Becky Bishop v. Peter Bosquez ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 30, 2019*
Decided July 31, 2019
Before
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 18-3646
BECKY L. BISHOP, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 16-CV-1447
PETER BOSQUEZ, et al., William C. Griesbach,
Defendants-Appellees. Chief Judge.
ORDER
Officers executing a warrant searched Becky Bishop’s property for maltreated
horses. Bishop sued them, alleging that the warrant was invalid and that the officers
used excessive force against her, in violation of the Fourth and Fourteenth
Amendments. See 42 U.S.C. § 1983. The case proceeded in two phases. First, the district
court entered summary judgment for the defendants on the claim challenging the
warrant’s validity. Then, following some pretrial rulings, the excessive-force claims
went to a bench trial, where the court found that the force was reasonable. Bishop now
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 18-3646 Page 2
contests (1) summary judgment on the invalid-warrant claim; (2) the adverse pretrial
rulings; and (3) the excessive-force finding. We affirm because, with deference to the
warrant-issuing judge, the warrant was justified; the pretrial rulings fall comfortably
within the trial judge’s discretion; and the finding of no unreasonable force was not
clearly erroneous.
I. Background
We recite the facts in the record, noting where the parties disagree.
a. The Search
Peter Bosquez, a Waupaca County police officer, visited Bishop’s farm in 2013 to
respond to a report that Bishop’s horses were malnourished. (Mistreating animals is a crime
in Wisconsin.) He saw malnourished horses and fences and stables in disrepair. (Bishop
counters that Bosquez never entered her barn.) Bosquez served Bishop with an
administrative order requiring her to call a veterinarian for the horses and to repair her
fencing. Bishop administratively appealed the order, but the county voted to uphold it.
A month later, Bosquez saw that Bishop’s fence had not been repaired, so he
obtained a search warrant. In the affidavit supporting the warrant, Bosquez attested to the
mistreatment he had observed and that he had completed animal-welfare training. A state
judge issued the warrant. It authorized a search of Bishop’s property for the seizure of
malnourished horses and any paperwork or electronic files about their care. Bosquez, other
officers, and Dr. Matt Koltz, a veterinarian, then went to Bishop’s home and served her with
the warrant. She cracked the door open briefly, but quickly closed and locked it. Bosquez
forced the door open and took Bishop to the living room. After assigning two officers to
watch her, Bosquez and Dr. Koltz searched the property. They seized Bishop’s 22 horses
and various documents.
The officers assigned to watch Bishop during the search, Tim Wilz and Kevin
Studzinski, ordered her to stay seated on the couch, but Bishop refused. A few times she
tried to get up, use the phone and bathroom, and walk about living room, which was
cluttered and might have concealed dangerous objects or weapons. The first time that
Bishop refused to stay seated, Studzinski pushed her back onto the couch. Another
time, Bishop thought that officers outside were aiming a gun at one of her sons (it was
actually a taser). When she stood up again, she fought Studzinski’s attempt to seat her,
so he and Wilz pushed Bishop facedown onto the couch and handcuffed her.
A struggle to handcuff Bishop ensued. According to Studzinski, Bishop was
swearing at him and punched him. As Bishop clashed with the officers, her pants
became unbuttoned and partially fell down. Bishop says that the officers pulled them
and her underwear down and touched her inappropriately. The officers responded that
No. 18-3646 Page 3
her pants came down inadvertently and that her underwear never came down. The
police then led her from the house to a car outside, using force to lift her because she
was “passively resisting.” As she resisted, Bishop’s pants began to fall down again.
Studzinski states that he “hoist[ed]” them up while taking her to the police car.
b. Litigation
After the search, the State of Wisconsin prosecuted Bishop in state court for failing to
lawfully care for her horses. During those proceedings, Bishop challenged the validity of
the warrant. The state judge ruled that warrant was valid and sufficiently supported by
Bosquez’s affidavit. After pleading no contest to the charges, the judge sentenced her to two
years of probation. Bishop did not appeal.
This suit followed. As relevant on appeal, Bishop sued Bosquez, and Dr. Koltz and
his employer, alleging that the search and seizure were unreasonable and had violated state
law. These defendants moved for summary judgment, and the district court granted their
motions. Regarding Bishop’s challenge to the warrant’s validity, it ruled that Bishop had
not substantiated her assertion that Bosquez had lied to obtain the warrant. On the claims
against Dr. Koltz and his employer, the district court determined that Bishop did not offer
evidence suggesting that they contributed to an unlawful search. The court dismissed
Bishop’s state-law claims against these defendants without prejudice.
Bishop also sued Wilz and Studzinski for using unreasonable force during the
search. Those claims survived summary judgment, leading to several pretrial rulings.
The district judge granted the defendants’ motion to extend discovery to depose
Bishop’s son because Bishop had not timely provided his contact information. Bishop
filed two motions in limine on which the judge deferred ruling. The first sought to bar
the defendants from questioning Bishop at trial about her horses. The judge advised
Bishop that if he granted the motion, a jury might speculate—adversely to Bishop—
about the reason for the search warrant. The second motion sought to bar from trial a
summary of the county’s investigation into Bishop’s administrative complaint against
Studzinski and Wilz. The judge wanted more time to assess the summary’s relevance.
Finally, citing factual disputes, the judge denied a third motion from Bishop in which
she sought to tell the jury that she was not “under arrest” when the officers handcuffed
her during the search. After these decisions, Bishop waived her right to a jury trial.
At trial, the judge credited the officers’ testimony and ruled that they did not use
unreasonable force. He bypassed the question whether Bishop was arrested and treated
the case as if Bishop was not under arrest and was handcuffed only to facilitate the
search. But the judge concluded that the officers used reasonable force because Bishop
locked the door when she was served with the warrant, refused to stay on the couch
No. 18-3646 Page 4
when she was ordered to do so, and fought the officers when they tried to keep her
there. It also rejected the claim that the officers intentionally pulled and left her pants
down, finding that Studzinski pulled them up for her when they fell accidentally. The
court entered judgment for all defendants and awarded costs. Bishop then filed a
motion that the district court construed as a motion for a new trial under Federal Rule
of Civil Procedure 59, and the court denied it.
II. Analysis
First, a word about the scope of Bishop’s appeal: Bishop’s new-trial motion was
still pending when she filed her notice of appeal. Under Federal Rule of Appellate
Procedure 4(a)(4)(B)(i), the judgment became final and came within the scope of her
earlier-filed notice once the district court ruled on Bishop’s new-trial motion. But we
lack jurisdiction to consider Bishop’s challenge to that new-trial ruling because she did
not file an amended notice to appeal that ruling. FED. R. APP. P. 4(a)(4)(B)(ii).
We similarly do not consider Bishop’s challenge (in her appellate brief) to the
award of costs. Under the local rules, which even pro se litigants must follow, see, e.g.,
Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006), “[a] party may move for review of the
Clerk of Court's decision taxing costs pursuant to Fed. R. Civ. P. 54(d) within 7 days from
taxation.” E.D. WIS. CIV. R. 54(c); see also Fidelity and Deposit Co. of Md. v. Edward E. Gillen Co.,
926 F.3d 318, 328 (7th Cir. 2019). A failure to do so prevents appellate review. Id. Bishop
objected to the bill of costs, but she did not, as these rules require, ask the district court to
review her objections once the Clerk taxed costs; nor did she appeal from the taxation of
costs.
a. Summary Judgment Regarding the Warrant’s Validity
Bishop first argues that in two ways Bosquez lied to obtain the search warrant,
rendering it invalid. First, in his affidavit supporting the warrant, he attested that he had
completed training about animal treatment, but Bishop insists that he did not complete that
training until after he first visited her property. Second, in that affidavit Bosquez also
attested that Bishop had not called a veterinarian to examine her horses, but Bishop
maintains that she scheduled a herd evaluation for the day before the search. We review
de novo a district court’s grant of summary judgment, construing the undisputed facts
in Bishop’s favor. White v. City of Chicago, 829 F.3d 837, 841 (7th Cir. 2016). Summary
judgment is appropriate when no genuine dispute of material fact exists and the
moving parties are entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); White,
829 F.3d at 841.
Bishop’s challenge to the warrant’s validity fails. First, the challenge is precluded
because a state court already has upheld the warrant against Bishop’s previous
No. 18-3646 Page 5
challenge. See 28 U.S.C. § 1738; Allen v. McCurry, 449 U.S. 90, 103–05 (1980). In any event,
her challenge is meritless. We afford “great deference” to the decision of the judge who
issued the warrant. United States v. McIntire, 516 F.3d 576, 578 (7th Cir 2008). And Bishop
has offered no evidence showing that Bosquez lied to that judge, so the deference is intact.
See Archer v. Chisholm, 870 F.3d 603, 615–16 (7th Cir. 2017). Even though Bosquez may not
have completed his animal-welfare training until after he first visited Bishop’s property, in
the warrant application he stated truthfully that he completed the training before seeking
the warrant. And nothing in the record suggests that Bosquez knew that Bishop had
scheduled a herd evaluation for the day before the search.
Next, Bishop argues that Bosquez exceeded the warrant’s scope by (1) searching
vehicles in which horses were never kept; and (2) searching a vehicle and seizing horses
that belonged to her son. Though she arguably raised these contentions in her complaint,
she did not present them at summary judgment, so we need not consider them. See Fednav
Intern., Ltd. v. Continental Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010). But for two reasons, they
are unavailing anyway. First, the warrant authorized a search of the property for animals
and records of their treatment, and “officers are entitled to search anywhere the items to be
seized might likely be discovered, so long as that is within the place authorized to be
searched.” Archer, 870 F.3d at 617. Because the warrant empowered Bosquez to search the
property for paperwork (including electronic files) about the horses’ care, he could look any
place on the property where documents could have been, including vehicles. See United
States v. Borotowski, 775 F.3d 851, 864–65 (7th Cir. 2014). Second, because Bishop “admitted
that [s]he did not own the horses” or the son’s vehicle, she “lacked standing to sue” about
those searches and seizures. Siebert v. Severino, 256 F.3d 648, 655 (7th Cir. 2001).
Finally, Bishop challenges the district court’s decision to dismiss her state-law
claims. But the court reasonably declined to exercise supplemental jurisdiction over those
claims when it decided Bishop’s federal claims against Bosquez at summary judgment.
28 U.S.C. § 1367(a), (c)(3); Coleman v. City of Peoria, 925 F.3d 336, 351–52 (7th Cir. 2019).
b. Trial – Officers Tim Wilz and Kevin Studzinski
i. Pretrial Motions
Bishop contests three pretrial decisions. She first argues that by delaying ruling
on two of her motions in limine until trial, the court “forced” her to waive her right to a
jury because she feared that adverse rulings on these motions could prejudice the jury.
District courts have broad discretion to make and alter pretrial evidentiary rulings
before and during trial. Perry v. City of Chicago, 733 F.3d 248, 252 (7th Cir. 2013). A court
that delays ruling on a motion in limine until trial might abuse its discretion if it did not
prepare the parties for the ruling. See, e.g., Pena v. Leombruni, 200 F.3d 1031, 1034–35
(7th Cir. 1999). But that is not the case here. The court reasonably deferred ruling on
No. 18-3646 Page 6
Bishop’s request to block questions about her horses because it advised her to consider
if she wanted a jury to speculate about the basis for the search warrant. And the court
properly delayed ruling on whether to admit the report of Bishop’s administrative
complaint against Studzinski and Wilz because its relevance was uncertain. See Perry,
733 F.3d at 252. Finally, the court reasonably left for trial the question whether Bishop
was under arrest during the search: her “arrest” status was contested, and different
standards govern the use of force for detentions incident to a search warrant and for
those incident to an arrest. Compare Muehler v. Mena, 544 U.S. 93, 98–100 (2005) (search
warrant) with Graham v. Connor, 490 U.S. 386, 396–97 (1989) (arrest).
Bishop also challenges the court’s decision to extend the discovery deadline so
that the defendants could take her son’s deposition. But an extension was well within
the court’s broad discretion over “matters of trial management,” Griffin v. Foley,
542 F.3d 209, 217 (7th Cir. 2008), given that Bishop had refused to provide her son’s
contact information earlier.
ii. Sufficiency of the Evidence
Finally, Bishop argues that the evidence at trial compels the conclusion that
Studizinski and Wilz used excessive force. She emphasizes that the officers admitted
that her pants were partially down during the search and they would not let her pull
them up, make any phone calls, go to the bathroom, or leave the couch after she
thought that officers had drawn a gun on her son. We review for clear error the trial
judge’s findings that the officers’ use of force was reasonable. See FED. R. CIV. P. 52(a)(6);
Wilborn v. Ealey, 881 F.3d 998, 1004, 1006–07 (7th Cir. 2018).
To determine whether police used excessive force when executing a search
warrant on a civilian, a trier of fact examines “whether the officers’ actions were
objectively reasonable in light of the totality of the circumstances.” Flournoy v. City
of Chicago, 829 F.3d 869, 874 (7th Cir. 2016). The factfinder assesses reasonableness from
the perspective of an officer on the scene, recognizing that officers often must make
split-second decisions. Id. at 874. When a person forcefully and persistently refuses to
comply with lawful orders to submit to a search, the police may use force reasonably
calculated to achieve compliance. See Muehler, 544 U.S. at 98–100; Smith v. Ball State
Univ., 295 F.3d 763, 770–71 (7th Cir. 2002).
For several reasons, the district court did not clearly err in finding that the force
applied to Bishop was reasonable. First, Bishop disobeyed lawful orders. She ignored
orders to let the police in her home to execute the warrant and to remain seated during
the search. Second, she used force: she locked the police out and punched them when
they tried to seat her. Third, her resistance led them to worry understandably about
No. 18-3646 Page 7
their safety and the search. The clutter in Bishop’s living room might conceal a weapon
that Bishop could use to harm them or interfere with the search, and this reasonable
fear justified their use of force to handcuff her, even if that her kept her from using the
phone or bathroom. See Los Angeles Cty. v. Rettele, 550 U.S. 609, 614–16 (2007); Muehler,
544 U.S. at 98–100. Fourth, the police did not use force beyond that needed to handcuff
her for their safety: the district court permissibly accepted as more credible the officers’
testimony that they did not deliberately pull her pants down and that they pulled the
pants up as they moved her to the car. See Anderson v. Bessemer City, 470 U.S. 564, 574
(1985) (“Where there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.”). Finally, Bishop’s concern that the police
held her son at gunpoint did not disable the police from keeping her immobilized for
their safety and to complete the search. “When officers execute a valid warrant and act
in a reasonable manner to protect themselves from harm … the Fourth Amendment is
not violated.” Rettele, 550 U.S. at 616.
We have considered Bishop’s remaining arguments, and none has merit.
We therefore AFFIRM the judgment.