United States District Court, W.D. Wisconsin
ANDREW OBRIECHT, individually and on behalf of those similarly situated, Plaintiff,
CHRISTOPHER SPLINTER, et al., Defendants.
OPINION AND ORDER
STEPHEN L. CROCKER MAGISTRATE JUDGE
Andrew Obriecht filed this civil action on behalf of himself
and other similarly-situated individuals under 42 U.S.C.
§ 1983, challenging the constitutionality of Wisconsin
State Patrol's alleged policy and practice of having
officers stop and cite drivers who flash their headlights to
warn oncoming drivers of a speed trap ahead. Obriecht, who
was stopped and cited for flashing his headlights, claims
that his act was expressive conduct protected under the First
Amendment, and alleges that his stop, detention, and
subsequent citation constitute retaliation under the First
Amendment, an unreasonable seizure under the Fourth
Amendment, and an unconstitutional deprivation of his liberty
under the due process clause. Obriecht is suing defendants
Christopher Splinter, J.D. Lind, Charles Teasdale, Jason
Zeeh, and Craig Larson in their individual capacities and
defendant Dave Ross in both his individual and official
have moved to dismiss Obriecht's claims on the following
grounds: (1) Obriecht cannot state an independent due process
claim challenging the lawfulness of the arrest, which arises
under the Fourth Amendment; (2) Obriecht cannot show that his
stop, detention, and citation amounted to retaliation under
the First Amendment or an unreasonable seizure under the
Fourth Amendment because the trooper who stopped Obriecht had
probable cause to believe that Obriecht was violating the
law; (3) even if Obriecht's conduct is expressive, it is
not protected speech under the First Amendment because it
facilitates speeding by other drivers; (4) § 1983 and
the Eleventh Amendment preclude Obriecht from seeking damages
against Ross in his official capacity; and (5) defendants are
all entitled to qualified immunity with respect to the
individual capacity claims against them. Dkt. 11.
reasons stated below, I am granting the motion to dismiss
with respect to Obriecht's due process, Fourth Amendment,
and First Amendment retaliation claims. I am denying the
motion with respect to Obriecht's claim for declaratory
and injunctive relief that the alleged policy and practice of
stopping, detaining, and citing drivers who flash their
headlights to warn oncoming drivers of a speed trap violates
his right to free speech under the First Amendment.
alleges the following facts in his complaint (dkt. 1):
October 16, 2018 at about 1:57 p.m., plaintiff Andrew
Obriecht was driving on Highway 33 in the Town of Caledonia,
in Columbia County, Wisconsin when he saw a speed
trap. After passing the speed trap, he flashed
his headlights to warn oncoming traffic to slow down and
proceed with caution. According to Obriecht, he did not
suspect other drivers of violating any law and that flashing
of headlights is commonly understood as conveying the message
to slow down and proceed with caution.
point after Obriecht flashed his headlights, defendant
Christopher Splinter, a trooper with the Wisconsin State
Patrol, activated flashing lights and siren on his marked
squad to signal to Obriecht that he must pull over to the
side of the road. Obriecht complied. Trooper Splinter issued
Obriecht Wisconsin Uniform Citation number BC256111-2 for
violating Wis.Stat. § 347.07(2)(c), which states in
relevant part that “no person shall operate any vehicle
or equipment on a highway which has displayed thereon . . .
[a]ny flashing light.” The citation stated that
Obriecht will be assessed three points against his license
and that he must appear in court to dispute the citation.
Obriecht was not free to leave the stop until after he
received the citation.
around 9:43 a.m. on October 17, 2018, Obriecht spoke by
telephone with State Patrol Sergeant Gary Helgerson (not a
defendant), who told Obriecht that it was the policy and
practice of the State Patrol to stop, detain, cite, and
prosecute individuals for warning of a speed trap by flashing
their headlights on and off. At about 2:15 p.m. on the same
day, Obriecht spoke with defendant Lieutenant Craig Larson-an
executive State Patrol officer with policymaking authority
for the counties of Columbia, Dane, Dodge, Green, Iowa,
Lafayette, Rock, and Sauk-who confirmed the policy and
practice described by Sgt. Helgerson.
remaining defendants created or ratified the policy and
practice of stopping, detaining, citing, and prosecuting
individuals for violating Wis.Stat. § 347.07(2)(c).
Defendant Dave Ross is the Secretary and chief policymaker
for the Wisconsin Department of Transportation, which
oversees the State Patrol. Defendant Superintendent J.D. Lind
is the chief policymaker for the State Patrol. Defendant
Colonel Charles Teasdale has policymaking authority for the
State Patrol. Defendant Captain Jason Zeeh is the Commander
of the State Patrol for the counties of Columbia, Crawford,
Dane, Dodge, Grant, Green, Iowa, Juneau, La Crosse,
Lafayette, Monroe, Richland, Rock, Sauk, and Vernon.
Obriecht filed suit in this court on July 8, 2018, the
Columbia County Circuit Court dismissed his citation in
State v. Obriecht, Columbia County, Case No.
2018TR5645 (docket available online at
motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the
complaint's legal sufficiency. A complaint survives a
motion to dismiss if it “contain[s] sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Id.
“The plausibility standard is not akin to a
‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
Due Process Claims
alleges in his complaint that he was deprived of “his
liberty” under the Fifth Amendment during the traffic
stop and detention and by having to defend the citation. Dkt.
1 at ¶¶ 34(c-e). As defendants point out, because
defendants are state employees, Obriecht's due process
claims arise under the Fourteenth Amendment rather than the
Fifth Amendment, which applies only to federal officials.
Dusenbery v. United States, 534 U.S. 161, 167 (2002)
(“The Due Process Clause of the Fifth Amendment
prohibits the United States, as the Due Process Clause of the
Fourteenth Amendment prohibits the States, from depriving any
person of property without ‘due process of
law.'”). Defendants also are correct that
“[t]he Fourth Amendment, not the due process clause, is
the proper basis for challenging the lawfulness of an
arrest.” Alexander v. McKinney, 692 F.3d 553,
558 (7th Cir. 2012) (citing Cnty. of
Sacramento v. Lewis, 523 U.S. 833');">523 U.S. 833, 842 (1998) and
Albright v. Oliver, 510 U.S. 266, 275 (1994) and
explaining that there is no substantive due process claim
where another specific constitutional provision protects
right at issue). In addition, the burden of appearing in
court or otherwise defending against prosecution, in and of
itself, does not implicate a liberty interest. Id.
at 557 n.2.
has not responded to defendants' arguments or even
attempted to make a case that he has a cognizable due process
claim in this case. Accordingly, I will consider
Obriecht's arguments on this issue to be waived and
presume that he has abandoned his due process claims. See
Alioto v. Town of Lisbon, 651 F.3d 715, 719 n.1
(7th Cir. 2011) (discussing plaintiff's
failure to respond to arguments supporting motion to dismiss
and stating that “[c]onsistent with our precedent, we
use the word waive, although forfeit is perhaps the more
Fourth Amendment Claim
Fourth Amendment guarantees “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” The United
States Supreme Court has held that “[t]emporary
detention of individuals during the stop of an automobile by
the police, even if only for a brief period and for a limited
purpose, constitutes a ‘seizure' of
‘persons'” under the Fourth Amendment.
Whren v. United States, 517 U.S. 806, 809-10 (1996).
“As a general matter, the decision to stop an
automobile is reasonable where the police have probable cause
to believe that a traffic violation has occurred.”
Id. at 810. The Court of Appeals for the Seventh
Circuit has explained that “[p]robable cause is an
absolute defense to claims of ...