# Konsionowski v. Sikorski

> District Court, E.D. Wisconsin · March 2, 2022

URL: https://www.frixlaw.com/law-library/cases/10716796

## Case

- **Court:** District Court, E.D. Wisconsin
- **Decided:** March 2, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10716796

## How later opinions describe it (automated extraction)

- holding that where the admissible evidence would permit two inferences, one of which would implicate violations of a plaintiff’s clearly established constitutional rights, the case must proceed to trial, and the officers are not entitled to qualified immunity
- finding that absence of probable cause to arrest destroyed justification for police officer’s warrantless search

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________

GREGORY D KONSIONOWSKI,

Plaintiff,
Case No. 19-cv-0596-bhl
v.

PHILLIP J SIKORSKI,
Defendant.

ORDER DECIDING SUMMARY JUDGMENT
______________________________________________________________________________
Plaintiff Gregory D. Konsionowski was a bit shaken up when his car was rear-ended while
stopped at a traffic light in the Village of Menomonee Falls. He remained sufficiently in control
of his faculties to call the police and report the accident and then agreed with the officers that an
ambulance should be summoned. But Konsionowski was blindsided for the second time that day
when one of the officers who arrived on the scene, Defendant Phillip J. Sikorski, required him to
take a field sobriety test before being seen by EMTs, and then arrested him for claimed failures of
that test, while allowing the driver of the other car, a retired police officer from a neighboring
municipality, to leave the scene (she received a citation the next day). Konsionowski claims
Officer Sikorski violated his Fourth and Fourteenth Amendment rights. Officer Sikorski,
predictably, disputes any constitutional impropriety and asks the Court to dismiss Konsionowski’s
claims on summary judgment. Because the facts are disputed and could support some of
Konsionowski’s theories, Defendant’s summary judgment motion must be denied, at least in part.
A reasonable jury could find that Officer Sikorski lacked both reasonable suspicion to perform the
field sobriety tests and probable cause to arrest Konsionowski and search his person and vehicle,
so those claims will survive. As to all other claims—where no disputed questions of fact remain—
summary judgment will be granted in Officer Sikorski’s favor.
FACTUAL BACKGROUND1
On May 2, 2013, at approximately 4:30 p.m., retired Whitefish Bay police officer Chris
Jensen rear-ended Plaintiff Gregory D. Konsionowski at a stoplight at the intersection of Highway
145/124th Street and Leon Road in the Village of Menomonee Falls, Wisconsin. (ECF No. 27 at
¶8, ECF No. 35 at ¶22.) Konsionowski called the Menomonee Falls Police Department, which
dispatched Defendant Officer Phillip J. Sikorski to the scene. (ECF No. 35 at ¶¶2-3.)
Officer Sikorski asked both drivers if they were injured. (Id. at ¶8.) Konsionowski replied
that he was “a little out of it,” “dazed,” and “a little hurt in [his] neck.” (Id.) Officer Sikorski
indicated that he was concerned about whether Konsionowski was injured, so the two agreed that
an ambulance should be called. (ECF No. 27 at ¶11.) Officer Sikorski then briefly spoke with
Konsionowski alone and asked him to retrieve his license and proof of insurance. (ECF No. 35 at
¶10.) During this 63-second interaction, Officer Sikorski claims that he noticed Konsionowski
had very glassy eyes and pinpoint pupils, slurred and deliberate speech, difficulty removing his
license from his wallet, and an unsteady gait. (ECF No. 27 at ¶¶14-17.) Konsionowski disputes
Officer Sikorski’s account. (Id.)
Officer Sikorski separated Jensen and Konsionowski to take their respective statements.
(Id. at ¶12.) He started with Jensen. (Id. at ¶13.) She took responsibility for the accident and told
him she was a retired Whitefish Bay police officer. (ECF No. 35 at ¶¶17, 22.) He asked if she
had been drinking or taking any medication. (Id. at ¶23.) She denied drinking and stated that
while she was on medication, it would not have affected her driving. (Id.) At this point, Officer
Sikorski radioed for backup because he intended to conduct a field sobriety test on Konsionowski.
(Id. at ¶26.)
Officer Sikorski next returned to speak to Konsionowski. (Id. at ¶32.) He asked
Konsionowski if he had been drinking or taking any illegal drugs, narcotics, or medications, all of
which Konsionowski denied. (Id. at ¶¶34-35.) According to Officer Sikorski, he suspected
Konsionowski was lying because of “observed indicators” of opiate use. (ECF No. 27 at ¶33.)
While Sikorski and Konsionowski were talking, Officer Dane Helland arrived on the scene
in response to the request for backup. (ECF No. 35 at ¶37.) With Officer Helland present, Officer

1 These facts are drawn from the parties’ proposed statements of undisputed facts (and responses), (ECF Nos. 27 &
35), as well as video exhibits, (ECF No. 23 Exhs. E & N). Disputed facts are viewed in the light most favorable to
Plaintiff as the non-moving party.
Sikorski conducted a series of field sobriety tests, including the horizontal and vertical nystagmus
test, the walk-and-turn test, and the one-leg stand test. (ECF No. 27 at ¶¶44, 53-54, 66.) The
parties dispute whether Konsionowski passed the horizontal and vertical nystagmus tests. (Id. at
50.) Konsionowski failed the walk-and-turn test when he twice raised his arms to help maintain
balance and stopped to ask Officer Sikorski a question instead of completing the turn as instructed.
(Id. at ¶62.) Konsionowski failed the one-leg stand test when he swayed to maintain balance and
stopped counting at “ten one-thousand” instead of continuing to count until told to stop as
instructed. (Id. at ¶71.) Officer Sikorski then used a breathalyzer to measure Konsionowski’s
blood alcohol content. (ECF No. 35 at ¶57.) Konsionowski blew a 0.0. (Id. at ¶58.)
Officer Sikorski then informed Konsionowski that he was under arrest for violating Village
of Menomonee Falls Ordinance No. 106-2, adopting Wis. Stat. §346.63(1)(a), Operating While
Under the Influence. (ECF No. 27 at ¶74.) Konsionowski was handcuffed and searched. (ECF
No. 35 at ¶62.) He was then taken to the waiting ambulance for treatment. (Id. at ¶66.) EMT
Joanna (Narwold) Sukup’s Out of Hospital Care Report indicated that Konsionowski’s pupils and
speech were normal. (Id. at ¶¶70, 73.)
While the EMTs examined Konsionowski, Officers Sikorski and Helland searched his
vehicle, including the locked portion of the truck bed. (ECF No. 27 at ¶78, ECF No. 35 at ¶67.)
The search uncovered loose ammunition and multiple bottles of prescription drugs. (ECF No. 27
at ¶80.) Konsionowski’s pharmacy later confirmed that he had valid prescriptions for all of the
pills found in the vehicle. (Id. at ¶82.)
Following the EMT’s initial examination, Konsionowski rejected further medical
treatment, so Officer Sikorski transported him to Community Memorial Hospital for a blood draw.
(Id. at ¶¶86, 89.) Konsionowski consented to the blood draw. (Id. at ¶90.) The report from the
Wisconsin State Laboratory of Hygiene found that Konsionowski’s blood tested negative for
ethanol and positive for Alprazolam (also known as Xanax), consistent with his prescription. (ECF
No. 27 at ¶92, ECF No. 35 at ¶¶79, 82.)
After the blood draw, Konsionowski was taken to the Menomonee Falls Police
Department, booked on an OWI charge, and released into his neighbor’s custody. (ECF No. 27 at
¶91.) Jensen received a citation the following day. (Id. at ¶77.)
SUMMARY JUDGMENT STANDARD
“Summary judgment is appropriate where the admissible evidence reveals no genuine issue
of any material fact.” Sweatt v. Union Pac. R. Co., 796 F.3d 701, 707 (7th Cir. 2015) (citing Fed.
R. Civ. P. 56(c)). Material facts are those under the applicable substantive law that “might affect
the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of
“material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. “[T]he court should give credence to the evidence favoring the
nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and
unimpeached, at least to the extent that that evidence comes from disinterested witnesses.’” Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000) (quoting 9 Charles Alan Wright &
Arthur R. Miller, Federal Practice & Procedure §2529, pp. 300 (2d ed. 1995)). In other words, the
Court “must disregard all evidence favorable to the moving party that the jury is not required to
believe.” Reeves, 530 U.S. at 151 (citing Wright & Miller 299). Generally, disputes of fact are
viewed in the light most favorable to the nonmoving party, E.E.O.C. v. Sears, Roebuck & Co., 233
F.3d 432, 437 (7th Cir. 2000), but “[w]hen opposing parties tell two different stories, one of which
is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling on a motion for summary judgment. Scott
v. Harris, 550 U.S. 372, 380 (2007).
ANALYSIS
In his complaint, Konsionowski makes detailed allegations about his interactions with
Officer Sikorski, followed by a general contention that he was “unlawfully detained, seized,
searched, and arrested” in violation of his Fourth and Fourteenth Amendment rights. (ECF No. 1
at ¶32.) In his summary judgment briefing, Konsionowski offers greater specificity on his claims,
identifying five alleged constitutional violations. He contends Officer Sikorski violated his rights
when he: (I) conducted a field sobriety test without reasonable suspicion; (II) carried out an arrest
without probable cause; (III) improperly searched Konsionowski and his vehicle; (IV) improperly
subjected Konsionowski to a breathalyzer and blood draw without probable cause; and (V)
intentionally treated Konsionowski differently than Jensen with no rational basis for such disparate
treatment. (See generally ECF No. 26.) In seeking summary judgment, Officer Sikorski denies
any constitutional violations and argues that his actions were, in any event, protected by qualified
immunity. (See generally ECF No. 21.) Lingering questions of fact preclude summary judgment
on the first three of Konsionowski’s alleged violations. As to the final two violations, however,
Officer Sikorski is entitled to summary judgment.
I. Because Material Questions of Fact Remain, Konsionowski Can Proceed with Three
of the Alleged Constitutional Violations.
A. Konsionowski Has Genuinely Disputed Whether Officer Sikorski Had
Reasonable Suspicion to Conduct Field Sobriety Tests.
Police officers need reasonable suspicion to conduct field sobriety tests. See Bernardi v.
Klein, 682 F. Supp. 2d 894, 902-03 (W.D. Wis. 2010) (evaluating whether plaintiff’s conduct
provided police with reasonable suspicion justifying field sobriety tests); Town of Freedom v.
Fellinger, 2013 WI App 115, ¶17, 350 Wis. 2d 507, 838 N.W.2d 137 (concluding “to justify the
intrusion of a field sobriety test, an officer must have reasonable suspicion that the driver is
impaired”). “‘Reasonable suspicion is more than an inchoate and unparticularized suspicion or
hunch.’” United States v. Ganser, 315 F.3d 839, 843 (7th Cir. 2003) (quoting United States v.
Ward, 144 F.3d 1024, 1034 (7th Cir. 1998)). It “must be based on specific, articulable facts which,
judged in light of the officers’ experience, would justify intrusion.” United States v. Marrocco,
578 F.3d 627, 633 (7th Cir. 2009). Thus, to have reasonable suspicion, an officer must identify
“some objective manifestation that the person stopped is, or is about to be, engaged in criminal
activity.” United States v. Jackson, 300 F.3d 740, 745 (7th Cir. 2002) (quoting United States v.
Cortez, 449 U.S. 411, 417 (1981)). And resolution at summary judgment is inapt when reasonable
suspicion “wholly turns on the credibility of the officers.” Smith v. City of Milwaukee, No. 18-
CV-1797, 2020 WL 607050, at *5 (E.D. Wis. Feb. 7, 2020) (citing Payne v. Milwaukee Cnty., 146
F.3d 430, 432 (7th Cir. 1998)).
At the time he requested backup in preparation for the field sobriety tests, Officer Sikorski
had interacted with Konsionowski for barely a minute (63 seconds), during which time he claims
he noticed glassy eyes and pinpoint pupils, slurred and deliberate speech, difficulty removing a
license from a wallet,2 and an unsteady gait. The combined weight of these four observations, if
unchallenged, would undoubtedly create reasonable suspicion of impairment. But the observations

2 The Court notes that even if the video evidence reflected Officer Sikorski’s version of this event, Konsionowski’s
trouble removing his license could not have supported reasonable suspicion, which must be judged ex ante. See
Fellinger, 2013 WI App 115, ¶17 (concluding “an officer must have reasonable suspicion that the driver is impaired
before requesting field sobriety tests”) (emphasis added); see also Bernardi, 682 F. Supp. 2d at 903 (evaluating
whether police officer had reasonable suspicion of impairment before requesting field sobriety tests). By the time
Konsionowski retrieved his wallet, Officer Sikorski had already requested the field sobriety tests. Subsequent
evidence of impairment cannot render an otherwise unreasonable suspicion reasonable.
are not unchallenged, and however steadfastly Officer Sikorski holds to his version of them,
contested facts, even in the aggregate, can never amount to reasonable suspicion at summary
judgment.
On the matter of his allegedly very glassy eyes and pinpoint pupils, Konsionowski injects
uncertainty through his booking photograph, the EMT’s Out of Hospital Care Report, and Officers
Sikorski’s and Helland’s contemporaneous written reports. Konsionowski’s booking photograph
does not depict pinpoint pupils. (ECF No. 35 at ¶76.) The Out of Hospital Care Report indicates
that Konsionowski’s pupils were “normal.” (Id. at ¶70.) And neither Officer Sikorski nor Officer
Helland referenced glassy eyes in their reports. (Id. at ¶¶92, 96.) While he accepts that these facts
cast some measure of doubt, Officer Sikorski appears to believe that his word is gospel unless
Konsionowski can affirmatively contradict it. (ECF No. 36 at ¶14.) But the movant’s burden at
summary judgment is not adjusted for occupation. It would be a novel and dangerous standard
indeed if courts were required to draw all inferences and construe all disputed facts in the moving
party’s favor simply because that party wears a badge. Maybe a jury will find Officer Sikorski
more credible. But he is not entitled to that presumption at summary judgment. The state of
Konsionowski’s eyes is in genuine dispute. At this stage, Officer Sikorski cannot rely on his side
of that dispute to establish reasonable suspicion as a matter of law.
Officer Sikorski similarly argues that, because no one can prove that Konsionowski did not
have slurred and deliberate speech at the scene of the accident, the Court must accept his averments
as fact. (Id. at ¶15.) Not so, especially when the record introduces reasons for skepticism. The
Out of Hospital Care EMT report indicates that Konsionowski had appropriate speech at the time
he was treated by EMT Sukup. (ECF No. 35 at ¶73.) And Sukup testified that, had she noticed
slurred speech, she likely would have documented it in the report. (Id. at ¶74.) Officer Helland’s
supplemental report, which he admittedly prepared with the intention of corroborating his fellow
officer’s claim to reasonable suspicion, does not reference slurred, slow, or deliberate speech at
all. (Id. at ¶¶91-92.) And after watching the dashcam footage, neither Officer Sikorski nor Officer
Helland could identify any instances of slurred speech. (Id. at ¶¶93-94.) In short, nothing in the
record establishes the existence of slurred or deliberate speech as a matter of fact, so, at summary
judgment, it cannot be the foundation on which reasonable suspicion is built.
The only two people who saw or ever will see Konsionowski remove his license from his
wallet are the opposing parties in this case. Jensen’s car completely obstructs the relevant dashcam
footage. (ECF No. 23-5 at 8:48-8:53.) Considering their conflicting accounts and equally strong
motives to fabricate, neither party’s version can be accepted as undisputed fact. The truth is a
question for the jury. Therefore, the difficulty Konsionowski may or may not have had retrieving
his license cannot support a finding of reasonable suspicion at summary judgment.
Officer Sikorski’s claim that he observed an unsteady gait stands on even shakier
evidentiary ground. Nowhere in his handwritten notes, the supplementary report, the citation, or
the Alcohol/Drug Influence Report did Officer Sikorski mention that he observed Konsionowski
walking with an unsteady gait. (ECF No. 35 at ¶95.) These omissions are notable because Officer
Sikorski testified that he would have documented an unsteady gait if he had noticed it. (Id. at ¶98.)
More damning is Officer Sikorski’s own dashcam video, which captures Konsionowski walking,
without trouble, to the passenger side of his truck. (ECF No. 23-5 at 16:53:40-16:53:51.) Officer
Sikorski attempted to use this objective evidence to corroborate his claim, testifying at his
deposition that he observed an unsteady gait when reviewing the footage. (ECF No. 35 at ¶15.)
But the video does not remotely prove the officer’s claim; indeed, there does not appear to be
anything obviously “unsteady” about Konsionowski’s striding. If Officer Sikorski considers this
an unsteady gait, Olympic gymnasts should be thankful he is not judging their balance beam
routines in Paris in 2024.
Stripped of the benefit of the disputed contentions about Konsionowski’s eyes, speech,
motor skills, and gait, Officer Sikorski has nothing to support his claim of reasonable suspicion.
A factfinder may ultimately conclude that some of those factors existed, but that is irrelevant to
today’s decision. Because Officer Sikorski has not identified any undisputed facts that would
support a determination of reasonable suspicion, he cannot prevail at summary judgment.
B. Konsionowski Has Genuinely Disputed Whether Officer Sikorski Had
Probable Cause to Arrest Him for Operating While Under the Influence.
“A law enforcement officer has probable cause to make an arrest when the facts and
circumstances within the officer’s knowledge and of which the officer has reasonably trustworthy
information are sufficient to warrant a prudent person in believing the suspect has committed or is
committing an offense.” United States v. Sawyer, 224 F.3d 675, 678-79 (7th Cir. 2000). The
existence of probable cause, thus, does not depend upon the ultimate accuracy of the officer’s
deduction, but instead the reasonableness of that deduction based on the objective facts available
to him. See Kelley v. Myler, 149 F.3d 641, 647 (7th Cir. 1998); Humphrey v. Staszak, 148 F.3d
719, 725 (7th Cir. 1998) (“Officers are entitled to summary judgment on qualified immunity
grounds if their actions were not objectively unreasonable at the time they were taken.”). While a
police officer need not investigate a suspect’s every affirmative defense, Spiegel v. Cortese, 196
F.3d 717, 724-25 (7th Cir. 1999), he may not disregard exculpatory information or close “his eyes
to facts that would help clarify the circumstances of an arrest.” BeVier v. Hucal, 806 F.2d 123,
128 (7th Cir. 1986). Because this analysis relies on consideration of context-specific facts,
probable cause should be found as a matter of law “only when the facts permit but one
conclusion—that is, ‘only when no reasonable jury could find that the officer did not have probable
cause’ to make an arrest.” Jones ex rel. Jones v. Webb, 45 F.3d 178, 182 (7th Cir. 1995) (quoting
Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993)).
Shortly after he arrived on the scene, Officer Sikorski asked if anyone was injured, and
Konsionowski stated that he was “a little out of it,” “dazed,” and “a little hurt in my neck.” (ECF
No. 35 at ¶8.) Officer Sikorski expressed concern, and he and Konsionowski agreed that an
ambulance should be called. (ECF No. 27 at ¶11.) Medical personnel arrived before Officer
Sikorski administered any of the field sobriety tests, but Konsionowski was not permitted to
receive medical attention until after the tests had been completed and he had been placed under
arrest. (ECF No. 23-14 at 3:21; ECF No. 35 at ¶66.) Under the circumstances, a reasonable jury
could conclude that Officer Sikorski’s failure to explore the obvious exculpatory explanation for
Konsionowski’s alleged impairment—a concussion sustained in the car accident—meant he
lacked probable cause to arrest. See Kingsland v. City of Miami, 382 F.3d 1220 (11th Cir. 2004)
(finding officers’ decision to ignore plaintiff’s assertions that she was injured negated probable
cause allegedly established by poor performance on field sobriety tests); Carroll v. Village of
Homewood, No. 97C2747, 2001 WL 1467708 (N.D. Ill. Nov. 15, 2001) (holding that, where
officers knew plaintiff badly needed to urinate, and that need to urinate may have impacted his
performance on field sobriety tests, probable cause to arrest could not be established at summary
judgment). As such, Officer Sikorski cannot establish probable cause as a matter of law at
summary judgment.
But Officer Sikorski protests that Konsionowski failed the field sobriety tests, and that was
sufficient, in and of itself, to establish probable cause. After all, most suspects, guilty or otherwise,
will conjure several innocent explanations for their behavior. Requiring police officers to rule out
every single one would turn the quest for probable cause into the labors of Hercules. There is,
however, “a meaningful distinction between disregarding potentially exculpatory information and
disbelieving it.” Mahnke v. Garrigan, 428 F. App’x 630, 635 (7th Cir. 2011). For example,
Konsionowski might have told Officer Sikorski that he appeared impaired because he was a
Martian suffering under the crushing force of Earth’s harsher gravitational forces. In that situation,
the Fourth Amendment would not require Officer Sikorski to conclusively disprove the existence
of extraterrestrials in order to execute an arrest. It is another matter entirely, though, when a police
officer genuinely believes a suspect may have a head injury, has EMTs ready and waiting to
evaluate that suspect, and chooses instead to proceed with field sobriety tests and base probable
cause to arrest solely on the outcome of those tests without regard to what a medical evaluation
might uncover. The latter is an example of an officer disregarding potentially exculpatory
information, and it is not too much to ask that the officer postpone his arrest while the suspect
receives medical attention, which might ultimately exculpate him.
The Court also rejects the proposition that Konsionowski’s performance on the field
sobriety tests conclusively established probable cause to arrest. Konsionowski indisputably failed
the walk-and-turn and one-leg stand tests. (ECF No. 27 at ¶¶62, 71.) But, as previously stated,
Officer Sikorski refused to explore innocent explanations for these failures. And the video
evidence suggest that Konsionowski’s failures were largely if not entirely technical. (ECF No. 23-
14 at 5:11-10:24.) He asked Officer Sikorski which way he was supposed to turn during the walk-
and-turn test instead of completing the turn without pausing. (Id. at 7:01-04.) He stopped counting
at “ten one thousand” during the one-leg stand test. (Id. at 10:00.) He slightly raised his arms
twice during the walk, and he wavered for a second during the one-leg stand. (ECF No. 27 at ¶61;
ECF No. 23-14 at 9:57-59.) In other circumstances, these technical failures might establish
probable cause as a matter of law, but not here, where the victim of a car crash was required to
perform the tests shortly after the incident without receiving medical treatment. A reasonable jury
could decide that Officer Sikorski was essentially calling ticky-tack fouls to achieve his desired
result. To be clear, the Court does not rule, as Konsionowski insists, that he passed the field
sobriety tests. (ECF No. 1 at 4.) But considering the totality of the circumstances, it also cannot
say that the manner in which he failed established probable cause to arrest as a matter of law.
C. Factual Disputes Over Whether Officer Sikorski Had Probable Cause to
Search Konsionowski’s Person and Vehicle Preclude Summary Judgment.
Police may search the person of a lawfully arrested individual without a warrant. See
United States v. Robinson, 414 U.S. 218, 224 (1973). They may also search the passenger
compartment of an arrestee’s car incident to arrest if they could reasonably believe that evidence
of the arresting offense might be found therein. See Arizona v. Gant, 556 U.S. 332, 344 (2009).
If such evidence is uncovered, they may search the rest of the vehicle, including the trunk. See
United States v. Cochran, 309 F. App’x 2, 6-7 (7th Cir. 2009).
Immediately after arresting him, Officer Sikorski thoroughly searched Konsionowski’s
person, digging through his pockets and removing various objects. (ECF No. 23-14 at 12:58-
14:00.) He then searched Konsionowski’s vehicle for evidence to support a drug charge. (ECF
No. 27 at ¶79.) This search uncovered several bottles of prescription drugs, which Officer Sikorski
used to justify expanding the search to the locked portion of the truck bed. (ECF No. 27 at ¶80;
ECF No. 35 at ¶67.) The legality of these searches depends upon whether Officer Sikorski had
probable cause to make an arrest. See United States v. Edwards, 885 F.2d 377, 383 (7th Cir. 1989)
(“a search and seizure incident to an arrest must be incident to a lawful arrest”). Because factual
disputes prevent the Court from completing a probable cause analysis, the lawfulness of the
searches remains open-ended. If the jury finds probable cause to arrest, then the searches did not
violate Konsionowski’s constitutional rights. See Gant, 556 U.S. at 344. But should the jury find
probable cause wanting, Officer Sikorski would be in violation of clearly established law. See
Sibron v. New York, 392 U.S. 40, 62-63 (1968) (finding that absence of probable cause to arrest
destroyed justification for police officer’s warrantless search). Accordingly, summary judgment
must be denied on these claims.
II. Konsionowki’s Remaining Claims Do Not Survive Summary Judgment.
A. Konsionowski Consented to the Breathalyzer and Blood Draw, so Summary
Judgment Will Be Granted as to those Alleged Violations.
Blood draws and breathalyzer tests are searches for purposes of the Fourth Amendment.
Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016). But while Konsionowski was subjected
to these searches, they did not violate his constitutional rights. Konsionowski does not dispute
that he consented to both. This ends the inquiry. If the subject of a search voluntarily consents to
that search, he or she cannot later complain that the search was unreasonable pursuant to a Fourth
Amendment claim. See id. Thus, Officer Sikorski is entitled to summary judgment as to these
claims.
B. Konsionowski Improperly Raised His Fourteenth Amendment Disparate
Treatment Claim for the First Time in His Summary Judgment Response.
A plaintiff must include in his complaint a short, plain statement of his claims showing that
he is entitled to relief. See Fed. R. Civ. P. 8; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557
(2007). This is not a suggestion. See Fed. R. Civ. P. 8(a)(2) (“A pleading that states a claim for
relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled
to relief[.]”) (emphasis added). The Rules of Civil Procedure provide avenues for amending the
complaint, see Fed. R. Civ. P. 15, but a party “cannot amend his complaint ‘through arguments in
his brief to a motion for summary judgment.’” Anderson v. Donahoe, 699 F.3d 989, 998 (7th Cir.
2012) (quoting Grayson v. O’Neill, 308 F.3d 808, 817 (7th Cir. 2002)).
In his summary judgment response brief, Konsionowski argues that he is entitled to relief
under a new Fourteenth Amendment Equal Protection claim because Officer Sikorski irrationally
treated him worse than Jensen, a similarly situated individual. (ECF No. 26 at 20.)
Konsionowski’s complaint makes no reference to this claim. (See ECF No. 1.) This alleged
violation appeared for the first time, over a year after the case was filed, in response to Officer
Sikorski’s motion for summary judgment. Accordingly, it must be dismissed for failure to comply
with federal pleading requirements.
III. Officer Sikorski is Not Entitled to Qualified Immunity.
Officer Sikorski contends that even if there are factual disputes that preclude summary
judgment on the merits, he is nevertheless entitled to dismissal of Konsionowski’s claims based
on qualified immunity. But the number and dispositive nature of the disputed facts in this case
make qualified immunity inappropriate.
Qualified immunity protects government officials “from liability for civil damages insofar
as their 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).
Government officials are not entitled to qualified immunity if: (1) “the facts that a plaintiff has
alleged make out a violation of a constitutional right”; and (2) “the right at issue was ‘clearly
established’ at the time of [the] defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S.
223, 232 (2009) (internal citations omitted). If one view of the disputed facts could lead a jury to
conclude that an officer violated a clearly established constitutional right, police officers may not
seek qualified immunity based on an alternative, more advantageous reading of those facts. See
Nettles-Bey v. Williams, 819 F.3d 959, 961 (7th Cir. 2016) (holding that where the admissible
evidence would permit two inferences, one of which would implicate violations of a plaintiff’s
clearly established constitutional rights, the case must proceed to trial, and the officers are not
entitled to qualified immunity).
With respect to the first alleged violation of Konsionowski’s rights, that Officer Sikorski
lacked reasonable suspicion to conduct field sobriety tests, resolution of this claim is tied to the
outcome of a game of “he said, he said.” As in Nettles-Bey, the fact pattern permits two reasonable
inferences—one in support of a finding of reasonable suspicion, one against. The Court cannot
grant Officer Sikorski qualified immunity if his actions would violate a clearly established
constitutional right under either. It has been clearly established since at least Terry v. Ohio, 392
U.S. 1 (1968), that officers may not detain private citizens without reasonable suspicion of criminal
activity. See 392 U.S. at 22 (“Anything less would invite intrusions upon constitutionally
guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court
has consistently refused to sanction.”). Therefore, if a jury were to agree with Konsionowski and
find illusory the factors Officer Sikorski relied on to articulate reasonable suspicion, his subsequent
behavior—conducting the field sobriety tests—would violate a clearly established constitutional
right. That being the case, he is not entitled to qualified immunity on this claim.
Factual issues similarly preclude qualified immunity on Konsionowski’s claim that Officer
Sikorski lacked probably cause for an arrest. Police officers are entitled to qualified immunity in
false arrest cases if they can establish arguable probable cause. See Humphrey, 148 F.3d at 725.
“Arguable probable cause exists when ‘a reasonable police officer in the same circumstances and
with the same knowledge and possessing the same knowledge as the officer in question could have
reasonably believed that probable cause existed in light of well-established law.’” Id. (quoting
Gold v. City of Miami, 121 F.3d 1442, 1445 (11th Cir. 1997)). But where material factual disputes
bearing on the question of arguable probable cause proliferate, qualified immunity is unavailable.
See Hurt v. Wise, 880 F.3d 831, 841 (7th Cir. 2018), overruled on other grounds by Lewis v. City
of Chicago, 914 F.3d 472 (7th Cir. 2019); Gutierrez v. Kermon, 722 F.3d 1003, 1011-12 (7th Cir.
2013); Carroll, 2001 WL 1467708, at *7. At this juncture, the question before the Court is whether
a reasonable officer standing in Officer Sikorski’s shoes could have reasonably believed that he
had probable cause to arrest Konsionowski. Due to the preponderance of disputed facts bearing
on that question, it is impossible to resolve this issue in the officer’s favor. All four factors that
Officer Sikorski cites to support reasonable suspicion are in dispute, so none of them can be
wielded to bolster the case for probable cause. That leaves only the technical failures on the field
sobriety test, and, as previously discussed, a reasonable jury could find that Officer Sikorski
improperly conducted the tests without first allowing Konsionowski to seek medical treatment,
mitigating or even eliminating those failures altogether. Because these disputes cannot be resolved
at summary judgment, the Court is unable to resolve the question of qualified immunity, and
Officer Sikorski cannot invoke that doctrine to prevent trial.
Officer Sikorski’s claims to qualified immunity on the searches of Konsionowski’s person
and truck fail for similar reasons. The constitutionality of these searches turns on the legality of
Konsionowski’s arrest. See Edwards, 885 F.2d at 383. But, as just stated, the legality of the arrest
is a question for the jury. This means the jury could draw one of two reasonable inferences: that
probable cause supported the arrest, or that it did not. If it finds the latter, then the subsequent
searches were not lawfully conducted. Under Nettles-Bey, Officer Sikorski is not entitled to
qualified immunity where one view of the disputed facts would result in a violation of a clearly
established constitutional right. See 819 F.3d at 961.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Defendant’s motion for
summary judgment under Fed. R. Civ. P. 56 (ECF No. 20) is GRANTED in part and DENIED
in part. Summary judgment is granted as to the claims that Officer Sikorski violated the Fourth
Amendment by administering a breathalyzer and blood draw to Konsionowski. Summary
judgment is also granted as to the claim that Officer Sikorski’s treatment of Konsionowski violated
the Fourteenth Amendment Equal Protection Clause. Those claims are dismissed. Summary
judgment is denied as to the claim that Officer Sikorski violated the Fourth Amendment by
detaining Konsionowski without reasonable suspicion. Summary judgment is also denied as to
the claims that Officer Sikorski violated the Fourth Amendment by arresting Konsionowski
without probable cause and improperly searching his person and vehicle.
Dated at Milwaukee, Wisconsin on March 2, 2022.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10716796. Public record. Not legal advice.