JULIAN J. MILLER, Plaintiff-Appellant,
ALBERTO GONZALEZ and SHANE STANGE, Defendants-Appellees
Argued October 29, 2012
Appeals from the United States District Court for the Eastern District of Wisconsin. No. 09-C-1012 -- Rudolph T. Randa, Judge.
For Julian J. Miller (11-2906, 12-2950), Plaintiff - Appellant: David Michael Friebus, Attorney, Baker & Hostetler Llp, Chicago, IL.
For ALBERT GONZALEZ, Officer, SHANE STANGE, Officer (11-2906, 12-2950), Defendants - Appellees: Tony Matthew Dunn, Attorney, John V. O'Connor, Attorney, Alia, Dumez, Dunn & Mcternan, Kenosha, WI.
Before WOOD, Chief Judge, CUDAHY and ROVNER, Circuit Judges. CUDAHY, Circuit Judge, dissenting in part.
Rovner, Circuit Judge.
Julian Miller began the evening of October 24, 2003 at his mother's wedding reception, and ended it in the back of a police cruiser with a broken jaw. Miller blamed two police officers from the Kenosha, Wisconsin police department for intentionally breaking his jaw and sued them under 42 U.S.C. § 1983 for violating his civil rights by using excessive force in effectuating his arrest. The district court granted the police officers' motions for summary judgment and Miller appeals.
Before entering his mother's 9:00 p.m. wedding reception, Miller and a friend smoked marijuana. At the reception, Miller
drank three shots of vodka in an hour and a half. When the reception ended at approximately 10:00 p.m. or 10:30 p.m., Miller dropped off his girlfriend and then headed to a local bar in Kenosha. Before he entered the bar, he smoked some more marijuana and then topped off that high with three more Heineken beers before leaving for another bar at around 1:00 a.m. Apparently unready to go home, Miller headed off to one more bar, where he drank a few more beers and then bought a final Heineken for the road before heading off to a gas station where he planned to use the pay phone to call his girlfriend.
Just as Miller was driving to the gas station, the Kenosha police department received a call about a stabbing that occurred about two blocks away from the same gas station. Kenosha Police Officer Albert Gonzalez searched the surrounding neighborhood for the suspect while Officer Shane Stange interviewed the witness to the stabbing. That witness, who lived on the floor below where the stabbing occurred, told Stange that at around 1:40 a.m. he heard a knock at a side door that led to the upstairs apartment. After hearing noises, the witness went out to the front porch where he saw someone wearing a dark hooded sweatshirt run around the house and then head west on 44th Street. The witness's upstairs neighbor shouted from the front yard, " Call the cops. I've been stabbed." The victim told the witness, who told Stange, that although the person who stabbed him was wearing a ski mask, he believed it was his ex-wife's boyfriend.
The sergeant in charge informed Gonzalez that the suspect fled west on 44th Street (the street on which the home was located) for one block and then headed south on 21st Avenue. Gonzalez walked that route until he reached the gas station one block west and one block south--at the corner of 21st Avenue and 44th place. As Gonzalez approached the gas station, he saw Miller's red car idling in a corner of the gas station. And as he got closer, he saw Miller exit the car drinking a beer. In answer to Gonzalez's inquiry, Miller denied seeing anyone running in the area. Gonzalez asked Miller his name to which Miller, knowing he was on probation, was driving without a license, and had been seen exiting his car with a beer, replied with the fake name, " Julius Johnson." When Gonzales asked Miller if he was on probation, Miller admitted that he was indeed on probation for burglary and disorderly conduct. Miller, who was becoming increasingly fidgety and nervous over the course of the exchange, placed his hands in his front pockets. Gonzalez instructed Miller to take his hands out of his front pockets and not to run. Miller switched his hands from his front pockets to his back pockets, took a step backwards and took off running with Gonzalez in pursuit.
Serendipitously, Miller headed north on 21st Avenue and then east on 44th Street, directly back toward the scene of the stabbing. Gonzalez's sergeant, who had been at the gas station, radioed Stange, who was still at the scene of the stabbing, that Gonzalez was pursuing a suspect and that they were headed in his direction. Stange emerged from the house in time to see Gonzalez chasing Miller east on 44th Street straight toward him. As Stange came down from the porch and identified himself as a police officer, Miller darted to the left and jumped a chest high chain link fence into a small yard.
As with his other choices that evening, this one was ill conceived. The yard was only six to seven feet wide by eight to ten feet deep. It was enclosed on the south and east sides by the chest high chain link fence, on the west ...