Estate of Thurman v. City of Milwaukee (197 F. Supp. 2d 1141, 2002)

DECISION AND ORDER

ADELMAN, District Judge.

Plaintiffs, the estate and survivors of Clarence Michael Thurman III, bring this action under 42 U.S.C. § 1983 against former Milwaukee police officer Keith Bernard Miller, who shot and killed Thurman subsequent to chasing and apprehending him, after Thurman stole a lawn mower from Miller’s garage. Plaintiffs allege that Miller used excessive force in violation of the Fourth and Fourteenth Amendments. Plaintiffs also bring state law assault and battery and wrongful death claims against Miller and the City of Milwaukee. Defendants now move for summary judgment.

I. FACTS

In the afternoon of August 3, 1996, defendant Miller was off duty and at home. His son told him that there was a man in their garage. Miller went to the garage and saw Thurman walking out of the gar-rage pulling Miller’s lawn mower. Miller followed Thurman with his police revolver drawn, pointed the gun at Thurman and said something to the effect of “bring my lawn mower back.” (Pis.’ Resp. to Defs.’ Proposed Findings of Fact, Ex. 1 at 74.)

A group of neighborhood boys observed the incident. None of the boys heard Miller identify himself as a police officer or saw him display a badge. Miller was wearing shorts and had no shoes on.

Thurman left the lawn mower and tried to flee. Miller apprehended him in an alley adjacent to his garage and grabbed him by the shirt collar. With his gun in one hand, he bent Thurman over and started punching him and kicking him in the stomach. One of the neighborhood boys, Calvin Green, testified that Miller pointed his gun at Thurman’s head and threatened to kill him. Green said that Miller hit Thurman four to seven times with his gun.

At a certain point Miller’s wife drove up. Thurman escaped Miller’s grip by pulling out of his t-shirt and fled. Miller asked the boys if any of them knew the man who had run off and ascertained that one of them, Robert Spencer, knew where Thurman lived. Miller told Spencer to wait, and he went into his house and put his shoes on. He did not telephone the police or ask his wife to do so.

Miller’s wife tried to dissuade her husband from chasing Thurman. Green said that Miller’s wife told him “don’t go blowing off your head,” and Miller responded, “I’m just going to beat him down some more.” {Id. at 15, 24.)

Miller got into his wife’s van and told Spencer to show him where Thurman lived. Spencer got into the van with Miller and directed him to an alley in the vicinity of North 40th Street and Hampton Avenue where they saw some men in a garage. Spencer remained in the van while Miller got out and talked to the men.

Miller then got back into the van and drove off. Shortly after, Spencer observed Thurman several blocks away and pointed him out to Miller. Miller then drove his van at high speed, “about 65, 70” miles per hour in the alley toward Thurman. (Def.’s App., Ex. I at 20, 42.) Spencer said that Miller’s driving scared him, and that Miller almost hit several children. Miller then got out of the van and ran after Thurman. Spencer heard a shot a minute or two later.

Miller shot and killed Thurman. The only witness to the shooting was Michael Jones, who was then seven years old. Jones testified at deposition that when he saw Miller and Thurman they appeared to be boxing, and that Miller pulled a gun from his pocket and was trying to shoot it. He did not hear Miller identify himself as a police officer. He saw the gun fall to the ground, observed the two men struggle for the gun, heard a shot and saw Thurman fall down.

Miller testified at deposition that he had been on the police force for about a year and a half when the incident occurred. He further stated that he stopped working as a police officer in early 1997, was subsequently found to be disabled and was not presently employed. He testified that on August 3, 1996, when his son told him that a man was in the garage, he ran out with his gun in his hand, observed Thurman and identified himself as a police officer. He testified that Thurman tried to flee, and that he pursued and then caught him. He stated that he struck Thurman a number of times, but that Thurman ran away.

Miller testified at deposition that, prior to pursuing Thurman, he did not call for backup although “nine times out of ten, most likely I would call for backup.” (Def.’s App., Ex. F at 99.) He stated that after he pursued Thurman in the van and caught him, the two of them struggled, and Miller’s gun fell out of his pants onto the ground. Miller testified that he picked the gun off the ground and that Thurman came at him, and he shot him.

II. SUMMARY JUDGMENT

A. Standard

Summary judgment is required “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). The mere existence of some factual dispute does not defeat a summary judgment motion; the requirement is that there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For a dispute to be genuine, the evidence must be such that a “reasonable jury could return a verdict for the nonmoving party.” Id. For' the fact to be material, it must relate to a disputed matter that “might affect the outcome of the suit.” Id.

Although summary judgment is a useful tool for isolating and terminating factually unsupported claims, Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), courts should act with caution in granting summary judgment, Anderson, 477 U.S. at 255, 106 S.Ct. 2505. When the evidence presented shows a dispute over facts that might affect the outcome of the suit under governing law, summary judgment must be denied. Id. at 248, 106 S.Ct. 2505.

The moving party has the initial burden of demonstrating that he is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once this burden is met, the nonmoving party must “go beyond the pleadings” and designate specific facts to support each element of the cause of action, showing a genuine issue for trial. Id. at 322-23, 106 S.Ct. 2548. Neither party may rest on mere allegations or denials in the pleadings, Anderson, 477 U.S. at 248, 106 S.Ct. 2505, or upon conelusory statements in affidavits, Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir.1989). Both parties must produce documentary evidence to support their contentions. Whetstine v. Gates Rubber Co., 895 F.2d 388, 392 (7th Cir.1990).

In evaluating a motion for summary judgment, the court must draw all inferences in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, it is “not required to draw every conceivable inference from the record — only those inferences that are reasonable.” Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991).

In deadly force cases the threshold for refuting self-defense claims at the summary judgment stage is relatively low. Plakas v. Drinski, 19 F.3d 1143, 1146-47 (7th Cir.1994). Where the officer defendant is the only witness left alive to testify, the award of summary judgment to the defense may be made only with particular care. Id. at 1147.

B. Consideration of Inquest Testimony

The present case presents an issue concerning the materials that may be considered on a summary judgment motion. Plaintiffs submit a transcript of a Milwaukee County Circuit Court inquest containing the testimony of witnesses who observed parts of the incident involving Miller and Thurman. Defendants argue that consideration of such evidence is improper.

I. decide a summary judgment motion based on “the pleadings, depositions, answers to interrogatories and admissions on file together with affidavits if any.” Fed. R.Civ.P. 56(c). However, the particular forms of evidence mentioned in the rule are not the exclusive means of presenting evidence on a Rule 56 motion. 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure (1998) § 2721, at 366 (3d ed.). A court may consider any information that would be admissible or usable at trial. Aguilera v. Cook County Police & Corr. Merit Bd., 760 F.2d 844, 849 (7th Cir.1985) (citing Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, supra); see also Schy v. Susquehanna Corp., 419 F.2d 1112 (7th Cir.1970) (court considered copy of proxy statement); Oglesby v. Coca-Cola Bottling Co., 620 F.Supp. 1336, 1344 (N.D.Ill.1985) (indicating that court may consider documentary exhibits that bear earmarks of reliability and trustworthiness).

The critical question in determining whether evidence may be considered on a summary judgment motion is not the form in which the evidence is submitted, in this case the transcript of the inquest, but whether the testimony contained in the transcript could be put into admissible form. Edward Brunet, Summary Judgment Materials, 147 F.R.D. 647, 656 (1993).

Courts have routinely considered documents in deciding summary judgment motions. Yet, at the time of their attempted submission for summary judgment purposes, the form of these documents is hearsay in nature; a letter, for example, will not be sworn to by the signatory. Nonetheless, courts ... do admit and rely upon letters and other documents that constitute evidence potentially admissible at trial.

Id. at 656-57.

The testimony that plaintiffs ask me to consider would clearly be admissible in evidence because it consists of the observations of eyewitnesses. Moreover, the testimony bears the earmarks of reliability because it was presented at a proceeding before a judge and jury, and the witnesses were duly sworn. See Wis. Stat. § 979.05. That defendants were not able to cross-examine the witnesses at the inquest does not make the evidence improper. Affidavits may be considered on summary judgment but are not subject to cross-examination.

The issue is similar to that presented in Arceo v. City of Junction City, Kan., 182 F.Supp.2d 1062, 1080 (D.Kan.2002). There the court held that grand jury testimony could be considered on a summary judgment motion. The court relied in part on the language of Celotex, 477 U.S. at 324, 106 S.Ct. 2548, that the non-moving party need not produce evidence “in a form that would be admissible at trial” so long as the substance of the evidence was admissible. Arceo, 182 F.Supp.2d at 1081. In the present case the substance of the testimony in question would be admissible and thus is properly considered on a summary judgment motion.

III. SECTION 1983 CLAIM

Title 42 U.S.C. § 1983 states that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be hable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

In order to prove a violation of § 1983, plaintiffs must show that defendants deprived Thurman of a federal constitutional right while acting under color of state law. Abraham v. Piechowski, 13 F. Supp 2d 870, 879 (E.D.Wis.1998).

A. Under Color of State Law

In the present case defendants do not dispute that Miller was acting under color of state law. Moreover, the evidence indicates that, although off duty, Miller meets the “under color” requirement. He was acting pursuant to a Milwaukee Police Department rule providing that officers are “always subject to duty” even when they are “technically ‘off-duty.’” See MPD Rule 4 § 2/02500; Davis v. Murphy, 559 F.2d 1098 (7th Cir.1977) (holding that regulation requiring officer to be on duty twenty-four hours a day was important factor in under color of state law inquiry). Miller also shot Thurman with a department-issued weapon. This factor has also been considered to be relevant to the under color of state law analysis. Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir.1975). See generally Steve Libby, When Off-Duty State Officials Act Under Color of State Law for the Purposes of Section 1983, 22 Mem. St. U.L.Rev. 725 (1992).

Defendants, however, do dispute the issue of whether Miller deprived Thurman of a federal constitutional right. I now turn to that issue.

B. Reasonableness of Seizure

The Fourth Amendment protects persons against unreasonable searches and seizures. U.S. Const, amend. IV. All claims that law enforcement officers have used excessive force in the course of an arrest, investigatory stop or other “seizure” of a citizen who is not in custody are analyzed under the Fourth Amendment and its “reasonableness” standard. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Thus, in analyzing plaintiffs’ claims, the first question is whether a seizure occurred. Johnson v. City of Milwaukee, 41 F.Supp.2d 917, 924 (E.D.Wis.1999).

In Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that a seizure occurs when a government actor “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” See also Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (“Whenever an officer restrains the freedom of a person to walk away, he has seized that person.”). When law enforcement officers are pursuing an individual a seizure can be a process or continuum, United States v. Bradley, 196 F.3d 762 (7th Cir.1999). Nevertheless, a seizure “requires an intentional acquisition of physical control.” Brower v. County of Inyo, 489 U.S. 593, 596, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989).

The evidence in the present case indicates that two seizures occurred. The first seizure took place when Miller grabbed Thurman outside of his garage after observing him with the lawn mower. This seizure ended when Thurman slipped out of his shirt and ran away. The second seizure occurred when Miller caught Thurman after pursuing him in the van and on foot. Plaintiffs challenge the reasonableness of the second seizure.

In assessing reasonableness I consider the totality of the circumstances and balance the extent of the intrusion against the need for it. Garner, 471 U.S. at 5, 8-9, 105 S.Ct. 1694. In Garner, the Supreme Court addressed the issue of deadly force and held that “if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” Id. at 11-12, 105 S.Ct. 1694. In applying this standard to the use of nondeadly force, the Court in Graham, articulated three factors that determine whether force was reasonable: (1) “the severity of the crime;” (2) “whether the suspect poses an immediate threat to the safety of the officer or others;” and (3) “whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865.

The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain and rapidly evolving — about the amount of force necessary in a particular situation. Id. at 397, 109 S.Ct. 1865. Further, the reasonableness inquiry is an objective one: whether the officer’s actions were “objectively reasonable” in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation. Id.

In the Seventh Circuit the test of whether a search and seizure challenged under the Fourth Amendment is unlawful is the same as the test of negligence at common law: unreasonableness in the circumstances. Villanova v. Abrams, 972 F.2d 792, 796 (7th Cir.1992). In Villanova, Judge Posner expressed this test in terms of Learned Hand’s famous formula for negligence, B