Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98 C 0301--Patricia J. Gorence, Magistrate Judge.
Before Bauer, Coffey and Diane P. Wood, Circuit
The opinion of the court was delivered by: Coffey, Circuit Judge.
Appellants Robert J. Driebel, Johnny C. Sgrignuoli, Stephen Pinchard, and Brett Huston are police officers for the City of Milwaukee Police Department ("MPD" or "the Department"). The officers claim that their Fourth Amendment rights were violated when they were ordered by superior officers to remain on duty or to accompany detectives to the headquarters of the MPD's Internal Affairs Division and answer questions put to them during the course of criminal investigations of their activity while on duty in January and February 1998. The magistrate judge presiding with the consent of the parties, 28 U.S.C. § 636(c), granted the Department's motion for summary judgment. Each of the officers appeal. We affirm the magistrate's decision to grant summary judgment in favor of the MPD and against Officers Driebel, Huston, and Pinchard. Driebel was seized based on probable cause and Huston and Pinchard never were seized. We reverse and remand as to Officer Sgrignuoli because we are convinced that a reasonable jury could conclude that he was seized without probable cause.
On February 20, 1998, Officer Driebel was assigned to plainclothes duty during a daytime patrol shift from 7 a.m. to 3 p.m. At approximately 1:15 p.m., the MPD received an emergency call from the principal of Humboldt Park Elementary School in the City of Milwaukee, Wis., alleging that an "older kid" was "across the street bothering kids at the school."
Officer Driebel and his partner, Officer Karla M. Lehmann, were dispatched to the scene and, upon arrival, commenced their investigation with the taking of a statement from the principal. She told them that two or more teenage boys not enrolled in the school sauntered onto the playground, approached a group of fifth-grade girls and directed foul, vulgar, and obscene words and gestures at them, with the boys grabbing their own genitals and so forth. The principal stated that when she went to the playground to investigate this harassment, the boys darted off across the street and into a house located at 3302 S. Adams St.
After obtaining this information, Driebel and Lehmann returned to their squad car, drove to the referred-to house, and knocked on the front door. No one answered. Driebel and Lehmann returned to the school and interviewed several boys at the playground who reportedly had witnessed the incident. (The boys interviewed were later identified as William Ryan, Craig Wood, Michael Mazur and Sabian Yunct). After taking statements from these four youths, Driebel and Lehmann returned to 3302 S. Adams St. and proceeded to monitor the residence and attempt to stop and interview any persons who might exit the house matching the suspects' descriptions.
After several minutes, two boys matching the descriptions walked out of the rear door of the house and entered into an adjoining alley. Driebel proceeded to follow the youths and pulled his squad car into the alley, and as the boys observed the police vehicle, they took off running in opposite directions. Driebel and Lehmann chose to pursue the boy later identified as Joshua Schmidt. Driebel remained in the squad car, while Lehmann exited the vehicle and chased Schmidt as he ran through several backyards in an attempt to avoid apprehension. After Lehmann lost sight of the boy, Driebel happened to observe him scampering across the playground towards an alley. Driebel drove around the school and down the alley, where he saw Schmidt lying prone on the ground in an attempt to hide from the police. At this point in the chase, Driebel stopped the car, exited the vehicle, and yelled, "Police! Are you tired of all this running shit? Just stop!" Schmidt disregarded Driebel's lawful command and jumped up and vaulted over a fence in a second attempt to elude the pursuing officer. After chasing Schmidt through three or four yards, Driebel grew tired and realized that he was not going to be able to apprehend the fleeing youth. Out of frustration and in an attempt to stop Schmidt, Driebel threw his MPD-issued radio at the boy, inadvertently striking him in the head. Schmidt seemed unfazed; he kept running and neither stopped nor fell nor gave any indication of injury. After approximately twenty minutes of additional search activity, Driebel and Lehmann returned to their squad car and drove off without the suspects.
Once the officers had departed, Schmidt reemerged from his hiding place and returned to the playground where Mazur, Ryan, and Wood were still playing basketball. Schmidt at this time complained that he felt dizzy, laid down in the grass, and began to regurgitate. After several minutes, the youths called Wood's father, Robert. Mr. Wood drove to the school, observed Schmidt's injuries, conveyed him to the Second District police station, and proceeded to file an incident report concerning this matter.
Mr. Wood spoke with Sgt. Thomas Doehling, who was assigned to handling citizen's complaints. During an interview, Schmidt informed Doehling that he was hit by something thrown by a police officer, adding that the officer declared, "I'm tired of chasing you, bitch!" before doing so. Mr. Wood reported that he was told by the children that someone who appeared to be a plainclothes officer was observed throwing a brick-like object at Schmidt and striking him from the rear on the head at the base of the skull just above the neckline. Sgt. Doehling--after observing that Schmidt had blood on the back of his head and in his hair, as well as on the collar of his jacket--arranged for an ambulance to transport Schmidt to a nearby hospital for treatment and proceeded with the investigation by soliciting information from the Woods regarding the incident.
Mr. Wood's son, Craig, repeated the statement that he saw someone who he believed to be a police officer chase Schmidt and throw a brick-shaped object in Schmidt's direction. Mr. Wood added that he lived near the Humboldt Park school and was home earlier that afternoon and observed a man and a woman dressed in plain clothes speaking with the boys playing basketball. He further stated that he saw this same man walking around inside the police station and mingling with the other patrolmen on duty. Based on these statements, as well as his knowledge that Driebel had been dispatched to the Humboldt Park area earlier in the afternoon, Doehling suspected that Patrolman Driebel was probably the individual who threw the brick-shaped object.
Upon completing his interview of the Woods, Doehling sought out and located Driebel, whose shift terminated at 3 p.m. Doehling ordered Driebel to "stand by" in the police garage until given further instructions by a superior officer. Driebel complied with the order and commenced a waiting game in the garage for approximately four hours. He received overtime pay for this unusual assignment and retained possession of his I.D. card, badge, and all of his police-issued equipment. No one was assigned to monitor his presence in the garage, and there is no evidence that Driebel was isolated or prevented from communicating with anyone in the garage during this time.
Meanwhile, at about 3:15 p.m., Sgt. Doehling contacted the Internal Affairs Division ("IAD") Criminal Investigation Unit and notified the IAD about the complaint. The matter was referred to Deputy Insp. Dale T. Schunk, who directed Lt. David Bruess to supervise an investigation and determine whether Driebel's conduct constituted a violation of any statutes or ordinances. Pursuant to the MPD's internal rule regarding use-of-force investigations, Schunk informed Chief of Police Arthur L. Jones of the investigation concerning the two officers who had chased a juvenile on the street and allegedly "threw a brick" and injured him during the pursuit. Jones ordered Insp. Schunk to report back to him concerning further developments in the investigation.
Bruess found it necessary to assign four other IAD detectives and order that they accompany him to the Humboldt Park area to question any possible witnesses concerning Schmidt's truancy, obscene gestures, and foul language. The detectives spoke to Robert and Craig Wood and to the three children previously seen at the playground--Mazur, Yunct, and Ryan. Bruess directed the detectives to separate the witnesses, take their statements, and investigate the scene of the incident. Robert Wood repeated his earlier statement that he observed a male chasing Schmidt. Wood added that his son, Craig, told him that he saw this same man throw a brick at "a kid." Mazur and Yunct reported that they saw Schmidt being chased by a male who they believed was a police officer. Ryan similarly reported that he saw a male chase Schmidt and throw an object at him; he also heard something hit a house almost instantly after the object was thrown.
Once Det. Kenneth Morrow received this information, he proceeded to examine residences within the 3200 block of South Adams and discovered a dent in the siding of one of the structures. The occupant of the house stated that she saw two men running through her yard and heard a loud thump against the residence at approximately 2 p.m., which is about the time when Driebel would have been chasing Schmidt. The detectives thereafter determined that the dent in the siding matched the shape of a battery used to power MPD-issued radios.
Some time between 4:15 and 5:30 p.m., the three investigating detectives relayed the results of their investigations to Bruess. Bruess concluded that Driebel had thrown his police radio at Schmidt. Bruess further concluded that he had probable cause to believe that Driebel committed "substantial battery"--a Class E felony under Wisconsin law. Bruess reached this conclusion based on the fact that: (1) the victim received an injury of such magnitude that he required conveyance and treatment at a hospital, where he was diagnosed as having suffered two lacerations to the scalp area requiring six sutures; (2) no evidence suggested that Driebel was acting in self-defense; and (3) police officers are not trained to throw their radios at suspects. Bruess further was troubled by the fact that Driebel violated MPD policy by failing to report any use of force in the line of duty to his supervisor as soon as possible, notwithstanding that Driebel was ordered to "stand by" in the police garage merely 45 minutes after the incident occurred. *fn1 MPD Manual § 2/455.00 (1994 & 2000 Supp.). *fn2 Thus, Bruess somehow came to the conclusion that Driebel was attempting to conceal what he knew was the excessive use of force in the apprehension of a juvenile suspected of disorderly conduct and truancy. *fn3
At 6:15 p.m., Bruess informed Schunk of the facts, and Schunk in turn advised Chief Jones of the results of the investigation, including Bruess's belief that probable cause existed to arrest Driebel for substantial battery--a Class E felony. Although the investigators failed to speak with either Driebel or his partner, Lehmann, Jones reflected upon the information and concluded that Driebel was not trying to stop Schmidt but intended to injure Schmidt because Driebel was not acting in self defense when he violated MPD policy and threw his radio at Schmidt. Relying on the quantum of information known to him, Jones believed that he had sufficient evidence to justify the arrest of any citizen for substantial battery and thus gave the order to arrest Driebel for substantial battery at approximately 6:30 p.m.
Thereafter, Driebel, who had been "standing by" in the Second District garage for approximately four hours, was summoned to the captain's office and placed under formal arrest. Without extending Driebel the opportunity to provide a more complete account of that afternoon's incident by presenting his side of the story after consultation with a union representative or an attorney, Driebel was ordered to surrender all his police-issued equipment, gun, badge, locker room keys, identification card, etc. He was told that he was the subject of a criminal investigation and was read his Miranda rights. After refusing to make any statements to the detectives, Driebel was held and conveyed to the Milwaukee County Jail where he was booked, charged, and required to post a $500 bond before his release from custody several hours later.
Subsequent events strongly suggest that the officials and superior officers of the MPD overreacted by arresting and charging Driebel with substantial battery. After the case was referred to the Milwaukee County District Attorney's office at a later date for independent review, Deputy Dist. Atty. Jon N. Reddin, in the exercise of his discretion, refused to press charges for substantial battery or any other offense. *fn4 Reddin refused to charge Driebel and persuasively explained that he would have had difficulty satisfying the intent requirement of the statute, for after reviewing all of the evidence obtained in an independent investigation, he was convinced that Driebel threw the radio out of frustration without the requisite intent to harm the fleeing suspect. However, the Department subsequently saw fit to suspend Driebel for twenty days without pay for violating MPD policy by using force against a civilian and failing to report the use of force to supervisors as soon as possible. The record fails to reflect whether Driebel took advantage of proceeding to an administrative hearing prior to being placed on suspension.
Officers Huston, Sgrignuoli and Pinchard were each assigned to the Gang Crimes Division of the MPD. Documents reflect that while Huston and Pinchard were on duty January 21, 1998, they made a traffic stop of a vehicle for failing to stop at a traffic signal. One of the four passengers in the vehicle was a Latino male named Miguel Ramos, a convicted felon who police knew to have affiliations with the Latin Kings street gang.
On January 23, MPD Asst. Chief Paul Koleas telephoned Deputy Insp. Schunk with information that might have suggested that the officers committed a crime at the time of the Ramos traffic stop. Specifically, Koleas advised Schunk that he learned from a confidential informant that two officers had recently pulled over a vehicle with four male occupants, observed marijuana lying on the ground next to the car, and allegedly threatened to arrest one of the occupants for drug possession unless the occupant agreed to obtain a single handgun for them from off the street. That same day, the IAD was informed that gang member Ramos filed a complaint against two officers for their conduct on January 21, making the same allegations as those to which the confidential informant had alluded. Ramos alleged that the officers followed him to a friend's house to get a gun, but that Ramos allegedly was unable to produce a gun once he got there. Ramos added that at this point, the police took $30 from him and instructed him to page them and bring them not one but two guns the next day, or else he would be arrested and charged with possession of drugs. Ramos alleged, "The police told me, 'Your price of freedom now went to two guns.' "
After reviewing police activity records for the evening shift of January 21, the IAD concluded that Officers Huston and Pinchard were involved in the Ramos traffic stop. Ramos further informed the IAD detectives that Huston paged him several times on January 22, leaving the Gang Crimes Division phone number on each occasion. At this point, the IAD launched a criminal investigation to ascertain whether Huston or Pinchard might be guilty of the crime of misconduct in public office.
During the next several days, the IAD interviewed three individuals who had been referred to them by Ramos. It is unclear from the record whether these individuals were also gang members. They stated that Ramos came to them looking for a gun, explaining that he had been threatened with arrest if he did not obtain the weapon for the police. One witness further stated that two officers came to her residence several times over the course of a two-day period checking to see if Ramos had dropped off a gun. Another witness added that Ramos complained to her that the police took $30 from him.
Either Schunk or Koleas advised Chief Jones about Ramos's complaint as well as the information they had gathered during their week-long investigation. Jones was of the opinion that if the patrolmen had committed the acts as alleged by Ramos, then probable cause would exist to believe that they were guilty of misconduct in public office. At this time, Jones ordered a sting operation be set up to test the veracity of Ramos's claims and placed Bruess in charge of the undercover investigation.
Bruess arranged for the sting to occur in the early evening hours of January 29, 1998. On this date, Officers Huston, Pinchard, and a third officer, Johnny Sgrignuoli, were working the 5 p.m. to 1 a.m. shift on Milwaukee's south side. Huston was working patrol detail in the same squad car as Sgrignuoli, and Officer Pinchard was attending a training session at District One headquarters. As part of the sting, Jones directed Bruess to place two handguns in a dumpster on the corner of South 14th and West Mitchell. Contemporaneously therewith, Bruess planted a hidden camera in nearby bushes in order that they might monitor any activity possibly transpiring with respect to the planted weapons.
At the instruction of the IAD, Ramos telephoned Huston and advised him that there were two guns in a dumpster on the corner of South 14th and West Mitchell. After receiving this information, Huston and Sgrignuoli proceeded to drive to the designated location to secure the planted weapons. Sgrignuoli exited the squad car, retrieved the firearms, and placed them in the back end of the police vehicle. Upon observing this activity, two unmarked police vehicles pulled up and stopped their squad cars behind Huston and Sgrignuoli's. Det. Lawrence Ciske and Det. Louis Johnson exited their vehicles and, according to Huston, immediately "separated" him from Sgrignuoli. The manner by which the patrolmen were "separated" is not explained in the record.
Sgrignuoli recognized Det. Ciske as he exited the unmarked car, and as Sgrignuoli approached the detective, he asked, "What's going on?" Ciske refused to respond and "turned [Sgrignuoli] around and directed him back toward his squad car." As the two men began walking toward the car together, Ciske informed Sgrignuoli that he was the subject of a criminal investigation and ordered him to enter the vehicle.
Det. Johnson thereafter approached Officer Sgrignuoli as Det. Ciske walked back to his own vehicle. Johnson sat down in the front passenger seat of Sgrignuoli's squad car, and Sgrignuoli occupied the driver's side of the vehicle. Johnson instructed Sgrignuoli to drive to the IAD offices at police headquarters in downtown Milwaukee. While on their journey, Sgrignuoli asked Johnson several times, "What is going on here?" but Johnson refused to answer and stated that he could not say. At one point during the trip, Sgrignuoli was radioed by his supervising sergeant, but Johnson ordered Sgrignuoli neither to respond nor advise the sergeant of his location.
The supervisor of the sting operation, Lt. Bruess, later testified that Officer Sgrignuoli's name "never came up in the investigation" of Ramos's incident report and that Sgrignuoli "wasn't involved at all" in the matters about which Ramos complained. Bruess said that Officer Sgrignuoli was detained simply because he "just happened to be unlucky enough to be partnered up with Brett Huston" on the date of the sting. Bruess also acknowledged that he neither informed Sgrignuoli that the sting operation was focusing on Huston's and Pinchard's conduct nor that Sgrignuoli was being ...