Weekly Case Digests — Nov. 16-20, 2015

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U.S. Supreme Court

Supreme Court of the United States

Petition for Certiorari – Qualified Immunity

14-1143 Mullenix v. Luna

Officer’s use of deadly force falls within the protection of qualified immunity

“Cases that the Fifth Circuit ignored also suggest that Mullenix’s assessment of the threat Leija posed was reasonable. In Long v. Slaton, 508 F. 3d 576 (2007), for example, the Eleventh Circuit held that a sheriff ’s deputy did not violate the Fourth Amendment by fatally shooting a mentally unstable individual who was attempting to flee in the deputy’s car, even though at the time of the shooting the individual had not yet operated the cruiser dangerously. The court explained that “the law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the suspect” and concluded that the deputy had reason to believe Long was dangerous based on his unstable state of mind, theft of the cruiser, and failure to heed the deputy’s warning to stop. Id., at 581–582. The court also rejected the notion that the deputy should have first tried less lethal methods, such as spike strips. “[C]onsidering the unpredictability of Long’s behavior and his fleeing in a marked police cruiser,” the court held, “we think the police need not have taken that chance and hoped for the best.” Id., at 583 (alteration and internal quotation marks omitted). But see Smith v. Cupp, 430 F. 3d 766, 774–777 (CA6 2005) (denying qualified immunity to an officer who shot an intoxicated suspect who had stolen the officer’s cruiser where a reasonable jury could have concluded that the suspect’s flight did not immediately threaten the officer or any other bystander).”

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Petition for certiorari granted

5^th Circuit Decision Reversed

Scalia concurring

Sotomayor dissenting

Wisconsin Supreme Court

WI Supreme Court

Disciplinary Proceeding

2015AP1732-D Office of Lawyer Regulation v. Michael M. Switalski

Attorney investigated for possession of child pornography files consensual license revocation.

“We agree that revocation of Attorney Switalski’s license to practice law in Wisconsin is warranted. Attorney Switalski pled guilty to multiple counts of possession of child pornography. SCR 20:8.4(b) provides that it is professional misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Attorney Switalski has acknowledged that he cannot successfully defend himself against the misconduct allegations. Accordingly, we grant the petition and revoke his license to practice law in Wisconsin. “

License to practice law in WI revoked

ANN WALSH BRADLEY, J., and REBECCA G. BRADLEY, J., did not participate.

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7^th Circuit Court of Appeals – Criminal

Criminal

7^th Circuit Court of Appeals

Officials: BAUER, KANNE, and ROVNER, Circuit Judges.

Pleas & Sentencing – Court Error

No. 14-2519 United States of America v. Martise Chatman

Criminal

7^th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and MANION and WILLIAMS, Circuit Judges.

Suppression of Evidence

No. 13-2586 United States of America v. Feras Rahman

Evidence obtain from search of basement in arson case stemming from consented search suppressed fore exceeding scope of consent.

“The analysis of Clifford helps us determine the parameters of the written consent Rahman gave to fire investigators “to determine the origin and cause of the fire that occurred on 1/19/10.” Relying on Clifford, we find that based on the totality of the circumstances, an objective reasonable person would conclude that when investigators asked Rahman for consent to determine the origin and cause of the fire, they would understand the request to be for consent to determine where the fire occurred and what sparked the fire, not for a search whose primary object is to look for criminal activity”

Reversed and Remanded

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Criminal

7^th Circuit Court of Appeals

Officials: EASTERBROOK, KANNE, and WILLIAMS, Circuit Judges.

Motion to Suppress – Sentencing – GPS Search

No. 14-3187 United States of America v. Richard Martin

Police warrantless use of GPS tracking device on appellant vehicle to track suspected drug trafficking permitted per WI precedent.

“Martin attempts to support his position that there must be affirmative evidence of “good faith” or actual reliance by directing us to the cases where we have applied Davis’s holding. According to Martin, there was evidence in these cases that the police had acted without recklessness or gross negligence. He notes that in Brown, police believed their installation of a GPS tracking device on a vehicle with the owner’s consent was the same as asking an informant to wear a concealed recording device, 744 F.3d at 476, and that in United States v. Gutierrez, 760 F.3d 750 (7th Cir. 2014), a prosecutor instructed the police to conduct the warrantless search at issue, id. at 752. As for United States v. Taylor, 776 F.3d 513 (7th Cir. 2014), he highlights that a deputy prosecutor sought authority from the court to attach a GPS device before the warrantless search occurred. Id. at 514. From these cases, he concludes that we have only refused to apply the exclusionary rule where police “did not act recklessly, deliberately, or with gross negligence because they acted in good faith reliance on the belief that the law permitted their con‐ duct.” (Appellant’s Br. at 18 (emphasis original).)  “

Affirmed

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Wisconsin Court of Appeals – Civil

Civil

WI Court of Appeals – District III

Officials: Stark, P.J., Hruz and Seidl, JJ.

Property Law – Adverse Possession

2014AP2893 Ronald J. Rudnick v. Gary B. Rudnick

Gary and Laurie Rudnick appeal an order granting an adverse possession claim in favor of Ronald Rudnick following a jury verdict. We conclude the evidence presented at trial failed to meet the legal standards for adverse possession as a matter of law, and therefore reverse and remand for further proceedings.

Civil

WI Court of Appeals – District II

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Municipality – Police Powers

2015AP403 First State Bank v. Town of Omro

The issue presented is whether a municipality may use its police powers to build roads and levy special assessments against the land benefitted after a developer defaults in its obligation to build the roads. The Barony subdivision, a seventy-four lot subdivision in the Town of Omro, received final plat approval in 2004. By 2009, only a few of the lots had been sold and First State Bank had acquired all sixty-five remaining lots in lieu of foreclosure. As of 2009, the roads in the subdivision had not been paved. In 2013, the Town authorized finishing the roads and specially assessed the lots within the Barony subdivision for the cost of completing the roads. The Bank challenges the Town’s authority to levy the special assessments as to all lots and specifically challenges the assessments as to lots four, five, and fifty-five, which do not abut any of the roads built by the Town. We affirm that part of the circuit court’s summary judgment decision ratifying the Town’s special assessment against the lots that benefit from the road project. We reverse that part of the court’s decision that found that the three lots not abutting the improved roads received special benefits; there is a genuine factual dispute over this issue, making it inappropriate for resolution at the summary judgment stage.

Affirmed in part

Reversed and remanded in part

Recommended for publication

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Civil

WI Court of Appeals – District IV

Officials: Kloppenburg, P.J., Sherman, and Blanchard, JJ.

Divorce – Child Support Modification

2015AP444 Heather Brehm v. Jonathon Brehm

Heather E. Brehm appeals from a judgment of divorce. She challenges two aspects of the property division and the circuit court’s refusal to retroactively modify Jonathon M. Brehm’s child support obligation for the twelve months between the temporary order and the divorce hearing. Because Heather has not shown that the circuit court erroneously exercised its discretion, we affirm.

Affirmed. Per Curiam.

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Civil

WI Court of Appeals – District IV

Officials: Kloppenburg, P.J., Lundsten and Sherman, JJ.

Declaratory Judgment – City Ordinance

2015AP678 Town of Hoard v. Clark County

The question on appeal is the legality of Town of Hoard Ordinance No. 091113, which imposes an annual charge on all property owners within the Town for the cost of fire protection. Pursuant to the ordinance, the Town charged Clark County, as the owner of a medical center in the Town, $3,327.68 for fire protection for 2014. The Town brought this action for declaratory relief in an effort to compel the County to meet its obligation under the ordinance. The Town moved for, and the circuit court granted, summary judgment in its favor. The County appeals.

Affirmed

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Wisconsin Court of Appeals – Criminal

Criminal

WI Court of Appeals – District I

Officials: Curley, P.J., Kessler and Brennan, JJ.

General Appeal – Denial of Postconviction Motion

2014AP354-CR State of Wisconsin v. Jeffrey L. Elverman

Jeffrey Elverman, pro se, appeals the judgment of conviction for theft greater than $10,000, contrary to WIS. STAT. §§ 943.20(1)(a) and (3)(c) and 939.50(3)(g) (2003-04). He also appeals the order denying his postconviction motion.3 Elverman presents numerous arguments on appeal: (1) that the complaint was defective because it did not sufficiently give him notice of the charges against him; (2) that the statute of limitations had expired prior to commencement of the criminal proceedings as to all but two checks at issue, or alternatively, that the statute of limitations had expired as to all checks at issue because the filing of the complaint did not commence criminal proceedings; (3) that venue was not proper in Milwaukee County; (4) that the trial court erred in denying his request for a unanimity jury instruction; (5) that the evidence was insufficient to establish that he lacked consent; and (6) that his trial counsel was ineffective. We affirm.

Criminal

WI Court of Appeals – District III

Officials: Stark, P.J., Hruz and Seidl, JJ.

Pleas & Sentencing – Plea Withdrawal

2014AP2717-CR State of Wisconsin v. Kyle W. Buckles

Kyle Buckles appeals a judgment of conviction entered pursuant to a plea agreement and an order denying his motion for postconviction relief in these consolidated cases. Buckles argues he is entitled to plea withdrawal because a particular provision in the plea agreement—that several offenses would be dismissed and read in “for restitution only and not for sentencing”—was illusory, and because he received ineffective assistance of counsel by virtue of his attorney’s negotiation of an ambiguous plea agreement. In the alternative, he contends the State breached the plea agreement by its comments at sentencing. We reject Buckles’ arguments and affirm.

Affirmed. Per Curiam.

Criminal

WI Court of Appeals – District III

Officials: Stark, P.J., Hruz and Seidl, JJ.

Pleas & Sentencing – Sentence Modification

2015AP144-CR State of Wisconsin v. Harlan M. Schwartz

Harlan Schwartz appeals an order denying his sentence modification motion without a hearing. He contends he established new factors consisting of his offer to assist in the prosecution of a co-participant in his crimes, Michael Tucker, and the State’s rejection of the offer, resulting in no prosecution of Tucker. The circuit court denied the motion, concluding a rejected offer to assist in the prosecution of a third party does not constitute a new factor. Because we conclude Schwartz failed to establish a new factor as a matter of law, we affirm the order.

Affirmed.

Criminal

WI Court of Appeals – District II

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Pleas & Sentencing – Plea Withdrawal

2015AP26-CR; 2015AP27-CR; 2015AP28-CR State of Wisconsin v. Jason A. Sodemann

Jason A. Sodemann pled no contest to three counts of burglary as a repeater and one count of robbery with use of force. He asks that we allow him to withdraw his pleas, reverse the judgments of conviction and the order denying his motion for postconviction relief, and remand for reinstatement of the original charges in the three underlying cases and for further proceedings. The gist of his claim is that his two appointed attorneys rendered ineffective assistance, the first by failing to seek a proffer, or limited immunity, agreement before Sodemann voluntarily gave an inculpatory interview to police, and the second, assuming the first’s ineffectiveness, by failing to move to dismiss the case or to suppress the unprotected statement. We disagree and affirm.

Affirmed.

Criminal

WI Court of Appeals – District II

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Pleas & Sentencing – Sentence Modification

2015AP426-CR State of Wisconsin v. Randy L. Behnke

Randy L. Behnke appeals pro se from an order denying his motion for sentence modification. He contends that he is entitled to sentence modification based upon the existence of new factors. He also contends that the circuit court erred when it removed a sentence credit awarded in his case. We disagree and affirm.

Criminal

WI Court of Appeals – District I

Officials: Kloppenburg, P.J., Sherman and Blanchard, JJ.

Suppression of Evidence

2015AP98-CR State of Wisconsin v. Michael Lamar Robinson

A jury found Michael Lamar Robinson guilty of possession of between five and fifteen grams of cocaine, with intent to deliver, contrary to WIS. STAT. § 961.41(1m)(cm)2. (2013-14). The circuit court sentenced Robinson to four years of initial confinement followed by two years of extended supervision, to run consecutively to any other sentence. The sole issue on appeal is the circuit court’s denial of Robinson’s suppression motion challenging an investigatory stop. We conclude that the stop was constitutional, and therefore we affirm the judgment of conviction and postconviction order.

Affirmed.

Criminal

WI Court of Appeals – District IV

Officials: SHERMAN, J.

OWI – Blood Draw – Suppression of Evidence

2015AP656-CR State of Wisconsin v. Patrick K. Kozel

Patrick K. Kozel appeals from a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant (OWI), second offense. Kozel contends the circuit court erred when it denied his motion to suppress the blood draw evidence. He argues that the blood draw evidence was inadmissible because the State failed to prove that the blood draw was conducted by a “person acting under the direction of a physician,” as required by WIS. STAT. § 343.305(5)(b), and because the method and manner of the blood draw were not constitutionally reasonable. I agree with Kozel that the evidence presented at the suppression hearing failed to establish that Kozel’s blood draw was conducted by a “person acting under the direction of a physician.” Accordingly, I reverse the judgment of conviction and remand for the circuit court to suppress the blood draw.

Criminal

WI Court of Appeals – District I

Officials: CURLEY, P.J.

Termination of Parental Rights

2015AP1477; 2015AP1478 State of Wisconsin v. N.J.

Nicole J. appeals from circuit court orders terminating her parental rights to G.H. and J.H. She argues that WIS. STAT. § 48.415(6), as applied to her, violates her right to substantive due process because she was found to have failed to assume parental responsibility despite the Milwaukee Child Welfare Bureau’s alleged failure to make reasonable efforts to reunite her with her children. For the reasons that follow, we affirm.

Affirmed.