United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING DEFENDANT'S MOTION
FOR PARTIAL SUMMARY JUDGMENT
E. JONES United States Magistrate Judge.
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.
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.
City has now moved for summary judgment, arguing that there
is no dispute of material fact concerning the essential
elements of Mr. Green's Monellclaims 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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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
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.
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. ¶¶ 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 ...