# Petition — Bur v. Breier > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2603%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 434 U.S. 967 ## Text 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 - A-30 - 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 - A-31 - 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. - A-34 - (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 - A-35 - 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 - A-36 - 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2603%3A1. Public record. Not legal advice.