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Estate of Smith v. City of Milwaukee

United States District Court, E.D. Wisconsin

October 18, 2019

The ESTATE of SYLVILLE K. SMITH, by Personal Representative Mildred Haynes, Patrick Smith, and Mildred Haynes, on her own behalf, Plaintiffs,
v.
CITY OF MILWAUKEE, WISCONSIN and DOMINIQUE HEAGGAN-BROWN, Defendants.

          DECISION AND ORDER

          LYNN ADELMAN DISTRICT JUDGE

         Plaintiffs have sued the Defendants under 42 U.S.C. § 1983 and state common law, alleging Fourth and Fourteenth Amendment violations, assault and battery, wrongful death, and intentional and negligent infliction of emotional distress. See ECF No. 1 at 17-25. On April 30, 2019, the defendants moved for summary judgment based on qualified immunity. ECF No. 44. The motion is fully briefed and ready for disposition. For the reasons given below, the defendants' motion for summary judgment is DENIED.

         I. BACKGROUND

         On the afternoon of August 13, 2016, Officer Dominique Heaggan-Brown of the Milwaukee Police Department shot (twice) and killed Sylville Smith while pursuing Smith in a brief foot chase that ended at 3218 N. 44th Street in Milwaukee. ECF No. 52 at ¶ 1. Heaggan-Brown was an on-duty, uniformed police officer of the City of Milwaukee, operating a black and white Chevy Tahoe SUV squad car. Id. at ¶ 2. Heaggan-Brown was in the Tahoe by himself. Id. at ¶ 4. Heaggan-Brown was near the end of an overtime assignment that started at 2:00 p.m. and would run until 4:00 p.m., at which point he would start his regular shift that would run from 4:00 p.m. to 12:00 a.m. Id. at ¶ 5. Heaggan-Brown had experience working this area. Id. at ¶ 7. During this assignment, Heaggan-Brown was working in concert with two other Milwaukee PD officers in a separate car, Ndiva Malafa and Richard Voden. Id. at ¶ 9. Officers Malafa and Voden were operating a grey, unmarked Ford Crown Victoria. Id. at ¶ 10. The three officers, conversing over radio, decided at around 3:15 p.m. to drive back to the appropriate station to attend roll call prior to their regular shifts. Id. at ¶ 11.

         The circumstances of the officers' initial engagement with Smith are disputed. The defendants claim that the three officers decided via radio to drive back to their station through the Sherman Park area, a regular patrol area for the officers due to high levels of criminal activity. ECF No. 46 at ¶¶ 11-13. Heaggan-Brown radioed the other two officers that he wanted to check the area of North 44th Street and West Burleigh Street, an area known by Heaggan-Brown for numerous drug-dealing complaints. Id. at ¶¶ 15-16. The plaintiffs contend that the officers were looking for an opportunity to get in a foot chase.[1] ECF No. 52 at ¶¶ 14-15. Defendants counter by saying the officers' communication reflects mere anticipation of a foot chase. ECF No. 58 at ¶¶ 21-22.

         Upon arriving in the 44th Street area, just north of 44th Street and West Auer Avenue, Heaggan-Brown claims that he observed a vehicle illegally parked too far from the curb in front of 3216 N. 44th Street. ECF No. 46 at ¶¶ 17-18; Cf. ECF No. 51 at ¶ 23 (“The only allegedly unlawful act Heaggan-Brown witnessed was a car he thought was parked too far from the curb.”) (emphasis added); ECF No. 52 at ¶¶ 17-18. Whether Heaggan-Brown observed an individual (1) exit the vehicle on the passenger side, (2) see the marked police vehicle driven by Heaggan-Brown, and (3) quickly walk away from the parked vehicle is disputed, as is the significance of such. See ECF No. 46 at ¶¶ 20-25; ECF No. 52 at ¶¶ 20-25. What is clear is that Heaggan-Brown parked his vehicle alongside the subject vehicle, partially in front of and parallel to, about three feet from the driver's side of that vehicle, and observed someone in the driver's seat. ECF No. 52 at ¶ 26; ECF No. 58 at ¶ 25. Smith, the driver of the parked vehicle, then exited the vehicle and began to run.[2] Heaggan-Brown pursued Smith; Officer Malafa joined the pursuit, with Heaggan-Brown in the lead. ECF No. 52 at ¶ 30. Smith possessed a handgun as he fled. Id. at ¶ 38. The brief chase saw Smith run toward 3218 N. 44thStreet, where Smith lost his footing and fell as he came upon a chain-link fence on the side of the house. ECF No. 58 at ¶ 39. Smith's fall placed him in front of the fence, which was about four feet tall. ECF No. 52 at ¶¶ 47-48. Smith had dropped the handgun. Id. at ¶ 45. Smith got up after falling, grabbed the gun[3] he had dropped, and, while glancing back at Heaggan-Brown, threw it over the fence, having picked up the gun by the muzzle. ECF No. 58 at ¶ 43, ¶ 45.

         Heaggan-Brown had drawn his service pistol and had it at a ready position as he was approaching[4] Smith near the fence. ECF No. 52 at ¶ 51. Smith's precise physical movements, from falling near the fence to Heaggan-Brown firing the first shot, are disputed. Defendants say that either Officer Malafa or Heaggan-Brown screamed, “Drop the gun!” and “Put your hands up!” ECF No. 46 at ¶ 53. Defendants further claim that Heaggan-Brown saw the pistol in Smith's hand as Smith was getting up from his fall and, given the movement and position of the pistol, the movement of Smith's head and torso, Smith's failure to drop the gun, and his continued flight, Heaggan-Brown thought Smith was going to shoot the two officers. Id. at ¶¶ 54-60. Plaintiffs emphasize that Smith, in getting up, was attempting to resume his flight from the officers and generally was non-threatening; Heaggan-Brown knew this, but still shot him anyways. ECF No. 51 at ¶¶ 41-46. Plaintiffs also dispute that any verbal warning was given by officers prior to Smith being shot. ECF No. 52 at ¶¶ 31, 39. What is agreed upon is that Heaggan-Brown subsequently shot Smith, leaving a wound in Smith's bicep. ECF No. 52 at ¶¶ 61, 65.

         This caused Smith to fall to the ground. Both sides contest the precise mechanics of the fall and moments before the second shot. Defendants claim Heaggan-Brown screamed for Smith to show his hands[5] and perceived that Smith then moved his right hand towards his waistband, while looking at Heaggan-Brown, as if he was reaching for a second weapon with which to shoot the officers. ECF No. 46 at ¶¶ 67-68. Plaintiffs' description is that Smith fell on his back, face-up, hit his head on the ground in doing so, and had his hands near his head before being shot a second time; Smith was thus “incapacitated” at this point. ECF No. 51 at ¶¶ 55-57, 62-63. What is clear is that Smith was on his back, his feet raised in the air, his hands above his head, and was located in a corner of the yard between the fence and a house, when Heaggan-Brown fired a second shot, this one into Smith's upper left chest.[6] See ECF No. 52 at ¶ 70; ECF No. 58 at ¶ 60. The second gunshot was fatal. ECF No. 52 at ¶ 71; ECF No. 58 at ¶ 65. Heaggan-Brown fired the second shot into Smith approximately 1.69 seconds after firing the first shot. ECF No. 52 at ¶ 70. The entire incident, from initial engagement to the use of deadly force, took thirty seconds or less. Id. at ¶ 72. Officer Malafa did not fire his weapon during this interaction.[7] Id. at ¶ 66.

         II. DISCUSSION

         A. Standard of Review

         Summary judgment is required where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When considering a motion for summary judgment, the evidence and all inferences that reasonably can be drawn from the evidence are construed in the light most favorable to the non-moving party, here, the plaintiff. Sallenger v. Oakes, 473 F.3d 731, 739 (7th Cir. 2007) (citing Leaf v. Shelnutt, 400 F.3d 1070, 1078 (7th Cir. 2005)). I must grant the motion only if no reasonable juror could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). These summary judgment principles still apply where defendants invoke qualified immunity. See Tolan v. Cotton, 572 U.S. 650, 656-57, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014). See also Weinnmann v. McClone, 787 F.3d 444, 449 (7th Cir. 2015) (in qualified immunity context, court's “task is to determine, under [plaintiff's] version of the facts, if [the defendant-officer] was objectively reasonable in his belief that his life was in danger.”).

         B. Qualified Immunity

         The defendants base their summary judgment argument on qualified immunity; because Heaggan-Brown is entitled to qualified immunity based on the facts at hand, plaintiffs' federal claims against the City of Milwaukee cannot be maintained and I should relinquish jurisdiction of the remaining state law claims. Plaintiffs counter that summary judgment is inappropriate because Heaggan-Brown is not entitled to qualified immunity; Heaggan-Brown's conduct was unconstitutional in depriving Smith of his right to be free from excessive deadly force and Heaggan-Brown knew this. Plaintiffs further argue that too many material factual disputes remain to warrant summary judgment. In determining whether a defendant is entitled to qualified immunity, courts must “undertake a two-part analysis, asking: (1) whether the facts alleged, ‘[t]aken in the light most favorable to the party asserting the injury, ... show the officer's conduct violated a constitutional right'; and (2) whether the right was clearly established at the time of its alleged violation.” Becker v. Elfreich, 821 F.3d 920, 925 (7th Cir. 2016) (quoting Board v. Farnham, 394 F.3d 469, 477 (7th Cir. 2005)).

         1. Whether the alleged facts show the violation of a ...


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