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Gustafson v. Jones

May 17, 2002

ROD GUSTAFSON AND JAVIER CORNEJO, PLAINTIFFS-APPELLEES,
v.
ARTHUR JONES AND PHILIP ARREOLA, DEFENDANTS-APPELLANTS.



Appeals from the United States District Court for the Eastern District of Wisconsin. No. 94-C-1392--Aaron E. Goodstein, Magistrate Judge.

Before Ripple, Manion, and Diane P. Wood, Circuit Judges.

The opinion of the court was delivered by: Diane P. Wood, Circuit Judge

Argued May 15, 2001

This is the second time we have been asked to consider the legal ramifications of certain actions that then-Chief of Police of the Milwaukee Police Department Philip Arreola, and then-Deputy Inspector Arthur Jones, took in November 1993 with respect to Officers Rod Gustafson and Javier Cornejo. In our first opinion, Gustafson v. Jones, 117 F.3d 1015 (7th Cir. 1997) (Gustafson I), we concluded that the officers had stated a claim for retaliation in violation of their First Amendment rights that was not subject to dismissal on qualified immunity grounds. That part of the case was remanded for a trial, which took place in January 2000. The result was a jury verdict in favor of Gustafson and Cornejo, awarding each $10,000 in compensatory damages and $180,000 in punitive damages. Jones and Arreola have now appealed from the adverse verdicts. Bearing in mind the deference we owe to the jury's resolution of the contested factual issues, we affirm.

I.

Because the background facts became clearer at the jury trial, and because some information that was merely assumed for purposes of the Rule 12(c) judgment on the pleadings was clarified, we think it important to restate the facts in light of the full record now before us.

During the summer of 1993, the Milwaukee Police Department was concerned that it lacked the resources to respond adequately to the increased number of service calls that typically occur during the warmer time of the year. In an effort to address that problem, it instituted a policy under which officers assigned to the elite Tactical Enforcement Unit (TEU) would be split into two groups during their shifts. Some were designated as so-called "490" units, whose job would be to patrol designated districts and respond to service calls relayed through the district dispatchers. The others would retain their usual TEU designation as "700" units and perform normal TEU duties.

Prior to July 13, 1993, TEU officers assigned to 490 duty were permitted to take themselves off patrol duty to conduct follow-up investigations of crimes they had previously begun to work on, if two prerequisites were met: first, they had to have permission from their TEU supervisors, and second, they had to notify the appropriate district dispatch er of their plans. All of that changed on the night of July 13, and it is that change whose character governs the outcome of this suit. On the night of July 13, 1993, Jones was on duty as the "Field Deputy Inspector," which meant that he was in charge of the entire department. Cornejo and Gustafson were officers assigned to the TEU and they were working as partners on the night shift, 7:00 p.m. to 3:00 a.m. At roll call, they were designated squad 493 and assigned to patrol District III. They arrived in District III at approximately 8:15 p.m. Within minutes they were flagged down by Lois McDougal, a woman who a week earlier had reported to Gustafson that she and her family had been held at gunpoint by a 12-year-old member of the Vice Lords gang named Sidney. McDougal stopped the officers in order to report that her son had since told her that Sidney fired ten shots at him in an incident that occurred around July 1. McDougal then provided the officers with a number of addresses at which her son indicated Sidney might be found.

Following standard follow-up investigation protocol, Gustafson used his low-frequency radio to contact his TEU supervisors Sergeant William Skurzewski and Sergeant Gerald Filut and explained the situation. Skurzewski and Filut cleared Cornejo and Gustafson to conduct a follow-up investigation of Sidney provided they received clearance from the District III dispatcher. As instructed, the officers then contacted the dispatcher, who also cleared them to look into McDougal's information. Because of heavy rains, there were very few calls that evening. The officers visited several addresses and conducted interviews between 8:30 and 9:45 p.m. Each time they changed locations, they contacted the dispatcher and their TEU supervisors as required.

Shortly before 10:00 p.m., Gustafson and Cornejo arrived at 2453 W. Brown Street. This turned out to be Sidneyþs house, although only his mother was home. Once the officers explained why they were looking for Sidney, his mother became concerned that Sidney might hurt someone or himself and permitted the officers to search Sidneyþs room for the gun he reportedly had been wielding. Sidneyþs mother informed the officers that Sidney would arrive home at around 11:00 p.m. and asked that they return and arrest him before he hurt someone. The officers agreed that they would return if they were not called away to another assignment. They left the house at approximately 10:15 p.m.

When they returned to their squad car, Gustafson and Cornejo received a call from the District III dispatcher telling them to go on a side channel to talk to squad 123 from the Detective Bureau. At the same time, squad 713 called them on the low-band radio. Both calls were about the same incident; squads 123 and 713 were working an attempted homicide that Cornejo had worked on a week earlier. Squad 713 requested that Gustafson and Cornejo join them in District VII. The officers proceeded to a secure þcall boxþ to explain their situation to the dispatcher.

As Cornejo got out of the car to use the call box, Gustafson got a call from Deputy Inspector Jones, þsquad 197.þ Without explanation or inquiry into the nature of their situation, Jones directed Gustafson to "discontinue the follow-up investigation and only take assignments from the dispatcher.þ The dispatcher relayed the same directive from Jones to Cornejo through the call box.

The officers were surprised at the no-questions-asked order, but they complied with it and returned to regular patrol status. They were particularly concerned that they could not continue with the Sidney investigation. Given what they had learned about Sidney and the dangers he posed, they were afraid that dropping their effort to arrest Sidney that night might put the community at risk and might expose them to potential departmental discipline or legal liability should Sidney injure someone. Gustafson and Cornejo requested that squad 713 follow up the Sidney investigation for them, but the officers in that squad refused, saying they understood Jones's order to be a clear directive to abandon the investigation.

At 11:47 p.m., Skurzewski and Filut contacted Gustafson and Cornejo and set up a meeting in District III. At the meeting, the officers asked the sergeants to follow up the Sidney investigation, but they too declined, explaining that they had been þchewed outþ by Jones, that his order was clear, and that he had even directed Skurzewski to issue an order at roll call that 490 squads in the future were not to engage in follow-up investigations without Jonesþs express permission. This order represented a substantial departure from established follow-up protocol.

Jones later testified that the revised protocol was necessary to overcome the resistance of TEU officers to doing regular patrol. He issued the command to Gustafson and Cornejo on the night of July 13 because he considered the fact that they had spent the first two hours of their shift doing follow-up to be an act of resistance to Arreola's "rapid response" program, even though he had no knowledge of the nature of the follow-up they were conducting, nor did he apparently take into account the fact that they had received proper departmental authorization for every step they had taken. To the contrary, according to Skurzewski and Filut, Jones issued his þno follow-upþ roll call order even after learning from the sergeants that Cornejo and Gustafson had been on the trail of a potentially armed suspect who had already fired on citizens on an earlier occasion and that they had properly cleared their investigation with the dispatcher and their supervisors.

Following their shift, Gustafson and Cornejo returned to the Department. Everyone in the TEU was talking about Jonesþs order to the officers and his roll call order. Supervisors and officers alike were confused and concerned about the implications of Jonesþs actions. The TEU officers were concerned that the roll call order put them in an untenable position. They were duty-bound to do proper follow-up investigations, and follow-up of some kind was frequentlynecessary. Despite that, they now understood that in every case they would be required to obtain express permission to perform follow-up work from a deputy inspector, who would likely not always be reachable. As Sergeant Michael Kuspa, one of the TEU supervisors on duty that night put it, officers feared the order þwould cause problems with initial investigation in that . . . there was a need to call the deputy inspector who if he was not working or we were unable to get ahold of him, if there was a need for immediateinvestigation to continue, we would not be able to provide that.þ

The level of confusion and concern about Jonesþs initial order was sufficiently great that the next day the TEUþs commanding officer, Lieutenant Ronald Rebernick, went over Jonesþs head to discuss it with Inspector Thomas Harker. Acknowledging that the order was overly restrictive, Harker permitted Rebernick to modify it somewhat. The new order prohibited 490 squads only from engaging in þself-initiatedþ follow-ups without first contacting their supervisors.

This revised order left both the sergeants and the officers as confused as ever. Gustafson and Cornejo remained par ticularly concerned. Their follow-up investigation was the result of being flagged down by a citizen. Was this þself- initiatedþ? Was it "self-initiated" if they asked for both the supervising sergeants' and area dispatcher's permission before they undertook it? And what about the Department regulations requiring timely and complete follow-up? Even under the revised order, no follow-up could be conducted without express permission from Jones. What were the officers to do at times when Jones could not be reached? Gustafson testified that he and Cornejo were also concerned that according to the order þthe tactical 400 cars that were supposed to be patrol cars were not allowed to operate like all the other patrol cars in the district, . . . we were just supposed to drive around and take assignments from the dispatcher.þ

The officers approached their sergeants with all these concerns, as well as with their particular concern about the implications of having prematurely abandoned the Sidney investigation. What if Sidney had shot someone that night? Among other concerns, Gustafson, Cornejo, and their sergeants were aware that just over a year earlier two patrol officers were fired after failing to properly follow up on information suggesting criminal conduct by Jeffrey Dahmer--a failure that the Department determined contributed to Dahmer's grisly murder of a boy. (See Balcerzak v. City of Milwaukee, 163 F.3d 993 (7th Cir. 1998) (upholding summary judgment in favor of Chief Arreola and the Milwaukee Board of Fire and Police Commissioners on claims brought by two officers who were disciplined for their failure properly to investigate Dahmer's conduct in 1991 with respect to one of his victims).) Their sergeants and Lieutenant Rebernick said there was nothing they could do about the Sidney investigation or the problems created by Jones's roll call order. As one TEU sergeant testified, Rebernick informed the officers þthere was nothing more to add. . . . The officers were to follow [the order].þ

Having consulted their superiors without success, and still concerned about the untenable position that Jonesþs order put them in, Gustafson and Cornejo went to see the president of their union, Bradley DeBraska, þto get some answers.þ *fn1 They took with them their notebooks and a sup-plemental investigation report on the Sidney incident that they had prepared after their July 13 shift. That report explained what they had learned through their investigation and stated that they broke off the investigation under unusual circumstances ...


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