v. The CITY OF MILWAUKEE DECISION AND ORDER TERENCE T. EVANS, Chief Judge . “I'm
on 25th and State, and there is this young man. He's buck naked. He has
been beaten up ... He is really hurt ... He needs some help.”
With
these words, a caller asked a Milwaukee Emergency 911 operator to send
help to a person in need of assistance. When the call was made, on May
27, 1991, the name Jeffrey Dahmer was largely unknown. Today, everyone
knows the story of the 31-year-old chocolate factory worker, a killing
machine who committed the most appalling string of homicides in this
city's history.
Dahmer's
misdeeds have been widely chronicled. Dahmer, who is white, has
confessed to killing 17 young men between the ages of 14 and 28. Eleven
of the victims were black, and most were lured into Dahmer's web with
promises of, among other things, a sexual experience. The case is
incredibly gruesome and bizarre; the dismembered bodies of many of the
victims-hearts in the freezer, heads in the fridge-were preserved in
Dahmer's small near west-side apartment. The leftovers were deposited
in a barrel of acid, conveniently stationed in the kitchen.
Dahmer pled guilty to 15 of his
16 Milwaukee County homicides.
The 15 murders were committed between January of 1988 and July of 1991.
Last month, a jury rejected Dahmer's insanity plea. Today he is a guest
of the state of Wisconsin, having been sentenced to life imprisonment
without the possibility of parole.
Dahmer's
recent well-publicized state court trial dealt with a narrow issue; his
mental state at the time of the murders. These four federal civil cases
raise broader issues, issues that concern the community at large. The
issues here concern the conduct of several police officers, policies
and attitudes of the police department toward minorities and gays, and
the rights of some of the victims of Dahmer's madness. This decision
will address some of the issues presented in the cases.
The
telephone call for help on May 27 was made from a phone booth just a
half a block away from Dahmer's apartment. The subject of the call was
Konerak Sinthasomphone, a 14-year-old Laotian boy. Later that evening,
after the police had responded to the call and determined that nothing
was amiss, Dahmer killed Sinthasomphone. He went on to kill others,
including
Matt Turner in June, Jeremiah Weinberger in early July, and Oliver Lacy
and Joseph Bradehoft in mid-July. He terrorized Tracy Edwards before
Edwards escaped and led the police to Dahmer, who was finally arrested
on July 22, 1991. After the arrest, Dahmer confessed to 17 murders.
The
estate of Konerak Sinthasomphone and his family have filed a lawsuit
claiming that the police officers and the City of Milwaukee violated
their constitutional rights... The defendants have moved to
dismiss the cases, under rule 12(b)(6) of the Federal Rules of Civil
Procedure, arguing that the complaints fail to state claims upon which
relief can be granted.
The
details of Dahmer's killings are widely known and undisputed. As to the
details of what occurred on May 27, however, the facts and the
inferences to be drawn from the facts are in dispute. In deciding on a
rule 12
defense motion to dismiss a complaint, I must focus solely on the
allegations as pleaded. All factual allegations must be accepted as
true in analyzing a motion to dismiss a complaint. A motion to dismiss
should not be granted “unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.”
As alleged in the amended Sinthasomphone
complaint, the facts, which at this time I must legally assume to be
true, are as follows.
In
May of 1991, the 31-year-old Dahmer was on probation following a 1988
conviction for sexual abuse of a male child. He brought young
Sinthasomphone to his apartment. There he held the boy captive, drugged
him, stripped him of his clothing, and committed acts of physical and
sexual abuse. All the while, the remains of previous victims of
Dahmer's madness lay decaying in another room of the apartment.
Somehow,
shortly before 2 a.m. on May 27, 1991, Sinthasomphone escaped from the
apartment and-although he was drugged, naked, and bleeding-made his way
to the street. On the street, Nichole Childress and Sandra Smith, two
young black women, saw him and called the police. Before the police
arrived, Dahmer appeared and tried to reassert physical control over
Sinthasomphone. Childress and Smith intervened.
Officers
Balcerzak, Gabrish, Porubcan, and an unidentified MPD trainee came to
the scene, as did Milwaukee Fire Department personnel, including
paramedics. The police officers directed the fire department personnel
to leave.
The
complaint alleges, and again I must on this motion accept the
allegations as true, that the officers intentionally and deliberately
refused to listen to the following specific information conveyed by
Nichole Childress, Sandra Smith, and others: that Sinthasomphone was a
child; that he was trying to escape from Dahmer, that Dahmer had
referred to Sinthasomphone by various names; that Dahmer was attempting
to physically control Sinthasomphone; and that Sinthasomphone was
drugged, hurt, and had been sexually abused. The officers threatened to
arrest Childress and Smith if they persisted in trying to help
Sinthasomphone or to provide information.
Another
allegation is that the police officers took Dahmer and Sinthasomphone
into actual, physical police custody and back into Dahmer's apartment,
where they ultimately delivered Sinthasomphone into Dahmer's custody,
without obtaining consent from Sinthasomphone or his parents. The
police concluded that Dahmer and Sinthasomphone were adult homosexual
partners who,
at least at that time, were staying together in Dahmer's apartment. By
returning young Sinthasomphone to Dahmer, it is claimed that the police
interfered with any potential rescue of Sinthasomphone by private
persons.
The
complaint also sets out allegations that the City of Milwaukee, through
its police department, has a longstanding practice of intentional
discrimination against and reckless disregard of the rights of racial
minorities and homosexuals. The unlawful conduct of the officers in
this case reflects, the complaint states, “practices and customs so
permanent and well-settled as to constitute de facto City and
MPD policy.” The policy is established in
part, it is claimed, by the use of excessive force against racial
minorities; failure to adequately train police cadets; failure to
discipline police officers for using excessive force against racial
minorities; failure to respond to complaints by racial minorities;
failure to hire and promote racial minorities unless ordered to do so
by a court; and failure to train officers in interracial communication
skills. In addition, the complaint points to substantial civil rights
litigation, with incidents dating back to 1958, to reveal what it says
is the discriminatory history of the Milwaukee Police Department. The
department's history of discrimination is revealed, it is alleged, by
the strong criticism of current chief Philip Arreola's “isolated
condemnation” of the police conduct in this case, criticism heard from
the police union, numerous officers, and two prior Milwaukee police
chiefs.
The
complaint further alleges that Officers Balcerzak, Gabrish, and
Porubcan are products of the discriminatory policies, “which led them
to the wrong conclusion that they stand in opposition to minority
members of the community which they serve.... This caused them not to
perceive that crimes had been committed before their arrival, and were
continuing before their eyes on May 27, 1991.” It caused them to treat
“an obviously serious and grave incident with deliberate indifference,
and jocularity, as if it were somehow comical.” It caused them to
disregard a call from a concerned black citizen, shortly after
Sinthasomphone was returned to Dahmer, in which the caller insisted
that Sinthasomphone was a child. It caused the police to disregard
information that a reported missing person, Konerak Sinthasomphone, was
the victim in the May 27 incident. All of these actions, it is alleged,
deprived Sinthasomphone of his constitutionally protected rights to
substantive due process and the equal protection of the laws and his
family of their rights to familial association with him.
The
legal difficulties posed by these cases are immediately apparent to
anyone with even a passing familiarity with federal civil rights
litigation. The genius of the Sinthasomphone complaint in
trying to avoid those difficulties is also apparent. The question is
whether it has succeeded.
A major difficulty is that posed
by a doctrine reaffirmed in a recent case, DeShaney v. Winnebago
County Dept. of Social Services (1989).
Essentially, it is that the purpose of the Constitution “was to protect
the people from the State, not to ensure that the State protected them
from each other....”
However, the DeShaney
doctrine is not without some small cracks in its surface; hairline,
perhaps, but cracks nonetheless. In White v. Rochford, 592 F.2d
381 (7th Cir.1979), the court
determined that Chicago police violated the constitution when they left
three children, unattended, in a car on the Chicago Skyway after
arresting the adult who had been driving the car in which the children
were riding. After exposure to the cold, the children left the car,
crossed eight lanes of traffic, and wandered around on the freeway at
night searching for a telephone. Presumably, on those egregious facts,
a violation would be found today, even after DeShaney.
Ross v. United States, 910
F.2d 1422 (7th Cir.1990), is, in fact, a case which was decided after DeShaney.
A 12-year-old boy slipped into the water of Lake
Michigan. A friend summoned help, and within 10 minutes two lifeguards,
two fire fighters, one police officer, and two civilians, who were
scuba-diving nearby, responded. However, before any rescue attempt
could begin, a Lake County deputy sheriff arrived in a marine patrol
boat. He insisted on enforcing an agreement between the city of
Waukegan, Illinois, and Lake County, Illinois, which required the
county to provide all police services on Lake Michigan. Pursuant to
that agreement, the sheriff had promulgated a policy that directed all
members of the sheriff's department to prevent any civilian from
attempting to rescue a drowning person and contemplated that only
divers from the city of Waukegan Fire Department could perform rescues.
The deputy ordered all rescue attempts to stop. When the civilian scuba
divers offered to attempt a rescue at their own risk, the deputy
threatened to arrest them. Twenty minutes later, 30 minutes after the
first would-be rescuers had arrived, the officially authorized divers
pulled the boy from the water. He later died. The court found that the
complaint stated a claim against both Lake County and the individual
deputy.
The line between DeShaney
and Ross may not be entirely clear, but it is discernable. Both
courts, in fact, have articulated where it is. Justice Brennan,
dissenting in DeShaney, points out that the result in a given
case may depend on the characterization of the violation: is it a
failure to act or an affirmative act:
In
a constitutional setting that distinguishes sharply between action and
inaction, one's characterization of the misconduct alleged under §
1983
may effectively decide the case. Thus, by leading off with a discussion
(and rejection) of the idea that the Constitution imposes on the States
an affirmative duty to take basic care of their citizens, the Court
foreshadows-perhaps even preordains-its conclusion that no duty existed
even on the specific facts before us.
Threading its way through the
action-inaction distinction, the court in Ross states that the
actions of the deputy and the policy of the
county did not constitute a simple failure to provide rescue services.
Rather, [t]he plaintiff complains of a much different type of
constitutional
wrong. The plaintiff does not allege that the county had a policy of
refusing to supply rescue services. Rather, the wrong suffered by the
plaintiff and her decedent is the county's forced imposition of
services that William [the boy who drowned] did not want or need; the
plaintiff alleges that the county had a policy of arbitrarily cutting
off private sources of rescue without providing a meaningful
alternative....
We
do not want to pretend that the line between action and inaction,
between inflicting and failing to prevent the infliction of harm, is
clearer than it is. If the state puts a man in a position of danger
from private persons and then fails to protect him, it will not be
heard to say that its role was merely passive; it is as much an active
tort-feasor as if it had thrown him into a snake pit.
Obviously, having dissected these
cases, the Sinthasomphone plaintiffs have not merely alleged
that the
police officers failed to protect Konerak Sinthasomphone from Jeffrey
Dahmer. Rather, they allege, among other things, that the officers
actively prevented private citizens from helping Sinthasomphone and, in
fact, delivered Sinthasomphone, who was a minor, not to his parents,
but into Dahmer's custody. The police left him with Dahmer despite the
persistent attempts of private citizens to urge them to investigate
further. One of the officers assured a concerned private citizen, who
later called the police station, that everything was under control. In
other words, the allegations are not just of police inaction, but of
police action, action which violated Konerak Sinthasomphone's
substantive due process rights. I find that a claim is stated on this
basis alone.
Nevertheless, other allegations
deserve mention-allegations which also may serve to distinguish this
case from DeShaney. As I stated above, in DeShaney the
Court rejected the argument that Joshua DeShaney
was in a “special relationship” with the state officials. Under the
law, were a special relationship to be found, the officials could have
been responsible for what happened to Joshua. The Court pointed out
that Joshua had been temporarily in the custody of the state, but he
was then returned to the custody of his father, where he lived for 15
months before he was injured. The Court found that no special
relationship could be inferred from the state's knowledge of his
predicament or its “expressions of intent to help him.”
The Sinthasomphone case
is different, but is it different enough?
Sinthasomphone had escaped from Dahmer and had found persons to help
him. He also, it is claimed, showed fear of Dahmer. However, he was
then taken into what could be termed, at least, as brief police
custody. During the time the police were in control, they prevented
others from helping him. Then the police returned him to Dahmer's
apartment. They were returning a minor, the complaint alleges, not to
the custody of his parents, but to an unrelated adult with no
legitimate claim to custody. That person then killed him almost as soon
as the police left. It is a difficult question whether this creates a
“special relationship....”
In the Sinthasomphone case, at the motion to dismiss stage, I cannot say that no special relationship existed between Konerak and the three police officers.... |