OPINION AND ORDER
In this civil action for monetary relief brought under 42 U.S.C. § 1983, plaintiff David Hanson contends that defendants Dawn Barger, Tim Richter and Steve Wittmann violated his rights under the Fourth, Fifth and Fourteenth Amendments during their investigation of a 911 hang-up call. Plaintiff contends that defendant Dane County is liable because its policies and practices caused the constitutional violations by the individual defendants. Although Dane County Sheriffs Department is named as a defendant, it is an agency of Dane County and for that reason is not a suable entity separate from the county.
Whiting v. Marathon County Sheriff’s Department,
Plaintiff alleged the following claims in his complaint:
(1) Defendants violated his rights under the Fourth Amendment by entering his home without a valid basis for doing so;
*1050 (2) Defendants violated his rights under the Fourth Amendment by remaining in his home after they found no signs of a disturbance;
(3) Defendants violated his rights under the Fourth Amendment by seizing him unreasonably;
(4) Defendants violated his substantive due process rights under the Fourteenth Amendment by questioning his two children without his or his wife’s permission;
(5) Defendants violated his rights under the Fifth Amendment by failing to inform him of his Miranda rights when he was in the garage under questioning;
(6) Defendants violated his rights under the Fourth Amendment by illegally arresting him because the arrest was the fruit of violations described in (2) and (3) above;
(7) Defendants violated his rights under the Fourth Amendment by illegally arresting him when they did not have probable cause; and
(8) Defendant Dane County’s policies, practices and training caused the violation of his rights under the Fourth Amendment and his substantive due process rights.
In his complaint, plaintiff raised a claim that defendants violated his rights under the Fourth Amendment by coercing him to take a breathalyzer test while at the police station. However, in his response to defendants’ motion for summary judgment, plaintiff agrees to the dismissal of this claim because “the evidence obtained during discovery indicates that the breathalyzer test was given pursuant to standard booking procedures for valid non-investigative purposes.” Dkt. # 53 at 2. Accordingly, that claim will be dismissed.
Defendants have filed a motion for summary judgment on all of plaintiffs claims. Plaintiff has filed a cross motion for summary judgment on all of his claims except (1), (5), and (7). Defendants’ motion will be granted and plaintiffs motion will be denied. Exigent circumstances justified the warrantless entry into plaintiffs home without a warrant and all the actions defendants took thereafter were reasonably related to their attempt to determine whether an emergency still existed. Once plaintiff admitted that his wife had called 911 after he “bumped” her during a “heated” argument, defendants had probable cause to arrest him for domestic abuse.
The only close call is whether plaintiffs Fifth Amendment rights were violated when defendant Wittmann failed to inform plaintiff of his
Miranda
rights when questioning him in the garage. However, I conclude that defendant Wittmann is entitled to qualified immunity on that claim because the law was not clearly established that plaintiff was “in custody” during questioning. Further, because none of the individual defendants violated plaintiffs constitutional rights, it follows that defendant Dane County may not be held liable.
King ex rel. King v. East St. Louis School District 189,
From the parties’ proposed findings of fact and the record, I find the following facts to be undisputed.
UNDISPUTED FACTS
A. Parties
Plaintiff David Hanson is an adult resident of Dane County, Wisconsin. Defendant Dane County is a municipal corporation organized under the laws of the state of Wisconsin. Defendants Dawn Barger, Tim Richter and Steve Wittmann are deputy sheriffs employed by the Dane County Sheriffs Department.
*1051 B. The Investigation on October 9, 2005
Around 7:50 p.m. on October 9, 2005, the Dane County 911 center received a call from plaintiffs residence. When the dispatcher picked up the phone, the caller had already hung up. The dispatcher called plaintiffs residence to try to determine the purpose of the call. When no one answered, defendants Richter, Barger, and Wittmann were dispatched to plaintiffs residence to investigate.
Defendants Richter and Barger drove in the same car and arrived at plaintiffs residence shortly before 8:00 p.m. Defendant Wittmann drove a separate car and arrived later at plaintiffs residence. Upon arrival, defendants Richter and Barger entered plaintiffs garage, which was open. At some point, plaintiff told defendants Richter and Barger that he had had an argument with his wife and that she dialed 911. (The parties dispute whether plaintiff made these statements before or after defendants came into the house and whether plaintiff gave defendants consent to enter his home.)
Inside the house, defendant Barger told plaintiff that the officers would like to speak to him and his wife separately. Plaintiff went into the four-season room of the house, while defendants Richter and Barger questioned plaintiffs wife in the kitchen.
During questioning, plaintiffs wife admitted she had called 911 but said she could not remember the reason why. She also admitted to arguing with plaintiff before the 911 call, but stated several times that she could not remember what the argument was about. Defendant Barger believed that plaintiffs wife appeared to be nervous and upset during the questioning, but she told defendants that she felt safe in the home. (The parties dispute whether plaintiffs wife repeatedly asked defendants Richter and Barger to leave the house during her questioning.)
Plaintiffs wife informed defendants Richter and Barger that her two daughters were in the home, but that she did not want defendants to speak to them and would not give them permission to do so. Defendants Richter and Barger informed plaintiffs wife that it was departmental policy to personally check on everyone in the house. When defendant Barger walked down the hallway to check on the children with plaintiffs wife, plaintiff attempted to follow, but defendant Barger prevented him from doing so. Defendant Barger confirmed that the two children, ages 13 and 15, appeared all right. The children denied knowing anything about what happened.
When defendant Wittmann arrived on the scene, he interviewed plaintiff in the four-season room. Plaintiff admitted that he and his wife had had a “heated” argument and that he had consumed several alcoholic drinks throughout the day. Plaintiff told defendant Wittmann that he did not want his children involved in the situation, but defendant Wittmann informed plaintiff that the children would have to be interviewed if they witnessed any part of the incident. Plaintiff responded that he understood.
After an hour, or around 9:00 pm, defendant Richter called the sergeant on duty, who told the deputies to re-interview the Hanson family because they were having trouble getting any of the details about the incident. Under Dane County Sheriffs Department policy and training for possible domestic abuse situations, deputies are required to complete a thorough investigation. They will not leave until probable cause exists to make an arrest or until they are satisfied that the criteria to make an arrest do not exist, regardless of the complainant’s wishes.
*1052 Defendant Barger re-interviewed plaintiffs children, this time in separate rooms and without plaintiffs wife. Both children responded they did not know what their parents were arguing about and didn’t know that anyone called 911. (The parties dispute whether defendant Barger asked the children whether their father had ever hit their mother and whether their parents were arguing about finances or an affair.)
Defendant Wittmann and plaintiff went into the garage to further discuss the situation. (The parties dispute whether Witt-mann “required” or “suggested” that plaintiff go into the garage.) At one point while being questioned in the garage, plaintiff wanted a glass of water. Defendant Wittmann retrieved a glass of water rather than allowing plaintiff to get it himself. While in the garage, plaintiff told defendant Wittmann that his wife may have called 911 because he “bumped” her in the kitchen during their argument. At 9:06 p.m., the officers placed plaintiff under arrest for domestic battery. The charges against him were later dropped.
OPINION
A. Standard for Summary Judgment
Under Fed.R.Civ.P. 56, summary judgment is appropriate “when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.”
Goldstein v. Fidelity & Guaranty Insurance Underwriters, Inc.,
When both parties have filed cross motions for summary judgment, both are required to show that no genuine issues of material fact exist, when the facts are taken in the light most favorable to the party opposing each motion. If genuine issues of material fact exist, neither party is entitled to summary judgment.
Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt,
B. FouHh Amendment: Entering Plaintiffs Home
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, art. IV. “The physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, and accordingly, warrantless entries are considered presumptively unreasonable.”
United States v. Ellis,
Courts have recognized a number of exceptions to the warrant requirement. One is exigent circumstances, which justify a warrantless search or seizure when the police reasonably fear for the safety of someone inside the premises.
United States v. Richardson,
Only defendants moved for summary judgment with respect to plaintiffs claim that defendants violated plaintiffs rights under the Fourth Amendment when defendants Richter and Barger entered plaintiffs garage and home. I agree with defendants that the undisputed facts show that exigent circumstances existed to allow a warrantless entry into plaintiffs home. This makes it unnecessary to consider defendants’ alternative arguments that they had consent to enter plaintiffs home and that they were entitled to enter under the “community caretaker” doctrine.
It is undisputed that before entering plaintiffs open garage, defendants Richter and Barger knew that a 911 hang-up call had been made from plaintiffs residence and that the return call to plaintiffs residence went unanswered. By itself, a 911 call may be enough to support a warrant-less search under the exigent circumstances exception.
Richardson,
In
Richardson,
C. Fourth, Fifth and Fourteenth Amendments: Defendants’ Actions After Entering Plaintiffs House
Plaintiff asserts several claims that defendants violated his constitutional rights under the Fourth, Fifth and Fourteenth Amendments after they entered his home. First, plaintiff argues that defendants Richter, Barger and Wittmann violated his rights under the Fourth Amendment by remaining in his home even after they discovered that no one in the house appeared to be hurt and saw no signs of a disturbance and by illegally seizing him. Second, plaintiff argues that defendant Barger violated his right of familial relations under the Fourteenth Amendment both by interrogating his children and by the manner in which they did so. Third, plaintiff argues that defendant Wittmann violated his rights under the Fifth Amendment by failing to provide him with a Miranda warning before questioning him in the garage.
1. Fourth Amendment: refusal to leave and seizure of plaintiff
In his motion for summary judgment, plaintiff argues that defendants had no authority to remain in his home after they saw no signs of a disturbance or injury. Plaintiff also contends that his wife withdrew her consent for defendants to remain in the house by asking defendants to leave the house several times while she was being questioned. However, because I conclude that defendants did not need consent to stay in plaintiffs home, it is unnecessary to consider that argument.
The Supreme Court has held that “a warrantless search must be strictly circumscribed by the exigencies which justify its initiation,” and it must be objectively reasonable.
Mincey v. Arizona,
The Court of Appeals for the Seventh Circuit has not yet considered under what circumstances it is reasonable for police to continue investigating a possible domestic violence situation in the home even after the police learn that no one is harmed. However, other circuits have done so and I find their reasoning persuasive. In
United States v. Brooks,
Similarly, the Court of Appeals for the First Circuit stated that in domestic violence situations, “violence may be lurking and explode with little warning. Domestic violence victims may be intimidated or suffer from a dependence inherent in the abusive relationship. The signs of danger may be masked.”
Fletcher v. Town of Clinton,
In this case, the undisputed facts establish that defendants’ actions in plaintiffs home and the length of their stay in the home were objectively reasonable. Once there, defendants Richter, Barger and Wittmann discovered more information that reasonably led them to believe an emergency may still have existed in the home: (1) plaintiff admitted that he and his wife had had an argument and that plaintiffs wife had dialed 911; (2) plaintiffs wife confirmed that she had argued with plaintiff and that she had called 911, but when asked further about it, she stated she could not remember why she had called 911 or what the argument was about, even though she had made the call less than a half-hour earlier; (3) during questioning of plaintiffs wife, defendant Barger noticed that she appeared nervous and upset; and (4) later, plaintiff described his argument with his wife as “heated” and admitted that he had consumed several alcoholic drinks throughout the day. These facts made it reasonable for defendants Richter, Barger and Wittmann to believe that an emergency still existed at the scene.
Plaintiff says that defendants had no basis for staying in the home once his wife said she felt safe and asked defendants to leave, but defendants had ample reason to question the sincerity of these statements. Perhaps the strongest reason was the obvious falsity of other statements she made. When defendants asked plaintiffs wife several times why she dialed 911, she responded that “she couldn’t remember.” It is difficult to believe that a person could forget the reason for dialing 911 within a half-hour after doing so. Because plaintiffs wife never provided an answer to the question why she dial 911 that made any sense, it was reasonable for defendants to disregard her statements that she felt safe. In fact, it would be objectively reasonable for any officer to believe that it could be a grave mistake to leave plaintiffs home just because his wife said she felt safe and requested them to leave.
Plaintiff argues that defendants’ view of his wife’s demeanor is unsupported and that his wife was not upset about anything that had happened in the home but about defendants Barger’s and Richter’s not paying attention to what she was saying. However, the question is not whether defendants’ view of the reasons for plaintiffs wife’s distress was accurate, but whether they had an objective basis to believe that she was upset because she was afraid. I conclude that they did.
*1056
For similar reasons, I conclude that it was reasonable for defendants to separate plaintiff from his wife during questioning, not allow him to talk to his children, move him into the garage for questioning and not allow him to re-enter his house to get a glass of water. As noted above, it was reasonable for defendants to believe that plaintiffs wife may-have called 911 in the midst of an incident of domestic violence. Thus, it was reasonable to separate a potential victim from the potential aggressor within the home in an attempt to make the potential victim more forthcoming.
White v. City of Markham,
I conclude that the length of time defendants remained in plaintiffs home and their actions in the home, including seizing plaintiff, were reasonable under the undisputed facts of this case. Therefore, I will grant summary judgment for the defendants on plaintiffs claim that defendants violated his Fourth Amendment rights by remaining in his home and by seizing him.
2. Plaintiff’s familial relations claim
Plaintiff also claims that his right to familial relations under the Fourteenth Amendment was violated because defendant Barger questioned his two children outside his presence and because the content of some of those questions was intrusive. The Fourteenth Amendment provides that no state may “deprive any person of life, liberty, or property, without due process of law.” U.S. Const, art. XIV. The Supreme Court has recognized that a component of substantive due process under the Fourteenth Amendment is a right to familial relations.
Troxel v. Granville,
The Court of Appeals for the Seventh Circuit has set forth four factors for court to balance in determining whether a public official’s interference with the parent-child relationship violates the parent’s substantive due process rights.
Doe v. Heck,
Although plaintiff cites several cases regarding his right to familial relations, the facts of this case are similar to
United States v. Hollingsworth,
Like the court in Hollingsworth, I conclude that any intrusion by defendant Bar-ger was minimal. Defendant Barger’s interview of plaintiffs children lasted less than a half-hour, was conducted with both plaintiffs and his wife’s knowledge and was conducted in their home, the least coercive setting. Further, the nature of plaintiffs interest in retaining control over his children was even more limited in this case because of the age of the children, thirteen and fifteen. As a child grows older, the scope of appropriate questions changes as well. Therefore, to the extent defendant Barger’s questioning implicated plaintiffs substantive due process rights at all, the intrusion was reasonable.
Plaintiff relies heavily on the court of appeals’ application of the third and fourth factors in
Doe,
in which the court required the government to show “ ‘some definite and articulable evidence giving rise to a reasonable suspicion that a child had been abused or [was] in imminent danger of abuse.’ ”
In this ease, the government’s interest was in investigating a potential emergency. I conclude that defendant Barger’s questioning of plaintiffs children was justified for all the reasons that made it reasonable for defendants to continue to remain in plaintiffs home because of the exigent circumstances. Defendants have a compelling interest (and duty) in undertaking thorough investigations of 911 calls and protecting citizens in emergency situations. To the extent that Doe and Holl-ingsworth require reasonable suspicion of a crime, I conclude that defendants had reasonable suspicion that domestic violence had occurred, or was about to occur, from the information they learned in plaintiffs home. Therefore, either the exigent circumstances of the situation or the suspicion of domestic violence justified defendants’ questioning of plaintiffs children.
Last, the means by which defendant Barger questioned plaintiffs children was reasonable and directly related to the government’s compelling interest. Even viewing the content of defendant Barger’s questions from plaintiffs view as including specific topics such as domestic abuse, finances and an affair, the questions were targeted at determining whether an emergency existed in the home. Plaintiff has adduced no evidence from which a reasonable jury could find that defendants went further than was reasonably necessary to determine whether plaintiffs children had *1058 any relevant information regarding the reason for their mother’s 911 call.
Because I find that the Doe factors weigh strongly in favor of defendants, I will grant summary judgment to them on plaintiffs claims that his right to familial relations under the Fourteenth Amendment was violated by the questioning of his children outside his presence.
3. Plaintiff’s Miranda rights claim,
Plaintiff claims that defendant Wittmann violated his Fifth Amendment rights by failing to inform him of his
Miranda
rights when he was being questioned in the garage. In
Miranda v. Arizona,
A
Miranda
violation provides a ground for liability under 42 U.S.C. § 1983 only when the suspect’s statements are used against Mm in a “criminal case.”
Sornberger v. City of Knoxville,
In this case, it is far from clear whether plaintiff could meet the standard set forth in Sornberger. However, because defendants proposed no facts on this subject in their motion for summary judgment, I cannot grant summary judgment to defendants on this ground.
The sole issue defendants raise in their motion for summary judgment on this claim is whether plaintiff was “in custody” so as to trigger his right to a Miranda warning. In the alternative, defendants contend that even if plaintiff was “in custody,” defendants are entitled to qualified immunity for not giving plaintiff a Miranda warning because the law did not put defendants on notice that not doing so would violate plaintiffs constitutional rights.
An individual is “in custody” when his or her movement is restrained to the degree comparable to a formal arrest.
Burns,
Applying the law to the facts in this case shows that it is a close call whether plaintiff was in custody. On one hand, some facts support a conclusion that plaintiff was not in custody. Defendant Witt-mann’s questioning was not coercive or accusatory. Plaintiff was being held in familiar surroundings by only one officer. He never was handcuffed and defendant Wittmann never brandished his weapon. Plaintiff was even left completely alone for a short time while defendant Wittmann fetched him a glass of water. Plaintiff was not treated differently from others in his home and he was not the exclusive target of police questioning.
Saadeh,
Other facts suggest that plaintiff may have been in custody. He was never informed that he was not under arrest or that he was free to leave at any time.
United States v. Fazio,
Because the facts in this case point in different directions on the custody question, a plausible argument could be made in favor of plaintiff or defendants on this issue. This uncertainty dooms plaintiffs claim. Under
Pearson v. Callahan,
— U.S.-,
*1060 Plaintiff has failed to show that the law was clearly established that defendants conduct was unconstitutional. He cites no cases with similar facts in which the Supreme Court or the court of appeals found a Miranda violation. My own research suggests that the case law did not provide defendant Wittmann with a clear directive to provide plaintiff with Miranda warnings while questioning him in the garage. Because I cannot conclude that defendant Wittmann could have known from the existing state of the law that he was violating plaintiff constitutional rights, I will grant summary judgment for defendants on plaintiffs Fifth Amendment claim.
D. Plaintiff’s Arrest
Plaintiff makes two arguments that his arrest was invalid: (1) the arrest was the fruit of defendants remaining in his home unlawfully and seizing him unlawfully; and (2) even with the information defendants obtained while they were in the house, they lacked probable cause. Because I have concluded that defendants did not violate plaintiffs Fourth Amendment rights while they were investigating the 911 call, plaintiffs first argument fails.
With respect to plaintiffs second argument, probable cause for an arrest requires a reasonable belief by law enforcement agents, in light of the facts and circumstances within their knowledge at the time of the arrest, that a suspect has committed an offense or was committing one.
United States v. Kincaid,
The undisputed facts show that defendants had probable cause to believe that plaintiff had violated Wis. Stat. § 968.075(1). At the time defendants made the arrest, they knew that (1) a 911 call had been made from plaintiffs residence; (2) the return call was not answered; (3) plaintiff and his wife had engaged in a “heated argument”; (4) plaintiffs wife admitted to making the 911 call, but stated that she could not remember why she done so; (5) plaintiffs wife appeared nervous and upset when defendants questioned her; (6) plaintiff had consumed several alcoholic drinks during the day; and (7) plaintiff admitted that he “bumped” his wife during their argument. Taking a common sense view of these undisputed facts, a reasonable law enforcement officer could conclude that plaintiff had committed domestic abuse under Wis. Stat. § 968.075(1) by finding that when plaintiff “bumped” his wife he intentionally inflicted physical pain or physical injury on her or had engaged in a physical act that may have reasonably caused his wife to fear imminent engagement of intentional infliction of physical pain or physical injury. Accordingly, defendants’ motion for summary judgment will be granted with respect to plaintiffs claim for unlawful arrest.
ORDER
IT IS ORDERED that •
1. Plaintiff David Hanson’s complaint against defendant Dane County Sheriffs Department is DISMISSED because the department is a nonsuable entity;
*1061 2. The motion for summary judgment filed by defendants Dane County, Dawn Barger, Tim Richter and Steve Wittmann is GRANTED;
3. Plaintiffs motion for partial summary judgment is DENIED; and
4. The clerk of court is directed to enter judgment for defendants and close this case.