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  • WisBar News
    September 07, 2018

    In Custody Death Case, Officers’ Qualified Immunity Goes Back to District Court

    Joe Forward


    Sep. 7, 2018 – A federal appeals court recently remanded a case to determine whether 11 Milwaukee police officers are entitled to qualified immunity in a case involving a 22-year-old Milwaukee man, Derek Williams, who died while police were arresting him.

    Derek Williams’ estate sued Milwaukee and the 11 officers, claiming the defendants violated Williams’ Fourth Amendment rights. The complaint alleges that officers used excessive police force and were deliberately indifferent to his medical needs.

    In Estate of Derek Williams Jr. v. Cline et al., No. 17-2603 (Aug. 31, 2018), a three-judge panel for the Seventh Circuit Appeals Court rejected the officers’ claim that all of them, together, were entitled to summary judgment based on qualified immunity.

    Instead, the panel remanded the case to the U.S. District Court for the Eastern District of Wisconsin to examine the qualified immunity question on an individualized basis.

    “[B]efore we can review whether or not the facts taken in the light most favorable to plaintiffs entitle any of the defendant officers to qualified immunity, the district court must articulate an individualized analysis of such facts as applied to each defendant officer,” wrote U.S. District Judge Robert Gettleman of Illinois, sitting by designation.

    The district court previously denied the officers’ motion for summary judgment, noting the existence of disputed material facts with respect to whether the officers could be liable. The officers appealed, arguing the motion should have been granted.

    Now, the case will go back to the U.S. District Court in Milwaukee to determine whether each officer, on an individualized basis, is entitled to qualified immunity from the lawsuit.

    What Happened?

    As Judge Gettleman noted, “[t]he facts of this case are disturbing, and many are hotly contested.” What is undisputed is that Williams died while in police custody.

    In denying the officers’ summary judgment motion, the district court construed the facts in favor of Williams and noted instances where such facts were in dispute.

    The district court record reflected that in July of 2011, four Milwaukee patrol officers observed Williams approaching two people wearing a mask with something tucked in his clothing (it was a cell phone), which made him appear to be armed.

    Williams would later tell officers “he was just playing around” and the people he was approaching were friends, but the officers believed an armed robbery was in progress.

    Thus, two officers stopped the squad car, at which point Williams fled on foot. One officer gave chase on foot, and the three other officers followed via squad car. Several other officers responded to the scene to set a perimeter and search for Williams.

    They found him eight minutes later, hiding in a bush. There was brief struggle and Williams, as well as the officer who chased him, were breathing heavily. Two arresting officers pulled Williams to the ground and positioned him face down to apply handcuffs.

    Williams, pinned down, stated that he could not breathe. One officer radioed to dispatch that Williams was in custody, and Williams could be heard saying that he could not breathe. He repeated that he could not breathe. Ultimately, he became unresponsive.

    Officers thought he was faking and gave him a “sternum rub,” a painful procedure to determine if someone is actually unconscious. Williams opened his eyes and told police the people he was approaching were his friends and he was playing around. But he continued to complain that he couldn’t breathe, and neighbors could hear him.

    One neighbor called 911 to report that police were arresting someone who said they could not breathe, but the dispatcher said medical assistance could not be provided unless police called for assistance. Eventually, Williams was placed in a squad car.

    Dash cam video obtained via public records request and posted online by the Milwaukee Journal Sentinel shows Williams struggling in the squad, calling for help. Twelve minutes after police placed him in the car, an officer requested medical help.

    Three minutes later, Williams was motionless. An officer began to administer CPR until paramedics arrived, and paramedics continued CPR but Williams died on scene.

    Qualified Immunity Issue Remanded

    The panel noted that a qualified immunity determination requires courts to determine whether a defendant violated a constitutional right, and whether that right was clearly established at the time of the alleged violation. But it’s an individual analysis.

    “Under our case law, the district court had the duty to determine whether each defendant violated Williams’ Fourth Amendment rights and, if so, whether that right, defined at an appropriate level of specificity, was clearly established at the time that Williams was in custody,” Judge Gettleman wrote.

    But the panel concluded that the district court did not make an individual assessment. “Here, each defendant-officer had a different degree of contact with Williams and had different assigned responsibilities with respect to the apprehension of Williams,” wrote Judge Gettleman.

    “Although the court’s recitation of facts acknowledges the officers’ varying encounters with Williams, its qualified-immunity analysis lacks any individualized assessment.”

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