United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
case comes before the Court on Plaintiff's allegations
that his Sixth Amendment rights were violated when he was
placed in a lineup without counsel present. (Docket #1, #12).
On February 22, 2019, Defendants, who are all Milwaukee
Police Department (“MPD”) officers, filed a
motion for judgment on the pleadings, alleging that qualified
immunity protects them against liability because it was
unclear whether the right to counsel had attached when they
conducted the lineup. (Docket #37). That motion is fully
briefed, and for the reasons explained below, will be
granted. Plaintiff also filed a motion to clarify or, in the
alternative, compel, certain discovery responses. (Docket
#41). Because the motion for judgment on the pleadings will
be granted, the motion to clarify or, in the alternative,
compel, will be denied as moot.
Rule of Civil Procedure Rule 12(c) permits a party to move
for judgment after the complaint and answer have been filed
by the parties. Buchanan-Moore v. Cty. of Milwaukee,
570 F.3d 824, 827 (7th Cir. 2009). A motion for judgment on
the pleadings is governed by the same standard as a motion to
dismiss for failure to state a claim under Rule 12(b)(6).
Adams v. City of Indianapolis, 742 F.3d 720, 727-28
(7th Cir. 2014). To survive a challenge under Rule 12(c) or
12(b)(6), a complaint must provide “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). In other words, the
complaint must give “fair notice of what the. . .claim
is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
allegations must “plausibly suggest that the plaintiff
has a right to relief, raising that possibility above a
speculative level[.]” Kubiak v. City of Chi.,
810 F.3d 476, 480 (7th Cir. 2016) (citation omitted). In
reviewing the complaint, the Court is required to
“accept as true all of the well-pleaded facts in the
complaint and draw all reasonable inferences in favor of the
plaintiff.” Id. at 480-81.
28, 2014, Plaintiff was arrested by the MPD for an attempted
homicide. Allegedly, Plaintiff had engaged in a gun battle
with another person, and a nearby child was struck with a
stray bullet. (Docket #1-1 at 2; Docket #12 at 3). After
Plaintiff was booked at the Milwaukee County Jail, two MPD
officers attempted to interview him about the incident.
(Docket #1 at 2). He declined to speak without counsel
present, so the interview promptly ended. Id.
next day, on May 29, 2014, one of the officers filed an
affidavit regarding the shooting incident with Milwaukee
County Circuit Court Commissioner Rosa Barillas
(“Commissioner Barillas”). Id. The
officer sought a probable cause determination so as to
justify Plaintiff's continued detention. Commissioner
Barillas found probable cause to support the charged
crimes-homicide and a probation violation-and set
Plaintiff's bail at $250, 000. Id. at 2-3.
after that, as part of their investigation of the shooting,
Defendants required Plaintiff to participate in an
identification lineup. Id. at 3. Plaintiff was
unwilling to participate in the lineup, and was not offered
or afforded counsel during this process. Id. At the
lineup, witnesses to the shooting positively identified
Plaintiff as the opponent in the shootout. (Docket #12 at 4).
Defendants do not dispute that Plaintiff's Sixth
Amendment rights were violated when he was denied counsel at
the police lineup. Rather, they contend that, pursuant to the
doctrine of qualified immunity, the law was not so clearly
established that a reasonable officer would have known that
Plaintiff was entitled to counsel during the lineup. The
Court agrees with Defendants for the reasons explained below.
immunity shields officials from the civil consequences of
their constitutional violations when the law did not put the
officials on clear notice that their conduct would be
unlawful. Saucier v. Katz, 533 U.S. 194, 202 (2001);
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
(holding that the doctrine protects officials from civil
liability when they perform discretionary functions
“insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.”). “Put
simply, ” says the Supreme Court, “qualified
immunity protects ‘all but the plainly incompetent or
those who knowingly violate the law.'” Mullenix
v. Luna, 136 S.Ct. 305, 308 (2015) (quoting Malley
v. Briggs, 475 U.S. 335, 341 (1986)). The test for
qualified immunity is (1) whether the defendants' alleged
actions violated the plaintiff's constitutional rights;
and (2) “whether the implicated right was clearly
established at the time.” Jones v. Wilhelm,
425 F.3d 455, 461 (7th Cir. 2005). Once the defense is
raised, the plaintiff bears the burden to defeat it.
Weinmann v. McClone, 787 F.3d 444, 450 (7th Cir.
overcome an assertion of qualified immunity, Plaintiff must
first proffer facts which, if believed, amount to a violation
of his constitutional rights. Katz, 533 U.S. at 201.
The parties do not dispute that Plaintiff's Sixth
Amendment rights were violated, so the Court will focus its
analysis on whether the law was clearly established such that
reasonable officers would know that their conduct violated
the Constitution. A right is clearly established if it would
be obvious to a reasonable state actor that “what they
are doing violates the Constitution, or if a closely
analogous case establishes that the conduct is
unconstitutional.” Siebert v. Severino, 256
F.3d 648, 654- 55 (7th Cir. 2001). Factually identical
precedent is not necessary; the guiding question is whether
the official would have had “fair warning” that
the conduct was unconstitutional. Hope v. Pelzer,
536 U.S. 730, 741 (2002). “In determining whether a
defendant's alleged actions violated a clearly
established right, courts may properly take into account any
information the defendant ought reasonably to have
obtained.” Jones, 425 F.3d at 461.
well-established that the right to counsel is “pegged.
. .to ‘the initiation of adversary judicial criminal
proceedings-whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment.'”
Rothgery v. Gillespie Cty., 554 U.S. 191, 198 (2008)
(citing and quoting Kirby v. Illinois, 406 U.S. 682,
689 (1972)). The question of when adversarial
criminal proceedings begin has been the subject of some
litigation, but the Supreme Court affirms that “a
criminal defendant's initial appearance before a judicial
officer, where he learns the charge against him and his
liberty is subject to restriction, marks the start of
adversary judicial proceedings that trigger attachment of the
Sixth Amendment right to counsel.” Id. at 213.
In Rothgery, the Supreme Court found that the right
to counsel attached at ...