Lawrence, Darrick A. v. Kenosha County ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1472
DARRICK LAWRENCE,
Plaintiff-Appellant,
v.
KENOSHA COUNTY and LOUIS VENA,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02 C 1216—Rudolph T. Randa, Chief Judge.
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ARGUED SEPTEMBER 27, 2004—DECIDED DECEMBER 2, 2004
____________
Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. As he attempted to exit the park-
ing lot following a concert, Darrick Lawrence was involved
in an altercation with Louis Vena, a Kenosha County police
captain. Lawrence claims that he was seized illegally and
that Vena used excessive force in removing him from his
vehicle. The district court granted summary judgment in
favor of Vena and Kenosha County. Lawrence appeals. We
find that probable cause did exist for the stop and that
Vena acted within the limits of his authority. We therefore
affirm the grant of summary judgment.
2 No. 04-1472
I. History
On July 18, 2002, Darrick Lawrence attended a country
music concert known as Country Thunder in Twin Lakes,
Wisconsin. His girlfriend, Jessica Uccardi, and her young
daughter were with him in his SUV as he attempted to
leave the event. Kenosha County Sheriff’s Department
deputies William Peck and Chris Peck (no relation) were
present to direct traffic. Captain Louis Vena was called to
assist in this task. He wore plain clothes: a gray shirt,
khaki pants, and a red baseball-type hat with a silver star
patch on the front and the words “Kenosha County Sheriff’s
Department” embroidered in yellow around the star. Vena
wore his full-sized gold badge on his belt as well as an ex-
posed firearm, handcuffs, a magazine carrier, a pager, a cell
phone, and a key holder with keys.1
The officers decided to direct traffic into two eastbound
lanes from the main gate so that cars could turn one way to
travel north and the other way to travel south. Vena
watched traffic from his squad car and noticed a few cars
causing problems by attempting to change lanes. He got out
of his car and directed the vehicles safely into their pre-
ferred lane. He then noticed a green SUV turning into the
path of a compact car. He stopped in front of the SUV and
asked the driver, Lawrence, which way he was going.
According to Lawrence, Vena pounded on the hood of his
SUV to get his attention as he asked this question. Lawrence
replied that he was going south and then said, “you don’t
have to pound on my hood, you ass.” Vena then approached
the driver’s window and told Lawrence that he had not
touched his vehicle to make him angry. Lawrence again
called Vena an “ass” and said that Vena should not have
touched his truck at all.
1
The presence of these items was confirmed by Vena, Deputy W.
Peck, and Lawrence’s girlfriend, Jessica Uccardi.
No. 04-1472 3
Because of Lawrence’s irrationally angry behavior, Vena
believed that Lawrence might be under the influence of
drugs or alcohol. He asked Lawrence for his driver’s license
in order to determine whether his motor skills were im-
paired and whether Vena could detect any smell of alcohol.
Lawrence yelled, “Who are you to ask for my driver’s
license?” and refused to give it to Vena. At this point, the
SUV was in motion and Vena determined that the vehicle
was a threat to other cars and pedestrians. Vena ordered
Lawrence to stop the vehicle. When he did not, Vena reached
into the vehicle and attempted to put it in park. Because he
was unable to do so, Vena opened the door, grabbed Law-
rence’s left arm, and tried again to stop the vehicle. In his
deposition, Lawrence admitted that he was attempting to
drive away from Vena.2 At the time of his affidavit, he said
that the vehicle was moving only because his foot had
slipped off the brake during the scuffle. It is uncontested,
however, that the vehicle was in motion.
As Vena and Lawrence struggled through the open door,
Deputy W. Peck, a uniformed officer, approached the vehicle
and asked Vena if he needed help. Lawrence testifies that
he did not know Vena was a police officer until that point.
2
This testimony was given by Lawrence in his deposition:
Q Your car was in gear and you were moving forward at the
time that he had hold of your left arm, right?
A Yes.
Q At the time he had hold of your left arm, he was reaching
in to grab your gear shift, correct?
A Yes.
Q And it’s at that point you state that you were driving
away or trying to drive away or trying to drive to the
next available police officer; is that right?
A Yes.
(Lawrence Dep. at 38.)
4 No. 04-1472
Once he recognized that Vena was a police officer, Lawrence
claims that he voluntarily exited his vehicle and was
cooperative. He claims that Vena retained his hold on
Lawrence’s left arm and that after Lawrence exited the
vehicle, Vena “jerked Lawrence’s wrist upward until his
wrist was touching his neck.” After Lawrence was out of the
vehicle, Vena asked Uccardi if she was able to drive the
vehicle off to the side of the road. She answered in the
affirmative and moved the vehicle. The officers continued to
evaluate Lawrence. Lawrence stated that he had not been
drinking alcohol and requested a breathalyzer test. Law-
rence was questioned about his reaction to Vena’s knock on
the hood and he stated, “I don’t let anybody touch my
fucking truck.” Lawrence was informed that if he continued
to swear, he would be arrested for disorderly conduct. Vena
took Lawrence’s driver’s license to his squad car where he
checked for outstanding warrants pursuant to standard
operating procedure. Vena then told Lawrence that he
would be receiving a citation in the mail for failure to obey
an officer’s signal.
Lawrence then indicated that he would like to make a
complaint against Vena regarding damage to his vehicle.
Deputy W. Peck handled the report. Lawrence pointed to
two scratches on his driver’s side door that were about three
inches in length. Lawrence claimed that this damage had
been caused by Vena, but he did not claim that there was
any damage to the hood of the vehicle.
II. Analysis
Lawrence argues that he was subject to a Fourth
Amendment seizure when he was forcefully removed from
his vehicle by Vena and that he was arrested without prob-
able cause. He claims that Vena’s suspicion that Lawrence
might have been intoxicated was not reasonable. He further
contends that Vena used excessive force in making this ar-
No. 04-1472 5
rest and caused physical injury to Lawrence’s shoulder.
Lawrence also claims that Kenosha County is liable because
it ratified the acts of its agent, Vena, in its official response
to Lawrence’s citizen complaint.
Kenosha County and Vena assert that even if Lawrence’s
version of the facts is accepted as true, his claim does not
amount to a constitutional violation. Also, they argue that
the § 1983 claims against Kenosha County must be dismissed
because Lawrence has not shown any sort of unconstitu-
tional policy or practice. Finally, they maintain that Vena’s
discretionary actions in performing an investigative stop of
Lawrence cannot support a negligence claim because such
actions are protected by governmental immunity under Wis.
Stat. § 893.80(4).
A. Standard of Review
When summary judgment is granted below, we review
de novo. See Lamers Dairy Inc. v. United States Dep’t of
Agric., 379 F.3d 466, 472 (7th Cir. 2004); Indiana Family &
Soc. Servs. Admin. v. Thompson, 286 F.3d 476, 479 (7th Cir.
2002). Summary judgment is properly granted when “the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). When determining whether a genuine issue
of material fact exists, we consider evidence in the light
most favorable to the nonmoving party. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Material facts are facts that “might affect the outcome of
the suit” under the applicable substantive law. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
over material facts is genuine if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Id.6 No. 04-1472
In this case, Kenosha County and Vena have the burden
of proving that there is not a genuine issue of material fact
and that they are entitled to judgment as a matter of law.
However, Lawrence retains the burden of producing enough
evidence to support a reasonable jury verdict in his favor.
See id. at 256. “The mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the re-
quirement is that there be no genuine issue of material
fact.” Id. at 247-48 (emphasis in original).
B. Vena Had Probable Cause to Seize Lawrence
The facts in this case, taken in the light most favorable to
Lawrence, do not amount to a constitutional violation. The
Fourth Amendment protects people from unreasonable
searches and seizures. A formal arrest is not valid unless
there is probable cause. Probable cause exists “if the totality
of the facts and circumstances known to a reasonable
arresting officer would support the belief that the suspect
has committed or is committing a crime.” Driebel v. City of
Milwaukee, 298 F.3d 622, 643 (7th Cir. 2002). An investiga-
tive stop, however, requires only that the officer is able “to
produce articulable facts giving rise to a reasonable suspi-
cion that a defendant has been, is, or is about to be engaged
in criminal activity.” Smith v. Ball State Univ., 295 F.3d
763, 768 (7th Cir. 2002) (internal quotations omitted). An
investigative stop becomes a seizure at the point when a
reasonable person would feel that he is not free to leave. See
United States v. Mendenhall, 446 U.S. 544, 554 (1980).
There must also be “an intentional acquisition of physical
control.” Brower v. County of Inyo, 489 U.S. 593, 596 (1989).
Lawrence was seized when Vena grabbed Lawrence’s arm
and attempted to physically remove him from his vehicle. A
reasonable person, at that point, would have felt that he
No. 04-1472 7
was not free to leave.3 This seizure, however, was not uncon-
stitutional because it was based on probable cause. After
Lawrence refused to produce his driver’s license, Vena had
an objectively reasonable belief that Lawrence had violated
a Wisconsin law making it a misdemeanor to knowingly
resist or obstruct an officer when he is performing any act
in his official capacity and with lawful authority. See Wis.
Stat. § 946.41. Police officers are permitted under the Fourth
Amendment to make warrantless arrests for minor criminal
offenses. See Atwater v. City of Lago Vista, 532 U.S. 318(2001). Lawrence’s contention that he did not know Vena
was a police officer must be taken as true for purposes of this
appeal. However, because Vena’s badge and weapon were in
plain sight on his belt and he was wearing a Sheriff’s
Department hat, it was reasonable for Vena to think that
Lawrence knew he was a police officer. Therefore, a reason-
able police officer would believe that Lawrence knowingly
violated the officer’s lawful order to produce his license.
Probable cause existed and, thus, the seizure was not a
constitutional violation.
C. The Amount of Force Applied by Vena Was Reasonable
Under the Circumstances
Now we must consider whether Vena applied excessive
force in his lawful seizure of Lawrence. The Supreme Court
has made it very clear that “all claims that law enforcement
officers have used excessive force . . . in the course of an
arrest, investigatory stop, or other ‘seizure’ of a free citizen
should be analyzed under the Fourth Amendment and its
3
Lawrence argues that he was unaware that Vena was a police
officer. Therefore, the seizure did not occur until Deputy W. Peck
approached the vehicle and asked Vena if he needed assistance.
It was then that Lawrence realized that he was arguing with a
police officer and would not have felt that he was free to leave.
8 No. 04-1472
‘reasonableness’ standard.” Graham v. Connor, 490 U.S.
386, 395 (1989) (emphasis in original). In determining
whether a particular seizure was reasonable, a court should
carefully consider the “facts and circumstances of each par-
ticular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety
of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.” Id. at 396.
The officer’s behavior will be “evaluated for objective
reasonableness based upon the information the officers had
when the conduct occurred.” Saucier v. Katz, 533 U.S. 194,
207 (2001). The assessment of reasonableness “must
embody allowance for the fact that police officers are often
forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the
amount of force that is necessary in a particular situation.”
Graham, 490 U.S. at 396-97.
The facts here, according to Lawrence, are that Vena
grabbed his left arm and attempted to pull him out of his
vehicle. Then after he got out of the vehicle, Vena pulled
Lawrence’s wrist behind him and up to his neck. Lawrence
contends that this action caused injury to his rotator cuff.4
Accepting Lawrence’s accusations as true, the amount of
force used by Vena was not excessive. Lawrence refused to
produce his driver’s license when Vena requested it. He was
combative and irrationally angry. The fact that his vehicle
was in motion as he argued with Vena could lead a reason-
able officer to believe that he was attempting to evade ar-
rest. Vena could also have reasonably believed that Law-
rence was posing a danger to pedestrians and stopped
traffic in the area. “To say that police officers have acted
within the bounds that the Constitution sets is not neces-
4
It should be noted that Lawrence’s doctor was unable to confirm
that Lawrence’s shoulder pain was caused by anything that might
have occurred in the altercation with Vena.
No. 04-1472 9
sarily to say that they have acted wisely.” Bell v. Irwin, 321
F.3d 637, 641 (7th Cir. 2003). But a police officer’s ability to
make a stop or an arrest “necessarily carries with it the
right to use some degree of physical coercion or threat
thereof to effect it.” Graham, 490 U.S. at 396. The force
used in making the seizure was not excessive.
D. Kenosha County Is Not Liable
A government entity is responsible under 42 U.S.C.
§ 1983 “when execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy, inflicts
the injury.” Monell v. Dep’t of Soc. Servs. of New York, 436
U.S. 658, 694 (1978). A municipality cannot be held liable
solely on the grounds of respondeat superior. Id. at 691.
This court summarized relevant Supreme Court cases on
the issue and found there to be three ways in which a
municipality can be held liable under § 1983. There must
be: (1) an express policy that would cause a constitutional
deprivation if enforced; (2) a common practice that is so
widespread and well settled as to constitute a custom or
usage with the force of law even though it is not authorized
by written law or express policy; or (3) an allegation that a
person with final policy-making authority caused the
constitutional injury. See Baxter v. Vigo County Sch. Corp.,
26 F.3d 728, 735 (7th Cir. 1994) (superceded by statute on
unrelated point) (citations omitted).
Lawrence points to a letter that he received from Sheriff
Larry Zarletti in response to his citizen’s complaint as proof
that the county “ratified and approved” Vena’s actions. The
letter states that “[w]e find Captain Vena was identified
appropriately with what we [sic] was wearing and acted
within proper authority to ask for your identification and to
stop your vehicle from moving and pursue the action he did
to remove you from the vehicle when you were not willing
10 No. 04-1472
to cooperate.” This letter was simply a response to a citi-
zen’s complaint. It clearly does nothing to prove that the
county had an express policy or widespread practice which
condones the use of excessive force on people who refuse to
present their driver’s licenses. Lawrence has neither alleged,
nor presented, any evidence that would provide a basis for
holding Kenosha County liable under § 1983.
E. Lawrence’s State Law Claim Is Barred
Lawrence asserts a state law negligence claim. Kenosha
County and Vena correctly argue, however, that his claim
is barred by the governmental immunity afforded by
Wis. Stat. § 893.80(4). Lawrence does not address this argu-
ment in his complaint or his appellate brief. The district
court’s decision to retain jurisdiction under 28 U.S.C. § 1367and to dismiss Lawrence’s state law claims with prejudice
was appropriate.
III. Conclusion
Vena had probable cause to seize Lawrence and the force
that he used to effectuate the seizure was not excessive
under the objective test used to evaluate Fourth Amendment
claims. Lawrence was unable to prove any policy or practice
that would lead to liability for Kenosha County. Govern-
mental immunity defeats Lawrence’s state law negligence
claim. We AFFIRM the district court’s grant of summary
judgment.
No. 04-1472 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-2-04