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Green v. Newport

United States District Court, E.D. Wisconsin

February 23, 2017

DAVIN GREEN, Plaintiff,


          DAVID E. JONES United States Magistrate Judge.

         On November 26, 2014, Davin Green was sitting in the driver's seat of his vehicle in the parking lot of an auto parts store when he was stopped by Jonathon Newport, a police officer with City of Milwaukee Police Department (MPD). Officer Newport directed Mr. Green out of the vehicle so that he could be frisked. The ensuing pat-down search uncovered a handgun in Mr. Green's waistband.

         Thereafter, Mr. Green filed a complaint pursuant to 42 U.S.C. §§ 1983 & 1988 and the Fourth and Fourteenth Amendments to the Constitution, alleging that Officer Newport and the City of Milwaukee violated his right to be free from unreasonable searches and seizures when Officer Newport stopped and frisked him without reasonable suspicion. The Court already has granted summary judgment in favor of Mr. Green against Officer Newport.

         The City has now moved for summary judgment, arguing that there is no dispute of material fact concerning the essential elements of Mr. Green's Monell[1]claims against the City. Having considered the arguments presented by counsel in their briefs and at the oral hearing, the Court determines that the City is entitled to judgment as a matter of law with respect to Mr. Green's Monell claims. The Court therefore will grant the City's motion, and the City will be dismissed as a defendant in this action.

         I. Factual Background

         The Court provided a detailed recitation of the facts in its Decision and Order granting summary judgment in favor of Mr. Green. See ECF No. 42 at 2-5. The Court briefly summarizes those facts here and provides additional facts as needed to resolve the City's summary judgment motion.

         On November 26, 2014, Officer Newport and his partner responded to a suspicious person complaint at an O'Reilly Auto Parts store located in Milwaukee. Decision & Order 2. An employee of the store had reported to police that a Mercury Grand Marquis drove around the store's parking lot about five times. When Officer Newport came within view of the parking lot, he observed the Marquis parked in front of the store next to a Chevrolet Malibu. Id. at 3-4. An individual, later identified as Joe Lindsey, was standing outside the front passenger door of the Malibu. After he saw the officers, Ms. Lindsey leaned into the front passenger window of the Malibu for about one or two seconds. Id. at 4. Believing that Mr. Lindsey had either concealed or recovered a weapon when he leaned into the Malibu, Officer Newport conducted an investigatory stop of the vehicles and their occupants.

         Mr. Green was sitting in the driver's seat of the Malibu. Officer Newport directed Mr. Green to exit the vehicle so that he could be frisked. A pat-down search uncovered a handgun in Mr. Green's waistband. Id. at 5.

         Mr. Green was charged in Wisconsin state court with unlawfully carrying a concealed weapon. See Evidentiary Hearing Transcript in State v. Green, No. 14CM4886 (Milw. Cty. Cir. Ct. Apr. 20, 2015), ECF No. 13-1. At Mr. Green's suppression hearing, Officer Newport testified that he was familiar with the City's standard operating procedure concerning frisks. Hr'g Tr. 29:12-30:11. He also testified that he had received training on how to conduct frisks only once. See Defendant's Response to Plaintiff's Additional Proposed Findings of Fact ¶¶ 1-4, ECF No. 72. Officer Newport did not recall that training containing any legal elements. See id.

         Notwithstanding Officer Newport's testimony, all MPD police officers receive extensive training. See Proposed Findings of Fact in Support of Defendant's Motion for Partial Summary Judgment ¶ 4, ECF No. 66. The training begins with a twenty-two to twenty-three-week intensive police recruit training course at the Milwaukee Fire and Police Training Academy. Id. ¶ 5. After successfully completing the recruit training, police officers are assigned to a district police station where they work with and receive on-the-job training from a field training officer. Id. ¶¶ 6-8. Officers also receive annual, “in-service” training on various topics, including searches and seizures and the state DOJ's Defense and Arrest Tactics manual. Id. ¶¶ 9, 17. The manual summarizes Terry v. Ohio and provides the legal standards for performing a Terry stop and a frisk. Id. ¶¶ 46-51; see also Exhibit B to Declaration of Edward Flynn, ECF No. 64-2.

         Officer Newport successfully completed recruit and field training. Def.'s PFOF ¶¶ 20, 26-28. Through this training, Officer Newport was taught the legal standard applicable to stops and frisks. Id. ¶¶ 22-24. Officer Newport also attended two in-service training sessions pertaining to stops and frisks: the first session focused on the characteristics of an armed gunman; the second session, which was taught by an Assistant United States Attorney, focused on the constitutional principles surrounding searches and seizures Id. ¶¶ 29-37; see also Exhibit A to Declaration of Jonathon Newport, ECF No. 65-1.

         The MPD, under the leadership of Chief Edward Flynn, has established policies and standard operating procedures to provide officers guidance on a variety of issues, including the constitutional requirements for stops and frisks. Def.'s PFOF ¶¶ 1-3, 7-8, 10-16. For example, the MPD maintains an SOP on “Citizen Contacts, Field Interviews, and Search and Seizure.” Id. ¶ 15; see Exhibit C to Declaration of Edward Flynn, ECF No. 64-3. This SOP indicates that all searches or seizures must be based on reasonable suspicion or probable cause (as required by the Fourth Amendment), contains guidance on performing Terry stops and pat-down frisks, defines “reasonable suspicion” and the “plain feel doctrine, ” and provides a list of factors an officer may rely on in justifying a Terry stop. See Def.'s PFOF ¶¶ 42, 52-60; see generally Flynn Decl. Ex. C. All officers receive training on and are required to comply with the SOPs. Def.'s PFOF ¶¶ 3, 7-8, 10-16, 43.

         All MPD officers also receive training on and are bound by the department's Code of Conduct. Id. ¶¶ 3, 11; see also Exhibit A to Declaration of Edward Flynn, ECF No. 64-1. The Code requires that police investigations be based upon, at a minimum, reasonable suspicion or an actual or possible offense or crime. Def.'s PFOF ¶ 44; Flynn Decl. Ex. A ¶ 1.04.

         Officer Newport was trained on and understood that he was required to be familiar with MPD policies and SOPs. Def.'s PFOF ¶ 25. At the time he stopped and frisked Mr. Green, Officer Newport understood the MPD policies concerning stops and frisks-that is, he understood that any stop and frisk must be supported by reasonable suspicion based on the totality of the circumstances. Id. ¶ 40-41.

         Furthermore, MPD officers are routinely evaluated. Id. ¶ 61. New officers receive constant supervision and on-the-job training from field training officers. Id. ¶ 62. These field training officers provide guidance and evaluation to new officers after each shift. Id. ¶ 63. Officers also are evaluated by other supervisors-monthly for new officers and biannually for others. Id. ¶¶ 64-72. As part of the evaluation process, supervisors can impose remedial training on any areas where the officer is not performing up to MPD standards. See id.

         In or around January 2015, Officer Newport was subject to a biannual review. See Def.'s Resp. to Pl.'s Add'l PFOF ¶¶ 7-12. The evaluation indicated that Officer Newport was “performing at exemplary rate” and was signed by his supervising sergeant, supervising lieutenant, and commanding officer. Id.; see also Exhibit 2 to Declaration of William F. Sulton, ECF No. 67-2. With respect to the incident involving Mr. Green, the evaluation states as follows: “On November 26, 2014 PO NEWPORT and partner responded to a suspicious person complaint. Upon arrival an [sic] subject stop was conducted and the subject was in possession of a black Sig Sauer .40 Caliber Pistol. The subject was arrested for CCW.” Id.

         II. Procedural Background

         Mr. Green filed the present action on June 29, 2015. See Complaint, ECF No. 1. The matter was randomly assigned to this Court, and all parties consented to magistrate judge jurisdiction. See 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b).

         Mr. Green's complaint states two causes of action: (1) unlawful stop and frisk against Officer Newport, and (2) unlawful stop and frisk against the City. Complaint ¶¶ 40-59. The Complaint alleges that Officer Newport violated Mr. Green's Fourth Amendment rights when he knowingly stopped Green without reasonable suspicion to believe that Green was committing or had committed a crime and knowingly frisked Green without reasonable suspicion to believe that Green was armed and dangerous. Id. ¶¶ 40-43. The Complaint further alleges that, to the extent Officer Newport believed that Mr. Green was armed and dangerous, this belief was unreasonable, irrational, and motivated by racial bias. Id. ¶ 44.

         As to the second cause of action, the Complaint alleges that the City failed to train Officer Newport on the legal standards applicable to stops and frisks, failed to require that Newport review its policies on when to conduct stops and frisks, failed to supervise Newport while he was conducting stops and frisks, failed to evaluate Newport's performance during stops and frisks, and failed to provide post-evaluation instruction to Newport to ensure that citizens were not being subjected to unlawful stops and frisks. Id. ΒΆΒΆ 46-52. The Complaint similarly alleges that it is the practice and custom of the City not to train police officers on its policies concerning stops and frisks, not to require police officers to review its policies on stops and ...

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