Froemming v. City of West Allis

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

WILLIAM C. FROEMMING,

Plaintiff,

Case No. 19-CV-996-JPS

v.

CITY OF WEST ALLIS, PATRICK

ORDER

MITCHELL, SGT. WAYNE TREEP,

LETE CARLSON, and RYAN

STUETTGEN,

Defendants.

On July 12, 2019, William C. Froemming (“Froemming”) filed a pro

se complaint alleging violations of his constitutional rights by the City of

West Allis, Wisconsin (“West Allis”), West Allis Chief of Police Patrick

Mitchell (“Chief Mitchell”), Sergeant Wayne Treep (“Sgt. Treep”), Officer

Lete Carlson (“Officer Carlson”), and Officer Ryan Stuettgen (“Officer

Stuettgen”) (collectively, “Defendants”). (Docket #1). On June 5, 2020,

Defendants filed a motion for summary judgment, which is now fully

briefed. (Docket #17). For the reasons explained below, the Court will grant,

in part, and deny, in part, Defendants’ motion.

1. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that a court “shall grant

summary judgment if the movant shows that 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); Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A

fact is “material” if it “might affect the outcome of the suit” under the

applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A dispute of fact is “genuine” if “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Id. A court

must construe all facts and reasonable inferences in the light most favorable

to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360

(7th Cir. 2016). A court must not weigh the evidence presented or determine

the credibility of witnesses; the Seventh Circuit instructs that “we leave

those tasks to factfinders.” Berry v. Chi. Transit Auth., 618 F.3d 688, 691 (7th

Cir. 2010). The party opposing summary judgment “need not match the

movant witness for witness, nor persuade the court that [his] case is

convincing, [he] need only come forward with appropriate evidence

demonstrating that there is a pending dispute of material fact.” Waldridge

v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).

2. RELEVANT FACTS

Froemming, a resident of Hawaii, visited his mother in West Allis in

July 2016. (Docket #20-1 at 1). After Froemming left his mother’s home late

at night on July 13, Officer Carlson, a West Allis police officer, found him

asleep in the driver seat of a vehicle parked on the side of the road in West

Allis at around 3:00 AM on July 14. (Id.) The vehicle’s headlights and

taillights were on when Officer Carlson first observed it (though

Froemming denies that the engine was running). (Id. at 4).

At around 3:10 AM, Officer Carlson pulled her police vehicle behind

Froemming, activated her emergency lights, as well as her squad camera

and body-worn microphone, and approached Froemming’s vehicle. (Id. at

5). She went directly to the driver-side window of the vehicle, looked inside,

and radioed that the car was a rental. (Defendants’ Exhibit 1).1 She then

knocked multiple times on the window and repeatedly ordered Froemming

to roll down his window. (Id.) Eventually, after rolling down the window

approximately two inches,2 Froemming began talking, and Officer Carlson

asked him to roll his window down further. (Id.) Froemming responded by

asking Officer Carlson if she could hear him. (Id.) Officer Carlson said that

she could hear him, and she began explaining that she drove by Froemming

and noticed him asleep in the vehicle. (Id.)

Officer Carlson questioned Froemming as to how he arrived at the

scene. (Id. at 7). Froemming initially stated that he was coming from his

mother’s house near the intersection of 86th Street and Lincoln Avenue. (Id.)

Officer Carlson asked him if he knew where he was parked and how long

he had been there. (Id.) Froemming did not know how long he had been

parked at the location, and, when Officer Carlson again asked him where

he had come from, he told her he had been at a friend’s house near 48th

Street and Oklahoma Avenue. (Id. at 8). Froemming told her that he was

“just cruising” around. (Id.)

Officer Carlson asked Froemming for his identification, and he

refused, claiming that he was not driving so she could not “stop” him. (Id.)

She asked several more times for his identification, and he refused each

time, arguing that he cannot be “stopped” while parked, as he was not

driving or operating the vehicle. (Id.) Officer Carlson explained that she

stopped him because he was slumped over, did not know where he was or

1Defendants’ Exhibit 1 is a video of the incident, available on a USB flash

drive submitted to the Court.

2Froemming asserts that he turned the vehicle on at this time in order to

roll down the window. (Docket #20-1 at 6–7).

where he came from, and was refusing to identify himself, and because she

could smell the odor of alcohol emanating from the vehicle. (Id. at 9).

Froemming continued to argue over whether he could be “stopped” in a

parked vehicle. (Id. at 10).

Officer Carlson requested over her radio that a supervisor come to

the scene and informed Froemming of such. (Id. at 11). Soon, Sgt. Treep

arrived on scene and ordered Officer Carlson to move her squad car closer

to Froemming’s vehicle. (Id.) While Officer Carlson was moving her vehicle,

Sgt. Treep began talking with Froemming. (Defendants’ Exhibit 1). It is

unclear what they discussed, as only Officer Carlson’s equipment was

recording the audio of the event. (Docket #20-1 at 13–14). At this point,

several other officers, including Officer Stuettgen, had arrived.

When Officer Carlson returned back to Froemming’s vehicle, Sgt.

Treep could be heard telling Froemming that the officers intervened

because Froemming was passed out in his car and his eyes were glassy and

bloodshot. (Id. at 14). Froemming refused to exit the vehicle. (Id.) Sgt. Treep

told him that the officers would punch out the window if he refused to

comply. (Id.) He asked Froemming “one last time” to open the vehicle, and,

when Froemming failed to do so, the officers punched out the passenger-

side window. (Id. at 15–16). They then unlocked the car doors and opened

the driver-side door. (Id. at 16). The officers advised each other to watch out

for Froemming’s seatbelt. (Id.)

Sgt. Treep and Officer Carlson directed Froemming to exit the

vehicle more than once. (Id. at 17). Froemming made no movement to exit,

and Sgt. Treep advised that officers would drag him from the vehicle if he

did not exit willingly. (Id.) Multiple officers then forcibly removed

Froemming and shouted at him to “get on the ground.” (Id. at 18);

(Defendants’ Exhibit 1). Once Froemming was handcuffed, officers

searched his person and stood him up on his feet. (Docket #20-1 at 18).

During the search, officers found marijuana in Froemming’s pocket and

later found a suspected marijuana pipe inside the vehicle.3 (Id.)

The officers took Froemming to the West Allis Police Department

and subsequently released him into his mother’s custody. (Id. at 19). Later,

Froemming acknowledged that he had consumed alcohol on July 13, 2016

prior to driving. (Id. at 21). He was issued municipal citations for the

following offenses: (1) operating while intoxicated; (2) resisting an officer;

(3) possession of drug paraphernalia; and (4) possession of THC. (Id. at 22–

23). The case went to trial at the municipal trial court, and Froemming was

convicted on all four violations, as well as for refusing to comply with

alcohol testing. (Id.) Froemming appealed his convictions in Milwaukee

County case numbers 2017TR15728 and 2017TR15729. (Id. at 23). The city

moved to dismiss case 2017TR15729, and such dismissal was granted. (Id.

at 26). Froemming appealed both of the aforementioned cases to the

Wisconsin Court of Appeals, and that court refused to hear them because

case 2017TR15729 had been dismissed and the Circuit Court had issued no

formal order in case 20l7TR15728. (Id. at 27). Froemming sought no further

action in the state court. In July 2019, he brought the present § 1983 civil

rights action in this Court. Defendants now move for summary judgment.

3. ANALYSIS

Froemming alleges that the Defendants violated his constitutional

rights by: (1) unlawfully detaining him in violation of the Fourth

3The municipal court found Froemming guilty of possession of drug

paraphernalia and THC. (Docket #17-10 at 5, 7). Those findings remain

unreversed.

Amendment; (2) unlawfully arresting him in violation of the Fourth

Amendment; (3) using excessive force in violation of the Fourth and

Fourteenth Amendments; (4) engaging in malicious prosecution;

(5) retaliating against him in violation of the First Amendment; and

(6) maintaining training policies, procedures, and practices with deliberate

indifference to constitutional rights. In order to prevail on a § 1983 claim, a

plaintiff must show that the defendants (1) deprived him of a federal

constitutional right (2) while acting under color of state law. Reed v. City of

Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996). It is undisputed that Defendants

acted under color of state law. Therefore, the Court will turn to the issue of

whether Defendants deprived Froemming of his constitutional rights.

3.1 Unlawful Detention in Violation of the Fourth Amendment

Froemming complains that he was unlawfully detained by Officer

Carlson in violation of the Fourth Amendment when she pulled her police

vehicle behind him and activated the emergency lights. Defendants argue

that Officer Carlson acted reasonably in her initial interaction with

Froemming under the community caretaking doctrine and, therefore, is

protected by qualified immunity. The Court agrees with Defendants and

will grant them summary judgment on this claim.

The Fourth Amendment protects “against unreasonable searches

and seizures.” Cady v. Dombrowski, 413 U.S. 433, 439 (1973) (quoting U.S.

Const. amend. IV). Generally, a search or seizure is “unreasonable” where

the police do not have probable cause that a crime was committed. Id. But

there are various exceptions to the probable-cause requirement—one of

which is the “community caretaking” doctrine. Sutterfield v. City of

Milwaukee, 751 F.3d 542, 553 (7th Cir. 2014) (discussing the community

caretaking doctrine, the emergency aid doctrine, and the exigent

circumstances doctrine). The community caretaking doctrine “recognizes

that police sometimes take actions not for any criminal law enforcement

purpose but rather to protect members of the public.” Id.

The U.S. Supreme Court has provided limited guidance on this

exception, see Mason v. Green County, 451 F. Supp. 3d 984, 993 (W.D. Wis.

2020), and the Seventh Circuit and Wisconsin courts “are divided over the

scope of the community caretaker doctrine.” Foshey v. City of Ellsworth Police

Officer Sgt. Darren Ekholm, No. 19-CV-434-SLC, 2020 WL 5367219, at *7

(W.D. Wis. Sept. 8, 2020). The Seventh Circuit “has limited the doctrine to

warrantless searches of automobiles.” Id.; but see Woods v. Village of Bellwood,

No. 19-CV-01214, 2020 WL 6894660, at *5 (N.D. Ill. Nov. 24, 2020)

(explaining that the community caretaking doctrine may apply when police

“check on incapacitated people in vehicles in public places”). Wisconsin

courts, on the other hand, “have interpreted the community caretaker

doctrine more broadly,” going so far as allow the doctrine “to justify certain

seizures and warrantless entries into and searches of the home when the

police had reason to believe that the occupant might be injured or otherwise

in danger.” Foshey, 2020 WL 5367219, at *7.

While both state and federal courts “possess the authority and

indeed the obligation to interpret and apply the Fourth Amendment”

where the Supreme Court has not, their differing interpretations sometimes

create conflicting rules. Sutterfield, 751 F.3d at 554. Certain community-

caretaking police actions may be permissible under Wisconsin law but

unconstitutional under Seventh Circuit precedent. Id. (“Because the

Wisconsin courts . . . have accorded a much broader sweep to the

community caretaker doctrine . . . [police] [may have had] reason to believe

that [their action] was justified.”). In these situations, “[q]ualified immunity

gives government officials breathing room to make reasonable but

mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 563

U.S. 731, 743 (2011).

Qualified immunity provides government officials a shield from

civil liability under § 1983 “insofar as their [discretionary] conduct does not

violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982); see also Taylor v. Weitzman, 470 F. Supp. 3d 806, 811 (N.D. Ill.

2020) (explaining qualified immunity in the context of § 1983 actions at the

summary-judgment stage). To determine the applicability of qualified

immunity at the summary-judgment stage, a court must engage in a two-

part analysis to determine whether (1) the facts, viewed in the light most

favorable to the non-movant, establish the violation of a constitutional

right, and (2) the constitutional right at issue was “clearly established” at

the time of the official’s purportedly illegitimate conduct. Pearson v.

Callahan, 555 U.S. 223, 236 (2009); Taylor, 470 F. Supp. 3d at 811.

Froemming has failed on prong two of this analysis.4 “To be clearly

established, a right must be sufficiently clear that every reasonable official

would [have understood] that what he is doing violates that right.” Reichle

v. Howards, 566 U.S. 658, 664 (2012) (internal quotation omitted). To defeat

a defense of qualified immunity, a plaintiff need not point to a case that is

4Courts may exercise “their sound discretion in deciding which of the two

prongs of the qualified-immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Pearson, 555 U.S. at 236. In this case,

the Court will begin with prong two—whether the constitutional right was clearly

established at the time of the alleged violation. See id. (“In some cases, a discussion

of why the relevant facts do not violate clearly established law may make it

apparent that in fact the relevant facts do not make out a constitutional violation

at all.”).

factually identical to the present suit, but “existing precedent must have

placed the statutory or constitutional question beyond debate.” Ashcroft,

563 U.S. at 741. “In other words, immunity protects ‘all but the plainly

incompetent or those who knowingly violate the law.’” White v. Pauly, 137

S. Ct. 548, 551 (2017) (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)).

Wisconsin cases are relevant as to what a reasonable Wisconsin police

officer would have thought was permissible in exercising her community

caretaking functions. Sutterfield, 751 F.3d at 573 (“In the absence of a

controlling decision by the United States Supreme Court . . . Wisconsin

cases are . . . as relevant as our own precedents in evaluating what a

Wisconsin police officer might have thought the law permitted.”); see, e.g.,

Foshey, 2020 WL 5367219, at *7 (considering Wisconsin and federal decisions

in determining “whether an officer’s conduct properly falls within the

scope of the community caretaker exception to the Fourth Amendment’s

warrant requirement”).

Wisconsin courts evaluate an officer’s actions under the community

caretaking doctrine using a three-part test:

First, the court considers whether a seizure or search

within the meaning of the Fourth Amendment has

occurred . . . . Second, the court must determine whether

the police conduct was bona fide community caretaking

activity, such as the protection of a person . . . . Third, the

court weighs the public need and interest in acting on that

concern against the degree and nature of the intrusion on

the privacy of the individual.

Foshey, 2020 WL 5367219, at *7–8.

First, in this case, all parties agree that a seizure occurred when

Officer Carlson pulled her police vehicle behind Froemming, activated its

emergency lights, and Froemming rolled down his window in compliance

with her request. (Docket #19 at 2–3; #20 at 3–4). For purposes of summary

judgment, the Court will accept that Froemming was seized. In re Kelsey

C.R., 626 N.W.2d 777, 787 (Wis. 2001) (“[T]o effect a seizure, an officer must

make a show of authority, and the citizen must actually yield to that show

of authority.”).

Second, the Court must determine whether Officer Carlson was

conducting a bona fide community caretaking function when she seized

Froemming. A court must “assess the totality of the circumstances

surrounding [the officers’] conduct.” State v. Rice, 786 N.W.2d 489 (Table),

2010 WL 1233936, at *5 (Wis. Ct. App. Apr. 1, 2010). “Where the totality of

the circumstances provides an objectively reasonable basis for community

caretaker activity, the police conduct meets the bona fide community

caretaker standard.” Id.

In Long v. United States, 847 F.3d 916, 921 (7th Cir. 2017), an officer

noticed Long asleep behind the wheel of a vehicle while in line at a fast-

food drive through. The officer approached Long, knocked on the window

of his vehicle, and asked him to open the door. Id. The court held that the

officer was engaged in a community caretaking function when he

instructed Long to open the car door to determine whether Long was safe.

Id. (quoting Sutterfield, 751 F.3d at 553) (“The Constitution allows officers to

perform these kinds of caretaking functions because, in doing so, they are

‘tak[ing] actions not for any criminal law enforcement purpose but rather

to protect members of the public.’”); see also Woods, 2020 WL 6894660, at *5

(“The police are allowed to check on incapacitated people in vehicles in

public places without running afoul of the Constitution.”); Karney v. City of

Naperville, No. 15 C 4608, 2016 WL 6082354, at *5 (N.D. Ill. Oct. 18, 2016)

(finding that “it was reasonable for the police officers, acting in their

community caretaking function, to wake Plaintiff up to check on his status”

when they found him sleeping in his running car in a parking lot); State v.

Myer, 895 N.W.2d 104 (Table), 2016 WL 7437661, at *3 (Wis. Ct. App. Dec.

22, 2016) (“It is true that [the defendant] could have been ‘simply sleeping,’

but there was also a realistic possibility that he was at risk of harm.”).

In the present case, both parties stipulate that “Officer Carlson

observed Mr. Froemming slumped over in the driver seat of a vehicle with

the tail and headlights on,” and that “the tail lights in the vehicle remain[ed]

illuminated for nearly 10 minutes not going out until after 3:19 AM.”

(Docket #20-1 at 4). Defendant was parked in a rental car without a permit

in a location requiring one. (Id. at 10). The parties dispute whether the

vehicle was actually running at the time Froemming was seized, but they

do not dispute that the vehicle’s lights were on. (Id. at 40). Officer Carlson

testified (and Froemming appears to accept as true) that she “did not think

[Froemming] had done anything wrong, [and] that is why [she] was

investigating.” (Docket #19 at 5).5 Under these circumstances, it was

objectively reasonable for Officer Carlson to exercise her community

caretaking responsibilities. She had reason to believe that a person was

potentially operating a running vehicle while in an unfit state of

consciousness to do so safely. It was reasonable for her to believe that

Froemming was in need of assistance.

Finally, the Court must weigh the public need and interest in Officer

Carlson acting on her concern for Froemming’s well-being against the

5Froemming argues that because Officer Carlson did not immediately call

for emergency medical services, she was not engaged in community caretaking.

(Docket #19 at 5). However, an officer may assess the scene to determine whether

emergency medical care is needed before calling an ambulance. See, e.g., State v.

Ferguson, 629 N.W.2d 788, 791 (Wis. Ct. App. 2001).

degree and nature of the intrusion on his privacy. Foshey, 2020 WL 5367219,

at *8. To do this, courts evaluate the following four factors:

(1) the degree of the public interest and the exigency of the

situation; (2) the attendant circumstances surrounding the

search, including time, location, the degree of overt

authority and force displayed; (3) whether an automobile

is involved; and (4) the availability, feasibility and

effectiveness of alternatives to the type of intrusion

actually accomplished.

Id. In this case, the seizure occurred on a public roadway in the early hours

of the morning. At the time of the initial seizure, Officer Carlson’s limited

display of authority included pulling her vehicle behind Froemming,

activating the emergency lights (without using the siren), knocking on

Froemming’s window, and requesting that he lower it. Froemming was in

a vehicle—a setting that, famously, is entitled to a lower degree of privacy.

See Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (“One has a lesser expectation

of privacy in a motor vehicle because its function is transportation and it

seldom serves as one’s residence or as the repository of personal effects.”).

The public has an interest in the police ensuring the safety of persons passed

out in vehicles with activated lights.

Froemming has failed to show “that, in light of Wisconsin precedent

existing at the time, [Officer Carlson] was ‘plainly incompetent’” in her

initial actions with him. Foshey, 2020 WL 5367219, at *8. Officer Carlson

acted reasonably pursuant to the community caretaking doctrine under

Wisconsin law, and, therefore, she is shielded from liability under qualified

immunity. The Court will grant summary judgment for Defendants on

Froemming’s claim that he was unlawfully detained in violation of the

Fourth Amendment.

3.2 Unlawful Arrest in Violation of the Fourth Amendment

Froemming alleges that he was unlawfully arrested in violation of

the Fourth Amendment by Sgt. Treep, Officer Carlson, and Officer

Stuettgen. Defendants argue that the arresting officers had probable cause

to arrest Froemming for violation of Wisconsin’s operating-a-vehicle-while-

intoxicated (“OWI”) law. Wis. Stat. § 346.63(1)(a) (2020). For the reasons

below, the Court will grant summary judgment for Defendants on this

claim.

Although a police interaction may begin under the community

caretaking doctrine, police subsequently may obtain probable cause to

sustain further investigation and an arrest. See Long, 847 F.3d at 921.

Defendants claim the arresting officers had probable to arrest Froemming

under Wisconsin’s OWI law, which provides that “[n]o person may drive

or operate a motor vehicle while . . . [u]nder the influence of an intoxicant . . .

which renders him or her incapable of safely driving.” Wis. Stat. §

346.63(1)(a) (emphasis added). “‘Operate’ means the physical manipulation

or activation of any of the controls of a motor vehicle necessary to put it in

motion.” Id. § 346.63(3). The Court must determine whether the arresting

officers reasonably believed there was probable cause that Froemming had

operated a vehicle while under the influence and, therefore, are protected

by qualified immunity. See Biddle v. Martin, 992 F.2d 673, 676 (7th Cir. 1993)

(noting that, in the context of § 1983 actions for unlawful arrests, “if

reasonable police officers would have believed that probable cause existed

to arrest [the plaintiff], [the police officers] are entitled to qualified

immunity from [the plaintiff’s] suit.”).

“In determining whether probable cause exists, [a court] must look

to the totality of the circumstances.” State v. Babbitt, 525 N.W.2d 102, 104

(Wis. Ct. App. 1994); see also State v. Mertes, 762 N.W.2d 813, 818 (Wis. Ct.

App. 2008) (“[O]peration for purposes of the drunk driving laws can be

proved circumstantially.”) (internal quotations and citations omitted).

Under Wisconsin law as it relates to OWI offenses, probable cause does not

“arise[] simply from smelling alcohol on a person who has alighted from a

vehicle after it has stopped—and nothing else.” State v. Meye, 789 N.W.2d

755, 755 (Wis. Ct. App. 2010) (surveying Wisconsin case law).

In Milwaukee County v. Proegler, 291 N.W.2d 608 (Wis. Ct. App. 1980),

the Wisconsin Court of Appeals determined that officers had probable

cause to arrest a person for an OWI offense where the person was found

sleeping in the driver seat of his running vehicle parked on an emergency

ramp with the keys in the ignition. The court wrote,

[t]he prohibition against the “activation of any of the

controls of a motor vehicle necessary to put it in motion”

applies either to turning on the ignition or leaving the

motor running while the vehicle is in “park.” One who

enters a vehicle while intoxicated, and does nothing more

than start the engine is as much of a threat to himself and

the public as one who actually drives while intoxicated.

The hazard always exists that the car may be caused to

move accidently, or that the one who starts the car may

decide to drive it.

Id. at 626. Wisconsin courts have further noted that to “operate” a vehicle

under section 346.63(3) “does not require movement.” State v. Modory, 555

N.W.2d 399, 401 (Wis. Ct. App. 1996). “The statute only requires that the

defendant physically manipulate or activate any of the controls necessary

to put [the motor vehicle] in motion.” Id. (internal quotations and citations

omitted).

In a subsequent case, the Wisconsin Court of Appeals had the

opportunity to address whether police had probable cause for an OWI

offense where they arrested a defendant after they found him sleeping in

the driver seat of a vehicle parked at a gas station with the engine off. Mertes,

762 N.W.2d at 817–18. The vehicle’s lights were on and the key was in the

ignition. Id. Upon arriving at the scene, the officers had to knock several

times to awaken the two occupants of the vehicle, and the defendant then

removed the keys from the ignition. Id. at 814–15. The officers noticed the

smell of intoxicants. Id. at 815. The defendant told the officers that he had

driven to the gas station and had been there for about ten minutes. The

court held that, based on the circumstantial evidence, the jury was

permitted to find that the police had probable cause to believe that the

defendant had violated the OWI law by operating the vehicle under the

influence. Id. at 818. “[E]ven absent a running motor,” the police may have

enough circumstantial evidence to reasonably believe the occupant in the

car had operated the vehicle under the influence. Id.; see also Burg ex rel.

Weichert v. Cincinnati Cas. Ins. Co., 645 N.W.2d 880, 886 n.8 (Wis. 2002)

(“’[O]peration’ for purposes of the drunk driving laws can be proved

circumstantially. A defendant found intoxicated behind the wheel of a

parked car with its engine off but still warm might well be prosecuted on

that circumstantial evidence of recent ‘operation.’”).6

6The Wisconsin Supreme Court’s footnote in Burg does not stand for the

proposition that a turned-off engine must be warm in order to support probable

cause, as Froemming may believe. Instead, the court was elaborating that a warm

engine may provide the additional circumstantial evidence needed—beyond a

person merely sitting in their vehicle—for the police to have probable cause that a

person was operating the vehicle.

In the present case, the police found Froemming asleep behind the

wheel of a vehicle at around 3:00 AM. (Docket #20-1 at 1). Whether the

vehicle was running at the time Officer Carlson made her first contact with

Froemming is contested by the parties, but the taillights and headlights

were activated. (Id. at 4). Officer Carlson had to knock on the driver-side

window several times to elicit a response from Froemming. (Id. at 6).

Froemming agrees he then started the vehicle using the push-to-start

mechanism in order to roll down his window. (Id. at 6–7). Froemming first

told Officer Carlson he had come from his mother’s house, but then he said

he come from his friend’s house and that he had been “cruising” around

the neighborhood. These statements gave Officer Carlson reason to believe

that Froemming had driven to his present location. (Id. at 8); cf. Village of

Cross Plains v. Haanstad, 709 N.W.2d 447, 452 (Wis. 2006) (concluding that

defendant did not operate a vehicle where there was no evidence that she

“dr[o]ve the car to the point where the officer found her behind the wheel,”

and plaintiff “offered no circumstantial evidence to prove that [defendant]

had operated the vehicle”). The officers were faced with enough

circumstantial evidence such that a reasonable officer facing similar

circumstances would have believed she had probable cause that

Froemming had or would operate the vehicle. This, combined with

Froemming’s outward signs of intoxication,7 was enough to support the

7The “signs of intoxication” proffered by Defendants include that

Froemming “smelled of intoxicants, slurred his speech, and had red, bloodshot,

glassy eyes.” (Docket #17-3 at 7). After searching the parties’ submissions, the

Court is unable to find an instance of Froemming challenging whether he did, in

fact, exhibit these outward signs of intoxication. Froemming does not attack

Defendants’ basis for probable cause on whether the officers witnessed signs of

intoxication in him. Instead, he continually raises legal arguments “specifically

challeng[ing] the probable cause that he was ‘operating’ the vehicle” at the time of

officers’ belief that they had probable cause to arrest Froemming for an OWI

offense. Thus, the officers are shielded by qualified immunity, and the

Court will grant Defendants’ motion for summary judgment on

Froemming’s claim of unlawful arrest in violation of the Fourth

Amendment.

3.3 Excessive Force in Violation of the Fourth and Fourteenth

Amendment

Froemming next argues that Sgt. Treep, Officer Carlson, and Officer

Stuettgen used excessive force when arresting him, in violation of the

Fourth and Fourteenth Amendments. Defendants argue that the arresting

officers used the minimum amount of force necessary to execute a lawful

arrest. For the reasons stated below, the Court will grant, in part, and deny,

in part, Defendants’ motion for summary judgment as to Froemming’s

claims of excessive force.

The Court will begin by examining Froemming’s claim of excessive

force in violation of his “Constitutional right under the Fourteenth

Amendment to bodily integrity and to be free from excessive force by law

enforcement.” (Docket #1 at 22). Froemming is attempting to bring an

excessive force claim under a theory of substantive due process. Obriecht v.

Raemisch, No. 10-CV-221, 2011 WL 2746133, at *5 (E.D. Wis. July 13, 2011)

(“Substantive due process claims have historically been related to matters

involving . . . the right to bodily integrity.”). However, “[w]here, as here,

the excessive force claim arises in the context of an arrest . . . it is most

his seizure. (Docket #19 at 8–9). Accordingly, the Court will “consider the fact [that

Froemming displayed certain signs of intoxication] undisputed for purposes of the

[summary judgment] motion.” Fed. R. Civ. P. 56(e)(2); see also Civ. L.R. 56(b)(4)

(“The Court will deem uncontroverted statements of material fact admitted solely

for the purpose of deciding summary judgment.”).

properly characterized as one invoking the protections of the Fourth

Amendment,” not of the Fourteenth Amendment. Graham v. Connor, 490

U.S. 386, 394 (1989). Accordingly, the Court will grant summary judgment

to Defendants as to Froemming’s excessive force claim brought under the

Fourteenth Amendment.

The Court next turns to Froemming’s excessive force claim brought

under the Fourth Amendment. The Fourth Amendment “guarantees

citizens the right ‘to be secure in their persons . . . against unreasonable . . .

seizures’ of the person.” Id. (quoting U.S. Const. amend. IV). Accordingly,

“all claims that law enforcement officers have used excessive force . . . in

the course of an arrest . . . should be analyzed under the Fourth Amendment

and its ‘reasonableness’ standard.” Id. at 395. “Determining whether the

force used to effect a particular seizure is ‘reasonable’ under the Fourth

Amendment requires a careful balancing of ‘the nature and quality of the

intrusion on the individual’s Fourth Amendment interests’ against the

countervailing governmental interests at stake.” Id. at 396 (quoting

Tennessee v. Garner, 471 U.S. 1, 8 (1985)). When engaging in this type of

balancing, courts generally consider the following, nonexclusive list of

factors:

the relationship between the need for the use of force and

the amount of force used; the extent of the plaintiff’s injury;

any effort made by the officer to temper or to limit the

amount of force; the severity of the security problem at

issue; the threat reasonably perceived by the officer; and

whether the plaintiff was actively resisting.

Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015).

“The reasonableness inquiry is an objective one, examining ‘whether

the officer’s actions are objectively reasonable in light of the totality of the

facts and circumstances confronting him or her, without regard for

consideration of the officer’s subjective intent or motivations.” Payne v.

Stacy, No. 18-CV-850, 2020 WL 886185, at *3 (E.D. Wis. Feb. 24, 2020), appeal

dismissed, No. 20-1509, 2020 WL 5793102 (7th Cir. June 12, 2020) (quoting

Estate of Williams v. Ind. State Police Dep’t, 797 F.3d 468, 473 (7th Cir. 2015)).

The actions taken by an officer “must be judged from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Graham, 490 U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20–22

(1968)). A court should “keep in mind that police must make split-second

decisions in tense, uncertain situations.” Wis. Carry, Inc. v. City of Milwaukee,

35 F. Supp. 3d 1031, 1038 (E.D. Wis. 2014).

It is true, as Defendants explain, that all arrests involve some form

of touching and minimal use of force—“mere handcuffing, without more,

cannot form the basis of a complaint under [§ 1983].” Bur v. Gilbert, 415 F.

Supp. 335, 342 (E.D. Wis. 1976). However, Froemming alleges more than

just handcuffing. He alleges that the car’s seatbelt was choking him as the

officers pulled out of the vehicle and that any resistance he gave during the

physical altercation was in an attempt to ensure the seatbelt did not choke

him. (Docket #19 at 13). The officers in the video can be heard discussing

that they needed to unbuckle the seatbelt, which indicates that, in fact, it

may have been choking Froemming.

Froemming also claims that once taken to the ground by the officers,

“several officers us[ed] their boots and knees to hold him to the ground

even though he was not resisting.” (Docket #1 at 10). It is unclear from the

video the level of force the officers used on Froemming once he was on the

ground. Froemming lies just outside of the frame of the video, and one

officer intermittently obstructs the view of the camera. Further, Froemming

rebuts Defendants’ claim that he was not injured during this incident.

Froemming asserts that he sustained injuries causing bruising to his face,

and the Court is not able to determine from his booking photo whether

Froemming sustained such bruising. (Docket #17-15); Chelios v. Heavener,

520 F.3d 678, 690 (7th Cir. 2008) (“Although injury is a relevant factor in

determining whether an officer used excessive force, an excessive force

claim does not require any particular degree of injury.”).

At the summary judgment stage, without a factual determination of

what happened during the arrest, the Court cannot determine whether the

force used on Froemming was reasonable or excessive. With such disparate

accounts of what happened and unclear video footage of the event,

summary judgment is not appropriate on the merits of Froemming’s Fourth

Amendment excessive force claim. See Rodriguez v. City of Berwyn, No. 16 C

5106, 2018 WL 5994984, at *12 (N.D. Ill. Nov. 15, 2018) (“The Seventh Circuit

has cautioned that ‘summary judgment is often inappropriate in excessive

force cases’ because ‘the parties typically tell different stories about what

happened’ . . . and because ‘evidence surrounding the officer’s use of force

is often susceptible to different interpretations.’”) (quoting Catlin v. City of

Wheaton, 574 F.3d 361, 367 (7th Cir. 2009)).

3.4 Malicious Prosecution

Defendants also move for summary judgment on Froemming’s

claim that he was maliciously prosecuted in violation of the Fourth and

Fourteenth Amendments by Sgt. Treep, Officer Carlson, and Officer

Stuettgen. For the reasons explained below, the Court will grant summary

judgment to Defendants on this claim.

Under present Seventh Circuit law, “there is no such thing as ‘Fourth

Amendment malicious prosecution,’” and such claims are “plainly

bar[red] . . . where . . . there is an adequate state law remedy.” Stone v.

Wright, 734 F. App’x 989 (7th Cir. 2018) (citing Manuel v. City of Joliet, 137 S.

Ct. 911, 917–20 (2017)); Baker v. City of Chicago, No. 16-CV-08940, 2020 WL

5110377, at *6 (N.D. Ill. Aug. 31, 2020); see also Andersen v. Village of Glenview,

No. 17-CV-05761, 2018 WL 6192171, at *13 (N.D. Ill. Nov. 28, 2018), aff’d, 821

F. App’x 625 (7th Cir. 2020) (rejecting any federal malicious prosecution

claim under the Fourth or Fourteenth Amendment because “as the Seventh

Circuit has repeatedly explained, there is no free-standing constitutional

tort of malicious prosecution”) (internal quotations and citations omitted).

Here, Froemming has not brought forth a “cognizable claim under

federal law.” Metcalf v. Flamburis, No. 18 C 7637, 2020 WL 5891402, at *4

(N.D. Ill. Oct. 5, 2020). This is because Wisconsin law affords a remedy for

malicious prosecution. See Krieg v. Dayton-Hudson Corp., 311 N.W.2d 641,

643 (Wis. 1981) (discussing the elements of malicious prosecution under

Wisconsin law). As Froemming did not bring a malicious prosecution claim

under Wisconsin law, the Court need not wade into whether his claim

would pass inspection. Accordingly, the Court will grant Defendants’

motion for summary judgment on Plaintiff’s claim of malicious prosecution

in violation of the Fourth and Fourteenth Amendments.

3.5 Retaliation in Violation of the First Amendment

Froemming next argues that Sgt. Treep, Officer Carlson, and Officer

Stuettgen unconstitutionally retaliated against him for exercising his First

Amendment, “constitutionally protected right to question law enforcement

and/or engage in protected speech related to the constitutional rights of

citizens with respect [to the Fourth Amendment].” (Docket #1 at 26).

Froemming asserts that the officers were motivated to (1) arrest him, and

(2) use excessive force on him because he questioned their authority to

search his car and person. (Id.) Defendants moved for summary judgment

on Froemming’s retaliation claim, and the Court will grant that request.

At the summary judgment stage, the plaintiff has the initial burden

to make out a prima facie case of First Amendment retaliation by showing

that, “(1) he engaged in activity protected by the First Amendment; (2) he

suffered a deprivation likely to deter such activity; and (3) the First

Amendment activity was at least a motivating factor in the decision to

impose the deprivation.” Hawkins v. Mitchell, 756 F.3d 983, 996 (7th Cir.

2014). If the plaintiff meets this burden, “the burden shifts to the defendant

to rebut the causal inference created by the plaintiff’s showing and to prove

that it would have taken the same action regardless of the plaintiff’s

protected activity.” Brock v. City of Belleville, No. 17-CV-218-JPG-SCW, 2018

WL 2320511, at *7 (S.D. Ill. May 22, 2018). Then, “[i]f the defendant is

successful in rebutting the plaintiff’s prima facie case . . . the burden shifts

back to the plaintiff to demonstrate that the defendant’s proffered reason

was pretextual and that the real reason was retaliatory animus.” Id.

Essentially, the plaintiff must show that “the defendant’s proffered reason

is a lie.” Zellner v. Herrick, 639 F.3d 371, 379 (7th Cir. 2011). Importantly, “in

most cases, probable cause to arrest defeats a claim of retaliatory arrest.”

Lund v. City of Rockford, 956 F.3d 938, 941 (7th Cir. 2020).

To begin, the police reasonably believed that they had probable

cause to arrest Froemming for an OWI violation. See supra Section 3.2. Thus,

Froemming’s claim that he was arrested in retaliation for exercising his First

Amendment rights fails, and the Court will grant summary judgment to

Defendants. The Court will now turn to Froemming’s assertion that police

used excessive force on him in retaliation.

First, it appears from the record that at least some of the statements

Froemming made during the incident may be protected speech under the

First Amendment. For instance, his continual assertions that he was not

“operating” a vehicle and suggestions that the officers could spend their

time better by apprehending actual “criminal[s]” may constitute protected

speech. See City of Houston v. Hill, 482 U.S. 451, 461 (1987) (“[T]he First

Amendment protects a significant amount of verbal criticism and challenge

directed at police officers.”); Abrams v. Walker, 307 F.3d 650, 654 (7th Cir.

2002), abrogated on different grounds by Spiegla v. Hull, 371 F.3d 928 (7th Cir.

2004) (“Our Constitution permits citizens to criticize police officers, within

reason, both verbally and nonverbally.”). Second, the question of whether

the officers used excessive force on Froemming remains an open one that

cannot yet be resolved on summary judgment. See supra Section 3.3.

But it is on prong three that Froemming most flatly fails. Even

construing Froemming’s pro se complaint liberally, the Court struggles to

glean factual allegations that support the assertion that the officers’ alleged

use of excessive force was motivated by retaliation for Froemming’s

protected speech. His main, conclusory allegation is that “[r]etaliatory

animus for [his protected speech] . . . was a substantial motivating factor in

the excessive force used by individual defendants.” (Docket #1 at 26).

Froemming seems to hint that, (1) the absence “of any wrongdoing . . . [and]

discernable threats” to the officers, (2) the proximity between his protected

speech and the alleged excessive force, and (3) his cooperation with the

officers serve as evidence that his constitutionally protected speech was the

motivating factor of the officers’ actions.

Defendants (without admitting use of excessive force) have

“rebut[ted] the causal inference created by the plaintiff[]” and shown that

they “would have taken the same action regardless of the plaintiff’s

protected activity.” Brock, 2018 WL 2320511, at *7. They have alleged

sufficient probable cause for arresting Froemming—meaning that there was

evidence of wrongdoing at the time of the incident and any actions they

took were in response to that. The video shows that Froemming was

refusing to comply with the officers’ orders to exit the vehicle. See State v.

Hobson, 577 N.W.2d 825, 837 (Wis. 1998) (holding that there is no privilege

to forcibly resist unlawful arrests). And further, “while timing may

circumstantially support a retaliation claim, timing alone cannot support a

finding of retaliation.” Mearday v. City of Chicago, 196 F. Supp. 2d 700, 713

(N.D. Ill. 2002).

Finally, Froemming fails to meet his burden of showing that the

police would not have acted as they did “but for” Froemming having

exercised his constitutionally protected speech and that Defendants’

reasoning is entirely “pretextual.” Brock, 2018 WL 2320511, at *7. Based on

the showings made by Froemming, a jury could not find that Defendants

would not have taken their alleged actions but for Froemming exercising

his constitutionally protected right to free speech. Accordingly, the Court

will grant summary judgment to Defendants on Froemming’s claims of

First Amendment retaliation.

3.6 Training Policies, Procedures, and Practices

Lastly, Froemming claims that Defendants West Allis and Chief

Mitchell “developed and maintained policies, procedures, customs, and/or

practices exhibiting deliberate indifference to the constitutional rights of

citizens,” and that such practices were the cause of his injuries. (Docket #1

at 34). The Court will grant, in part, and deny, in part, Defendants’ motion

for summary judgment as to this claim.

In Monell v. Department of Social Services of the City of New York, 436

U.S. 658, 694 (1978), the Supreme Court established that the government

can be held liable under § 1983 “when the execution of a government’s

policy or custom, whether made by its lawmakers or those whose edicts or

acts may fairly be said to represent official policy, inflicts the injury.”

However, the Supreme Court concluded “that a municipality cannot be

held liable solely because it employs a tortfeasor—or in other words, a

municipality cannot be held liable under § 1983 on a respondeat superior

theory.” Id. at 691. Therefore, “[f]or . . . liability to attach, a constitutional

violation must be brought about by (1) an express municipal policy; (2) a

widespread, though unwritten, custom or practice; or (3) a decision by a

municipal agent with ‘final policymaking authority.’” Terry v. County of

Milwaukee, Case No. 17–CV–1112–JPS, 2018 WL 2567721, *5 (E.D. Wis. June

4, 2018) (quoting Darchak v. City of Chi. Bd. of Educ., 580 F.3d 622, 629 (7th

Cir. 2009)). This requirement serves to “distinguish acts of the municipality

from acts of [its] employees . . . and thereby make clear that municipal

liability is limited to action for which the municipality is actually

responsible.” Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir. 2008)

(internal quotations and citations omitted). Additionally, “to state a § 1983

claim against a municipality, the complaint must allege that an official

policy or custom not only caused the constitutional violation, but was ‘the

moving force’ behind it.” Estate of Sims v. County of Bureau, 506 F.3d 509, 514

(7th Cir. 2007) (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)).

Where the plaintiff proceeds under the “second species of Monell

liability” (i.e., that there was a widespread, though unwritten, custom or

practice), he “must plead facts allowing the reasonable inference that

[d]efendants were deliberately indifferent to these widespread practices.”

Estate of Fiebrink v. Armor Corr. Health Servs., Inc., No. 18-CV-832-JPS, 2019

WL 1980625, at *3 (E.D. Wis. May 3, 2019), appeal dismissed sub nom. Estate of

Fiebrink v. Armor Corr. Health Serv., Inc., No. 19-2060, 2019 WL 6499430 (7th

Cir. June 20, 2019). The plaintiff may demonstrate this “by showing a series

of bad acts and inviting the court to infer from them that the policymaking

level of government was bound to have noticed what was going on,” and

therefore, “by failing to do anything must have encouraged or at least

condoned [the activity].” Jackson v. Marion County, 66 F.3d 151, 152 (7th Cir.

1995). The plaintiff must plead facts alleging that the “gap” in defendant’s

policies reflected a decision to act unconstitutionally. Calhoun v. Ramsey, 408

F.3d 375, 380 (7th Cir. 2005). In assessing whether the absence of a policy or

protocol gives rise to a decision to violate a person’s constitutional rights,

the Court will look for “evidence that there is a true municipal policy at

issue, not a random event.” Id.

In the present case, Froemming fails to precisely articulate exactly

which “policies, procedures, customs, and/or practices” were maintained

by Defendants with deliberate indifference for his constitutional rights. The

Court, in attempting to understand Froemming’s complaint, determines

that he generally alleges that there are widespread, though unwritten,

customs or practices that allow police to (1) seize persons without probable

cause, (2) use excessive force during arrests, (3) retaliate when citizens

exercise their First Amendment rights, (4) discriminate, (5) maliciously

prosecute the accused, (6) destroy and tamper with evidence, and (7) falsely

testify. Accordingly, Froemming “must plead facts allowing the reasonable

inference that Defendants were deliberately indifferent to these widespread

practices.” Estate of Fiebrink, 2019 WL 1980625, at *3.

The Court will grant summary judgment for Defendants as to polices

1, 3, 4, and 5. Where there are no underlying constitutional violations, there

can be no “direct causal link” between the policies and a constitutional

violation. City of Canton, 489 U.S. at 386 (“[A] municipality can be found

liable under § 1983 only where the municipality itself causes the

constitutional violation at issue.”). As discussed in the previous sections,

the Court will award summary judgment to Defendants on the alleged

constitutional violations underlying policies 1, 3, and 5. See supra Sections

3.1, 3.4, and 3.5. And, as to policy 4, Froemming has raised no claims that

he was discriminated against. Therefore, the Court will grant summary

judgment for Defendants as to polices 1, 3, 4, and 5.

The Court will also grant summary judgment for Defendants as to

policy 2. Again, where the plaintiff alleges that there was a widespread,

though unwritten, custom or practice, he or she may demonstrate this “by

showing a series of bad acts” which allows a court to draw an inference that

such a custom or practice exists. Jackson, 66 F.3d at 152. As to whether there

was an unwritten custom or practice in West Allis allowing police to use

excessive force, Froemming has alleged only one case of (possible) excessive

force—his own.8 This is not a “series” of incidents in which West Allis police

officers consistently show disregard for the constitutional rights of citizens.

Accordingly, the Court will grant summary judgment for Defendants as to

policy 2.

Finally, the Court will deny Defendants’ request for summary

judgment as to policies 6 and 7. “Stripping the . . . complaint of its excess

8Froemming offers a vague reference with little explanation to a case that

was dismissed in this District by stipulation, Kraus v. City of West Allis, 10-CV-718.

(Docket #19 at 20). The Court will not consider this case.

legal verbiage, what [Froemming] complains about, in constitutional terms,

is the denial of his due process right to a fair trial” when Defendants

allegedly followed the unwritten custom to “suborn[] perjury and

fabricate[] evidence to procure his conviction.” LaBoy v. Zuley, No. 90 C 545,

1993 WL 390249, at *4 (N.D. Ill. Sept. 30, 1993). Froemming presents factual

allegations which, if true, may demonstrate a pattern of Defendants

modifying and destroying video and recorded evidence from his arrest.

(Docket #1 at 18–21). He also points to several occasions on which testifying

officers gave testimony conflicting with their previous statements, as well

as statements Froemming claims are factually inaccurate (e.g., the timing of

his breathalyzer test). (Id.) Defendants have offered little argument on this

issue. (Docket #17-3 at 14–15). At this juncture, the Court cannot grant

summary judgment on the allegation that Defendants were operating

pursuant to unwritten customs or policies that resulted in a violation of

Froemming’s constitutional rights. Thus, Froemming’s claim as to policies

6 and 7 will proceed.

4. CONCLUSION

As discussed, the Court will grant Defendants’ motion for summary

judgment as to Froemming’s claims of (1) unlawful detention in violation

of the Fourth Amendment, (2) unlawful arrest in violation of the Fourth

Amendment, (3) excessive force in violation of the Fourteenth Amendment,

(4) malicious prosecution, and (5) maintaining certain policies (policies 1, 2,

3, 4, and 5) with deliberate indifference to the constitutional rights of

citizens. The Court will deny summary judgment to Defendants on

Froemming’s claims of (1) excessive force in violation of the Fourth

Amendment, and (2) maintaining certain policies (policies 6 and 7) with

deliberate indifference to the constitutional rights of citizens. There remain

genuine disputes of material fact concerning these claims.

Given the uncertain breadth, depth, and trajectory of COVID-19, the

pandemic presents an overarching need to protect the health and safety of

the parties, counsel, jurors, and witnesses, together with the Court's staff

and the public. Accordingly, the Court will withhold issuing a trial

scheduling order until such time as circumstances allow for in-person

proceedings to be conducted safely.

Accordingly,

IT IS ORDERED that Defendants’ motion for summary judgment

(Docket #17) be and the same is hereby GRANTED in part as to

Froemming’s claims of (1) unlawful detention in violation of the Fourth

Amendment, (2) unlawful arrest in violation of the Fourth Amendment, (3)

excessive force in violation of the Fourteenth Amendment, (4) malicious

prosecution, and (5) maintaining certain policies (policies 1, 2, 3, 4, and 5)

with deliberate indifference to the constitutional rights of citizens; and

IT IS ORDERED that Defendants’ motion for summary judgment

(Docket #17) be and the same is hereby DENIED in part as to Froemming’s

claims of (1) excessive force in violation of the Fourth Amendment and

(2) maintaining certain policies (policies 6 and 7) with deliberate

indifference to the constitutional rights of citizens.

Dated at Milwaukee, Wisconsin, this 5th day of February 2021.

vw

AR

PUNY fh Live

J.R. Stale eller

U.S. District Judge

Page 29 of 29