediately grabbed her arm to stop her and told her she could not go upstairs and cause
a disturbance. White then stepped past her to block her from going up the stairs. White says
that plaintiff continued yelling up the stairs for Magada to come downstairs, continued
arguing about the legality of the officers presence in the house and repeatedly pushed White
in his torso area in an effort to get past him up the stairs. White says he told plaintiff at least
five times to stop pushing him and told her that she would be arrested if she did not stop and
calm down. White says that plaintiff did not heed these warnings and continued to try to
push past him to get up the stairs. White then told plaintiff she was under arrest. Plaintiff
tried to pull away from White and run down the steps, but White held on to plaintiff’s arm
and followed her down the steps. White says that he told plaintiff to put her arms behind
her back while he continued to hold her left arm, but plaintiff attempted to pull her left arm
away from him with her right arm flailing.
Defendant Heck says that he began running down the stairs when he saw plaintiff
attempting to get past White. He grabbed plaintiff’s right arm and pushed her up against the
wall. Defendants state that while they held plaintiff’s arms and pinned her against the wall,
she tried to pull her arms away and to thrust her head backwards towards the officers. Heck
says he was concerned that plaintiff could injure him or White by causing them to lose their
balance and fall down the stairs, so he pushed plaintiff’s head forward toward the wall while
White secured the handcuffs. As he did this, Heck’s hand became tangled in plaintiff’s hair,
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causing him to pull her hair while he held her against the wall.
Plaintiff’s version of events is different. Plaintiff says that after she took several steps
up the stairs, White told her to stop and she did. Defendant Heck then ran down the stairs
to her, grabbed her, put her in handcuffs, slammed her head against the wall and pulled her
hair multiple times. Plaintiff says that White stood at the threshold watching and never came
on the stairs or touched her. Plaintiff says that neither defendant told her to put her hands
behind her back, though both defendants yelled that she needed to listen and “stop resisting.”
Plaintiff responded that she was not resisting. As a result of Heck’s actions, plaintiff had
bruises on her forehead and right forearm and her leg hurt for several days.
After plaintiff was handcuffed, she was placed in the back seat of defendant White’s
police squad car. White then returned to the apartment, spoke with Magada and checked
N.M., who had no injuries. Plaintiff was then transported to the Dane County jail, booked
for the crime of resisting/obstructing under Wis. Stat. § 946.41(1), and processed by jail
personnel. Magada followed the officers to the jail. As soon as plaintiff completed her jail
booking and was released into the general jail population, Magada posted bail for plaintiff
and she was released from jail into his custody.
E. Subsequent Criminal Prosecution of Plaintiff
Although
defendant
White
arrested
plaintiff
on
January
25,
2014
for
resisting/obstructing under Wis. Stat. § 946.41(1), the Dane County District Attorney’s
office prosecuted plaintiff for disorderly conduct under Wis. Stat. § 947.01(1), a Class B
10
misdemeanor under Wis. Stat. § 939.51(3)(b), based solely on allegations related to
plaintiff’s conduct at Sonko’s apartment on Melody Lane and not on any of the alleged
conduct which took place later at plaintiff’s apartment. A jury trial was held on July 24,
2014, at which Sonko was the sole witness for the prosecution. After Sonko’s testimony,
plaintiff’s counsel moved for a directed verdict, which the judge denied. Plaintiff, Magada,
Tate, White and plaintiff’s sister then testified. The jury acquitted plaintiff.
F. Plaintiff’s Post-Incident Complaint
On January 27, 2014, three days after the incident, plaintiff submitted a Citizen
Complaint of Employee Conduct against defendant Heck to the Madison Police
Department’s Professional Standards and Internal Affairs Division, alleging excessive use of
force. Sergeant Alexander Berkovitz conducted an investigation of plaintiff’s complaint. The
Madison Police Department does not always notify officers of citizen complaints, but did so
in this case. Berkovitz reviewed plaintiff’s written complaint and photographs of her injuries
that had been taken by plaintiff and department personnel that showed redness and bruising
on her forehead and arm. Berkovitz also interviewed plaintiff, Magada, White and Heck, and
reviewed Heck’s and White’s police reports. Berkovitz asked a member of the department’s
personnel and training team to review Heck’s and White’s conduct; that officer concluded
that the use of force was reasonable and consistent with training. Berkovitz did not review
transcripts from plaintiff’s criminal trial or listen to the 911 tape from the incident.
Berkovitz concluded that Heck did not use excessive force against plaintiff and
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recommended that Heck be exonerated with respect to the allegations of plaintiff’s complaint.
Ultimately, this was done.
OPINION
Plaintiff is asserting the following claims: (1) she was the subject of a false arrest
because defendants had no probable cause to arrest her; (2) even if defendants had probable
cause, her arrest was unlawful because defendants arrested her in her house without a
warrant, consent or exigent circumstances; (3) defendants used excessive force while arresting
her; (4) defendants committed assault and battery in violation of state law; and (5) the City
of Madison failed to properly train, supervise and discipline defendants. I address each claim
below.
A. False Arrest
Both parties have moved for summary judgment on plaintiff’s false arrest claim. To
prevail on a false arrest claim, plaintiff bears the burden of establishing that the officers
arrested her without probable cause. Mucha v. Village of Oak Brook, 650 F.3d 1053, 1056
(7th Cir. 2011). “An officer has probable cause to make an arrest only when the facts and
circumstances within his knowledge and of which he has reasonably trustworthy information
are sufficient to warrant a prudent person in believing that the suspect has committed an
offense.” Gibbs v. Lomas, 755 F.3d 529, 537 (7th Cir. 2014) (citation omitted). “In making
this assessment, the question is whether, given the ‘totality of the circumstances,’ a reasonable
12
officer would believe that the suspect had committed a crime.” Id. (quoting Jones v. City of
Elkhart, Indiana, 737 F.3d 1107, 1114 (7th Cir. 2013)). The subjective motivations of the
officer are irrelevant. Id. See also Abbott v. Sangamon County, Illinois, 705 F.3d 706, 714
(7th Cir. 2013) (“Determining whether an officer had probable cause to arrest entails a purely
objective inquiry; the officer’s subjective state of mind and beliefs are irrelevant.”) Because
probable cause is an objective standard, an arrest is lawful if the officer had probable cause
to arrest for any offense, not just the offense cited at the time of arrest or booking.
Devenpeck v. Alford, 543 U. S. 146, 153–55, n.2 (2004). See also McComas v. Brickley, 673
F.3d 722, 727 (7th Cir. 2012) (“[A]n arrest is reasonable under the Fourth Amendment so
long as there is probable cause to believe that some criminal offense has been or is being
committed, even if it is not the crime with which the officers initially charge the suspect.”)
1. Issue preclusion
As a threshold matter, defendants argue that plaintiff’s false arrest claim is barred by
issue preclusion because the state court determined during her criminal prosecution that
defendants had probable cause for her arrest. In particular, defendants argue that because the
state court denied plaintiff’s motion for a directed verdict after the prosecution rested its case,
the state court necessarily decided that Modou Sonko’s testimony gave the officers probable
cause to arrest plaintiff.
Although issue preclusion may apply to Fourth Amendment issues resolved in state
court, Allen v. McCurry, 449 U.S. 90, 105 (1980), it applies in Wisconsin only if the “same”
13
issue was actually litigated and decided in a prior action and reduced to judgment. Mrozek
v. Intra Financial Corp., 2005 WI 73, ¶ 21, 281 Wis. 2d 448, 467, 699 N.W.2d 54, 63. See
also Flooring Brokers, Inc. v. Florstar Sales, Inc., 2010 WI App 40, ¶ 6, 324 Wis. 2d 196,
202, 781 N.W.2d 248, 251 (citation omitted). In this case, defendants have not shown that
the state court ever made any determination about probable case or potential Fourth
Amendment violations. A review of the transcript from the criminal proceeding shows that
plaintiff’s counsel argued that the prosecution had failed to show that plaintiff’s conduct
caused a “threat to the surrounding community,” as required to fit the offense of disorderly
conduct. Dkt. #39 at 72. The trial judge disagreed, concluding that a reasonable jury could
believe Sonko’s trial testimony and find that plaintiff’s alleged conduct disturbed both Sonko
and other residents of his apartment building. Id. at 73. This is not the same question as the
one to be answered in this case, which is whether a reasonable officer in White’s position
would have believed that plaintiff had committed a crime. The Fourth Amendment analysis
is based on what White knew after having spoken with both Sonko and Tate on January 25,
2014, not on what a jury heard from Sonko at trial several months later. For this reason, the
case is distinguishable from the one on which defendants rely, Jensen v. Foley, 295 F.3d 745,
749 (7th Cir. 2002), in which Fourth Amendment claims were barred by issue preclusion
because a state court had previously made a probable cause determination at a hearing. I
conclude in this case that issue preclusion does not bar plaintiff’s false arrest claim.
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2. Probable cause
The question to be determined is whether defendants had probable cause to arrest
plaintiff, taking into consideration everything they knew at the time of her arrest. At the
time plaintiff was arrested, defendant White had the following information:
(1) Tate’s statements regarding what she had witnessed, including having heard
someone running down the steps of the stairwell outside her door and, after opening
her door, seeing a man pushing a woman with a baby in her arms, with another child
standing next to her, the man raising his hand as if he were going to hit the woman
and the scared and quiet looks of the woman and children;
(2) Sonko’s statements regarding what he had witnessed, including plaintiff’s arrival
his apartment late at night, her yelling at N.M. and Magada, pushing and throwing
shoes at Magada and “slapping” or “physically striking” N.M. “all over her upper
body,” as well as Sonko’s statements that he was concerned for the safety of Magada
and N.M. because he knew from past experiences that plaintiff had a problem
controlling her anger;
(3) plaintiff’s statement to White that “some words had been exchanged” but that
things had been resolved; and
(4) the lack of any obvious signs of distress or crying by anyone at plaintiff’s
apartment.
Defendants argue that these facts gave them probable cause to arrest plaintiff for
multiple offenses, including (1) felony physical abuse of a child under Wis. Stat. §
948.03(2)(b); (2) battery under Wis. Stat. § 940.19(1); (3) attempted battery under Wis.
Stat. § 939.32(1); and (4) disorderly conduct under Wis. Stat. § 947.01(1). Defendants assert
that even if they did not have actual probable cause, they are entitled to qualified immunity.
(In a footnote, defendants argue that they also had probable cause to arrest plaintiff for
resisting/obstructing an officer under Wis. Stat. § 946.41(1), the crime actually cited during
her arrest, but defendants have not developed this argument in any meaningful way.
15
Therefore, it is deemed waived. Campania Management Co., Inc. v. Rooks, Pitts & Poust, 290
F.3d 843, 852 (7th Cir. 2002) (“Perfunctory and undeveloped arguments are waived.”)).
The Supreme Court has cautioned lower courts to “think hard, and then think hard
again,” before addressing the merits of an underlying constitutional claim when a defendant
has raised a qualified immunity defense.
District of Columbia v. Wesby, 583 U.S. ___, (Jan.
22, 2018) (slip op., at n.7)(citing Camreta v. Greene, 563 U.S. 692, 707 (2011)). Thus, I will
address qualified immunity first.
For false arrest claims, defendants are entitled to qualified immunity if “a reasonable
officer could have mistakenly believed that probable cause existed.” Fleming v. Livingston
County, Illinois, 674 F.3d 874, 878 (7th Cir. 2012) (Humphrey v. Staszak, 148 F.3d 719,
725 (7th Cir.1998) (citations omitted)). Thus, as long as defendants reasonably, albeit
possibly mistakenly, believed that probable cause existed to arrest plaintiff, defendants are
entitled to qualified immunity. Id. This standard is often dubbed “arguable probable cause.”
Id. (citations omitted). Arguable probable cause is established “when ‘a reasonable police
officer in the same circumstances and with the same knowledge and possessing the same
knowledge as the officer in question could have reasonably believed that probable cause existed
in light of well-established law.’” Id. at 880. Qualified immunity applies so long as there was
“arguable probable cause” to arrest for any offense. McComas, 673 F.3d at 727.
To overcome defendants’ qualified immunity defense, plaintiff would have to “‘identify
a case where an officer acting under similar circumstances . . . was held to have violated the
Fourth Amendment.’” Wesby, 583 U.S. ___, (Jan. 22, 2018) (slip op. at 15) (citing White v.
16
Pauly, 137 S. Ct. 548, _, ___ (2017) (per curiam) (slip op., at 6)). Although it is not necessary
to have “‘a case directly on point,’ existing precedent must place the lawfulness of the
particular arrest ‘beyond debate.’” Id. (citing Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).
There may be the “rare ‘obvious case,’ where the unlawfulness of the officer’s conduct is
sufficiently clear even though existing precedent does not address similar circumstances,” id.
(citing Brosseau v. Haugen, 543 U. S. 194, 199 (2004) (per curiam), but “a body of relevant
case law is usually necessary to clearly establish the answer with respect to probable cause.”
Id. (citation omitted).
Under these principles, I conclude that defendants are entitled to qualified immunity.
Even assuming that they lacked actual probable cause, they could have reasonably concluded
they had probable cause to arrest plaintiff for disorderly conduct under Wis. Stat. § 947.01(1).
“There are two elements to a typical disorderly conduct offense in Wisconsin: (1) ‘that the
defendant engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud, or
similar disorderly conduct’ and (2) ‘that the defendant’s conduct occurred under circumstances
where such conduct tends to cause or provoke a disturbance.’” Gibbs, 755 F.3d at 538 (citing
Wis. Stat. § 947.01(1) and State v. Schwebke, 253 Wis. 2d 1, 644 N.W.2d 666, 674 (2002)).
Relying on the statement from Sonko, defendants could conclude reasonably that plaintiff’s
arrival at Sonko’s apartment around 2:00 a.m., yelling, throwing a shoe, slapping her daughter
and generally engaging in behavior that disturbed at least one other person in the building, is
conduct with a tendency to disrupt public peace or provoke a disturbance.
Plaintiff argues that defendants should not have accepted Sonko’s statements as true,
17
particularly where Tate, the 911 caller, gave statements suggesting that plaintiff was the victim
in the situation, not the perpetrator. Plaintiff argues that Tate’s statements did not provide
probable cause for defendants to arrest her before investigating further, such as by interviewing
her and Magada or checking N.M. for injuries. However, the Court of Appeals for the Seventh
Circuit has rejected similar arguments, explaining that “police officers have no duty to
investigate extenuating circumstances or search for exculpatory evidence once probable cause
has been established via the accusation of a credible witness.” Burritt v. Ditlefsen, 807 F.3d
239, 250–51 (7th Cir. 2015) (citing Mustafa v. City of Chicago, 442 F.3d 544, 548 (7th Cir.
2006)). See also Abbott, 705 F.3d at 716. Law enforcement is not required to discover more
information to undermine probable cause once it has been established. Hodgkins ex rel.
Hodgkins v. Peterson, 355 F.3d 1048, 1061 (7th Cir. 2004). The statement of a single
witness, such as Sonko in this case, is generally is sufficient to establish probable cause to
arrest unless the statement “would lead a reasonable officer to be suspicious, in which case the
officer has a further duty to investigate.” Beauchamp v. City of Noblesville, Indiana, 320 F.3d
733, 743 (7th Cir. 2003) (citing Woods v. City of Chicago, 234 F.3d 979, 987 (7th Cir.
2001)). See also United States v. McCauley, 659 F.3d 645, 651 (7th Cir. 2011) (“When
police officers obtain information from an eyewitness . . . establishing the elements of a crime,
the information is almost always sufficient to provide probable cause for an arrest in the
absence of evidence that the information, or the person providing it, is not credible.”)
Further, “in crediting the complaint of a reasonably believable witness or putative
victim, the police are under no constitutional obligation to exclude all suggestions that the
18
witness or victim is not telling the truth.” Beauchamp, 320 F.3d at 743 (citing Spiegel v.
Cortese, 196 F.3d 717, 724–25 (7th Cir. 2000). “[T]he law does not require that a police
officer conduct an incredibly detailed investigation at the probable cause stage,” Gerald M. v.
Conneely, 858 F.2d 378, 381 (7th Cir. 1988), and no clearly established law “suggests that
a [witness’s] report must be unfailingly consistent to provide probable cause.” Gutierrez v.
Kermon, 722 F.3d 1003, 1012 (7th Cir. 2013). See also Gibbs, 755 F.3d at 537 (statement
of single witness was sufficient to create probable cause to arrest for disorderly conduct).
“Police are entitled to draw on eyewitness descriptions without being required to assume that
witnesses got every detail right, or that every omission from a description must establish that
the omitted fact did not occur.” Bridewell v. Eberle, 730 F.3d 672, 676 (7th Cir. 2013).
In this instance, defendant White was given no information prior to plaintiff’s arrest
to suggest that Sonko was not giving him credible information. Although Tate’s statements
suggested that Magada may also have engaged in disorderly conduct or other bad behavior,
her statements are not enough to require defendants to discredit Sonko’s statements. This is
particularly true because “[p]robable cause ‘is not a high bar.’” Wesby, 583 U.S. ___, (slip op.,
at 18) (citing Kaley v. United States, 134 S. Ct. 1580, 103, (2014.)). Probable cause deals
with probabilities and depends on the totality of the circumstances,” and is “‘a fluid concept’
that is ‘not readily, or even usefully, reduced to a neat set of legal rules.’” Id. (slip op., at 7)
(citing Illinois v. Gates, 462 U. S. 213, 232 (1983)). It “requires only a probability or
substantial chance of criminal activity, not an actual showing of such activity.” Id. (citation
omitted). In light of the totality of the facts and circumstances known to defendants at the
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time of plaintiff’s arrest, a reasonable officer could have concluded that plaintiff had engaged
in disorderly conduct and was subject to arrest. Plaintiff’s arguments and evidence fail to raise
a genuine issue of material fact as to whether defendants lacked at least arguable probable
cause. Therefore, defendants are entitled to summary judgment on plaintiff’s false arrest
claim.
B. Unlawful Arrest
Both sides also move for summary judgment on plaintiff’s unlawful arrest claim.
Plaintiff contends that even if defendants had probable cause to arrest her, they violated her
Fourth Amendment rights by arresting her in her home without having a warrant, consent to
enter or exigent circumstances. Sparing v. Village of Olympia Fields, 266 F.3d 684, 688 (7th
Cir. 2001) (“[P]olice officers may not constitutionally enter a home without a warrant to
effectuate an arrest, absent consent or exigent circumstances, even if they have probable
cause.”). Defendants argue that the arrest was lawful because they had both consent and
exigent circumstances to be in plaintiff’s home.
1. Consent
Defendants contend that their arrest of plaintiff was not unlawful because both plaintiff
and Magada gave them consent to be in the apartment. Harney v. City of Chicago, 702 F.3d
916, 925 (7th Cir. 2012) (“Where someone with the authority to do so gives consent to enter
. . . the entry is reasonable and not in violation of the Fourth Amendment.”) It is undisputed
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that plaintiff and Magada consented to defendants’ coming into the entryway of their home.
However, plaintiff was not arrested in the entryway, but on the stairs, and it is disputed
whether defendants had consent from either plaintiff or Magada to be in the apartment
beyond the threshold located at the bottom of the stairs. Plaintiff says she told defendants
repeatedly that they could not go upstairs, while defendants say plaintiff told them they could
go upstairs so long as they removed their shoes.
It is well-established that persons can limit the scope of their consent to allow police
into their homes. United States v. Saucedo, 688 F.3d 863, 865 (7th Cir. 2012). The scope
of consent is “limited by the breadth of actual consent.” United States v. Long, 425 F.3d 482,
486 (7th Cir. 2005). Generally, whether the police acted within the scope of consent is a
“question of fact to be determined from the totality of the circumstances.” Id. In this
instance, where the facts are disputed, I cannot determine whether defendants exceeded the
scope of plaintiff’s or Magada’s consent by proceeding up the stairs to arrest plaintiff.
Defendants suggest that the dispute about consent ultimately does not matter because
an arrest inside a home is lawful so long as the initial entry into the home was lawful.
However, this argument is not persuasive because, in contrast to the authorities cited by
defendants, defendants have not established that their entry onto the stairs was lawful at any
point. For example, defendants cite Fitzgerald v. Santoro, 707 F.3d 725, 731 (7th Cir. 2013),
in which the court of appeals held that a warrantless entry and arrest were lawful even though
the entry had been based on exigent circumstances that may have dissipated by the time of the
arrest. In contrast to the present case, the officers in Fitzgerald had established that they had
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authority to be in the area of the arrest prior to the arrest.
Defendants also cite Wayne R. LaFave, 3 Search and Seizure: A Treatise on the Fourth
Amendment (5th Ed.), § 6.1(c), “The other-lawful-basis exception,” in which Professor LaFave
explains that once the police lawfully enter a home, they may arrest without a warrant.
However, defendants fail to recognize that in the same section, LaFave explains that “police
once inside should be allowed . . . to make an unannounced arrest” so long as “they do not exceed
the spatial boundaries of the consent given.” Id. (emphasis added). He further states that “of
course, it is essential that the presence of the police at the very time and place of arrest be
consistent with the entry authority relied upon.” Id. (emphasis added). Because there is a genuine
dispute in this case whether defendants exceeded the spatial boundaries of the consent given
when they arrested plaintiff, I cannot conclude that defendants are entitled to summary
judgment on the issue of consent.
2. Exigent circumstances
Defendants also argue that they were lawfully in plaintiff’s home under exigent
circumstances. Under the exigent circumstances doctrine, the question is “whether it was
reasonable for the police officers on the scene to believe, in light of the circumstances they
faced, that there was a compelling need to act and no time to obtain a warrant.” Sutterfield
v. City of Milwaukee, 751 F.3d 542, 557 (7th Cir. 2014). “Reasonable fear for the safety of
a person inside a premises is one such exigent circumstance.” Fitzgerald v. Santoro, 707 F.3d
725, 730 (7th Cir. 2013).
Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006)
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“[O]fficers may enter a home without a warrant to render emergency assistance to an injured
occupant or to protect an occupant from imminent injury.”) To determine whether sufficient
exigent circumstances exist to justify a warrantless entry, the court must apply an objective
standard of reasonableness under the totality of the circumstances. Sutterfield, 751 F.3d at
557.
Defendants argue that exigent circumstances existed for entry because they needed to
make sure that all of the occupants were safe, in light of Sonko’s and Tate’s statements, but
this argument is not persuasive. Neither Sonko nor Tate told White that someone had been
seriously injured. Although Sonko told White that plaintiff had slapped her child, Sonko did
not suggest that the child had been seriously injured or would need medical attention. Tate
had seen the child shortly after plaintiff’s alleged slapping and she had told White that the
child was not crying. Further, when plaintiff and Magada opened the door to their apartment,
White could see that both Magada and plaintiff were calm and had no serious injuries.
Defendants heard no children crying or anything else suggesting that someone was in distress
or needed emergency assistance requiring them to proceed up the stairs into plaintiff’s
apartment. Defendants state that White saw a cut on plaintiff’s chin, which created “exigent
circumstances,” but defendants do not explain why they would need to enter plaintiff’s
apartment to inquire about a cut. Indeed, it is undisputed that defendants did not attempt
to provide aid or even ask about N.M. or about plaintiff’s cut or any other injuries until after
plaintiff’s arrest.
The cases defendants cite are all distinguishable and involved clearly exigent situations.
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For example, defendants cite Anderson v. City of West Bend, 774 F. Supp. 2d 925 (E.D. Wis.
2011), to support their argument that exigent circumstances existed. However, in Anderson,
the district court found that exigent circumstances existed where there was a 911 call,
neighbors reported hearing calls for help, furniture moving and things banging around, the
alleged victim sounded distraught when she first spoke with the officers and the alleged victim
had locked herself into the apartment with the alleged assailant. Id. at 939. In contrast, both
plaintiff and Magada were calm and willing to talk to defendants in their entryway and
exhibited no signs of distress or serious injury.
Moreover, defendants had no basis for
believing that there had been a physical altercation at plaintiff’s apartment, that anyone had
been seriously injured or that a physical altercation was likely to resume. Accordingly,
defendants have not shown that entry onto plaintiff’s stairs was justified by exigent
circumstances.
3. Qualified immunity
Defendants raise a qualified immunity defense to plaintiff’s unlawful arrest claim as
well. However, qualified immunity does not help defendants because even qualified immunity
does not change the rule that facts must be construed in favor of the nonmoving party on a
motion for summary judgment. Board v. Farnham, 394 F.3d 469, 476 (7th Cir. 2005). If I
construe the facts in plaintiff’s favor, then a reasonable jury could find that defendants did not
have consent or exigent circumstances that justified entry onto plaintiff’s stairwell. At the
time, it was clearly established that police officers need a warrant to enter a home unless they
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meet one of the exceptions to the warrant requirement identified by the Supreme Court.
Stuart, 547 U.S. at 403 (2006) (“It is a basic principle of Fourth Amendment law that
searches and seizures inside a home without a warrant are presumptively unreasonable.”)
(internal quotations omitted). With respect to exigent circumstances, the Supreme Court has
stated that “law enforcement officers may enter a home without a warrant to render emergency
assistance to an injured occupant or to protect an occupant from imminent injury.” Id. Under
plaintiff’s version of events, no reasonable officer would have concluded that he needed to
enter the home to render emergency assistance or protect an occupant from imminent injury.
Therefore, defendants are not entitled to qualified immunity.
C. Excessive Force
Plaintiff argues that defendants violated her rights under the Fourth Amendment
because defendant Heck used excessive force against her and defendant White failed to
prevent Heck from doing so. An officer violates the Fourth Amendment if he uses force that
is unreasonable in light of the “facts and circumstances of the particular case.” Kingsley v.
Hendrickson,135 S. Ct. 2466, 2473 (2015) (citing Graham v. Connor, 490 U.S. 386, 396,
(1989). Factors that may be relevant to this determination include: the relationship between
the need for the use of force and the amount of force used; the extent of the plaintiff's injury;
any effort made by the officer to temper or limit the amount of force; the severity of the
security problem at issue; the threat reasonably perceived by the officer; and whether the
plaintiff was actively resisting. Id. When this standard is applied to the present case, it is clear
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that summary judgment is not appropriate.
Under plaintiff’s version of events, defendant Heck grabbed her arms, slammed her into
a wall and pulled her hair repeatedly, both before and after handcuffing her, solely because she
was yelling at him to leave her house after he entered the upstairs of her home over her
objections. According to plaintiff, she did not attempt to strike, shove, hit or kick the officers,
never actively resisted and did not otherwise pose an immediate threat to either officer’s
safety. If a jury believed plaintiff, it could conclude that defendants’ use of force was wholly
unnecessary and objectively unreasonable.
Defendants dispute plaintiff’s version of events but argue that, even if plaintiff’s version
is credited, defendants’ use of force was reasonable because they could have reasonably
believed plaintiff was being “uncooperative” and “suspicious” and that “active physical
resistance was imminent.” Dfts.’ Br., dkt. #27, at 43. This argument is not persuasive.
Defendants cite no authority for the proposition that officers may slam someone into a wall
and pull her hair because she is being “suspicious,” “uncooperative” or may soon engage in
some form of “active physical resistance.”
For the same reason, defendants’ qualified immunity argument fails. When the facts
are construed in the light most favorable to plaintiff, a reasonable police officer would have
been on notice at the time of the occurrence that plaintiff’s conduct did not justify the sort
of force described in her account. Kingsley v. Hendrickson, 801 F.3d 828, 832 (7th Cir.
2015) (citing cases in which use of force was unreasonable where confined detainee was not
resisting or presenting any threat). See also Cyrus v. Town of Mukwonago, 624 F.3d 856, 863
26
(7th Cir. 2010) (well established that “[f]orce is reasonable only when exercised in proportion
to the threat posed”). Accordingly, neither side is entitled to summary judgment on plaintiff’s
excessive force claim.
D. State Law Claims
Defendants argue that plaintiff’s state law assault and battery claims are barred by the
Wisconsin discretionary immunity statute, Wis. Stat. § 893.80(4). That statute bars suit
against public employees “for acts done in the exercise of legislative, quasi-legislative, judicial,
or quasi-judicial functions.” Defendants argue that police decisions surrounding the arrest and
detention of a suspect, including the use of force, are discretionary acts for which immunity
is afforded under Wis. Stat. § 893.80(4). Sheridan v. City of Janesville, 164 Wis. 2d 420,
427–28, 474 N.W.2d 799, 802 (Ct. App. 1991) (decisions regarding “whether [an arrestee]
should be searched, handcuffed, [or] subjected to force during execution of the arrest” are
decisions involving the exercise of discretion). Plaintiff does not deny that defendants’ actions
were discretionary, but argues that an exception for “malicious, willful and intentional”
conduct permits her state law claims to go forward.
I agree with plaintiff. The Wisconsin Supreme Court has explained that the “malicious,
willful and intentional” exception applies to “ill-intended acts” involving “malice, wantonness
or intent to injure, rather than negligence.” Bicknese v. Sutula, 2003 WI 31, ¶ 19, 260 Wis.
2d 713, 727, 660 N.W.2d 289, 296 (citation omitted). There are genuine disputes of
material fact regarding whether defendants’ conduct was malicious, willful and intentional.
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If a jury believed plaintiff’s version of events, it could conclude that defendant Heck’s use of
force against plaintiff was precipitated out of anger, with malice and an intent to injure and
that defendant White’s failure to intervene to prevent Heck’s actions was motivated by the
same considerations.
The cases cited by defendants do not require a different result. Defendants cite
Sheridan, 164 Wis. 2d 420, 474 N.W.2d 799, but that case is not helpful because the court
did not analyze whether the “malicious, willful and intentional” exception applied.
Defendants also cite Wilson v. City of Milwaukee, 138 F. Supp. 2d 1126, 1133 (E.D. Wis.
2001), but in that case the court concluded that the “malicious, willful and intentional”
exception could not overcome discretionary immunity for a negligence claim that would not
require a showing of intentional conduct. In this case, however, plaintiff’s assault and battery
claims will require her to show that defendants acted intentionally. Under her version of
events, she has submitted sufficient facts to allow these claims to proceed to trial.
E. Governmental Liability
Finally, defendants move for summary judgment on plaintiff’s claim that the City of
Madison is liable for the officers’ violation of plaintiff’s constitutional rights. To succeed on
such a claim, plaintiff must prove that the officers’ unconstitutional actions were 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 Department,
28
604 F.3d 293, 303 (7th Cir. 2010) (citing Monell v. Department of Social Services of City of
New York, 436 U.S. 658, 690 (1978)). In this instance, plaintiff argues that the City failed
to provide officers adequate training concerning investigation of domestic violence cases,
consent to enter residences and use of force.
Plaintiff’s claim is governed by a deliberate indifference standard. City of Canton v.
Harris, 489 U.S. 378, 388 (1989) (“[T]he inadequacy of police training may serve as the basis
for § 1983 liability only where the failure to train amounts to deliberate indifference to the
rights of persons with whom the police come into contact.”); King v. Kramer, 680 F.3d 1013,
1021 (7th Cir. 2012) (where municipality has “actual or constructive knowledge that its
agents will probably violate constitutional rights, it may not adopt a policy of inaction”); Jones
v. City of Chicago, 787 F.2d 200, 204 (7th Cir. 1986) (“[I]n situations that call for
procedures, rules or regulations, the failure to make policy itself may be actionable.”). Flawed
policies or training amounts to deliberate indifference only if “the need for more or different
[policies or] training is so obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the city can reasonably be said to have been
deliberately indifferent to the need.” City of Canton, 489 U.S. at 388. Proof of deliberate
indifference requires more than “[a] showing of simple or even heightened negligence.” Board
of County Commissioners of Bryan County v. Brown, 520 U.S. 397, 407 (1997). The
Supreme Court has explained that a plaintiff may make this showing several ways, including:
(1) “in light of the duties assigned to specific officers or employees the need for more or
different training is so obvious, and the inadequacy so likely to result in the violation of
29
constitutional rights”; and (2) a repeated pattern of constitutional violations makes “the need
for further training . . . plainly obvious to the city policymakers.” City of Canton, 489 U.S.
at 390 and n.10.
Plaintiff has not adduced any evidence of a deficiency in the City’s policies or training
that could give rise to a claim for deliberate indifference. It is undisputed that defendants
White and Heck both received training on use of force, arrest and domestic violence. Plaintiff
has identified no deficiencies in this specific training that would support her claim. She
suggests that the City condoned defendants’ use of force by exonerating Heck. However,
Heck’s exoneration was based in part on a credibility determination that included plaintiff,
Heck and White. Nothing about the investigation itself suggests deliberate indifference.
Finally, plaintiff argues that defendants violated City policy in their interactions with
plaintiff. Even assuming this is true, plaintiff’s argument supports a finding that the City had
relevant policies in place, not that the City’s policies were deficient. In short, plaintiff has
submitted no evidence from which a reasonable jury could conclude that the City had actual
or constructive knowledge that the need for a specific policy or further training was “plainly
obvious.” City of Canton, 489 U.S. at 390 n. 10; Jenkins v. Bartlett, 487 F.3d 482, 492-93
(7th Cir. 2007). Accordingly, the City of Madison is entitled to summary judgment with
respect to plaintiff’s Monell claim.
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ORDER
IT IS ORDERED that
1. Plaintiff Briana Rivera’s motion for summary judgment, dkt. #28, is DENIED.
2. The motion for summary judgment filed by defendants City of Madison, Officer
Gabriel Heck and Officer David White, dkt. #17, is GRANTED IN PART and DENIED IN
PART. The motion is GRANTED with respect to plaintiff’s false arrest claim and her claims
against the City of Madison. The motion is DENIED in all other respects.
Entered this 31st day of January, 2018.
BY THE COURT:
/s/
________________________
BARBARA B. CRABB
District Judge
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