United States District Court, E.D. Wisconsin
J.M. and ESTATE OF DONTRE HAMILTON, Plaintiffs,
CITY OF MILWAUKEE and CHRISTOPHER E. MANNEY, Defendants.
Stadtmueller, U.S. District Judge
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).
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.
STANDARD OF REVIEW
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).
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).
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. 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).
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
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.
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
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.
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.
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.
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).
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.
Actually Litigated and Necessary to the Judgment
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.
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.
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.
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). 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
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). 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).
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. 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.
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.
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.
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”).
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.
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 §
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.
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
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.
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.
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.
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.
Subsequent Remedial Measure
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
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.”).
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.
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