01-2722, 01-2793 Marshall v. Teske, et al.

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“[T]he argument that the defendant police officers had probable cause to arrest Marshall for knowingly resisting or obstructing them is absurd. Because we are required to construe the facts in the light most favorable to Marshall, we assume that the officers did not identify themselves sufficiently to notify Marshall that they were police. This assumption is supported by the testimony of [uniformed police officers] Hoyt and Jacobs, who did not initially realize that Teske was a police officer. Only after Teske pulled down the velcro flap covering his police insignia did Hoyt and Jacobs realize that Teske was an officer. Construing the facts in the light most favorable to Marshall, we assume that the flap was covering Teske’s police insignia at the time that Marshall first saw Teske and that Teske knew that this was the case. Based on Marshall’s testimony that he did not see nor hear anything identifying the officers as police, we assume that all of the containment officers were insufficiently identifiable as police. Therefore, because the defendant officers were not identifiable as police, a reasonable officer in their position would not have assumed that Marshall was knowingly running away from them and thus resisting or obstructing their actions as ‘police officers.’ A reasonable officer would have realized that someone who runs toward a marked police car is not knowingly resisting or obstructing police.”

Affirmed.

Appeals from the United States District Court for the Eastern District of Wisconsin, Curran, J., Evans, J.