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J.M. v. City of Milwaukee

United States District Court, E.D. Wisconsin

April 12, 2017

J.M. and ESTATE OF DONTRE HAMILTON, Plaintiffs,
v.
CITY OF MILWAUKEE and CHRISTOPHER E. MANNEY, Defendants.

          ORDER

          J.P. Stadtmueller, U.S. District Judge

         1. INTRODUCTION

         This litigation arises from the death of Dontre Hamilton (“Hamilton”) on April 30, 2014. On that date, Hamilton was shot and killed by Defendant Christopher E. Manney (“Manney”), an officer with the Milwaukee Police Department (“MPD”), after a physical altercation between the two. Plaintiffs, Hamilton's estate and his surviving minor child, filed suit against Manney and the City of Milwaukee (the “City”) on April 27, 2016. (Docket #1).

         On February 1, 2017, the parties each filed motions for summary judgment. (Plaintiffs, Docket #45; Defendants, Docket #48). As of March 15 and March 17, 2017, each respective motion became ripe for decision. See (Briefing on Plaintiffs' motion, Docket #56 and #75; Briefing on Defendants' motion, Docket #78 and #88). As Plaintiffs' motion is narrower than Defendants', the Court will address it first. The Court discusses the facts relevant to the respective motions separately, to ensure that the proper standard of review is preserved for each.

         2. STANDARD OF REVIEW

         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 Auth., 618 F.3d 688, 691 (7th Cir. 2010). Internal inconsistencies in a witness's testimony “create an issue of credibility as to which part of the testimony should be given the greatest weight if credited at all.” Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1170 (7th Cir. 1996) (quoting Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986)). The non-movant “need not match the movant witness for witness, nor persuade the court that [their] case is convincing, [they] need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).

         3. PLAINTIFFS' MOTION

         Plaintiffs seek judgment on their second cause of action, which asserts that Manney unreasonably searched Hamilton in the course of events preceding his death. (Docket #1 at 38).

         3.1 Relevant Facts

         The operative facts of Plaintiffs' motion are largely undisputed; the parties' disagreement is chiefly legal. On October 15, 2014, Milwaukee Chief of Police Edward A. Flynn (“Flynn”) fired Manney for “failure to have reasonable suspicion prior to conducting a pat-down search, ” and “failure to adhere to training and procedures regarding Use of Force considerations.” (Docket #49-1 at 1). That same day, Flynn filed a complaint with the Milwaukee Board of Fire and Police Commissioners (“FPC”) regarding Manney's discharge.[1] The complaint stated, inter alia, that Manney “failed to adhere to [department policy on pat-down searches] when he failed to have reasonable suspicion that [Hamilton] was armed with a weapon and posed a threat to him or others prior to conducting a pat-down search, and acted contrary to training he received on February 22, 2012, specific to the engagement of homeless individuals.” (Docket #49-2 at 4).[2]

         Manney appealed his discharge on October 17, 2014. The FPC held a hearing on the matter spanning from March 19 to March 23, 2015. Plaintiffs state that the FPC hearing “was essentially a court trial between Manney and the MPD.” (Docket #55 at 11). Defendants maintain that there were differences between the hearing and a standard trial, including that the commissioners were entitled to ask questions of witnesses, and that the matter was based on an appeal of a disciplinary order and was conducted according to procedures mandated by state law. Id. at 11-12. Defendants further assert that the MPD was not a party to the proceeding, but rather it was solely between Manney and Flynn. Id.

         The hearing officer himself stated that “this process is conducted very much like a court trial.” (Docket #49-4 at 6). The hearing proceeded in two phases: first, to determine “whether there was in fact a rule violation” by Manney as asserted by Flynn, and second, whether “the discipline [was] appropriate based on the circumstances of what happened and based on Officer Manney's history with the department, his career, his performance, etc.” Id. at 7-8. Both sides were represented by counsel, gave opening and closing statements, and offered evidence. The parties introduced exhibits and elicited witness testimony on direct and cross examination. Manney himself testified at both phases of the hearing.

         The FPC upheld Flynn's action by unanimous written decision on April 28, 2015 (the “FPC Decision”). The FPC Decision posed various “findings of fact” and “conclusions of law” addressing the parties' presentations at the hearing. The FPC agreed with Flynn that Manney lacked reasonable suspicion before conducting a pat-down search of Hamilton. Defendants assert that the FPC Decision relates to compliance with MPD rules, not the Fourth Amendment, and reassert that Flynn and the FPC's decisions were based on incorrect sets of fact. (Docket #55 at 15). The FPC Decision noted that it “must find by a preponderance of the evidence that there is just cause to sustain the charges.” (Docket #49-9 at 8). The FPC then applied seven standards mandated by statute to assist in making that determination, and found each standard was met by a preponderance of the evidence. Id. at 8-12. Defendants point out that the FPC had additional considerations beyond those seven standards, including the seriousness of Manney's rule violations, Manney's work history, and damage to the public's trust in the MPD. Id.

         Manney appealed the FPC Decision to the Milwaukee County Circuit Court (the “Circuit Court”) in accordance with state law. Manney and the FPC were the parties to the appeal. Both parties filed briefs with the Circuit Court. Manney also filed a petition for writ of certiorari with the Circuit Court, which was similarly briefed. The Circuit Court issued its decision on both in a combined order on July 22, 2016.

         Therein, it described Manney's argument against MPD policy, namely that he felt “it imposes an extra limitation on a police officer's right to conduct a weapons pat-down, a limitation that isn't imposed by the state statute or constitutional law principle that authorize such searches.” (Docket #49-12 at 6). MPD policy mandates that to conduct a pat-down search, an officer must believe that 1) the target poses a threat to the officer's safety, and 2) the target possesses weapons. Id. at 6. Manney asserted that only the first element was required by the Supreme Court's applicable precedent, Terry v. Ohio, 392 U.S. 1 (1968). The Circuit Court disagreed, citing Terry's holdings that an officer must suspect “that the persons with whom he is dealing may be armed and presently dangerous.” Id. at 30. It further found that Wisconsin law is consistent with Terry. (Docket #49-12 at 7). The Circuit Court concluded that MPD policy did not conflict with the constitutional prerequisites of a pat-down search, and thus the FPC did not apply an improper legal standard to its decision in that regard. Id. at 8.

         As to the facts of Manney's appeal, the Circuit Court discussed the parties' vigorous disputes thereof. Id. at 9-13. The Circuit Court noted that it was not at liberty “to weigh the evidence anew; the [FPC's] choice of which evidence to accept [or reject] is conclusive.” Id. at 9-10. It ultimately concluded that the Decision had an adequate factual basis. Id. at 13. Manney appealed that order on August 11, 2016, but only as it related to his petition for a writ of certiorari. See Christopher E. Manney v. Bd. of Fire & Police Comm'rs for the City of Milwaukee, 2016-AP-1598, Case History, available at: https://wscca.wicourts.gov. That appeal is still pending. Id.

         3.2 Analysis

         Plaintiffs argue that, in light of the Decision and Manney's unsuccessful appeals thereof (the “Discharge Proceedings”), Manney must be precluded from contesting whether he had reasonable suspicion to conduct a pat-down search of Hamilton. The direct basis for their motion is the Circuit Court's July 22, 2016 judgment and order (the “Judgment”). This Court must give a state court judgment preclusive effect just as it would a federal judgment, and because the Judgment was issued by a Wisconsin court, it must apply Wisconsin's law on preclusion. See First Weber Group, Inc. v. Horsfall, 738 F.3d 767, 772 (7th Cir. 2013); Donald v. Polk County, 836 F.2d 376, 382 (7th Cir. 1988).

         Issue preclusion prevents a party from re-litigating “an identical issue of law or fact in a subsequent action.” Mrozek v. Intra Fin. Corp., 699 N.W.2d 54, 61 (Wis. 2005). The doctrine “wards off endless litigation, ensures the stability of judgments, and guards against inconsistent decisions on the same set of facts.” Gentilli v. Bd. of Police & Fire Comm'rs of City of Madison, 680 N.W.2d 335, 344 (Wis. 2004). There are two requirements for issue preclusion to take effect. First, “the question of fact or law that is sought to be precluded actually must have been litigated in a previous action and be necessary to the judgment.” Id. Second, the Court must “conduct a fairness analysis to determine whether it is fundamentally fair to employ issue preclusion given the circumstances of the particular case at hand.” Id. The Court will address each requirement below, as well as Defendants' other arguments in opposition to Plaintiffs' motion.[3]

         3.2.1 Actually Litigated and Necessary to the Judgment

         The reasonableness of Manney's pat-down search of Hamilton was actually litigated at each stage of the discharge proceedings. An issue is “actually litigated” when “it is ‘properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined.'” In re Estate of Felt, 647 N.W.2d 373, 376-77 (Wis. Ct. App. 2002) (quoting Restatement (Second) of Judgments § 27 cmt. d (1980)). First, Flynn's discharge order stated directly that Manney's search was unreasonable. Second, after holding an evidentiary hearing on the matter, the FPC found that a preponderance of the evidence supported Flynn's decision. Finally, the Circuit Court's Judgment found that the FPC Decision had an appropriate basis in fact and law. While the propriety of the search was not the only issue addressed in the Discharge Proceedings, it was their primary focus. At each stage of the Discharge Proceedings, the presiding authority expressly decided that Manney's search was unreasonable.

         Defendants argue that while the reasonableness of the search was at issue in the Discharge Proceedings, it was assessed in light of Manney's violation of MPD policy. They maintain that none of the decisions held that the search was unreasonable pursuant to constitutional standards. Specifically, Defendants contend that the Fourth Amendment reasonableness analysis reviews the totality of the circumstances presented to the officer at the time of the search, while Flynn and the FPC considered subsequent events in arriving at their conclusions. Thus, in Defendants' view, no preclusive effect can attach to the Judgment.

         As the Judgment shows, Defendants are incorrect. The Circuit Court held that MPD policy, Wisconsin law founded on Terry, and Terry itself all held Manney to the same reasonableness standard for his pat-down search. (Docket #49-12 at 6-8). Based on that uniform standard, the Circuit Court went on to affirm the FCP's determination that the search was unreasonable. Id. at 9-13. Though this was admittedly based on a deferential standard of review, that does not change the fact that the reasonableness issue was actually litigated in line with Terry and the Fourth Amendment.

         The Court further notes that it must focus on the Judgment itself, as issue preclusion may only attach to a judgment. See Mrozek, 699 N.W.2d at 61 (“In order for issue preclusion to be a potential limit on subsequent litigation, the [issue] actually must have been litigated in a previous action and be necessary to the judgment.”) (emphasis added).[4] Defendants barely mention the document, instead leveling criticism at Flynn and the FPC for applying an improper legal standard. Even assuming their focus on Flynn and the FPC was correct, it is meritless. The Seventh Circuit recently articulated the Terry standard as simply “requiring the officer to hold a reasonable suspicion that the subject is ‘armed and dangerous[.]'” United States v. Williams, 731 F.3d 678, 686 (7th Cir. 2013) (quoting Terry, 392 U.S. at 27). Flynn's discharge order nearly parroted that language. The FPC decision applied the MPD policy, which as already noted matched Terry's rule. (Docket #49-9 at 10) (“The policy allows for a pat-down for weapons if the [officer] believes the suspect has weapons and poses a threat to the [officer's] or another person's safety.”).

         No decisionmaker in the Discharge Proceedings considered post-incident events in evaluating Manney's compliance with this standard. At his deposition in this matter, Flynn consistently testified that Hamilton's death was a factor bearing on punishment, not Manney's reasonable suspicion (or lack thereof). (Docket #61-6 at 35:15-36:5) (“Also, you know, this may come up otherwise, but every officer who is found not to've had articulable suspicion is not subject to firing. In the code of conduct we have also has in it aggravating and mitigating factors. And one of the most significant aggravating factors is the ultimate degree of harm that arose from your error. . . . [T]he degree of harm was a loss of life.”); see also Id. at 143:5-10 (“Given the fact that, ultimately, the degree of harm was death, that's why the punishment was termination.”). Similarly, the FPC Decision limits its discussion of post-incident events to evaluating whether Flynn's decision to terminate Manney was appropriate. (Docket #49-9 at 11-12).[5] Finally, the Judgment separated its analysis on Manney's reasonable suspicion and the propriety of his discharge. (Docket #49-12 at 9-13, 19-21).

         At all stages of the Discharge Proceedings, then, the same pat-down search standard was applied to Manney's conduct. To the extent Defendants continue to argue that the standard was wrong, or that it was incorrectly applied to Manney, this is precisely what issue preclusion is meant to prevent.[6] The issue was essential to the Judgment and the rest of the Discharge Proceedings and cannot be re-litigated here. Similarly, Defendants cannot re-litigate the facts upon which Flynn's discharge order, the FPC decision, or the Judgment itself were based. Their time to argue that the “totality of the circumstances” favored Manney was in those proceedings.

         3.2.2 Fundamental Fairness

         Having established that the reasonableness of Manney's search was actually litigated in the Discharge Proceedings and was necessary to the Judgment, the Court moves to the Mrozek fairness analysis. Wisconsin courts weigh a number of factors in assessing fairness, including:

(1) whether the party against whom preclusion is sought could have obtained review of the judgment;
(2) whether the question is one of law that involves two distinct claims or intervening contextual shifts in the law;
(3) whether there are apt to be significant differences in the quality or extensiveness of the two proceedings such that relitigation of the issue is warranted;
(4) whether the burden of persuasion has shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; and
(5) whether matters of public policy or individual circumstances would render the application of issue preclusion fundamentally unfair, including whether the party against whom preclusion is sought had an inadequate opportunity or incentive to obtain a full and fair adjudication of the issue in the initial litigation.

Mrozek, 699 N.W.2d at 61-62. Factors one, two, and four are questions of law, and factors three and five require exercise of the Court's discretion. Id. at 62.

         As to the first factor, Manney has exhausted all review of the Discharge Proceedings. His appeal to the Circuit Court, and the resulting Judgment, are the final say on the matter pursuant to the governing Wisconsin statutes. Wis.Stat. § 62.13(5)(b) (allowing Flynn to file charges against Manney), (d)-(em) (establishing FPC hearing procedure), and (I) (permitting appeal to the Circuit Court, stating that “[i]f the order of the [FPC] is sustained it shall be final and conclusive.”). Manney has utilized all levels of review available to him.

         Defendants counter that Manney is in fact appealing the Judgment. As noted previously, this matter is currently pending in the Wisconsin Court of Appeals. Yet Defendants' position obscures the nature of the appeal. When Manney took the Discharge Proceedings to the Circuit Court, he filed two actions, one for review of the FPC Decision pursuant to the above-cited Wisconsin statute, and another for a writ of certiorari. See (Statutory Review, Case No. 2015-CV-3881, Docket #49-10; Writ, Case No. 2015-CV-5081, Docket #49-11). The Circuit Court consolidated the cases for purposes of issuing its Judgment. His currently pending appeal is of the denial of certiorari, not of the Circuit Court's affirmance of the FPC Decision. (Docket #57-5 at 1, 10) (citing the writ action case number, and introducing the appeal as “a Certiorari appeal”).

         The Gentilli case is instructive, where a similar scenario unfolded. Gentilli, a fire department employee, was charged with possessing and using cocaine by the fire chief. Gentilli, 680 N.W.2d at 337. The charges were heard by the FPC, which confirmed the charges and recommended firing him. Id. Gentilli then filed two parallel cases in the circuit court, as did Manney: one for his statutory appeal, pursuant to Section 62.13(5)(I), and one for a writ of certiorari. Id. The circuit court ruled on the statutory appeal first and concluded, as did our Circuit Court, that the discharge was supported by just cause. Id. at 337-38. The circuit court then dismissed the certiorari action because “all of the issues raised in the petition were encompassed within the scope of the companion statutory appeal.” Id. (quotation marks omitted). Gentilli appealed the dismissal of his certiorari action. Id.

         The Gentilli court cited Section 62.13(5)(I) in holding that the circuit court's disposition of the statutory appeal was final and not subject to further review. Id. at 338-39. The court's main purpose was to determine whether a separate certiorari action was permitted in light of the 1993 amendments to the statutory action procedure (holding that it was allowable). Id. at 339-45. Relevant to our purposes, the court went on to find that in the case of parallel statutory and certiorari actions, an appeal of the certiorari action is strictly limited to whether the FPC “kept within its jurisdiction and proceeded on a correct theory of the law.” Id. at 344. As confirmed late last year, this means that when parallel actions are pursued, and the statutory appeal fails in the circuit court, the employee cannot re-argue whether he violated the applicable departmental rules on certiorari appeal. Vidmar v. Milwaukee City Bd. of Fire Police Comm'rs, 889 N.W.2d 443, 449 (Wis. Ct. App. 2016); see also Umhoefer v. Police and Fire Comm'n of City of Mequon, 552 N.W.2d 412, 415-16 n.4 (Wis. Ct. App. 2002) (“Umhoefer filed both a statutory review pursuant to Wis.Stat. § 62.13(5)(I) and a certiorari review before the circuit court. However, this court is limited to those issues brought under certiorari review . . . . [I]f a circuit court sustains the commission's determination, the commission's decision ‘shall be final and conclusive.' Thus, this court is without jurisdiction to review Umhoefer's claims brought pursuant to § 62.13(5).”).

         Manney's pending appeal, then, is quite limited, and he cannot use it to challenge the FPC's or Circuit Court's determination that he lacked reasonable suspicion to search Hamilton. Defendants might have contended that the remaining avenues to challenge the FPC Decision, jurisdiction and applying an incorrect theory of law, work to keep the question unsettled. Plaintiffs attempt to head this argument off at the pass, stating in their opening brief that the FPC's jurisdiction is not subject to challenge (as noted above, it is provided by statute), and that the “theory of law” at issue is whether Manney was properly discharged, not whether his search of Hamilton was reasonable. Defendants make no attempt to respond to these points; their entire argument is to cite to Manney's appellate briefs in the certiorari action, wherein he contends that “the FPC proceeded on incorrect theories of law and that he was denied Due Process of law, and that therefore, the decisions of the circuit court and the FPC should be reversed in all respects.” (Docket #56 at 2). Such an underdeveloped position, which fails to meaningfully address Plaintiffs' contentions, is at best unpersuasive, and at worst concedes the point. See Palmer v. Marion County, 327 F.3d 588, 597-98 (7th Cir. 2003) (failing to present an argument to the district court may result in the argument being waived or, in the case of a plaintiff, the relevant claim being deemed abandoned). In light of Defendants' lacking argument, the finality of the statutory appeal, and the interaction of the statutory and certiorari appeals, the Court finds that Manney's pending appeal does not affect the finality of the Judgment with respect to the reasonableness of his search.

         Returning to the fairness factors, the second factor has already been resolved. The law applied in the Discharge Proceedings was both internally consistent and in accordance with Supreme Court precedent. See supra Part 3.2.1. The third factor also favors Plaintiffs. The FPC hearing had all the makings of a court trial and gave Manney a forum to present his case nearly identical to that which he would receive in this Court. Likewise, his appeal to the Circuit Court functioned similarly to an appeal from a trial court. Other than passing references to potential inadequacies in their response to Plaintiffs' statement of facts, (Docket #55 at 11-12), Defendants raise little concern with the quality or extensiveness of the Discharge Proceedings. The Court must conclude that Defendants' lack of opposition is a tacit agreement that the Discharge Proceedings afforded Manney adequate process.

         Defendants do, however, note one difference between the Discharge Proceedings and normal civil litigation: the qualified immunity defense. Manney asserts the defense here, where he could not in the Discharge Proceedings. This observation, while true, is of no moment. As discussed below, Manney is not entitled to qualified immunity at this juncture. See infra Part 4.2.5. The facts describe a violation of Hamilton's constitutional right to be free of a suspicionless search, and that right was clearly established by Terry nearly fifty years ago.

         Defendants do not mention the fourth factor. Again, without opposition, the Court finds that it favors Plaintiffs. Plaintiffs' burden of proof in this Court is no greater than that imposed on Flynn in the Discharge Proceedings. Plaintiffs must prove that Manney's search was unreasonable by a preponderance of the evidence. Seventh Circuit Pattern Civil Jury Instruction 1.27. After its hearing, the FPC was bound to assess whether there was “just cause” for Manney's discharge. Wis.Stat. § 62.13(5)(em). One of the seven standards it applied (see supra pg. 5) was “[w]hether [Flynn] discovered substantial evidence that the [Manney] violated the [MPD search policy].” Id. The Court concludes that the need for “substantial” evidence was at least as burdensome as establishing the unreasonableness of the search as “more probably true than not true.” Seventh Circuit Pattern Civil Jury Instruction 1.27.

         As to the fifth factor, neither public policy nor Manney's circumstances make the application of issue preclusion unfair in this instance. Gentilli explained the policy basis for making Manney's statutory appeal final at the circuit court level:

The public policy undergirding the finality of the statutory appeal is to balance the benefits of a speedy judicial process against the right of an accused to mount a full defense. Finality limits the negative effects on public employees of long, drawn-out proceedings while allowing the accused a fair hearing.

Gentilli, 680 N.W.2d at 339. The FPC hearing gave Manney a fair hearing, allowing him to mount his defense as he chose (save for qualified immunity). His incentive to fully and fairly litigate the reasonableness of his search could scarcely have been greater, as he was seeking to continue his thirteen-year career as a police officer and absolve himself of serious charges.

         In sum, it is fundamentally fair to apply issue preclusion on the reasonableness of Manney's search of Hamilton. That issue was fully litigated in the Discharge Proceedings and was resolved against Manney in a final judgment. Allowing Manney to re-litigate the issue here threatens inconsistency between the Judgment and the outcome of Plaintiffs' unreasonable search claim in this case.

         3.2.3 Subsequent Remedial Measure

         Defendants' only remaining argument is that the entirety of the Discharge Proceedings are inadmissible in this matter as a subsequent remedial measure. Federal Rule of Evidence (“FRE”) 407 prohibits admission of evidence of “measures [ ] taken that would have made an earlier injury or harm less likely to occur” to prove negligence or culpable conduct: in this case, using the Discharge Proceedings to prove the unreasonableness of Manney's search. Fed.R.Evid. 407. Defendants' theory fails for misapprehension of the “remedial measure” at issue. Plaintiffs' request for issue preclusion is based the Discharge Proceeding findings that Manney's search was unreasonable. This is not itself a remedial measure; the remedial measure was Manney's termination.[7]

         An excellent explanation of this issue is given by Judge Simon from the District of Oregon. Aranda v. City of McMinnville, 942 F.Supp.2d 1096 (D. Ore. 2013). In Aranda, the court was faced with a similar scenario: a police department conducted a “use of force review” after an officer allegedly used excessive force on an arrestee. Id. at 1100, 1102. The defendants sought to strike that evidence from the summary judgment record as violating, inter alia, FRE 407. Id. at 1102. The court described the applicable law:

By it terms, this rule is limited to measures that would have made the harm less likely to occur; it does not extend to post-incident investigations into what did occur. “The reason [for finding Rule 407 inapplicable] is that such reports or inspections are not themselves remedial measures, and do not themselves even reflect decisions to take or implement such measures.” Christopher Mueller & Laird Kirkpatrick, 2 FEDERAL EVIDENCE § 4:50, at 77 (3d ed. 2007). Although “such reports or inspections might represent the first or most preliminary steps that might eventually lead to decisions to make or implement changes, ” they are not themselves excluded under Rule 407. Id.; accord Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 429-32 (5th Cir. 2006); Prentiss & Carlisle Co., Inc. v. Koehring-Waterous Div. of Timberjack, Inc., 972 F.2d 6, 10 (1st Cir. 1992) (“The Rule prohibits ‘evidence of ... subsequent measures, ' not evidence of a party's analysis of its product. . . .The fact that the analysis may often result in remedial measures being taken (as occurred here) does not mean that evidence of the analysis may not be admitted.”); Rocky Mountain Helicopters, Inc. v. Bell Helicopters Textron, 805 F.2d 907, 918-19 (10th Cir. 1986) (“It would strain the spirit of the remedial measure prohibition in Rule 407 to extend its shield to evidence contained in post-event tests or reports. . . .[S]uch tests are conducted for the purpose of investigating the occurrence to discover what might have gone wrong or right. Remedial measures are those actions taken to remedy any flaws or failures indicated by the test.”).
County Defendants point out that the Ninth Circuit has applied Rule 407 in an excessive force case to exclude evidence regarding a police department's internal disciplinary proceeding. See Maddox v. City of L.A., 792 F.2d 1408, 1417 (9th Cir. 1986). There is a distinction, however, between the actual disciplining of officers for their conduct, which could constitute a remedial measure, and the investigation that precedes a disciplinary process. See, e.g., Wilson v. Beebe, 770 F.2d 578, 590 (6th Cir. 1985) (Rule 407 does not exclude a post-shooting report prepared by police department because “[t]he report did not recommend a change in procedures following the shooting; it was a report of that incident and nothing more”); cf. Specht v. Jensen, 863 F.2d 700, 701-02 (10th Cir. 1988) (citing Maddox in applying Rule 407 to city's press release that acknowledged officers had exercised poor judgment and reported that disciplinary action would be taken: “[t]he release thus sets out remedial measures taken by the City to prevent the recurrence of the poor judgment the investigation revealed, and is therefore within the ambit of Rule 407”).

Id. at 1103-04; see also In re Chicago Flood Litig., No. 93-C-1214, 1995 WL 437501, at *5 (N.D. Ill. July 21, 1995) (“City statements regarding the actions of its employees are not themselves remedial; instead, they merely explain why the city elected to pursue disciplinary action. The court will consider a request by the city to redact references to disciplinary actions taken against particular employees from any statement offered by plaintiffs.”); see Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 430-31 (5th Cir. 2006) (“[B]y themselves, post-accident investigations would not make the event ‘less likely to occur;' only the actual implemented changes make it so.”).

         The Court concurs in Aranda's assessment of FRE 407 in this context. Put another way, the fact that Manney was fired is irrelevant to the reasonableness of his search. The remedial act-firing Manney-is not inextricably intertwined with the investigation leading to that act, namely the determination in the Discharge Proceedings that his search was unreasonable. Flynn and the FPC decided Manney's “liability, ” that he violated the MPD search policy by unreasonably searching Hamilton, first. They then determined, using post-incident events having no bearing on “liability, ” that his punishment should be discharge from the MPD. Per the text of FRE 407, Manney's firing “would have made [Hamilton's] injury . . . less likely to occur, ” but the individual determination that he lacked reasonable suspicion in this case would not. Fed.R.Evid. 407.

         Finally, permitting admission of this evidence comports with the spirit of FRE 407. Its “major purpose is to avoid discouraging injurers from taking such remedial measures as the accident may suggest would be appropriate to reduce the likelihood of future accidents-and discouraged they would be if they were penalized in court by having the measures treated as a confession of fault in not having been taken earlier.” Kaczmarek v. Allied Chem. Corp., 836 F.2d 1055, 1060 (7th Cir. 1987). Defendants characterize the issue as “the City of Milwaukee [being] forced to incur civil liability as a direct result of the attempt by Chief Flynn and the FPC to prevent future harm to the public.” (Docket #56 at 12). The MPD and the City are not being “penalized in court” for the action that was meant to protect the public from future harm-firing Manney.

         3.3 ...


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