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Smith v. Bandi

United States District Court, E.D. Wisconsin

July 9, 2018

ANTHONY E. SMITH, Plaintiff,
v.
DANIEL BANDI, Defendant.

          DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 23)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         The 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. 8.

         The 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.

         I. RELEVANT FACTS [1]

         On 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.

         At 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, 75.

         At 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 ¶¶2, 5.

         The 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.

         The 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 at ¶24.

         The 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 at ¶26.

         The 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.

         The 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.

         The 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 ¶¶39-40, 42.

         The 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.

         The 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.

         The 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 ¶52.

         According 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 ...


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