Betker v. City of Milwaukee

22 F. Supp. 3d 915, 2014 U.S. Dist. LEXIS 68301, 2014 WL 2050637
CourtDistrict Court, E.D. Wisconsin
DecidedMay 19, 2014
DocketCase No. 08-CV-00760
StatusPublished
Cited by1 cases

This text of 22 F. Supp. 3d 915 (Betker v. City of Milwaukee) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Betker v. City of Milwaukee, 22 F. Supp. 3d 915, 2014 U.S. Dist. LEXIS 68301, 2014 WL 2050637 (E.D. Wis. 2014).

Opinion

DECISION AND ORDER

LYNN ADELMAN, District Judge.

Plaintiff, Richard Betker, brought this action under 42 U.S.C. § 1983 against several City of Milwaukee police officers, the police chief and the City claiming that defendants violated his constitutional rights in the course of obtaining and executing a “no-knock” search warrant. I dismissed all of plaintiffs claims except his claim against defendant Rodolfo Gomez. Plaintiff alleged that defendant Gomez violated his Fourth Amendment rights by making false or misleading representations in his application for the warrant. Plaintiff claimed that defendant’s representations caused a court commissioner to issue the warrant which led to a search of his home and ultimately to his being shot. I denied defendant’s assertion that he was entitled to qualified immunity, defendant appealed and the Seventh Circuit affirmed. Betker v. Gomez, 692 F.3d 854 (7th Cir.2012).

In November 2013, I presided over a three-day jury trial of the lawsuit. The jury found in favor of plaintiff and awarded him $750,000 in compensatory damages and $250,000 in punitive damages. I entered judgment on the verdict and, pursuant to Fed.R.Civ.P. 59, defendant filed a motion for a new trial arguing that the jury instructions were flawed, that several evidentiary rulings were in error and that the damages awarded were excessive. Plaintiff filed a response brief arguing that defendant’s contentions are without merit. Defendant’s motion is before me now.

I. BACKGROUND

On August 4, 2006, defendant filled out a Milwaukee Police Department form affidavit and based on the affidavit sought a no-knock search warrant for plaintiffs home. In the affidavit, defendant stated:

4) ... that a convicted felon named Sharon Marie Betker (Capol), white female, 01-28-53 is reported to be in possession of at least 1 handgun, a dark colored semi-automatic handgun, at her residence at the location of 11053 S. 76th St., in the City of Franklin and County of Milwaukee, WI. A known citizen witness, who wishes to remain anonymous, stated that within the last 5 days, the informant has observed BETKER in possession or control of at least one handgun, at the above-described address. In addition, the informant stated that Betker and her husband RICHARD BETKER (w/m 3/12/1949) possess numerous hunting rifles and that they both engage in illegal hunting and the informant has seen stuffed animals like eagles, which are a protected species, in the residence. Affiant checked with the Wisconsin Department of Natural Resources and confirmed that Richard Bet-ker at the above address obtained a Resident Gun Deer License in 2001 and a Small Game License in 2003, thus corroborating the information related to firearms at the residence.
5) The affiant believes that the informant is a credible person because the informant has given law enforcement officers information, which has been directly corroborated by the knowledge and past experience of law enforcement officers. The informant is a citizen witness with prior criminal convictions but [920]*920is not currently under indictment in Milwaukee County for any criminal charges.
6) The affiant knows that guns and drugs are very commonly bought and sold together and that firearms are maintained in drug distribution houses to protect the occupants from robbery based on large quantities of cash traded in exchange for controlled substances. Affiant knows that firearms are not readily consumed and that they remain in close proximity to individuals engaged in ongoing criminal enterprises.
9) That it is common for more than one firearm to be located in a residence and that the information presented in this affidavit forms the basis to request a NO-KNOCK warrant. Specifically affi-ant states that the possession of firearms on person(s) involved in criminal activity, or having immediate access to them, possesses a severe and real threat to the safety of the officers executing the search warrant.

(Def.’s Aff. ¶¶ 4, 5, 6, 9.) Based on defendant’s affidavit, the court commissioner issued a no-knock warrant.

The facts leading to defendant’s submission of the affidavit are as follows: On July 27, 2006, Debra Capol called the Milwaukee Police Department’s gun hotline and spoke with defendant. Capol made comments indicating that she did not get along with her sister Sharon Betker, plaintiffs wife, and asked defendant if a convicted felon could lawfully possess a firearm. Defendant told her that a convicted felon could not lawfully possess a firearm. Ca-pol then reported that Sharon had a felony conviction, and that she and plaintiff had guns in their bedroom in their home in Franklin. Capol testified -that she told defendant that she had not been in the Betker home for five years. Defendant made notes of his conversation with Capol but discarded them. Defendant checked Sharon’s record and determined that she had been convicted of credit card fraud in 1982 but had no other convictions, and he determined that the Betkers owned a home in Franklin at the address Capol provided and that plaintiff had a Wisconsin hunting license. Defendant did not contact Sharon or plaintiff directly.

Defendant acknowledged that prior to filling out his affidavit he had not met Capol and that, to his knowledge, she had never served as a police informant. He also acknowledged that he knew of no ongoing criminal activity at the Betker home other than Sharon’s possession of a gun. Defendant also stated that in preparing the warrant he altered a template so that he could obtain a no-knock warrant instead of a standard warrant. Defendant did not disclose to the court commissioner who issued the warrant that Capol was Sharon’s estranged sister or that Sharon’s felony record consisted of a 24-year old credit card case.

The testimony at trial largely confirmed the Seventh Circuit’s summary of what happened when the warrant was executed:

At 10:00 p.m. on August 4, 2006, roughly fifteen officers from the Milwaukee Police Department’s Tactical Enforcement Unit (TEU) executed a no-knock search warrant on the home of Richard and Sharon Betker on a tip from Sharon’s estranged sister indicating that Sharon was a felon in possession of a firearm. Upon arrival, officers smashed the home’s front window as a “distraction.” They activated their red and blue police lights arid beamed a powerful, blinding spotlight through the broken window and into the home. Sharon and Richard Betker, comfortably asleep in bed, were suddenly awakened by the violent crash [921]*921of shattered glass and became disoriented by the loud, screaming voices and the bright, flashing lights. Unable to comprehend the commands being shouted by TEU officers, Richard instinctively thought that his home had been invaded. He grabbed one of his firearms, crouched behind a wall next to the couple’s bedroom doorway, and shouted, “Who are you? What do you want? Who are you, who the f— are you!” Receiving no response, and feeling that his and his wife’s safety were at risk, Richard extended his arm into the doorway and brandished his weapon to show the apparent intruders that he was armed and ready to defend his domain.

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Bluebook (online)
22 F. Supp. 3d 915, 2014 U.S. Dist. LEXIS 68301, 2014 WL 2050637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/betker-v-city-of-milwaukee-wied-2014.