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Hollins v. City of Milwaukee

July 31, 2009

DAVID HOLLINS, PLAINTIFF-APPELLANT,
v.
CITY OF MILWAUKEE, CHARLES LIBAL, AND DEMETRIUS RITT, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:05-cv-00623-CNC-James T. Moody, Judge.*fn1

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

ARGUED APRIL 10, 2009

Before BAUER, FLAUM and EVANS, Circuit Judges.

On June 23, 2002, Milwaukee police officers executed a search warrant at a suspected drug house. David Hollins, a passerby, stood in close proximity and photographed the scene. After Hollins failed to comply with the officers' instruction to leave the immediate area, he was forcibly arrested. Hollins sued the City of Milwaukee and Milwaukee Police Officers Charles Libal and Demetrius Ritt, claiming that the defendants violated his First, Fourth, and Fourteenth Amendment rights. Defendants moved for partial sum-mary judgment. The district court granted the motion in part, dismissing the City as a defendant but finding that triable issues of fact remained concerning several of Hollins' claims against the officers. At trial, the jury found in favor of Officers Libal and Ritt. On appeal, Hollins argues that the district court improperly granted summary judgment in favor of the defendants and, further, committed reversible error at trial. We affirm.

I. BACKGROUND

On June 23, 2002, officers from the Milwaukee Police Department searched a residence located at 2004 North 35th Street in the city of Milwaukee. Police had received information that the suspects inside the residence were armed and that look-outs may have been present in the vicinity.

Officer Ritt was one of the officers conducting the search, while Officer Libal was acting as a containment officer; Libal's duties included preventing individuals from entering or exiting the residence or surrounding area. The containment area included both sides of 35th Street.

Hollins was walking down 35th street and came upon the police scene as the officers were in the process of executing the search. Hollins, a freelance photographer, took out his camera and began snapping pictures from across the four lane street in front of the residence that was being searched. While maintaining his position of containment, Libal noticed Hollins. According to Libal, he was concerned about Hollins' presence there, believing it created a risk for both Hollins and the officers. Libal also did not know if Hollins was involved with or related to the targets inside the residence. Libal crossed the street and walked toward Hollins; he ordered Hollins to move south of his location and out of the area directly in front of the purported drug house.

Hollins alleges that after Libal crossed the street, he pushed Hollins to the ground and ordered him "to get the fuck out of here" or he was going to "slap him with a loitering citation." Libal denies making these comments and claims that Hollins was physically escorted, not pushed, in a direction away from the police scene. Hollins moved a short distance south before stopping and declaring that he had a right to be there. He refused to move further and requested Libal's name and badge number. At that point, Hollins claims, Libal responded, "that's it, fucker, you are going to jail." With the assistance of Ritt, Libal then arrested Hollins. The parties differ as to the amount of force Libal, Ritt, and the other officers used in making the arrest, and as to the amount of resistance Hollins displayed as it occurred, but Hollins asserts that he was choked, thrown to the ground, and maced; his camera was also broken. In any event, Libal issued a municipal citation to Hollins for resisting or obstructing an officer.

The matter proceeded to trial, where Hollins was found guilty of violating the ordinance and ordered to pay a fine. Hollins did not appeal the judgment entered by the municipal court. On June 8, 2005, Hollins brought suit regarding the circumstances surrounding his arrest. His complaint, later amended, alleged that Officers Libal and Ritt violated his First, Fourth, and Fourteenth Amendment rights, including his rights to free speech and freedom from unreasonable searches and seizures. Hollins also brought a claim of municipal liability under 42 U.S.C. § 1983, alleging that the City of Milwaukee and its former and current police chiefs failed to properly train city police officers, which led to the wrongful arrest and excessive use of force.

On October 2, 2006, the defendants filed a motion for partial summary judgment as a matter of law on several of Hollins' claims. Because Hollins maintained that he was unnecessarily beaten and sprayed with pepper spray by the officers, the parties agreed that there were triable issues of fact concerning Hollins' excessive force claim.

On May 31, 2007, the district court granted the motion in part. The court found that the City of Milwaukee and its police chiefs (former and current) were entitled to judgment as a matter of law on Hollins' § 1983 claim of municipal liability; accordingly, those defendants were dismissed as parties to the suit. The court also dismissed Hollins' First Amendment and due process claims against Libal and Ritt; however, his claim of unlawful arrest and detention as to Officer Libal, and excessive use of force, as to both Libal and Ritt, proceeded to trial. A jury found in favor of Libal and Ritt and the court entered judgment on September 2, 2008.

On appeal, Hollins contends that the district court improperly dismissed his § 1983 and First Amendment claims at summary judgment and further erred in several rulings it made during trial. He argues that triable issues of fact exist concerning whether the City of Milwaukee failed to properly train its police officers regarding the authority to remove, arrest, and forcibly detain a citizen; and whether Libal and Ritt violated his First Amendment right to photograph the police search. Hollins also argues that the district court erred by: (1) failing to ask potential jurors Hollins' proposed question concerning possible racial biases; (2) limiting the cross-examination of Officer Ritt concerning previous allegations of official misconduct; and (3) refusing to submit Hollins' proposed instruction to the jury concerning the scope of the relevant municipal ordinance and the lawfulness of his arrest. We first consider Hollins' claims dismissed at summary judgment, then proceed to the alleged errors at trial.

We review a district court's grant of summary judgment de novo. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008) (citations omitted). Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). We view the record in the light most favorable to the ...


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