United States District Court, E.D. Wisconsin
ANTHONY E. SMITH, Plaintiff,
DANIEL BANDI, Defendant.
DECISION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DKT. NO.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff, who is representing himself, filed this lawsuit
under 42 U.S.C. §1983. Dkt. No. 1. The court allowed the
plaintiff to proceed on claims that the defendant violated
his Fourth Amendment rights when the defendant allegedly
stopped the plaintiff for no legitimate reason and allegedly
used excessive force while arresting the plaintiff. Dkt. No.
defendant filed a motion for summary judgment. Dkt. No. 23.
The court grants the defendant's motion on the
plaintiff's improper search claim, and denies the
defendant's motion on part of the plaintiff's
excessive force claim.
RELEVANT FACTS 
October 16, 2016, the plaintiff was living in Racine,
Wisconsin, and was dating Aleece Gillespie, who was living in
Kenosha, Wisconsin. Dkt. No. 45 at ¶1. That night, the
plaintiff and Gillespie had rented a 2015 Chevy Camaro.
Id. at ¶3; Dkt. No. 26 at ¶121. At about
1:30 a.m., the plaintiff and Gillespie left a bar with some
friends. Dkt. No. 45 at ¶6. After dropping off their
friends, the couple headed to Gillespie's apartment,
located on 17th Avenue and 50th Street. Id.
Gillespie parked the car under two trees, where the street
was only dimly lit. Id. at ¶11.
about 4:00 a.m., the plaintiff, with Gillespie and her baby,
left to go to a hotel. Id. at ¶8. Gillespie
headed downstairs first with her baby. Id. at
¶9. The plaintiff followed shortly thereafter with the
other belongings they were taking to the hotel. Id.
at ¶10. The plaintiff states that he noticed the
car's passenger side safety window had been broken out.
Id. Gillespie went to the passenger side and leaned
in to put her baby in the backseat. Id. at ¶13,
about 4:15 a.m., the defendant, a Kenosha police officer, was
on patrol by himself, when he noticed a new, high-end sports
car parked near the intersection of 17th Avenue and 50th
Street. Dkt. No. 26 at ¶1-4. According to the defendant,
that area of Kenosha is known for high crime, and that type
of car is not common in the neighborhood. Dkt. No. 47at
defendant asserts that he noticed a person (later identified
as Gillespie) with her left shoulder leaning inside the
passenger side of the car. Id. at ¶6. The
defendant states that he saw her crouch down when she noticed
his squad car stopped at the intersection. Id. at
¶7. The defendant explains that, based on what he saw
and his experience and training, he believed a crime was
being committed. Id. at ¶8.
defendant says he turned his car around and began driving
toward the sports car. Id. at ¶10. He asserts
that he was unable to radio out his location and request
assistance because others were using the radio at the time.
Id. at ¶11. The defendant indicates that he
shined his squad spotlight so he could see the car and the
sidewalk just west of the car. Id. at ¶12.
According to the defendant, Gillespie had moved from beside
the car to mostly behind one of the trees by the car.
Id. at ¶13. The defendant states that he saw
the plaintiff emerge from behind another large tree, next to
where Gillespie was concealed. Id. at ¶14. The
plaintiff, in contrast, asserts that he was not behind a tree
when he first saw the defendant, but was helping Gillespie
load the baby and other belongings into the car. Dkt. No. 45
defendant states that he parked and got out of his squad car
so that he could investigate. Dkt. No. 47 at ¶16.
According to the plaintiff, he asked the defendant why the
defendant was harassing them, dkt. no. 39 at ¶25, but
the defendant states that the plaintiff repeatedly said,
“What did I do?” in a panicked voice. Dkt. No. 45
plaintiff began to walk toward the defendant and put his left
hand into his pants pocket. Dkt. No. 47 at ¶20. The
defendant believed the plaintiff was balling his hand into a
fist, id., but the plaintiff explains that he had
money in his front pocket, which made it only look like he
was balling his hand into a fist, id. The defendant
ordered the plaintiff to take his hand out of his pocket, and
the plaintiff complied, but then he put his hand back in his
pocket, dkt. no. 40 at ¶20. The plaintiff says that he
complied every time the defendant told him to take his hand
out of his pocket, dkt. no. 39 at ¶34, but concedes that
he kept putting his hand back in his pocket “because it
was chilly and cold outside from the rain, ”
id. at ¶35.
defendant explains that the plaintiff's reaction and his
repeatedly putting his hand in his pocket led the defendant
to believe that the plaintiff was reaching for a weapon. Dkt.
No. 47 at ¶21. The plaintiff agrees that he continued to
put his hand in his pocket despite the defendant's order
to take his hand out of his pocket, but he insists that he
put his hand in his pocket only because it was cold outside
from the rain. Dkt. No. 39 at ¶35.
defendant states that to prevent the situation from
escalating and to gain control of the plaintiff so he could
speak to him, he “took hold of the plaintiff's left
hand and right shoulder and moved [the plaintiff] to the back
of the [car].” Dkt. No. 47 at ¶31. The plaintiff
asserts that the defendant grabbed him by his shirt and, when
the plaintiff asked, “what did I do wrong-what's
going on?, ” it looked to the plaintiff as if the
defendant was reaching for his service weapon. Dkt. No. 39 at
defendant states that he let go of the plaintiff's left
hand so he could reach his radio and call for assistance.
Dkt. No. 47 at ¶35. He states that he was worried that
Gillespie, who was standing on the sidewalk and yelling at
him, might attack him. Id. at ¶¶36-37. The
defendant asserts that as he was speaking on his radio, the
plaintiff broke free and began to run toward the dark
sidewalk. Id. at ¶39. The plaintiff explains
that he was afraid the defendant was reaching for his service
weapon, so he broke free of the defendant's hold and
tried to run to a better lit area where the public could see
what was going on. Dkt. No. 39 at ¶43. The plaintiff
asserts that he feared he “would become another
statistical victim of ‘white cop killing an unarmed
black male.'” Id. at ¶44.
defendant pursued the plaintiff. Dkt. No. 45 at ¶45;
Dkt. No. 47 at ¶41. He grabbed the plaintiff's shirt
(there is dispute over whether the defendant grabbed the
plaintiff's shirt before or after the plaintiff broke
away from the defendant) and ordered him to stop resisting,
but, according to the defendant, the plaintiff resisted his
attempts to gain control by turning in circles. Dkt. No. 45
at ¶39. The plaintiff's shirt ripped, and the
plaintiff once again began to run away. Id. at
¶45. The plaintiff explains that he was not trying to
resist; he was simply trying to get to a place where someone
could see what was going on. Dkt. No. 40 at ¶45.
defendant states that, because the plaintiff was actively
resisting, he took his “Electronic Control Device
(ECD)” (a Taser) out of its holster as he was chasing
the plaintiff and shot it into the plaintiff's back for a
five-second cycle, which is the shortest possible cycling
time. Dkt. No. 45 at ¶47; Dkt. No. 47 at ¶¶48,
51; Dkt. No. 26, ¶50-51; Dkt. No. 45, ¶47. The
plaintiff fell onto his forearms and chest. Dkt. No. 26 at
to the defendant, the plaintiff rolled around on the ground
and tried to pull the Taser wires out of his back.
Id. at ¶53. The defendant states that at that
point, the plaintiff was only ten to fifteen feet away from
him. Id. at ¶55. The defendant asserts that he
was afraid that the plaintiff might have had a weapon, so,
because the plaintiff continued to resist, he used another
five-second cycle charge. Id. at ¶¶55-57.
The defendant explains that the second charge seemed less
effective, so he was unsure whether the plaintiff had broken
the wires or the probes had come off the plaintiff's
back. Id. at ¶59. The defendant used a third
cycle charge, this one for six seconds. Id. at
¶60; Dkt. No. 45 at ¶51. The plaintiff says that he
had never been hit by a Taser before, and had ...