Carl R. Kramer v. Village of North Fond Du Lac and Larry Wodack

384 F.3d 856, 2004 WL 2181475
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 27, 2004
Docket03-4142
StatusPublished
Cited by181 cases

This text of 384 F.3d 856 (Carl R. Kramer v. Village of North Fond Du Lac and Larry Wodack) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carl R. Kramer v. Village of North Fond Du Lac and Larry Wodack, 384 F.3d 856, 2004 WL 2181475 (7th Cir. 2004).

Opinion

BAUER, Circuit Judge.

Carl R. Kramer sued the Village of North Fond du Lac and Chief of Police Larry Wodack, seeking damages for various constitutional violations, all under the umbrella of 42 U.S.C. § 1983. The events giving rise to the lawsuit occurred in 1996 after a criminal investigation into illegal gambling at taverns in the Village of North Fond du Lac by means of “payouts” (i.e., exchange of cash for accumulation of points) on “Cherry Master” video slot gambling machines. The lower court granted the defendants summary judgment. The district court’s Decision and Order is attached. After careful review, we affirm and adopt the Decision and Order as our own.

DECISION AND ORDER

Carl Kramer, formerly the owner of the Dog House Saloon in the Village of North Fond du Lac, Wisconsin, brought this civil rights action under 42 U.S.C. § 1983 against the village and its police chief, Larry Wodack. He alleges that his civil rights were violated when the defendants, while acting under color of state law, selectively prosecuted him, in violation of the Equal Protection Clause. The defendants also are alleged to have deprived the plaintiff of liberty and property without due process of law and to have caused him to be subject to an unreasonable search. Before me presently is the defendants’ motion for summary judgment. For the reasons stated herein, the motion will be granted.

I. Factual Background

Much of the factual background of this case is set forth by the Wisconsin Supreme Court in its decision remanding the plaintiffs criminal conviction for commercial gambling crimes, State v. Kramer, 2001 WI 132, 248 Wis.2d 1009, 637 N.W.2d 35, and in my January 10, 2003 decision and order in this case which dismissed claims against defendant Thomas Storm, the Fond du Lac County District Attorney. Some facts are worth repeating, however, inasmuch as they remain relevant here.

*859 In the mid-nineties, video gambling machines were widely offered in taverns in Fond du Lac County, including the plaintiffs Dog House Saloon. The machines would not actually pay out money themselves, as in a typical casino slot or video poker machine. Instead, a patron would accumulate points, or credits, on the machine and then ask a bartender to exchange those credits for cash.

While the machines were certainly popular with some bar patrons, they were not universally appreciated in the community. In 1995, Chief Wodack received an anonymous call complaining about the gambling machines and asking the police department tú get involved. (Wodack Aff. ¶ 6.) In May 1996, the North Fond du Lac Police Department received a letter from three anonymous residents who ' complained that their husbands were losing a lot of money every week in the taverns. (Wodack Aff. ¶ 6.) Later, in August, Wod-ack’s department received another anonymous letter urging the department to do something about the video gambling machines in North Fond du Lac. That letter accused the police and politicians of ignoring the problem and letting the “tavern owners rip off the taxpayers.” (Lamb Aff., Ex. 69.) Presumably, the tavern owners were not reporting their gambling earnings as taxable income.

The Fond du Lac County district attorneys had not regularly prosecuted offenses involving gambling machines because of what they viewed as the “vagueness of the law”. (Storm Aff., Ex. 116.) Specifically, there was apparently some confusion about what constituted a “gambling machine” in violation of Wis. Stat. § 945.01. But that confusion was dissipated when the Wisconsin Court, of Appeals decided State v. Hahn, 203 Wis.2d 450, 553 N.W.2d 292 (Wis.Ct.App.1996). In that case, the court emphasized that video gaming machines were not “gambling machines,” per se, because they could be used purely for amusement purposes. To violate, the law, gambling machines must pay out money or something of value, “even if the playerls ‘prize’ is not automatically awarded by the machine but is awarded by the owner or lessee of the machine.” Id. at 457-58, 553 N.W.2d 292.

Upon the heels of the Hahn decision, a l'ettér was sent to tavern owners and liquor license owners indicating that, following Hahn, ‘the policy of the Fond du Lac County Sheriffs Department and District Attorney’s Office would be to investigate and prosecute complaints of commercial gambling. The September 2, 1996 letter was written on the sheriffs department stationary and was signed by Sheriff Jim Gilmore and District Attorney Tom Storm, both of whom were previously dismissed as defendants earlier in this action. (Storm Aff., Ex. 116.) The letter was sent only to taverns in -unincorporated areas of the county, however, because “incorporated areas [including North Fond du Lac] are serviced by their own law. enforcement agencies and are not normally policed by the County sheriff.” (DPFF ¶ 102; Storm Aff. ¶ 4.) Thus, none of the tavern owners in North Fond du Lac or other incorporated areas of the county received the warning letter. 1 : •

*860 Though the plaintiff did not receive the letter, he admitted that the letter’s contents became a “hot topic” among tavern owners in North Fond du Lac and that he became aware of the letter within a week after it was sent out. (Bitar Aff., Ex. 121 at 36.) The plaintiffs central complaint in this action surrounds what happened following the letter’s transmittal. At his deposition, he alleged that Chief Wodack told other bar owners to keep operating as usual, and that it was all right to operate games like the “Cherry Master” video gambling machine involved here. (Id. at 40.) The plaintiff admitted, however, that he never had a conversation with Chief Wodack about the issue himself. When asked whether Wodack ever told anyone that it would be okay to make payouts for play on the machines (the act which the Hahn court found to be illegal), the plaintiff replied, “I don’t know about payouts, but he told us to keep operating as we are.” (Id.)

In fact. Chief Wodack’s department, with the assistance of the Lake Winnebago Area Metropolitan Enforcement Group (“MEG”) Drug Unit, had actually begun an investigation of commercial gambling in the Village of North Fond du Lac in July 1996. 2 Beginning that month, MEG unit officers went undercover to the taverns in North Fond du Lac and obtained cash payouts from bartenders, including the bartender at the Dog House Saloon. (DPFOF ¶¶ 4(M:3.) In early December of 1996, one of the investigators obtained anticipatory search warrants for eight Village of North Fond du Lac taverns.

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Bluebook (online)
384 F.3d 856, 2004 WL 2181475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carl-r-kramer-v-village-of-north-fond-du-lac-and-larry-wodack-ca7-2004.