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Newman v. Vagnini

United States District Court, E.D. Wisconsin

October 18, 2016



          J.P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         On August 12, 2016, the defendants Michael Vagnini (“Vagnini”), Jeffrey Cline (“Cline”), Paul Martinez (“Martinez”) (collectively the “Officer Defendants”), and the City of Milwaukee (the “City”) filed a motion for partial summary judgment as to the plaintiff Willie James Newman's (“Newman”) Monell claims. (Docket #19). The defendants submitted a combined statement of facts and brief in support, as well as supporting affidavits. (Combined Statement of Facts and Brief in Support, Docket #20; Affidavits, Docket #21, #22, #23, #24, #25, and #26). On September 12, 2016, Newman offered his brief in opposition to the motion, a response to the statement of facts, his own statement of facts, and an affidavit of counsel attaching various exhibits. (Brief in Opposition, Docket #27; Response to the defendants' Statement of Facts (“RSOF”), Docket #28; Newman's Statement of Facts, Docket #29; Affidavit, Docket #30). On September 29, 2016, the defendants submitted a reply in support of their motion, a response to Newman's statement of facts, and additional affidavits. (Reply in Support, Docket #31; Response to Newman's Statement of Facts (“RPSOF”), Docket #34; Affidavits, Docket #32 and #33). The motion is fully briefed and, for the reasons explained below, it will be granted.


         Federal Rule of Civil Procedure 56 provides the mechanism for seeking summary judgment. Rule 56 states that the “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A “genuine” dispute of material fact is created when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court construes all facts and reasonable inferences in a light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). In assessing the parties' proposed facts, the Court must not weigh the evidence or determine witness credibility; the Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chicago Transit Authority, 618 F.3d 688, 691 (7th Cir. 2010).

         3. RELEVANT FACTS

         The facts are largely undisputed, and those that are disputed are generally not material to the disposition of this motion. The Court will provide a discussion of relevant topics, noting the parties' disputes where appropriate. In accordance with the standard of review, the facts are viewed in a light most favorable to Newman.

         3.1 The Search

         In the early morning of April 30, 2010, Newman was sitting in his car in a restaurant parking lot when multiple police squad cars entered the lot. RPSOF ¶¶ 2-5.[1] Vagnini and other officers approached Newman's car and ordered him out of it at gunpoint. RPSOF ¶ 6. Newman testified that after he got out, “I was searched by an officer, then Officer Vagnini said the search wasn't good enough. Therefore, he walked up to me, unbuckled my belt, my pants, pulled my pants down to my knees with my underwear, and he went in my private area, my genitals, with his bare hands, and he searched me[.]” RPSOF ¶ 7.[2]

         3.2 District Five Policing

         The Milwaukee Police Department's (“MPD”) District Five covers an area of the city which is ninety percent African-American. RPSOF ¶ 8. Beginning in 2010, an anti-gang unit comprised entirely of white police officers, including the Officer Defendants, was created to do “proactive policing” in District Five. RPSOF ¶¶ 9-10, 12-13. This unit was led by Sergeant Jason Mucha (“Mucha”).[3] RPSOF ¶ 11. On a typical day, “proactive policing” involved use of the “train” strategy. RPSOF ¶¶ 14-16.[4] In the train strategy, the lead car, usually Vagnini, would be responsible for selecting vehicles to stop or persons to be interviewed. RPSOF ¶ 18.[5] The train strategy led to more traffic stops and individual interviews, which in turn increased the likelihood of searches being conducted. RPSOF ¶ 23. The train strategy was discontinued in District Five on March 20, 2012, because the anti-gang unit officers were suspended by the MPD. RPSOF ¶ 17.[6] By March 21, 2012, the media began widespread reporting of the strip search scandal. RSOF ¶¶ 30-31.

         3.3 Chief Flynn's Involvement

         Milwaukee Police Chief Edward A. Flynn (“Flynn”) took that position in 2008. Once the anti-gang unit began operating, Flynn attended meetings with Vagnini and other officers. Those officers would report on the meetings to the other members of the anti-gang unit. RPSOF ¶ 19. This included Jacob Knight (“Knight”), with whom they discussed the directives issued in those meetings. RPSOF ¶ 20. They told Knight that Flynn and the other command staff “wanted dots on a map, ” meaning traffic stops and individual interviews, “so they could say that something was being done by the police.” RPSOF ¶ 21. This coincided with the strategy employed after Flynn became chief in 2008, which was that after a serious crime occurred in an area, the police would “saturate” the area, conducting additional traffic stops and interviews. RPSOF ¶ 22. The defendants claim that this strategy may not have preceded Flynn taking office. RPSOF ¶ 22.

         Flynn did not, however, know that the train strategy was being employed by the anti-gang unit until 2012. RPSOF ¶ 24. If he had, Flynn would have stopped its use because it is not an effective use of limited police resources. RPSOF ¶ 25. Newman concedes that Flynn was not actually aware of the strip search issue prior to March 2012, but maintains that he should have been aware. RSOF ¶¶ 32-33.

         In March 2012, after the strip search scandal broke, Flynn told the media that the issue of strip and body cavity searches was a “serious training issue.” RPSOF ¶ 29.[7] He further commented that the strip search scandal was “an egregious violation of public trust, ” that the officers involved “went rogue, ” and that they “broke the law” and violated MPD policy. RPSOF ¶ 46. Nevertheless, Flynn had approved multiple promotions for the supervisors of District Five. RPSOF ¶ 46.

         3.4 MPD Investigation

         In early 2012, Captain David Salazar (“Salazar”) was assigned to the MPD Internal Affairs division, where he investigated citizen complaints against police officers. RSOF ¶¶ 7-8. On January 31, 2012, Salazar received two complaints directed at Vagnini for unlawful search practices during a traffic stop. RSOF ¶¶ 9-11. Salazar reviewed Vagnini's records which revealed similar allegations from March 5, 2010, and sometime in 2011. RSOF ¶¶ 12-13, 15. The March 5, 2010 complaint was investigated, found unsubstantiated, and closed. RSOF ¶ 14. The 2011 complaint was investigated and turned over to the Milwaukee County District Attorney for prosecutorial review, but no charges resulted, and that complaint was not otherwise pursued. RSOF ¶¶ 16-19.

         Upon review of these complaints, Salazar determined that they might show a pattern of unlawful behavior by Vagnini. RSOF ¶ 20. He ordered that the old complaints be opened and reinvestigated, as well as an investigation of the new complaints. RSOF ¶¶ 21-22. Salazar kept his superiors informed of the status of his investigation and also contacted the Milwaukee County District Attorney for advice on the possibility of criminal charges against Vagnini. RSOF ¶¶ 25-26.

         Flynn was first fully briefed regarding the Vagnini investigation on March 19 or 20, 2012. RSOF ¶ 27. By that date, Newman had not filed any complaints against the Officer Defendants.[8] RSOF ¶¶ 23-24. Immediately after the briefing, Flynn suspended Vagnini and the rest of the anti-gang unit. RSOF ¶ 28. In 2013, Flynn instituted MPD-wide retraining on policies related to searches. RPSOF ¶ 41.

         3.5 Officers' Criminal Prosecutions and Civil Lawsuits

         In late 2012, Vagnini, Knight, Jeffery Dollhopf, and Brian Kozelek were criminally prosecuted for their roles in illegally searching persons in District Five. RPSOF ¶ 34.[9] Vagnini was charged with various sexual assault and illegal search felonies and sentenced to over two years in prison. RPSOF ¶¶ 35, 37, 39. At his sentencing, Vagnini apologized for his actions and said he had “misinterpreted the law.” RPSOF ¶ 38. Knight was charged with lesser felonies and received a much lighter sentence. RPSOF ¶¶ 36, 40. Numerous civil lawsuits have been filed and settled in this ...

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