United States District Court, E.D. Wisconsin
TRACY E. MCCARTHY, Plaintiff,
KURT KEZESKE and KEVIN A. PORTER, Defendants.
DECISION AND ORDER
ADELMAN DISTRICT JUDGE.
McCarthy brings this action pro se under 42 U.S.C.
§ 1983 and proceeds against Kurt Kezeske and Kevin
Porter, police officers employed by the Village of Lannon,
Wisconsin, alleging false arrest in violation of his Fourth
Amendment rights. Defendants move for summary judgment. In
ruling on a motion for summary judgment, “[t]he
evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor, ”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986), but all “uncontroverted statements of material
fact” are deemed “admitted, ” Civil L. R.
56(b)(4) (E.D. Wis.). With these principles in mind, I turn
to the underlying facts of this case.
sworn complaint-which I construe as an affidavit for present
purposes, Ford v. Wilson, 90 F.3d 245, 247 (7th Cir.
1996)-McCarthy states that, on January 19, 2016, while
attending municipal court, he was arrested “for
questions relating to a driving without insurance ticket [he]
had received in error.” Compl., Docket No. 1, at 3.
who were on duty assisting as municipal court bailiffs, say
that McCarthy became “agitated” and
“aggressive” while discussing his case with an
assistant village attorney, they intervened after he
“started yelling” and repeatedly demanded to see
a judge, he “became louder and more boisterous”
when they asked him “to lower his voice, ” he
objected when Porter told him to leave the building and
return another day, and he attempted to re-enter the building
after Porter escorted him outside and again told him to
leave, so Porter arrested him for disorderly conduct.
See Koehnke Decl., Docket No. 35, ¶¶ 5-8;
Porter Decl., Docket No. 38, ¶¶ 10-14.
sworn response to defendants' summary judgment
motion-which I also construe as an affidavit on summary
judgment, Ford, 90 F.3d at 247-McCarthy broadly
denies defendants' statements of fact. For example, he
denies that he raised his voice when speaking with the
village attorney. See Pl.'s Resp., Docket No.
42, at 3.
March 30, 2016, McCarthy was charged with one count of
disorderly conduct in violation of Wisconsin Statutes section
947.01(1). The case went to trial on July 11, 2017. After
jury selection, opening statements, testimony from Porter and
another witness, and a midday recess, the State moved to
amend the charge to one count of disorderly conduct in
violation of section 13-102(c)(8) of the Waukesha County Code
of Ordinances-which adopts section 947.01 but limits the
penalty for a violation to a forfeiture. McCarthy pleaded
guilty to the amended charge. The court found McCarthy guilty
and ordered him to pay a fine of $330.50.
grant summary judgment on a party's motion “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). A fact is
“material” if a dispute over it “might
affect the outcome of the suit under the governing
law.” Anderson, 477 U.S. at 248. A
“dispute about a material fact is ‘genuine' .
. . if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
prevail on his claims under § 1983, McCarthy must
establish that (1) “defendants were acting under color
of state law” and (2) they deprived him “of a
right secured by the Constitution or federal law.”
Wilson v. Warren County, 830 F.3d 464, 468 (7th Cir.
2016). Defendants do not dispute that they were acting under
color of law when they arrested McCarthy, so I need only
consider whether a reasonable jury could find that they
violated McCarthy's federal rights.
claims arise under the Fourth Amendment, which protects
“[t]he right of the people to be secure in their
persons . . . against unreasonable . . . seizures, ”
including arrests. U.S. Const. amend IV; Alexander v.
McKinney, 692 F.3d 553, 558 (7th Cir. 2012). In general,
“probable cause alone is enough” to render a
warrantless “arrest in a public place” reasonable
under the Fourth Amendment. United States v.
Patrick, 842 F.3d 540, 542 (7th Cir. 2016) (citing
United States v. Watson, 423 U.S. 411 (1976);
Payton v. New York, 445 U.S. 573 (1980)). Defendants
arrested McCarthy in a public place without a warrant. Thus,
to show that they deprived him of his right to be free from
unreasonable seizures, he must show that they lacked probable
cause to arrest him.
warrantless arrest in a public place is supported by probable
cause-and is, therefore, a reasonable seizure-if the
“facts and circumstances” known to the arresting
officer at the time of the arrest “are sufficient to
warrant a prudent person in believing that the suspect has
committed an offense.” United States v.
Howard, 883 F.3d 703, 707 (7th Cir. 2018) (quoting
Williams v. Rodriguez, 509 F.3d 392, 398 (7th Cir.
2007)). “To determine whether an officer had probable
cause to arrest an individual, [courts] examine the events
leading up to the arrest, and then decide ‘whether
these historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to'
probable cause.” Maryland v. Pringle, 540 U.S.
366, 371 (2003) (quoting Ornelas v. United States,
517 U.S. 690, 696, (1996)).
events leading up to McCarthy's arrest, as defendants
describe them, would warrant a prudent person in believing
that he engaged in disorderly conduct. In Wisconsin,
disorderly conduct includes “boisterous [or]
unreasonably loud . . . conduct under circumstances in which
the conduct tends to cause . . . a disturbance, ”
Wis.Stat. § 947.01(1), as well as “defiance of a
police officer's [lawful] order to move, ” see
Braun v. Baldwin, 346 F.3d 761, 765 (7th Cir. 2003).
Defendants say that they saw and heard McCarthy accost a
village attorney in a municipal building in sight or earshot
of at least 20 other members of the public and that he
refused, when asked, to calm down, lower his voice, or leave
and return another day. Such conduct would clearly tend to
disturb “the sedate . . . ambiance that courthouses
seek, ” with good reason, “to preserve.”
course, as noted above, on summary judgment, I must consider
the evidence in the light most favorable to the
non-moving party, which is to say, in the light most
favorable to McCarthy, not defendants. Here, though,
McCarthy offers little in response to defendants'
evidence apart from quibbles over trivial details, general
denials, and conclusory assertions. Even generously
construed, the most that I can infer from McCarthy's
sworn filings, his only evidence, is that his conduct was not