Estate of Brown v. Thomas

7 F. Supp. 3d 906, 2014 U.S. Dist. LEXIS 34459, 2014 WL 1053320
CourtDistrict Court, E.D. Wisconsin
DecidedMarch 17, 2014
DocketCase No. 12-C-1202
StatusPublished
Cited by2 cases

This text of 7 F. Supp. 3d 906 (Estate of Brown v. Thomas) 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
Estate of Brown v. Thomas, 7 F. Supp. 3d 906, 2014 U.S. Dist. LEXIS 34459, 2014 WL 1053320 (E.D. Wis. 2014).

Opinion

DECISION AND ORDER

WILLIAM C. GRIESBACH, Chief Judge.

Plaintiff, the Estate of Adam Brown, brought this action under 42 U.S.C. § 1983 seeking damages against Brown County, along with Sergeant Timothy Thomas and Deputy Matthew Secor of the Brown County Sheriffs Department, for the fatal shooting of Adam Brown. The defendants have moved for summary judgment. For the reasons given below, the motion will be granted.

I. BACKGROUND

On December 1, 2006, Brown County Sheriffs Department Sergeant Timothy Thomas obtained a warrant to search the residence of Adam Brown. Based on a burglary investigation he was conducting, Thomas believed a teenager named Stone Moreaux was staying with Brown. Mor-eaux had an open warrant for his arrest after absconding from a work-release program at Brown County Jail, and Thomas believed Moreaux had stolen a video game [908]*908system and other property from an apartment in the Village of Howard. Prior to obtaining the warrant, Sergeant Thomas contacted the patrol division for assistance in executing it.

Patrol Sergeant Todd Delain, who was in charge of the search, decided to use the Drug Task Force in executing the search warrant. The Drug Task Force consisted of officers with training in the execution of search warrants and special weapons and tactics (SWAT). According to Thomas and Delain, the decision to use the DTF was made because they were uncertain whether the individuals at the residence would be cooperative and the DTF officers had extensive experience in conducting searches. Moreover, because the residence had multiple entrances and exits, a team of officers was required to cover them.

DTF officers are not used to assisting in the execution of all search warrants. When police have no reason to believe that there will be violence or an attempt to destroy evidence, Sergeant Thomas explained, the officer will simply knock on the door, wait for the occupants to answer, and then explain that they have a search warrant and would like to come in. (Aff. of Timothy M. Johnson, Ex. D., Dep. of Sgt. Thomas, 15:8-15, ECF No. 14-4 at 5.) When there is reason to think the occupants might be violent, Sergeant Thomas explained, “you take a different approach which is more commonly known to people who work in SWAT or DTF fields because they work with that more often.” (Id. at 15:18-21.)

In this case, Sergeant Thomas explained that even though the crime he was investigating was a property crime, he “had word” that Brown and his girlfriend were always in trouble. In addition, Moreaux was an escapee from the jail where he had been serving time on a robbery or burglary, and the officers were concerned what his frame of mind would be in being taken back to jail. (Id. at 15:25-16:11.) These matters were discussed at a briefing held prior to the search. Based on the information available, Sergeant Delain concluded that the more low-key approach would not be appropriate. The decision was made to have several officers approach the door, knock and announce who they were and why they were there. If the occupants did not open the door after approximately 15 seconds, they would breach the door with a ram and force entry. (Id., Ex. C, Secor Dep. at 22, ECF No. 14-3 at 7.)

Prior to executing the search, Deputy Secor, who worked as an undercover officer for the DTF, and another deputy conducted surveillance of the property and were able to observe two males playing video games inside. At 6:20 p.m. five officers lined up outside the front door of the duplex. In front was Deputy Secor, who was dressed in street clothes but was wearing a badge around his neck. As an undercover drug investigator, Secor also wore a ponytail, sideburns and a goatee, so that he would fit in with the drug culture. The officer immediately behind him also had a badge around his neck and was wearing a DTF jacket that said POLICE and DTF on it. The other officers behind Secor were wearing standard police uniforms.

Secor knocked on the door and yelled “Police — Search Warrant.” While waiting, they saw Brown come to the window, look out, and then retreat away from the door. Another man also moved away from the door. At that point an officer yelled “Compromise,” which apparently operates as a signal that immediate entry should be made. The officers quickly broke the door open and entered yelling, “Police, search warrant, get down on the ground!” Mor-eaux and another individual who was there [909]*909dropped to the ground. Adam Brown, however, fled the officers and ran up the stairs. Deputy Secor and another deputy followed Brown upstairs, yelling “Police, stop!” When they arrived at the top of the stairs, they saw Brown standing in a bedroom pointing a shotgun, which turned out to be unloaded, in their direction. Secor shot Brown with his automatic assault rifle, striking him four times. Brown was later pronounced dead at the hospital.

In addition to the shotgun he pointed at the officers who followed him up the stairs, Brown also kept a sawed-off shotgun under his mattress. Because of prior convictions, Brown’s possession of each of these guns was illegal.

II. ANALYSIS

Summary judgment is proper if the moving party “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); Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.2014). In considering the factual evidence, a court must construe all facts and reasonable inferences in the light most favorable to the plaintiff as the non-moving party. Casna v. City of Loves Park, 574 F.3d 420, 424 (7th Cir.2009). Based on the undisputed facts in this case, the Estate concedes that its claim against Deputy Thomas fails and that he should be dismissed. As to its claims against Deputy Secor and the County, however, the Estate argues the case should proceed to trial.

A. Fourth Amendment Claim Against Deputy Secor

The nature and extent of force that may reasonably be used by officers depends on the specific circumstances of the arrest, including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. (quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)). The inquiry is an objective one, meaning that the subjective feelings or intent of the officers is not relevant. Id.

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7 F. Supp. 3d 906, 2014 U.S. Dist. LEXIS 34459, 2014 WL 1053320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-brown-v-thomas-wied-2014.