Joseph R. Anderer, Jr. v. Police Chief Arthur Jones

Jr., ANDERER, Joseph R.

Plaintiff-Appellant,

v. JONES, et Arthur Chief

Police Defendants-Appellees.

al.,

No. 02-3669. Appeals, States Court

United Circuit.

Seventh 25, 2003.

Argued Feb. 6, 2004. Oct.

Decided Law (argued), Rettko R. Rettko

William Plaintiff-Ap- Brookfield, WI, for Offices, pellant. Milwau- (argued), M. Konrad

Rudolph Milwaukee, WI, Office, Attorney’s City kee Defendants-Appellees. for COFFEY, POSNER, Before WILLIAMS, Judges. Circuit Judge. WILLIAMS, Circuit Mil- former is a Jr. Joseph R. for arrested was who officer police waukee Though was a child. abusing physically terminated Anderer prosecuted, affairs internal following an sued incident. this into arrest, in his involved chief, officers other violating his for of Milwaukee City arresting rights Amendment Fourth cause, for termi- him without represen- after employment nating the arrest out spoke tative Finding that lawsuit. filed time at the existed at issue speech and that arrested Amend- First by the not protected ment, granted summary him, district court When Det. Smith interviewed judgment agree explained to defendants. burglary We details for and affirm. the district court’s decision which he had been arrested. JR said that placed patrol he was I. BACKGROUND1 car, immediately Anderer did not shut the door, but instead asked him 17, 2001, questions April On Milwaukee about what JR had been saying Officer Joseph Anderer and several other Cook did him. JR then said that when juveniles burglar four arrested he told nudged Anderer that Officer Cook juveniles izing boat. After the him in the buttocks with a An- flashlight, handcuffed, being and while were es yelling derer started himat and told him cars, patrol 12-year-old corted to one (whom JR) making he shouldn’t up be “bullshit lies.” boy we call will started shout JR told Det. got Smith that he smart with ing that one of the officers who was escort Anderer, him, ignored and car, away. looked ing Cook, him Jeffrey to the Officer JR stated that when he turned to back touching was him on the buttocks and Anderer, face in Anderer struck him the trying rape juveniles to him. Three of the and face caused his nose and mouth to transported were then to station being bleed.2 JR added that while he was by partner Officer Cook and his Officer transported station, Anderer was Jeffrey Logan, Sergeant while Michael yelling Jones, Shoman, saying you and “do under- Anderer, Officer Janice me?”, stand point and one stopped and placed JR remained behind. JR was car, door, opened car the back and said he patrol to the station and driven going “whip to Sgt. [JR’s] while Jones ass.” JR said he interviewed wit thought they returning nesses before to were alone when all of the station. occurred and did not know if anyone else Once Anderer and JR arrived at the had witnessed it. station, several officers noticed that JR bleeding JR, from the nose and mouth talking and While others were to Officer had clothing. blood on his Lieutenant Kim Cook contacted to JR’s mother inform her Stack happened, asked JR what and he that JR had been arrested. JR’s mother said that Anderer hit him in the face. admitted that surprised she was not that Sgt. When Lt. talking Jones heard Stack JR had burglary been arrested for JR, he asked happened JR what had advised Officer Cook that taking JR was him, and medications, JR said that Anderer hit him. prescription several including Sgt. Jones then asked Anderer how JR two that recognized pills Officer Cook nose, bloody had received “help person’s to which control a mental state.” responded, “how I would know She also told him that JR had not taken just ... I transported him.” oth- Several his medication that day and needed be JR, er officers also interviewed including custody released from as soon as possible. Lt. Mary Hoerig and Detective Sgt. William Officer Cook informed Brunson and Smith of Department the Internal Affairs IAD Detectives Harrison and Smith that (IAD), and he told all them that he had he had been contact with JR’s mother hit in the face Anderer. prescribed JR had been variety 1. Because "[t]he existence of cause our limit recitation of facts to those known at turns on the time of the the information known to the arrest. offi made, cers at the moment arrest is not on Photographs were later taken that showed information,” subsequently-received Spiegel v. lips, cuts on the inside of both JR's Cortese, (7th Cir.2000), we pants. blood on his shirt record,”3 “What asked, point one day and “off all not taken he had drugs he him with?” When say I hit possible. did he as soon processed be should had said he that JR by one officer told Offi- to interview attempted Smith Det. face, stated him the punched the facts sur- about Logan cers Cook if and he pound man was a 200 that he and the arrest rounding JR’s left the face it would punched JR a state- give they refused injuries, but inves- let the then JR. Anderer on bruises representatives union without ment hands, but inspect Sgt. tigating interviewed Det. Smith present. not taken, as there did the last he was photographs Jones, who indicated injuries on the scene marks leave person appear injury to any sign any expla- not provide seen that he had Anderer did them. Smith informed Det. Sgt. Jones the cuts JR. received how JR nation for scene, and at the blood on saw no he indicate He did not bloody nose. noticed cuts not have would probably in ef- any force exercised had been there there was lips, but of JR’s the inside suggest that arrest, nor did fecting the station at shirt on his enough blood had oc- incident accident or any kind had been it if it noticed he that would to the station. way back curred relayed to then Sgt. Jones earlier. there the course during that states Anderer interview of his the substance Det. Smith with conversations the record” “off his the events detailed JR, in JR which with Stack, and Harrison, Lt. them, Detective interac- in his arrest and that resulted they thought him told Officer Cook in JR’s that resulted Anderer tions with which Anderer bogus, to claim was JR’s lip. nose and bloody thought that he Cook to Officer responded in- then and Harrison Smith Detectives “Driebeled.”4 get to going was Shoman, who also Janice Officer terviewed to Milwaukee Hoerig call placed Lt. arrest. JR’s She details about provided apprise to Jones Chief Arthur Police pursue to the scene that she left indicated Lt. asked Jones Chief situation. transported JR was crime before another probable was thought there if she Hoerig saw left she station, she but before to abuse physical Anderer for arrest to cause of Anderer’s the back JR in with Anderer of Wis. child, violation in Stat. of a if hand- recall could not car. She Jones Chief Hoerig informed Lt. § 948.03. any physical not see on, did but cuffs cause probable there was believed that she Anderer. JR and between confrontation detectives investigating arrest, blood did not to see she She stated Hoerig Lt. JR,' would have asked said she Chief Jones injury on concurred. on his if been blood he were there had if Anderer noticed would arrest if she Hoerig citizen, Lt. indicated shirt. private then ordered Jones Chief would. that she a formal state- give to refused Anderer arrest. at Anderer’s but representation, union ment without underlying court's decision facts from to be meant question was 3. While Milwaukee, City v. record,” Driebel put contents Anderer "off the Cir.2002), we concluded which his in both conversation the record” this "off exist in fact did probable cause and his briefs. affidavit (cid:127) was J. Driebel Officer Robert the time however, case, In that slang arrested. term used is a Getting ed” "Driebel probable cause there was find that we did po- ato that refers police officers Milwaukee (Officer Johnny C. to arrest another probable arrested without who is lice officer at 651. Sgrignuoli). Id. its name term takes We assume cause. arrest, respect with Immediately following Ander- cause accusation. On 6, County July charges er taken the Milwaukee the IAD commander issued Facility, alleging where he that he violated Criminal Justice regulations respect rules and being held hours re- for twelve before arrest, afternoon, doing quoted from the April so leased without bail. That 18, allegations complaint. in Anderer’s On appeared Deputy at the Dis- July statement, Chief Jones terminated Anderer’s Attorney’s make a trict office to employment, which Anderer has appealed attorney but because the union was not City’s Fire and Police Commission. present, statement was be resched- complaint, Anderer then filed an amended April being uled. after On authorized adding a count alleging he was termi- Bradley president union De- exercising nated retaliation his First Braska told a local TV station that Ander- rights. Amendment er was arrested without of the IAD because vindictiveness Unit Defendants filed motion for sum due to run-ins prior between Anderer and mary judgment, claiming that there was investigators, of the IAD one un- probable cause to arrest Anderer and that ion “hoping praying” his First Amendment count failed to state police department would sue the to correct a claim for relief. The district court wrongs. these granted summary judgment on Anderer’s claims, Fourth and First Amendment find attorney’s

On June the district office ing that there was cause for pursue charges decided the criminal speech arrest and the a at issue concerned against respect JR’s accu- private personal dispute that was not a time, At local sation. a Milwaukee public app “matter of concern.” Anderer reported charges television station would not be pursued and eals.5 had attorney retained an to file a com- II. ANALYSIS

plaint the Milwaukee Police De- partment 13, its chief. On June A. Probable Cause to Arrest reopened investigation the into We review a district court’s allegations was closed and no further grant summary novo, judgment de information developed to further a doing so draw all reasonable inferences potential prosecution. 19, On June Ander- light from the record in most favorable required give er was a statement the non-movant. Woods v. IAD purpose for the of a work-rule-viola- (7th 979, City Chicago, 234 F.3d 986 investigation tion of his excessive use of Cir.2000). This court at length discussed force. the standard for evaluating probable- 2, On July Anderer filed suit in federal § cause-to-arrest challenges 1983 cases district court alleging Cortese, violations of his civil in Spiegel 717, v. 196 F.3d 723 rights arresting Cir.1999), for him without probable City and Driebel v. Mil- court, granting 5. The district defendants' records were obtained after ar- Anderer was order, protective stayed rested, a motion for all dis- they probable are irrelevant covery pending the court’s resolution of de- Spiegel, cause determination. See 196 at F.3d summary judgment fendants' motion. The Therefore, we do not find the dis- request district court also denied Anderer’s denying trict court abused its discretion copies post-arrest and use of JR’s medical request for access to and use possession records in (apparently defendants' records. obtained). unlawfully Because JR’s medical

1049 (7th Cir.2002). committed, lice waukee, that someone has or is F.3d 622 298 “ committing, crime, ‘a deter the officers commonsense Probable cause mination, probable place alleged cause to culprit under reasonable measured ” arrest, 196 at under and their actions will Spiegel, F.3d 723 be ness standard.’ Stuckey, qualified immunity v. cloaked with if the ar- Tangwall 135 F.3d (quoting ” (7th Cir.1998)). 510, Spiegel, restee is later found innocent.’ Probable cause 519 “ arrest, at if, (quoting 196 F.3d 723 Jenkins v. Keat at the time of the ‘the exists 585 (7th Cir.1998)). 577, ing, 147 F.3d In facts within arrest [the and circumstances determination, knowledge reviewing a-probable and of she cause ing which officer’s] ' trustworthy court should consider whether ar reasonably information has “ reasonably person resting in believ ‘acted under prudent would warrant circumstances, law in the committed or was settled ing suspect that the ” reasonable, or more (quoting Id. whether another rea committing offense.’ (7th sonable, Kautz, 949, can Qian interpretation 168 F.3d 953 events v. ” Cir.1999)). years after the constructed several fact.’ Staszak, Id. v. (quoting Humphrey 148 evaluating probable whether (7th Cir.1998)). “Moreover, F.3d 725 determined, reasonably cause was emphasized proba this court that once has court “must consider the facts established, ble cause has been officials reasonably appeared would have obligation have ‘no constitutional to con saw, ‘seeing hear arresting officer what hopes duct further ing he heard’ at the time what uncovering potentially exculpatory evi Driebel, (quot 298 F.3d 643 incident.” ” Steele, v. (quoting dence.’ Eversole Bonds, 860 F.2d ing Richardson v. (7th Cir.1995)). (7th Cir.1988)); F.3d Spiegel, mind, (“The these standards in we existence of cause With agree with the district court’s conclusion turns on information known made, arrest existed at the officers at moment the arrest is Anderer was arrested.6 In Wiscon subsequently-received not informa time on tion.”). sin, a person physically “An in the a abuses child officer’s belief exis intentionally recklessly when he or “causes probable tence of cause ‘need not based a bodily a harm to child.” Wis. Stat. support on evidence to convic sufficient tion, Here, police § JR arrived at showing nor even a that the 948.03. officer’s ” and custody likely is more true than station Anderer’s sole false.’ belief Woods, Driebel, his and mouth with (quoting bleeding 298 at from nose F.3d 643 996) “ upper no original). split lips, at lower and and 234 F.3d him in 'that condition at reasonably as a officer observed Accordingly, long ‘as or when he po- victim informs the the time his arrest credible witness or have be analysis reasonable officer would dissent’s stresses that the sum- whether.a to requires probable lieved that cause existed mary judgment us to standard view light based on the facts and circumstances all in the most favorable to Ander- facts certainly to at the time of the arrest. er. view all known the officer we facts While id.; Beauchamp City light see v. Nobles to and draw all also most favorable Anderer F.3d.733, Cir.2003).(‘‘Prob Woods, ville, favor, 743 in his 234 reasonable inferences 320 986, only probability probable or substantial of a cause is F.3d at our review cause able activity, certainty -not does not ask whether offi- chance of criminal determination committed”) (citing Illinois that a crime was belief in the cer’s existence Driebel, Gates, 103 likely 244 n. S.Ct. than true. 462 U.S. is more true not v. Rather, (1983)). 76 L.Ed.2d at 643. our review focuses on F.3d custody. JR turned over to Anderer’s sole medication mental illness had and story: the same day. told several officers failed to take his pills that We dis- face JR Anderer had hit him the agree with Anderer’s conclusion re- with An- gotten had “smart” Anderer.7 spect to both assertions. JR himself re- to explanation derer the investi offered ported investigators that he injuries might how gating officers for JR’s allegations made about Officer Cook and occurred, appears only otherwise have explained repetition that it was inquired what JR to have about claimed those statements to Anderer that he be- Anderer had hit him with. Given these prompted hostility lieved Anderer’s 12-year-old’s injuries circumstances—a violence. As for to JR’s failure take consistency bloody appearance, in medication, the fact that investigating injured, reporting how he had been officers knew about JR’s medication does total failure to ex provide any ipso credibility negate not or facto injuries planation for the when no other require investigate the officers to further prior observed JR condition history JR’s medical re- substantiate or turning him over Anderer’s sole cust fute his claim of abuse by see ody8—we believe the Milwaukee police Driebel, 643; F.3d Spiegel, at officers had cause to believe 723. And investigators the fact that intentionally recklessly Anderer had or later learned that previously JR had bodily injury. caused JR’s See Wis. Stat. diagnosed with psychosis, hallu- paranoia, § 948.03. cinations, and self-mutilation is irrelevant what the reasonably knew Anderer claims JR was they the time arrested Spiegel, Anderer. (1) victim not credible because he had 196 F.3d at 723.9 allegations made other about Officer Cook (2) evening, earlier that the officers Anderer further claims that no officers investigating JR’s claims JR allegation knew corroborated JR’s and that no story 7. Anderer claims that JR’s inability explain inconsis- cedes his injuries. all reported Resp. tent because while the officers See PL’s to Def.'s Motion for Summ. J. ("[D]efendants that JR "hit” said Anderer him in the face at 73 state are entitled (statements reports summary judgment Officers Cook undisputed because it is Stack, Jones), Logan, Sgt. explain Lt. Anderer did how J.R. was says injured, one officer told had said or claim that he used lawful force (Del. "punched” face custody him in the Har- respect, plain- maintain of J.R. In Recall, facts.”). rison's statement to rec- dispute Anderer in "off the tiff does not these conversation), too, report ord" and one indicates that before Anderer said did wish he not JR said Anderer "back-handed” him the to in make a formal statement without union (Det. report representation—the nose and mouth Smith's of JR’s focus of the ar- dissent's Deputy Attorney day gument to point—Anderer statement District the on this made several arrested). officers, was voluntary Anderer We think this is to comments other includ- after a distinction, ing they difference without as are that did not he know how JR received the Furthermore, ¶ 34; bloody all forms "hits.” (Compl. because the nose. Anderer Aff. ¶¶ 75, 79-81.) description “back-handed” not at known arrest, the time of Anderer’s it is irrelevant to noted, 9. As we proba- "[t]he have existence of analysis. Spiegel, our F.3d 723. at ble cause turns on the information known to made, Although the any dissent contends that at ref- the officers the moment arrest the explain erence to failure subsequently-received Anderer's to JR’s not on information.” bloody appearance probable Spiegel, cause 196 F.3d at 723. In addition to later- analysis impinges acquired knowledge on Anderer’s Fifth Amend- about JR's medical histo- rights, ry, puzzled by ment and contractual we Anderer himself are the dissent's discussion and, fact, argument bearing makes such con- no irrelevant facts which have injuries appearance of JR’s graphs the other interview to made effort Anderer’s arrest believed hours of were within who witnesses and citizen officers that First, injuries on JR” or were no “there arrest. time at the present “very minor.” Anderer injuries were could Shoman and Officer Sgt. Jones while these ID techs An- to believe against appears allegation not corroborate the officers it, been consulted they refute have should derer, could neither arresting prior to bloody at the JR’s claims investigating that JR was both stated why this Anderer, would to Anderer’s we fail see turned over but been time he had Second, investigating and Offi- offi- Sgt. Jones custody. sole be necessary interviewed, there bat- investigate regularly were themselves cer Shoman cers offi- other capable interview made to and are persons efforts were teries asked Logan cers; Cook and possible nature and cause Officers assessing to Anderer’s prior a statement officers provide those deter- injuries. And once do so without arrest, they refused but had been cause estab- probable mined “ Offi- Notably, when obli- representation. union constitutional lished, they had ‘no give finally agreed Logan cers Cook any investigation further to conduct gation after shortly Anderer’s (very statements ex- uncovering potentially hopes ” nor corroborate arrest), they could neither at 196 F.3d Spiegel, evidence? culpatory Furthermore, allegations. 718). Eversole, refute at (quoting condi- bloodied explain JR’s could not they Furthermore, photo- -did not one ID tech been had not that JR tion, both stated already had JR until graph after over turned time he was bloody had .arrested, have and so would custody.10 Anderer’s sole cause probable nothing to contribute arrest, and the prior to his determination also asserts de- were not photographs ID other tech’s two identification lacking because arrest.11 Anderer’s techs”) veloped until (“ID photo- took who technicians after derer, with blood station arrived reasonably knew when officers what the being in Anderer’s (1) Deputy and shirt after on his face as: such arrested control, the cause identified pursue sole Attorney's decision not later District Anderer nor investiga injuries, and neither (2) subsequent of his charges; criminal any explanation for arrest; (3) offer officer could statements other Anderer’s tions into boy's injuries. con signed after Anderer’s affidavits made than that taining other information Indeed, given by Officer arrest; (4) the statement Anderer’s to officers before known Cook, given prior to Anderer’s it been JR, developed they were photographs of arrest, supported likely further arrest; (5) seems statements after Anderer’s investigating officers’ determination after technicians by identification made to arrest Anderer. cause existed of these discussion the dissent’s While arrest. when Anderer (He investigators that department's told the adequacy of the facts and station, “immediately at the persuasive clos JR arrived might present a running both trial, blood down [JR] noticed ing argument chin, nostrils, both his shirt and guilt blood on not need to establish did doubt, aback because legs,” and "was taken charge pant a beyond reasonable underlying evidence, shape good before perfectly by was in preponderance a kid or even s he came v. not when squad, State but arresting See United went into the him. before Cir.2003). good.”) Funches, thought not 587 that’s 327 F.3d out and Moreover, emphasizes although the dissent “observations” ID JR, that the techs' We note that no hit Anderer 11. officer saw that no that affidavits in the initial were not included negate the not does the action saw officer incident, after the they provided six months boy, 12-year-old unin a undisputed that facts they the affidavits only included in were to An- turned he was over jured the time at 1052

Finally, points presented to other no probable cause to have [An- place.” arrested in the first derer] his occurrences after arrest as evidence to support argument probable that cause B. Retaliation for First Amendment challenges did exist. Anderer not Speech credibility by arguing Deputy that the Dis alleges that he was reta Attorney’s pursue trict not to decision terminated, against liated in violation charges pros- means there was no criminal rights, his First Amendment in response merit to JR’s claim. The deci ecutorial (1) by president statements made union charges,12 pursue sion not to made DeBraska, Bradley with appar actual months after the authorization,13 ent that not at the time of information available probable arrested without as a cause result arrest, Driebel, see 298 at F.3d does of IAD due to personal vindictiveness ani guide analysis not constrain or our of mus with one of the IAD investigators, and at probable whether cause existed the time that union “hoping praying” (“An he would sue the department to Anderer was See arrested. id. offi (2) wrongs, correct these Anderer’s confir probable cer’s belief the existence mation that he lawyer had retained a cause ‘need not be based on evidence suffi matter, (3) look into the filing conviction, nor support cient to even a against lawsuit defendants. showing that is more officer’s belief a government Whether Woods, em likely false.”’) (quoting true than ployee’s speech protected by is the First 996) (emphasis original). 234 F.3d It legal question Amendment is a that we similarly analysis is not relevant to our Jones, review de novo. v. Gustafson commented, booking judge that the (7th Cir.2002). F.3d As we ex ordering bail, Anderer’s release without plained Gustafson, there four are ele “allegations against that JR’s [Anderer] ments First Amendment retaliation up report baseless and the show claim,14 only but the element at issue here able, year provided they photo- particularly after took the knowledge view of [his] Anderer, graphs. We prior complaints against review cause determi- that An- based nations on the information available at entirely derer did strike It is [JR]. conceiva- arrest, ble, however, the time of the to assess whether the given agitation, [JR’s] men- " arresting reasonably 'acted under problems tal get and stated intentions to circumstances, law incident, settled in the not whether money out of this that he inflicted reasonable, reasonable, another or more inter- injuries speculation, himself. Such pretation however, the events can be constructed sev- charges, not the stuff of criminal " years eral Spiegel, proven and none can be in this case.” after fact.' 725) (quoting Humphrey, at 723 F.3d at assume, deciding, We will without Similarly, the dissent’s speech person authorized one made but conjecture that other could factors another could be the basis First bloody caused JR's nose and cuts his face Amendment claim. analysis. Again, does not bear on our we emphasize inquiry that our focuses wheth- prove 14. To a First Amendment retaliation er existed to arrest context, "[f]irst, employment claim in explanations not on whether other for JR's plaintiffs prove speech must that their was a id.; Driebel, injuries possible. are also Next, public matter of concern. must F.3d prove played speech their at least a sub- Deputy Attorney, 12. The District in his part employer's memo stantial decision take explaining pursue charges, employment decision an adverse action them. carry recounted the facts of JR’s and plaintiffs claims wrote If the can their burden on that, elements, while he not could "state only with assurance these two can defendants happened[,][he] prob- prevail they prove by what preponderance believe[d] it more if a of

1053 290 Gustafson, F.3d dispositive,” it is “matter a speech was Anderer’s whether is omitted), a (citations “speech on but at 906-07. at 908 Id. concern.” public of to the of interest speech be subject that would employee’s government a “Whether expres if ‘the de- protected concern public of will not public a matter addresses form, context content, and effect only the personal ‘the upon addresses sion pends ” by the whole revealed Mar (quoting Id. speech] employee. of upon [the ” v. Comm’n, (quoting 907 Id. at Connick 32 County record.’ Plan v. Porter shall 147-48, 138, 103 S.Ct. Cir.1994)). U.S. (7th 461 Myers, And while 1215, 1219 F.3d (1983)). these “Of 708 1684, 75 L.Ed.2d few matters there are recognize we impor- most factors, is content three large met concern greater public “of omitted); v. Campbell (citations Id. tant.” protection police than area ropolitan Cir.1996). (7th 820, Towse, 827 F.3d 99 Rice, 910 v. safety,” Auriemma public if is satisfied element concern’ ‘public “The Cir.1990) banc), (7th (en 1449, 1460 F.2d to a to relate said fairly be can speech ad at here issue speech nothing social, other concern or political, of matter anything about resolve or seeks to dresses merely than rather community, be not have may may or what only to the of interest grievance personal department’s police regarding lieved at 290 F.3d 907 Gustafson, employee.” dis his than policies, other Jones’s Chief 146, 103 S.Ct. Connick, at U.S. 461 (citing his arrest and desire satisfaction of a matter 1684). not on is speech If the such, speech As redress. personal for unnecessary for us concern, is “it public of as a “matter fairly be described cannot employee’s] for [the the reasons scrutinize inquiry further concern,” public 146, Connick, at 103 461 U.S. discharge.” unnecessary is was terminated why into he S.Ct. govern afford we wide latitude given the speech The content their offices. managing ment officials a matter was, plainly, quite, here issue 103 Connick, U.S. 461 S.Ct. concern. private of Anderer’s solely (discussing Driebel, at 638 F.3d 1684; 298 only An addressed concerned speech tactics em investigatory affairs internal arrest; in these statement nothing derer’s depart police by the Milwaukee ployed than impact societal any greater alleges ment). ar being for grievance possible 147-48, Connick, U.S. at rested, III. CONCLUSION at 908. 1684; Gustafson, S.Ct. reasons, judgment foregoing For the was a mat speech claims that is court of district Affirmed. “pervasive because concern public ter the Milwau misconduct” systematic dissenting. COFFEY, Judge, Circuit high num leads to department kee discharged recently Anderer, a Joseph of officers without arrests ber officer, appeal argues Milwaukee light bringing this violated rights were constitutional that his ac We speech. the motivation de- arrested, booked relevant knowledge motive from terminated tained, subsequently [though] inquiry, concern public “matter speech.” interest, in the absence even employees government’s the evidence Joseph, 170 County St. (citing v. Klunk gov- efficiently providing employer, in as an 1999); v. Hellstrom Cir. F.3d employees' outweighs the services ernment Affairs, 201- Dep’t Veterans interests, States they can United or if Amendment First Cir.2000)). (2d -F.3d disciplined they would have prove that (3.5 employment years) on the orders him). would have exonerated See infra of Chief Arthur Jones of the Milwaukee pp. 1057-58, 1059-60, 1069-70, 1074-75, Department (“MPD”), Police based almost 1081-82. exclusively on the fabricated story of an There was absolutely no credible evi- incorrigible psychotic juvenile, without dence uncovered the investigators even of corroborating scintilla evidence. The suggesting that Anderer committed a majority attempts to defend his arrest and prior crime to his arrest. For example, accept refuses to Anderer’s contention and Officer Shoman told IAD investigators pri- argument full finds support in the —which or to Anderer’s arrest that she would have accuser, record-—that his an out-of-control noticed altercation whatsoever be- juvenile “JR,” named who also maliciously tween Anderer because of her created another fabricated accusation close proximity if, fact, him in it had against a second officer stating that he had taken place, and that she witnessed no raped him, was likewise wholly incredible. such incident. Notwithstanding the excul- As the trial judge noted when finding JR patory nature of evidence, majori- all, incredible: J.R. could man- “[affter if ty distorts her testimony cavalierly one against obvious lie officer, ufacture states that Shoman could not “refute” JR’s might also plausi- more manufacture story. Opinion at Indeed, 1050-51. five of ble lie another Anderer officer.” police six present scene, at the Jones, v. 01-C-0668, (E.D. No. at *6-7 questioned, later did corroborate

Wis., 2002) Sept. Shoman’s statement when testifying under reality The of the situation is that the false (affidavit) oath that Anderer did not strike gave information JR to investigators con- JR while putting him in squad car, cerning Anderer’s involvement in the al- JR had specifically stated that Anderer leged assault fell far short of establishing had done. See pp. 1083-86. cause to arrest him and the in- infra end, only fact credible vestigators’ the record belief in veracity just the majority cites one to suggest component of a goal- mishandled and (have committed, arrested) oriented was committing, an investi- offense gation is his failure explain which good-faith lacked al- and which leged injuries. (as the majority now a police condones. citizen) and American was well aware that The majority also fails to recognize and his refusal fully silence was protect- and/or avoids the fact that the investigation fell ed under both his constitutional and con- far short of proper police inquiry, lacking rights. tractual majority’s attempt to in objectivity and Indeed, fairness. use the repeated officers’ refusals to Milwaukee Police Department, INTER- questions answer as a fundamental factor NAL (“IAD”) AFFAIRS DIVISION in- in establishing probable cause is complete- vestigators looking into JR’s false and ma- ly misguided, one, for no not even a licious law complaint, for reasons unexplained, officer, enforcement can saw give fit forced to to systematically ignore the excul- evidence against patory himself while subject statement given by Officer Janice of a Shoman prior investigation. Indeed, then proceeded court to fail ever has timely held that interview four refusal other answer officers, questions Cook, Officers might Cen- incriminate a teno, (all Logan and suspect Bohlen would allow who would law enforcement offi- given exculpatory statements), cers to elevate suspicion reasonable lay witness, one (who Mitchell investiga- probable cause based on such a refusal. tors well prior knew to Anderer’s arrest Hiibel v. Sixth Court, Judicial Dist. Cf.

1055 the established with combination — in 2460-61, viewed 159 2451, U.S. -, 124 S.Ct. claiming An- only person 1071-73. pp. the (2004); see that evidence 292 L.Ed.2d infra neither since that implies majority the out-of- a crime was committed derer have we do not argument this raised party cursing swearing, himself; a control JR constitutional to address jurisdiction get even attempt to who, in his malcontent ma the however, I am confident question; (i.e., arresting with does this Court that realizes jority “get paid” would that threatened a constitutional resolve the discretion one, Officer jobs”) accused [their] “have us before record in discovered issue other, An- Cook, and accused of rape sug majority’s contrary to the sponte, sua nose, face and derer, striking him of As n. 1050 at Opinion See gestion. 1057- pp. mat See causing “[t]he clear him bleed. Court has made Supreme infra up and 1081-82, taken may 1071-72, questions 1066-67, 1060-61, of what ter 58, is one appeal time on first for the resolved in flies However, accusation 1089-90. of the discretion to the primarily left logic be sense common face of on the to be exercised appeals, courts burglar suffered juvenile the lying Certainly .... cases of individual facts lacerations, abrasions, contu bruises, which a are circumstances there federal of his any part swelling to sions, much less resolving an justified is court appellate give some might face, lips or which nose below, THE as where on passed not issue he had that allegation credence BEYOND IS RESOLUTION PROPER This is lb. officer.' by a 200 INJUSTICE struck DOUBT, or WHERE Sin- lack in addition RESULT.” that mention OTHERWISE not to MIGHT 121, 106, 96 S.Ct. U.S. Wulff, 428 purported v. gleton on of abuse signs physical (1976) add- 2868, 826 49 L.Ed.2d witnesses victim, credible are five there omitted); (internal See ed) citations infra stated the scene present who duty it is our I believe 1077-78. pp. assault witnessed they never [that] ... “well-settled It is so. to do during time, much less any. relegated not ... are [p]olicemen when frame time particular constitutional version watered-down squad entry into the assisting Milwaukee, 298 City v. Driebel rights.” 1059-60,1069- 1057-58, pp. car. See infra Cir.2002) Garr- (7th (quoting 622, 637 F.3d Therefore, 1081-82, 1083-86. 70, 1074-75, 87 Jersey, 385 U.S. v. New ity circum facts relevant (1967)), light and we 562 616, 17 L.Ed.2d S.Ct. predicat not constitutional stances, serious ignore the must silence by using Anderer’s “reasonably cred raised problems from information ed on cause. establishing probable a factor as judge victim,” trial as the or ible -witness expla- without based addition, majority, being qualify it found, does In nor known the well accept nation, refuses trustworthy information “reasonably aas such maladies are there fact person prudent warrant would [that] nose- or those nosebleed everyday plain, committed believing [Anderer] caused frequently type bleeds v. Spiegel offense.” committing prescribed myriad injestion of a Cir.2000) (7th Cortese, F.3d -other medications drugs psychotropic 949, 953 Kautz, F.3d Qian v. (quoting and con- causing accepted known effect, majority Cir.1999)). pp. nosebleeds. tributing to infra uncontrol psychotic, of a taking word This 1082-84, 1068-69, 1089-90. 1058-59, credi- of six over lable, juvenile lying when germane more even becomes fact ble witnesses plethora and a of very con- ful nor fair objective vincing circumstantial evidence. claimed that JR was “seriously injured” (which their

Indeed, can the trial judge went to state best be described as no more than that JR a rush anot credible Judge witness. judgment) to suffered from a Stadtmueller serious lack found that “J.R.’s statement good-faith, resulting in improper alone an [was] proba- insufficent basis finding cause existed Jones, ble cause.” to ar- Anderer v. No. 01-C- rest the officer. pp. 1066-73, (E.D.Wis., *6-7 Sept. 30, 2002). infra 1087-88, 1091-93 (discussing majority deputy disagrees with the trial district attorney’s judge’s decision not clear to prose- statement on the credibility cute); pp. subject 1071-73 and, (discussing in support of evidence this holding, and testimony given argues that JR told I.D. other officers Techni- that he cians). made rape allegations against Cook and that he “told police several officers the Because this case is so fact-oriented and same story.” See *9, Opinion at *12. because the majority’s decision fails pro- However, the record reflects that once vide an representation accurate of the rec- investigation concerning ensued, ord, I have been forced to recite the facts (in contrast to the majority’s contention) with corresponding cites, record as well as JR when interviewed repeated never his my reasoning and conclusion in detail. My “rape” allegation, but only claimed that he purpose is not provide a closing argu- “nudged” in the buttocks. Smith ment, as the majority for some reason saw ¶ Report Nevertheless, 5. even if we were fit to mockingly suggest,1 but is an honest assume, for purposes of discussion, this attempt to persuade my colleagues that that JR did repeat his ridiculous allega- the district court’s decision should be re- tions Cook word-for-word to other versed and set aside and that Anderer officers, this does not ipso negate all facto should, at very least, be afforded his of the other facts which rendered JR’s day in court in order that he might present allegations would, incredible and fact, his case to a jury of peers and further- only serve to further undermine the value more that a history of investigative prob- juvenile’s of the description of events. See lems of this nature in the Milwaukee Po- pp. 1066-68. infra lice Department might be exposed to the The majority also attempts light to character- of day. See also Driebel v. City of ize a number post-arrest events as “ir- Milwaukee, (7th Cir.2002). 298 F.3d 622 facts,” relevant (1) such as: “the Deputy I. Factual Background District Attorney’s later decision not to pursue (2) criminal charges”; “photo- At approximately p.m. 7:28 on April JR, graphs of were developed after the Milwaukee Police Department arrest”; (3) “statements received two telephone complaints, one made ID technicians after the arrest.” from James C.-Mitchell and the other from See Opinion at 1050-51 However, n. 9. as Eric Guenther, alerting clear, we make all used, evidence is there was a burglary progress aboard part not as of a probable review, but boat at 2011 South Street, First the Pump to further establish that the IAD investiga- (the House Marina “Marina”), on Milwau- tors responsible for conducting proba- kee’s South Side. Officer the sub- ble cause inquiry were neither being ject truth- of this case and /¿-year a 3 veteran on 1. See Opinion at n. 1050-51 ques- completed their the officers After work assigned Department, burglars were juvenile four tioning, the evening partner

without (cid:127) Cook arrested, and searched. handcuffed six scene with crime dispatched took and Cook Logan Aff. Officers Jones, Michael Sergeant. officers: other custody, and juveniles into three Logan, Cook, Jeffrey Jeffrey and Officers Offi- while squad, them their escorted Centeno, Janice Bohlen, Victor Todd assigned escort Anderer was cer officers, after seven These Shoman. individual, JR, single-manned to his fourth scene, con- while the crime arriving it would because (possibly car squad four upon came investigation, ducting their out-of-control, the separate easier JR, male, (one African-American juveniles juvenile and foul-mouthed threatening, ob- males) three white and Mitchell, three). C. James other the from at a parked a boat breaking into served report- earlier who had citizen witness the extin- stealing a fire and the Marina slip in nearby stood police, burglary ed the from flashlight high-powered and guisher and JR Anderer continued observe and Sergeant (burglary). vessel the aboard secured] [him] “guide[d and officer as the suspects the down patted Jones Michael squad, [and] ... seat the back into Jeff Officers of and, assistance the with ” .... Mitchell the car the door to closefd] ju- Cook, the escorted Jeffrey and Logan ¶ continue heard JR 14. Mitchell Aff. Mari- to the slip over the boat from veniles officers at the directed obscenities scream questioning. for na mainland an obnoxious out in to act and continue the four escorting officers were theAs contin- Mitchell manner. belligerent and abusive, JR became burglars, juvenile JR he escorted Anderer to observe ued a most acted out and loud, and obscene no time that at car,, and testified man- obnoxious” “extremely strange and juvenile. Anderer strike witness did he ¶ of presence Aff. 10. ner. Cook that he: in his affidavit states Mitchell Anderer, JR and Cook Logan, Officers way step every while [WJatched of screaming [obsceni- and “yelling began taking to his [JR] was Anderer Officer commands, and ties],” the Officers’ ignored Anderer squad as] Officer [and car [police “accus[ed] time during this seat the back into [JR] guide[d] in the but- hitting him Jeffrey Cook] An- (Mitchell)] saw [he squad, Officer attempting flashlight and tocks JR, secur- the door close seatbelt derer ¶ 10-12, (empha- Aff. him.” Cook rape squad and ing back ¶ 10. When added); Aff. Logan sis see [ajt [he] time did no[] ... Officer . mainland the Marina reached juveniles any abu- or act [JR] strike question- further for were assembled [Instead, toward him... manner sive [Cook] [again] ... accused and “JR ing, ... at all times that] observed Mitchell (while possibly him” rape attempting very professional acted hallu- episode psychotic experiencing JR]. [toward manner screamed cination) “continually ¶¶ (emphasis 14-16 Aff. Mitchell get a he would paid, get he would into the JR positioned Once check, [the he would offi- (Anderer) the Marina left ¶¶ he squad, jobs,” Cook Aff. cers] Precinct the Second directly to proceeded sue he would added),2 implying only a stone’s Station, which was Police from them fired get money for (the trip recorded the Marina from throw Department. obscene at the scene police officers all the solely direct- behavior insolent 2. JR's ¶Aff. 12. Cook ...." indeed, names Cook; "callfed] child at Officer ed only time was two minutes glary arrestee, two sec- highly at best a most onds). ¶ Anderer Aff. 43. When suspect Ander- incredible and Specifi- claimant. car er’s arrived at the station, cally, Officer police, at time, learned from Cook helped unload and noticed blood JR’s mother son, that her that very dripping juvenile’s onto the chin. day, Cook had failed pre- to take ¶Aff. Sergeant 26. When drugs (five Michael Jones scribed or six pre- different approached JR and why asked ¶35. scriptions).3 Cook Aff. And given bleeding, JR continued pattern type false of drugs prescribed JR, accusations and ain flippant and investigators offhand were well aware that at least (while manner laughing and joking with two of those drugs, the ones Cook recog- children) the three other “point[ed][at] nized, Of- psychiatric used to treat JR’s ficer stated], disorders,4 Anderer [and ‘[t]hat officer and behavioral Moreover, me,’ hit pointed then at [the other JR’s mother made it clear to the officers officer,] Cook stated, ‘that officer that these prescription drugs were vital to ” raped me.’ Id. 30. Upon ques- further her son’s mental well-being, and she urged tioning, in presence and of Sergeant the officers to “release[ from ][him] custo- Jones and Officers Cook and dy JR as soon possible” in order that he “ voiced his claim that Anderer ‘hit [him] might ingest his medication immediately. ” put when he [squad] [him] in ¶ car.’ Cook Aff. 34. Considering JR’s out-of- ¶ Sgt. Michael Aff. Jones 6. JR control, went on to belligerent and obnoxious behavior allege that as securing Anderer was him that night and combined with the revela- squad car, in the “he said something to tion that he had (3) failed to take a number [Anderer],” who “told him ‘don’t get smart’ prescribed of his psychotropic drugs that and hit [then] him one time [on] the mouth very day, investigators should have viewed and nose g[ave] [and] him a bloody nose all of JR’s statements with caution and bloody and lip.” JR’s Citizen’s Complaint skepticism. ¶ 5. As if this were not sufficient reason to As the police were commencing their raise a flag red of suspicion and serve to investigation into the burglary charges discount JR’s false and malicious accusa- juveniles (including JR), they tions, the investigating officers, at this became aware of information concerning time, also became aware that this was not JR’s mental problems health and his histo- JR’s first run-in with the law. Officer ry run-ins with the police. fully This Shoman informed IAD investigators by point confirmed that what should have that was JR a known trouble-maker who JR, become juvenile clear—that bur- had proven problem to be a constant in 3. According to Logan, Officer the information hearing, control the voices HR was see “Under- that JR psychiatric was on drugs "put every- standing_Seroquel,” available at thing perspective,” because JR had not http://www.seroquel.com/cons_asp/underse- "right” seemed to him the beginning!,] "from ro/undersero.asp, as well as symptoms such as as his behavior way was out of line.” Cook hallucinations, see "About Medications: Se- ¶Aff. 31. roquel,” http://www.nami- available nys.org/abmed_ser.htm); (which and Adderall fact, In prescribed three drugs JR was hyperactivity treats disorder, taking are used to treat mental disorders: attention-deficit Q A,” see "Adderall XR & (which depression, Paxil available anxiety, treats and http://www.adderallxr.com/adderallxr_adder- compulsive disorder, obsessive see "What Does allxr.html). Treat?”, O'Grady Dr. (psychiatrist) Paxil available at h ttp://www.pax- Report, il.com/aboul/ab_trt.html); Anderer Aff. Ex. Seroquel (which (noting at that schizophrenia Paxil, JR was on treats Seroquel, help Adderall). which would Brown, testified and, ¶ like a.m. 1:30 6. Sho- Aff. Shoman area. her patrol cut “small that affidavit sworn with problems of JR’s account man’s injury” “very minor lip” was lower [JR’s] his own by corroborated further law was being struck with not consistent “was she the officers mother, stated to who by Kathrein adult male.” an son face that her surprised” all] “not [at was added). ¶¶ More- . (emphasis 14-16 Aff. Aff. Cook burglary. arrested had been no ob- over, “there stated she run-ins prior ¶ that JR The fact injuries the cut other than to JR servable law, mother and that with (em- ¶ lip.” Id. [interior] lower arrested, should had been surprised Kathrein had Because phasis question put served to have further photographing experience extensive such story fabricated discredit possibly (she “ha[d] observing abuse victims the officers one each again cause many photographs taken [previously] veracity of question involved battery”) and by victim's injuries caused juvenile. out-of-control psychotic “opinion that the she was because lack of addition, complete hot allegedly injury sustained (not one JR’s face trauma physical being in the struck face consistent bruise) fell abrasion, or contusion, mark, ¶ male,” 16, Kathrein stated id. adult allegations supporting far short “surprised she [when she mouth and nose punched he was allegations to an le[d] learned] David ” Technician I.D. lb. male. a 200 .... officer’s 10:05 at JR Brown, photographed who added). (while in- night that same p.m. interesting convinc- Also, it is most that noted progress) inwas vestigation is barren ing the record to note of body were injuries on only visible any finding any report one even of of and lower (upper his mouth cuts inside two abrasion, type any blood or traces of of nothing more [be] “looked to lip), which bruising, or other evidence scratches of lip[s] dried[-up] pre-existing ... than Anderer’s on either trauma Officer of lips do in just like open that cracked blood, any evidence less much of hands added) ¶ (emphasis winter,” Aff. Brown dirt, tears, on or debris uniform intention- could himself JR and which thor- performed investigators hands — Indeed, 'his teeth. with open ally bit awith hands Anderer’s of ough inspection ’ that, opinion, in his stated Brown insis- Anderer’s flashlight at high-powered by a caused “not were lip cuts inner oppor- ample had tence, furthermore ¶¶ Interestingly, punch.” Id. Smith clothing. See tunity inspect his informed subsequently was Brown Indeed, ¶ it 9; Aff Report arrested just had [Anderer] “officer requested who himself [JR],” I.D. Techni- punching allegedly for of pictures take Technician I.D. an [police] those “told cian Brown they were the fact to document hands kidding, [because they must cut, injured marked, nor bruised, neither pictures [the] taken (Brown) Bust] ] ¶ This Aff. 81. any manner. injuries on JR there kid [JR] by IAD rejected summarily request ” added). ¶¶ (emphasis 14-15 .... Cowan, had ar- who Mercedes Detective Station Police Precinct excess at the Second Kathrein, had in who rived Kara Hoerig; Lt. with earlier minutes a few experience just MPD years with the nine hands Anderer’s however, examiné she did specializing years three more than con- flashlight when high-powered MPD, awith pictures took on the Tech while I.D. tech.” photo “need he didn’t cluding April morning of of JR ¶ Id. at 85-98. Evidence suggesting that close of her alleged investigation. At this Anderer’s pristine hands were in condition time Hoerig recommended to Chief Jones is consistent Sergeant Jones’ state- that Anderer be arrested for abuse, child ment to Detective Harrison when he stat- based exclusively upon findings, her as set ed that he any had “s[een] no evidence forth in her affidavit testimony as follows: physical fight JR;] [between Anderer and (a) “JR years old”; was 12 ” [any] injury juvenile [n]or at the (b) “JR was injured at the time he arrest scene. Jones Aff. was turned over to Officer Anderer to be conveyed to the Second District addition, station in investigators squad”; were aware5 bystander, that a (c) citizen Mitchell, James “JR was in Anderer’s custody exclu- was present on the scene sively at the time the while conveyed to the Second incident allegedly place, took station”; and was will- District ing, able and provide (d) available to exonerat- “JR was handcuffed in the back of ing testimony delineating the professional- Anderer’s squad when he was con- ism that Anderer exhibited veyed while directing to the Second Station”; District to, JR and placing in, (e) squad car. injuries “JR had consistent with be- However, unexplained, reasons inves- ing hit in the mouth when he arrived tigators, knowledge who had that Mitchell at the Second District [sic]”; station Anderer,6 would exonerate neither con- (f) “JR IDENTIFIED OFFICER ANDERER AS in-person ducted an interview Mitchell THE POLICE OFFICER THAT HIT HIM IN THE nor pick up did even bother to MOUTH phone any questions to call and ask (g) how explain “Anderer did not prior him at time Anderer’s arrest injured Why? confinement. (h) “Anderer did not report use force

Completely disregarding involving JR or any wealth of incident involving JR, factors mitigating against any injury reliability, JR” trustworthiness and honesty, ¶ well as the Hoerig Aff. 16. However, at least four lack of even a proof scintilla of anywhere officers, not including (Cook, Sho- in the record that JR injured had been by man, Centeno, Bohlen), and two I.D. Tech- Anderer, Lt. Hoerig determined (Kathrein there was nicians Brown), and and lay one probable cause to arrest Anderer at (Mitchell) witness came to conclusions that 5. Both and Mitchell state in their not wasted at the scene aof investiga- affidavits that informed numerous MPD making tion out affidavits swearing and to the officers investigators (at and three, least in- particularly this, in a case such as in same— cluding Sergeant Jones and Detective Harri- which investigators invoked a jet-speed son) of information, Mitchell’s contact and procedure, investigating proceed- and Anderer furthermore informed Detective Har- ing to arrest Anderer with remarkable haste. exactly rison scope nature and of the Nevertheless, all of the observations were information Mitchell could provide namely, — made contemporaneously with the events de- that place Mitchell “[had] watched [Anderer] tailed herein squad and all of the provided JR affidavits [testify] into the and could that [he] th[ej[juvenile].” did court and not hit contained in the record were Anderer Aff. 77 (emphasis added). by duly submitted sworn individuals under oath, Furthermore, since and each majority signed, statement has claims to been “puzzled” be my by reference to sworn some and compliance notarized in with the in affidavits (noting record that these regulations affi- rules and thereof and the MPD. davits "signed were arrest”). after Anderer's Opinion at 1050 n. 9. I must note time is infra, 1069-70, 6. See pp. 1074-75, 1081-82. without bail released Anderer was Hoerig’s. contradiction stark having any day without the next noon falsely reported Hoerig also Indeed, against him. brought yet charge injured, “serious[ly]” criminal had JR later, week in the first days evaluat- sixty have JR fit to Some neither saw Hoerig convey nor to notified 2001, Hoerig] was professional “[Lt. medical June by a ed he could Attorney so that Reddin hospital Jon to a juvenile District Deputy rules (as involving the MPD necessary [JR] and if ... Anderer treated the case would law and processed8 Wisconsin ON ... BASED regulations and be no would JR had if fact to do her required LACKED CASE THE FACT THAT THE See, e.g., injured). “serious[ly]” MERIT,” fact, and, truly been PROSECUTABLE accompanying- note p. 1082 case of the prosecution criminal infra text. or ordi- any misdemeanor without closed Jones of felony, Chief Hoerig violation, informed less criminal

After much nance a.m., without recommendation, 12:30 An- Officer against her brought charges being n obvious into JR’s investigation 2-3 any Aff., 1001 at Ex. Hoerig derer. his- or medical mental troubles self-evident Thus, Hoerig Lt. on no- (of investigators were tory which rebuffed were both Jones Chief to solicit state- attempting tice), without bring refusing decision Deputy DA’s (Centeno or any other officers from ments Anderer. charges against any to make had refused Bohlen —Cook Dis- Deputy despite On June as did representation, without statement outright refus- Reddin’s Attorney Jon trict did not said she had Shoman crime, any Chief with charge Anderer al to and Anderer between any fight witness result, fit saw Jones, not satisfied in her problem constant awas and that JR in- the criminal re-open and continue (Mitch- area) witness citizen or the patrol malicious false and into vestigation consid- even scene, without ell) at the own on accusations DA or his counsel seeking the ering Chief, offering this time At initiative. speed went full Jones 'Chief Deputy,7 for excuse, the reason stated a hollow Smith detectives ordered ahead and of Anderer harassment continuing his under im- place Anderer and Harrison make sure he “wanted then Anderer was mediate arrest. investigating ... complete jail confined booked, fingerprinted Jones missed facts.” (and a malicious 12 hours nearly ¶ instructed then Hoerig 10.9 Lt. Aff. of a fabricated) abuse physical charge parties all to “re-interview by Jones Chief minor. this again advocate we that, place, case had taken to the fact again attention call 7.We aof the arrest order that procedure in Driebel, prac- desirable more in we noted cor- officer, complete vacuum a spite of involving investigations during criminal tice evidence, id. may be averted. roborating officials is for MPD law enforcement of the district representative with a to meet action, this- for explanation 8. formal proceeding to attorney's office before a bringing of motion is prosequi," “nolle at investigation' and, any under — to prosecutor part a judge on a before acting prosecutor time, "inquire whether proceed- (cid:127) (cid:127) (cid:127) [all] "voluntarfily] withdraw!] charges press likely to is independently charge.” See Black’s ings on criminal Law Driebel, F.3d against the officer.” Ed.). Dictionary simple "[a]n reason is 13. This n. n likely charges are rarely made unless arrest is Jones, by interesting Chief to note It Although Driebel brought.” Id. to be admission, the case forwarded rise, own gave this events after the decided involved Hoerig Aff., case.” See refusing prosecute case, meritless added). Ex. 1001 (emphasis However, McCann provided Jones “with a copy of a summary her report after completing confidential memorandum by written ... the second Anderer investigation, Hoerig Reddin dated id., 2001,” June in which stated, upon completing interviews, these Reddin stated: that she had failed turn up “[any] infor- I have [JR], Anderer, interviewed offi- mation” to merit “further prose- criminal cers Janice Shoman, Jeff Cook and Jeff cution” of Anderer. Logan, and civilian James Mitchell. Based on those

Chief Jones —in I interviews have con- obvious last-ditch ef- 'prove cluded by that we fort to cannot how criminally prosecuted (with injuries whom incurred, [JRJ’s all his authority as the Chief of Po- consequently lice of large [I department) conclude that] went over the charges criminal head can be Deputy District sustained.... Attorney and Whether now struck personally requested or he in- that the District injuries flicted Attorney himself, by himself Mr. E. McCann, Michael smash- ing his face review into something and re-evaluate back Deputy’s Chief (Jon Reddin’s) the car will probably prior never be decision not known prose- cute; now, anyone (second but & independent) [JR] and Anderer. I fourth investigation cannot say any juvenile into the assurance what hap- malcontent burglar pened. I it probable, believe more troublemaker par- JR’s fabricated flippant allegation ticularly in my view of knowledge ensued. After in- prior complaints dependently reviewing and considering all [JR], Anderer did information, strike It is entirely McCann also refused to pursue conceivable, however, any given criminal charge, agita- [JR]’s and “informed tion, problems mental Attorney’s [Jones] that the District and stated inten- office change tions to prior get no-charge money would not out incident, its of this deci- ¶ that he sion.” Jones inflicted injuries Aff. 12 added). to himself. In explanation of why he chose to uphold Aff., Jones Ex. 1002 at 1-2 (emphasis add- Deputy (Reddin’s) DA’s ed).10 prior decision Thus, after Jones personally re- Deputy District Attorney Jon Reddin with- his affidavit: "this [wa]s only the first and having out assured himself that he had a time [he] ha[d] any [ever] seen chief complete investigation report before him—for restart a hafdj it after even he himself was purportedly concerned Attorney’s been closed the District office." investigators that his might have any "missed ¶ DeBraska Aff. 17 (emphasis (In facts” reality, this is an admission Chief Jones that he ordered the arrest of one of his I have reviewed complete file in duly sworn spite officers in of the fact that he the record and realize that he has a less than had not conducted complete through exemplary employment history including oth- investigation). Jones Aff. 10. er instances of alleged suspected misconduct case, during However, his career. Chief Jones's I unrelenting am of the insis- opinion tence again on that it reinvestigating unnecessary JR's and claim for a ill-ad- third vised for time—even Reddin police any after the initial make inves- reference to tigation, past (suspect) as well as Deputy complaints against the District Attor- Anderer. I ney's investigation, failed am any alleged confident previous uncover sufficient complaints prosecute, be, evidence to light and should not, in Deputy of not and were a factor Attorney District previous Jon Reddin's Reddin’s prosecute ex- decision to pros- or not to press prosecute (at refusal to best) ecute understood, Anderer. do, Reddin —was as I

most unusual occurrence. As police any former incidents contained pre- in Anderer's officer, DeBraska, Bradley president now the complaint vious file should not have been Association, of the Milwaukee Police considered, stated in and absolutely bearing no force, occasions, finally and succeeded in from the separate on two quested, 17, Anderer, July on having terminated against charges filed be criminal officer Mil- enforcement chief law the (two investigations by Given four E. Mi- Attorney County, District waukee Division, one the MPD’s Internal Affairs McCann, Deputy Chief Jon and his chael Attorney Red- by Deputy District Jon charges merit to the found no Reddin both din) (who say not concluded that “he could Anderer. prosecute and declined happened”) assurance what any with 2, 2001, clear his probably to July by On of the matter Dis- an additional review his fami- and to save reputation, Attorney name E. Michael McCann failed to trict humiliation, disgrace and further ly any type from to sustain of uncover evidence against filed a lawsuit Anderer felony charge Officer misdemeanor criminal or Jones, com- IAD and the MPD considering per- Chief against claims investigated JR’s mand officers who alleged blow to son alive witnessed (Lt. Mercedes Cowan Hoerig, Detective unruly other than the JR’s mouth nose Grisham) Charles Deputy Inspector himself, juvenile Jones’s psychotic Chief rights. unrelenting of his constitutional violation insistence on continued retaliatory man- (possibly getting in a Chief Jones Anderer off force ner) charge against of the pursuing the new commander directed a rules violation 6, shocking IAD, July on Settingsgaard, Steven dis- was at best a most (a 2001, play mere 96 hours and bad continued harassment filed after of lawsuit, timing judgment. worst, a month approximately At of (a Attorney bringing charge implies E. Michael District after mere 96 this against not to institute final decision McCann’s suit hours Anderer filed after Anderer) example to insti- MPD), charges criminal re- constituted an this of only reflecting poorly Anderer al- charges against tute internal on the taliation k, Department, Rule he violated MPD leging that but on each Chief of purported partic- cm the basis the MPD who Section individual 2lk.55.0011 officers of April unnecessarily lightning-like, ipated speedy, care- struck JR in this spite investiga- This, pre-determined less, Lt. and almost fact investigation subsequent Hoeirg’s tion, and two in- termination second arrest and any case, questionable investigations by dependent the D.A.’s In decision. of- Attorney during by Deputy fice, Red- District conduct one fil- regula- Attorney ing rules and E. the internal MPD District din and the other resulting charges, himself, Anderer’s dis- uncov- tions Michael McCann failed suspicion missal, support a dark cloud casts er evidence which would well as the charges any initial arrest as over Anderer’s bringing kind. proce- and orchestrated charge, entire contrived child abuse Chief back-up internal strengthen only dure, Ander- serves to unrelenting again once exhibited his Jones internal investi- that the MPD’s er’s claim to remove Officer determination manhandling pris- unnecessarily striking or issue. United States on the Cf. (7th Cir.1997). Jerez, mistreating manner shall them in v. oner or subject A member of be to dismissal. reads: Rule Section 11. MPD 2/445.00 any police having supervision police force strictly are for- force "Members office, prisoners building, to which bureau or speak argue prisoners, bidden to detained, conveyed are or in which are in ob- unnecessarily, to address them them proper and hu- responsible for the shall language, to threaten profane scene or prisoners.” of such mane treatment guilty of force Members of the them. 1064

gation the matter into was unreasonable person dent in believing suspect has ” lacking good-faith, and that his committed or is committing an offense.’ probable arrest was not based on cause. Mounts, United States v. 712, 248 F.3d 715 (7th Cir.2001) (quoting United States v. Analysis II. Gilbert, (7th 1163, Cir.1995)). 45 F.3d 1166 56(c) summary judgment The Rule stan Keeping in mind that the resolution of a provides granting summary dard for the “typically question falls pleadings, depo judgment only when “the province jury,” within the Lanigan sitions, interrogatories, answers Village Crest, v. East Hazel 110 F.3d file, together admissions on with the affi (7th Cir.1997) 467, (emphasis added), 473 it davits, any, genu show that there is no if appropriate is court to conclude that ine issue as to material fact probable cause exists as a matter of law moving party judgment is entitled to a only “when THERE IS NO ROOM FOR as a matter 56(c) law.” Fed.R.Civ.P. A DIFFERENCE OF OPINION concern- added); Corp. see also Celotex (emphasis ing the facts or the reasonable inferences Catrett, v. 317, 322, 477 U.S. 106 S.Ct. to be drawn from them.” Id. (1986). 2548, 91 L.Ed.2d 265 Said differ ádded). ently, summary judgment only proper case, judge this the trial stated: where “a rational trier of fact [could not] party,” find for JR’S STATEMENT ALONE IS AN non-moving here An- derer. v. Northwest Indiana INSUFFICIENT BASIS FOR PROBA- Wolf Soc’y, Symphony 1136, 250 F.3d BLE .... CAUSE ANDERER.RAISES Cir.2001). paramount Of importance SERIOUS ISSUES CONCERNING this case is that reviewing propri “[i]n JR’S BY CREDIBILITY SHOWING ety of a summary district court judgment THAT JR MADE ALLE- FANCIFUL. ruling 56, under Fed.R.Civ.P. we review de GATIONS AGAINST ANOTHER OF- novo and adhere to the same standards as ALL, FICER. AFTER IF JR GOULD , the district court set forth its memoran MANUFACTURE ONE OBVIOUS opinion dum and order.” Dykema v. OFFICER, LIE AGAINST AN HE Skoumal, (2001) (inter MIGHT ALSO MANUFACTURE A omitted) nal Anderson v. MORE PLAUSIBLE LIE AGAINST A (citing citations Inc., Liberty Lobby, 242, 249, 477 U.S. DIFFERENT OFFICER. WITHOUT (1986)). S.Ct. Also, 91 L.Ed.2d 202 MORE THAN JR’S WORD. THERE- critically it is important, in the instant FORE, ISSUES OF FACT EXIST AS case, to recall that “[t]he evidence of the TO WHETHER A REASONABLE OF- believed, non-movant is to be and all FICER WOULD HAVE CONCLUDED justifiable inferences are to be drawn in THERE WASPROBABLE CAUSE TO Anderson, [Anderer’s] favor.” (citing : ARREST ANDERER... 2124). 255, 100 U.S. S.Ct. Jones, Anderer v. 01-C-0668, No. at *6-7 A. 2002) The District (E.D.Wis., Court’s Determination Sept. (emphasis add-

that Probable Cause Existed ed). statement, As evinced judge trial found no credence in JR’s alle- It is well-settled that a law enforcement gation, judge as the properly recognized has cause to make an ar- that JR’s propensity demonstrated only when ‘“the facts and circum- rest lie rendered his claim against stances within abuse knowledge [his] and of which reasonably suspect untrustworthy. Thus, [he has] trustworthy in- the tri- formation sufficient to pru- that, [are] warrant a al court concluded “JR’S STATE-

1065 experi- that been suggests JR had Id. “fresh” UNRELIABLE” [WAS] ... MENT days and hours bleeds in the encing nose at *9. thus, and, to his arrest leading up single phrase of this clear spite noth- does presence of blood shirt court findings, the district of statement . theory that Anderer ing run to ultimately an end around advance took judge do a proceeded to juvenile. facts the established struck the that holding somehow flip-flop, curious Furthermore, court although the district to arrest Ander- cause probable there the fact majority made and the much Specifically, facts. of other light er on JR’s observed blood that witnesses speculative its court anchored district scene, Opinion see shirt at the finding on “THE BLOOD made clear that when it be should ... AS AND SHIRT JR’S FACE ON the Ma- [at the officers “first observed JR AN- THE TIME IN WHICH AS WELL wearing a hooded rina], juvenile] was [the SQUAD IN HIS DERER WAS ALONE writing and jacket Japanese WAS JR, INA- ANDERER’S AND CAR WITH ¶ (em- Logan Aff. ZIPPED CLOSED.” JR’S NOSE- TO EXPLAIN BILITY jacket added). The phasis that fact *8 Id. at BLEED.” stated, zipped closed, Logan ex- circum- that these' trial court The found why plains observed none the witnesses prudent a given stances “would have nosebleeds, probably past blood, most from to arrest Anderer.” probable cause Therefore, Marina. shirt at the on JR’s disagree. I thereof) (or the lack do such observations that a consideration opinion I of the am nothing absolutely to corroborate JR’s to available totality of evidence of the abuse, contrary the district claim of ar of Anderer’s at the time investigators majority’s See contention. court “pru to convince a rest would failed (“both [Sgt. Jones Opinion at offense” had been “an person” dent was not stated that JR JR). Shoman] Officer (that had hit Anderer committed turned time he 715; bloody at the had Mounts, see also Beau F.3d at Noblesville, custody”). sole City over to Anderer’s champ v. Cir.2003). infra, As discussed “inabili- Also, to Anderer’s any reference arrest, never to Anderer’s prior (refusal) sug- the nosebleed ty” explain during the time claimed that was struck not have judge trial must gests alone with frame he was right, as a sus- of Anderer’s been aware Also, way to the station. squad car on offense, protection pect of a that, judge, although the trial note I must to the United Fifth Amendment under the decision, the blood on JR’s cited him to entitles which States Constitution testing abuse, no shirt as evidence might be give a statement refuse verifying performed stains ever proceeding, against him in criminal used Indeed, I.D. Techni blood. were fresh right employment contractual nor of his that the blood stains did cians stated repre- a statement without not make clothing fresh” and “JR’s look “real Manual, An- See MPD present. sentative appeared soiled and coat had been of, Aff., is barren Ex. B. The record derer days.” Brown several worn for have been by no possible explanation there ¶ ¶ 16; Aff. Aff. Kathrein he believed why and how trial judge, “clothes stating that JR’s agreed, could a statement give refusal to very looked worn.” dirt and ground-in foundation prong used as fact that Aff. some finding cause. appear did not on JR’s shirt the blood 1066 Credibility

B. Lack of [BY “COMPLAINT WOULD ITSELFJ LEAD A REASONABLE OFFICER TO majority woúld like affirm us to the SUSPICIOUS,” BE in those cases district court’s and unfex- unfathomable “THE A OFFICER HAS FURTHER plained grant summary judgment DUTY TO INVESTIGATE.” Beau Defendants, that, on the long basis “as as a reasonably champ, added). 320 (emphasis F.3d at 743 credible witness or in victim As this Court police explained forms the someone has commit Hebron v. (7th ted, Cir.1994): crime, Touhy, or is committing, a the 18 F.3d 421 officers probable cause place alleged the Sometimes or a about information from ” culprit under .... arrest at Opinion 1049 person claiming to be the victim of added) (emphasis Spiegel v. (quoting crime a would lead reasonable officer Cortese, Cir.2000)). suspicions, making further investiga- I forced disagree am majority’s the tion prudent and,, because the “reason- — unsupported contention that JR awas ableness” the fourth amend- .standard “reasonably juve credible” witness. The ment links the obligation constitutional nile, JR, under the facts and circumstances conduct, of prudent standard herein, set forth could not be classified as must do more. reliable or trustworthy, much less reason added). Id. at 422-23 There Thus, ably credible. what majority fore, I point must out that while fully I fails take into is that consideration “ understand that ‘the law does not require fictitious claim made 12-year-old officer conduct an incredibly juvenile in this' case—THAT OF A PSY- detailed probable CHIATRICALLY CONFUSED DELIN Spiegel, stage,’” 196 F.3d at 724-25 QUENT JUVENILE ACTING OUT-OF- (quoting M. v. Conneely, Gerald F.2d CONTROL WITHOUT THE BENEFIT (7th Cir.1988)), certainly in the OF HIS PRESCRIBED PSYCHOTIC investigation of a situation such as the one MEDICATION —was found the trial us, presented to which could and did result judge [TO “NOT BE] SUFFICIENTLY in a grave injustice (and arrest —Anderer’s RELIABLE OR TRUSTWORTHY.” And his ultimate termination from majority, unlike the I refuse to cast aside force), an investigating officer “SHOULD pay no heed to that portion of the trial CONDUCT FURTHER INVESTIGA- judge’s specific finding that JR was NOT a especially TION” when he or she is aware reasonably witness; (lack credible for this certain or about a of) “information from credibility determination by the trial putative victim crime [that] WOULD judge is well established record. LEAD A REASONABLE OFFICER TO Based upon the facts and circumstances BE SUSPICIOUS.” 724 (emphasis herein, set forth imprudent it is and most ill-advised for majority rely on the The record establishes that the juvenile’s investi- complaint highly and such ques- gating possessed more than ample tionable facts surrounding JR’s statements information that would to conclude that and should have led cause existed to competent officer, well-trained and Officer Anderer. Opinion at exer- that, cising I judgment understand reasonable upon based generally, “complaint single knowledge of a possessed, he or she putative witness to be sus- picious victim alone generally [is] ... sufficient to and most young cautious of cause,” establish IN allegation This, EXCEPT fabricated of abuse. THOSE turn, INSTANCES WHERE THE should have mandated that the offi- Marina, good-faith burglary, perform the scene At go cers forward unbiased, by Officer apprehended after JR had investigation in an fair probable Cook, “screaming yelling and satisfy began he objective to effort attempting rape accusing of However, [Cook] no evi- and there is cause standard. ¶ continued Aff. 11. JR also him.” Cook IAD officers were that in the record dence of obscenities and threats his objective; barrage much less suspicious, or cautious * *ing pig a “f* and stating Cook was step of simple took the even for never Aff., Hoerig Ex. going get you.” I’m rec- juvenile court contact checking JR’s after had been again, at 25. Once JR JR’s fabricated ord, accepted but instead Police above, to the Second Precinct transported As noted value. allegations at face threats, Station, point- accused Cook again JR and obscenities shouting JR was stating raped “that officer very ing at him in out-of-control acting an as well ¶ However, once Aff. at inci- me.” Cook night of the manner on strange allegations investigation into off-handedly re- dent, in for addition commenced, no time against had hit him marking that Anderer stated, ridiculous repeatedly repeat did' JR this absurd and mouth, JR front In- police officers, investigators. IAD rape allegation to number other Offi- stead, (possibly that Cook raped only stated them JR him halluci- had cer Cook with a repeatedly “nudged on his buttock nating), that he inferred flash- money”) get add- (“get Report light.” the ar- Smith sue would ed). (that had including Cook resting officers, An- statement This Cook buttock) was in all derer, “nudged” him in the JR mentally disturbed The fired. “obvious more “true” than (who med- likelihood JR’s psychiatric his ingested not had him, it does raped to lie” that but a clear motive Cook day) had ication that that “JR majority’s conclusion support to “harm lie in order up a malicious make story officers the same police told several in trou- and Cook get others” and ” Moreover, if even .... at 1050. Opinion con- ble, unworthy of belief and thus was prior rape his statement repeated had against Cook JR “rape” allegation cerning his than investigating officers—rather to' the against Anderer. allegation and his abuse juvenile’s will- found, credibility, the “if restore his judge aptly Again, as the trial specious repeatedly ingness make a lie one obvious could manufacture (which against police rape might officer, against claim also officers manufac- judge as an “ob- against court termed plausible district lie ture a more differ- lie”), anything, served would have Jones, vious v. No. 01-C- ent if officer.” credibility 2002) (em- con- diminish JR’s (E.D.Wis., Sept. at *7 further cerning child abuse alle- earlier, Í concomitant As I stated phasis gation. part wholeheartedly agree with finding and statement court’s

district very powerful evidence As for the short does fall far abuse allegation immediate JR was presently, re- good-faith standard fulfilling the been, undergoing treatment past probable cause. quired to establish which problems and behavioral psychiatric myriad of a prescription necessitated Also, that “JR majority’s contention that he had drugs story,” psychotropic officers the same told several —and day medicine on take inaccurate and mislead- is Opinion failed (the participated very day he contrary, question reveals the ing; for the record allegations burglary, levied the boat truthful nor forth- i.e., neither that JR was false and An- against abuse Cook rape and investigators about IAD coming with the of derer, harm numerous threats made against Cook. rape allegations previous (as arresting and some rest department’s is the modus oper- up bloody how ended with a nose and andi for an investigation alleged into an it) causing accused a crime with accompanying serious conse- officer of flag should have raised the red of caution quences), confinement and ultimate dis- suspicion for investigators major charge. —the ity says only that “the fact that the investir majority’s reliance Spiegel gating psychiatric officers knew about JR’s likewise inappropriate, for complainant medication not ipso negate does facto in Spiegel was found to be reasonably credibility require the officers to further credible, despite “inconsistent” statements investigate JR’s history medical to sub 1050; to officers. Opinion See Spiegel stantiate or refute claim by his of abuse Cortese, v. Cir.2000). 196 F.3d Anderer.” Opinion says 1050. No one By contrast, us, the case before now, time, or at any this one fact plethora police had available to them a alone would even be sufficient to refute the evidence, beyond merely that of “inconsis abuse claim. Surprisingly, in an attempt tent” authorities, statements establish assertion, to support their the majority ing beyond doubt that JR was unbelievable relies on this holdings Court’s in Driebel v. (1) he had untrustworthy: made City Milwaukee Spiegel v. Cortese. allegation false of rape “obvious lie”— —an Opinion See at 1051-52. But Driebel is against Officer Cook at the same time he wholly (unlike inapposite, for in that case (2) abuse; accused Anderer of he had ex case), purported instant victim’s pressed a clear unambiguous intent to allegation that he was struck a police sue and money make off of his arrest and officer was bolstered “numerous wit (3) to “have the arresting jobs”; officers’ nesses who g[ive] [were allowed to] [more supposed was to be ingesting five or six corroborating than] sufficient testimony to prescription drugs each day including — establish that [the may officer] have ” (Paxil, Adderall) three Seroquel, and which Driebel, committed a battery .... treat mental and behavioral deficits added). Yet, F.3d at 644 (emphasis in this (schizophrenia, generalized anxiety disor case, not living, one' breathing individual der, etc.) disorder, attention deficit —and allegations corroborated JR’s of abuse. he had not taken his medication day; ARE REALLY WE TO BELIEVE THAT (4) he a history of delinquency, .had was a ANDERER, ALL FOUR OF HIS FEL problem” “constant on Officer Shoman’s (WHO LOW OFFICERS WERE ON THE beat, and furthermore his mother was “not SCENE) AND MITCHELL ARE ALL , surprised” that he was burgla arrested for Moreover, LIARS? there absolutely (5) ry; and there was not one noticeable nothing to interfere with the MPD and sign of physical abuse on body, his much Chief Jones from waiting days, a few less evidence that would weeks, suggest he even while pursued their in punched nose, ie., vestigation face or gathered sufficient evi marks, there were bruises, cuts, dence about no allegation. At very abra least they sions or should have lacerations on boy’s consulted with face or independent nose, except senior law enforcement the two officer small cuts on the ie., of the county, the D.A. or inside of repre lip; which more likely were sentative, taking before the most from serious sources other than an alleged punch step of subjecting Officer Anderer to ar- from a 200 lb. male to the facial area.12 I majority's 12. The characterization of logic JR as suggest defies per- that a reasonable having "split upper lips” highly lower and is son would conclude that JR had been Furthermore; Opinion inaccurate. at 1049. it not. I am therefore at I think of this very nature statement? that the convinced am majority’s conclu- understand the loss to led reasonable have “a should evidence Hebron, reasonably credible that JR sion suspicious.” to be further these combination witness at 422-23. The fac- totality tors, necessary, which allegation in their into when considered credibility undermined find- severely sharp contrast should and/or my validity judge, of JR’s fabricated trial as well destroyed ings statements, Opinion as reflected at 1049- appraisal. malicious personal finding previ- “reasonably wit- (citing credible the district court’s standard, [Officer allegations refuting “Andererfs] “fanciful ous ness” concerning raised “serious issues not a victim Cook]” that JR was credible claim[ ] credibility.” Jones, No. ....”). Anderer v. 2002) (E.D.Wis., 01-C-0668, Sept. at *7 Corroborating JR’s Lack of Evidence C. of Abuse Claims aware, that agree, I am well While clearly photographs in the portrayed As offi- investigating require does not the law alleged after the assault immediately taken that a every suggestion cers “exclude testimony affidavit well as the reliable prior telling the truth” victim is (Officers Lo- JR officers that examined of arrest, F.3d at Spiegel, 196 making an Kathrein), Brown and and I.D. gan Techs added), and circum- the facts any nor scratch or bruise wasn’t one there certainly would most of case stances abrasion, or on contusion blemish type of suspi- officer to be a reasonable have “le[d] face, or mouth. nose outside the JR’s claims. cautious of his and most cious” majority attempts to this, the spite In Under F.3d at 743. Beauchamp, 320 judge’s specula- trial the credence to lend conditions, offi- investigating where these (ie., statement that “J.R.’s tory statement of an officer position the cers'knew that him was consistent Anderer hit by Depart- employed who shirt”). on face and force) blood J.R.’s (3$ years service on ment on evidently relies majority doing this the claimant was and that jeopardy, shirt, dirty and worn bloody nose JR’s malcontent, incorrigible, out-of-control of his the inside two cuts on (12 as well as years age), juvenile, JR psychotic at 1049- lip, Opinion see upper mouth may best be characterized made what who (otherwise 50, validate somehow accusatory state- offhand flippant and unbelievable) relieve the story and by Anderer had been hit ments a reasonable performing from Cook; real- majority can the by raped delusionary claim validity of his into the investi- grounds that ly argue on legal majority com- doing, In so abuse. duty to do more have a did not gators exonerating all any and casts aside pletely juvenile into investigating in the when, at a table juveniles were seated although other there punched face watching Logan "was juvenile's garage and while on the inside were minor cuts cuts, table, laughing mouth, they were all corresponding juveniles at the were no there lacerations, contusions, JR) There- swelling (including or other their situation.” about outside, face, fore, majority by implication impact despite sign in a claims or that JR made his nose mouth. manner, actually JR was and reflective sober laughing, joking, boister- continuing just just JR before Logan testified 13. Officer he im- behavior i.e., and out-of-control ous at Anderer allegation, pointing made his me," plicated Anderer. JR and the stating hit "that (Mitch- testimony from citizen testimony witness by affidavit submitted the I.D. ell) (two and six hand, of whom Techs’ out of purported on the basis clearly they stated did not see any physical ID “one tech photograph did not JR JR, confrontation between. Anderer and until Anderer had already been ar- after and four rested, of whom stated no such confron- and so would have had nothing to place). tation took Opinion at 1051. contribute cause determi- majority The also somehow sees fit to nation prior to Opinion his arrest.” ignore the affidavit testimony sworn inaccurate, This statement is also exhibits (photographic JR), renditions of for the fact remains I.D. Technician Opinion see by the submitted David Brown did take the photographs of trained and knowledgeable prior I.D. Techni- JR well Anderer’s -photo- arrest — cians, Kathrein, David p.m. Brown and Kara graphs taken at 10:15 two and —a full who lip concluded that JR’s cuts were hours Anderer’s 12:35 a.m. half before likely most due to “a pre-existing condi- arrest. majority The also criticizes the appear tion” and that did not to be time during frame photo- which these punch ¶ “caused ..Brown Aff. graphs were developed by stating that the 6; see also Kathrein Aff. and which “photographs [of ... JR] were not devel- instead could likely more have been oped caused until Opin- arrest.” after biting lip his inner aas result of ion at 1051. question naturally arises: a dried out mouth condition and a canker are photographs usually taken and devel- Indeed, oped sore. Brown claimed—and we very at the scene of a crime of this accept must as true his (at statement —that I nature? think not least not before injury “th[e] sowas minor that it was not the digital which, advent of cameras at the worth taking picture time, a of except for the officers). were not by police carried purpose being of able identify [to] in the Furthermore, although photographs the future the exact extent of alleged inju- the were not developed post-arrest, until the ¶ ry [JR]” referred to. Brown Aff. 6. majority’s argument they that are thus maintained, As Kathrein the “small cut irrelevant is red herring.14 Opinion See appeared lip [to a]be bit[e] [to the inner] at 1051. These photographs are relevant ” sore, or ... a canker rather than an the cause inquiry because the injury by “punch caused to his face.” developed negatives the support determi- ¶¶ 15, Kathrein Aff. 16 (emphasis nation of ID Technician David Brown that

The majority attempts to lip cast the on cut JR’s inner was the result winds and dismiss “pre-existing the photographs and a such condition” as a 14. I take issue majority's with the description light of all of the other factors which made photographs statements (such tak- (a) JR made an unreliable witness as: en the I.D. Techs "irrelevant behavior; (b) facts which his out-out-of-control his failure bearing have no on what medication; (c) officers reason- his take propensity ably they knew when arrested up allegations officers, i.e., Anderer.” make about other 1050-51, Opinion at n. Although agree 9. stating him”; I "raped (d) that Cook that at the bruise, time of arrest may scratch, these facts lack of one abrasion or lacer- own, irrelevant on their nose) do demon- on his face ation or pic- ID Tech’s strate that the IAD's assessment of the evi- give tures and picture statements us a clear dence in this case was unreasonable and that what night, the situation was that and the further investigation was warranted shocking good-faith because lack of judgment alleged "injuries” JR’s were not serious IAD proceeded used when the to arrest An- enough allegations to make being hit utterly on these derer baseless and unreason- a 200-lb. 1066-67, charges. reasonable. See su- able pp. 1071- infra addition, pra pp. 1069-73. viewed when 1086-88. lip” arresting Opinion Anderer.” 1050- “dr[iedup] thus sore” and or “canker ” by punch. appear I make that I am not Might clear to be “caused not did ¶¶ 6; investigating Aff. arguing Kathrein that Aff. Brown recog- Furthermore, majority fails much an any duty, under less obli- were determination David Brown’s nize Technicians for to ask I.D. gation, not consistent “injuries” were JR’s reaching their deter- opinions their before well before Ander- made abuse with injuries that the were or were mination (at prior to two hours p.m., er’s Instead, Anderer ar- by Anderer. caused arrest). Thus, pictures both (and agree) I the observations gues arrest, after the before and lips of JR’s QUALIFIED per- who EXPERTS these I.D. Technicians testimony of the observed, photo- sonally witnessed them, conclusion that support took who lip lacerations after graphed alleged JR’s injuñes with a were not consistent and, spe- more at the he arrived station — and, man punch a 200-lb. to the face.from opinion that the condition of cifically, their grave thus, Jones’s doubt casts Chief injuries were inconsistent with the lip decision to command officers’ relevant in de- allegations of abuse—are place abuse and under arrest Hoerip’s termining assess- whether Lt. forthright state- Hoerig’s less than Officer injuries juvenile’s to the con- ment of either lips the cuts on JR’s ment trary or credible. It was was reasonable with in nature consistent “serious” requirement as there is no not. Just ¶Aff. 16. Hoerig abuse. See consult I.D. Technicians investigators with contrary majority's Additionally, injuries possible about the contention, although I.D. Techni- the other victim, is there re- alleged neither pictures Kathrein, cian, Kara took a second get that an individual quirement approximately Anderer’s ar- an hour after malignant with a opinion diagnosed lip rest, that JR’s her stated observation surgery; how- cancer which requires brain being struck “was not consistent cut ever, helpful is often opinion such an male,” by Kathrein an adult in the face very well inform the and could instructive certainly ¶ added), is Aff. something or examining doctor initial prob- the reasonableness relevant to all, two After may have overlooked. she determination, Kathrein’s since cause able trained minds, specifically especially those very proximate in JR were observations of experi- amount of great possessing Opinion arrest. See to Anderer’s time more con- ence, frequently are considered majority to mis- appears Again, one. vincing helpful than regarding argument construe of incredi- illogical and indicative It was technicians’ ob- importance of the I.D. IAD Hoerig and the judgment for bly poor “injuries” referred to that the servations “injuries” to cite JR’s investigators —in- The ma- punch. inconsistent with were cuts—as evidence lip his inner cluding that I.D. Techni- opinion in its jority states there was supporting their decision accounts of and Kathrein’s Brown’s cian probable cause to arrest of his arrest are injuries night on the JR’s of evi- a scintilla of a child without abuse “them- police officers because irrelevant abrasion, blemish, bruise, any dence as investigate batteries regularly selves facial outer laceration contusion or capable of assess- persons and are flippant juvenile’s consistent with the area inju- cause of possible nature and ing the that he was and offhand accusation thus, “these and, was no reason there ries” 200- by mouth in the face and punched have been consulted techs should ID car. squad entering lb. man while prior claims investigating JR’s There is no evidence the record that statements of the Technicians, I.D. which lip changed JR’s inner cut had in appear- are contrary those of Hoerig and the highly (improving worsening) ance IAD investigators, the short relevant space of Hoerig’s considering question time between examina- of whether there probable tion of JR (approximately pm), cáuse. 9:15 Brown (10:15 taking his photographs pm). An- It arrest, obvious that Anderer’s (12:30 am) derer’s being arrested and the which the district court and the majority time at which Kathrein photo- took her have seen fit to uphold supported by (1:30 am).15 Thus, graphs as I point- cause, probable part was at least in predi- earlier, ed out viewing the facts in a light cated Hoerig’s Lt. recommendation to favorable to must at wé this Chief probable Jones that cause existed. stage of proceedings, veteran officer Opinion See at 1049-50. spite This is in Kathreih’s observations that JR’s inner lip the fact that living person interviewed cuts “pre-existing” resembled canker sores either before or after the Anderer’s arrest or a lip” “bitten causing bleeding were, could corroborate JR’s claims of abuse. contrary majority’s contention, For example, Officers Michael Jones and highly relevant Jeffrey cause in- .Logan testified they had no quiry. Opinion at 1070. This evi- idea what caused the alleged injury to JR. Hoerig’s dence casts serious doubt addition, on Lt. above, as outlined I.D. Techs questionable most de- Brown and Kathrein testified as to unfathomable “JR[’s][lip] injuñes termination lack any bruise, blemish, abrasion or being [were] consistent with hit on JR’s laceration face or nose and to the , mouth,” Hoerig Aff. 16 (emphasis add- fact that “injuries” were not consis- ed), and thus also serve to tent being punched undermine in the mouth or Hoerig’s careless unsupported judg- Also, nose a 200 lb. man. as set forth ment that there existed infra, Shoman, Centeno, Cook, Officers arrest Anderer.16 Did this Bohlen, constitute a as well as lay witness, good-faith probable cause inquiry? Mitchell, testified that did not witness Thus, answer is NO. I reiterate that any altercation whatsoever between An- there is inju- Because no evidence that the upper lip type of blemishes that —the ry changed appearance between the time would be consistent with and which would be Hoerig when Lt. examined when Ka- likely more attributable to number of photographs, threin took her opin- Kalhrein's factors, other biting lip such as JR or minor,” "very ion that cut the there was by dry-mouth canker sores caused condition bruising "no on his face ... did [h]e not have with, associated by, and intensified the combi- lip,” a swollen fat visible'signs "he had no myriad nation of the of medications had injury,” and thus his condition was "not ingesting. al., Dunplay, See David et (formed punch consistent” awith at the time Physician’s Desk Reference she took photographs) the should be consid- ed.2004) (giving the dry incidence of mouth ered as alleged evidence that the wound was Paxil, associated just the one of medi- not consistent allegation with JR’s of abuse. taking, cations JR was as about in clini- 18% ¶ 16; Hoerig Kathrein Aff. see Aff. 16. trials). Importantly, cal the photographic evi- Tech's, dence as well as the ID testimony, Over above and Brown’s and Kathrein's testimony regarding establishes injury, swelling, the fact that there photo- JR's was no the (true redness, graphs bmising, repre- themselves any and accurate trauma or abrasions of anywhere area, sentations of juvenile’s land juvenile’s condition of the on the facial reaching facial area police station) after which one would observe on a child who has only reflect a minor Aff., on laceration been hit inside a 200-lb. man. See Brown lip of JR’s 1000; bottom and a slight Aff., blemish inside Exh. see also Exh. Kathrein him in a that could be ment used JR, allegations. contrary and derer under the Fifth proceeding testimonial evi conjunction with In and taken both before to the Constitution. dence, pictures Amendment do not corroborate after Anderer’s rights, the MPD As to his contractual Rather, photographs these story. that: Regulations set forth Rules that there were establish and statements require an imme- investigations lacerations, abrasions, cuts, bruises, interview, al- the member will be diate to JR’s of trauma signs or other contusions to obtain opportunity lowed a reasonable some cre might give tend to face which to consult with presence of and that Anderer his claim dence to representative choice his/her before Thus, all the facts him. punched during repre- If a the interview. record are in the and circumstances readily is of the member sentative An- favorable to light most viewed supervisory if officer available do at this requires us to as the law derer necessary it to imme- is determines I remain con proceedings, stage of the to com- diately continue the interview was not estab vinced investigation, supervisor plete furthermore, unrea and, that it was lished Commanding Offi- shall consult with the deduce, for the Hoerig to for Lt. sonable to the continua- prior of the [IAD] cer and for the speculate, court district If investigation. an tion such conclude, that Ander similarly majority to by a being supervi- interviewed member Spie ... ah offense.” er “had committed representation, and sory requests Qian v. (quoting F.3d at 723 gel, 196 denied, super- representation (7th Cir.1999)). Kautz, F.3d an In the visory prepare officer shall indicating the circum- Report Matter of and Con- D. Anderer’s Fifth Amendment request up which led stances Rights tractual why the reason representation MPD’S PROB- importantly, THE More was denied. representation DETERMINATION, AS ABLE CAUSE 3/450.05(D)(8) (emphasis add- Rule MPD COURT’S THE DISTRICT WELL AS that, ed). ac- Additionally, I note must AND THE MAJORITY’S FINDING Regulations to the MPD cording Rules THAT DECI- RATIFYING OPINION into the record received which were SION, deal to be desired great leave evidence, compelled an officer can Ander- rely them as each one of insofar investigat- posed by questions answer TO PROVIDE “TOTAL er’s FAILURE when, prior to only ing supervisory officers THE INJU- EXPLAINATION FOR ANY intérview, IS GRANTED the officer SUP- A RIES” AS “CIRCUMSTANCE” any answers advised that IMMUNITY OF ABUSE. JR’S CLAIM PORTING responses presented questions added). After at 1050 Opinion thereof, can- “and the fruits made thereto lawful all, invoked his properly any against [him] not be used by protected right is contractual —which MPD Manual proceeding.” the MPD— contract with employment Driebel, 3/450.05(D)(5); see also § represen- without give not to a statement Anderer At time was at 638 n. 8. F.3d under investi- was present tation while he com- he was never immunity and addition, offered any like a crime. In gation for statement, nor he was give a States, pelled includ- citizen of the other United he representative a union with officers, provided Anderer ing law enforcement arrested short- demanded, he was because any to make state- to refuse every right However, ly thereafter. IAD officers did With The Back Of Your Hand And Kid Injuries attempt to coerce a from statement him in Has No Other Than A Small Cut complete disregard regula- for their own Lip, On The Inside Of His Which You Can Barely See, tions. Detective Harrison “asked if [Offi- And Which Is Not Consistent statement,” give ¶ cer would a Anderer] 76 (emphasis A- With Punch.” Harrison, not, told “absolutely added). Anderer not gave Anderer then eyewitness representation.” without union James Mitchell’s phone address and num- ¶¶ 71, Also, Harrison, Aff. 72. Detective ber to Harrison and watched as she tran- who, an acting 'MPD command officer scribed notebook, this information in her (and every officer), like other MPD (Mitchell) trusting that he might con- be to uphold the sworn laws the State of tacted corroborate Anderer’s lack of Wisconsin ordinances the City involvement in alleged incident. Id. at Milwaukee, proceeded then to blatantly ¶ 77-78. also asked if Harrison threaten Anderer stating that she Officer Cook was going to be charged with “going to get sergeant a [t]here [do rape, and Harrison replied that Cook was ¶¶ 73, a] PI-21.” Id. at 74. This meant she (An- not going charged to be and that he going get a sergeant to compel and derer) was the target sole investiga^ give force Anderer to a statement under ¶ tion. Id. at responded 79. Anderer demotion, threat of disciplinary action or saying bullshit, “that’s I’m pounds, if I discharge. even See MPD Rule et 3/450.05 punched kid, would have I have would seq. What was not stated to Anderer was left some swelling face, brusing on his any statement that might have been and would cuts or redness my ” given as the result of PI-21 could not be ¶ hands .... Id. at 80. Anderer then n used any him in criminal proceed- requested that JR be taken to be “medical- out, ing. As it turned- Harrison and the (or ly cleared” examined pro- medical investigators IAD had no intention of ever fessional). addition, Id. In Anderer dis- “PI-21ing” Anderer goal because their played his detectives, hands to the which throughout pre-ordained and result- examined, Harrison time process him, orientated was to arrest (Anderer) requested that his hands therefore, the speedy process arrest con- ¶ photographed. Id. at 80-81. Harrison tinued while Anderer remained silent. told Anderer that the I.D. Technician had left, that, It is interesting to note but she at this later reassured him that “we time, before his arrest and after her threat KNOW [ALL of] THESE ARE COMPLAINTS BULLSH- compel speak, speak did IT ... WE ARE GETTING TIRED OF INVESTIGATING ¶ to Detective (em- Harrison “off of the record Id. at 81-82 false accusations.” ” ¶ .... Anderer Aff. phasis later, Anderer asked fewA minutes An- what going Harrison he was charged to be derer again requested once that photo- and, with according to Anderer graphs she re- be taken of his hands. Id. at 94. sponded: “That’s Instead, what doesn’t make superior, Harrison’s IAD Detec- Punching sense. He’s accusing you Cowan, Him tive Mercedes examined Anderer’s unexplained curious and Hoerig about-face go along officers above her to Detective subsequently changed Harrison her (Hoerig's) her version of events is un- and, story playing now in tune with the Jones However, assuming known. Harrison's state- orchestra, Hoerig told Lt. she believed (i.e., ments to Anderer were she truthful that, story opinion, in her there was thought complaint false) JRs she did probable cause to Anderer. Harrison believe there was cause to arrest An- ¶21. playing Aff. Whether Harrison was derer. good-cop/bad-cop pressured by or she was imagination, Also, by flashlight no stretch high-powered and a of with hands speculate photo to as to “you tech.” Anderer’s need a could don’t stated refusal alleged injuñes of were taken never be con- Photographs cause JR’s at 98. of establishing probable and pristine nor hands sidered factor hands ever (pursuant his condition of unblemished abuse cause to arrest for above, record, and, as noted right in the noted not to in- Amendment to Fifth re- process “fast-track” MPD himself). Nevertheless, criminate shortly being arrested in Anderer sulted court, prece- of without a scintilla district of blatant declination thisWas thereafter. faulty reasoning support, dential exhibited hands of his photographs for request and SPECULATEP THAT ANDERER’S LACK OF I fairness? and good-faith example OF THE CAUSE FOR] “EXPLANATION ” not. think a “fac- considered could be bloody nose arrest, Furthermore, haste to in their any lack supplement sufficient to tor[ ] the MPD humiliate and confine An- credibility statement^].” in JR’s so far as 01-C-0668, went Jones, at *11 No. derer v. attempt to have Anderer 2002) add- (E.D.Wis., (emphasis Sept. POLICE IN HIS UNIFORM. AND JAILED BOOKED to further demean in an effort apparently ed). my is that Even more unfortunate County However, him. Milwaukee majority readily adopted colleagues in the officers, in an exer- Department Sheriffs rationale, any sup- unsound without to admit judgment, refused good cise law, that: holding stating and port Jus- the Criminal accept Anderer into 12-year- circumstances—-a Given these in his (county jail) dressed Facility tice bloody appearance, injuries old’s uniform, officers direct- and sheriffs police had how he consistency reporting street clothes. change into his that he ed injured, total and Anderer’s failure judg- Thus, following the IAD’s rush inju- provide any explanation arrested ment, Anderer was seized observed JR no other officer ries when very injury, and, ivas to add insult turning him prior to in that condition ridicule, being subjected to close to further custody be- to Anderer’s sole over —we harm, by physical possible almost had lieve that Milwaukee (there being jailed in his uniform that Anderer cause believe prisoners being between little affection recklessly caused intentionally or personnel). law enforcement bodily injury. above, employ- under his mentioned As added). The Opinion City of Milwaukee contract with ment Anderer’s re- use of majority’s mysterious MPD (specifically, Department Police premise as a a statement give fusal to 3/450.05(D)(7)), entitled Anderer was Rule of prob- their to base determination which choice representative [his] “have cause, any case unsupported able he was thus during questioning; present” quicksand. on a foundation law and rests on his contractu- fully justified relying court’s, the ma- well as The district QUESTIONS, TO ANSWER RIGHT TO REFUSE al rely on Anderer’s jority’s, willingness to TYPE OF PROVIDEANY ORATTEMPT TO SPECULATE an essential give statement refusal WHY AND HOW WHEN, AS TO EXPLANATION establishing prob- of the “evidence” prong fact that THE NOSEBLEED. SUFFERED a crime is him for to arrest able con- report made no comment “Anderer one considers troubling when particularly in- [might been] cerning how JR years vol- upon over 200 and reflects could not Br. at jured,” Jones’s supporting precedent in case law him. umes held have been should 107 6 right protect

Anderer’s (be- Amendment obviously This was not the case here Fifth ing cause Anderer It self-incrimination. was never compelled to statement), give a and so exception INDEED . “WELL-SETTLED . . [THAT] ‘[p]QLICE-MEN . . ARE NOT RELEGATED TO A WATERED- has no bearing Nonetheless, . on Anderer. ” considering Anderer’s contractual employ- DOWN VERSION OF CONSTITUTIONAL RIGHTS.’ Driebel, 298 F.3d at 637 (quoting Garrity, right, ment separate and distinct from 616) 500, 385 at U.S. 87 S.Ct. (emphasis his Fifth rights, Amendment the MPD’s added). And the Fifth Amendment’s self- concerted effort to compel a statement ab- protections, incrimination prevent which (even threat) representation sent —and “government forcpng] person [from] a then to make use of his lawful refusal to statement, make a court, to even out of comply without requested representa- might be used as evidence that he had tive present as a basis for probable crime,” committed a Atwell v. Lisle Park clearly cause—is violative his contractu- Dist., (7th 987, Cir.2002), 286 F.3d 990 are al employment rights, as well as his well- Thus, well-established. I am at a loss established rights constitutional to refuse MPD, to understand how the the district to answer. court, majority and now the include Ander proper .justified Indeed, er’s exercise of context of a lawful Terry right (an well-established Fifth Amendment stop to investigatory questioning sup give might refuse to a statement which ported by suspicion) reasonable —which (in separate incriminate him addition to his may be the most analogous situation —the right give and distinct contractual not to a question investigating an whether offi representation) statement absent as a fac may cer refusing detain an individual for satisfying probable tor in cause stan potentially incriminating answer a in person all, “may dard. After not be quiry, may or whether he use such refusal momentarily detained even without rea suspicion to elevate his mere to the level of sonable, objective grounds doing so; for probable cause, is an issue neither not, and his refusal ... to answer does Supreme U.S. Court nor this Court has more, grounds,” without furnish those See, resolved Voida, to date. e.g., Tom v. Royer, 491, Florida v. 497-98, 460 U.S. 103 952, Cir.1992); 959 8n. cf. 1319, (1983) S.Ct. 75 L.Ed.2d 229 (empha , — Hiibel v. Sixth Judicial Dist. Court added) sis can less —much refusal -, 2451, 2460-61, U.S. 124 S.Ct. 159 potentially incriminating ques answer (2004). L.Ed.2d 292 constituting tions ever be construed as using The majority insists on probable requirement element provide explanation an[] to arrest. “failure injuries” supporting [JR’sJ as a factor Again, I am well aware that according Opinion 1047, cause. 1050 Rules, to MPD and consistent with the To the extent that the law, officer who is under investi- majority proper relies on Anderer’s invo- gation in matter may which result in a rights, cation of his contractual as well as criminal proceeding may compelled rights his inherent Fifth Amendment give a during statement an investigation— potentially incriminating refuse answer but NOT until such TIME AS HE HAS BEEN questions suspect when in a criminal GRANTED FROM IMMUNITY CRTMTNAL PROSECU- investigation, “permit the [MPD] offi- TION IN THE MATTER UNDER INVESTIGATION. Driebel, suspi- 8; cer[s] at 638 n. [their] F.3d accord elevate reasonable v. Cunningham, cause,” cion into Voida, U.S. Tom v. Lefkowitz (1977). 97 S.Ct. 53 L.Ed.2d 1 (emphasis added), F.2d I dis-

1077 inju- inability explain to concedes his theory of created newly this with agree disagree I reasoning. Id. novel ries.” most employs law which interpre- free-lance argu- unsupported this support their attempt to In their rec- statements the fit to follow tation of Anderer’s ment, majority seen the has majority court’s to infer and district seems MPD ord. the ill-advised Anderer, in did not opinion, “refusal” their finding, which includes because errant his contrac- regarding establishing argument make an as a factor to answer rights, they are unchartered Fifth Amendment cause, into an tual and has entered and concern; Opinion at law; essentially creating disagree. this I See of no area that, noted in his which runs It should theory of the law note 8. be spurious new that he was de- Anderer complaint alleges Anderer’s well-established contrary to to him the MPD, “rights court and secured Why prived district rights. States legal this hand and laws of United majority Constitution now the relied Anderer prop- Anderer of Wisconsin.” State puzzling. is most grenade, re- specifically when at *1. rights Complaint Anderer erly his contractual invoked and Four- that he Fourth Detective Harrison fers to violations to he stated ques- any absolutely well as viola- rights Amendment as not answer teenth would pres- representation on more complaint § in his tions of without union tions acting clear that fact, was occasion and it is most Anderer than one ent. Given (both rights determination, by its any probable con- cause protected within his well contractual) nature, he re- the Fifth Amend- very implicates when stitutional case, give individual, IAD inves- as in this to the once an a statement ment fused tigators,18 Thus, logic, criminal suspect a matter of as to be determined assume anyone posed for are questions no reason there was investigation. have known how should him in course of that Anderer (as occurred, there is no evi- addition, Anderer well bloody complaint nose in his officers) has ever Anderer in the record that his contractual pled dence the other as (e.g., any type training IAD in- undergone medical he told stating that rights when Also, at the paramedic). repre- as a union training “he vestigators that wanted bleeding, statement,” began nose any time JR’s making before sentation operating seat in the driver’s seated IAD was “there that he knew the juvenile car police squad while allegations.” criminal investigate in the back seat alone seated and secured a *8, 40, Undoubtedly conveyance during MPD, of the vehicle year veteran of and a half three police station. rights, of his aware constitutional was well suspects of to inform required for he most limited majority’s

In the brief he made an every time each and them issue, they on this my analysis response Once his duties. in the course of state, footnote, dis- that “the initially in a of a suspect Anderer was An- reference contends sent Amendment, as his Fifth investigation, bloody ap- explain failure derer’s into rights, came contractual well as his analysis pearance in giv- therefore, facts” “operative play; Amendment Fifth on Anderer’s impinges part pleaded a violation ing rise to rights, and contractual himself Amend- Fourth fact, of Anderer’s and, parcel argument such makes no present representative attorney or union Officers Shoman should noted It alleged incident questioned about contractual their Cook also exercised involving and JR. without rights make statement not to Kyle High Pleas, v. Morton ment claim. Court Common (6th 276 F.3d 808 Sch., Cir.1998); Blackburn, see Cir.2002); F.3d Davis v. County also Leatherman v. Tarrant (5th Nar- Cir.1986). But 1371 Pearce v. cf. Intelligence Unit, cotics and Coordination Inc., E.F. Group, Hutton 828 F.2d 826 163, 168, 1160, 507 U.S. 113 (D.C.Cir.1987). S.Ct. 122 Anderer’s well reasoned (1993). L.Ed.2d 517 claim, supported record, which is City lacked cause to However, even if we are assume that under the Fourth Amendment in this case the pled issue was not or is itself a question. constitutional It (as fol- argued seems to majority’s point be lows that the Anderer’s Fifth view), Amendment THE IS VERY LAW CLEAR rights implicated are because they are so TATA CONSTITUTIONALISSUE MAY inextricably intertwined with the issue of BE RAISED SUA SPONTE AT ANY whether City or not TIME IT WHEN THE AT- COMES TO based, cause to arrest him in part, on his TENTION OF THE PRESIDING silence. This case should be JUDGE OR THATAN resolved JUSTICE INJUS- way this Court in a that does not offend TICE MIGHT BY NOT AD- RESULT the Federal DRESSING THE long-stand- Constitution or its Singleton ISSUE. v. ing principle, Wulff, 106, 112, embodied 2868, 428 U.S. Fifth 96 S.Ct. 49 Amendment, (1976). suspects L.Ed.2d 826 This is particularly prosecutions silence, where, true in a cannot have their here, situation re- as A RESULT, i.e., fusal or failure to explain GRAVE INJUSTICE DID used See, them in a court of law. e.g., OFFICER v. ANDERER BEING UNCON- Griffin AND, California, 609, 380 STITUTIONALLY 1229, U.S. 85 ARRESTED S.Ct. RESULT, (1965). L.Ed.2d 106 A I AS DIRECT believe I that would LOSING HIS be my derelict in TENURED duty ethical if I POSITION AS A POLICE failed to (Fifth Amendment) address this OFFICER WHICH HE HAD HELD FOR issue in 3.5 view of the fact YEARS that Anderer BASED ON THE has FABRI- suffered CATED grave injustice TESTIMONY OF A including the loss of his PSYCHOT- IC JUVENILE. employment tenured as a Supreme Milwaukee As Po- Court (3.5 Singleton pointed years lice Officer v. job) out on based on Wulff: what to nothing amounts questions more than may The matter fabri- of what up cated testimony. taken and resolved for the first time appeal primarily is one left Next, (in the majority attempts to a self- appeals, discretion of the courts of to be words) serving interpretation of his high- exercised on the facts of individual cases light the fact that opin- their Certainly ... there are circumstances in ion, “concedes inability explain appellate justi- which a federal court is injuries,” and that “Anderer made several resolving passed fied in an issue not on voluntary officers, comments to other in- below, proper as where the resolution is cluding that he did know how JR beyond any doubt, injustice or where received bloody Opinion nose.” might otherwise result. 1050, n. I disagree with this statement (internal 428 U.S. at presented by 96 S.Ct. the majority. As noted quotations omitted) above, and citations (empha- although Anderer did make volun- also, see added); sis United States v. tary comments, some of qualified those Heater, 63 F.3d Cir.1995); “off-the-record” and the rest were made Melecio, Cruz v. (1st 22 n. 7 before he ever a suspect. became Howev- Cir.2000); Popovich v. Cuyahoga County er, they all amounted to a “refusal” to even com- clearly articulated “off-the-record” nose- caused JR’s explain what attempt to Opinion at 1047. ments to IAD. See additional how these I fail to see bleed. (and addition, “on-the-record” refus- to “off-the- to the record references Anderer) to him any questions posed answer als to statements record” undermine, continued to be right An- to remain silent to, any way or in relation throughout the course right protected constitutional well-established derer’s allega- query preposterous IAD’s into JR’s refuse to Fifth Amendment to under Hale, 422 v. U.S. tions. See United States his refusal to even give statement (which 2133, was, 171, 180, 45 L.Ed.2d 99 95 S.Ct. explain the facts attempt to Driebel, answer) (1975); at 298 F.3d see also i.e., and circumstances a refusal to (“It suspected of in which he was an event ... [that] ‘[po- is indeed “well-settled An “inference committing a crime. A WA- . . . ARE NOT RELEGATED TO licemen pecu- facts [explain the] failure to guilt for version TERED-DOWN Constitutional ”).19 Indeed, at- IAD officers rights.’ the within liarly supposedly] [Anderer’s] [or and take an tempted side-step to end-run California, 380 U.S. knowledge,” v. Griffin 1229, regulations by their own threaten- 614, 106 around L.Ed.2d 85 S.Ct. attempt to coerce ing Anderer an (1965), constitutionally impermissible (threats) statement, however, giving into explain to Anderer’s refusal based on again once rights to of his cognizant started how JR’s nose speculate or give a (indeed trap to fall into the refused wonders how one bleed I am convinced that it was who statement. professional, and is not a medical who the constitutionally impermissible the in the front seat of vehicle was seated (as district court and now in MPD well as the seated driving squad the car majority) to base their cause rear, the expected diagnose to could be total failure “nosebleed,” on “Anderer’s which determination alleged cause of JR’s inju- any explanation for provide [JR’s] with to “mostly mixed [mucus] fact 1050; ¶¶ 25-26, Griffin, at Opinion and ries.” See blood,” Logan Aff. see some ap- 1229. at 85 S.Ct. Such result if JR U.S. expected to not what would by either never been endorsed was, proach nose has punched alleged, as he or this male). Supreme Court majority the United States Frankly, a 200 lb. Voida, See, v. e.g., Tom Court. point. misses the at 959 n. 8. consider, majority has failed to What slightest An- It matters not in any way with rele- support

reply to or inability or related his fact that derer precedent law or is the vant case refusal alleged injuries explain to his Fifth Amend- JR’s rights under the Anderer’s fellow suspect becoming (either protection him to entitle absolute ment before record”). going It mat- beginning from self-incrimination “off after constantly less that Anderer in a ters even suspect very moment he became long position maintained this state- prosecution. after Attorney sub- informal, and his immediate Jones, District which were Sgt. ments to merit there was no decided that an inves- ordinate prior made off-the-record and Also, charges against him. launched, as his to the being as well tigation fact when Anderer explicitly "off-the-record” were important that the comment It is to note immediately Sgt. way after made to Jones can these statements them. In no made the car was made off-the- JR was taken out of rising level of a waiver be considered ever consid- and well before he was record or contractual Anderer's Fifth Amendment addition, made suspect. statements ered a rights. Opinion at charges investigators regarding the to IAD included, that Anderer a statement conced- nose started bleeding are also used to ing explain his suspicion elevate reasonable refusal alleged injuñes 'pleadings in his be- repeated cause. Anderer’s refusal to an (a the district court the ma- ignorance swer and avowed of what fore fact caused jority now believes somehow boy to start bleeding nothing does affects rights, Opinion Amendment see increase the “probability or Fifth substantial 9) 1050-51 note is likewise irrelevant. chance” guilty that Anderer was of some important, majority What is and what the wrongdoing such that there could possibly chooses to overlook or even address in risen to the crescendo of establishing opinion, their is that at the time the MPD probable cause to arrest him. See Beau made the determination to arrest Ander- champ, Indeed, 320 F.3d at 743. Ander er, investigators acting its in viola- er’s conceded and consistent refusal and protection tion Amendment Fifth inability truthful explain what had oc against compelled By incrimination. us- have, (and curred should if anything if the ing explain injuries,” “failure IAD had even had knowledge of these any or his absolute to make refusal statements, for- majority the sug seems to alleged mal statements as to the reason or gest) been viewed a reasonable officer bleeding nose, against him as evidence that Anderer was indeed tell impermissibly acting the MPD was ing the truth guilty any and not wrong derogation Anderer’s constitutional doing. proof There is no in this record of rights. Griffin, 614, See U.S. 85 any inconsistency in the “off-the-record” S.Ct. 1229. statements Anderer made IAD investi

Furthermore, majority’s gators the approach pre-investigation statements he ignores this issue the forest in search made to his end, of a coworkers. In the the solitary by disregarding tree exculpa- majority suggests the justification no whatso tory import of Anderer’s statement. ever for As the use of Anderer’s constitution out, (and majority points the ally Anderer main- contractually) protected right to tained in off-the-record statements before questions refuse answer against him in arrest, his and maintains to day, this the course of a investigation. day to this he does not know how States, JR’s Stewart v. 1, 7-8, United 366 U.S. alleged injury fabricated occurred. Opin- 941, (1961). 81 S.Ct. 6 L.Ed.2d 84 For, ion at 1050 n. 8. as this dissent illus- E. Evidence Exculpating Anderer

trates: How was Anderer to know the (which source of injury JR’s fabricated great The weight evidence, includ- likely no more than the good result of a ing the sworn statements of six offi- sneeze)? (Officers Logan, Jones, Cook, cers Sho- Centeno) man, Bohlen, and lay and one If anything, majority’s the additional ci (Mitchell), witness establishes the fact that tations to only the record serve to under Anderer did not any time, strike JR at score the fact that throughout Anderer including the time frame period when JR consistently denied knowl being secured edge squad car. the cause of alleged injury However, court, the and on district numerous its order occasions voiced igno his granting summary rance of why judgment how and JR suffered the defen- dants, “bloody journeyed nose.” majority into the cannot wide and have bound- i.e., it ways, abyss both speculation less conjecture Anderer’s refusal speak cannot be used him and took it upon while itself to state that Ander- Anderer’s “off the record” statements HIT JR OPPORTUNITY TO SOMETIME ER HAD AN about his lack of knowledge as to how JR’s AFTER JR citing WAS CAR IN THE SQUAD belt, open seat unfasten his ignition, IN WHICH JR WITH WAS ALONE TIME “the vehicle, door, close side exit driver’s AS ONE OF CAE,” SQUAD IN AnDBREB’S ANDERER door, door,-proceed rear open front HAVE GIVEN “WOULD WHICH CIRCUMSTANCES THE door, the rear juvenile, at the close yell prudent ARREST TO PROBABLY cause OFFICER A vehicle, door, front re-enter open the Jones, 01-C- No. Anderer v. Anderer.” seatbelt, key, insert the start 2002). re-fasten (E.D.Wis., Sept. at *8 to District engine, and continue No. dearly However, establishes the record way possible this could all there (accord- station radioed the Anderer accomplished within the leaving he was protocol) as ing time recorded second frame. Marina, station arrived Furthermore, to the trial contrast “exactly and two seconds two minutes thought unexplained, speculative judge’s ¶ add- Aff. 43 later.” specifically repeatedly stated JR process, ed). Moreover, affi- testified via hit face my stop I no time did that “[a]t davit entering the Marina the vehicle at traffic anything other than car for squad being therein before while secured Pump House the time I left lights from conveyance to commencement of the District I arrived inside until Marina station, any other time.20 not at during speak I to JR garage, nor did No. court, jour in its the district Nonetheless anytime, hit nor did I JR transport, abyss of ney into the wide and boundless Nonetheless, Aff. at ever.” Anderer rely chose to speculation, inappropriately deliberately lying again was once spent Anderer “the time [amount] Detective fantasizing he told when and/or way police to the on the alone with JR” arrest, Smith, that Ander- after seconds) headquarters evi (only 122 as way the squad the car on stopped er had of abuse. corroborating JR’s claim dence vehicle station and exited the police 01-C-0668, Jones, at *11 v. No. Anderer (JR). scenario at him This yell order 2002). (E.D.Wis. to Ander Prior Sept. impossi- realm of into the certainly enters arrest, to have been never claimed er’s JR just could bility, considering Anderer during convey slapped the at or screamed juvenile from the at the easily yelled (while alone with ance to station (there stop the need to seat was no front Anderer), only that he was hit JR stated automobile) fact and the uncontroverted being he was face and mouth as in1the did indeed arrive car, placed squad and not in the station, secured with JR time thereafter. car, squad 122 seconds seat of his back leaving com- Also, I at a loss out points the Marina. am as Anderer after could have be- with ITS OWN anyone how MPD broke plaint, understand WHEN, (JR) LT. truthful juvenile DESPITE that the PROTOCOL lieved that Anderer THAT JR Smith REPORT WAS telling Detective HOERIG’S INJURED, Hoerig car,” driver’s got see “stopped “SERIOUS[LY]” out door,” FAILED TO seat, and then THE Aff. Exh. MPD “opened [back] THE HOSPITAL going that he was JR TO TRANSPORT proceeded “t[ell][JR] ' ” MEDICALLY time that it HIM TO HAVE ‘whip his ass.’ With REQUIRED CLEARED, TO DO UN- AS stop taken for Anderer would have AND MPD LAW (per DER BOTH STATE car, switch ignition turn off squad See Wis. AND REGULATIONS. key from the RULES remove procedure), MPD Centeno), squad placed JR in citi- By accounts all relevant witness (e.g., Shoman, without Bohlen car incident. and Officers zen Mitchell § 938.20(g)(4); Stat. see also MPD Manual most contemporaneously to the to the inci- 3.090.95(H)(5)(b).21 Nonetheless, § falsely dent in which JR accused Anderer assault, anyone medically 17, 2001), trained been called to April recently JR had perform cursory even a examination experienced of JR AND “PARANOIA AUDITO- (considering Hoerig’s description of JR as RY [IN WHICH] HALLUCINATIONS being “seriously” injured), such a para- VOICES WERE TELLING HIM TO medic, HIMSELF, jail physician, nurse or HARM OR TO HARM MPD/ OTH- IAD investigators only would have dis- O’Grady Report, ERS.” lip Aff., covered that added). cuts were (emphasis inconsis- Ex. 29 at 1 (no tent punch bruising, with a swelling, treating psychiatrist opined further abrasions) face, contusions or to his they ADHD, depression, suffered from also would have a proper learned from psychosis, and that HE WOULD CON- investigation, interrogation cursory TINUE TO A POSE “MODERATE” physical examination, that two weeks be- RISK FOR CONTINUED PSYCHIAT- incident, fore this THE JUVENILE HAD RIC ILLNESS PROBLEMS “UNTIL HE ENGAGED IN INFLICTING SELF- BE CIOULD] STABILIZED FOR SOME (he MUTILATION UPON HIMSELF LENGTH OF TIME ON [HIS] MEDI- arms). had cut crosses into both of CATIONS.” Id. at These obviously crosses were still visible Thus, given JR’s psychiatric troubled person. on JR’s condition and behavioral disposition at

Had the MPD conducted an adequate particular time (history of self-muti- physical investigation, lation, and had JR been “voices’’he heard which “t[old] explain OTHERS,” asked to how he obtained these TO HARM HIMSELF OR scratches, obvious marks and abrasions on repeated examples run-ins with just shoulder, his arms fully capable below the assuming police), JR was contriving honestly, answered investigators story in relation to alleged abuse and would have learned that had been resulting alleged nosebleed order to self-inflicted. As Dr. O’Grady stated in an previously the threatened trouble for assessment patient, April the dated arresting officer so as to carry out his (it interesting to note that Dr. psychotic contrived intent to harm others O’Grady’s performed assessment was get al- and Anderer and Cook In- fired.23 Lt, photographs) accurately and 21. apparently intentionally set dis- Hoerig forth exagger- played establishes, in this dissent Det. Lt. MAGNIFIED INCIDENT REPORT SHE COM- ated AND THE Hoerig filed a report. falsified JR Under STATING WAS "SERIOUSLY” PLETED BY THAT IN- either scenario Hoerig’s judg- this casts Lt. WITH "SEVERE JUKED CUt[s]/lAc[eRATIONs1.” ment as to However, cause in Hoerig serious doubt. Aff. Exh. 1001. even if one true, report were to assume this is also 13, 2001, 22. As of June according to JR’s states that JR "refused” treatment. Id. If JR mother, JR was undergoing still treatment for "serious[lyj” injured, the Lieutenant in voices,” Aff., "hearing Hoerig Ex. 1001 at charge investigation (Hoerig) violated by a fact that is reports confirmed from JR’s policy MPD procedure, possibly time, physician at the Dr. Block. See Ander- law, (an by failing state transport alleg- JR er Aff. Ex. B ("Hearing at 69 telling voices edly seriously injured person) hospital to a himself.”). him to kill prescribed JR was for treatment and obtain a medical release Seroquel help psychological control his stating medial attention was refused. See condition and inhibit the "voices” he was § 938.20(g)(4); see also MPD Manual hearing. Id. at 49. 3.090.95(H)(5)(b) (c). § On the other hand, "seriously” addition, if JR injured, was not as_ investigating In had the officers (sworn the uncontroverted attempted evidence statements even depth inquiry make an in “Sgt. Jones and Offi majority states likely was most deed, nosebleed JR’s sneeze, could not corroborate rupturing normal/hearty cer Shoman of a result Anderer,” in his attempts but a blood vessel allegation or thin membrane a causing nosebleed a fact thus such passage, import nasal to discount than (which on more may have occurred could Sho- noting [Jones that “neither leading days in the immediate occasion one Opinion at 1050-51. it.” See refute man] incident) produced and thus to this up Shoman, incorrect sum this is an As to “mostly consisting [mu- discharge nasal record, reading for of her mary of blood,” Aff. Logan some mixed with cus] reveals, she stated that Shoman affidavit ¶ 25. slightly squad positioned her car glance into case, right this brief what any Anderer’s and to front makes clear is medical condition squad walk JR and witnessed Anderer car medical a minimal even squad Although Shoman car. over (consulting worker health a medical the car place JR into did see examination) physical cursory perform a would “[she] to state went on that: she ple- investigators to a alerted would An- fight JR [between have noticed possible medical alternative thora of occurred,” rather but if one had derer] bleeding explanations logical ex- any between “did not notice commotion Police Precinct 2 at the JR hibited ¶¶ 21, 22 and [JR].” Officer Station, had to which he the extent added). However, Shoman medicated, also revealed and would.have investigators that she to tell went.on problems manifesting psychiatric serious Squad “in the back of seen JR certainly self-mutilation, which most phys “no had observed she [car]” have contributed and should would on injuries or blood [or] ical confrontation raising credibili- as to JR’s doubts serious ¶Aff. time. Harrison JR” Instead, and his MPD Chief Jones t¡¿. by Officer sworn statements Both of these placed command that Anderer JR’s claim also belie Shoman arrest, and it appears “express track” securing after immediately punched investigators involved or five the four squad car. seat of the him in back time, found neither nqe the ENERGY why Thus, should must ask ourselves: we THEIR OWN RULES WITH TO COMPLY INCLINATION Jones, Hoerig, (Lt. dis anyone Chief (WHICH A PER- REQUIRE THAT REGULATIONS AND give any majority) judge, or the court trict IN WHILE CUSTO- OF AN INJURY COMPLAINING SON believe, to, the incorri less much credence (LT. STATED JR SUCH AS HAD HOERIG DY (without juvenile even gible psychotic JR INJURY”) BE PHYSICALLY “SBRIOuS sustained credibili into a minimal supra EXAMINED, see accompa- note 21, ty) Sho- reliable witness over this Officer text) nying ANDERER ARREST- PRIOR TO HAVING lying? Shoman man? Was Officer ED. about mis- .majority only goes not living, even one the lack As for exculpatory testi- characterizing Shoman’s testimony person’s breathing corroborat- that Shoman’s (incorrectly stating abuse, mony reaching out the claim of ing JR’s Effects, http:www.cana- available expla- kote Side or obtain an into JR’s medical record epakote-information-Depa- behavior datrustrx.coro/D nation for out-of-control also, kote-discount.htm; Dunplay, et. al. see two of they night would discovered 1585-87 Depakote and Physician’s prescribed Desk Reference JR's medications — ed.2004). explain the help to could This also having caused abnormal listed as Paxil—are shirt, likely most which on JR's dried (the which blood bleeding combination in users previous effect). result of nosebleeds. Depa- was the may have intensified 1084

testimony did not “refute” allegation alleged abuse had taken place rape and — abuse), Opinion at see it also casts proof neither), assault —with it was fur- aside explanation, without in an unusual thermore unreasonable for the MPD com- manner, the additional exculpatory testi- mand officers and the IAD investigating mony from other wit- officers to cut short their investigation four officer be- (Bohlen, Centeno, Logan, nesses fore even Mitchell’s, attempting obtain Cook) (Mitchell) and the citizen witness officers’, or the other accounts of the al- that, for whatever reason was not sought leged situation when well knew the by MPD investigators in the time period questionable most and troublesome charac- prior to Anderer’s arrest (Negligence? ter and juvenile behavioral traits of the Bad faith? disregard Orchestrated of fair they were dealing with.

play justice? will). you it what —call Corroborating Mitchell’s testimony, Offi- above,

As outlined Mitchell, James cer Bohlen states in his affidavit that he citizen who was on the scene at the time of “watched walk squad” JR to his arrest, according to his sworn affida- anything and “did not notice out vit, every step states that he ordinary “watched placed JR Officer way while Officer squad.” ¶¶ (em- [JR] in his [took] Bohlen Aff. 12 car,” squad added). that he to phasis continued Bohlen also claims that he observe “as Officer Anderer had “a direct vantage point to make these guide[d][him] into the back seat of the observations as there w[ere] no obstruc- squad, ..., [affixed JR’s] seatbelt [and] [his tions line view Ander- off of Officer close[d] the door [to the er car].” escorting Mitchell and placing JR in his squad, ¶ added). Aff. (emphasis Mitchell, and at no time [he] more than 25 to whose observations contemporaneous away Anderer and feet from Officer ¶ with the specific period added). JR.” Id. at time 13 (emphasis that JR claims emphatic hit punched, or is (another Officer Centeno exculpatory (Mitchell) that he “[a]t no time [saw] Offi- witness and officer the scene of the [JR], cer Anderer strike act an[] crime) alleged also “saw Officer Anderer him,” ¶ abusive manner toward id. 15 place the juvenile boisterous [JR] in[to] his (emphasis added), and that Anderer “at all squad,” and remarked that “[njothing un- very professional times ... acted in a happened” usual between ” ¶ manner toward juvenile. Id. ¶¶ (JR). the suspect Id. (emphasis added). Again, I must is ask: added). fact, goes Centeno so far as to it rational to conclude that the witness possible remark that “it for Officer lying Mitchell happened about what (Cen- Anderer to have struck [JR] [he unruly, belligerent and that the and out- teno) ] was but one car length away from psychotic (less than law-abid- of-control squad [Anderer’s] and would have noticed ing) juvenile only person telling is the [if] Officer Anderer [had assaulted JR].” majority really truth? Does the believe 23 (emphasis Was Officer lying? Mitchell was lying? Centeno absurd; This is given and that the inves- In spite of the fact that part- Centeno’s tigating officers fully were aware of the ner, Bohlen, Officer “spoke supervisor to a information Mitchell provide, could and at [the Second Precinct Police and Station] in possession of his address and supervisor told the that [he and Centeno] phone number, and considering the incred- were at the and [Marina] ... should be ibility of (the the fabricating juvenile, JR, identified as individuals be interviewed himself, claimant only and person the any who in investigation,” further neither offi- stated, time, arrest, at the that the but by investigators interviewed was ever cer a[] statement[] to make Why? “did not wish he Orches- arrest. to Anderer’s prior REPRESENTA- [A] UNION trated, WITHOUT possibly? eventually granted present TI[VE]” —was on the was also who Logan, Officer prosecution immunity and from arrest, the testi- corroborated the scene of questions compelled at to answer 12:45 that noted other officers mony of the a.m., AFTER Anderer’s minutes fifteen strike Anderer observe[] “[did not] he part not used as and was therefore ¶ Furthermore, Lo- [JR],” Aff. 47. Logan by probable cause determination the Anderer’s passed he had as gan stated that ¶¶ 41, Hoerig.24 (emphasis Aff. Cook Marina, he way out of the car on the squad added). had stated point, At that Cook he backseat seated [JR] had “observed to JR” Officer speaking “s[een] appear squad to be not did [JR] the back of placed “in the JR had after been ¶ any way.” injured Id. ¶¶ Aff. 18-20. squad.” Cook Contrary his continuance to JR’s false that Cook, the unlike and malicious who Finally, Officer alienations time, [him,]” “yell[ed] this Smith at at had prior others, give a statement was asked it) severely damaged their un- would have state- er suggests that if "the majority 24. The determination, Cook, de- probable cause fathomed had ... been by given ment arrest, majority’s spite the intimation. seems [it] given prior to Anderer's investigat- supported the likely further to have Furthermore, testimony giv- in the affidavit that ing determination officer's Cook, investiga- emphasized that by he the en Opinion at- to arrest Anderer.” cause existed "unfair” and the IAD was tion conducted exag- majority support this n. 10. To get power to had the "[IAD] asserted extent gerates statements Cook's any purpose, they anyone wanted for arriv- having after they as stated that cite him of Ber- was reminiscent [that] [situation] "immediately noticed ing he at the station ¶71. Cook also Aff. at lin in 1939." Cook nostrils, running both down with blood [JR] by producing his chastised IAD chin, pant both his on shirt blood state that and went on to notebook rules because "was taken aback legs,” and that he go precious, out you hold so rules "[t]hese shape good before he perfectly the kid 'get’ you someone" want to window when came squad, not when he but went in Id. over his the notebook shoulder. he threw However, good.” Id. not [sic] out and thats ¶ Cook reiterated that 72. It be at should testimony under Cook's this mischaracterizes target of JR's going to be a believed he was that he he does state In affidavit oath. Cook’s accusations outrageous ridiculous nostrils dripping [JR's] out of "blood saw 1058-59, 1045-49, 1050, supra pp. well. ¶ chin,” but Aff. straight Cook down Therefore, 1061-64, 1069, after even on that he saw blood he state nowhere does incident, would feared he Cook Also, actually pants. Cook boy’s shirt procedure that same unfair subjected to the "shocked because states he A.D.A. told indeed befell Cook squad, took JR to his Officer Anderer [IAD] "was afraid the Reddin Jon however, ¶ 27, major- bleeding,” Id. not get up if could MPD would trade accept the fact conveniently ity refuses raping J.R. in- by getting [him] "|h]ad Anderer goes to affirm that Cook on Therefore, ¶ despite at 61. Cook stead.” Aff. difficulty placing J.R. into any encountered puts out-of- majority the twist that position been squad, I have would testimony, pieces of Cook’s context selective such commotion.” noticed to the IAD beneficial he would not have imagination stretch of the 20. This reality, probable cause. in their search for which would as evidence can be classified testify until after compelled to was not Cook supported the ... “have further have dam- he would because Anderer’s arrest Opinion at 1051 n. cause determination.” Indeed, terribly weak aged IAD's fabricated exculpatory evidence 'actually this is against Anderer. probable cause case gath- (had investigators bothered which Rep. at Cook stated that he “never ultimately Anderer were interviewed by JR,” heard Anderer scream at himself), and Reddin logical the only Officer conclusion furthermore that Anderer had not charges “en was that no criminal could be any difficulty placing countered in JR Memo., sustained. See Reddin Jones Aff. squad.” ¶¶ (em into his Cook Aff. (“I 18-20 [JR], Ex. at 1 have interviewed added). phasis that, emphasized Cook Shoman, Janice officers Jeff “any encountered difficulty” plac Logan, Cook and and civilian James Jeff ing in squad, Cook “would have [and][biased Mitchell on those inter- been in a position to have noticed such views I have concluded that we cannot commotion.” prove injuries how and whom [JR’s] incurred, consequently con- [I Obviously Chief Jones chose not to be- charges clude that] no can (nor lieve be even one of his four officers sustained.”) Mitchell) citizen witness who all affirma- tively stated that Anderer did not abuse F. Lack in Good-faith Investigation juvenile. Nonetheless, Jones, Chief and Termination of Officer Anderer being after consistently rebuffed in his at- tempts prosecute Anderer, I must ultimately my reiterate that purpose in used internal procedures reciting, in detail, terminate An- minute the vast amounts derer from Department, of exculpatory testimony after his and evidence 3/6- year tenure, (which for internal charges abuse in the investigators purposely failed to spite of the mountain of exculpatory gather Anderer) evi- arresting before in dence the record and the Deputy respective Dis- time frames not to play is Mon- trict Attorney Jon Reddin and D.A. day E. morning quarterback nor nitpick Michael finding McCann’s charges the record for minor (although these are could be substantiated. minor) Was Cook far from deficiencies their Officer inves- (along Bohlen, Logan, with Instead, Cen- tigation. it my Officers intention to teno, Mitchell) Shoman and witness also my convince colleagues fellow that Ander- lying? Moreover, why if not design, er, who did not protection receive the he is did the MPD command and the entitled to as a U.S. officers citizen under the investigating IAD compel wait to Fourth and Fifth Amendment as well as Cook’s statement until minutes under employment contract fifteen af- Why ter Anderer’s MPD, arrest? wasn’t this given day court. I also hours, done an hour or even point wish to out that the half conduct of fifteen minutes earlier? Didn’t want his officers who took part this investigation damaging exculpating testimony in the leaves much to be desired and can best be record on the cause issue? described as surprising.

It is interesting to note that IAD I am well aware that the law does not investigators also determined (probably ordinarily “require that a with malice or forethought) not to inter- conduct incredibly investiga- detailed view these exculpatory five witnesses tion at stage.” Spiegel, (Bohlen, Logan, Centeno, Cook, Mitchell), 196 F.3d 724-25. Nor “require does it and because of this it was unreasonable for law enforcement officers to ... conclusive- them proceed with the ly of Ander- every resolve[ ] each and inconsistency er. Deputy As District Attorney Red- Jon contradiction a victim’s account” pri- din memorandum, stated in arrest, once these or to 725, for, id. at as this Court people were (Shoman, Cook, interviewed occasions, has made prior clear on “once Mitchell, as well as Officers good-faith Logan and perform! [the officers] ] a inves-

1087 of select- smattering a “investigation” was informa- tigation sufficient assemble[ ] and which, in considered ed information circumstances totality of the the from tion probable to establish entirety, failed cause, not its they are probable establish to “objective- thus cause.26 The evidence for ad- searching ... to continue required per- prudent a to warrant Driebel, ly [in]sufficient F.3d 298 evidence.” ditional com- believing had] in [Anderer son 643-44 Mounts, F.3d abuse].” mitted] [the circumstances, confi- I am Under these considering tragic This is most at 714. of the part the activity on that the dent investigating took that the the oath officers the IAD and of the MPD officers command discharge faithfully uphold law and the to prop- as a worthy being of classified is not they were to which the the duties of office good-faith25 a less investigation er —much carry appointed, to out failed for pre- more should —but fair, duty and in a unbiased their sworn in- an orchestrated cisely characterized impartial manner. merely investigators the in which quiry evidence of reliable Considering the lack investiga- The the motions. through went I, majority, unlike the guilt, best, a of Anderer’s no more than to, at amounted tion the it was unreasonable convinced (failure am police pro- to follow for inquiry sham (and investigatory re- detail to cast aside tocol) may have been what produced and overwhelming incorporate) scenario) to pre-ordained a (in worst-case fuse exculpatory known available amount this so- of unreasonableness of result. Logan, (Centeno, testimony cloud a dark “investigation” raises from officers called Cook) Bohlen, civilian witness and a suspicion every one of over each of entirely (Mitchell) It was the scene. the MPD of officers superior rely investigators to for in unreasonable participated the IAD who of members al- “evidence” selected tainted follow on failed to officers These detail. being short leged abuse and selec- procedures appropriate police far fell or, that mat- trustworthy” “reasonably fash- timely in a interrogate tively failed man prudent ter, to warrant “sufficient witnesses at least ion four had committed believing [Anderer] unfavorable who were lay witness Mitchell Ohio, v. battery].” Beck U.S. [a officer’s decision the command (1964); L.Ed.2d 142 Furthermore, “evi- 85 S.Ct. only Anderer. Mounts, 248 F.3d at in their investigators gathered dence” obvi- an of abuse launched baseless claim good-faith, Dictionary defines Law Black’s suffering from juvenile witness lying ously mind consist- "A part as: state pertinent (2) to do purpose, urging him (1) [or] honesty auditory belief or ing hallucinations (Cook, obligation Logan ...” duty or one's others himself and faithfulness harm ed.l999). "reasonably Anderer) was thus Dictionary and who Black’s Law Driebel, addition, good- we characterized (even found district court credible” investigation in context faith in- [wa]s alone "statement admitted investigators “assemble[] where one (2) cause”), basis for sufficient totality of the from sufficient information which, lip under inner bloody nose and cut probable cause.” establish circumstances (namely, "pharmaco- the circumstances Driebel, for- Under either at 644. problems-— and mental poeia” of medications mulation, alle- investigating JR’s telling and "hallucinations self-abuse far short against Anderer fell gations others”) had a could himself harm "good-faith.” physical abuse than explanations other host Anderer. from above, of infor- universe 26. As discussed (1) a investigators was: upon mation relied course, Of the MPD command’s unre- had the temerity audacity and bring to lenting in clumsily insistence attempting rule charge violation against Ander- allegation against validate JR’s Anderer— er producing the dubious charge abuse (direct despite lack of evidence child, of a of which there proof. and/or is no This circumstantial) of guilt stop rule violation charge what, end, —did Jones, with his arrest. in particular, Chief resulted in Anderer’s termination from the deterred, would not be personally force (again, any without felony, pursuing charges misdemeanor, insisted on against or city even ordinance viola- Initially, Anderer. Jones had tion ever being ar- brought, Anderer much less sub- stantiated). rested without referring first the matter to Attorney’s District office for an inde- The nature of the internal charge was pendent determination, review and which also questionable most when considering is the proper more and proce- desired the timing of the charge in relation to the Also, investigations dure.27 after four other facts and circumstances. The termi- (two independent) up turned insufficient charges nation were brought only after pursue (either felony evidence to criminal Anderer’s case had laid ap- dormant for misdemeanor) charges child abuse proximately a just month and were filed against Anderer, the IAD insisted pur- on hours —or days three Anderer filed —after suing by converting the unsuc- his lawsuit against Jones, Chief Charles cessful clumsy criminal investigation Grisham, Lt. Hoerig, Cowan, Detective into a last-ditch internal investigation to and the City of Milwaukee. The decision determine whether Anderer had possibly bring these charges is inconsistent with violated ANY MPD rule or regulation, the District Attorney’s Office’s clear and probably due to Chief Jones’s insatiable repeated affirmation of the decision that desire to have Anderer terminated.28 Ulti- there was to prose- evidence insufficient mately, after possibility of criminal cute Anderer for abuse. Aff., See Jones charges against Anderer (“I Ex. 1002 at 1-2 cannot say eclipsed, just 96 hours after Anderer assurance what .... happened It is entire- filed a lawsuit against the department, ly conceivable ... that [JR] inflicted the newly appointed IAD command injuries himself’).29 27. supra note 7 accompanying text. din was made after Anderer had been arrest- (contrary ed preferred action, course Furthermore, interesting it is they 7), supra see note such simply determination brought the charges against internal lends further argument credence Anderer's without conducting any further that the by cause determination Thus, into allegation IAD, of abuse. district majority court was unrea- charged internally, and had Aff., him dis- (Red- sonable. Arthur Jones Exh. 1002 charged, (now complete) the same record din happened concludes what to JR "in and for the same generated offense that had the back of the probably car will never be multiple prosecute refusals to anyone Anderer,” criminal known but JR and against case by (two the DA’s speculative Office that the nature of the accusations independent Deputy determinations Anderer were "not the stuff of crimi- Attorney District charges.”). and the Attorney District nal It also serves to further estab- himself). independent lish another law enforce- ment official opinion that JR was majority’s contention the "the utterly witness, and totally unreliable as a Deputy Attorney's District later decision not because as Jon Reddin noted in his written pursue charges’’ is an "irrelevant prosecute: decision not to entirely "It is con- fact” herring, Opinion 1050-51, is a red n. given ceivable agitation, [that] [JR's] mental although because the decision problems Red- Jon get stated intentions money knew, were well the officers drugs, as III. Conclusion 'psychiatric be- to control used fact-intensive, be- case, very being This problems); havioral credi- utter lack with the ends and gins (5) had failed JR the medications complaint bility of JR’s day men- ingest to his were vital that in struck him the officer alleging (JR’s well-being physical (Ander- tal and as he his fist with nose face and/or to “re- officers urged the in the securing JR mother had er) and positioning as custody as soon the two- from son] leas[e] [her squad seat of back car—before ingest might sta- he to the order that drive possible” minute-two-second ¶ score, 34); And on Aff. drugs, Cook began. tion his concluded, part judge properly district individual, including those (6) not one concerning issues serious raises “Anderer by police, ever corroborat- interviewed Jones, v. credibility ...Anderer allegation, five at least and ed JR’s (E.D.Wis. Sept. 01-C-0668, at *7 No. (Sho- police officers individuals —four of the 2002). parts pertinent recap To Centeno) Bohlen, Cook, and man,, and IAD command record, the MPD (Mitchell) witness one citizen —affir- Chief, officers, including the investigating hallucinatory matively refuted JR’s a (or, they conducted had were aware was inter- only Shoman (although tale investigation, and unbiased reasonable arrest); prior by police viewed of) the aware been have at least would any (7) or blood no record there is served should have which following factors and, uniform, on other stain doubt, if in serious credibility put high-powered flash- a under viewed destroy completely: it not blood, light. had no abra- behavioral (1) a demonstrated had JR swelling scratches, sions, brusing, or outrageous, (he out- problem exhibited any hands, much less his of tissue on profane lan- of-control, and obscene trauma, Report see Smith evidence arrest, and guage at the scene ¶ 98; 9; Aff. at Anderer a he was stated Shoman further Officer lip ” not cuts were (8) inner JR’s minor area); problem patrol in her “constant allega- juvenile’s with consistent ar- (2) sue had threatened JR bg a the face hit in he was tion that get money resting (the I.D. Technicians male 200-lb. adult Logan) Cook, (Anderer, them as true accept we must testified —and fíred; ap- [lip] cut stage “small this —that propensity to a (3) had exhibited JR may have bitten though peared [JR] rap- (he Cook had Officer lie accused sore,” and thus a or had canker lip court found ing trial him—which juvenile’s [the “was not consistent Jones, lie,” Anderer v. “obvious be an allegation was] struck (ED.Wis. 01-C-0668, Sept. *7at No. ¶ 16); [Anderer],” Aff. 2002)); Kathrein face JR, .(9) offhanded although heavily supposed to be (4) JR he was struck claimed manner ingest flippant (but failed to medicated Anderer, and suffered arrest) in the face dap of prescriptions result, there was as a nosebleed prescribed (and of JR’s least two would not performed, Anderer incident, inju- one been he inflicted out of Also, never probable cause decision because Reddin’s arrested self.” ries to to conduct IAD failed that the helps establish existed. investigation, for had good-faith a reasonable bruising, scintilla of (a) evidence abra- concludes that because: JR arrived at sions, swelling, any other sign of the police nose; (b) station with a bloody face, nose, trauma to JR’s mouth or sitting while at a table with the other lips which would correspond with be- burglary suspects, all of whom laugh- ing hit in the face awith hand or fist. ing joking situation, about their Also, the cuts on the inside of JR’s made the off-hand comment “[t]hat lips, nosebleed, as well as the in the me,” officer hit (C) Cook 30; Aff. at mark, absence of laceration, give refused statement bruise or abrasion on the outside of there enough evidence to matter: JR’s face are NOT consistent with a support Chief Jones’s decision to arrest blow to the face a from 200 lb. adult for Opinion abuse. See at 1050. male officer. It is more accu- rate to believe that the minor inner-lip Furthermore, majority improperly injuries resulted from a self-inflicted and legal without authority, relies lip bitten which perhaps resulted from on Anderer’s invocation of his contrac- injestion of myriad a of medi- right tual to a refuse statement absent which, combination, cations caused representation, resulting and his “fail- (canker his dried-out mouth condition give ure” statement, to a support as sores) and that the nosebleed was probable their cause determination. caused a normal/hearty sneeze Opinion Contrary at *10. to the reason- ruptured which thin nasal mem- ing employed by MPD, the trial (contrib- or brane a small blood vessel court, and majority; now the court uted to abnormal bleeding caused law approved ever has allowed or of us- by the medication he was ingesting) ing suspect’s a exercise of his constitu- passage; in the nasal and right give tional refuse a statement (10) diagnosed bg psy- a in a criminal in which he from, suffering auditory chiatrist as suspect is a establishing as a factor and visual hallucinations as well as probable addition, cause. propensity with the to “harm himself was entitled right to invoke his to have opportuni- and others” and he had the representative present during any ty upon (self to inflict harm himself questioning pursuant employment his arms) mutilation on both and others MPD; contract with the therefore, (i.e., falsely accusing rape Cook of and request should have been used or claiming he would sue both Cook against Thus, construed him. there are fired; chewing Anderer and have them two biting lip) insurmountable hurdles and road- blocks, one constitutional and the other majority somehow past looks all of contractual, majority, district the recorded exculpatory evidence which court, and attempt MPD’s to use Ander- seems to make clear propen- JR’s obvious give er’s refusal a statement as a sity (in to fantasize and lie while stark factor establishing cause for contrast the trial judge’s contrary find- Indeed, his arrest. MPD, what the ing dis- that JR was not reasonably credible court, trict majority witness) accomplished embracing claim, unacceptably was to 200-lb. Officer twist Anderer’s in- Anderer hit him face with his fist as vocation rights contractual being placed as car, the squad as well being reasonably credi- inherent constitutional ble. Opinion rights at 1049-50 (finding against use them him as a favor of JR’s credibility). The majority basis for his arrest. investigators were avail- well knew alone whom that JR’s statement apparent is It exculpat- testimony give , able to able proba- establish sufficient also not noted, ing Officers As I Anderer. correct- court for, district cause, as the ble Cook, as well Centeno, Bohlen it is well-settled agree, I ly found Ander- Mitchell, have exonerated would activity of criminal allegation claimant’s loere only these witnesses not one er—but establishes arrest. We prior to [that to believe interviewed seems reasonable “it Why even was not ourselves: v. must ask telling person] truth.” Gram&nos wit- Cir.1986) exculpatory one of four Co.,

Jewel HERE, timely interviewed? or Mitchell FOR nesses AND DE- IN FORTH SET THE REASONS tenacity and given the possibly, But HEREIN, AND ESPECIALLY TAIL repeatedly which Chief Jones haste THE THAT THE FACT CONSIDERING charges internal pursued both NOT CON- WERE LIP CUTS INNER of the over- Anderer, in the face OF ANY EVIDENCE WITH SISTENT evidence, exculpatory whelming amount TO TRAUMA OR BLOW AN OUTSIDE investigating that the may be very well it ADULT A 200-LB. FROM THE FACE Chief by their prodded officers MALE, NO THERE WAS THAT GIVEN into con- officers other command and/or ABRASION, BRUISE, LACERATION investigation track’ ‘express ducting an OF SIGN OTHER ANY LESS MUCH (Anderer). subse- Jones’s Chief OF SKIN OUTER TO THE TRAUMA treatment Anderer’s (post-arrest) quent NOSE, AND CONSIDER- HIS FACE OR ex- of evidence case, mountain despite the CAPABLE FULLY JR WAS THAT ING him in the to onerating available Anderer OPPORTUNITY, IN- THE AND HAD re- certainly making process, decision TENTION, HARM TO MOTIVE AND dogged deter- unusual a most flected (ANDERER AND OTHERS HIMSELF prosecuted to have mination COOK) AND RE- AS DIAGNOSED AND force, that: given discharged from PSYCHIA- CHILD BY THE CORDED Attorney Deputy District (1) After the entirely O’GRADY, un- it was TRIST DR. determined Reddin Jon to arrest police for the reasonable processed,” “no because charge would that JR was assumption merit,” prosecutable utterly it “lacked fic- launching the malicious truthful judgment accept that to refused Jones without least allegation titious abuse reopen proceeded the criminal to —at into the investigation proper performing investigation into JR’s accusations— utterly faded (which matter of- investigating “the allegedly ensure do). any facts.” Jones missed had not ficers men- addition, although Aff. together factors Viewing all these prosecute in his by Reddin tioned the law picture, as well total part of the prior alleged letter, any reference stage particular this at thereto applicable against Ander- taken disciplinary actions unrea- it indeed proceedings, considered not be should could and er to arrest proceeded sonable cireumstances;(2) although these under adequate conducting without in- up re-investigation “[n]o turned this (no exam- or medical physical investigation criminal [a] to further ... formation interviewing JR) and without ination of Aff., at Ex. 1001 Hoerig (and prosecution,” lay witnesses police and relevant temeri- nonetheless Jones Chief few) as the citizen wit- such just a select fruitless request, after another ty who were the officers ness Mitchell Hoerig, Pis- Lt. scene, crime alleged witnesses Attorney trict E. Michael press McCann re- guilt 6, 2001, derer’s July —on prior charges (levied evaluate Jon Reddin’s just decision internal 96 hours press charges; not to after Anderer filed suit Jones (3) and the case McCann had laid dormant prior reaffirmed the for a deci- month) against sion not to Anderer for prosecute, again concluding mistreat- prisoner, resulting ment of a charge prosecutable lacked in an merit; order Chief supporting decision not Jones terminate An- derer. prosecute Anderer, McCann cited Red- original din’s no-prosecute memo where light Viewed in Jones’s own unremit- Reddin stated: “I say cannot with any ting to prosecute determination and dis- assurance what .... happened It is en- charge “abuse,” Anderer for the failure of tirely conceivable ... given agita- [JR’s] investigators to conduct an adequate inves- tion, problems mental and stated inten- tigation prior (all to arresting Anderer get money tions to incident, out of this Jones’s request), though no less unreason- that he injuries inflicted the to himself.” able, is at very least less surprising. Aff.,

Arthur Jones Exh. 1002. Indeed, we must wonder if type (4) then, just after Anderer filed the unreasonable, careless improper inves- instant July lawsuit on Chief tigation (unfortunately) may hap- Commander, Jones’s IAD Steven Set- pened before at the during MPD the past tingsgaard decided See, forthwith —without years. few Driebel, e.g., 298 F.3d at any new or additional evidence of An- 622.30 This begs following question: investigation 30. techniques employed by present sentative answering any before ques- the investigators best, IAD may, in this case tions and was told that if give he did not a be shocking. Many described as poten- statement "suspended he be would until fur- tial witnesses in subjected this were case ¶ ther Logan notice.” Logan Aff. 38. then intimidation and threats IAD officers seek- answered the investigators' IAD questions. ing gather to somehow evidence that would During Hoerig’s Lt. investigation second suggest Anderer had a committed crime. On allegations into JR's type the same of coercive night incident, the of the alleged Officers intimidating and employed. tactics were Offi- Logan Cook and give were both asked to a Shoman, Cook, Logan, cers and Anderer were dealing statement investiga- with the criminal subjected all to threats and coercion through- tion allegations against of JR’s Anderer. investigation. out the On June Offi- Both officers refused to make a statement (invoking cer Shoman rights) her contractual provided until tive, were representa- awith also refused to make a rep- statement without guaranteed under them the MPD rules Hoerig resentation. responded by bringing regulations. and provided Neither were with sergeants two compel in to Shoman to make representatives, but were threatened with a statement. Shoman continued to refuse to (which PI-21 compel would give them to a make a statement representative without a notwithstanding statement the rep- denial of and was suspension. threatened with resentation). Detec- night, Later same that Cook tive Harrison told your her: "It’s not worth was threatened with suspension immediate if ¶ job.” Shoman sitting Aff. 34. statement, After give did not si- a and he relented. lence for 15 finally minutes Shoman question The first broke asked of him was whether down and said give she that would "Officer Shoman was state- involved with Officer ment, requested but that it be Anderer.” noted in Cook Aff. 46. Cook told the speaking reports investigators know, that she that he was "under not "did nor duress." germane it Id. at 35. At the subject.” to the end interview Cook then of Officer displeasure pro- asked that the Shoman indicated ceedings investigators every note that her with the opinion giving duress,” answer he was and voiced "under her that the entire investigation "personal” investigators which to note failed on of and "crooked." the documents included in the Id. at record. Id. at Also, 18, 2001, day, April next on Officers Logan Cook expe- and had similar Logan Officer requested repre- that he have a riences with the during IAD the sec- in his favor construed evidentiary record sub- officers, any, if many other How proceed stage is required of hurried type to the same jected pre has apparent and arrested it is ings, judgment rush prejudicial to sur enough evidence more than sented cause? without it is clear that summary judgment, vive ill-advised majority’s Perhaps would) find, (and juror could a reasonable insist statement complimentary than less has facts Anderer undisputed based the facts of discussion my detailed ing that evidentiary of absence and the presented Anderer, combined exonerating contrary, support the MPD’s inadequacy to arrest Anderer. exist did not closing argu persuasive present “might Sewerage Metro. v. Milwaukee Appelbaum 9, merely n. at 1050-51 ment,” Opinion Cir.2003). Dist., 578-79 over F.3d their frustration depth reflects majority’s overcome I from Accordingly, dissent unable they are- the fact THE DIS THAT Anderer’s’ URGE overwhelming evidence opinion SUM Con OF important GRANT COURT’S TRICT culpability lack my dissent. DEFEN FOR raised JUDGMENT MARY questions stitutional THIS every other citizen AND like BE REVERSED DANTS free to have his States, is entitled DIS TO THE United BE REMANDED CASE vigorously seizure from search IN ORDER dom TRIAL FOR COURT TRICT pre the courts BE ALLOWED protected MAY THAT ANDERER by a guilty proven until innocent CASE, EN sumed IN ITS HIS PRESENT TO thus, law; in a court peers jury of HIS OF TIRETY, A JURY BEFORE does he is the fact PEERS.31 to a watered- “relegated he is mean rights.” of constitutional version down case, in this

Driebel, And at 637. as a whole the record reviewing

after thereto, I am convinced applicable law during IAD the conduct charge con abuse into in careless an unreasonable

stituted nothing but amounted to it and that

quiry regard sham, without pursued

an utter fact, in violation and, truth Amendment, Fifth Fourth contractual, When rights. as his

as well aas viewed whole record is the district opinion that I am 31. While Under threat investigation. round ond summary judgment granting answer eventually decision agreed court’s each suspension denying Anderer 20 minutes trial (however, it took of Jones questions in favor offering firearm constitu- and Cook that his his claim discussion merits of on the and coercion as threats investigators as well ar- violated rights were tional in and caved the officers error, before by the IAD I cause was without rested displea- talked). their voiced Both on Ander- decision majority’? with the concur process: Cook investigatory with the sure need not claim and Amendment er’s First com- and MPD IAD stating he believed issue. discuss Anderer; "get" were out mand officers stating Logan that Anderer’s believed that he “retaliation." an act termination

Case Details

Case Name: Joseph R. Anderer, Jr. v. Police Chief Arthur Jones

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Oct 6, 2004

Citation: 385 F.3d 1043

Docket Number: 02-3669

Court Abbreviation: 7th Cir.