J.M. v. City of Milwaukee (249 F. Supp. 3d 920, 2017)

ORDER

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

1. INTRODUCTION

This litigation arises from the death of Dontre Hamilton (“Hamilton”) on April 30, 2014, On that date, Hamilton was shot and killed by Defendant Christopher E. Man-ney (“Manney”), an officer with the Milwaukee Police Department (“MPD”), after a physical altercation between the two. Plaintiffs, Hamilton’s estate and his surviving minor child, filed suit against Manney and the City of Milwaukee (the “City”) on April 27,2016. (Docket # 1).

On February 1, 2017, the parties each filed motions for summary judgment. (Plaintiffs, Docket # 45; Defendants, Docket # 48). As of March 15 and March 17, 2017, each respective motion became ripe for decision. See (Briefing on Plaintiffs’ motion, Docket # 56 and # 75; Briefing on Defendants’ motion, Docket #78 and # 88). As Plaintiffs’ motion is narrower than Defendants’, the Court will- address it first. The Court discusses the facts relevant to the ■ respective motions separately, to ensure that the proper standard of review is preserved for each.

2. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 provides the mechanism for seeking summary judgment. Rule 56 states that the “court shall grant summary judgment if the mov-ant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A “genuine” dispute of material fact is created when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court construes all facts and reasonable inferences in a light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). In assessing the parties’ proposed facts, the Court must not weigh the evidence or determine witness credibility; the Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). Internal inconsistencies in a witness’s testimony “create an issue of credibility as to which part of the testimony should be given the greatest weight if credited at all.” Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1170 (7th Cir. 1996) (quoting Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986)). The non-movant “need not match the movant witness for witness, nor persuade the court that [their] case is convincing, [they] need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).

8. PLAINTIFFS’MOTION

Plaintiffs seek judgment on their second cause of action, which asserts that Manney unreasonably searched Hamilton in the course of events preceding his death. (Docket # 1 at 38).

3.1 Relevant Facts

The operative facts of Plaintiffs’ motion are. largely undisputed; the parties’ disagreement is chiefly legal. On October 15, 2014, Milwaukee Chief of Police Edward A. Flynn (“Flynn”) fired Manney for “failure to have reasonable suspicion prior to conducting a pat-down search,” and “failure to adhere to training and procedures regarding Use of Force considerations.” (Docket #49-1 at 1). That same day, Flynn filed a complaint with the Milwaukee Board of Fire and Police Commissioners (“FPC”) regarding Manners discharge. The complaint stated, inter alia, that Manney “failed to adhere to [department policy on pat-down searches] when he failed to have reasonable suspicion that [Hamilton] was armed with a weapon and posed a threat to him or others prior to conducting a pat-down search, and acted contrary to training he received on February 22, 2012, specific to the engagement of homeless individuals.” (Docket #49-2 at 4).

Manney appealed his discharge on October 17, 2014. The FPC held a hearing on the matter spanning from March 19 to March 23, 2015. Plaintiffs state that the FPC hearing “was essentially a court trial between Manney and the MPD.” (Docket # 55 at 11). Defendants maintain that there were differences between the hearing and a standard trial, including that the commissioners were entitled to ask questions of witnesses, and that the matter was based on an appeal of a disciplinary order and was conducted according to procedures mandated by state law. Id. at 11-12. Defendants further assert that the MPD was not a party to the proceeding, but rather it was solely between Manney and Flynn. Id.

The hearing officer himself stated that “this process is conducted very much like a court trial.” (Docket # 49-4 at 6). The hearing proceeded in two phases: first, to determine “whether there was in fact a rule violation” by Manney as asserted by Flynn, and second, whether “the discipline [was] appropriate based on the circumstances of what happened and based on Officer Manney’s history with the department, his career, his performance, etc.” Id. at 7-8. Both sides were represented by counsel, gave opening and closing statements, and offered evidence. The parties introduced exhibits and elicited witness testimony on direct and cross examination. Manney himself testified at both phases of the hearing.

The FPC upheld Flynn’s action by unanimous written decision on April 28, 2015 (the “FPC Decision”). The FPC Decision posed various “findings of fact” and “conclusions of law” addressing the parties’ presentations at the hearing. The FPC agreed with Flynn that Manney lacked reasonable suspicion before conducting a pat-down search of Hamilton. Defendants assert that the FPC Decision relates to compliance with MPD rules, not the Fourth Amendment, and reassert that Flynn and the FPC’s decisions were based on incorrect sets of fact. (Docket # 55 at 15). The FPC Decision noted that it “must find by a preponderance of the evidence that there is just cause to sustain the charges.” (Docket # 49-9 at 8). The FPC then applied seven standards mandated by statute to assist in making that determination, and found each standard was met by a preponderance of the evidence. Id. at 8-12. Defendants point out that the FPC had additional considerations beyond those seven standards, including the seriousness of Manney’s rule violations, Manney’s work history, and damage to the public’s trust in the MPD. Id.

Manney appealed the FPC Decision to the Milwaukee County Circuit Court (the “Circuit Court”) in accordance with state law. Manney and the FPC were the parties to the appeal. Both parties filed briefs with the Circuit Court. Manney also filed a petition for writ of certiorari with the Circuit Court, which was similarly briefed. The Circuit Court issued its decision on both in a combined order on July 22, 2016.

Therein, it described Manney’s argument against MPD policy, namely that he felt “it imposes an extra limitation on a police officer’s right to conduct a weapons pat-down, a limitation that isn’t imposed by the state statute or constitutional law principle that authorize such searches.” (Docket #49-12 at 6). MPD policy mandates that to conduct a pat-down search, an officer must believe that 1) the target poses a threat to the officer’s safety, and 2) the target possesses weapons. Id. at 6. Manney asserted that only the first element was required by the Supreme Court’s applicable precedent, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Circuit Court disagreed, citing Terry’s holdings that an officer must suspect “that the persons with whom he is dealing may be armed and presently dangerous.” Id. at 30, 88 S.Ct. 1868. It further found that Wisconsin law is consistent with Terry. (Docket # 49-12 at 7). The Circuit Court concluded that MPD policy did not conflict with the constitutional prerequisites of a pat-down search, and thus the FPC did not apply an improper legal standard to its decision in that regard. Id. at 8.

As to the facts of Manney’s appeal, the Circuit Court discussed the parties’ vigorous disputes thereof. Id. at 9-13. The Circuit Court noted that it was not at liberty “to weigh the evidence anew; the [FPC’s] choice of which evidence to accept [or reject] is conclusive.” Id. at 9-10. It ultimately concluded that the Decision had an adequate factual basis. Id. at 13. Manney appealed that order on August 11, 2016, but only as it related to his petition for a writ of certiorari. See Christopher E. Manney v. Bd. of Fire & Police Comm’rs for the City of Milwaukee, 2016-AP-1598, Case History, available at: https://wscca.wicourts.gov. That appeal is still pending. Id.

3.2 Analysis

Plaintiffs argue that, in light of the Decision and Manney’s unsuccessful appeals thereof (the “Discharge Proceedings”), Manney must be precluded from contesting whether he had reasonable suspicion to conduct a pat-down search of Hamilton. The direct basis for their motion is the Circuit Court’s July 22, 2016 judgment and order (the “Judgment”). This Court must give a state court judgment preclusive effect just as it would a federal judgment, and because the Judgment was issued by a Wisconsin court, it must apply Wisconsin's law on preclusion. See First Weber Group, Inc. v. Horsfall, 738 F.3d 767, 772 (7th Cir. 2013); Donald v. Polk County, 836 F.2d 376, 382 (7th Cir. 1988).

Issue preclusion prevents á party from re-litigating “an identical issue of law or fact in a subsequent action.” Mrozek v. Intra Fin. Corp., 281 Wis.2d 448, 699 N.W.2d 54, 61 (2005). The doctrine “wards off endless litigation, ensures the stability of judgments, and guards against inconsistent decisions on the same set of facts.” Gentilli v. Bd. of Police & Fire Comm’rs of City of Madison, 272 Wis.2d 1, 680 N.W.2d 335, 344 (2004). There are two requirements for issue preclusion to take effect. First, “the question of fact or law that is sought to be precluded actually must have been litigated in a previous action and be necessary to the judgment.” Id. Second, the Court must “conduct a fairness analysis to determine whether it is fundamentally fair to employ issue preclusion given the circumstances of the particular case at hand.” Id. The Court will address each requirement below, as well as Defendants’ other arguments in opposition to Plaintiffs’ motion.

3.2.1 Actually Litigated and Necessary to the Judgment

The reasonableness of Manney’s pat-down search of Hamilton, was actually litigated at each stage of the discharge proceedings. An issue is “actually litigated” when '“it is ‘properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined.’ ” In re Estate of Felt, 256 Wis.2d 563, 647 N.W.2d 373, 376-77 (2002) (quoting Restatement (Second) of Judgments § 27 cmt. d (1980)). First, Flynn’s discharge order stated directly that Manney’s Search was unreasonable. Second, after holding an evidentiary hearing on the matter, the FPC found that a preponderance of the evidence supported Flynn’s decision. Finally, the Circuit Court’s Judgment found that the FPC Decision had an appropriate basis in fact and law. While the propriety of the search was not the only issue addressed in the Discharge Proceedings, it was their primary focus. At each stage of the Discharge Proceedings, the presiding authority expressly decided that Manney’s search was unreasonable.

Defendants argue that while the reasonableness of the search was a£ issue in the Discharge Proceedings, it was assessed in light of Manney’s violation of MPD policy. They maintain that none of the decisions held that the search was unreasonable pursuant to constitutional standards. Specifically, Defendants contend that the Fourth Amendment reasonableness analysis reviews the totality of the circumstances presented to the officer at the time of the search, while Flynn and the FPC considered subsequent events in arriving at their conclusions. Thus, in Defendants’ view, no preclusive effect can attach to the Judgment.

As the Judgment shows, Defendants are incorrect. The Circuit Court held that MPD policy, Wisconsin law founded on Terry, and Terry itself all held Manney to the same reasonableness standard for his pát-down search. (Docket # 49-12 at 6-8). Based on that uniform standard, the Circuit Court went on to affirm1 the FCP’s determination that the search was unreasonable. Id. at 9-13. Though this was admittedly based on a deferential .standard of review, that does not change the fact that the reasonableness issue was actually litigated in line with Terry and the Fourth Amendment.

The Court further notes that it must focus on the Judgment itself, as issue preclusion may only attach to a judgment. See Mrozek, 699 N.W.2d at 61 (“In order for issue preclusion to be a potential limit on subsequent litigation, the [issue] actually must, have been litigated in a previous action and be necessary to the judgment.”) (emphasis added). Defendants barely mention the document, instead leveling criticism at Flynn and the FPC for applying an improper legal standard. Even assuming their focus on Flynn and the FPC was correct, it is meritless. The Seventh Circuit recently articulated the Terry standard as simply “requiring the officer to hold a reasonable suspicion that the subject is ‘armed and dangerous[.]’ ” United States v. Williams, 731 F.3d 678, 686 (7th Cir. 2013) (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868). Flynn’s discharge order nearly parroted that language. The FPC decision- applied the MPD policy, which as already noted matched Terry’s rule. (Docket # 49-9 at 10) (“The policy allows for a pat-down for weapons if the [officer] believes the suspect has weapons and poses a threat to the [officer’s] or another person’s safety.”).

No decisionmaker in the Discharge Proceedings considered post-incident events in evaluating Manney’s compliance with this standard. At his deposition in this matter, Flynn consistently testified that Hamilton’s death was a factor bearing on punishment, not Manney’s reasonable suspicion (or lack thereof). (Docket # 61-6 at 35:15-36:5) (“Also, you know, this may come up otherwise, but every officer who is found not to’ve had articulable suspicion is not subject to firing. In the code of conduct we have also has in it aggravating and mitigating factors. And one of the most significant aggravating factors is the ultimate degree of harm that arose from your error.... [T]he degree of harm was a loss of life.”); see also id. at 143:5-10 (“Given the fact that,, ultimately, the degree of harm was death, that’s why the punishment was termination.”). Similarly, the FPC Decision limits its discussion of post-incident events to evaluating whether Flynn’s decision to terminate Manney was appropriate, (Docket # 49-9 at 11-12). Finally, the Judgment separated its analysis on Manney’s reasonable suspicion and the propriety of his discharge. (Docket #49-12 at 9-13, 19-21).'

At all stages of the Discharge Proceedings, then, the same pat-down search standard was. applied to Manney’s conduct. To the extent Defendants continue to argue that the standard was wrong, or that it was incorrectly applied to Manney, this is precisely what issue preclusion is meant to prevent. The issue was essential to the Judgment and the rest of the Discharge Proceedings and cannot be re-litigated here. Similarly, Defendants cannot re-litigate the facts upon which Flynn’s discharge order, the FPC decision, or the Judgment itself were based. Their time to argue that the “totality of the circumstances” favored Manney was in those proceedings.

3.2.2 Fundamental Fairness

Having established that the reasonableness of Manney’s search was actually litigated in the Discharge Proceedings and was necessary to the Judgment, the Court moves to the Mrozek fairness analysis. Wisconsin courts weigh a number of factors in assessing fairness, including:

(1) whether the party against whom preclusion is sought could have obtained review of the judgment;

(2) whether the question is one of law that involves two distinct claims or intervening contextual shifts in the law;

(3) whether there are apt to be significant differences in the quality or extensiveness of the two' proceedings such that relitigation of the issue is warranted;

(4) whether the burden of persuasion has shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; and

(5) whether matters of public policy or individual circumstances would render the application of issue preclusion fundamentally unfair, including whether the party against whom preclusion is sought had an inadequate opportunity or incentive to obtain a full and fair adjudication of the issue in the initial litigation.

Mrozek, 699 N.W.2d at 61-62. Factors one, two, and four are questions of law, and factors three and five require exercise of the Court’s discretion. Id. at 62.

As to the first factor, Manney has exhausted all review of the Discharge Proceedings. His appeal to the Circuit Court, and the resulting Judgment, are the final say on the matter pursuant to the governing Wisconsin' statutes. Wis. Stat. § 62.13(5)(b) (allowing Flynn to file charges against Manney), (d)-(em) (establishing FPC hearing procedure), and (I) (permitting appeal to the Circuit Court, stating that “[i]f the order of the [FPC] is sustained it shall be final and conclusive.”). Manney has utilized all levels of review available to him.

Defendants counter that Manney is in fact appealing the Judgment. As noted previously, this matter is currently pending in the Wisconsin Court of Appeals. Yet Defendants’ position obscures the nature of the appeal. When Manney took the Discharge Proceedings to the Circuit Court, he filed two actions, one for review of the FPC Decision pursuant to the above-cited Wisconsin statute, and another for a writ of certiorari. See (Statutory Review, Case No. 2015-CV-3881, Docket # 49-10; Writ, Case No. 2015-CV-5081, Docket # 49-11). The Circuit Court consolidated the cases for purposes of issuing its Judgment. His currently pending appeal is of the denial of certiorari, not of the Circuit Court’s affir-mance of the FPC Decision. (Docket # 57-5 at 1, 10) (citing the writ action case number, and introducing the appeal as “a Certiorari appeal”).

The Gentilli case is instructive, where a similar scenario unfolded. Gentilli, a fire department employee, was charged with possessing and using cocaine by the fire chief. Gentilli, 680 N.W.2d at 337. The charges were heard by the FPC, which confirmed the charges and recommended firing him. Id. Gentilli then filed two parallel cases in the circuit court, as did Man-ney: one for his statutory appeal, pursuant to Section 62.13(5)(I), and one for a writ of certiorari. Id. The circuit court ruled on the statutory appeal first and concluded, as did our Circuit Court, that the discharge was supported by just cause. Id. at 337-38. The circuit court then dismissed the certiorari action because “all of the issues raised in the petition were encompassed within the scope of the companion statutory appeal.” Id. (quotation marks omitted). Gentilli appealed the dismissal of his certiorari action. Id.

The Gentilli court cited Section 62.13(5)(I) in holding that the circuit court’s disposition of the statutory appeal was final and not subject to further review. Id. at 338-39. The court’s main purpose was to determine whether a separate cer-tiorari action was permitted in light of the 1993 amendments to the statutory action procedure (holding that it was allowable). Id. at 339-45. Relevant to our purposes, the court went on to find-that in the case of parallel statutory and certiorari actions, an appeal of the certiorari action is strictly limited to whether the FPC'“kept within its jurisdiction and proceeded on a correct theory of the law.” Id. -at 344. As confirmed late last year, this means that when parallel actions are pursued, and the statutory appeal fails in the circuit court, the employee cannot re-argue whether he violated the applicable departmental rules on certiorari appeal. Vidmar v. Milwaukee City Bd. of Fire Police Comm’rs, 372 Wis.2d 701, 889 N.W.2d 443, 449 (2016); see also Umhoefer v. Police and Fire Comm’n of City of Mequon, 257 Wis.2d 539, 652 N.W.2d 412, 415-16 n.4 (2002) (“Umhoefer filed both a statutory review pursuant to Wis, Stat. § 62.13(5)(I) and a certiorari, .review before the circuit court. However, this court is limited to those issues brought under certiorari review .... [I]f a circuit court sustains the commission’s determination, the commission’s decision ‘shall be final and conclusive.’ Thus, this court is without jurisdiction to review Umhoefer’s claims brought pursuant to § 62.13(5).”).

Manney’s pending appeal, then, is quite limited, and he cannot use it to challenge the FPC’s or Circuit Court’s determination that he lacked reasonable suspicion to search Hamilton. Defendants might have contended that the remaining avenues to challenge the FPC Decision, jurisdiction and applying an incorrect theory of law, work to keep the question unsettled. Plaintiffs attempt, to head this argument off at the pass, stating in their opening brief that the FPC’s jurisdiction is not subject to challenge (as noted above, it is provided by statute), and that the “theory of law” at issue is whether Manney was properly discharged, not whether his search of Hamilton was reasonable. Defendants make no attempt to respond to these points; their entire argument is to cite to Manney’s appellate briefs in the certiorari action, wherein he contends that “the FPC proceeded on incorrect theories of law and that he was denied Due Process of law, and that therefore, the decisions of the circuit court and the FPC should be reversed in all respects.” (Docket # 56 at 2). Such an underdeveloped position, which fails to meaningfully address Plaintiffs’ contentions, is at best unpersuasive, and at worst concedes the point. See Palmer v. Marion County, 327 F.3d 588, 597-98 (7th Cir. 2003) (failing to present an argument to the district court may result in the argument being waived or, in the case of a plaintiff, the relevant claim being deemed abandoned). In light of Defendants’ lacking argument, the finality of the statutory appeal, and the interaction of the statutory and certiorari appeals, the Court, finds that Manney’s pending appeal does not affect the finality of the Judgment with respect to the reasonableness of his search.

Returning to the fairness factors, the second factor has already been resolved. The law applied in the Discharge Proceedings was both internally consistent and in accordance with Supreme Court precedent. See supra Part 3.2.1. The third factor also favors Plaintiffs. The FPC hearing had all the makings of a court trial and gave Manney a forum to present his case nearly identical to that which he would receive in this Court. Likewise, his appeal to the Circuit Court functioned similarly to an appeal from a trial court. Other than passing references to potential inadequacies in their response to Plaintiffs’ statement of facts, (Docket # 55 at 11-12), Defendants raise little concern with the quality or extensiveness of the Discharge Proceedings. The Court must conclude that Defendants’ lack of opposition is a tacit agreement that the Discharge Proceedings afforded Manney ade: quate process.

Defendants do, however, note one difference between the Discharge Proceedings and normal civil litigation: the qualified immunity, defense.. Manney asserts the defense here, where he could not in the Discharge Proceedings. This observation, while true, is of no moment. As discussed below, Manney is not entitled to qualified immunity at this juncture. See infra Part 4.2.5. The facts describe a violation -of Hamilton’s constitutional right to be free of a suspicionless search, and that right was clearly- established by Terry nearly fifty years ago.

Defendants do not mention the fourth factor. -Again, without opposition, the Court finds that it favors Plaintiffs. Plaintiffs’ burden of proof, in this Court is no greater, than that imposed on Flynn in the Discharge Proceedings, Plaintiffs must prove that Manney’s search was unreasonable by a preponderance of the evidence. Seventh Circuit Pattern Civil Jury Instruction 1.27. After its hearing, the FPC was bound to assess whether there was “just cause” for Manney’s discharge. Wis. Stat. § 62.13(5)(em). ' One of. the seven standards it applied (see supra pg. 924-25) was “[wjhether . [Flynn]. discovered substantial evidence that the, [Manney] violated. the [MPD search policy].” Id. The Court concludes that the need for “substantial” evidence was at least , as burdensome as establishing the unreasonableness of the search as “more probably true.than not true.” Seventh Circuit Pattern Civil Jury Instruction 1.27.

As to the fifth factor, neither. public policy nor Manners circumstances make the application .of issue preclusion unfair in this instance. Gentilli explained the policy basis for making Manney’s statutory appeal final.at the circuit court level:

The public policy undergirding the finality of the statutory appeal is to balance the benefits of a speedy judicial process against the right of an accused to mount a full defense. Finality limits the negative effects on public, employees of long, drawn-out proceedings while allowing the accused a fair hearing.

Gentilli, 680 N.W.2d at 339. The FPC hearing gave Manney a fair hearing, allowing him to mount his defense as he chose (save for qualified immunity). His incentive to'fully and fairly litigate the reasonableness of his search could scarcely have been greater, as he was seeking to continue his thirteen-year career' as a police officer and absolve himself of serious charges.

In sum, it is fundamentally fair to apply issue preclusion on the reasonableness of Manney’s search of Hamilton. That issue was fully litigated in the Discharge Proceedings and was resolved against Manney in a final judgment. Allowing Manney to re-litigate the issue here threatens inconsistency between the Judgment and the outcome of Plaintiffs’ unreasonable search claim in this case.

3.2.3 Subsequent Remedial Measure

Defendants’ only remaining argument is that the entirety of the Discharge Proceedings are inadmissible in this matter as a subsequent remedial measure. Federal Rule of Evidence (“FRE”) 407 prohibits admission, of evidence of “measures [] taken that would have made an earlier injury or harm less likely to occur” to prove negligence or culpable conduct: in this case, using the Discharge Proceedings to prove the unreasonabléness of Manney’s search. Fed. R. Evid. 407. Defendants’ theory fails for misapprehension of the “remedial measure” at issue. Plaintiffs’ request for issue preclusion is based the Discharge Proceeding findings that Manney’s search was unreasonable, This is not itself a remedial measure; the remedial measure was Manney’s termination.

An excellent explanation of this issue .is given by Judge Simon from the District of Oregon. Aranda v. City of McMinnville, 942 F.Supp.2d 1096 (D. Or. 2013). In Aran-da, the court was faced with a similar scenario: a police department conducted a “use of force review” after an officer allegedly used excessive force on an arrestee. Id. at 1100,1102. The defendants sought to strike that evidence from the summary judgment record as violating; inter alia, FRE 407. Id. at 1102. The court described the applicable law:

By it terms, this rule is limited to measures that would have made the harm less likely to occur; it does not extend to post-incident investigations into what did occur. “The reason [for finding Rule 407 inapplicable] is that such reports or inspections are not themselves remedial measures, and do not themselves even reflect decisions to take or implement such measures.” Christopher Mueller & Laird Kirkpatrick, 2 FEDERAL EVIDENCE § 4:50, at 77 (3d ed. 2007). Although “such reports or inspections might represent the first or most preliminary steps that might eventually, lead to decisions' to make or implement changes,” they are not themselves excluded under Rule 407, Id.; accord Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 429-32 (5th Cir. 2006); Prentiss & Carlisle Co., Inc. v. Koehring—Waterous Div. of Timberjack, Inc., 972 F.2d 6, 10 (1st Cir. 1992) (“The Rule prohibits ‘evidence of .,. subsequent measures,’ not evidence of a party’s analysis of its' product.... The fact that the analysis may often result in remedial measures being taken (as occurred here) does not mean that evidence of the analysis may not be admitted.”); Rocky Mountain Helicopters, Inc. v. Bell Helicopters Textron, 805 F.2d 907, 918-19 (10th Cir. 1986) (“It would strain the spirit of the remedial measure prohibition in Rule 407 to extend its shield to evidence contained in post-event tests or reports.... [S]uch tests are conducted for the purpose of investigating the occurrence to discover what might have gone wrong or right. Remedial measures are those actions taken to remedy any flaws or failures indicated by the test.”).

County Defendants point out that the Ninth Circuit has applied Rule 407 in an excessive force case to exclude evidence regarding a police department’s internal disciplinary proceeding. See Maddox v. City of L.A., 792 F.2d 1408, 1417 (9th Cir. 1986). There is a distinction, however, between the actual disciplining of officers for their conduct, which could constitute a remedial measure, and the investigation that precedes a disciplinary process. See, e.g., Wilson v. Beebe, 770 F.2d 578, 590 (6th Cir. 1985) (Rule 407 does not exclude a post-shooting report prepared by police department because “[t]he report did not recommend a change in procedures following the shooting; it was a report of that incident and nothing more”); cf. Specht v. Jensen, 863 F.2d 700, 701-02 (10th Cir. 1988) (citing Maddox in applying Rule 407 to city’s press release that acknowledged officers had exercised poor judgment and reported that disciplinary action would be taken: “[t]he release thus sets out remedial measures taken by the City to prevent the recurrence of the poor judgment the investigation revealed, and is therefore within the ambit of Rule 407”).

Id. at 1103-04; see also In re Chicago Flood Litig., No. 93-C-1214, 1995 WL 437501, at *5 (N.D. Ill. July 21, 1995) (“City statements regarding the actions of its employees are not themselves remedial; instead, they merely explain why the city elected to pursue disciplinary action. The court will consider a request by the city to redact references to disciplinary actions taken against particular employees from any statement offered by plaintiffs.”); see Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 430-31 (5th Cir. 2006) (“[B]y themselves, post-accident investigations would not make the event ‘less likely to occur;’ only the actual implemented changes make it so.”).

The Court concurs in Aranda’s assessment of FRE 407 in this context. Put another way, the fact that Manney was fired is irrelevant to the reasonableness of his search. The remedial act—firing Man-ney—is not inextricably intertwined with the investigation leading to that act, namely the determination in the Discharge Proceedings that his search was unreasonable. Flynn and the FPC decided Manney’s “liability,” that he violated the MPD search policy by unreasonably searching Hamilton, first. They then determined, using post-incident events having no bearing on “liability,” that his punishment should be discharge from the MPD. Per the text of FRE 407, Manney’s firing “would have made [Hamilton’s] injury ... less likely to occur,” but the individual determination that he lacked reasonable suspicion in this case would not. Fed. R. Evid. 407.

Finally, permitting admission of this evidence comports with the spirit of FRE 407. Its “major purpose is to avoid discouraging injurers from taking such remedial measures as the accident may suggest would be appropriate to reduce the likelihood of future accidents—and discouraged they would be if they were penalized in court by having the measures treated as a confession of fault in not having been taken earlier.” Kaczmarek v. Allied Chem. Corp., 836 F.2d 1055, 1060 (7th Cir. 1987). Defendants characterize the issue as “the City of Milwaukee [being] forced to incur civil liability as a direct result of the attempt by Chief Flynn and the FPC to prevent future harm to the public.” (Docket # 56 at 12). The MPD and the City are not being “penalized in court” for the action that was meant to protect the public from future harm—firing Manney.

3.3 Conclusion

In light of the foregoing, Plaintiffs’ motion for summary judgment must be granted.

4. DEFENDANTS’MOTION

Defendants seek judgment in their favor on each of Plaintiffs’ claims and request dismissal of this lawsuit in its entirety.

4.1 Relevant Facts

The Court begins with a timeline of the relevant events, and concludes with a discussion of Manney’s relevant training and experience. The Court discusses the parties’ disputes where appropriate.

4.1.1 Events of April 30, 2014

On April 30, 2014, at about 1:54 p.m., Officers Robert Fitchett (“Fitchett”) and Andrew Fuerte (“Fuerte”) received a call to conduct a welfare check on someone in Red Arrow Park (the “Park”). They discovered Hamilton lying down near the Red Arrow monument. They asked Hamilton to stand up and present identification, and also asked if he needed any help. Hamilton complied and responded that he did not need help. Fitchett and Fuerte found Hamilton to be “very cordial.” (Docket #61-12 at 15:14-21). They found that Hamilton was not doing anything illegal or bothering anyone, so they left him alone and departed the Park.

Shortly after driving away, they received a request to return to the Park. A Starbucks employee, working at a store in the Park, had made another call about a person in the Park. The employee in question, Jennifer Kraemer, called the MPD’s non-emergency line and did not specifically request for an officer to come. Fuerte went to speak with Hamilton, while Fitchett contacted Kraemer. Kraemer said that Hamilton was not causing a disturbance, though his presence was uncomfortable for her and the store’s customers. Fitchett told Kraemer that Hamilton “had the right to be in the park just as they did. ... He’s not breaking any law.” (Docket # 61-12 at 18:14-19:16). Fitchett and Fuerte then apparently left the Park again.

Manney, a thirteen-year veteran of the MPD, was also patrolling downtown Milwaukee that day. His patrol area included the Park. At about 3:25 p.m., Manney was finishing a service call and checked his phone for messages. He had a voicemail from desk sergeant Keith Cameron (“Cameron”), who directed Manney to check on an issue in the Park. Cameron’s voicemail stated:

Chris, this is Keith. Just got a call from your people there at the Starbucks at Red Arrow Park. Apparently they have a trailer they’re operating out of now. They say there’s a homeless guy that’s sleeping alongside the trailer there if you want to check on him. Black male, 30 to 40 years old, wearing a blue (unintelligible) or navy coat and navy jeans. And kind of take a peek on him. I’ll give it to the dispatcher, too, so it’s on the board. Bye.

(Docket # 61-2 at 13:17-14:1).

Manney was familiar with that location and the employees who worked there, and he maintains that those employees would only call the police if they felt the situation was concerning for them. Manney had previously responded to calls of disorderly, aggressive homeless persons in the Park. He suspected the same might be true of this situation, and thus described it as a “trouble with suspect” call. Plaintiffs note that Manney had no indication at that time that Hamilton had caused any trouble in the Park, and that accordingly Manney should have characterized the call as a “welfare check.” They also cite Kraemer’s testimony that she previously heard Man-ney make a disparaging remark about homeless people, though Defendants maintain that her recollection is not ironclad and the statement probably occurred well before April 30,2014.

Manney decided to go to the Park. He parked his squad car south of the park and walked north towards the Starbucks trailer. Manney was dressed in his full MPD uniform and was armed with a wooden baton and a semi-automatic pistol. As he approached the trailer, Manney observed Hamilton lying on his back on the concrete pathway. Manney believed the concrete would be a cold surface to lie on given the 60 degree temperature that day, but Plaintiffs deny that he knew whether the concrete was cold. Hamilton was lying on a blanket near the Red Arrow monument in the center of the park. He was flat on his back, save for his left knee being bent upward and twitching, and his palms were open and facing upward. Within arm’s reach of Hamilton was a backpack. Hamilton’s eyes were closed and Manney assumed he was sleeping.

Given Hamilton’s appearance and location, Manney believed he might be homeless. Manney knew that homeless people often have trouble sleeping outside because they are vulnerable to criminals, so they try to sleep in or near businesses to gain some measure of protection. Manney further suspected that Hamilton was suffering from mental illness or the effects of alcohol or drugs, in light of his leg twitch and unusual posture. Manney concluded that Hamilton was likely the person referenced in Cameron’s voicemail. Manney characterizes Hamilton’s conduct as “disorderly,” while Plaintiffs deny he had or was currently engaging in behavior which would violate a disorderly conduct law. Manney counters that sleeping in a public park is a county ordinance violation.

Manney felt it was best to contact the Starbucks employees first. As he approached the trailer, he came within three or four feet of Hamilton’s head. When he did, Hamilton opened his eyes. Manney states that Hamilton had a dazed, unfocused look, while Plaintiffs maintain that Manney had no idea what Hamilton was thinking when he opened his eyes or whether his eyes were focused. Hamilton’s reaction caused Manney to again suspect mental illness or the involvement of drugs or alcohol. Plaintiffs deny this, attributing Hamilton’s reaction to having been bothered by an MPD officer for the third time in the past hour.

Though Manney did not see Hamilton in crisis or behaving violently, Manney felt he should check on him anyway. Plaintiffs question this desire to “check” on Hamilton, considering that Manney character-feed the call as one of “trouble with suspect” rather than as a “welfare check.” This characterization came well before Manney had seen any “trouble” from Hamilton. Because Hamilton had opened his eyes, Manney decided to talk with him first, before speaking with the Starbucks employees. Manney thought a conversation might reveal whether Hamilton had a mental health issue or otherwise needed assistance. Manney had previously dealt with homeless people numerous times and often directed them to support services in the community. Plaintiffs again deny that Manney merely wanted to “check” on Hamilton and note that he did not present himself as needing assistance from Man-ney.

Manney bent over and said “[h]ey partner. Milwaukee police here. You need to stand up. We need to have a quick chat.” (Docket #52 at 7). He was still about three feet from Hamilton at' • the time. Manney claims he was being friendly, though Flynn’s later investigation determined that Manney had approached Hamilton as a criminal suspect. Manney admits that his statement wás an order to Hamilton to stand up. (Docket # 61-3 at 139:3-16). Manney, in any event, believed that his order was lawful. He does not dispute that he was detaining Hamilton at that point. (Docket #84 at 1). Hamilton then stood up without assistance.

The parties disagree on the next sequence. Manney claims that Hamilton, of his own accord, turned his back on Man-ney and raised his arms straight out from his sides. To Manney, this suggested that Hamilton was familiar with police contact and pat-down searches. Plaintiffs cite Man-ney’s contrary statement to the Police Administration Bureau given that same day (the “PAB Statement”). As memorialized in an MPD incident report, Manney described that Hamilton stood up and turned away from him. (Docket # 61-7 at 4). Man-ney then approached Hamilton and told him he was going to do a pat-down search. Id. Manney reached under Hamilton’s arms to raise them and Hamilton apparently did not resist. Id. At his deposition, Manney disputed the exact content of the report, but admitted that “technically my arm would have lifted [Hamilton’s] a little bit, but it was for me to get my hand so I could pat his chest[.]” (Docket #61-3 at 146:15-152:24). The parties further disagree on whether Manney had reasonable suspicion to search Hamilton, but because that issue has already been resolved in Plaintiffs’ favor, the Court will not address their positions in detail.

Manney moved in to complete the pat-down search. He reached his arm around Hamilton, under his arms, to feel Hamilton’s right breast and left side near the waistline. Manney felt this contact would show whether Hamilton was tense or his heartbeat was elevated. The touching reveled that neither proposition was true. As he first touched Hamilton, Manney asked Hamilton for his name, and Manney claims he said it was “something like ‘Terrell.’ ” (Docket # 52 at 9). Manney says he was attempting to build rapport with Hamilton. Plaintiffs assert that Manney’s touching was meant only to complete his desired pat-down search, not build rapport. Further, Hamilton had provided his true name to other officers earlier that day, so it is unlikely that he intentionally misidentified himself to Manney (whom he did not know); to Plaintiffs, it is more probable that Manney. simply misheard Hamilton.

Manney’s usual pat-down method was to begin with the person’s waistline. Before moving his hands from their locations on Hamilton’s chest and side, Manney asked Hamilton if he possessed anything which could injure Manney. He stated words to the effect of “ “Hey Terrell, you don’t have any knives, needles or guns... [.] ” Id. at 10. Manney states that he could not finish his statement, because at the word “guns,” Hamilton brought his arms down, locking Manney’s forearms between his arms and torso. This change in behavior surprised Manney. Prior to that point, Hamilton had been cooperative and non-violent.

Hamilton was strong enough to keep Manney’s arms pinned. Manney pulled and twisted his body in an effort to free himself. He believes he felt “something hard” in Hamilton’s waistline during this struggle, and thought that it might be a gun that Hamilton would reach for. Id. at 10. This was later shown to be impossible; Hamilton did not have a gun or “hard” object in his waistline area. Throughout this time, Manney said things like “relax,” “stop,” “buddy, it’s ,not worth it,” and “Milwaukee police, stop.” Id.

Manney eventually freed his forearms from Hamilton’s grasp. Here again the parties’ stories diverge. Manney claims that he backed away from Hamilton. According to Manney, Hamilton spun around and advanced toward him, fists clenched. Hamilton’s eyes were completely dilated and unblinking. Manney thought Hamilton was about to hit him with his fists. He continued to tell Hamilton to stop while stepping backward. Hamilton did not respond to the commands and looked at Manney with “a thousand yard stare.” Id. at 11. Manney felt that Hamilton was looking right through him and did not comprehend what he was being told. Plaintiffs deny Manney’s story, citing witness accounts who saw Manney chasing Hamilton in the Park like the two were playing a game. Hamilton was “making a figure eight” and “zigzagging” like a child. (Docket # 61-13 at 12:13-20; Docket # 61-14 at 72:18-25). They found the situation humorous. (Docket # 61-13 at 12:13-20; Docket # 61-14 at 7:18-8:3).

Under either approach to events, Man-ney and Hamilton eventually came back to close physical proximity. Manney claims that Hamilton punched him several times in the head. Plaintiffs counter that Manney denied head trauma at the emergency room immediately after the incident, and photos of his injuries taken at the hospital are not consistent with being repeatedly punched in the head. Further, a witness testified that he saw Manney strike Hamilton first, after Hamilton stopped running away, with his wooden baton. Manney maintains that after Hamilton struck him first, he hit back, though it appeared to have little effect on Hamilton.

Manney pushed Hamilton and backed away. He knew that Hamilton was much stronger than him, given the beginning of the violent portion of their encounter. In Manney’s view, he was not confident he could win a fist fight with Hamilton, and needed to get the situation under control, so- he retrieved his baton. Plaintiffs again counter that a witness saw Manney strike first and that the evidence does not support Manney’s claim of being struck repeatedly by Hamilton.

The parties’ account of events separates for a final time. Manney claims that Hamilton again refused to follow his directions. Manney was forced to hit Hamilton with his baton. Hamilton trapped the baton with his arm and torso and wrenched it out of Manney’s hands. Once Hamilton had the baton, Manney punched him again in the jaw, but the strike had no effect. Hamilton then advanced on Manney, striking him with the baton several times in the head and neck. Manney continued to give verbal stop commands to Hamilton which were ignored. Manney was in extreme pain and he felt that one of the strikes actually fractured his skull. He believed that Hamilton was trying to either kill him or inflict great injury. Based on this belief, Manney drew his pistol and again ordered Hamilton to stop. When Hamilton came toward him again with the baton raised, and in fear for his life, Manney fired at Hamilton. Manney claims that he thought he saw bullets hitting Hamilton, but he continued coming forward, so Manney kept firing. He did not stop shooting until Hamilton was no longer a threat, namely, when he was on the ground. Flynn has testified that “if someone’s advancing on [an officer] with a weapon that could do you grievous injury, you can keep shooting until they stop advancing on you.” (Docket # 61-6 at 120:1— 3).

Plaintiffs’ paint a different picture of the final moments of the encounter. They stress that Manney was still chasing Hamilton when he took out his baton. Witnesses state that Manney held Hamilton and struck him repeatedly with the baton. Plaintiffs admit that Hamilton eventually got the baton away from Manney. However, they again cite Manney’s lack of injury to undermine his assertion that Hamilton used it to hit Manney’s head. Witnesses variously saw Hamilton holding the baton in a defensive posture, or they saw him swing it at Manney but the strike failed to connect. Plaintiffs also note that a responding officer, Frederick Schroeder, testified that when he arrived at the scene, Hamilton was on his back, holding the baton across his chest.

As to the shooting itself, the witnesses disagree. One saw Manney push away from Hamilton, then Hamilton took a few steps towards him, and Manney began shooting. At the time, the witness observed Hamilton holding the baton above his head and waving it around, taunting Manney to come get it. Others did not see Hamilton advance on Manney. They agree that Man-ney and Hamilton were at least ten feet apart when Manney started shooting. They also remember hearing the events differently; one heard nothing from Manney, while another thought he said “[s]o you want to fight?” to Hamilton. (Docket # 61-21 at 18:6-8).

Plaintiffs further question Manney’s memory those moments. In his affidavit, Manney says he believed he fired five times, but later learned that he had emptied the gun’s magazine. (Docket #52 at 14). In his deposition, he and Plaintiffs’ counsel argued about his precise memory of each shot. (Docket #61-4 at 228:21-234:2). Witnesses state that Hamilton was either falling or already down while Man-ney continued firing. Manney believes these witnesses were hearing the reverberations of the shots, and they also may have misperceived when the shots were actually occurring because he kept his gun pointed at Hamilton even after he fell. (Docket # 61-4 at 230:22-231:10). Finally, Plaintiffs point to Hamilton’s autopsy report, which noted that several bullets entered him at a downward angle, suggesting that Hamilton was falling or had fallen by the time of those shots. (Docket # 61-30 at 35:15-36:6).

4.1.2 Manney’s Training

Defendants do not dispute that Flynn and the FPC both set the City’s policies with respect to police officer discipline. The City (by its designee) testified that MPD officers' regularly encounter people with mental illness or who are in a crisis situation. The City further acknowledged that Crisis Intervention Team (“CIT”) training was meant to improve officer responses to such people. Another purpose was to reduce incidents of use of force, and use of excessive force, by MPD officers. CIT training .also taught de-escalation skills, which would assist an officer in appearing as a friend to a mentally ill person, rather than as a police officer. Role-playing scenarios are also used to-reinforce the principle being taught. The MPD began CIT training in 2005,

In addition to CIT training, the MPD provides training to its officers on, inter alia, “defensive and arrest tactics, use of force, encountering people who are mentally ill, encountering people who are in crisis, and encountering people who are homeless.” (Docket # 59 at 82). MPD officers are also trained on recognizing when subjects have symptoms of mental illness, drug or alcohol dependency, or other disabilities. The MPD instructs that officers are entitled to check on people who appear to have these problems for their welfare and to connect them to appropriate support services. MPD training includes materials published by the ’Wisconsin Department of Justice Law Enforcement Standards Board (“WLESB”), Defendants aver that the MPD’s training is consistent with WLESB standards.

Manney claims that -he received such training. Plaintiffs deny that he received any specialized training -on dealing with the mentally ill. He admitted as much in his deposition. Though Manney did receive training on identifying persons in crisis situations,'including those with mental illness crises, he cannot réeall the content of that training, Manney’s only recollection was that the training occurred in 2008 and was taught by a female instructor. Plaintiffs further note that Manney has not received training on various topics related to mental health intervention.

Manney has not received CIT training from the MPD or completed any mental health training using role-playing exercises. Plaintiffs’ expert on CIT-training, Dr. Douglas Smith (“Smith”), opines that had Manney received such training, the outcome of the Hamilton incident may have been different. See (Docket # 61-32 at 6). Defendants counter that Karen Dubis (“Dubis”), a former coordinator of the MPD’s CIT training, disagrees with Smith’s conclusion. See (Docket # 80), Du-bis also states that CIT training is not mandated by the WLESB, and was made available to officers on a voluntary basis.

Manney further asserts that he received training on dealing with homeless people. Plaintiffs similarly dispute the merits of this training. He was given no specialized training on dealing with' homeless people. The entirety of his training on the issue was a ten to fifteen minute presentation where he learned about the MPD’s Homeless Outreach Team. The presentation was meant for that team to- “say that this is who we are as opposed to actually train.” (Docket # 61-3 at 54:23-55:1).

With respect to encountering people in the field, MPD officers are trained that they can conduct a Terry, stop or field interview based on their reasonable suspicion that a person has committed, is committing, or will commit a crime. See Hiibel v. Sixth Jud. Dist. Ct. of Nev., Humboldt County, 542 U.S. 177, 185, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). The factors they should use to assess that suspicion include the subject’s appearance, demeanor, actions, time of day, the appropriateness of their location, whether they are carrying a suspicious item or their clothing has bulges, and their proximity to an alleged crime scene.

MPD officers also receive training on pat-down searches. As noted above, such searches may be conducted if the officer reasonably suspects that they or another person are in danger from the subject. As with Terry stops, the officer must also be able to articulate facts leading them to believe that the person is involved in criminal activity. Officers are also trained that consent is a valid basis for a search, provided that it is a “clear and voluntary expression”’of consent. (Docket #53-8 at 1).

Regarding use of force, the MPD trains officers to apply their training, experience, and common sense to a situation and respond as events unfold. When subjects tie-come violent, officers are told they have the authority to employ defensive force tactics. Specifically, if the officer is struck by a person, the officer may either respond with the same level of force, or higher if the officer feels it is necessary for them to gain control of the situation. As relevant here, if an officer is struck with fists, he .may either use his fists or draw his baton. .Officers are trained that they may only use deadly force when it- would be reasonable to prevent great bodily harm or death to themselves or others.

4.2 Analysis

At the time the instant summary judgment- motions were filed, Plaintiffs advanced the following substantive claims:

1) Unlawful detention, ■

2) Unreasonable search, and

3) Excessive force, .all against Manney; and

4) Failure to train against the City, specifically with respect to encounters with mentally ill people, in violation of the Monell doctrine. See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

(Docket # 1 at 37-45 and # 43). Defendants seek judgment on each claim. In light of the -Court’s ruling on Plaintiffs’ motion for summary judgment, the second claim is no longer contestable. As to Defendants’ remaining requests for judgment, they are doomed by the standard of review, and each must be denied. Defendants have also advanced separate arguments related to the Manney claims, specifically inadequate causation and qualified immunity, but those too must be rejected.

4.2.1 Unlawful Detention

The Fourth Amendment imposes a limited burden on police officers who wish to briefly detain a person to investigate criminal activity. It requires that the officer have “reasonable suspicion based on articulable facts that a crime is about to be or has been committed.” Williams, 731 F.3d at 683. Reasonable suspicion is less than the probable cause required to obtain a warrant to seize a person, but more than a mere hunch. Id. In analyzing reasonable suspicion, a court “must examine the totality of the circumstances in the situation at hand, in light of the individual officers’ own training and experience, and should uphold the stop if it finds that ‘the detaining officer ha[d] a “particularized and objective basis” for suspecting legal wrongdoing.’ ” Id. at 683-84 (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)).

Viewing the evidence in a light most favorable to Plaintiffs, and making all reasonable inferences in their favor, a reasonable jury could conclude that Manney detained Hamilton without reasonable suspicion that he committed any crime. The information at Manney’s disposal which directly concerned Hamilton was limited. Cameron’s voicemail described Hamilton’s appearance and stated that he was sleeping near the Starbucks trailer. When Manney arrived at the Park, he saw Hamilton lying on a concrete path with his eyes closed, knee bent and twitching. On Manney’s way to discuss the matter with the Starbucks employees, Hamilton opened his eyes and the two began their interaction. Manney’s first words to Hamilton were an order to stand up, at which point Hamilton’s detention began.

Prior to those words, none of the facts available to Manney demonstrated an individualized suspicion connecting Hamilton to a crime. Defendants contend that Man-ney could have reasonably believed that Hamilton had been criminally disorderly, based on Kraemer’s call, his prior knowledge of the reliability of the Starbucks employees, and Hamilton’s appearance and location in the Park. However, Manney had not heard the content of Kraemer’s call prior to detaining Manney, nor had he spoken with anyone, such as Cameron, Fitchett, Fuerte, or a Starbucks employee. Thus, any belief in the reliability of Kraemer’s complaint was not the individualized suspicion required when police officers seize a person. City of Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). Instead, Manney’s only source of suspicion directly related to Hamilton was Cameron’s voicemail and Manney’s visual observation upon arrival at the Park. Manney admits that the voice-mail does not suggest disorderly conduct. (Docket # 61-3 at 90:2-6). Defendants do not suggest, and the Court does not find, any suspicion of disorderly conduct from Manney’s perception of Hamilton lying down in the Park.

Defendants’ factual briefing suggests that Hamilton may have also violated a Milwaukee County ordinance by sleeping in the Park. (Docket # 89 at 16-17). This argument fails for three reasons. First, Defendants make no corresponding legal argument in the section of their opening brief dedicated to this issue. (Docket # 50 at 26-30). Second, assuming the position was properly presented, Hamilton’s conduct did not constitute a crime. See Milwaukee County Code of Ordinances §§ 47.25 (prohibiting sleeping in parks) and 47.29 (penalty for violating Chapter 47 ordinances is forfeiture); Wis. Stat. § 939.12 (“A crime is conduct which is prohibited by state law and punishable by fine or imprisonment or both. Conduct punishable only by a forfeiture is not a crime.”). Third, even if Hamilton’s slumber could be considered a crime, the facts do not support a reasonable suspicion that Hamilton violated the ordinance. It is true that Cameron’s voicemail mentioned Hamilton sleeping and that Hamilton’s eyes were closed upon Manney’s approach. These facts were not consistent, however, with Manney’s other observations. Hamilton’s knee twitched while he lay on the ground, and he “awoke” even when Man-ney attempted to approach quietly. Further, Manney approached Hamilton at midday, not at nighttime. It would thus be less reasonable to assume that Hamilton was sleeping. These facts and circumstances support an inference that Hamilton was not asleep. Given the totality of the circumstances presented to Manney, a reasonable jury could conclude that he lacked appropriate suspicion that Hamilton was sleeping in the Park.

In the alternative to suspicion of disorderly conduct, Defendants posit that Manney’s action was not a detention, but instead a mere welfare check pursuant to his “community caretaker” function. Wisconsin recognizes that police officers “may exercise two types of functions: law enforcement functions and community caretaker functions.” State v. Pinkard, 327 Wis.2d 346, 785 N.W.2d 592, 598 (2010) (citing Cady v. Dombrowski, 413 U.S. 433, 448, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)). Wisconsin maintains an exception to the Fourth Amendment’s prohibition on war-rantless searches and seizures when a police officer is “serving as a community caretaker to protect persons and property.” Id. at 597. An officer is a “com