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Estate of Williams v. City of Milwaukee

United States District Court, E.D. Wisconsin

August 4, 2017

ESTATE OF DEREK WILLIAMS, JR., TANIJAH WILLIAMS, DEREK WILLIAMS III, and TALIYAH S. WILLIAMS, Plaintiffs,
v.
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.

          ORDER

          J. P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         This 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).[1] For the reasons explained below, Defendants' motion must be denied in its entirety.

         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. FACTUAL BACKGROUND

         3.1 Relevant Facts

         Upon review of the parties' factual briefing, the Court finds that the following facts are material to Defendants' motion.[2] 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.

         3.1.1 Timeline

         In July 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.[3] 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.

         At 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.

         Cline 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 couple.

         Cline 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.

         At 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.

         When 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.[4] Bleichwehl, Theil, Kaul, and Letteer arrived shortly after.[5]

         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).

         Cline, 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.[6] 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.

         Once 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.[7] 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.

         Ticcioni 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).

         Terri 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 breathe.[8]

         From 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.

         The 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.

         Once 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.

         Cline 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.”

         Once 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.”[9] 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.

         Defendants 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.

         During 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.

         Upon 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.

         Bleichwehl 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.[10] 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.

         3.1.2 Cause of Death and Related Medical Evidence

          On 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[11] due to Williams' sickle cell trait, [12] 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.[13] They moved mention of Williams' sickle cell trait to the “other significant conditions” section of the form.

         The 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.[14] 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.

         Poulos 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.

         The 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.

         Lieutenant 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.

         Plaintiffs 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.

         3.1.3 MPD Policies Related to Williams' Death

         Plaintiffs' 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.

         3.1.3.1 Respiratory Distress

         Plaintiffs 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.

         Defendants 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.

         Relatedly, 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.

         Plaintiffs 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 issues.

         Plaintiffs 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).

         Turning 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.

         MPD 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.[15] 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.

         Theil 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.

         In July 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.[16] 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 Flynn's memorandum.[17]

         3.1.3.2 Code of Silence

         The 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 accordingly.

         Plaintiffs 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 application here:

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 misconduct cases.

Id.

         Applying 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.

         Flynn 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.

         In 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.[18]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).

         In the 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.[19]

         Thoms 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.

         The 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 the field.
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 ...

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