United States District Court, E.D. Wisconsin
WILLIAM J. POLSTER, Plaintiff,
CITY OF WAUWATOSA, JEFFREY NEWMAN, RUSSELL RICHARDSON, THOMAS ORLOWSKI, JENNIFER FARINA, PHONEXAY YOTHSACKDA, and JEFFREY FARINA, Defendants.
Stadtmueller, U.S. District Judge
action arises from Plaintiff William J. Polster's arrest
and detention by certain City of Wauwatosa (the
“City”) police officers on June 26, 2016.
See (Docket #1). Plaintiff was detained and then
arrested for carrying firearms near a school, and claims that
the incident violated his rights under the First, Second, and
Fourth Amendments. Id. On September 1, 2017,
Defendants filed a motion for summary judgment. (Docket #22).
Plaintiff responded on October 2, 2017, (Docket #28), and
Defendants replied on October 16, 2017 (Docket #32). For the
reasons explained below, Defendants' motion must be
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).
review of the parties' factual briefing, the Court finds
that the following facts are material to Defendants'
motion. The Court construes the facts in
Plaintiff's favor, as required by the standard of review,
but nevertheless notes the parties' disputes where
is a self-described “Second Amendment and civil right
activist, ” and considers himself a rational,
reasonable person possessing sound judgment. (Docket #29 at
12; Docket #34 at 1). He has had a concealed carry
(“CCW”) license from the state of Wisconsin since
2012. (Docket #29 at 3). On June 26, 2016, he went to Madison
Park (the “Park”) in the City, openly carrying an
AK47 pistol and a Glock pistol (as well as a large
knife).In particular, the AK47 pistol was slung
over Plaintiff's shoulder and rested against his stomach.
Plaintiff was motivated to go to the Park to protest the
shooting of an armed man by police just three days prior.
Plaintiff also desired “to see ‘an appropriate
police response, ' and whether his First, Second and
Fourth Amendment constitutional rights would be
respected.” (Docket #29 at 3).
at the Park, Plaintiff sat at a table and browsed his cell
phone. At all times relevant, Plaintiff was within 1, 000
feet of Madison Elementary School. Plaintiff says he was not
being disruptive and never reached for his guns. Defendants
counter that they received a citizen complaint about
Plaintiff's presence. The citizen called 911 because she
feared for her safety and that of her children, who were
playing in the Park. Jeffrey Newman (“Newman”)
was the first City officer to respond to the call, and was
accompanied by a number of officers from the Milwaukee Police
approached, Newman observed adults and children playing near
where Plaintiff was sitting. Newman retrieved his AR15 rifle
and approached Plaintiff, asking him to put his weapons down.
Plaintiff refused, stating that he would not touch his
weapons while the officers had theirs at the
ready. Newman asked Plaintiff what he was doing
at the Park, and Plaintiff responded that he was simply
sitting at the table. Newman asked Plaintiff for
identification. Plaintiff asked whether he was required to
provide identification, and Newman conceded that he was not.
Newman then asked if Plaintiff had a CCW license. Plaintiff
countered that he did not think one was necessary, because he
was not carrying any concealed weapons. Newman did not insist
on a direct answer to his question, but instead continued the
conversation about Plaintiff's armament. Plaintiff did
not actually confirm whether or not he had a CCW license.
asked Plaintiff to wait for a moment until his lieutenant
could arrive. While they waited, Newman and Plaintiff
continued to converse. During this time, Newman acknowledged
that Plaintiff did not appear to be causing a disturbance in
the Park. Other officers showed up and surrounded Plaintiff,
most with their guns drawn. After about a minute, City
officer Lieutenant Jeffrey Farina (“Farina”)
arrived. Newman told Farina that Plaintiff was
“exercising his right to open carry, ” but did
not tell Farina anything else.
asked Plaintiff if he knew there was a school near the Park
and how that affected his right to carry a firearm. Plaintiff
stated that he did not know there was a school nearby.
Defendants note that there are a number of signs indicating
the presence of a school along the only road into the Park.
Plaintiff denies seeing those signs. (Docket #26-1 at
asked Plaintiff, “you see all the attention you're
getting[, ] is this what you wanted?” (Docket #34 at
14). He did not directly ask Plaintiff if he had a CCW
license. Farina decided to arrest Plaintiff for possessing a
firearm within 1, 000 feet of a school. During this portion
of the encounter, City officer Russell Richardson
(“Richardson”) pointed his pistol at Plaintiff,
commanding Plaintiff to comply with the officers' orders.
The officers disarmed Plaintiff, searched him, and put him in
a squad car. The parties dispute what was found in
Plaintiff's wallet. Plaintiff says the officers
discovered his driver's license, and must have seen his
CCW license which was nearby, while Defendants claim that
they did not see the CCW license at that time.
being transported to the police station, Plaintiff told City
officer Phonexay Yothsackda (“Yothsackda”) that
he had a CCW license. Yothsackda found the license while
searching Plaintiff during the booking process. He then gave
the license to Newman. Newman believed Plaintiff's CCW
license was valid and knew that Plaintiff's possession of
the license was ...