April 3, 2023 – Qualified immunity protects two police officers from a lawsuit filed by a woman arrested for carrying a rifle and bayonet in a public park filled with parents and children, the U.S. Court of Appeals for the Seventh Circuit has ruled.
In Pierner-Lytge v. Hobbs, No. 22-1976 (Feb. 23, 2023), the U.S. Court of Appeals for the Seventh Circuit held that the plaintiff failed to show her arrest was a clear violation of her constitutional rights that were clearly established at the time of the arrest.
Armed Woman in Park
On April 1, 2020, Amanda Pierner-Lytge left her home in West Allis carrying a rifle equipped with a bayonet.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
Pierner-Lytge, who works as security guard, was also wearing a semi-automatic pistol in a holster on her right hip and her duty belt, which included a can of pepper spray, a baton, and two pairs of handcuffs.
Pierner-Lytge walked to Rainbow Park, which is located near Walker Elementary School. In the early days of the pandemic many indoor public places were closed, so the park was full of parents and their children.
Three Calls to Police
Just before 7 p.m., Montrelle Hobbs, a deputy sheriff with the Milwaukee County Sheriff’s Office, went to the park. Three people had called the police and reported an armed woman sitting near the baseball field.
One of the people who called the police spoke to Hobbs. She said that Pierner-Lytge had been sitting on the bleachers for ten minutes, looking at the parents and children as they walked by. It made her uncomfortable, the caller told Hobbs.
Hobbs saw Pierner-Lytge sitting on the bleachers with her rifle on her back. She was smoking a cigarette.
Exercising her Rights
Hobbs waited until backup arrived, then walked up to Pierner-Lytge with the second officer. The officers identified themselves and told Pierner-Lytge they’d received multiple calls about her conduct.
When the officers asked Pierner-Lytge what she was doing, she said she was exercising her rights under the Second Amendment.
Arrest for Disorderly Conduct
Another Milwaukee County Sheriff’s Deputy, Sergeant Frederick Gladney arrived on the scene.
Gladney and Hobbs conferred with the West Allis Police Department (WAPD). WAPD told Hobbs and Gladney that its officers had had similar encounters with Pierner-Lytge; WAPD also said Pierner-Lytge had resisted arrest, threatened officers, and had six times been involved in mental health detention proceedings.
After speaking with WAPD, Hobbs and Gladney arrested Pierner-Lytge for disorderly conduct. However, the Milwaukee County District Attorney decided not to charge Pierne-Lytge.
Civil Rights Lawsuit
Shortly after she was arrested, Pierner-Lytge sued Hobbs and Gladney in the U.S. District Court for the Eastern District of Wisconsin under 42 U.S.C. section 1983.
Pierner-Lytge claimed the two officers violated her Fourth Amendment rights by arresting her without probable cause.
The officers moved for summary judgment. The district court concluded that the officers were entitled to qualified immunity and granted their motion. Pierner-Lytge appealed.
State Law Interpretation
Writing for a three-judge panel, Judge Joel Flaum explained that under Wis. Stat. section 947.01(1), anyone who “engages in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance” is guilty of disorderly conduct.
Pierner-Lytge argued that section 947.01(2) protected her conduct.
Under that section, a person may not be charged under section 947.01(1) for “carrying or going armed with a firearm or a knife, without regard to whether the firearm is loaded or the firearm … is concealed or openly carried.”
But Flaum pointed out that the Seventh Circuit has concluded that the interpreting section 947.01(2) is best left to the Wisconsin Supreme Court, given the role state and local governments play in matters of public safety.
Even if the Hobbs and Gladney lacked probable cause to arrest Pierner-Lytge, Judge Flaum reasoned, they had qualified immunity – a defense Pierner-Lytge failed to surmount.
AG Memo Not Enough
Judge Flaum pointed out that under 42 U.S.C. section 1983, police officers are entitled to qualified immunity unless they: 1) violated a person’s federal statutory or constitutional rights; and 2) the unlawfulness of their conduct was clearly established at the time of the violation.
There must be precedent, Flaum explained, that places the statutory or constitutional question beyond any debate. The precedent, he noted, must be so clear that every reasonable official would interpret it to establish the particular rule that the plaintiff would apply to the case.
Judge Flaum concluded that Pierner-Lytge failed to meet that standard.
“She has not ‘identified a single precedent – much less a controlling case or robust consensus of cases – finding a Fourth Amendment violation under similar circumstances,” Flaum wrote.
Pierner-Lytge cited an advisory memorandum from the Wisconsin Attorney General titled “The Interplay Between Article I, Section 25 of the Wisconsin Constitution, the Open Carry of Firearms and Wisconsin’s Disorderly Conduct Statute, Wis. section 947.01.
The memo fell far short of the type of definitive statement that case law requires for a constitutional violation to be clearly established, Judge Flaum noted.
Officers Acted Reasonably
Furthermore, “nothing in the memo would prevent a reasonable officer from deeming Pierner-Lytge’s conduct ‘otherwise disorderly’ under section 947.01(1),” Flaum wrote.
“Pierner-Lytge openly carried a rifle with an affixed bayonet and a handgun in a crowded public park where she was reportedly watching families,” Judge Flaum wrote.
“The multiple calls police received about her behavior further support the conclusion that a reasonable officer could have believed her conduct was ‘otherwise disorderly.’”
Flaum acknowledged that, in April 2020, a reasonable officer should have known that merely carrying a firearm in public would not amount to disorderly conduct. But Pierner-Lytge need to show much more to demonstrate that the legality of her conduct was beyond debate.
“To the extent the officers mis-judged whether probable cause existed to arrest Pierner-Lytge, it was a reasonable decision given the state of the Wisconsin disorderly conduct statute at the time,” Judge Flaum wrote.