Highlights from Wauwatosa's very drawn-out civil rights lawsuit.

Judge dismisses or grants summary judgment to city on most claims.

A Brief Timeline

In September, 2020, Wauwatosa’s Mayor, Dennis McBride, issues a “Proclamation of Emergency” and institutes a city-wide curfew starting on October 7 and extending for several days in anticipation of civil unrest following the Milwaukee County District Attorney’s decision on whether to prosecute then-Wauwatosa Police Officer Joseph Mensah in the fatal shooting of Alvin Cole in February of the same year.

The District Attorney chooses not to file charges against Office Joseph Mensah, and over the next several days, dozens of protestors are arrested and issued citations for being out past the 7 p.m. curfew.

In November, 2020, many of those protestors (the plaintiffs)—with the assistance of Kimberley Motley, an “American international human rights and civil rights lawyer” from Milwaukee whose Wikipedia page editors say, “reads like an advertisement for her law firm” and whose primary author “seems to almost exclusively edit this page or add mentions of Motley to other pages”—file suit (Knowlton, et al. v. City of Wauwatosa) against the city, Mayor Dennis McBride, former Chief of Police Barry Weber (the defendants) for violating their First, Fourth, and Sixth amendment rights.

Two-and-a-half years go by…

On April 11, 2023, the Common Council convenes a closed session to discuss a “Litigation Update regarding Knowlton, et al. v. City of Wauwatosa, Case No. 20-CV-1660, US District Court, Eastern District of Wisconsin.”

I don’t know what they discussed (it was closed, you see) but it did prompt me to look up the court case and read the judge’s most recent ruling from March as well as some of her earlier ones. There are already good articles summarizing the proceedings (See Wisconsin Examiner article and this Milwaukee Journal Sentinel article) but I think you get the best flavor for the last two-and-a-half years from hearing the plaintiffs, the defendants, and the judge in their own words.

Two-and-half years, huh?

Usually when people complain about the wheels of justice turning slowly, it’s the wealthy defendants who are gumming things up—the big agribusiness accused of dumping toxic chemicals in the local water supply brings an army of well-heeled lawyers to drown the sick townsfolk all over again, this time with paperwork. But as far as I could tell in this case, it was usually the plaintiffs who seemed to be creating the problems. Or, at least their lawyers.

For instance there were initially only two plaintiffs with four claims for relief. Over the next year, these claims were then expanded through a confusing series of amendments to the complaint, corrections to the amendments to the complaint, and errata for the corrections to the amendments to the complaint.

First they added 49 new plaintiffs, some more defendants, and 11 additional claims. A little while later they added 18 more plaintiffs and nine defendants but reduced the total number of claims for relief to 10. A few weeks later a “2nd Notice of Errata for the Corrected 3rd Amended Complaint” was filed that added back some of the previous 15 claims because they had been removed on accident. I’m not sure how, but the final total ends up being 16. You can read about it here. It’s only 6 pages.

List of plaintiff’s claims from 2nd Notice of Errata for the Corrected 3rd Amended Complaint. Source

The whole “who are we suing and why”-process took about ten months. Maybe longer, because eventually the plaintiffs filed a “4th Amended Complaint” sometime later. I suspect all of this amending and delay is partly a function of the plaintiffs gathering more information, discovering more people who are involved, and uncovering more potential violations of the law. But also, just kind of being disorganized and slow?

The city was a little irritated about this. Judge Nancy Joseph writes:

Defendants argue that Plaintiffs’ Third Amended Complaint should be stricken based on Plaintiffs’ continued failure to seek leave of court or Defendants’ written consent before filing amended pleadings or to adhere to the Court’s scheduling orders regarding the same. In turn, Plaintiffs argue that striking the Third Amended Complaint would be a disproportionate sanction for Plaintiffs’ innocent mistakes.

Unquestionably, each of Plaintiffs’ amended pleadings filed since March 6, 2021 has been filed outside the deadlines established by the Court’s scheduling orders. […] Defendants are right to call Plaintiffs out on their untimeliness, which they have not explained.

Ultimately, the judge doesn’t think it’s quite bad enough to do more than “admonish Plaintiffs not to file late pleadings without leave of the court.”

Claims dismissed. Fines imposed.

This was in October, 2021. Since then, the plaintiffs have had a number of their claims dismissed, mostly for being kind of inept. For instance, there was some confusion over whether the plaintiffs were or were not suing the defendants for monetary damages. The plaintiffs claim they had always intended to sue for monetary damages and just forgot to mention it. But also that, despite not mentioning, it was still clear to everyone involved that was their intention.

Judge Joseph again:

Plaintiffs seemingly recognize their quandary, noting they made “an error” in the parties section of the complaint. Plaintiffs argue that they “have made clear throughout the entirety of this litigation that they intend to bring suit against Defendants for money damages,” and because they were only given two weeks to redraft their complaint, they “apparently made an oversight in failing to remove the official capacity relief request from the perfunctory parties section.” Plaintiffs state that they “take responsibility to immediately amend this complaint to correct this oversight” and argue that “to dismiss all of Plaintiffs’ claims against the individual Defendants for a multitude of constitutional violations would be exceedingly unjust and in contravention of the pleading standards.”

Plaintiffs’ arguments are not persuasive. As an initial matter, plaintiffs’ assertion about a “tight timeframe” is a nonstarter. This is the plaintiffs’ fourth attempt at re-drafting a proper pleading. Furthermore, if plaintiffs needed additional time to file their fourth amended complaint, they could have simply requested such leave from the Court. They did not. Moreover, I am unconvinced that the plaintiffs “have made clear” throughout the litigation that they were seeking money damages against the individual defendants

[…]

Plaintiffs will not be allowed to file yet another amended complaint. After failing to correct its deficiencies in four attempts, I have little confidence that yet another amendment would do anything beyond causing further delay in this case.

Judge Joseph isn’t happy about this but does appreciate that after two years, maybe the case can go to trial.

Lawyers owe a duty of zealous advocacy to their clients. That advocacy, however, must comport with the requirements of [federal rules of civil procedure] that arguments be nonfrivolous and that the facts alleged be grounded in evidentiary support or in the likelihood of evidentiary support. Further, [federal rules of civil procedure] gives attorneys who may have, perhaps inadvertently, made false statements of law or fact in a pleading before the court an opportunity to correct these errors before a motion for sanctions is filed-a “safe harbor.” The defendants in this case did just that, but the plaintiffs did not respond until the defendants' sanctions motion was filed. And rather than correcting their errors at this point, the plaintiffs doubled down on their misleading statements, offering explanations that were weak, at best.

This case has been plagued with discord and inefficiency from the very beginning, and only now, nearly two years after this case was first filed, do we have a proper operative complaint. Having to address motions such as this one eats up the precious resources of both the court and the parties. Both parties are on notice that these distractions will not be tolerated going forward.

In one of the plaintiffs amended complaints they added several “John Doe” officers as defendants—police officers they think were involved but who had not yet been identified. I assume you are expected to eventually figure this out but maybe they forgot.

Defendants argue that the plaintiffs’ failure to identify John Does 1-100 after sixteen months of litigation warrants dismissal of those individuals from this lawsuit. Plaintiffs counter that the statute of limitations has not yet run on their claims, discovery has not yet concluded, and the City has failed to keep proper records, all of which have impeded plaintiffs’ ability to identify the unknown officers.

[…]

Thus, while plaintiffs argue that their failure to identify the John Doe officers “is not for a lack of trying,” but is “unfortunately in large part due to the lack of discovery compliance”, this statement does not comport with the record. Plaintiffs had defendants’ response as to the names of the officers who worked that night and did not challenge the defendants’ response. If the plaintiffs could not properly ascertain the John Doe Officers’ identities with the responses given in the year-long timeframe given, it is unclear how additional discovery will change this. For these reasons, I will dismiss the John Doe Officer defendants.

This brings us to September, 2022 when the city asked for financial penalties from Attorney Kimberly Motley for making misleading, factually incorrect statements (among other things). For instance, they said that she keeps claiming that the citations issued to the protestors who violated curfew were dismissed for lack of probable cause even though that’s not true (although it doesn’t mention the actual reason they were dismissed). Attorney Motley made some type of rebuttal, but it was apparently confusing and didn’t make any sense to Judge Joseph:

Plaintiffs' argument is nonsensical. What, then, did they mean when they pled that the tickets were terminated in favor of the plaintiffs for the lack of probable cause to charge if they did not intend the reader to think that there was a ruling on probable cause by the court? Again, did they mean to plead that they assume that the prosecutor must have dismissed the citations because he lacked probable cause to charge? If that was the case, then they should have at least pled that “upon information and belief” the prosecutor dismissed the citation because he lacked probable cause to charge. This is not a hypertechnical reading of the Fourth Amended Complaint. Words matter. As pled, the Fourth Amended Complaint alleges that the citations were dismissed for lack of probable cause. And given Attorney Motley's presence at these municipal court hearings, it is inexplicable the complaint was pled as it was. Again, sanctions are warranted on this ground.

The judge ordered Attorney Motley to pay the city about $9,000 in attorney’s fees.

The Latest

Judge Joseph issued her most recent decision last month, on March 16. It’s a little long, but one part I found interesting was the plaintiffs’ argument for why “the emergency curfew order deprived them of their First Amendment rights of free speech and assembly.” The law says that restrictions on First Amendment should be “narrowly-tailored to serve a significant government interest” but that Mayor McBride’s order was neither. For instance, they say, “Any threat of civil unrest in Wauwatosa was merely speculative and thus no curfew was warranted” and therefore there was no “significant government interest.”

Judge Joseph kindly tells them to get real.

Plaintiffs understate the relevance of the Kenosha protests in evaluating the Wauwatosa officials’ actions. Plaintiffs argue:

Should Defendants’ argument carry the day—that civil unrest at other protests in other cities empowers that city to substantially curtail protests—there will be no limiting factor to stop cities from banning all future protests. If the invocation of arson in Kenosha is enough to issue a curfew here, without a credible threat of property destruction, then this is the end of free protest in support of the Black Lives Matter movement across the country.

But Plaintiffs fail to grapple with the extent of the events in Kenosha, or the proximity of the events in both time and location to the events in Wauwatosa. The demonstrations in Kenosha were prompted by the shooting of a Black man, Jacob Blake, in Kenosha, Wisconsin on August 23, 2020 by a white police officer. As Judge Adelman noted in Radke, the “violence that occurred during the Kenosha protests was particularly severe. Many buildings were burned to the ground and two protestors were shot and killed, while a third was seriously injured.” Thus, the demonstrations in Kenosha did not simply involve arson as stated by Plaintiffs, but the deaths of two protestors.

And the demonstrations in Kenosha occurred mere weeks before Officer Mensah's charging decision, in a city approximately 45-miles away from Wauwatosa, after similar circumstances, i.e., a law enforcement officer shooting a Black man. Given the proximity in both time and location of the Kenosha protests to the events in Wauwatosa, it is unsurprising that these events informed the actions of Wauwatosa officials. Mayor McBride avers that the curfew's purpose was to protect the people and property of Wauwatosa, “especially after the violence that had occurred in other cities in similar situations,” specifically noting the deaths of two protestors during the Kenosha demonstrations. Mayor McBride avers that he wanted to protect protestors in Wauwatosa from facing similar harm as those protestors who were killed in Kenosha. On this record, I find that the curfew served a significant governmental interest.

The plaintiffs also argued that the curfew’s hours—from 7 p.m. to 6 a.m. for five days—made it hard for the protestors with day jobs to do their protesting, so it was not “narrowly tailored.”

Judge Joseph asks why they couldn’t just protest on Saturday:

Plaintiffs argue that for each of the twenty-seven plaintiffs asserting a First Amendment claim, protesting during the time of the curfew was the only time they could protest. Assuming, however, that “normal” work hours are from 9:00 a.m. until 5:00 p.m. on Monday through Friday, Plaintiffs do not explain why they could not protest during the day on the two weekend days of the curfew—Saturday, October 10, 2020 and Sunday, October 11, 2020.

When the government places restrictions on people’s First Amendment rights, there must also be some alternative for the public to exercise those rights. The Plaintiffs thought that the city’s suggestion to protest indoors or virtually over the internet was not an acceptable alternative, and that only full in-person protesting would be effective for educating the public.

The final Ward requirement is that the regulation leave open “ample alternative channels of communication.” Plaintiffs argue that because the curfew was enacted city-wide, it left nowhere in the City of Wauwatosa where people could protest during the curfew. Plaintiffs argue that Defendants’ suggested alternatives of protesting indoors or on private property are ineffective to call the public's attention to the topics being discussed. But “shouting at a TV” or “rage posting on Facebook,” as plaintiffs suggest, are not the only alternative channels for protest as Plaintiffs contend.

Again, the curfew did not prevent protesting during the daytime hours and the curfew included two weekend days that would accommodate those who work 9:00 a.m. to 5:00 p.m. on Monday through Friday. Even if these alternatives were not preferred by the plaintiffs, they have not shown that these alternative channels for protest are inadequate. For these reasons, I find that the final Ward requirement for a valid time, place, and manner restriction is met.

For these reasons, the defendants are entitled to summary judgment on the plaintiffs’ First Amendment challenge to the curfew order.

What’s left?

Ultimately, all the plaintiff’s motions for summary judgment were denied and all the defendant’s motions for summary judgment were granted with the exception of two pertaining to whether employees of the police department violated the Driver’s Privacy Protection Act.

In the first case, a police department employee retrieved the addresses and photos of potential protestors from a DMV database for what the plaintiffs claim was an “impermissible purpose”—to create a “Target List” which was then distributed outside the police department.

In the second case, a Wauwatosa police officer “shared a Dropbox link that contained unredacted documents, which included over 500 pages of police reports, 66 citations, and hours of videos, including that of confidential informants” and which may have also included information drawn from a DMV database.

Kimberley Motley, in an article from the Milwaukee Journal Sentinel, said an appeal isn’t out of the question and is quoted as saying, “I'm sure the clients would not have filed this lawsuit if they didn't want to take it all the way.”

A trial could begin by May 1.

Judge Nancy Joseph. Happy for this to not be her problem soon.