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McCarthy v. Kezeske

United States District Court, E.D. Wisconsin

June 1, 2018




         Tracy 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.

         I. BACKGROUND

         In his 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.

         Defendants, 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.

         In his 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.

         On 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.


         I must 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.

         To 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.

         McCarthy's 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.

         A 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)).

         The 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.” Id.

         Of 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 ...

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