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Schertz v. Waupaca County

decided: April 21, 1989.


Appeal from the United States District Court for the Eastern District of Wisconsin, No. 86 C 739, Thomas J. Curran, Judge.

Author: Pell

Before CUMMINGS and CUDAHY, Circuit Judges, and BELL, Senior Circuit Judge.

PELL, Senior Circuit Judge. Plaintiff Michael Schertz appeals from the entry of summary judgment in favor of the defendants, Waupaca County and several state and local law enforcement officials, in this suit brought under 42 U.S.C. Section 1983. Schertz alleged that he was arrested and detained and his property searched, all without probable cause.


At about 4:45 a.m. on July 14, 1985, Iola, Wisconsin police officer Gerald Mork was found dead in a Waupaca County cemetery. Mork had been shot twice in the back of the head.

Upon learning of the murder, Robert Andraschko, Chief Deputy of the Waupaca County Sheriff's Department, requested assistance from the Wisconsin Department of Justice. Andraschko headed the investigation in place of County Sheriff William Mork, who did not participate because the murder victim was his son. The same day that Andraschko requested state aid, the sheriff's department and state crime laboratory conducted an investigation of the crime scene. Soon after, the Wisconsin Department of Justice assigned special agents Louis Tomaselli and Carl Paetzke to the investigation.

The investigation revealed evidence inculpating Schertz, the Iola Chief of Police. On July 24, agents Tomaselli and Paetzke searched Schertz's home with his consent and in the presence of his attorney. The agents took Schertz into custody on charges of theft of a firearm and misconduct in office. He was accused of seizing handguns from two Iola citizens and not returning them, and of exceeding his lawful authority by taking the guns from the custody of the police department. On August 3, after a hearing, a Waupaca County judge determined that there was probable cause to search Schertz's land and buildings. The state agents, along with Andraschko and Officers Berglund and Kussman, conducted this search.

From August 3 to August 22, a John Doe proceeding, fully complying with Wis. Stat. Section 968.28, was conducted to investigate the murder. Eleven witnesses, including Schertz, testified over the course of five days. The judge determined that there was probable cause to believe that Schertz had murdered Mork. Accordingly, he issued a warrant for Schertz's arrest for first degree murder. The same judge, presiding over a preliminary hearing at which fifteen witnesses testified, found probable cause to bind Schertz over for trial. Another judge, on Schertz's motion, reviewed the preliminary hearing transcript and reached the same conclusion. A preliminary hearing on the theft and misconduct charges likewise resulted in a determination of probable cause.

Testimony at the John Doe proceeding and preliminary hearing on the murder charge established the following. The bullet fragments and cartridges recovered at the scene were consistent with those fired from a Beretta model 1934 .380 auto pistol caliber, semi-automatic pistol. An Iola resident, Frances Hayden, testified that Schertz had seized such a weapon and two other guns from her tavern, and that the Beretta had not been returned to her. A former Iola police officer testified that he had seen two handguns in the police evidence locker in June 1984, tagged with Hayden's name.

The Iola village president testified that Schertz initially had opposed Mork's hiring and later had requested that he be fired. The police chief of a neighboring town related that Schertz had made threats against Mork.

An Iola resident testified that was sitting with some friends on a bench on Main Street in Iola at about 4:00 on the morning of the murder when one Iola squad car passed by, heading toward the cemetery. A few minutes later, the other Iola squad car passed by, following the first on the road leading to the cemetery. (The village police force at this time consisted of Chief Schertz and Officer Mork.) About five minutes later, the witness heard what he thought was a gunshot. Soon after, the second squad car returned to Main Street. The witness waved to the driver, whom he recognized as Chief Schertz.

Schertz does not dispute any of the above facts; he does, however, challenge the conduct of the murder investigation. According to Schertz, the defendants pursued only those leads which tended to inculpate him and disregarded or lost exculpatory evidence. Specifically, he alleges the following errors. Investigators marked off the crime scene with tape, but did not seal it off or guard it. A rescue squad car drove over tire tracks at the scene. Certain evidence was not submitted to the state crime lab for processing, including a pool of liquid under Mork's car and blood found on the soles of his shoes, in the backseat of his squad car, and in the surrounding area. No one dusted Mork's gun or the interior of his squad car for fingerprints. The tire tracks at the scene were photographed, but no casts were taken. A person reported having found a .380 cartridge case near the cemetery; Deputy Andraschko told him to throw it away, explaining that it would not be useful to the investigators. A week after the murder, a tent was discovered about a quarter mile from the cemetery, positioned so that a person in it would have a clear view of the crime scene (assuming that the tent was there at the time of the murder). The tent was not photographed or tested for forensic evidence. Finally, a logbook in which Schertz kept records of his activities as police chief was seized and not returned to him until after the murder trial, while he was preparing his defense to the theft and misconduct charges.

Schertz ultimately was acquitted of all the charges against him. He brought suit against Sheriff Mork, Deputy Andraschko, and Officers Kussmann, Jensen, and Berglund of the sheriff's department (collectively, the "Waupaca defendants"), agents Tomaselli and Paetzke (the "state defendants"), and Waupaca County. He pressed several claims in the district court. The court first granted summary judgment to the Waupaca defendants on the claim that they had conducted a constitutionally infirm investigation. In order to allow the plaintiff further discovery, it delayed ruling on the Section 1983 claims based on the arrest. Schertz, however, presented no new facts, instead relying on the argument that the omissions in the investigation invalidated the evidence ...

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