United States District Court, E.D. Wisconsin
ESTATE OF DEREK WILLIAMS, JR., TANIJAH WILLIAMS, DEREK WILLIAMS III, and TALIYAH S. WILLIAMS, Plaintiffs,
CITY OF MILWAUKEE, JEFFREY CLINE, RICHARD TICCIONI, PATRICK COE, JASON BLEICHWEHL, ROBERT THIEL, TODD KAUL, ZACHARY THOMS, GREGORY KUSPA, CRAIG THIMM, CHAD BOYACK, and DAVID LETTEER, Defendants.
Stadtmueller U.S. District Judge
action arises from the death of Derek Williams, Jr.
(“Williams”) on July 6, 2011 while in the custody
of the City of Milwaukee Police Department
(“MPD”). See (Docket #1). Plaintiffs,
Williams' estate and surviving minor children, have sued
the City of Milwaukee (the “City”) and various
police officers whom they contend violated Williams'
constitutional rights in the events leading to his death.
Id. On April 24, 2017, Defendants filed a motion for
summary judgment, seeking dismissal of each of
Plaintiffs' claims. (Docket #35 and #36). Plaintiffs
responded to the motion on May 24, 2017, and Defendants
replied on June 7, 2017. (Response, Docket #55; Reply, Docket
#60). For the reasons explained below,
Defendants' motion must be denied in its entirety.
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).
review of the parties' factual briefing, the Court finds
that the following facts are material to Defendants'
motion. The Court presents a timeline of events
first, then addresses other relevant topics. As an aside,
Defendants have moved to strike certain expert opinions.
(Docket #67). That motion will be denied in its entirety.
Because it is helpful to understand the background facts
prior to analyzing the experts' opinions, the Court will
turn to that issue after it discusses the facts.
2011, Williams was a 22-year-old African-American man, with a
tall, thin build, and in generally good physical shape. He
and his girlfriend, Sharday Rose (“Rose”), had
three children, Tanijah, Derek III, and
Taliyah. On July 3, 2011, Williams was arrested and
jailed. He was released two days later. On the evening of
July 5, 2011, Williams went to Rose's home to visit her
and the children. Late that night, Williams and Rose's
stepfather, Tyrone Mathis (“Mathis”), left the
home to go buy snacks.
approximately 12:35 a.m. on July 6, 2011, Williams crossed
the intersection of North Holton and East Center Streets,
about two miles north of this District's courthouse. In
doing so, Williams approached Samuel Tooke
(“Tooke”) and Zhanna Godkin
(“Godkin”), who were walking home from the
Summerfest festivities. At the same time, Defendants Jason
Bleichwehl (“Bleichwehl”), Gregory Kuspa
(“Kuspa”), Jeffrey Cline (“Cline”),
and Zachary Thoms (“Thoms”) were driving in two
police cars near the intersection, proceeding north on Holton
Street. Cline and Thoms then turned east onto Center Street,
and observed Williams approaching Tooke and Godkin.
and Thoms thought Williams was attempting to rob Tooke and
Godkin. They believed that Williams had a gun, though he did
not. Williams did have a mask over his mouth “with a
sinister smile printed on it, which looked much like the
smile of the ‘Joker' character from the old Batman
series.” (Docket #56 at 12). He also held a cell phone
under his clothing which suggested that he was armed. Mathis,
however, states that he and Williams never discussed a
robbery and saw no indication that Williams intended to rob
Tooke and Godkin as he approached them. In fact, Williams had
told Mathis that he knew Godkin when they first saw the
and Thoms stopped their car in the street. When they did so,
Williams ran back across Holton Street towards an alley
between Holton and the next street to the west, Buffum. Cline
ran after him. Cline lost Williams in the alley and began
searching in the adjacent yards. Thoms, meanwhile, moved his
car onto Buffum Street, and Bleichwehl and Kuspa followed.
Bleichwehl joined Cline's search. Defendants Richard
Ticcioni (“Ticcioni”), Patrick Coe
(“Coe”), Robert Thiel (“Thiel”), Todd
Kaul (“Kaul”), Chad Boyack
(“Boyack”), Craig Thimm (“Thimm”),
and David Letteer (“Letteer”) (all defendant
police officers referred to collectively as the
“Officer Defendants”) responded to the scene to
set up a containment perimeter and assist in locating
Williams. Ticcioni and Coe in particular moved south down the
alley, checking for Williams in various backyards.
12:44 a.m., Ticcioni and Coe found Williams hiding under a
table in a backyard, curled up in a ball. This was
approximately eight minutes after Williams first ran away
from Cline. To reach that position, Williams had run about
200 to 300 yards and jump over a fence. When he saw Williams,
Ticcioni yelled for Williams to show his hands. Williams
complied. Bleichwehl, Cline, Thoms, Kuspa, Thimm, and Letteer
began moving to that area when they heard Ticcioni yell.
Thiel and Kaul also did so soon afterward.
Ticcioni attempted to grab Williams' arm, his hands slid
off because Williams was soaked with sweat. It was still over
70 degrees in the early morning hours of July 6, and Cline
says he was breathing heavily and sweating from his exertion.
Williams was also breathing heavily but Cline attributed this
to his flight. Ticcioni and Coe say that Williams briefly
struggled with them, so they pulled Williams down such that
he was laying on his back. Ticcioni then flipped Williams
over and put his knee in Williams' back as Coe applied
handcuffs. Thoms, Kuspa, Cline, and Thimm were present as
Ticcioni and Coe handcuffed Williams. Bleichwehl, Theil, Kaul, and
Letteer arrived shortly after.
handcuffing Williams, Ticcioni remained on top of him.
Williams complained that he could not breathe, so Ticcioni
shifted the majority of his weight off of Williams' back.
Ticcioni radioed to dispatch that Williams was in custody,
and during that transmission, Williams can be heard stating
that he cannot breathe. Ticcioni and Coe searched
Williams' pockets while he was on the ground. They then
pulled Williams up to his feet. During this time, Williams
repeated that he could not breathe. Once standing, Williams
went limp, so Thiel told Ticcioni and Coe to put him back on
the ground. Thiel gave this instruction so he could evaluate
Williams' condition and because “I don't want
my officers hurting their back holding dead weight.”
(Docket #54-11 at 89:15-17).
Kuspa, Thoms, Thimm, Letteer, and Kaul variously began
searching for the gun they believed Williams carried and went
back to check on the alleged victims. Plaintiffs claim that this
is no excuse for them to ignore Williams or claim that they
could not hear his breathing complaints. Kuspa, Coe,
Bleichwehl, and Ticcioni admit that they heard Williams, but
did not believe that he was having a medical emergency.
Cline, Thoms, Letteer, Theil, and Kaul deny hearing
Williams' requests for help.
Williams was returned to the ground, Thiel attempted to speak
with him. Williams was breathing heavily and sweating, his
eyes were closed, and he was unresponsive to
Thiel. Ticcioni felt that Williams was faking
distress in order to make it more difficult for officers to
remove him from the backyard, so he told Williams to
“stop messing around.” (Docket #54-14 at 4).
Thiel then performed a “sternum rub” on Williams,
which involves rubbing one's knuckles across a
person's sternum. This painful procedure is meant to
determine whether the person is truly unconscious.
Thiel's sternum rub caused Williams to open his eyes and
become responsive. Thiel claims that Williams said he was
“just playing around” with the alleged victims
and that they were his friends. (Docket #48 at 8). Theil and
Coe agreed with Ticcioni's conclusion that Williams was
simply resisting arrest.
and Coe were then able to bring Williams back to his feet and
move out of the backyard. Williams continued to claim that he
could not breathe. On the way out of the backyard, Thiel did
another sternum rub while Williams was standing. After that,
Thiel told Ticcioni and Coe to take Williams “out
front.” (Docket #69-1 at 83:9-16).
Giles (“Terri”) lived in a home near the yard
where Williams was hiding. From her porch, she saw Williams
after he was arrested. She could hear someone saying “I
can't breathe, ” though she could not identify the
source of the statement. She also heard the officers talking
and another woman screaming. Her son, Terrance Giles, also
saw Williams and heard him complain about being unable to
breathe, loudly enough that all of the officers could have
heard. He further heard the officers telling Williams to shut
up. While observing the scene from the porch, Terri's
boyfriend, Chauncey Wright (“Wright”), called
someone and told them that the police were killing someone,
and that this person said they could not
the time Williams was found in the backyard to when Thiel
performed the second sternum rub, none of the officers called
for medical assistance. Approximately five minutes elapsed
between the time Ticcioni called in that Williams was in
custody and the time dispatch asked for officers to meet with
the victims. Ticcioni and Coe then led Williams out of the
backyard towards Buffum Street. Cline, Bleichwehl, and Thoms
went with them. The distance to the front of the house was
approximately fifty feet. During the journey, Plaintiffs
claim that Williams went limp and had to be dragged by
officers, who told him to stop “playing games.”
(Docket #54-7 at 183:11-21). Defendants believe that Williams
dragged his feet and went limp intentionally to obstruct the
officers' efforts to move him. As Williams was being
moved, he repeated that he could not breathe.
group was blocked by a “for sale” sign on their
way to the street. Coe let go of Williams to move the sign,
and when he did, Williams fell face first onto the ground.
Defendants note that Williams was not intentionally dropped;
in their view, Williams himself caused the fall. Ticcioni and
Coe picked Williams back up by his arms and dragged him to
the front yard. Austin states that Williams' body was
limp and he “looked like he was already dead.”
(Docket #54-25 at 2). Ricardo Fernandez, another neighbor,
indicates the opposite was true; according to him, Williams
was taken to the car without difficulty. During this
movement, Williams continued to say that he could not
breathe, and the officers “cursed” at him (the
precise curse words used are not stated). Lachelle Brown
(“Brown”) saw what was happening and called 911,
informing the operator that Williams was yelling about being
unable to breathe and calling for help. The operator
responded that because police officers were on scene, only
they could call for medical assistance. Ticcioni, Coe, and
Bleichwehl do not recall Williams saying that he could not
breathe during the trip to the squad car.
the group reached the squad car, Ticcioni commanded Williams
to get in the back seat. Williams did not respond. Defendants
assert that Williams was then “bent . . . at the waist
and directed . . . into the rear seat”; Plaintiffs
contend that Williams was thrown into the vehicle. (Docket
#54-14 at 4; Docket #54-21 at 15:24-16:1). There were a
number of other officers present when Williams was put in the
car, including Cline and Kaul. None of the other officers,
however, discussed their prior observations of Williams'
condition with Cline, in whose car Williams had been placed.
sat in the driver's seat of his car and activated the
recording system therein. The audio recording did not start
until thirty seconds after the video recording was activated.
As soon as he entered the car, the video shows Williams
rocking back and forth and moving his mouth as if he was
saying something. Cline admits that he noticed Williams'
movements. Cline denies hearing any complaints about being
unable to breathe during this time. According to
Plaintiff's lip-reading expert Consuelo Gonzalez
(“Gonzalez”), Williams at one point said
“I'm gonna die.”
the audio was activated, Williams, Cline, and Bleichwehl
spoke at various times, though not in a form that could be
described as a dialogue. Cline first asked Williams for his
name. Williams did not answer the question, but instead
continually repeated that he could not breathe and said
“I'm dying.” He rocked around in the back seat
of the car while moaning, saying “sir”
frequently, and begging for help. At one point, Williams
specifically asked for an ambulance. Cline told Williams that
he was “breathing just fine” and commented that
he was “playing games.” (Docket #54-30 at 2).
Cline nevertheless rolled the rear window down and turned on
the air conditioner. Ticcioni and Bleichwehl were standing
beside the car while this went on.
dispute what the officers heard or did not hear Williams say.
However, while standing outside her house, Austin could hear
Williams' cries. Rose arrived at the scene during this
period and spoke briefly with Cline near the car. Cline
apparently told her that Williams had tried to rob a house.
Rose could hear her boyfriend saying that he could not
breathe and saw him rocking around in the back seat.
the entire time he was seated in the car, Cline did not
request medical assistance for Williams or even look at him,
either by turning his head or switching on a video feed at
the computer by the driver's seat. Cline, like the other
officers, thought Williams was engaged in petty
obstructionism rather than suffering genuine distress. Cline
eventually left the car to assist with evidence gathering,
and Bleichwehl took his place in the driver's seat. The
two had a brief exchange about Williams (with Ticcioni
present) but it did not concern Williams' breathing
complaints. By the time Bleichwehl asked for Williams'
name, Williams was slumped over in the seat and was
non-responsive. Williams' final actions were slight
jerking movements of his arms. Like Cline, Bleichwehl did not
use his computer to view the backseat, and only turned his
head about thirty seconds after Williams' final movement.
observing Williams motionless, Bleichwehl got out of the car
and opened the rear door. He checked Williams for a pulse and
breath, but neither were present. By this point, Bleichwehl
had not concluded that Williams' medical situation was
serious; he left open the possibility that Williams was
continuing to simply be uncooperative. Rose approached the
car from that side, but Bleichwehl told her to return to the
side of the street. Bleichwehl then went to the other side of
the car and lifted Williams to a seated position. He again
checked for a pulse but found none.
did not immediately seek medical assistance. Instead, he went
to another police car for help. Apparently, none was
forthcoming, as he returned to Cline's car alone.
Bleichwehl pulled Williams from the car and called for help
from other officers via his radio. Boyack responded and, for
the first time, requested medical help. This was
approximately fifteen minutes since Williams had been taken
into custody, twelve minutes after he was put in the back
seat of the car, and three minutes after Bleichwehl first saw
him motionless. Bleichwehl did not start applying CPR to
Williams until he found a plastic bag or mouth guard to use
as a barrier between their mouths. Many more officers came
to help and they rotated giving mouth-to-mouth and chest
compressions. Fire department paramedics took over at 1:08
a.m., twenty-four minutes after Williams was found under the
table in the backyard. At that point Williams still lacked a
pulse or breath. Paramedics were unable to revive Williams
and he was pronounced dead at 1:41 a.m.
Cause of Death and Related Medical Evidence
August 30, 2011, Milwaukee County Assistant Medical Examiner
Christopher Poulos (“Poulos”) signed the first
autopsy protocol for Williams, declaring that his death was
caused by sickle cell crisis due to Williams' sickle
cell trait,  and that the death was natural. A second
autopsy protocol was prepared on September 17 and 18, 2012.
In the second protocol, Milwaukee County Medical Examiner
Brian Peterson (“Peterson”) and Poulos revised
the cause of death, stating that the sickle cell crisis was
brought about by Williams' flight from and altercation
with police. They declared that the manner of death was
homicide. They moved mention of Williams'
sickle cell trait to the “other significant
conditions” section of the form.
second protocol went on to address other facts relevant to
Williams' death. After his death, Williams' blood
tested positive for marijuana. Peterson testified that
marijuana use alone would not cause sickling and result in
death, though smoking it may be one of many bodily stressors
which can induce sickling. Peterson said that other
stressors could include heat, dehydration, situational
stress, and hypoxemia-low blood oxygen-which may have stemmed
from Williams wearing the joker mask. Both protocols also
reported blunt force injuries to Williams' head, neck,
torso, and limbs, though the precise cause-whether force
applied by the officers or something else-is not stated. None
of those injuries were fatal and Peterson opined that they
did not trigger the crisis.
and Peterson's cause of death determination was based on
their review of tissue samples showing blood vessels
distended with sickled cells (such clumps are known as
“thrombi”), their belief that the sickling was an
ante-mortem process, and Peterson's review of the squad
car video. Alice Briones (“Briones”), a medical
examiner with the United States Armed Forces Medical Examiner
System, reviewed the autopsy reports at the FBI's
request. Briones found that while Williams' sickle cell
trait may have contributed to his death, the actual cause of
death was indeterminable. She did not see evidence
establishing the cause of sickling, whether it occurred
before or after death, or explaining why other areas of
Williams' body lacked thrombi.
next medical opinion on Williams' cause of death came
from Harry Jacob (“Jacob”), a hematologist and
oncologist who was called to testify at the inquest into
Williams' death. Jacob, an expert on sickle cell disease,
stated that those who bear the sickle cell trait can die of
it suddenly in the form of sickle cell crisis. Jacob
testified that it can take minutes to hours for the blood
cells to sickle. Jacob did not think that Williams would have
survived even if Defendants had taken him to the hospital
when they reached the street, instead of putting him in the
car. Jacob says that Williams would not have lasted long
enough for doctors to complete a blood transfusion, the only
sure treatment for sickle cell crisis.
James Arps (“Arps”), a Milwaukee Fire Department
paramedic, also testified at the Williams inquest. Arps
opined that if paramedics had been called earlier, when
Williams was responsive and had a pulse, their treatment
options would have been greater. These options would include
speaking with Williams about his condition, evaluating his
breathing and blood oxygen level, and treating him with
oxygen or other medicines. Paramedics are trained to
stabilize critical conditions in general and treat patients
on the way to a hospital. Thus, Arps concluded, whether or
not paramedics had specific knowledge that Williams carried
the sickle cell trait, their treatment approach would have
remained the same.
retained emergency room physician Trevonne Thompson
(“Thompson”) to review Williams' treatment
(or lack thereof). Thompson opines that had Williams been
provided medical treatment prior to losing consciousness, his
chances of survival were high. The rate of survival for
patients who present to a hospital's emergency room with
some measurable vital signs is over ninety-nine percent. In
Thompson's view, the stabilizing care paramedics could
have afforded a responsive and breathing Williams would
likely have kept him alive long enough to reach an emergency
room. Defendants counter with the opinion of Daniel DeBehnke
(“DeBehnke”), another emergency room physician,
who claims that establishing a likelihood of survival without
a definitive cause of death is speculative.
MPD Policies Related to Williams' Death
policy evidence can be divided into two sets. The first
supports their view that the MPD's training is deficient
with respect to suspects who report breathing complaints. The
second posits that the combination of a recurrent failure to
appropriately discipline officers, along with a code of
silence among MPD personnel, emboldened Defendants to ignore
Williams' complaints and act in concert to cover up their
wrongdoing after the fact. The Court discusses each set of
evidence in turn.
maintain that one of the reasons none of the officers sought
timely medical care for Williams was defective training.
Specifically, they note that Defendants were trained using
the principle that “if you can talk you can
breathe.” Defendants acknowledge that this principle
was part of their training and practice prior to the Williams
incident, and that it played a role in their response to
Williams' distress. Plaintiffs contend that this
principle, as well as general CPR training, was the entire
extent of MPD training on dealing with people in custody who
have respiratory problems.
dispute this, pointing to the plethora of topics addressed in
officer training regarding medical care for breathing
conditions. Officers are trained as first responders, which
includes evaluating people in medical distress and, inter
alia, checking their breathing. Officers are
specifically trained to assess strokes, seizures, diabetic
emergencies, poisoning, and allergic reactions, all of which
involve assessment of, and sensitivity to, breathing
problems. Further, the training materials provided to
officers provide guidance on evaluating a person's
ability to breathe. Defendants maintain that they knew that
being able to talk did not indicate the quality of a
person's breathing. They further note that prior to
Williams, no person had died while in MPD custody due to
sickle cell crisis.
Defendants note that in their time as MPD officers, each has
encountered someone who ran from them and, when apprehended,
stated that they could not breathe. Defendants attributed
those statements to the person's recent physical
exertion, not a medical issue, and did likewise in
Williams' case. Defendants do not dispute, however, that
there is a difference between being out of breath and being
unable to breathe.
counter by showing that the MPD knew its breathing-relating
training was deficient well before the Williams incident.
Police academy instructor Rupert Reilly
(“Reilly”) knew that the “if you can talk
you can breathe” principle was incorrect at least by
2009. The Milwaukee Fire Department updated this aspect of
its training at that time, but the MPD did not do so until
after Williams' death. Reilly also acknowledged that he
could not recall ever training officers on evaluating the
authenticity of a breathing complaint. Further, prior to
Williams' death, the MPD had no rules or standard
operating procedures dictating when officers should seek
medical attention for a suspect complaining of breathing
also point to prior incidents involving the MPD and persons
in respiratory distress. In September 2010, James Perry
(“Perry”) died in MPD custody with, among other
things, complaints of being unable to breathe. At one point,
an officer related the “if you can talk you can
breathe” principle to him. Milwaukee Chief of Police
Edward Flynn (“Flynn”) was briefed on the Perry
incident but made no changes to MPD training or regulations.
The MPD investigation into Perry's death found no
wrongdoing by any officer. Defendants maintain that the Perry
incident is distinguishable from Williams' because it
involved many other conditions, including multiple seizures,
drooling and spitting from the mouth, and at least some
professional medical attention (at a hospital and in jail).
to Williams himself, Flynn was briefed on the matter in the
days after July 6, 2011, which included watching the squad
car video. At his deposition in this case, Flynn called the
video “disturbing.” (Docket #54-46 at 33:17-19).
However, Flynn did not conclude that the officers had done
anything wrong, because their perception of Williams was
auditory rather than visual, and “they did not perceive
his breathing problems as authentic[.]” Id. at
36:1-8. Of course, Cline or Bleichwehl could have simply
switched on the video feed showing Williams in the back of
the car. Flynn claims that he did not know this was possible,
either in 2011 or at his deposition in April 2017.
Standard Operating Procedure (“SOP”) 090.10,
titled “Physical Restraint of Prisoners, ”
provides that officers should constantly monitor those in
custody, remain cognizant of changes in their medical
condition, and if treatment becomes necessary, radio for
assistance. Reilly teaches officers that this
monitoring must include visual and auditory contact with the
suspect. Flynn, nevertheless, claims that although no officer
looked at Williams during the entire eight minutes he was in
the car, SOP 090.10 was not violated.
and Kaul, as sergeants, were responsible for supervising the
Williams incident and were ultimately responsible for
Williams' well-being. Neither paid much attention to
Williams being handcuffed and were worried about other
matters, like finding a weapon and tracing Williams'
flight path. Both lost contact with Williams as he was led
out to the car, and they did not see Williams in the car.
Kaul did not come back to Williams until the medical
assistance call went out, and Theil did not return until
Williams was dead.
2012, in light of the Williams case, the Milwaukee Fire and
Police Commission (the “Commission”) recommended
that the MPD consider changes to officer training. In
September 2012, the squad car video was publicly released for
the first time. Later that month, Flynn gave an
interview with a local news station, wherein he acknowledged
that the officers had made an “error in judgment”
in responding to Williams, and that the MPD took
responsibility for not reacting more rapidly to William's
medical needs. Id. at 88:5-23. On the same day as
the interview, Flynn issued a memorandum to the entire MPD,
directing that in response to the Williams incident, officers
must seek medical attention for anyone they have contact with
who is in medical distress, including breathing problems.
This new rule removed officers' discretion to ignore or
discount a subject's respiratory complaints. A training
video was also shown at all MPD officer roll calls which
dispensed with the “if you can talk you can
breathe” principle and reiterated the new policy in
Code of Silence
Officer Defendants know that, according to MPD policy, they
must report the misconduct of their fellow officers to
supervisory personnel. They claim that they would report such
misconduct if they saw it and believe that other officers
would do the same. The Officer Defendants state that they did
not observe any misconduct throughout the Williams incident
and none is aware of any of their co-defendants failing to
report any such misconduct. Defendants also assert that all
citizen complaints received by the MPD are thoroughly
investigated and, if substantiated, discipline is imposed
disagree, arguing that the evidence in this case and the
recent history of the MPD reveals a “widespread and
deeply rooted code of silence within the MPD[.]”
(Docket #56 at 11). Plaintiffs describe the code's
There is compelling evidence . . . that the District 5 Late
Power Shift officers were engaged in a pattern and practice
of unconstitutional conduct against African American suspects
in their District for years before Derek Williams' death,
that this conduct was not revealed by these officers and was
not subjected to any discipline or supervision until well
after Derek Williams' death, that these officers,
including several of the main defendants herein, not only did
not reveal their knowledge and participation in that pattern
and practice before Williams' death, but also
participated in a cover-up of the true nature of his death,
all against a backdrop of the broader operation of the code
of silence in these and other preceding high profile police
the code to Williams' case, Plaintiffs first question the
validity of the MPD's internal investigation into
Williams' death. Neither Theil nor Kaul was interviewed
by MPD detectives, made any police reports on the incident,
or were disciplined in any way for their actions. Detectives
did not discuss with Cline the fact that he was sitting in
the car during the first portion of the video. In fact,
investigators did not initially identify Cline as a subject
of the investigation, and once that changed, they conducted
only one brief interview with him. The detective who
interviewed Ticcioni allowed him to review the
detective's report to “verify its accuracy.”
(Docket #54-52 at 2). Flynn believes the investigation was
“thorough and complete.” (Docket #54-46 at
180:15-22). In April 2012, the investigation was closed and
found no wrongdoing by any of the officers. Flynn, having
reviewed the investigation materials and the squad car video,
concurred in that assessment. Further, Flynn found no
violations of any MPD SOP in the Williams incident.
gave an interview to another news outlet in October 2012.
There, he made various comments, including that the
officers' conduct appeared “callous and uncaring,
” and that the public was “understandably
horrified.” (Docket #54-62 at 3). Flynn maintained,
however, that the officers were simply negligent; they had
not done anything willfully wrong, because they did not
believe Williams' complaints. Flynn also made statements
at a Commission hearing on the Williams case. In sum, these
were that his new September 2012 policy removed officers'
discretion in whether or not to believe someone when they
claim breathing difficulties. Flynn also emphasized that
going forward, the MPD should err on the side of caution in
seeking medical help for people in respiratory distress.
February 2013, the Williams inquest was concluded and the
jury's verdict recommended that Ticcioni, Cline, and
Bleichwehl be criminally charged for violating Wisconsin law
in failing to come to Williams' aid.The MPD,
however, did not reopen its investigation and determined that
its findings of exoneration should stand. Flynn agreed.
During his deposition, Flynn maintained that under
then-existing policy, it was not a violation of MPD policy to
not call for medical assistance absent “bleeding or a
clear inability to breathe or some clear undeniable evidence
of medical distress.” (Docket #54-46 at 157:2-158:15).
same timeframe as the Williams case, a strip search scandal
arose involving the MPD. In brief, the scandal involved a
certain group of MPD officers, also part of the District Five
late power shift, who unlawfully searched many citizens for
drugs or other illegal contraband by pulling down their
pants, or reaching into their underwear, in public places. In
October 2012, Flynn spoke at a press conference addressing
the scandal. The press conference announced that four of the
officers involved were being charged criminally for their
conduct. Flynn said he was “disgusted by the willful
actions of some of the officers in our police department and
I'm appalled by the willful inaction of some other
officers . . . for failing to stop egregious conduct.”
(Docket #54-60 at 2-3). The group of officers in question
included Cline, Bleichwehl, Kuspa, and Thoms. Though
Flynn's discussion of “egregious conduct”
appeared to reference only the strip search issue, not the
Williams' incident, he was aware that there was some
identity between the officers involved in each. (Docket
#54-46 at 98:12-22). When the strip search scandal broke in
March 2012, Flynn stated that the matter was a serious
training issue, and his belief was echoed by the officers who
had been charged.
cooperated in the strip search investigation after being
granted immunity from prosecution. Plaintiffs note that he
was later called a “snitch motherfucker” by
Vagnini (one of the four officers who were prosecuted) and
had a bullet placed in his locker. Defendants minimize the
snitch comment, as Thoms claimed it arose from a time when he
had “tr[ied] to help Officer Vagnini when he was
inebriated.” (Docket #54-71 at 129:11-23). Besides the
four officers who were criminally charged, no other officers
of the District Five power shift or their supervisors were
disciplined as a result of the strip search scandal, and all
but Bleichwehl remain working as officers or are on paid
disability leave. Flynn reviewed at least some of the strip
search investigations and approved their findings that no
discipline should be imposed. Finally, Flynn approved
multiple promotions for Michael Brunson and Edith Hudson,
while knowing that each had presided over the District Five
power shift during their rash of illegal strip searches.
remainder of Plaintiffs' evidence on the MPD's
failure to discipline and code of silence is best presented
in a bulleted timeline:
i. In 1991, the City mayor formed a citizen commission to
review police-community relations. The citizen
commission's investigation led to its determination that
a “code of silence” existed within the MPD.
ii. Between 2000 and 2007, Jason Mucha (“Mucha”)
worked on the District Five power shift. He was involved in
dozens of alleged uses of excessive force, theft, and
planting of drugs. Mucha was not, however, disciplined for
any of this, and was in fact encouraged to continue his
street activities by his supervisors. Mucha was promoted to
sergeant in 2005 and became the supervisor of the District
Five power shift.
iii. In 2004, Frank Jude (“Jude”) was beaten by
MPD officers. In 2006, officer Nicole Belmore testified
against her fellow officers who did the beating. She was
retaliated against severely, including being called a rat,
having her property vandalized, making obvious and
coordinated attempts to avoid her presence, interfering with
her radio communications, and refusing to provide backup in
iv. In June 2006, Richard Jerome (“Jerome”) of
the Police Assessment Resource Center issued a report titled
“Promoting Police Accountability in Milwaukee:
Strengthening the Fire and Police Commission.” (Docket
#54-65). Jerome found that the Commission's citizen
complaint system was “broken beyond repair.”
Id. at 52. One of the goals of the system is to
identify trends of police misconduct, but the atypically low
complaint sustainment rate revealed that the system was not
working. The Commission further failed to audit MPD policies,
citizen complaints received by it or the MPD, or civil
actions filed against the MPD or its officers.
v. In January 2009, the local radio station WUWM published an
article on an interview with Flynn after his first year as