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Rivera v. City of Madison

United States District Court, W.D. Wisconsin

January 31, 2018



          BARBARA B. CRABB, District Judge

         In this civil action for monetary relief under 42 U.S.C. § 1983, plaintiff Briana Rivera brings false arrest and excessive force claims under the Fourth Amendment and state law assault and battery claims against defendants Officers Gabriel Heck and David White, stemming from her arrest on January 25, 2014. She also brings municipal liability claims against the City of Madison for inadequate training, supervision and discipline. Both sides have moved for summary judgment. Dkt. ##17, 28. For the reasons stated below, I am denying plaintiff's motion for summary judgment on her false arrest claim because a reasonable officer in the position of defendants Heck and White could have concluded that plaintiff was reasonably subject to arrest for disorderly conduct. I am denying her motion for summary judgment on her warrantless arrest claim because there are still genuine disputes about the legality of the officers' entry into her home. I am granting defendants' motion with respect to plaintiff's false arrest claim and her claims against the City of Madison, which are based upon the allegedly unconstitutional acts of defendants Heck and White, but am denying the motion with respect to plaintiff's claims of excessive force, warrantless entry and state law assault and battery claims.

         From the parties' proposed findings of fact and evidence in the record, I find the following facts to be material and undisputed unless otherwise noted.


         A. The Parties

         Plaintiff Briana Rivera is a biracial African American. At the time of the relevant incident, she was 22 years old and worked as a certified nursing assistant. She lived in an apartment on Dawn Road in Madison, Wisconsin, with her then-fiancé (now husband) Vickson Magada, their two-year old daughter, N.M., and plaintiff's two young sisters. Defendants David White and Gabriel Heck were police officers for the City of Madison Police Department who attended the department's police academy and received ongoing on-the-job police training on arrest tactics, use of force and domestic violence incidents. At the time of the incident, plaintiff was five feet five inches tall and weighed approximately 140 pounds; Officer White was six feet two inches tall and weighed around 230 pounds; and Officer Heck was six feet tall and weighed around 170 pounds.

         B. Background Events of January 24 and 25, 2014

         At approximately 10:00 p.m. on January 24, 2014, plaintiff drove Magada and N.M. to visit Magada's friend, Modou Sonko, at Sonko's residence on Melody Lane. She expected that Magada and N.M. would want to be picked up in about 30 to 60 minutes. However, Magada never called plaintiff about coming to get them. Starting around 11:00 p.m., plaintiff attempted to call Magada about picking him up. Between midnight and 2 a.m., plaintiff called about a dozen times, but Magada never answered. Instead, N.M., the two-year-old, kept answering the phone and hanging it up. Plaintiff was upset because her daughter was awake so late and because she believed that Magada and Sonko were encouraging N.M. to hang up the phone on her. Plaintiff and one of her young sisters finally went over to Sonko's apartment around 2:00 a.m.

         When plaintiff and her sister arrived at the apartment, they were buzzed in and went inside Sonko's apartment on the third floor. Plaintiff picked up N.M., told Magada he was an “ass” and could stay at Sonko's for the night and attempted to leave with N.M. and her sister. Magada grabbed plaintiff violently and struggled with her while she held N.M. Sonko got between plaintiff and Magada and then plaintiff ran down to the second floor of the apartment building. Magada caught up with plaintiff on the second floor, pinned her to the wall, raised his arm and drew his fist back as if to strike her while she continued to hold N.M. At that moment, Marguerite Tate, who resided in a second floor apartment, opened her door and told Magada that he better not hit plaintiff and that she was calling the police. Magada then released plaintiff and she ran downstairs to the parking lot with N.M. and her sister. Magada followed and they all left together.

         Tate called 911 and reported seeing a man “looking like he was going to beat up his wife, ” who “had babies in her hand.” Dkt. #40-1 (transcript of 911 call). She further stated that the people had come from upstairs, the man was “yelling” and “pushed [the women] up against the wall, ” while “she had a baby in her arms, ” and that the woman was scared. Tate said that the people had gotten into a silver van and left the parking lot. Id.

         C. Defendant White's Investigation at Melody Lane

         At approximately 2:53 a.m., defendant White was dispatched to Melody Lane as the result of Tate's 911 call. (According to the dispatch notes sent to White's computer, the caller was upset because a male pushed a female with children. White does not recall whether he reviewed the dispatch notes. He recalls only that dispatch told him that the caller had observed a physical disturbance between a man and woman in the hallway of her building.)

         Defendant White went to Tate's apartment first. White does not recall everything Tate told him during their conversation. He remembers that she told him she had seen a disturbance where she thought she saw a black male push a black female and that the female had a child. White also remembers that Tate told him she yelled at the couple that she was calling the police, after which the people got in a van and left. (White dep., dkt. #34, at 79-80, 84, 224). According to Tate's affidavit, Tate told White that she had heard running on the steps of the stairwell located next to her apartment. When she opened the door, she saw a man and a woman in an argument and saw the man push the woman up against the wall and raise his hand as if he were going to hit her. Tate told White that the woman had a baby or young child in her arms and another child standing next to her. She also told White that the woman and children were quiet and were not crying, but looked scared of the man. Tate told White that she yelled at the man and woman that she was going to call the police, at which point they left the building, got into a silver van and drove away. (Tate Aff., dkt. #55.)

         After speaking with Tate, defendant White went upstairs, where he made contact with Sonko, who told White that he had had some friends over that night and that these friends had caused the disturbance. Sonko told White that plaintiff had dropped Magada and their two-year-old daughter, N.M., off at Sonko's house earlier that night. While Magada and N.M. were at his apartment, plaintiff started calling Magada's phone and did so several times. Sonko told Officer White that, each time, N.M. would answer the phone, say hello and then hang up the phone. Sonko also told White that, at approximately 2:45 a.m., plaintiff arrived at Sonko's apartment very upset and yelling at both Magada and N.M. Sonko also told White that plaintiff slapped N.M. (The parties dispute exactly what Sonko told White regarding plaintiff's slapping N.M. Neither side submitted a statement from Sonko regarding what exactly he said to White. White states in his declaration that Sonko told him that plaintiff was “physically striking” N.M. “all over her upper body, ” although White testified at trial that Sonko had told him that plaintiff was “slapping” N.M. Plaintiff objects to White's declaration on hearsay grounds as to his description of what Sonko told him, but his statement is not hearsay because it is not being offered for the truth of Sonko's statements. On the other hand, defendant's attempt to rely on Sonko's trial testimony about what Sonko told White is barred by hearsay rules, because defendants seek to introduce Sonko's trial testimony for the truth of the matter asserted, namely, that he told White something in particular.)

         Sonko also told defendant White that plaintiff had thrown a pair of tennis shoes at Magada. Sonko told White that, after throwing the shoes, plaintiff continued to yell at Magada and N.M. and that plaintiff and Magada were pushing each other. Finally, Sonko told White he was concerned for the safety of Magada and N.M. because he knew from past experiences that plaintiff had a problem controlling her anger. (Plaintiff and Magada dispute much of Sonko's account of what happened at his apartment, denying that plaintiff yelled, threw shoes or hit N.M. Plaintiff further argues that Sonko's account of her hitting N.M. contradicts Tate's account that N.M. was not crying. Regardless whether Sonko's account was accurate, plaintiff has no personal knowledge of what Sonko told White.)

         D. Events at Plaintiff's Apartment

         Defendant White believed he should investigate the situation further to make sure that plaintiff, Magada and N.M. were safe. From telephone information provided by Sonko, defendant White located plaintiff's and Magada's residence, at 2810 Dawn Road, Apartment B, in Madison.

         Defendant White knocked on plaintiff's door, stated that he was there because of the incident on Melody Lane and asked to come inside. Plaintiff's apartment is a second level apartment. The front door opens to a small entryway, measuring between 4 and 5 feet square. Opposite the front door is a stairwell with approximately 20 to 25 steps that leads upstairs to a combination living room, kitchen and dining area. Plaintiff told White that he could not come upstairs, but could come into the downstairs entryway. Plaintiff told White that the children were upstairs. (The parties dispute whether plaintiff told White he could not go upstairs with his shoes on, suggesting that he would be able to go upstairs if he took his shoes off. White says plaintiff told him he could go upstairs with shoes on, while plaintiff says that although she may have mentioned that the family did not go upstairs with shoes on, she made it clear that she did not want White upstairs, with or without shoes.)

         Defendant White agreed to stay downstairs and sent Magada upstairs so he could speak to plaintiff alone. White stated that his partner was coming and would take Magada outside to talk. White then asked plaintiff what had happened on Melody Lane and plaintiff told him that she went to pick up her daughter and “some words were exchanged” between her and Magada. Plaintiff told White that things had been resolved and there would be no more problems that evening. White noticed that plaintiff had a cut on her chin. (It appears that plaintiff had injured her chin a couple of days earlier.) White did not ask plaintiff about her chin or inspect it at the time. He also did not tell plaintiff anything about Sonko's allegations that she had harmed N.M. or ask whether N.M. was all right.

         Shortly after defendant White began talking with plaintiff, Officer Heck arrived at plaintiff's apartment. Heck had been dispatched to assist White with the investigation and to provide backup. Heck had not communicated with anyone at the Melody Lane apartments regarding the incident. White let Heck into the entryway of the apartment and told Heck to interview Magada, who was still upstairs. (The parties dispute what happened next. Plaintiff says that White told Magada to get his coat and Heck responded that he would just interview Magada upstairs. White then told Heck that plaintiff did not want anyone upstairs, especially with shoes on, so Heck slipped his shoes off and jogged up the stairs. According to defendants, plaintiff stated that she did not want Magada to go outside, but she had indicated the officers could go upstairs if they took their shoes off.) It is undisputed that as soon as Heck went upstairs, plaintiff immediately told White and Heck that she did not want anyone upstairs and she had not consented to their being in her house. She yelled up the stairs to Magada that Heck needed to come down to talk to Magada outside. Upstairs, Magada asked Heck repeatedly whether they could go outside. Heck refused, telling Magada they could talk inside. (Defendants say that Magada ultimately said it was “fine” if they talked upstairs, but Magada denies saying this.)

         After defendant Heck went upstairs, defendant White continued trying to interview plaintiff but could not because plaintiff was yelling that Heck and Magada needed to come back downstairs and that she did not want Heck walking around up there. (Defendants say that plaintiff was shouting “at the top of her lungs” in a “very aggravated manner, ” while plaintiff says she was using a “raised voice” just loud enough to be heard upstairs. Defendants also say that White attempted to explain to plaintiff that he and Heck were in the apartment legally and would not leave until their investigation was complete, that she could not control whether Magada spoke with Heck and that Heck would not walk around the apartment unless Magada was with him or gave him permission. Plaintiff denies that White said this.)

         At the time she was yelling up the stairs, plaintiff was standing toward the bottom of the staircase facing defendant White. At some point, she took a few steps up the stairs away from White. The parties dispute what happened next.

         Defendant White says that when plaintiff started going up the stairs away from him, he immediately grabbed her arm to stop her and told her she could not go upstairs and cause a disturbance. White then stepped past her to block her from going up the stairs. White says that plaintiff continued yelling up the stairs for Magada to come downstairs, continued arguing about the legality of the officers presence in the house and repeatedly pushed White in his torso area in an effort to get past him up the stairs. White says he told plaintiff at least five times to stop pushing him and told her that she would be arrested if she did not stop and calm down. White says that plaintiff did not heed these warnings and continued to try to push past him to get up the stairs. White then told plaintiff she was under arrest. Plaintiff tried to pull away from White and run down the steps, but White held on to plaintiff's arm and followed her down the steps. White says that he told plaintiff to put her arms behind her back while he continued to hold her left arm, but plaintiff attempted to pull her left arm away from him with her right arm flailing.

         Defendant Heck says that he began running down the stairs when he saw plaintiff attempting to get past White. He grabbed plaintiff's right arm and pushed her up against the wall. Defendants state that while they held plaintiff's arms and pinned her against the wall, she tried to pull her arms away and to thrust her head backwards towards the officers. Heck says he was concerned that plaintiff could injure him or White by causing them to lose their balance and fall down the stairs, so he pushed plaintiff's head forward toward the wall while White secured ...

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