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Obriecht v. Splinter

United States District Court, W.D. Wisconsin

April 23, 2019

ANDREW OBRIECHT, individually and on behalf of those similarly situated, Plaintiff,
v.
CHRISTOPHER SPLINTER, et al., Defendants.

          OPINION AND ORDER

          STEPHEN L. CROCKER MAGISTRATE JUDGE

         Plaintiff 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 capacities.

         Defendants 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.

         For the 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.

         Obriecht alleges the following facts in his complaint (dkt. 1):

         ALLEGED FACTS

         On 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.[1] 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.

         At some 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.

         At 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.

         The 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.

         After 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 https://wcca.wicourts.gov).[2]

         ANALYSIS

         I. Legal Standard

         A 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 unlawfully.” Id.

         II. Due Process Claims

         Obriecht 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.

         Obriecht 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 accurate term”).

         III. Fourth Amendment Claim

         The 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 ...


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