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Marshall v. Teske

March 27, 2002

JEFFREY O'NEAL MARSHALL, A MINOR BY HIS GUARDIAN AD LITEM PAUL J. GOSSENS, PLAINTIFF-APPELLEE,
v.
DANIEL TESKE, ALFONZO MORALES, AND DAVID KOLATSKI, DEFENDANTS-APPELLANTS.



Appeals from the United States District Court for the Eastern District of Wisconsin No. 98-C-0306--Thomas J. Curran, Judge.

Before Manion, Rovner, and Evans, Circuit Judges.

The opinion of the court was delivered by: Evans, Circuit Judge.

As amended April 2, 2002.

JEFFREY O'NEAL MARSHALL, A MINOR BY HIS GUARDIAN AD LITEM PAUL J. GOSSENS, PLAINTIFF-APPELLEE,
v.
DANIEL TESKE, ALFONZO MORALES, AND DAVID KOLATSKI, DEFENDANTS-APPELLANTS.

Appeals from the United States District Court for the Eastern District of Wisconsin No. 98-C-0306--Thomas J. Curran, Judge.

Before Manion, Rovner, and Evans, Circuit Judges.

The opinion of the court was delivered by: Evans, Circuit Judge.

 Argued January 7, 2002

In this civil rights action under 42 U.S.C. sec. 1983, three Milwaukee police officers appeal a jury verdict finding that they violated the constitutional rights of a 14-year-old boy by arresting and holding him in custody for 10 hours, all without probable cause. Ironically, the case against the three officers got a major boost from two other Milwaukee police officers who happened, fortunately for the boy and his lawsuit, to be in the right place at the right time.

The jury heard conflicting facts and we will recount both sides, although in an appeal like this we accept as true the winner's version of the events.

Jeffrey Marshall is African-American. He was 14 years old on September 11, 1997. September 11, back in 1997, was an uneventful day--it was warm, and kids were playing around Milwaukee's 92nd and Birch Streets, a neighborhood full of small, four-unit apartment houses. Shortly after 6 p.m. Marshall left his house, about four blocks away, and went to the 92nd and Birch area to find his younger brother, who was supposed to be there. At that very moment, about a dozen Milwaukee police officers were covertly converging on the area intent on executing a search warrant at one of the four-family apartments on Birch Street. Three undercover officers--Daniel Teske, Alfonzo Morales, and David Kolatski--were part of the search warrant team, and their role was to act as "containment" during the search--they were to make sure that no persons fled from the apartment. The officers claim that this area was known for illegal drug-dealing activity. Marshall testified that he had never heard that the neighborhood was known for drug activity and that he often played there with other kids. Marshall added that he didn't use drugs, had never seen drug dealing, and had never seen a police raid (or arrest) in the neighborhood.

The officers said they had information that the drug dealer whose apartment was to be searched often used lookouts and that they had seen a young black male standing as a lookout on the drug dealer's front porch on a previous occasion. They also testified that they had seen young black males in front of the building earlier that same day. This, of course, should not have been all that unusual since the area was a densely populated neighborhood loaded with young African-Americans.

When Officers Teske, Morales, and Kolatski arrived to execute the search warrant, they parked behind the apartment building. They then split up and moved from the rear to the front of the building around its west and east sides. The three officers wore police-issue maroon windbreakers. Each windbreaker had the words "POLICE NARCOTICS" printed on its back and a velcro flap that could be used to cover the lettering. The front of the jacket contained the word "POLICE" and a Milwaukee police badge emblem, and another velcro flap for hiding the word and emblem. The officers claim that the velcro flaps on the front and back of their jackets were down, revealing their police insignias, when they moved into position.

Marshall claims that he did not see anything identifying the men as police. They were just wearing maroon jackets, and at least two of the officers were wearing masks which covered their faces. One of the officers, Morales, wore a ski mask because he did not want to jeopardize his undercover identity. At the time of this incident, the Milwaukee police department had a policy permitting containment team officers to wear masks during the execution of search warrants. It has since changed that policy. Even without masks, the officers didn't look much like your stereotypical police. ...


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