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Polster v. City of Wauwatosa

United States District Court, E.D. Wisconsin

November 3, 2017

WILLIAM J. POLSTER, Plaintiff,
v.
CITY OF WAUWATOSA, JEFFREY NEWMAN, RUSSELL RICHARDSON, THOMAS ORLOWSKI, JENNIFER FARINA, PHONEXAY YOTHSACKDA, and JEFFREY FARINA, Defendants.

          ORDER

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

         1. INTRODUCTION

         This 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 denied.

         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).

         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.[1] The Court construes the facts in Plaintiff's favor, as required by the standard of review, but nevertheless notes the parties' disputes where appropriate.[2]

         Plaintiff 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).[3]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).

         While 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 Department.

         As he 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.[4] 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.

         Newman 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.

         Farina 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 16:15-20).

         Farina 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.

         While 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 ...


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