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Minett v. Overwachter

United States District Court, W.D. Wisconsin

January 15, 2020

TOUSSAINT MINETT, SR., Plaintiff,
v.
BRADLEY OVERWACHTER, Defendant.

          OPINION AND ORDER

          BARBARA B. CRABB DISTRICT JUDGE

         Plaintiff Toussaint Minett, Sr., who initially filed a pro se complaint but is now represented by counsel, is proceeding on a claim that defendant Bradley Overwachter wrongly arrested him for operating a vehicle while intoxicated, in violation of his rights under the Fourth Amendment. Before the court is defendant's motion for summary judgment in which he maintains that he is entitled to qualified immunity with respect to plaintiff's claim. Dkt. #17. Because I conclude that defendant is entitled to qualified immunity, I am granting the motion.

         PRELIMINARY EVIDENTIARY MATTER

         Plaintiff objects to defendant's proposed findings of fact nos. 22 to 23 and 25-29 on the ground that they are based on hearsay contained in the police report of the incident in question. Specifically, plaintiff objects to statements made by two other police officers who reported to the scene with defendant and authored supplements to the police report. However, a police report is admissible under the business records exception to the hearsay rule if: (1) “the record was made at or near the time by-or from information transmitted by-someone with knowledge”; (2) “the record was kept in the ordinary course of a regularly conducted activity of a business, organization, occupation, or calling”; (3) “making the record was a regular practice of that activity”; (4) “all these conditions are shown by the testimony of a custodian or another qualified witness”; and (5) “the opponent does not show that the source of the information or the method or circumstances of preparation indicate a lack of trustworthiness.” Fed.R.Evid. 803(6). Similarly, public records are admissible to the extent that they set out “a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel, ” as long as there is no reason to doubt the trustworthiness of the record. Fed.R.Evid. 803(8)(A)(ii) and (B). See also Jordan v. Binns, 712 F.3d 1123, 1133 (7th Cir. 2013) (police reports generally excluded as hearsay except to extent that they incorporate firsthand observations of officer). After reviewing the report and defendant's affidavit submitted in conjunction with it, I am satisfied that these conditions are satisfied, and plaintiff has not argued otherwise. Therefore, the officers' observations and statements contained in the police report are admissible.

         Second, plaintiff contends that third-party witness statements summarized in the police report are inadmissible hearsay (or hearsay within hearsay). Jordan, 712 F.3d at 1133 (“[T]hird-party statements contained in a police report do not become admissible for their truth by virtue of their presence in a public record and instead must have an independent basis for admissibility”). However, plaintiff fails to explain how the third-party witness statements are being offered as proof of the truth of the matter asserted. Fed.R.Evid. 801(c)(2) (“‘Hearsay' means a statement that . . . a party offers in evidence to prove the truth of the matter asserted in the statement.”). See also Torry v. City of Chicago, 932 F.3d 579, 585 (7th Cir. 2019) (failure to develop hearsay argument is enough to dispense with it); Mathews v. REV Recreation Group, Inc., 931 F.3d 619, 623 n.2 (7th Cir. 2019). The witness statements summarized in the police report have been offered to show what information had been provided to defendant and the effect that this information had on him. Torry, 932 F.3d at 585 (statements introduced to show effect on listener, rather than truth of matter asserted, are not hearsay) (citing 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:20 (4th ed. 2013)); Woods v. City of Chicago, 234 F.3d 979, 986-87 (7th Cir. 2000) (statement in police report not hearsay if offered “to show the effect that the statements had on the officers” who heard it). For example, statements by plaintiff's supervisor that plaintiff had not returned to work after a break and that a cleaning crew member had seen plaintiff driving a short time earlier were not offered to prove that plaintiff had been driving while intoxicated but rather to show how a reasonable officer might have reacted to that information. Torry, 932 F.3d at 585 (suspect descriptions contained in police report offered to show that competent officer aware of that information could conclude that there was reasonable suspicion to stop Torry and his passengers); Woods, 234 F.3d at 987 (Fourth Amendment analysis does not turn on whether witness tip turns out to be true). Accordingly, plaintiff's hearsay objections with respect to the third-party witness statements are denied.

         From the parties' proposed findings of fact and evidence in the record, I find the following facts to be material and undisputed unless otherwise noted.

         UNDISPUTED FACTS

         Plaintiff Toussaint Minett was employed by the Wisconsin Department of Administration as a senior power plant engineer in July 2016. At that time, he was on light duty because of an injury and he was performing maintenance at the state capitol building. Defendant Bradley Duerwachter worked as a police officer for the Wisconsin Division of Capitol Police from November 2, 2015 until March 25, 2017. He then took a position with the Oconomowoc Police Department, where he is currently employed.

         A little after 10:00 p.m. on July 14, 2016, defendant was patrolling downtown Madison in his squad car when he noticed a red sports utility vehicle parked in the Martin Luther King, Jr. Boulevard driveway of the capitol building. Defendant heard loud music coming from the vehicle, so he parked his squad in the driveway behind the vehicle so he could investigate. (Defendant says that the music could be heard from a block away. Plaintiff admits that he was playing music but he says that the music could not be heard from a block away.) At that time, plaintiff was sitting on a park bench with three other members of the cleaning staff. Defendant exited his squad and asked plaintiff to turn down the radio. According to the police report, defendant made contact with plaintiff at approximately 10:06 p.m., and Officer Bryn Callen reported to the scene on foot at 10:08 p.m. (The parties dispute who encountered the other first. Defendant says that plaintiff approached him and said that the vehicle was his. Plaintiff says that defendant was the one who approached him and asked for the music to be turned down.) The sports utility vehicle is not registered to plaintiff and belongs to his son.

         Plaintiff turned the radio off by grabbing the keys from the ignition. The engine was off at the time. He then dropped the keys and stated that he was only having a “good time.” Defendant smelled the odor of intoxicants when he was talking with plaintiff and observed that plaintiff had slurred speech, was having trouble keeping his balance and had a hard time sitting still. Based on his training and experience dealing with intoxicated people around the capitol building, defendant believed that plaintiff was intoxicated. (Plaintiff says that he did not “feel” intoxicated but he does not otherwise contradict defendant's observations of his behavior and actions.) Defendant ordered plaintiff to sit on the ground, not move and produce identification. (Although defendant does not dispute this fact, he says that he ordered plaintiff to sit on the bench where he observed plaintiff swaying.) Plaintiff was not free to go at that point.

         Defendant took plaintiff's identification to the squad car to check plaintiff's driving record and criminal history. He learned that plaintiff had a revoked driving status and an open case with a no-driving condition. After about 10 minutes, defendant walked back to plaintiff, told him to stand up and asked him whether he had been drinking. Plaintiff told defendant that he had drunk a couple of beers. Defendant observed that plaintiff was wearing a shirt that he recognized as a shirt worn by the capitol building cleaning crew and asked plaintiff whether he had been driving. Plaintiff said no, but it did not appear to defendant that there was anyone else in the vicinity who could have driven the vehicle. (Although plaintiff said he had been sitting with three other men when defendant arrived, he does not explain their whereabouts or otherwise dispute defendant's observation.) Because defendant was concerned that plaintiff may try to drive home, he asked plaintiff if there was someone he could call to pick him up. Plaintiff gave defendant his wife's number, and defendant called her to come pick up plaintiff. Defendant's questioning of plaintiff lasted seven or eight minutes. Defendant did not return plaintiff's identification.

         At this point, defendant did not believe that a crime had been committed, but he was concerned because plaintiff seemed “highly intoxicated.” Therefore, he ordered plaintiff to take a preliminary breath test to determine whether plaintiff needed medical attention. Officer Callan performed the test. Plaintiff's blood alcohol content was .146 percent, which is well above the legal limit to drive but not high enough to require defendant to bring plaintiff to a detoxification center for medical care. At some point after the preliminary breath test, while defendant was talking with plaintiff, Officer Callen spoke with a witness who claimed to have seen plaintiff driving recklessly earlier that evening.

         (Plaintiff says that after the test, the officers handcuffed him and sat him on the ground for about 30 minutes while defendant canvassed the capitol grounds. However, defendant has produced video footage that clearly shows that this did not happen. The United States Supreme Court has held that in cases in which video evidence contradicts a plaintiff's version of events, the court should not accept the plaintiff's story for purposes of summary judgment. Scott v. Harris, 550 U.S. 372, 378-80 (2007); Gillis v. Pollard, 554 Fed.Appx. 502, 506 (7th Cir. 2014). A review of the video shows that plaintiff was not handcuffed or placed on the ground after the preliminary breath tests. Dkt. #20, exh. #102 at 45:25 to 52:40. Rather, he was handcuffed about 15 minutes later, after stumbling during a field sobriety test. Id. at 1:15:58.)

         At approximately 10:30 p.m., Sergeant Andrew Hyatt responded to the scene and observed that plaintiff appeared to be very intoxicated with slurred speech, bloodshot and glassy eyes and difficulty keeping his balance. Hyatt asked plaintiff if he was taking medications, and plaintiff said that he was taking a muscle relaxant. Plaintiff retrieved the pill bottle from the car, and while he was doing so, Hyatt saw a ...


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