Cary v. City of Fond Du Lac

BRAELYN CARY, as Special Administratorof the Estate of Christopher L. Cary, Plaintiff, v. CITY OF FOND DU LAC, SANDRA O'DONNELL,and TRENTON SMITH, Defendants.

Case No. 19-CV-498

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

April 12, 2021

DECISION AND ORDER

1. Procedural History

City of Fond du Lac Police Officer Sandra O'Donnell on December 23, 2018, stopped a vehicle that failed to display a front license plate. (ECF No. 47, ¶ 2.) The driver of that car was Christopher L. Cary. At some point during the traffic stop Cary apparently ingested a large amount of cocaine and died as a result. (ECF No. 47, ¶ 87.)

Cary's estate brought this action alleging that O'Donnell and Fond du Lac Police Officer Trenton Smith violated Cary's rights under the Fourth Amendment by subjecting him to an unreasonable search and seizure. (ECF No. 23, ¶ 22-29.) The plaintiff also alleges that O'Donnell and Smith conspired to deprive Cary of his rights. (ECF No. 23, ¶¶ 37-42.) The parties previously stipulated to the dismissal of other claims and defendants. (ECF Nos. 36, 37, 38.)

The defendants have moved for summary judgment. (ECF No. 39.) The plaintiff has responded, and in doing so agrees to dismiss the conspiracy claim, leaving claims that O'Donnell and Smith violated Cary's rights under the Fourth Amendment by improperly extending the traffic stop and conducting a pat-down of Cary. (ECF No. 46 at 2.) The defendants have replied. (ECF No. 50.) The motion is ready for resolution. All parties have consented to the full jurisdiction of this court. (ECF No. 7, 15.) The court has subject matter jurisdiction under 28 U.S.C. § 1331.

The following facts are taken from the parties' proposed findings of fact. However, the plaintiff in its brief relies on additional facts that it introduced only in response to the defendants' proposed findings of fact, which is improper. Lanning v. Gateway Tech. Coll., No. 19-CV-890, 2020 U.S. Dist. LEXIS 121446, at *1 n.1 (E.D. Wis. July 10, 2020) (citing Pollock v. ManpowerGroup US, Inc., No. 18-CV-107, 2019 U.S. Dist. LEXIS 199665, at *7-8 (E.D. Wis. Nov. 18, 2019)). "Any additional proposed findings of fact must be presented only in accordance with Civ. L.R. 56(b)(2)(B)(ii), which ensures that the moving party is able to appropriately respond to the proposition." Pollock v. ManpowerGroup US, Inc., No. 18-CV-107, 2019 U.S. Dist. LEXIS 199665, at *8 (E.D. Wis. Nov. 18, 2019). Although the plaintiff submitted its own proposed findings of fact, itgenerally failed to include the facts it offered only in response to the defendants' proposed findings of fact.

This failure to comply with the court's Local Rules deprived the defendants of the opportunity to respond to those additional proposed findings of fact. Consequently, any factual assertion that is supported only by a citation to the plaintiff's response to the defendants' proposed findings of fact is disregarded for purposes of summary judgment. See Perkins v. Milwaukee Cnty., 781 F. App'x 538, 540 (7th Cir. 2019); see also Igasaki v. Ill. Dep't of Fin. & Prof'l Regulation, 988 F.3d 948, ___, 2021 U.S. App. LEXIS 4500, *11-*13 (7th Cir. 2021); Benuzzi v. Bd. of Educ., 647 F.3d 652, 655 (7th Cir. 2011) ("District courts have broad discretion to enforce and require strict compliance with their local rules."). This error, however, does not appear to have impacted the resolution of the defendants' motion.

2. Facts

The encounter between O'Donnell and Cary was recorded by a dashboard camera in O'Donnell's squad car. The defendants have provided the court with that video. According to that video, O'Donnell activated the emergency lights of her squad car and pulled Cary over at 9:31 p.m. (ECF No. 47, ¶ 3.) At 9:32, O'Donnell approached Cary's car, identified herself, and explained the reason for the stop. (ECF No. 47, ¶ 4.) In doing so, O'Donnell noticed that Cary was not wearing a seatbelt. (ECF No. 47, ¶ 5.) O'Donnell asked Cary for his license and proof of insurance. (ECF No. 47, ¶ 6.) Carystated he did not have his driver's license or any other form of identification. (ECF No. 47, ¶¶ 7, 8.) He also stated that he did not own the car and did not know if it was insured. (ECF No. 47, ¶¶ 9, 10.) O'Donnell asked Cary for his name and address, which he provided. (ECF No. 47, ¶ 11-13.)

O'Donnell returned to her squad car at about 9:33 p.m. (ECF No. 47, ¶ 18.) In her car, O'Donnell used her mobile computer to verify the license plate and registration of the car. (ECF No. 47, ¶ 19.) Although she confirmed that a person with Cary's name had a valid driver's license, because Cary did not have any identification, she needed to find a photograph of Cary to confirm his identity. (ECF No. 47, ¶¶ 20-22.) Neither the Department of Motor Vehicles nor the Fond du Lac police department's internal databases that O'Donnell checked contained a photograph of Cary. (ECF No. 47, ¶¶ 24, 29-32.) However, these databases revealed that Cary had an extensive criminal history, including "multiple convictions for aggravated assaults, substantial batteries, burglaries, and multiple drug convictions, including trafficking and maintaining drug trafficking locations with narcotics possessions." (ECF No. 47, ¶ 23.) Amidst this review of records, at 9:37 p.m. O'Donnell contacted her dispatcher and asked if a police dog was available. (ECF No. 47, ¶ 27.) The dispatcher informed her that the dog would be available soon. (ECF No. 47, ¶ 28.)

It was not until O'Donnell checked Fond du Lac County Jail records that she found a photograph of Cary and was able to confirm his identity. (ECF No. 47, ¶¶ 33-36.) After O'Donnell confirmed Cary's identity, she asked her dispatcher to check to see if Cary had any open warrants, criminal cases, or bond conditions. (ECF No. 47, ¶ 38.) About a minute later, at 9:43 p.m., the dispatcher told O'Donnell that Cary had a pending felony drug case and advised O'Donnell of Cary's bond conditions. (ECF No. 47, ¶ 39.)

O'Donnell immediately requested a backup officer (ECF No. 47, ¶ 40) and began preparing a citation for Cary's failure to have insurance (ECF No. 47, ¶ 41). O'Donnell printed the citation at 9:46 p.m. (ECF No. 47, ¶ 42) and moved on to preparing written warnings for failing to display a front license plate and failing to wear a seatbelt (ECF No. 47, ¶ 43).

At about 9:48 p.m., while O'Donnell was preparing the warnings, Fond du Lac Police Officer Trenton Smith arrived as a backup officer. (ECF No. 47, ¶¶ 44-45.) O'Donnell explained to Smith what was going on, and Smith responded that he had recently arrested Cary. (ECF Nos. 47, ¶¶ 47-48; 51, ¶ 3.) Smith explained that Cary's address at that time was not the one that Cary had provided to O'Donnell. (ECF No. 47, ¶ 48.) This discussion about Cary's address and whether providing a false address would constitute the crime of obstructing an officer took over three minutes. (ECF No. 51, ¶¶ 4, 5, 11.) O'Donnell checked Cary's open criminal case and saw that his address in those records also was not the address Cary had provided to O'Donnell. (ECF No. 47, ¶ 50.) At 9:52, Smith went to Cary's car to ask Cary what his current address was. (ECFNo. 47, ¶ 51.) About a minute later, Cary confirmed that the address he initially gave to O'Donnell was his current address. (ECF No. 47, ¶ 53.)

At about 9:58 p.m., while O'Donnell was printing off the warnings (ECF No. 47, ¶ 59), Fond du Lac County Sheriff's Deputy Justin Weisbecker arrived with his police dog. (ECF No. 47, ¶ 56.) O'Donnell explained to Weisbecker what was going on (ECF No. 47, ¶ 57), and Weisbecker and Smith went to speak with Cary (ECF No. 47, ¶ 58). At 9:59 p.m., O'Donnell got out of her car, approached Cary's window, and asked Cary to get out of the car so she could explain the citations and warnings to him. (ECF No. 47, ¶ 60.) Cary initially refused, said she could explain them while he stayed in the car, and said that O'Donnell was harassing him. (Video, 21:59:47.) Up until this point Cary had been cooperative. (ECF No. 51, ¶ 17.) O'Donnell responded that she was going to explain them to him on the sidewalk and not in the street with cars driving by. (ECF No. 47, ¶ 61.) After Cary got out of the car and walked to the sidewalk, the police dog immediately began going around Cary's car. (ECF No. 47, ¶ 62.) The dog soon alerted to the presence of drugs in the car. (ECF No. 47, ¶ 68.)

When Cary got out of his car, his hands were in the pockets of his sweatshirt. (ECF No. 47, ¶ 63.) O'Donnell told Cary to keep his hands out of his pockets, and Cary complied. (ECF No. 47, ¶¶ 63-64.) But a few seconds later Cary put his hands back in his pockets, leading O'Donnell to again order him to keep his hands out of his pockets. (ECF No. 47, ¶¶ 64-65.) Again, Cary initially complied, only to put his hands back in hispockets a few seconds later. (ECF No. 47, ¶ 66.) O'Donnell for the third time told Cary to keep his hands out his pockets. (ECF No. 47, ¶ 67.) Cary again initially complied but then attempted to put his hand back in his pocket, at which point O'Donnell grabbed his hand and ordered him for a fourth time to keep his hands out of his pocket. (ECF No. 47, ¶ 69.)

O'Donnell then conducted a pat-down of Cary. (ECF No. 47. ¶ 70.) During the pat-down O'Donnell felt a firm object in Cary's pocket and asked Cary's permission to remove it. (ECF No. 47, ¶ 71.) Cary consented, and O'Donnell removed a bundle of cash. (ECF No. 47, ¶ 72.) After completing the pat-down, O'Donnell and Weisbecker began to look through Cary's car and discovered a white substance that O'Donnell believed to be crack cocaine and multiple baggies that she believed were consistent with drug trafficking. (ECF No. 47, ¶¶ 76-77.)

3. Summary Judgment Standard

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" only if it "might...