Johnson v. City of Milwaukee (41 F. Supp. 2d 917, 1999)

DECISION AND ORDER

ADELMAN, District Judge.

I. FACTUAL AND PROCEDURAL BACKGROUND

On the night of March 26, 1997, plaintiff Clarence Johnson IV, age 17, and a friend, Larry Moore, age 15, were riding their bikes in an alley off of Center Street in the City of Milwaukee. They encountered an unidentified young man with whom they exchanged words. Then a fight broke out between them and the unidentified male. The unidentified male was on the ground, and Johnson and Moore were bent over him when a car driven by defendant Robert Brown, an off-duty City of Milwaukee police officer, passed by. Brown was driving his girlfriend, Vicki Ricks, home after an evening out.

Brown observed the fight involving Johnson, Moore and the unidentified male. He stopped his car and responded to the incident as he was required to do by City of Milwaukee police regulations. He got out of the car, telling Ricks to call 911 on the car cell phone. Brown saw Johnson’s and Moore’s bicycles nearby, and he observed the unidentified male run from the scene.

The parties differ in some respects about what happened next. Plaintiff Clarence Johnson’s version is as follows: Brown drew his gun, identified himself as a police officer and told Johnson to freeze. Moore fled the scene leaving Johnson standing there by himself. At this point Brown had two hands on his gun and was pointing the gun directly at Johnson. Johnson, however, did not flee or resist but stopped and put his hands up in a surrender position.

According to Johnson, Brown then came rushing at him while continuing to hold the gun. When Brown got close to Johnson, Brown grabbed him from behind and tried to throw him against the fence. Brown pushed, grabbed and was “slinging” Johnson in an effort to get him against the fence. Brown put a “half-Nelson” wrestling-type hold on Johnson. Johnson’s hands were still up in the air in a surrender position. Johnson states that he next felt Brown’s left hand grabbing him and Brown’s right arm under his armpit. Johnson saw Brown’s gun when he looked down. Brown at some point pushed Johnson into the fence, and Johnson bounced off it with his face and chest.

After Johnson bounced off the fence he states that he saw Brown’s fist come up in a swinging motion, and he felt some metal hit his teeth; according to Johnson Brown struck him in the face with the gun. Several seconds after Johnson was hit with the gun, the gun discharged. At this point Johnson looked down and saw blood. Johnson spit out his teeth and knew that he had been shot. The bullet shattered his teeth and exited through his left cheek. His arms were still up in the air when he was shot. Johnson said that the whole incident lasted about a minute and a half after which an ambulance came and took him to the hospital.

Brown’s version of the incident is this: after he saw Johnson, Moore and the unidentified male, Brown thought that a battery had occurred, and he regarded Johnson as a suspect. He intended to detain Johnson for the purpose of investigating the incident. He believed that back-up in the form of on-duty officers would arrive within thirty to forty-five seconds after the 911 dispatcher called them.

Brown states that he exited the vehicle, drew his gun in his right hand and identified himself as a police officer. Johnson then stood still and put his hands up in a surrender position. Johnson appeared to be nervous. Brown states that while holding his badge in his left hand and his gun in his right hand, he approached Johnson. Brown closed the distance between himself and Johnson and grabbed Johnson’s coat. Brown then escorted Johnson over to the fence while grabbing him with his right hand near the back of Johnson’s right armpit. Brown held his gun in his right hand while grabbing Johnson with the same hand. Brown states that he continued to hold his badge in his left hand with two fingers, and he used the other two fingers and thumb of his left hand to hold Johnson’s coat.

According to Brown, after putting Johnson against the fence he wanted to put his gun away to free his right hand so that he could search Johnson for possible weapons. Johnson was fidgety and nervous. Brown states that while he was trying to secure his firearm he put pressure on Johnson’s back and pushed him into the fence. At this point Brown’s gun was located under Johnson’s right armpit. Brown states that Johnson made a movement, and Johnson’s right elbow struck Brown’s right forearm and caused the gun to discharge. Brown denies that he struck Johnson in the face with the gun shortly before it discharged. He states that he did not intend for the weapon to discharge.

Johnson, who was a minor, his mother Denise and their subrogated insurer, Primecare, sued Brown and the City of Milwaukee in the Milwaukee County Cir-. cuit Court, pursuant to 42 U.S.C. § 1983. Johnson alleged that Brown violated -his constitutional rights by arresting him without probable cause and by using excessive force, and that the City violated his constitutional rights by failing to properly train and supervise Brown. Johnson also brought a state law negligence claim against Brown. Defendants removed the case to federal court and now move for summary judgment.

II. SUMMARY JUDGMENT 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 conclusory 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).

III. DISCUSSION

The Fourth Amendment protects persons against “unreasonable search and seizures” and against arrests without probable cause. U.S. Const. Am. IV. In his complaint Johnson alleged that his arrest violated the Fourth Amendment because it was not based on probable cause and because officer Brown used excessive force and therefore acted unreasonably.

A. Probable Cause

A law enforcement officer has probable cause to arrest when the facts and circumstances within his knowledge are sufficient to warrant a prudent person in believing that the suspect had or was committing an offense. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). A court can decide that probable cause existed as a matter of law if no reasonable jury could find that the officer lacked probable cause. Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th Cir.1993).

Here, Brown states that he saw Johnson and Moore beating a third party in an alley. Johnson does not dispute that he and Moore were fighting with a third party who was on the ground. Charges were never brought against Johnson. This fact, however, does not negate the existence of probable cause. Humphrey v. Staszak, 148 F.3d 719, 728 (7th Cir.1998). Brown reasonably believed that Johnson was committing a battery and, therefore, had probable cause to arrest. No reasonable jury could find otherwise. Therefore, summary judgment will be granted on Johnson’s claim that he was arrested without probable cause.

B. Excessive Force

1. Applicability of Fourth Amendment

Johnson alleges that, in detaining him, Brown used excessive force. 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, the first question to be addressed in analyzing Johnson’s claim is whether a seizure occurred.

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 has “by means of physical force or show of authority ... 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.”); and Brower v. County of Inyo, 489 U.S. 593, 596, 109 S.Ct. 1378, 103 L.Ed.2d 628 (a seizure “requires an intentional acquisition of physical control”).

Here, Brown clearly seized Johnson. Brown drew his gun, pointed it at Johnson, identified himself as a police officer and told Johnson to freeze. Johnson thereupon complied with Brown’s command by standing still and putting his hands up. Brown, therefore, both by means of physical force (drawing his gun) and by show of authority (identifying himself as a police officer), restrained Johnson’s liberty. Moreover, Brown did so intentionally. Additionally, Johnson fully yielded to Brown’s authority. See California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Thus, Brown seized Johnson within the meaning of the Fourth Amendment.

Johnson alleges that after he surrendered Brown rushed toward him with gun in hand, grabbed him, pushed him up against the fence and hit him in the lip with the gun after which the gun discharged in his face. Are these alleged acts governed by the Fourth Amendment? Graham states that the Fourth Amendment provides protection against excessive force to individuals “in the course of an arrest,” Graham, 490 U.S. at 395, 109 S.Ct. 1865. The protection lasts at least until “the point at which the arrest ends and pretrial detention begins.” Id. at 395 n. 10,109 S.Ct. 1865.

The Seventh Circuit has held that the Fourth Amendment remains the source of protection against excessive force until the “arrest has taken place and the arrested person has been placed securely in custody.” Wilkins v. May, 872 F.2d 190, 193 (7th Cir.1989). Once a seizure has occurred it continues until the arrestee is in the company of the arresting officers. Lester v. City of Chicago, 830 F.2d 706, 713 n. 7 (7th Cir.1987). In the present case, when Brown committed the acts complained of, he was carrying out the process of detaining or arresting Johnson. Johnson was not yet securely in custody. Thus Brown’s acts should be analyzed under the standard of the Fourth Amendment.

2. Reasonableness

a. The nature of the standard

Reasonableness under the Fourth Amendment involves balancing the extent of the intrusion against the need for it. Garner, 471 U.S. at 5, 105 S.Ct. 1694. Determining whether acts are reasonable requires careful attention to the facts and circumstances of the case. Graham, 490 U.S. at 396, 109 S.Ct. 1865. Three important factors to consider are the severity of the crime, whether the suspect poses an immediate threat to the safety of the officers or others and whether he is actively resisting arrest or attempting to evade arrest by flight. Id,.; see also Frazell v. Flanigan, 102 F.3d 877 (7th Cir.1996).

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 2%o 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. Graham, 490 U.S. at 397, 109 S.Ct. 1865.

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. An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force, nor will an officer’s good intentions make an objectively unreasonable use of force constitutional. 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 now Chief Judge Posner expressed this test in terms of Learned Hand’s famous formula for negligence, B