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Conley-Eaglebear v. Miller

United States District Court, E.D. Wisconsin

February 17, 2016

ERIC S. CONLEY-EAGLEBEAR, Plaintiff,
v.
FRANK MILLER, ROB RASMUSSEN, and KURT WAHLEN, Defendants.

DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 40), DENYING PLAINTIFF’S MOTION TO GRANT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 54), GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 55), AND DISMISSING CASE

HON. PAMELA PEPPER United States District Judge

The plaintiff is a Wisconsin state prisoner, representing himself. He filed this lawsuit under 42 U.S.C. §1983, claiming that defendant City of Racine Police Officer Frank Miller used excessive force when he shot the plaintiff, that defendant City of Racine Police Officer Rob Rasmussen directed or acquiesced in the excessive use of force, and that defendant Racine Police Chief Kurt Wahlen failed to properly train his officers. Dkt. No. 8. The parties have filed cross-motions for summary judgment. For the reasons explained in this order, the court will deny the plaintiff’s motion for summary judgment, and grant the defendants’ motion for summary judgment.

FACTS

A. Preliminary Matter

In this facts section, the court includes relevant facts from the Defendants’ Proposed Findings of Fact and from the Plaintiff’s Proposed Findings of Fact. The court includes only those facts that cite to supporting materials in the record. See Fed.R.Civ.P. 56(c)(1); Civil L.R. 56(b)(1)(C)(i) (E.D. Wis.). This means that the court has not included in this section many of the facts from the Plaintiff’s Proposed Findings of Fact, because many of them did not cite to the record.[1] Likewise, most of the plaintiff’s disputes of the defendants’ proposed facts do not cite to the record as required. See Fed.R.Civ.P. 56(c)(1); Civil L.R. 56(b)(2)(B) (E.D. Wis.). The court does not include in this section the plaintiff’s “disputes” that do not cite to the record.

B. Relevant Facts

On June 3, 2010, at 23:12 hours, defendant Racine Police Officer Miller received a call on his personal cell phone from Officer Freidel on his work cell phone. Dkt. No. 58 ¶ 1. Officer Freidel told defendant Miller that a confidential informant had contacted him with a tip about an incident that was in progress. Id. at ¶ 2. Officer Freidel had previously contacted defendant Miller with reliable and credible information from a confidential informant. Id. at 58 ¶ 3.

Officer Freidel told defendant Miller that his confidential informant just observed a white male, who was with two white females, pull up his shirt and display a handgun tucked in his waistband. Id. at ¶ 4. Officer Freidel told defendant Miller that the white male with a gun had just left an apartment building in the 2600 block of Mt. Pleasant Street. Id. at ¶ 5. Defendant Miller told Officer Freidel that he and defendant Racine Police Officer Rasmussen already were in the area. Id. at ¶ 6. Officer Freidel asked defendant Miller to remain in the area. Id.

Defendant Miller was observing a parking lot between 2100 Romayne Avenue and 2610 Mt. Pleasant Street with a pair of binoculars. Id. at ¶ 7. Defendant Miller received several more calls from Officer Freidel at about 23:21 hours. Id. at ¶ 8. Defendant Miller observed an individual walking in the parking lot of 2610 Mt. Pleasant. Id. The individual, later identified as the plaintiff, was a white male wearing a black t-shirt and black shorts. Id. at ¶ 9. He was walking with two females. Id. All three were walking towards the entrance of 2100 Romayne Avenue. Id.

Defendant Miller noticed that as the plaintiff walked, he had his right hand in his right front pocket. Id. at ¶ 10. Defendant Miller had attended two training schools where part of the curriculum was identifying armed individuals. Id. at ¶ 11. As defendant Miller watched the plaintiff walking, he matched the behavior of what defendant Miller had been taught to look for when attempting to identify an armed individual. Id. at ¶ 12. The plaintiff walked distinctively and differently from a normal-type walk. Id. at ¶ 13. At that time, defendant Miller knew that the plaintiff had something heavy, possibly a gun, in the waistband of his shorts, causing him to hold his pants up by keeping his hand in his pocket as he walked. Id. at ¶ 14.

The plaintiff admits that he had a firearm tucked in his waistband underneath his shirt while walking with the two females. Id. at ¶ 15. The plaintiff described the gun as “a .44, ” and stated that when it was at his waist the barrel would be at his knee. Id. at ¶ 16.

After observing how the plaintiff walked, and having considered the information received from Officer Freidel, defendant Miller decided they should stop the plaintiff and identify him for the safety of the community. Id. at ¶ 17. At 23:15 hours, while talking with Officer Freidel, defendant Miller initiated a call for service at his location for a suspicious man. Id. at ¶ 18.

Defendant Miller drove his squad into the parking lot where the plaintiff was, with his headlights and overhead lights off. Id. at ¶ 19. Defendant Rasmussen followed him into the parking lot and parked behind him. Id. Defendant Miller noticed that the plaintiff had made it to the doorway of 2100 Romayne Avenue. Id. at ¶ 20. As soon as Miller exited his squad car, the plaintiff began to run. Id. Before the plaintiff began to run, defendants Miller and Rasmussen did not see that the plaintiff had a weapon. Dkt. No. 42 at ¶ 6.

Defendant Miller yelled “stop” as the plaintiff ran toward the entrance. Dkt. No. 58 at ¶ 21. As defendant Miller entered the building, he ran past one of the females who had been with the plaintiff, and again yelled “stop.” Id. at ¶ 22. The second female who had been with the plaintiff was ahead of him, and running. Id. at ¶ 23. As defendant Miller ran past her, she pushed him. Id. Defendant Miller decentralized her, and continued his pursuit of the plaintiff. Id. As defendant Miller pursued the plaintiff, the plaintiff reached a second hallway and turned right down that hallway. Id. at ¶ 24. Defendant Miller was ten to fifteen feet behind the plaintiff when the plaintiff made the turn. Id. at ¶ 25. As defendant Miller made the turn, he saw the plaintiff near a set of double doors. Id. Defendant Miller saw the plaintiff exit through the doors. Id. at ¶ 26. As the plaintiff was either partially in the hallway, exiting the door, or immediately after exiting the door, the plaintiff made an extremely exaggerated draw motion with his right hand from his pants. Id. at ¶ 27. Based on his training and experience, along with the information he had received from Officer Freidel, defendant Miller believed that the plaintiff was drawing a pistol from his waistband. Id. at ¶ 28. Defendant Miller observed a gun in the plaintiff’s right hand, and followed the plaintiff out the door. Id. at ¶ 29.

As defendant Miller exited the door, the plaintiff looked back at him over his right shoulder and began to turn left. Id. at ¶ 30. Defendant Miller briefly lost sight of the gun, as the plaintiff’s side was now facing him in a bladed fashion. The plaintiff was still moving away from defendant Miller when this occurred. Id. at ¶ 31. Defendant Miller then noticed the barrel of the gun coming up from the plaintiff’s left side as he continued to turn left. Id. at ¶ 32. The barrel of the plaintiff’s gun did not make it to the point of being pointed at defendant Miller, but it appeared to be moving in that direction. Id. at ¶ 33. Defendant Miller now feared for defendant Rasmussen’s and his own life, or that someone in the general area was in danger, and felt he had to take immediate action. Id. at ¶ 34. At that time, defendant Miller didn’t know the plaintiff’s motives or intentions. Id. at ¶ 35.

Defendant Miller then discharged his firearm two times. Id. at ¶ 36. The plaintiff was about five feet from a wooden fence when defendant Miller fired. Id. at ¶ 37. The plaintiff took one more step after defendant Miller fired, and crashed into the fence. Id. The plaintiff fell face down to the ground. Dkt. No. 58 ¶ 38. After the plaintiff was on the ground, defendant Miller noticed defendant Rasmussen to his left. Id. Defendant Rasmussen began to move toward the plaintiff, in an arc toward his head. Id. at ¶ 39. Defendant Miller began to move toward the plaintiff, and as he got closer, he saw the gun lying under the backside of the plaintiff’s right ...


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