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Smith v. The City of Madison

United States District Court, W.D. Wisconsin

September 23, 2019

DAMIEN SMITH, Plaintiff,



         Plaintiff Damien Smith, who is incarcerated at the New Lisbon Correctional Institution, is proceeding on two claims: (1) defendants City of Madison, Noble Wray, Cory Nelson, Samantha Kellogg, Paige Valenta and Colleen McCoshen forced him to be a part of the “focused deterrence” program because of his race and without an opportunity to be heard, in violation of the equal protection clause and the due process clause; and (2) defendants Nelson, Kellogg and Valenta violated his rights under the Fourth Amendment by searching him and his electronics without reasonable suspicion while he was on probation from November 2011 to May 2012.

         The following motions are before the court: (1) a motion for summary judgment filed by defendants Wray, Valenta, Kellogg, Nelson and the City of Madison (the city defendants), dkt. #43; (2) defendant McCoshen's motion for summary judgment, dkt. #51; (3) McCoshen's motion to dismiss the claims against her as a sanction for plaintiff's filing third-party declarations that undermine the judicial process, dkt. #82; and (4) the city defendants' motion to strike the declaration of Romale Grant and not allow him to testify at trial on the ground that he did not make himself available for a deposition in this case, dkt. #85. For the reasons stated, I find that no reasonable jury could find in plaintiff's favor on any of his claims. Accordingly, I am granting the motions for summary judgment filed by defendants. The motion to strike Grant's declaration will be granted, but the city defendants' request to prohibit Grant's trial testimony and McCoshen's motion for sanctions will be denied as moot in light of my ruling on the motions for summary judgment.


         A. The Parties

         Plaintiff Damien Smith is African American and an inmate housed at the New Lisbon Correctional Institution in New Lisbon, Wisconsin. At all times relevant to this lawsuit, plaintiff was on parole, which is also known as “extended supervision.”

         Defendant City of Madison is a municipal corporation organized and existing under the statutes and constitution of the State of Wisconsin. Defendant Noble Wray is the former chief of police of the City of Madison Police Department, where defendant Paige Valenta is an assistant chief, defendant Cory Nelson is a captain and defendant Samantha Kellogg is a detective. Kellogg, Nelson and Valenta were the original detectives assigned to the Special Investigations Unit. Nelson worked for the unit from 2011 to 2013, Kellogg from July 2011 to January 20, 2018 and Valenta from June 2011 to October 11, 2012.

         Defendant Colleen McCoshen is a probation and parole agent employed by the Wisconsin Department of Corrections and was plaintiff's probation and parole officer at all times relevant to this case. She monitors and supervises offenders on community supervision, including individuals who are out of jail or prison on probation, extended supervision or parole. As part of her routine duties, McCoshen conducts home visits at her clients' residences. Occasionally, McCoshen takes law enforcement with her on home visits, especially in situations that could be dangerous.

         B. Creation of Focused Deterrence Program

         In 2010, the Madison Police Department decided to explore deterrence strategies used by law enforcement agencies around the country, particularly those focused on repeat violent offenders. Defendant Wray was impressed with focused deterrence programs in other jurisdictions and believed that a similar program would benefit the Madison community. Police departments using a “focused deterrence” approach identify individuals responsible for creating a disproportionate amount of crime and absorbing law enforcement and community resources. They then seek to focus on these individuals, seeking swift and aggressive punishment through the criminal justice system if the individuals reoffend. The approach is proactive and relies on collaboration between the police and community resource providers.

         In 2010, the Madison Police Department began the process of creating a Special Investigations Unit, comprising three detectives and the “lieutenant of investigative support, ” to operate a deterrence program. The unit became fully operational in July 2011. One of the unit's first tasks was to identify prolific violent offenders in the community who would be targeted for increased investigation and enforcement and provided resources and support not otherwise available to them. Unit detectives, including Kellogg, Nelson and Valenta, used the following steps to identify candidates for the program:

1. The Department of Corrections provided the unit with a list of the most violent offenders released into the community over the past 12 months. (This list was not provided when the first group of candidates, including plaintiff, were selected.)
2. The police department's Information Management and Technology Unit separately retrieved data on the most prolific violent offenders in the department's “New World” computer system. Results of the query were sorted and put in descending order from “most offenses” to “least offenses.” The following offenses were given greater emphasis: homicide, arson, assault, battery, domestic abuse, kidnapping, physical abuse of a child, sexual assaults, stalking, robbery and weapon offenses.
3. The unit analyzed the two lists, identified a top tier of candidates and provided those names to Criminal Intelligence Section officers, who conducted criminal history checks and gathered other intelligence on the candidates.
4. The Special Investigations Unit and the Criminal Intelligence Section disseminated the names of the candidates to the Madison Police Department and other law enforcement agencies for additional intelligence and information sharing. The unit also consulted with prosecutors and the Department of Corrections about individuals on the list.
5. The unit then reviewed and evaluated the candidates based on several behavioral factors, including the severity and immediacy of the threat to public safety posed by the individual; the individual's overall impact on the community; the number, frequency and recency of offenses; the amount of police resources that have been dedicated to the individual; reason to believe the individual is actively offending; and the individual's overall criminal history.
6. The unit provided a target list to Madison Police Department's crime analysts for assistance in identifying criminal trends and patterns to aid investigation.
7. The unit detectives provided its detectives with a case file and an investigative strategies checklist and then developed a response plan for the targeted individuals.

         Although the steps have changed somewhat over the years, most of them were in place during the time period in which plaintiff was a potential candidate.

         It is particularly relevant to the deterrence goal of the program whether an individual is actively engaging in criminal activity. The unit considers charged offenses for all candidates because even if an individual is not ultimately convicted, a charged offense indicates that there was adequate probable cause to charge the person with a crime. Charged offenses may not result in convictions for many reasons. For example, it is extremely difficult to prosecute some offenses, particularly domestic violence offenses, because witnesses may be intimidated by the offender and may refuse to testify. An individual with a high number of charged offenses for domestic violence-related incidents is seen as a threat to the community and to victims, even if the individual has not been convicted of a high number of crimes.

         After the Special Investigations Unit identifies potential candidates using the seven-step process identified above, those candidates are subject to a separate and independent selection process for participation in a “notification call-in” or meeting. A notification selection committee makes the final decision as to which 10 to 15 repeat violent offenders will be called in for the notification meeting. Committee members include representatives from the Department of Corrections, the United States Attorney's Office, the Dane County District Attorney's Office, the Wisconsin Department of Corrections Pretrial Services Office, Community Against Violence, the Madison Police Department and the Bureau of Alcohol, Tobacco, Firearms and Explosives. At the committee meeting held in advance of each scheduled notification, the Special Investigations Unit presents a list of potential notification candidates to the committee using a numbering system. Although the unit provides the committee an overview of each candidate's criminal history (including convictions and charges, dates of offenses and recent criminal activity), the candidates' names and race are not revealed to the committee to avoid bias. The committee considers the offenders' overall criminal history and whether the candidates and community would benefit from notification. Individuals not selected for notification remain eligible for future notification selection.

         The selected candidates' supervising agents inform the candidates of the notification meeting date, time and location in a letter mandating their attendance. At the notification meetings, members of the Special Investigations Unit explain the purpose of the unit and inform the offenders that they will be monitored more than they had been in the past and will face a swift and aggressive response if they continue their violent behavior. The purpose of the notification meeting is to clearly and directly communicate to the identified individuals that they will be treated differently so long as they continue committing violent criminal offenses. In particular, they will be subject to increased scrutiny by law enforcement and, if they commit additional criminal offenses, the unit will advocate for maximum penalties. (Regardless of participation in the focused deterrence program, the Madison Police Department can increase law enforcement scrutiny and advocate for maximum penalties for all offenders.)

         The notification call-in also provides offenders resources and information they can use to become positive and productive members of the community, such as help with building job skills, education, housing, transportation, substance abuse treatment, mental health treatment, domestic abuse avoidance, legal resources and driver's licenses or other governmental documents. Family members and significant others of the offenders are encouraged to attend the notification because social influence can be an effective element of deterrence and support.

         The Special Investigations Unit shares the identities of the offenders who attend a notification with other police department units and law enforcement agencies for the purposes of officer safety, intelligence sharing and additional monitoring, but the names of notified offenders are not publicly released. The unit also assists the Department of Corrections with continued monitoring of notified offenders. In the event that a notified offender is arrested on new charges, the unit may communicate directly with the district attorney's office or the United States Attorney's office in order to expedite prosecution. (The Madison Police Department can request expedited prosecution regardless whether an individual is a notified offender in the program.)

         The first notification occurred on November 8, 2011. As of August 2018, the unit has held 12 notifications and has notified a total of 132 individuals. Of those 132 offenders, 112 are African-American, 15 are Caucasian and five are Hispanic. In addition to the notification meetings, the Special Investigations Unit uses traditional policing methods to monitor and investigate offenders who have been notified under the focused deterrence program, such as home visits, surveillance, employer checks, partnerships with other law enforcement agencies, confidential informants and, when appropriate and authorized, telephone tracking, search warrants, DNA sample collection, fingerprint samples, interviews and asset seizure. (With proper authorization, the Madison Police Department could take any of these actions regardless of an individual's membership in the focused deterrence program.)

         B. Plaintiff's ...

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