United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE
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.
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.
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
the parties' proposed findings of fact and evidence in
the record, I find the following facts to be material and
undisputed unless otherwise noted.
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.
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.
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.
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.
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
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.)
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 ...