Petition — Bur v. Breier

SEP 26 1977

; | MICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO, 1 v2

NICHOLAS BUR, Petitioner

Vv.

. HAROLD A. BREIER, CHARLES GILBERT,

DENNIS KOCHER and DENNIS CHIPMAN,

Respondents

PETITION FOR CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

NICHOLAS BUR

PRO SE

5663 NORTH CONSAUL PLACE

WHITEFISH BAY, WI 53217

SEPTEMBER 22, 1977

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO.

NICHOLAS BUR, Petitioner

Vv.

HAROLD A. BREIER, CHARLES GILBERT,

DENNIS KOCHER and DENNIS CHIPMAN,

Respondents

PETITION FOR CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

NICHOLAS BUR

PRO SE

5663 NORTH CONSAUL PLACE

WHITEFISH BAY, WI 53217

SEPTEMBER 22, 1977

INDEX

PAGE

Opinions Below .,

Jurisdiction .

Questions Presented , ;

Constitutional Amendments Involved ;

Statutory Provisions Involved .

Statement of the Case

Argument "ae OR a Ee ee ae eee en

Conclusion o ee hd elk bo ee eae oe

ind

WONWNNHH

District Court's Opinion of

July 18, 1974 ... oo we « See

District Court's Opinion of

November 26, 1975 .. oecee aoe

District Court's oper of

June 23, 1976 ... ¢ 6s 0 o> ee

Circuit Court's Opinion of

GRO Be, Mert ¢ 20 46 4 60 2 « Bee

CITATIONS

Textbook:

Arrest, Wayne R. LaFave,

ttle Brown & Co. (1965) ... 11

Statutes:

United States Code, Title 28,

Sec. 1343 ..

United States Code, “Title 42,

Sec. 1983 ... . s

Wisconsin Statute 341. 04 ot

Wisconsin Statute 946.41 .

or. WwW

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

NICHOLAS BUR, Petitioner PETITION FOR

CERTIORARI

Vv. to the

UNITED STATES

HAROLD A. BREIER, CHARLES COURT OF

GILBERT, DENNIS KOCHER, APPEALS FOR

and DENNIS CHIPMAN, THE SEVENTH

Respondents. CIRCUIT

Petitioner respectfully prays for cer-

tiorari to review the judgment and opinion

of the United States Court of Appeals for

the Seventh Circuit entered June 29, 1977.

Opinions Below

The unreported opinion of the Court of

Appeals is appended to this petition.

Also appended are three opinions of the

United States District Court for the East-

ern District of Wisconsin, the most recent

of which is reported as 415 F. Supp. 335

and the other two are unreported.

Jurisdiction

The date and time of the judgment for

which review is requested is June 29, 1977.

Jurisdiction is conferred on this Court by

28 U.S.C. 1254 (1).

eo Ze

Questions Presented

1. Does an arrest warrant confer power

to arrest on a charge transparently false?

2. When a police chief continues to in-

sist on criminal prosecution for 18 months

after being personally served with easily

verifiable information that the charge is

false, is that the same as personal in-

volvement?

3. May police officers seize and hand-

cuff a person charged with a misdemeanor

when there is no apparent danger of escape

or violence and the person arrested agrees

to go voluntarily?

4. May police officers sworn to protect

those who live or work in the community

stand by and do nothing (except confer

jurisdiction) while police officers from

another jurisdiction arrest on a trans-

parently false charge?

Constitutional Amendments Involved

ARTICLE VIII. Excessive bail shall not

be required, nor excessive fines imposed,

nor cruel and unusual punishment inflicted.

ARTICLE IX. The enumeration in the Con-

stitution, of certain rights, shall not be

construed to deny or disparage others re-

tained by the people.

ARTICLE XIV. Section 1. All persons

born or naturalized in the United States,

and subject to the jurisdiction thereof,

are citizens of the United States and of

the State wherein they reside. No state

= oe

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall

any State deprive any person of life, lib-

erty, or property, without due process of

law; nor deny to any person within its

jurisdiction the equal protection of the

laws.

Statutory Provisions Involved

United States Code, 1970 edition, page

7571, Title 28, Sec. 1343:

§ 1343. Civil rights and elective

franchise

The district courts shall have

original jurisdiction of any civil

action authorized by law to be com-

menced by any person:

(1) To recover damages for injury to

his person or property, or because of

the deprivation of any right or pri-

vilege of a citizen of the United

States, by any act done in further-

ance of any conspiracy mentioned in

section 1985 of Title 42;

(2) To recover damages from any per-

son who fails to prevent or to aid in

preventing any wrongs mentioned in

section 1985 of Title 42 which he had

knowledge were about to occur and

power to prevent;

(3) To redress the deprivation, under

color of any State law, statute, or-

dinance, regulation, custom or usage,

of any right, privilege or immunity

o» Oa

secured by the Constitution of the

United States or by any act of Con-

gress providing for equal rights of

citizens or of all persons within

the jurisdiction of the United States;

(4) To recover damages or to secure

equitable or other relief under any

Act of Congress providing for the p

protection of civil rights, includ-

ing the right to vote.

United States Code, 1970 edition, page

10283, Title 42, Sec. 1983:

§ 1983. Civil action for deprivation of

rights

Every person who, under color of any

statute, ordinance, regulation, cus-

tom, or usage, of any State or Terri-

tory, subjects, or causes to be sub-

jected, any citizen of the United

States or other person within the

jurisdiction thereof to the depriva-

tion of any rights, privileges, or

immunities secured by the Constitu-

tion and laws, shall be liable to

the party injured in an action at

law, suit in equity, or other proper

proceeding for redress.

Wisconsin Statute 341.04 (1971, Volume 2,

page 3434):

§ 341.04. Penalty for operating unre-

gistered or improperly re-

gistered vehicle. Except

during a state of emergency

proclaimed under ch. 22:

ee

(1) It is unlawful for any person to

operate or for an owner to consent

to being operated on any highway of

this state any motor vehicle, mobile

home, trailer or semitrailer or any

other vehicle for which a registra-

tion fee is specifically prescribed

unless at the time of operation the

vehicle in question either is regis-

tered in this state or is exempt

from registration.

(a) A vehicle may be operated by a

private person after the date of pur-

chase of such vehicle by such private

person or after the date such person

moved to this state if application

for registration and certificate of

title has been made.

(b) All vehicles subject to renewal

of registration may be operated pro-

vided that application for reregis-

tration has been made.

(2) Unless application for reregis-

tration has been made as required by

s. 341.32, it is unlawful for any

person to operate or for the owner to

consent to being operated on any high-

way of this state any registered vehi-

cle the construction or use of which

has been changed so as to make the

vehicle subject to a higher fee than

the fee at which it currently is re-

gistered or which is carrying a grea-

ter load than that permitted under

the current registration.

(3) Any person violating subs. (1) or

(2) may be fined not more than $200

a

or imprisoned not more than 6 months

or both. In addition to imposing

the penalty, the court shall order

the offender to make applications

for registration or reregistration

and to pay the fee therefor.

Wisconsin Statute 946.41 (1971, Volume 2,

page 4199):

§ 946.41. Resisting or obstructing

officer

(1) Whoever knowingly resists or ob-

structs an officer while such officer

is doing any act in his official capa-

city and with lawful authority, may

be fined not more than $500 or impri-

soned not more than one year in county

jail or both.

(2) In this section:

(a) "Officer" means a peace offi-

or other public officer or public em-

ploye having the authority by virtue

of his office or employment to take

another into custody.

(b) "“Obstructs" includes without

limitation knowingly giving false in-

formation to the officer with intent

to mislead him in the performance of

his duty including the service of any

summons or civil process.

(3) Whoever by violating this section

hinders, delays or prevents an officer

from properly servirg or executing any

summons or civil process, is civilly

liable to the person injured for any

~— oe

actual loss caused thereby and to the

officer or his superior for any damages

adjudged against either of them by

reason thereof.

Statement of the Case

Petitioner bought a new 1972 Chevrolet

auto September 24, 1971. He transferred

his license plates from the car traded in

to his new car, and application was made

for registration and certificate of title

in compliance with above quoted Wis. Stat.

341.04(1)(a). On October 5, 1971 a Mil-

waukee police officer ticketed petitioner

for alleged violation of 341.04 and ig-

nored petitioner's proof of compliance.

Petitioner lost the ticket and did not

appear in court on the day specified, Nov-

ember 30, 1971, because he did not think

it would be easy to find the right court

and then get the ticket voided since he

had not yet received his license stickers

(though he had promptly mailed the regis-

tration fee with the application and title

certificate).

Aside from receipt of the proper stick-

ers (which provided for no gap in regis-

tration) nothing happened until 7:15 AM

February 10, 1972 when petitioner received

a telephone call from a Milwaukee police

officer who said he had a warrant for

petitioner's arrest. When petitioner

tried to explain what had happened and

suggested a check by teletype with the

motor vehicle department, the caller in-

terrupted and threatened to send a White-

fish Bay (the Milwaukee suburb where peti-

tioner lives) squad car to arrest peti-

“<<

tioner. When petitioner said that would

be a silly waste of the taxpayers' money

when all that was needed was a five or ten

cent teletype message, the caller hung up.

Petitioner expected his caller to check

with the motor vehicle department, and be-

lieved that if he did hear from the White-

fish Bay police they would be helpful.

At 11 o'clock the next morning, February

11, 1972, two Milwaukee police officers

and two Wauwatosa police officers came to

petitioner's place of employment in Wauwa-

tosa (another Milwaukee suburb) with a war-

rant charging "operating unregistered or

improperly registered vehicle." In the

presence of the two Milwaukee officers, de-

fendants Gilbert and Kocher, and one Wau-

watosa officer, defendant Chipman, peti-

tioner offered to show his proper uninter-

rupted registration certificate and pointed

to his car parked outside with proper un-

interrupted license stickers. All three

officers ignored this proof the charge was

false and the two Milwaukee officers in-

sisted that petitioner come with them.

Petitioner agreed and went to get his coat

followed by the two Milwaukee officers.

As he finished putting on his coat in the

main office in the presence of about 20

fellow employees petitioner was grabbed

and pulled and handcuffed by first defen-

dant Gilbert and then defendant Kocher who

then drove petitioner to the Milwaukee

jail where he was detained until released

in the custody of his attorney at 5:30 PM.

The next morning petitioner made the

first of his 16 scheduled court appear-

ances to defend against this charge and

the charge of resisting arrest (Wisconsin

a

Statute 946.41) which was also prosecuted

until both charges were dismissed December

13, 1973. More than 18 months before the

charges were finally dismissed petitioner

caused the Milwaukee police chief, defen-

dant Breier, to be personally served with

four copies of written notice describing

what had happened, protesting the false

arrest and continuing criminal prosecution

of the petitioner.

Petitioner's summons and complaint were

filed in the United States District Court

for the Eastern District of Wisconsin

March 6, 1973 and named as defendants the

cities of Milwaukee and Wauwatosa, Milwau-

kee police chief Breier and Wauwatosa

police chief Howard, the two Milwaukee

police officers and the two Wauwatosa po-

lice officers. Petitioner requested

$2,500 in damages and injunctive relief

restraining police chiefs Breier and How-

ard "from asking for arrest warrants under

Wisconsin statute 341.04 unless defen-

dants Breier and Howard first verify with

the Wisconsin Motor Vehicle Department

that the person to be arrested is in vio-

lation of 341.04" and "restraining defen-

dants Breier and Howard from authorizing

police officers under their orders to

seize or handcuff persons charged with

misdemeanors when there is no apparent

danger of escape or violence and the per-

son in custody agrees to go voluntarily

with the officers."

Jurisdiction is based on 28 U.S.C. 1343

and 42 U.S.C. 1983.

On July 18, 1974 the District Court dis-

missed all the defendants except the two

o 28 «

Milwaukee police officers, Gilbert and

Kocher.

On August 12, 1974 petitioner appealed

to the United States Court of Appeals for

the Seventh Circuit the dismissal of Mil-

waukee police chief Breier and Wauwatosa

police officer Chipman. He did not appeal

the other dismissals.

On February 20, 1975 the Court of Ap-

peals dismissed the appeal for lack of an

appropriate judgment under Rule 54 (b).

On June 23, 1976 the District Court

granted the motion for summary judgment

of the remaining two defendants, Milwaukee

police officers Gilbert and Kocher.

Petitioner appealed July 22, 1976 to the

Court of Appeals the dismissals of defen-

dants Milwaukee police chief Breier and

Milwaukee police officers Gilbert and

Kocher and Wauwatosa police officer Chip-

man. On June 29, 1977 the Court of Ap-

peals affirmed. Petitioner now requests

certiorari.

Argument

Certiorari should be granted because the

lower courts here decided important ques-

tions of federal law which have not been,

but should be, settled by this Court.

1. Re question #1: Does a misdemeanor

arrest warrant confer power to arrest on a

charge transparently false?

The District Court stated (A. 16) "The

time-honored test as to the lawfulness of

e $2 «

an arrest is whether the arrest is either

with probable cause or pursuant to a war-

rant." Such power is dangerous to our

liberties. In Milwaukee and elsewhere po-

lice now have power to get any warrants

they want from magistrates who are their

rubber stamps. For confirmation see Arrest

by Wayne R. LaFave, Little, Brown and Com-

pany (1965) subtitled "The Report of the

American Bar Foundation's Survey of the

Administration of Criminal Justice in the

United States":

"The assumption apparently is that

greater protection for the individ-

ual is afforded by the warrant pro-

cedure, since an arrest will be made

only if an impartial judicial offi-

cer, upon careful evaluation of the

evidence presented to him, determines

that adequate grounds for an arrest

exist. But, at least in Kansas,

Michigan and Wisconsin, it is clear

that the warrant process does not

serve this function." page 502, and

on page 491: "Thus some appellate

courts continue to stress that use

of the arrest warrant is the prefer-

red method for making an arrest, ap-

parently oblivious to the fact that

meaningful judicial review of the

evidence prior to the issuance of the

warrant is unknown in many localities."

Petitioner respectfully submits that

meaningful judicial review of the flood of

misdemeanor warrants is obviously imprac-

tical. Due process can only be satisfied

by requiring the requestor of the warrant

and the arresting officer to use ordinary

common sense, or at least act in good

eo 8 «

faith. The "time-honored test" should be

modified by this Court.

2. Re question #2: When a police chief

continues to insist on criminal prosecu-

tion for 18 months after being personally

served with easily verifiable information

that the charge is false, is that the same

as personal involvement?

Here defendant Milwaukee police chief

Breier was personally served with the same

information that his officers, defendants .

Gilbert and Kocher, ignored when they ar-

rested petitioner. Chief Breier also ig-

nored proof of innocence and continued to

sanction for another 18 months the crimin-

al prosecution of petitioner. What is the

difference between that and personal in-

er Is there a significant differ-

ence

3. Re question #3: May police officers

seize and handcuff a person charged with a

misdemeanor when there is no apparent dan-

ger of escape or violence and the person

arrested agrees to go voluntarily with the

officers?

Here petitioner had agreed to go volun-

tarily but was seized by the two Milwaukee

police officers, defendants Gilbert and

Kocher, as petitioner finished putting on

his overcoat in the main office in front

of about 20 fellow employees. Petitioner

then planted his feet and held his arms

rigid at his sides while asking them to

take their hands off and repeating he was

going voluntarily. Is that unlawful re-

sistance or merely understandable protest?

e 19 «

4. Re question #4: May police officers

sworn to protect those who live and work

in their community stand by and do nothing

(except confer jurisdiction) while police

officers from another jurisdiction arrest

on a transparently false charge?

Wauwatosa police officer defendant Chip-

man did nothing but furnish jurisdiction,

and then watch and listen and laugh while

the two Milwaukee police officers, defen-

dants Gilbert and Kocher, ignored proof of

petitioner's innocence and dragged peti-

tioner out the door handcuffed. Later he

lied when he stated that petitioner shouted

"I am not going to go." Defendant Chipman

failed his duty to protect persons who

live or work in Wauwatosa. Petitioner

contends it is not necessary for a police

officer to seize and handcuff to partici-

pate in an arrest.

Conclusion

The present warrant procedure in Milwau-

kee and elsewhere is counter-productive.

Criminals escape or conceal evidence while

police officers perform the red tape of

getting a rubber-stamped warrant. A rub-

ber-stamped warrant allows police to roust

and jail citizens they know or should know

are innocent.

Chiefs in charge of thousands of police

officers appear to be immune and privil-

eged to encourage and sanction violations

of constitutional rights unless they them-

selves directly participate at the time of

the violations.

There are no restrictions on police

é M4 @

power to seize and handcuff when they have

a felony or misdemeanor arrest warrant.

Police have no duty to prevent outside

police from making false arrests of their

citizens.

Government employees at every stage of

the administration of criminal justice

scratch each other's backs to increase

governmental power over persons outside

government because they confuse deference

to their authority with fidelity to law.

For these reasons petitioner respect-

fully requests certiorari.

Buy

sopinte AR, 19977

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

Argued February 23, 1977

June 29, 1977

Before

Hon. THOMAS E. FAIRCHILD, Chief Judge

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. ALBERT S. CHRISTENSEN, Senior Dis-

trict Judge*

NICHOLAS BUR, Appeal from

Plaintiff-Appellant, the United

States Dis-

vs. trict Court

No. 76-1870 for the East-

CITY OF MILWAUKEE, et al., ern District

Defendants-Appellees. of Wisconsin.

No. 73-C-105

John W.

Reynolds,

Judge.

ORDER

Pursuant to 42 U.S.C. § 1983, plaintiff

brought this bro se civil rights action

for damages and for injunctive relief

grounded on asserted violations of the

Eighth, Ninth and Fourteenth Amendments.

*Senior District Judge Albert S. Christen-

sen of the District of Utah is sitting by

designation. —_

o to

The original defendants included the Cit-

ies of Milwaukee and Wauwatosa, Wisconsin,

Milwaukee Chief of Police Harold A.

Breier, Wauwatosa Chief of Police John

Howard, Milwaukee police detectives

Charles Gilbert and Dennis Kocher, and

Wauwatosa police officers Dennis Chipman

and Eugene Forster. Plaintiff does not

attack the district court's dismissal of

the two cities, Howard and Forster.

The complaint asserts that at 11:00

a.m. on February 11, 1972, Milwaukee de-

tectives Gilbert and Kocher and Wauwatosa

police officers Chipman and Forster ar-

rested him at his place of business in

Wauwatosa for previously operating an un-

registered automobile and for resisting

police officers in contravention of Sec-

tions 341.04 and 946.41 of the Wisconsin

Statutes. Plaintiff asserts that even

though he offered to accompany the Mil-

waukee policemen voluntarily, they first

grabbed and handcuffed him before taking

him to the Milwaukee jail and detaining

him until 5:30 p.m. on that date. All

charges were later dropped. Bur charged

that Gilbert and Kocher had used excessive

force and were careless, reckless and neg-

ligent. Breier and Howard were alleged to

be negligent concerning the training and

supervision of their subordinates. Bur

Claims that he sustained $2500 damages.

He also asked the district court to enjoin

Milwaukee police chief Breier and Wauwa-

tosa police Chief Howard from asking for

an arrest warrant under Section 341.04 of

the Wisconsin Statutes (dealing with oper-

ating unregistered vehicles) without first

SS ee the Wisconsin Motor

Vehicle Department that the person to be

o a «

arrested is in violation of that statute.

Further, plaintiff sought to enjoin Breier

from authorizing police officers under his

command to seize or handcuff persons char-

ged with misdemeanors when there is no ap-

parent danger of escape or violence and

when the person in custody agrees to go

voluntarily with the officers.

In his first opinion, Judge Reynolds

dismissed the action against the two cit-

ies and Milwaukee police chief Breier and

granted summary judgment to Howard, Chip-

man and Forster. Subsequently, the court

granted plaintiff's motion to compel cer-

tain discovery from the remaining defen-

dants. In a later opinion, he granted

Gilbert and Kocher summary judgment. As

noted, the appeal seeks reinstatement of

the action against Breier, Gilbert, Kocher

and Chipman. We affirm.

In granting Chipman summary judgment in

his first opinion, Judge Reynolds noted

that on the day of plaintiff's arrest,

Chipman stayed in the reception area of

plaintiff's office and did not participate

in serving the arrest warrant on him or in

arresting him for operating an unregistered

vehicle and for obstructing an officer.

Because Chipman was not shown to have act-

ed in bad faith or to have used unreason-

able force or to have subjected plaintiff

to anything more than the indignity of be-

ing arrested, his motion for summary judg-

ment was granted. It is uncontested that

Chipman did not enter plaintiff's office

and did not struggle with him or touch him

or participate in his arrest. No physical

injuries were said to have been inflicted

by Chipman. However, plaintiff argues

» Bed o

that Chipman had a duty to step in and pre-

vent his arrest, citing Byrd v. Brishke,

466 F.2d 6 (7th Cir. 1972). However,

there the defendant police officers inten-

tionally failed to protect Byrd from others

who were violating his civil rights by

beating him in their presence. In con-

trast, Chipman was not standing by while

other officers were summarily punishing a

third person in a blatantly unconstitu-

tional manner. Bonner v. ee 545

F.2d 565, 568-569 (7th Cir. en banc).

Since the arrest warrant had been issue

by a judicial officer, Chipman was not re-

quired to question its validity. Common-

wealth of Pennsylvania ex rel. Feiling v.

Sincavagl, 439 34 1133 (3rd Cir. i571).

Summary j

udgment for Chipman was properly

granted.

Plaintiff next questions the district

court's dismissal of Milwaukee police

chief Breier in the face of the alligation

that he was negligent in training and su-

pervising detectives Gilbert and Kocher.

To implicate Breier, plaintiff depends on

the doctrine of respondeat superior. How-

ever, it is well settied that there cannot

be a recovery under the Civil Rights Acts

through application of that doctrine.

McDonald v. Illinois, F.2d , No.

76-1265 (7th Cir. June 15, 1977), slip op.

at 13; Johnson v. Glick, 481 F.2d 1028,

1034 (2d Cir. 1973), certiorari denied,

bee Ces 1033; Adams v. Pate, 445 F.2d 105,

th Cir. 1971); Jennings v. Davis,

476 F.2d 1271, 1274 (8th Cir. 1973);

D rv. Grand Central, Inc., 504 F.2d

142, 45 (10t ?. ; see also Rizzo

v. Goode, 423 U.S. 362, 375-376. Moreover

mere negligence cannot support a Section

=~ 2

1983 claim in this Circuit. Bonner v. Coughlin

Coughlin, 545 F.2d 565 (7th Cir. 1976) (en

banc). Therefore, the action was properly

dismissed as to Breier.

With respect to detectives Gilbert and

Kochef, the opinion granting them summary

judgment points out that they served an

arrest warrant upon plaintiff after he

failed to appear in Milwaukee County Court

pursuant to a traffic citation and com-

plaint with respect to his operating an

improperly registered motor vehicle.1/ A

judge of that court ordered that a warrant

be issued for his arrest on November 30,

1971, and the warrant was issued and signed

by a court commissioner on February 4,

1972. This warrant was duly forwarded by

a member of the Milwaukee police depart-

ment to the warrant detail of the detec-

tive bureau of that department. It was

pursuant to that warrant that Gilbert and

Kocher appeared at plaintiff's place of

business on February 11 and advised him of

the existence of the warrant.

The district court held that plaintiff's

arrest was lawful because it was pursuant

to a warrant valid on its face, so that

1/ Bur did not appear in Milwaukee County

Court on November 30, 1971, as the cita-

tion notified him to do. At oral argument,

Bur maintained he failed to appear because

he thought an effort "to beat" the ticket,

on Section 341.04 grounds would be useless

until he had his new license plate stickers

(which were sent with the new registra-

tion) to show to the county judge. See

note 2 infra.

~~

the detectives did not need to have pro-

bable cause to arrest him. Morrison v.

United States, 262 F.2d 449, 452 (D.c.

Cir. 1958). As the district court cor-

rectly noted, the proper place for plain-

tiff to plead any defense to the offense

charged was in court rather than to the

officers whom the warrant authorized and,

indeed, compelled to make the arrest.2/

As to plaintiff's claim that the arrest

was effectuated with excessive force, the

district court noted that plaintiff only

suffered an abrasion on his wrists from

the handcuffs. In his deposition Bur con-

ceded he gave some physical resistance

(Dep. 22-23). Even without any resistance

by an arrestee, the use of such minimum

force is common in the course of an arrest.

As the court observed, handcuffing cannot

form the basis of a complaint under Sec-

tion 1983 and, here, where there was

2/ Bur had purchased a new car in Septem-

ber 1971. In October 1971, the traffic

citation was issued for driving an unreg-

istered vehicle. Bur could not register

the car until he received his title papers.

Under Wisconsin law, plaintiff maintains

that a new car may be operated "if appli-

cation for registration and certification

of title has been made." Wisc. Stat.

§ 341.04. The fact that Bur's car had

been registered subsequent to the citation

did not affect the facial validity of the

warrant for the previous offense. Produc-

tion of proof of registration to the ar-

resting officers therefore could not in

any way negate the good faith of the ar-

rest.

==

admittedly some resistance, this conclu-

sion follows a fortiori. Taylor v.

McDonald, 346 F.Supp. 390, 305 (N.D. Tex.

1972).

The orders in question are affirmed.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

NICHOLAS BUR, Plaintiff,

vs. No. 73-C-105

CHARLES GILBERT and

DENNIS KOCHER, Defendants.

MEMORANDUM OPINION AND ORDER

This pro se action is brought under

42 U.S.C. § 1983 and arises out of the

plaintiff's arrest by Milwaukee police de-

tectives on February 11, 1972. The arrest

was made by police officers of the City of

Milwaukee, but took place in the City of

Wauwatosa. The complaint originally named

as defendants the cities of Milwaukee and

Wauwatosa, the chiers of the police depart-

ments of both cities, two Wauwatosa police

officers who accompanied the Milwaukee

police officers to the scene of the arrest

and the two Milwaukee police detectives

who actually made the arrest. In a deci-

sion and order dated July 18, 1974, this

Court dismissed the action as to both city

defendants and the Milwaukee police chief

and granted summary judgment in favor of

the Wauwatosa police chief and both Wauwa-

tosa police officers. The two Milwaukee

police detectives, Charles Gilbert and

Dennis Kocher, are thus the only defen-

dants remaining in this action.

—-

« ie a

With respect to the remaining defen-

dants, the complaint seeks $2500 in dam-

ages for the unlawful arrest of the plain-

tiff on charges of operating an unregis-

tered or improperly registered motor vehi-

cle, § 341.04, Wis. Stats., and resisting

or obstructing an officer while such offi-

cer is doing an act in his official capa-

city and with lawful authority, § 946.41,

Wis. Stats. The complaint also alleges

that unnecessary and excessive force was

used by those defendants in effectuating

the aforementioned arrest. On December

11, 1975, defendants Gilbert and Kocher

moved for an order granting summary judg-

ment in their favor and against the plain-

tiff, pursuant to Rule 56 of the Federal

Rules of Civil Procedure. For the rea-

sons hereinafter stated, the Court has con

cluded that the defendants' motion must be

granted.

From the pleadings and papers on file

in this case, and from the affidavits and

documents submitted in support of and in

opposition to the motion for summary judg-

ment, the following facts appear: On

October 5, 1971, the plaintiff was issued

a traffic citation and complaint in the

form prescribed by § 345.11, Wis. Stats.

The citation and complaint was signed by

Officer Carl Karwack, and charged the

plaintiff with a violation of § 341.04,

Wis. Stats. The citation and complaint

further notified the plaintiff that he had

to appear in Branch 3 of the Milwaukee

County Court, Room 635, Milwaukee County

Courthouse, at 8:30 A. M. on November 30,

1971. The citation and complaint was sub-

sequently sworn to before a Milwaukee

County Court Commissioner, Herbert Schultz,

- A-10 -

on November 11, 1971, and filed with the

clerk of court for the Milwaukee County

Court on November 24, 1971.

The car the plaintiff was driving when

he received the citation was a 1972 Chevro-

let purchased 11 days earlier, on Septem-

ber 24, 1971, from the Humphrey Chevrolet

Company. It appears that Humphrey Chevro-

let undertook to arrange for the mechanics

of transferring the title for the 1972

Chevrolet to the plaintiff. As is permis-

sible in Wisconsin, the plaintiff physi-

cally transferred his license plates from

a 1968 Ford, which was his "trade-in" for

the 1972 Chevrolet, to the latter vehicle.

These plates expired at the end of Septem-

ber 1971, but the plaintiff believed that

a title certificate was necessary before

the registration plates on the 1972 Chevro-

let could be renewed. Plaintiff neverthe-

less thought (and indeed, presently main-

tains) that operation of the 1972 Chevro-

let on and after October 1, i971, was sanc-

tioned by § 341.04(1)(a), Wis. Stats:

"A vehicle may be operated by a

private person after the date of

purchase of such vehicle by such

private person *** if application

for registration and certificate

of title is made."

The plaintiff asserts that he tried to

explain for foregoing facts to Officer

Karwack on October 5, 1971, but that Kar-

wack nevertheless issued the citation and

complaint. Thereafter, on October 18,

1971, the plaintiff received his title

certificate for the 1972 Chevrolet, and

mailed the title certificate, application

- A-1l1 -

form, and registration fee to the State of

Wisconsin.

Plaintiff claims that he did not appear

in Milwaukee County Court as directed by

the citation and complaint for two some-

what inconsistent reasons: (1) he had lost

his copy of the citation, and (2) he had

not yet received his new license plate

stickers, and believed that until he had

such stickers to display to the county

court judge, the traffic citation would

not be voided. Upon the plaintiff's fail-

ure to appear on November 30, 1971, Judge

Louis J. Ceci ordered that a warrant be

issued for his arrest. A warrant was sub-

sequently issued, signed by Court Commis-

sioner Herbert Schultz, on February 4,

1972. Although § 345.37, Wis. Stats. pro-

vides that "{i}f the defendant fails to

appear in court at the time fixed in the

citation *** (1) *** the court may issue a

warrant under ch. 968," it does not speci-

fy what provision of Chapter 968 is appli-

cable. While § 968.09, Wis. Stats. author-

izes the issuance of a bench warrant of ar-

rest upon a defendant's failure to appear

as required, the warrant of arrest in this

case appears to have been based on the sub-

stance of the citation previously issued

to the plaintiff -- i.e., a violation of

§ 341.04, Wis. Stats. on October 5, 1971.

Meanwhile, on January 2, 1972, the

plaintiff had received his certificate of

registration and license plate stickers.

On February 10, 1972, Officer Richard L.

Kramer of the Milwaukee Police Department

called the plaintiff at his home and in-

formed him that the police department was

in possession of a warrant for his arrest.

- A-12 -

At this point, the affidavits differ as to

what next occurred: The plaintiff claims

that he tried to explain the situation to

Officer Kramer, whereupon Kramer hung up.

Kramer, in turn, asserts that he advised

the plaintiff that he could appear at

either the Traffic Bureau or the Fifth

District Police Station of the Milwaukee

Police Department, and that failing a vol-

untary appearance, the warrant would be

served upon the plaintiff at his home, at

which time he would be taken into custody.

Kramer further asserts that the plaintiff

then stated that he would not voluntarily

appear to answer the warrant. The plain-

tiff denies that Kramer told him of his

option of voluntary appearance, or that he

told Kramer he would refuse to so appear.

Thereafter, Officer Kramer forwarded

the warrant for the plaintiff's arrest to

the Warrant Detail of the Detective Bureau

of the Milwaukee Police Department. The

following day, February 11, 1972, Detec-

tives Gilbert and Kocher appeared at the

plaintiff's place of business, an office

building located at 2747 North Mayfair

Road, Wauwatosa, Wisconsin. They met the

plaintiff in the reception area of the

office building, advised him of the exist-

ence of the warrant, and placed him under

arrest. Once again, the affidavits at

this point differ as to what next occur-

red: The plaintiff maintains that he tried

to explain the situation to the defendants,

pointing out the certificate of registra-

tion in his possession and the then-

current registration stickers on his car.

When the defendants insisted on following

through on the warrant, the plaintiff

claims he stated that he would go along

- £18 -

voluntarily. As he was putting on his

coat, however, the plaintiff maintains

that the defendants "grabbed and pulled"

him, and then handcuffed him. The de-

fendants, in contrast, claim that they

allowed the plaintiff time to get his

coat, and that only after a period of

time had thereafter expired did they take

the plaintiff by the arm to escort him

from his office. The defendants assert

that the plaintiff then started to strug-

gle with them, whereupon he was placed in

handcuffs. One of the attending Wauwatosa

officers states that he entered the plain-

tiff's office after hearing shouting, and

observed the plaintiff holding on to a

desk and hear him shouting: "I am not go-

ing to go!" The plaintiff, in turn, den-

ies holding onto a desk or making any such

statement.

After being taken into custody, it ap-

pears that the plaintiff was detained for

six and one-half hours before being re-

leased. Although the complaint states

that the plaintiff was arrested not only

for the registration offense upon which

the warrant of arrest was based, but also

for resisting or obstructing an officer,

it does not appear that anything ever

came of this latter charge. The regis-

tration offense was subsequently prosecu-

ted, but eventually was dismissed by the

district attorney on December 12, 1973.

The foregoing statement of facts is a

sorry tale of an unfortunate and confused

confrontation between a citizen and his

government. At all times, it appears that

the plaintiff honestly believed that he

was innocent of the charged violation of

~ A-14 -

the motor vehicle laws, and if the plain-

tiff's affidavit is truthful, attempted to

explain his position in turn to Officer

Karwack, who issued the citation, to Offi-

cer Kramer, who called the plaintiff to

inform him of the warrant, and to detec-

tives Gilbert and Kocher, who executed the

warrant. Despite this belief in his inno-

cence, and his attempts to explain, the

plaintiff was subjected to the indignity

and humiliation of being arrested and hand-

cuffed at the place of his business, and

the embarrassment of temporary incarcera-

tion. Conversely, from the point of view

of the government, the plaintiff had fail-

ed to appear at a scheduled court hearing

of the underlying charge, and if Officer

Kramer's affidavit is truthful, refused to

agree to voluntarily appear to answer the

then outstanding arrest warrant. :

But in passing upon the defendants' mo-

tion for summary judgment, it is not ne-

cessary or proper for this Court to deter-

mine whether one party was "right" and

another party "wrong." Plaintiff bases

his suit on 42 U.S.C. § 1983, and in rul-

ing on the defendants' motion for summary

judgment, the Court should look only to

see whether on the basis of the undisputed

material facts it can be said as a matter

of law that the defendants have not de-

prived the plaintiff of "any rights, pri-

vileges, or immunities secured by the Con-

stitution and laws." Plaintiff maintains

that his rights under the Eighth, Ninth,

and Fourteenth Amendments to the United

States Constitution were violated by the

defendants. On the basis of undisputed

facts, the Court has concluded that the

plaintiff's claim cannot withstand the

- A-15 -

defendants' motion for summary judgment.

As previously noted, it does not appear

that the charge of resisting or obstruct-

ing an officer was ever pursued, and nei-

ther party has addressed this aspect of

the plaintiff's complaint. The Court

assumes, however, that a finding that the

arrest on the § 341.04 warrant was proper

will obviate the necessity of determining

whether the concurrent warrantless arrest

for resisting or obstructing an officer

was itself supported by probable cause.

Cf. Daly v. Pedersen, 278 F. Supp. 88, 92

(D. nn. 1967).

As a starting point, the Court notes

that the element of excessive or unneces-

sary force is not a prerequisite to or

otherwise an essential element of recovery

under § 1983. See, e.g., Droysan v. Han-

sen, 59 F.R.D. 483 (E.D. Wis. ); H -

ton v. City of Chicago, 484 F. 2d 602, 609

(7th Cir. CLAD — denied 415 U. S.

917 (1974); Beaure dv. Wingard, 230 F.

Supp. 167, 177 SB Cal. . Conver-

sely, the use of excessive force in the

context of an arrest, albeit an arrest

that is itself lawful, is actionable under

§ 1983. See, e.g., Clark v. Ziedonis, 513

F 2d 79 (7th Cir. 1975); Everett v. Cit

of Chester, 391 F. Supp. 36 (E.D. Pa. 1975).

The grounds asserted by plaintiff in sup-

port of his recovery are thus independent

and severable, and the Court will accord-

ingly consider them separately.

Plaintiff's first theory of recovery is

that his arrest on February 11, 1972 was

itself unlawful. As previously mentioned,

it is plaintiff's position that at no time

- A-16 -

was he ever in violation of § 341.04 --

that on October 5, 1971, his operation of

a vehicle without a then-current registra-

tion was authorized by § 341.04(1)(a), and

that on February 11, 1972, his car was re-

gistered in compliance with § 341.04(1).

Plaintiff further claims that the facts es-

tablishing his innocence were brought to

the attention of both the officer issuing

the citation and the detectives making the

arrest. Plaintiff's ingenuous argument is

that if he was innocent of the offense

charged, how can his arrest for that

charge be lawful?

An arrest must meet constitutional

standards to relieve the law officer from

possible civil liability under § 1983.

Taylor v. McDonald, 346 F. Supp. 390, 393

(N.D. Tex. 1973). The innocence per se of

the arrestee is not decisive: "A police

officer who arrests someone *** is not

liable *** simply because the innocence of

the suspect is later established." Per

v. J.nes, 506 F 2d 778, 780 (5th Cir. 5).

Conversely, the guilt of the suspect is

not a defense. The time-honored test as

to the lawfulness of an arrest is whether

the arrest is either with probable cause

or pursuant to a warrant. "As a general

rule an arrest, lacking an appropriate war-

rant or without probable cause, constitu-

tes a violation of due process giving rise

to a claim under § 1983."" Daly v. Peder-

sen, 278 F Supp. 88, 91 (D. Minn. 1567).

In the absence of a warrant, the exis-

tence of probable cause is decisive: "{A}n

arrest made without a warrant does not vio-

late the Constitution only if ‘at the mom-

ent the arrest was made, the officers had

- A-17 -

probable cause to make it -- {if} at that

moment the facts and circumstances within

their knowledge and of which they had rea-

sonably trustworthy information were suf-

ficient to warrant a prudent man in be-

lieving that the {suspect} had committed

or was committing an offense.'" Taylor v.

McDonald, 346 F. Supp. 390, 393-394 (N.D.

Tex. 1972).

In contrast, where an arrest is made

pursuant to a warrant, the relevant in-

quiry is not into whether or not there

was probable cause to make the arrest,

but whether or not the warrant pursuant to

which the arrest was made was valid. More-

over, the nature of the inquiry into the

validity of a warrant is different ina

situation where the question is the valid-

ity of the warrant for purposes of subse-

quent criminal proceedings than it is

where, as here, the question presented is

the lawfulness of the arrest for purposes

of holding the arresting officer liable

for damages. In the former situation, a

court might well look back to circumstan-

ces preceding the issuance of the warrant,

for it is the warrant itself which is in

question; in the latter circumstances, the

inquiry is not into the validity of the

warrant per se, but rather the propriety

of the o cers effectuating an arrest

pursuant to it. In that situation, the

officers need only determine whether the

warrant is valid "on its face."

"An officer is protected and justi-

fied in executing process fair on

its face--that is, process that is

issued by a court, magistrate, or

body having authority of law to

- A-18 -

issue process of that nature, is

legal in form, and contains noth-

ing to notify or fairly apprise

the officer that it is issued

without authority. If the process

is fair on its face it matters not

that it is irregular, and voidable

for such irregularity..."

32 Am. Jur. 2d, False Imprisonment

§ 67 (1967).

"It is the duty of the officer to

carry out without delay the com-

mands of a warrant which is valid

in form and issued by a court of

competent jurisdiction, and where

a warrant is valid on its face,

the officer is under no duty to

inquire further into its basis or

alleged invalidity before making

the arrest..."

6A C.J.S., Arrest § 7 (1975).

Plaintiff does not, nor could he in the

context of this lawsuit, challenge the

issuance of the warrant in question. Nor

does the plaintiff argue that the warrant

in question was legally defective in form

or "on its face," Instead, he maintains

that the defendants were informed of cir=

cumstances at the time of his arrest which

were sufficient to give the arresting

officers probable cause to believe that

the violation for which the warrant had

been issued had in fact not occurred. In

effect, plaintiff asserts that the exis-

tence of a warrant does not vitiate the

requirement that an arresting officer with

a warrant must nevertheless not have pro-

bable cause to arrest, or perhaps more

accurately, that an arresting officer with

- A-19 -

a warrant must nevertheless not have pro-

bable cause not to arrest. Whatever prac-

tical appeal Such a requirement might have

must be weighed against the fact that such

a requirement pits the arresting officer

against the decision of the judicial au-

thority issuing the warrant, in effect

compelling him to disobey the judicial or-

der to arrest unless he himself can ascer-

tain that an arrest is in order. Aside

from the inherent conflict between the

official issuing the warrant and the per-

son executing the warrant which such a re-

quirement would engender, the person exe-

cuting the warrant is often ill-placed to

make such a determination. It would be

absurd to require an arresting officer to

engage in argument with the person to be

arrested when a judicial officer has pre-

viously determined that probable cause to

arrest exists. Moreover, it is not the

law:

"A warrant of arrest is issued by so

some official authorized by law to

perform that duty, usually a magis-

trate, and it directs the police

or other officer to arrest the

named person. For example, a Com-

missioner's warrant in this juris-

diction begins with the words:

'You are hereby commanded to arrest

{the defendant}.' Thereafter the

police officer has no concern what-

ever with the question whether the

person should or should not be

arrested. The officer with a war-

rant has one duty and one duty

only; he is to arrest the person."

Morrison v. United States, 262 F.

, 452 (D.c. Cir. 1958)

(footnote omitted).

- A-20 -

Accord, Link v. Greyhound Corp., 228 F.

Supp. 898, 901 (E.D. Mich. 1968). The

Court must conclude in the circumstances

of this case that the defendants' arrest of

the plaintiff pursuant to the authority of

the warrant in question was not violative

of the plaintiff's constitutional rights,

and that the plaintiff can thus not recov-

er under § 1983.

The Constitution requires that an ar-

rest be supported by probable cause. In

the absence of a warrant, the probable

cause determination must be made by the

arresting officer. But where a warrant

does exist, the existence of probable

cause has previously been determined by a

judicial officer, and the Constitution

does not require that that determination

be duplicated by the officer executing the

warrant. If the person named in the war-

rant has a defense to the offense charged,

that defense can in due course be present-

ed to a judicial official. But the proper

place for the arrestee to plead his cause

is in court, and not to the officer whom

the warrant authorizes and compels to make

the arrest.

Plaintiff's second ground of recovery

is that the arrest was effectuated with

unnecessary and excessive force. From the

record, it does not appear that the plain-

tiff suffered any injuries, other than an

abrasion on his wrists from the handcuffs.

For the purposes of this decision, the

Court will assume, without finding, that

the plaintiff was handled discourteously

and that the use of handcuffs in this sit-

uation was unnecessary. The fact remains,

however, that the use of such minimal

- A-21 -

force is not uncommon or unusual in the

course of an arrest. For the Constitution

to be violated, the force used must be ex-

cessive. While the law does not require

that serious or permanent injuries result,

the law does require that the force used

be more than the mere technical "battery"

that is inextricably a part of any arrest:

"The courts have taken cognizance

of physical beatings and violence

resulting in deprivations of due

process. *** Because of the brutal-

ity of the attacks in those cases,

there were clear deprivations of

due process. Here, however, plain-

tiff has neglectec to allege any

more than a trivial battery at

best. *** In approaching Fourteenth

Amendment due process questions,

the court may consider the severity

of the act. While it is true that

the Civil Rights Act is to be read

in the context of tort liability,

*** nevertheless, the plaintiff

herein has failed to show the re-

quisite degree of harm needed to

constitute a denial of rights ‘im-

plicit in the concept of ordered

liberty.' *** Many, if not most,

arrests are bound to involve some

touching of the person of the ar-

rested person by the officer. It

becomes a 'battery' in violation

of the Constitutional Rights only

when excessive under the circum-

stances, certainly if the arrest

be a lawful one."

Daly v. Pedersen, 278 F. Supp. 88,

D. Minn. 1967).

(citations omitted).

- A-22 -

In a similar manner, it has been held that

mere handcuffing, without more, cannot form

the basis of’a complaint under § 1983.

Taylor v. McDonald, 346 F. Supp. 390, 395

THD tex. 1973)

Granted, a minimal battery and handcuf-

fing incident to arrest might well be of-

fensive to the sensibilities of a respon-

sible and law-abiding citizen. But given

that the initial arrest has been deter-

mined to have been a deprivation of lib-

erty in accordance with due process, the

secondary effects of the use of minimal

force incident to that arrest is not vio-

lative of the due process provision of the

Fourteenth Amendment. Nor can it be said

that such force amounts to cruel and unus-

ual punishment, in violation of the Eighth

Amendment rights of the plaintiff. Cf.

Anderson v. Nosser, 438 F. 2d 183 (5th

Cir. 1971), modified en banc 456 F. 2d 835

(1972), cert. denied 409 U. S. 848 (1972).

The crux of the plaintiff's claim is

really that a formal arrest and handcuf-

fing was excessive, given that the under-

lying offense amounted to no more than a

traffic offense. With this position, the

Court is not toally unsympathetic. An ar-

rest is a significant and substantial de-

privation of a person's liberty, and it

seems queer that the deprivation is essen-

tially the same, regardless of whether the

underlying offense is jaywalking or murder.

As a logical matter, probable cause to

believe an offense has been committed does

not vary in proportion to the severity of

the offense, and as a practical matter,

the resulting arrest is equally intrusive.

It may well be that common sense dictates

- 4-83 -

that the severe and drastic process of ar-

rest be reserved for crimes more serious

than the one herein involved. But that is

not the law. Indeed, in a related field

the Supreme Court has recently held that a

full search of the person may be conducted

incident to every custodial arrest, with-

out regard to the seriousness of the of-

fense occasioning the arrest. See United

States v. Robinson, 414 U. S. 218 (1973);

Gustafson v. Florida, 414 U. S. 260 (1973).

A full search of the person is a serious

intrusion into the privacy of the person

arrested, and is substantially above and

beyond the admittedly significant intru-

sion involved in the mere fact of arrest.

In Robinson, the arrestee had been driving

with a revoked license; in Gustafson, the

arrestee was charged with not having his

driver's license in his possession. If

such minimal violations can lawfully be

the occasion for a full search of the per-

son incident to arrest, it would be anomo-

lous for this Court to hold that such vio-

lations cannot support a simple arrest,

unaccompanied by a search. Similarly, it

would be anomolous to hold that a techni-

cal battery and handcuffing, which are

substantially less intrusive than a full

search of the person, somehow constitute

excessive or unnecessary force when the

contemporaneous arrest is for a simple

traffic violation.

The Court accordingly holds that in the

circumstances of this case, accepting as

true the plaintiff's version of the dis-

puted facts relative to the amount of

force used by the defendants on February

11, 1972, the plaintiff has no right to

recovery under § 1983.

- A-24 -

One final matter is deserving of men-

tion. The Milwaukee Chief of Police was

originally dismissed as a defendant in

this case on the ground that his alleged

negligence in training and supervising

the arresting officers was insufficient

"personal involvement" for him to be

liable to the plaintiff under § 1983.

(Decision and Order of July 18, 1974, at

2-3) In his affidavit in opposition to

the defendants' motion for summary judg-

ment, the plaintiff asserts that the Chief

of Police was personally served with cop-

ies of the notice of damages which § 895.43,

Wis. Stats. requires as a prerequisite to a

tort suit against governmental officers.

Plaintiff ‘then asserts that the failure of

the Chief of Police to take action on his

damage claim amounts to "personal involve-

ment."' The damages plaintiff seeks are

for the arrest and accompanying battery

and handcuffing on February 11, 1972; the

notice of damages was served on the Chief

of Police on June 9, 1972. Assuming

plaintiff's rights had been violated by

defendants Gilbert and Kocher on the for-

mer date, it is highly questionable whe-

ther the failure of the Chief of Police

to respond to the claim for damages on the

latter date is independently actionable

under § 1983. See Rizzo v. Goode, 44 U.S.

L.W. 4095 (Sup. Ct. January 21, 1976).

But it is beyond peradventure that the

failure of the Chief of Police to respond

on the latter date can in no way be logi-

cally related to or made a part of the

actions of defendants Gilbert and Kocher

on the former date. Construing this por-

tion of the plaintiff's affidavit in oppos-

ition to the motion for summary judgment

aS a request to rejoin the Milwaukee Chief

- A-25 -

of Police as a defendant in this action,

such request is denied.

For the aforementioned reasons,

IT IS THEREFORE ORDERED that the defen-

dants' motion for summary judgment in

favor of the defendants and against the

plaintiff is granted.

Dated at Milwaukee, Wisconsin, this

23rd day of June, 1976.

/s/ John W. Reynolds

U.S. District Judge

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

NICHOLAS BUR,

Plaintiff

Vv. DECISION AND ORDER

CHARLES GILBERT and Civil Action

DENNIS KOCHER, No. 73-C-105

Defendants

In this action plaintiff alleges that

he was unlawfully arrested on February 11,

1972, on charges of operating an unregis-

tered or improperly registered vehicle, in

in violation of § 341.04, Wis. Stats., and

for resisting or obstructing an officer,

in violation of § 946.41, Wis. Stats.

Plaintiff seeks monetary and injunctive

relief for the alleged deprivation of his

constitutional rights. Jurisdiction is

claimed under 28 U.S.C. § 1343 and 42

U.S.C. § 1983. Plaintiff is proceeding

pro se

In a previous decision and order, this

Court dismissed plaintiff's action against

all but two defendants. The remaining de-

fendants, Charles Gilbert and Dennis

Kocher, are the two Milwaukee police de-

tectives who made the arrest in question.

The plaintiff has moved for an order

compelling answers to certain questions

; - A-26 -

- A-27 -

asked at the depositions of Charles Gil-

bert and Harold A. Breier, Chief of Police

of the City of Milwaukee. Plaintiff also

asks for an order directing the production

of certain documents.

We will consider in order the contents

of plaintiff's discovery motion. For the

reasons hereinafter stated, portions of

the motion will be granted and the remain-

der denied.

The plaintiff first seeks to compel

Chief Breier to answer three questions dir-

ected to the training police officers re-

ceive with respect to the ticketing of il-

legally or improperly registered motor

vehicles. As pointed out by the defen-

dants in their brief in opposition to the

motion to compel discovery, these ques-

tions were substantially answered by Chief

Breier's responses to later questions.

Plaintiff next seeks to compel Chief

Breier to answer two questions pertaining

to police rules and regulations governing

the swearing out of arrest warrants for

the offense of operating an illegally or

improperly registered motor vehicle. Once

again, defendants' brief demonstrates that

Chief Breier's answers to subsequent ques-

tions adequately provide the information

that plaintiff has requested.

The defendants object to the next two

questions plaintiff seeks to have answered

on grounds that they are irrelevant, seek

the discovery of privileged information,

and are not designed to lead to the discov-

ery of admissible evidence. Those two

questions, as set forth in plaintiff's

- A-28 -

motion (page 2) are:

"6. Are you aware of previous in-

stances of complaints of officers

using unreasonable force in arrest-

ing for a traffic violation or a mis-

demeanor based on an unregistered or

improperly registered vehicle?

(page 24)

"7. Are you aware of Detective

Gilbert's record as to the absence

or presence of complaints against

him and infractions by him? (page

24) (And plaintiff requests that

Chief Breier be compelled to enum-

erate and describe such complaints

and infractions)."

The Court concludes that the first of

these two questions is relevant, designed

to lead to the discovery of admissible

evidence, and does not involve privileged

information. The Court will accordingly

grant plaintiff's motion with respect to

this question.

The Court will also grant plaintiff's

motion with respect to the second question,

but only insofar as such question requests

information concerning complaints against

defendant Gilbert which are similar in na-

ture to the subject matter of plaintiff's

suit, i.e., complaints regarding unlawful

arrests or the use of excessive force, in

connection with an arrest or otherwise.

Such information is relevant to the in-

stant case, and if not admissible therein,

may well lead to the discovery of admis-

sible evidence. Although the defendants

claim a privilege as to this information,

- A-29 -

they have failed to cite an authority or

otherwise sustain this clain.

The final question plaintiff seeks to

compel Chief Breier to answer is argumen-

tative and is directed to Chief Breier's

personal philosophy. It is not designed

to elicit factual matters, and the Court:

will not order that it be answered.

The first question the plaintiff seeks

to compel defendant Gilbert to answer per-

tains to the defendant appearing to defend

himself before the Police and Fire Commis-

sion. The Court will grant plaintiff's

motion with respect to this question, but

only insofar as the question is directed

to appearances relating to matters similar

to unlawful arrest or the use of excessive

force.

The second and third questions plain-

tiff seeks to compel defendant Gilbert to

answer are relevant to the subject matter

of this action. "The cases make it quite

clear that relevance is not to be measured

by the precise issues framed by the plead-

ings, but by the general relevance to the

subject matter." 4 Moore's Federal Prac-

tice, 1 26.56{1}, p. 26-120 and 26-122

(2d ed. 1975).

The final question plaintiff seeks to

compel defendant Gilbert to answer relates

to police procedures governing the execu-

tion of arrest warrants. As set forth in

the defendants' brief, Gilbert's responses

to subsequent questions adequately answer

the substance of plaintiff's question.

Plaintiff also seeks the production of

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police department instructions, rules and

regulations pertaining to the issuing of

tickets and the obtaining of arrest war-

rants for persons operating illegally or

improperly registered vehicles; department

instructions, rules and regulations as to

the amount of force to be used in misde-

meanor arrests; and department records of

complaints against and infractions by de-

fendant Gilbert. For reasons previously

stated, the production of these documents

will be ordered with the exception that

records of complaints against or infrac-

tions by defendant Gilbert need not be pro-

duced if such do not involve matters simi-

lar to unlawful arrest or the use of exces-

Sive force.

IT IS THEREFORE ORDERED that plaintiff's

motion to compel answers to questions pro-

pounded to Chief Breier is denied as to

those questions designated by plaintiff as

1, 2, 3, 4, 5, and 8; granted as to ques-

tion 6; and granted as to that part of

question 7 relating to unlawful arrests,

excessive force, and related or similar

matters.

IT IS FURTHER ORDERED that plaintiff's

motion to compel answers to questions pro-

pounded to defendant Gilbert is denied as

to question 4; granted as to questions 2

and 3; and granted as to that part of

question 1 relating to unlawful arrests,

excessive force, and related or similar

matters. '

IT IS FURTHER ORDERED that plaintiff's

motion for an order compelling the produc-

tion of documents is granted with the ex-

ception that those portions of department

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records dealing with complaints against or

infractions by defendant Gilbert for mat-

ters unrelated to unlawful arrest or the

use of excessive force need not be pro-

duced.

IT IS FURTHER ORDERED that there will

be no award of the cost and expenses of

bringing or opposing this motion.

Dated at Milwaukee, Wisconsin, this

26th day of November, 1975.

/s/ John W. Reynolds

U.S. District Court

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

NICHOLAS BUR,

Plaintiff,

v. DECISION AND ORDER

CITY OF MILWAUKEE, CITY OF Civil Action

WAUWATOSA, HAROLD A. BREIER, No. 73-C-105

JOHN HOWARD, CHARLES GILBERT,

DENNIS KOCHER, DENNIS CHIPMAN,

and EUGENE FORSTER,

Defendants.

In this action plaintiff alleges that

he was unlawfully arrested on February 11,

1972, on charges of operating an unregis-

tered or improperly registered vehicle (in

violation of § 341.04, Wis. Stats.) and

for resisting or obstructing an officer

(in violation of § 946.41, Wis. Stats.).

Plaintiff seeks monetary and injunctive

relief for the alleged deprivation of his

constitutional rights. Jurisdiction is

claimed under 28 U.S.C. § 1343 and 42

U.S.C. § 1983. Plaintiff is proceeding

pro se.

The defendants are as follows: the City

of Milwaukee; the City of Wauwatosa; Harold

A. Breier, the Milwaukee Chief of Police;

John Howard, the Wauwatosa Police Chief;

Dennis Chipman and Eugene Yorster, two

Wauwatosa Police officers; and Charles

Gilbert and Dennis Kocher, two Milwaukee

police detectives.

- £33 ~-

- A-33 -

Presently pending before the court are

motions of the City of Milwaukee and Harold

A. Breier to dismiss this action as to

them, and the motion for summary judgment

of defendants John Howard, Eugene Forster,

and Dennis Chipman.* These motions are

granted. In addition, I dismiss this ac-

tion as to the defendant City of Wauwatosa.

I.

Firstly, the complaint against the two

municipal corporations, Milwaukee and Wau-

watosa, must be dismissed for lack of

jurisdiction. Title 28 U.S.C. § 1343 does

not confer jurisdiction on this court for

an action against a municipal corporation.

In City of Kenosha v. Bruno, 412 U.S. 507

(1973), the Supreme Court recently clari-

fied that municipal corporations are not

"persons" for purposes of the Civil Rights

Act.

II.

I must also dismiss this action as

against the Milwaukee Chief of Police,

Harold A. Breier. I do so with the reali-

zation that an action, especially under

the Civil Rights Act, should not be dis-

missed at the pleadings stage unless it

appears to a certainty that plaintiff is

entltled to no relief under any state of

facts which could be proved in support of

their claims. Escalera v. New York Cit

Housing Authority, 425 F.2d 853, 857

* The two remaining defendants, Charles

Gilbert and Dennis Kocher, have answered

the comp.aint.

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(2d Cir. 1970), cert. denied 400 U.S. 855

(1970); 2A Moore, Federal Practice 1 12.08,

at 2271-2274 (4th ed. 1974). <_<

In his complaint plaintiff only alleges

that the defendant Breier was negligent in

training and supervising Detectives Gil-

bert and Kocher. This is not enough. The

doctrine of respondeat superior has no ap-

plication to the civ rights statutes,

for "{p}lersonal involvement is contempla-

ted." Salazar v. Doud, 256 F.Supp. 220,

223 (D. Colo. 1966). The courts have con-

sistently and uniformly held that police

supervisory personnel, even though charged

with selecting and training members of the

force, cannot be held liable for damages‘

to one injured by police misconduct absent

direct personal action by the supervising

officer. Jordan v. Kelly, 223 F.Supp. 731

(W.D. Mo. 1963); Ssnberg v. Daley, 306

F.Supp. 277 (N.D. . 1969). t is true

that courts have construed complaints more

liberally which seek equitable relief.

United States v. Clark, 249 F.Supp. 720

(S.D. Ala. 1965), but here the plaintiff

has not satisfied the burden of stating

the specific, factual involvement of the

defendant Breier to allow the court to or-

der either monetary or equitable relief.

Ill.

I must also grant the motion for sum-

mary judgment of the defendants John How-

ard, Dennis Chipman, and Eugene Forster.

In affidavits submitted by the defendants

Chipman and Forster, it appears that al-

though they were present at the time of

plaintiff's arrest--Chipman having stayed

in the reception area of plaintiff's

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office and Forster having stayed in the

patrol car--neither one participated in

the serving of the arrest warrant (for

operating an unregistered or improperly

registered vehicle) on the plaintiff, or

in the arrest of the plaintiff for either

the warrant charge or for obstructing an

officer. Plaintiff does not dispute this

in his affidavit. There is no genuine

issue as to these material facts.

It is clear that the defense of good

faith and probable cause is available to

police officers not only as a defense in a

common-law action for false arrest and im-

prisonment but also as a defense to a

§ 1983 suit. Pierson v. Ray, 386 U.S. 547

(1967). The Supreme Court in Pierson

Stated at 555:

"*** Under the prevailing view

in this country a peace officer who

arrests someone with probable cause

is not liable for false arrest simply

because the innocence of the suspect

is later proved. Restatement, Second

Torts § 121 (1965); 1 Harper & James,

The Law of Torts § 3.18 at 277-278

(1956); Ward v. Fidelity & Deposit Co.

of Maryland, 179 F.2d 357 (C.A. 8th

Cir. 15505 A policeman's lot is

not so unhappy that he must choose

between being charged with derelic-

tion of duty if he does not arrest

when he has probable cause, and being

mulcted in damages if he does, ***"

The situation I examine here is one

where the two Wauwatosa police officers

were acting pursuant to an arrest warrant.

They, however, did not particpate in the

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actual arrest as plaintiff was arrested by

Detectives Kocher and Gilbert of the Mil-

waukee Police Department. There is noth-

ing in either plaintiff's complaint or his

affidavit to show that Chipman and Forster,

or their superior officer, Police Chief

Howard, were acting in bad faith, used un-

reasonable force or violence, or subjected

plaintiff to anything more than the indig-

nity of being arrested. I am required as

a matter of law to grant the motion for

summary judgment of defendants Chipman,

Forster, and Howard.

IT IS ORDERED that the motion of the de-

fendant City of Milwaukee to dismiss this

action as to it be and it hereby is granted

granted.

IT IS FURTHER ORDERED that the motion

of the defendant Harold A. Breier to dis-

miss this action as to him be and it here-

by is granted.

IT IS FURTHER ORDERED AND ADJUDGED that

this action be and it hereby is dismissed

against the defendant City of Wauwatosa.

IT IS FURTHER ORDERED that the motion

for summary judgment of defendants John

Howard, Dennis Chipman, and Eugene Forster

be and it hereby is granted.

Dated at Milwaukee, Wisconsin this 18th

day of July, 1974.

/s/ John W. Reynolds

U. S. District Judge