The Court of Appeals on Tuesday upheld the firing of a Milwaukee police officer over his racist and demeaning social media posts.

The District 1 Court of Appeals panel, in an opinion by Appellate Judge Maxine A. White, rejected Erik A. Andrade's argument that the Milwaukee Fire and Police Commission violated his civil rights by not letting him present a full defense.

White's opinion was joined by Appellate Judge M. Joseph Donald.

Appellate Judge Timothy G. Dugan dissented, saying that Andrade was not adequately informed that the DA's finding that Andrade could no longer be involved in future prosecutions would be part of the case against him.

Andrade was dismissed from the police force after his posts became public in the wake of a widely reported confrontation between police and former Milwaukee Bucks player Sterling Brown. Brown was tased and arrested during the incident, which started because Brown was parked improperly in a Walgreen's parking lot.

Andrade responded to a call for assistance to the scene, but was not involved in the January, 2018 arrest.

Later, Andrade posted to Facebook: 

“Nice meeting Sterling Brown of the Milwaukee Bucks at work this morning! Lol#FearTheDeer.”

The content of the post spurred an investigation by the Police Department's Internal Affairs division, which uncovered other posts, described by White in her opinion:

• On March 24, 2018, Andrade posted a comment in response to a Channel 58 article titled, “Milwaukee County Supervisor Introduces Policy Against Mass Incarceration.”
  
  His comment read: It’s hilarious when people talk about mass incarceration Imao [laughing my ass off] like wtf [what the fuck] is that? Mostly all the people I deal with at work cannot stay locked up and they should be. Last time I checked, if you don’t commit crimes, you don’t get incarcerated … but that’s hard for people to comprehend. 
  
  
• On April 16, 2018, Andrade posted a meme1 composed on the Tide washing detergent logo and the words “SICK AND TIDE OF THESE HOES" with Andrade’s words above stating, “What comes to mind when I’m at work and I’m driving down Greenfield Ave. Smh [Shaking my head].” 
  
  
• On April 24, 2018, Andrade shared a “Who Wore it Better” meme that compared NBA player Kevin Durant’s hair texture to an ice cream cone that had been dipped in chocolate sprinkles. Andrade commented, “Damn … more naps than preschool! Lmao [Laughing my ass off].” 

There were others as well, including this about Cleveland Cavaliers' player J.R. Smith: “I hope J.R. Smith double parks in Walgreens handicap parking spots when he’s in Milwaukee;” and this: “Had a great time workin replacement over in D5 the other day …. 5+ OT and a use of force. Lol.” 

Andrade told an Internal Affairs investigator that “ 'some of [his posts] are meant to be jokes; some are like meant to educate and enlighten … maybe give … a point of view,' ” White wrote.

The Guardian: The U.S. Supreme Court is relying increasingly on ruling through the secretive "shadow docket."

Reason: FedEx allows police and police dogs to search your packages.

At the center of the decision is a little-known agreement allowing law enforcement agencies to seize parcels at the shipping behemoth's sorting centers. Police are permitted to take packages only if a drug dog indicates there may be contraband inside. Individual cops, however, determine which packages merit attention, allowing them to zero in on people's property, dress up as FedEx delivery men, and proceed with arrests if they testify that a drug dog alerted them appropriately.

Reuters: Westinghouse avoids criminal prosecution in $21 million deal.

The American Prospect: U.S Attorney General Merrick Garland is failing his biggest test.
​Less appreciated, however, is the fact that these circumstances put one particular corner of the Biden administration—the Justice Department—squarely at the center of the fight over practically every new measure. Add to that the department’s policymaking power and its critical role in holding the last administration to account, and it quickly starts to look like perhaps the most consequential agency in the federal government. In other words, the Justice Department just might hold the keys to this administration’s success. Unlocking it will take urgency, energy, and courage. Sadly, thus far, Attorney General Merrick Garland’s leadership has been devoid of all three.

Looking at the Justice Department’s litigation record, it has at times been easy to forget that it’s a part of the Biden administration at all. Throughout the first half of the year, in cases left over from the prior administration, the DOJ repeatedly defended Trump policies that ran directly counter to the platform on which President Biden was elected.

The Washington Post: Sex-trafficked children are victims, but they are arrested and locked up in Las Vegas.

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Election Law Blog: Postage for absentee ballots isn't a poll tax, appeals court says.

Filter: Hip hop and harm reduction on tour.

A tenet of harm reduction is not judging substance use, but trying to reduce the harms associated with it. Hip hop has a decades-long tradition of not judging, but also of experiencing the related harms.

Simple Justice:  Arizona eliminates peremptory jury challenges.

​CNN: CDC finally, after decades, steps up on gun violence.

"Something has to be done about this," CDC Director Dr. Rochelle Walensky said in an exclusive interview with CNN. "Now is the time -- it's pedal to the metal time."

This summer alone has seen a spree of gun injuries and deaths, and the weekends have been especially violent, with an average of 200 people killed and 472 injured by guns each weekend in the United States, not including suicides, according to an analysis done by the Gun Violence Archive for CNN. That's nearly 3.4 people shot every hour every weekend.

"The scope of the problem is just bigger than we're even hearing about, and when your heart wrenches every day you turn on the news, you're only hearing the tip of the iceberg," Walensky said. "We haven't spent the time, energy and frankly the resources to understand this problem because it's been so divided."

PC Mag: Chicago sues Grubhub and DoorDash for deceptive practices.

Bloomberg News via The Seattle Times: Trump should pay at least part of case cost in Wisconsin suit, Gov. Evers says.

Recent sanctions awards in similar cases, including a ruling this week in Michigan against former Trump campaign attorney Sidney Powell, support sanctions against Trump and his attorneys, Gov. Tony Evers said in a filing Friday in federal court in Milwaukee.

“These decisions have made clear that the conduct of Trump and his counsel here crossed the line,” Evers, who previously argued Trump should personally pay, said in the filing.

The governor, making a last-ditch argument to reimburse taxpayers, echoed earlier filings by the state that said Trump should have known his lawsuit was unsound from the beginning. He accused the former president of trying to recast the case “in sepia tones” to gloss over its many flaws, including a complete lack of evidence.

WMTV: Wisconsin Supreme Court refuses to block Dane County mask mandate.

Urban Milwaukee: When will we get police reform? (Angela Lang op-ed) 

The upshot

The court of appeals certified the following question: "whether a consensual encounter becomes an unconstitutional seizure under the Fourth Amendment when an officer requests and takes an individual's driver's license to the officer's squad car without reasonable suspicion." Accordingly, we review the Circuit Court of Sheboygan County's judgment of conviction of Heather VanBeek for possession of methamphetamine and drug paraphernalia. VanBeek's conviction arose from a search of her vehicle that she contends violated her right to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution. 

On the certified question, we conclude that the answer depends on the totality of circumstances surrounding an encounter. Further, while VanBeek was not seized when Officer (Sung) Oetzel took her driver's license to run a records check, VanBeek was seized when Oetzel returned to her vehicle, withheld her driver's license and continued to question her and her passenger in order to hold her until a drug-sniff dog, i.e., the K9 unit, that he had requested arrived. Finally, we conclude that the seizure was unlawful because, based on the totality of circumstances, Oetzel did not have reasonable suspicion that VanBeek was engaged in criminal activity at the time he seized her. Accordingly, we reverse the circuit court's judgment of conviction and remand with instruction to grant VanBeek's motion to suppress.​

​We conclude that the dearth of significant facts enunciated by the anonymous caller in this case substantially lowers the weight that we place on the call in the totality of circumstances. Unlike [prior U.S. and Wisconsin Supreme Court cases], wherein the respective tipsters were able to provide unique, useful and predictive information to police prior to police interaction, the caller here merely told Sheboygan police that a non-descript truck, occupied by two people, was parked on the street for "an hour" and that someone had approached the vehicle with a backpack and then left without it. Those facts are "minimal facts that any passerby or resident on the street could enunciate." The caller did not allege that the persons in the truck were engaged in criminal activity. Accordingly, as we consider a call about a non-descript truck parked on the street with two occupants, the additional assertion that someone came to the truck with a backpack and left without it does not weigh heavily in our analysis. Apparently, those facts were not significant to Oetzel because he never asked VanBeek or Sitzberger about a third person or a backpack.
                                                                                 ***
Aside from the call, all that Oetzel knew at the time of the seizure was that VanBeek overdosed earlier in the year and that Sitzberger was on supervision. Oetzel did not know the source of drugs that caused VanBeek's overdose, whether from a physician or from an illegal source. There is nothing in the record to connect her overdose in February with criminal activity in November. 

That Sitzberger was on supervision also provides no reason to believe that he was involved in criminal activity with VanBeek. As the Tenth Circuit explained in United States v. Sandoval, a prior conviction for an unknown offense provides no support for reasonable suspicion. If this were not the case, those on supervision subsequent to a conviction could be searched anywhere and anytime that the fact of supervision became known.
                                                                                 ***
Accordingly, based on the totality of circumstances, Oetzel did not have reasonable suspicion when he returned to VanBeek's truck, retained her driver's license and continued to question her; therefore her seizure was unlawful.

Above the Law: $1,000 fine for a state attorney general who killed a man, drove away, and said he thought it was a deer even though the victim's glasses were found inside the AG's car.

BuzzFeed: How third parties are charged with murder when police kill someone.

Since 2010, at least 22 people nationwide have been charged with felony murder for deaths directly caused by police, according to a BuzzFeed News review. At least 13 have been convicted.

The Trace: How climate change could make gun violence worse.

Fox News: 20 state attorneys general push back against Biden administration's gun rules.

West Virginia Attorney General Patrick Morrisey and Arizona Attorney General Mark Brnovich led the 20-state coalition in authoring formal comments urging the rejection of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) proposed new rule on firearms parts that followed President Biden's effort to regulate so-called ghost guns.

"Private individuals and businesses have the right to assemble firearms for their own use — a fact borne out in early American history and expressly recognized by the Gun Control Act," Morrisey said in a statement. "The Second Amendment is a core tenet of our Constitution, and this regulation would treat the activity of assembling firearm parts as a problem to be stamped out, rather than a right and tradition to be respected."

The Trace: Controversy grows over ShotSpotter in Chicago.

On August 24, the city’s Office of Inspector General — a taxpayer-funded, nonpartisan watchdog agency — released a scathing report that showed ShotSpotter was unreliable and possibly dangerous to communities of color. The OIG analysis found that fewer than 10 percent of ShotSpotter alerts led police to evidence of a gun-related criminal offense, and that some officers stopped and patted down people more often in areas where they perceived the alerts to have been frequent. “ShotSpotter alerts rarely produce evidence of a gun-related crime, rarely give rise to investigatory stops, and even less frequently lead to the recovery of gun crime-related evidence during an investigatory stop,” the OIG concluded.

CNN: U.S. Supreme Court tosses Biden's eviction moratorium.

"Congress was on notice that a further extension would almost surely require new legislation, yet it failed to act in the several weeks leading up to the moratorium's expiration," the court wrote in an unsigned, eight-page opinion.

"If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it," the court said.

Talking Points Memo: Jail doc prescribed dewormer to incarcerated people as COVID blocker.

“There’s a greater risk of dying from COVID than there is dying from the medication,” Rob Karas, founder of Karas Correctional Health and a doctor in the area, told Channel 5, the local CBS affiliate, in an interview Wednesday — though the FDA has stressed that the drug has not been approved to fight COVID. 

WBAY: Steven Avery appeals to Wisconsin Supreme Court.

The Cap Times: Dane County subcommittee suggests waiving court fees to lessen their impact.

WPR: Republicans renew attack on Facebook-funded election grants with new Racine County lawsuit.

More stories and links on our WJI Facebook page!

AP: Federal appeals court upholds death sentence for Dylann Roof for killing nine people at a South Carolina Black church.

Talking Points Memo: Whitmer kidnapping plotter sentenced to six years in prison.

Reason: U.S. Supreme Court Chief Justice John Roberts' long game.

During the Trump Administration, Chief Justice Roberts wrote several decisions that (in my view) radically expanded a court's power to set aside agency action as arbitrary and capricious. The DACA and Census cases empowered the judiciary to second-guess every facet of the executive-branch's decision. In hindsight, a judge can simply ask, "Why didn't you address the costs and benefits of X?" And if a trial judge makes that finding, appellate courts are then obliged to defer. These rulings handcuffed the Trump Administration, and prevented it from undoing Obama-era policies.

Slate: The U.S. Supreme Court has allowed a Trump judge to take over the Biden administration's foreign policy.

The implications of Tuesday’s decision (reviving Trump's "remain in Mexico") policy are profoundly disturbing. The conservative justices spent the bulk of the Trump years insisting that courts must defer to the president’s constitutional authority over foreign affairs. Now they have allowed a lone Trump-appointed judge, Matthew J. Kacsmaryk, to force the government into sensitive diplomatic negotiations over border policy. Their decision even grants Kacsmaryk sweeping authority to oversee these negotiations so he can ensure that the Biden administration is pushing Mexican officials hard enough to revive Trump’s program, something the administration does not want to do. And they have seemingly abandoned their skepticism toward nationwide injunctions like this one—a position some held when it allowed them to undermine the federal judiciary’s check on Trump. In the process, the six Republican-appointed justices have injected chaos, confusion, and cruelty into the United States’ border policy, thrusting thousands of asylum-seekers into legal limbo.

NPR: Trooper hits Black motorist 18 times with a flashlight and calls it "pain compliance."

WTMJ: State Department of Justice warns that angry rhetoric at School Board meetings can veer into criminality when threats are made.

Marijuana Moment: California shatters marijuana tax revenue record.

California collected about $817 million in adult-use marijuana tax revenue during the 2020-2021 fiscal year, state officials estimated on Monday. That’s 55 percent more cannabis earnings for state coffers than was generated in the prior fiscal year.

The nonpartisan Legislative Analyst’s Office said combined excise and cultivation tax revenue for the fourth quarter, which ended in June, amounted to $212 million—roughly tying the first quarter of the fiscal year for the most tax dollars raised in any single three-month period since legal sales launched.

​WBAY: Oshkosh considers lower cannabis possession fine.

The Washington Post: The Biden administration asks U.S. Supreme Court to save the eviction moratorium.

A coalition of landlords and real estate trade groups in Alabama and Georgia are challenging the latest moratorium imposed by the Centers for Disease Control and Prevention, issued Aug. 3 and intended to run through Oct. 3.

“Congress never gave the CDC the staggering amount of power it claims,” the groups said in a brief filed Friday night with the justices, asking them to block the latest version of the moratorium.

There is reason to think the high court might agree. In June, the justices on a narrow vote left a previous version of the eviction ban in place, when it was supposed to expire at the end of July. Justice Brett M. Kavanaugh, who cast the deciding vote, said he thought the ban should be allowed to wind down.
​
The New York Times: U.S. Supreme Court OKs revival of "remain in Mexico" policy.

The case: Southport Commons, LLC v Wisconsin Department of Transportation

Majority: Justice Ann Walsh Bradley (18 pages), joined by Justices Rebecca F. Dallet, Brian Hagedorn, and Jill UJ. Karofsky 

Dissent: Justice Patience D. Roggensack (14 pages), joined by Justices Rebecca Grassl Bradley and Annette K. Ziegler

The upshot
We conclude that "occurred"...does not mean "discovered." The notice of claim period begins to run when the damage happens or takes place.

Further, we conclude that Southport failed to meaningfully develop in the circuit court or court of appeals an argument that the damage to its property occurred gradually over a period of years. Instead, it argued only that the notice of claim requirement is triggered by discovery. As a consequence, Southport did not raise a genuine issue of material fact as to the date of damage, and the circuit court properly granted DOT's motion for judgment on the pleadings. 

Background
Southport owns 45 acres of vacant land in Kenosha Cournty. In 2008 and 2009, the state Department of Transportation moved a frontage road, which was entirely east of the property, to a location bisecting the property. 

Southport, according to its suit against WisDOT, had the property surveyed before the project. Three areas of wetlands were identified. In 2016, Southport had the site surveyed again because the firm was interested in its potential for commercial development. The new survey showed six wetland areas, including three new ones. The three that existed before the WisDOT project had significantly increased in size.

Southport alleged that it did not know about the damage to its property before its 2016 survey. It filed a claim against WisDOT in 2017, which the agency ignored. Southport then sued in Kenosha County Circuit Court, asking the court to institute condemnation proceedings to that the firm could be compensated for the damaged property.

The guts

DOT answered the complaint and subsequently moved for judgment on the pleadings. The motion was based on the assertion that Southport failed to file its notice of claim within three years of when the damage occurred as (state law) requires. In response, Southport contended that §88.87(2)(c)...allows a notice of claim to be filed within three years after the damage is discovered, and that its notice of claim was therefore timely. 
                                                                   
(The circuit court and court of appeals sided with WisDOT and dismissed the case. Southport appealed to the Supreme Court.)

We agree with both the approach and the result of the court of appeals. The court of appeals correctly determined that in common and ordinary usage, something "occurs" when it happens or takes place....

It is not only the dictionary that supports such a determination, but it is also our case law. We have previously stated that "[t]he ordinary and common meaning of 'occurrence' is 'something that takes place; something that happens unexpectedly and without design.'"...The common usage of the word "occurred" thus has no element of discovery as Southport contends.

When the legislature wants to make discovery the trigger for a statutory filing requirement, it knows how to do so. Indeed, it has done so in other areas of the Wisconsin Statutes.... 

We turn next to examine the pleadings and arguments made in this case....

Southport alleges that it is the sole owner of the property at issue, that DOT has occupied and taken portions of Southport's property through faulty construction and maintenance of the frontage road, and that DOT did not exercise its power of condemnation. This is sufficient to state an inverse condemnation claim....

Inverse condemnation occurs when a property owner petitions the a court to begin  condemnation proceedings against the property. It's generally done when an agency with the power to condemn a property did not do so but destroyed its value anyway.

With no allegation that the damage occurred within the three years prior to the filing of the notice of claim, and no supporting materials placing such a fact in issue, we must determine that judgment on the pleadings was properly granted by the circuit court. In other words, there is no genuine issue of material fact as to the date of the damage because Southport did not allege such a factual dispute. Southport put all of its eggs in the basket of "discovery" and did not meaningfully develop in either the circuit court or court of appeals any argument that the damage occurred surreptitiously over time. As such, it would be improper for this court to rely on such a basis here.

Further, it would not have taken much to raise an issue of material fact. In response to DOT's motion for judgment on the pleadings, Southport could have filed an affidavit placing the date of damage in issue and thus converted the motion for judgment on the pleadings to a motion for summary judgment....Similarly, it could have alleged surreptitious damage over time in the complaint or moved to amend the complaint after DOT filed its motion.....

When DOT filed its motion for judgment on the pleadings, Southport needed to do something to create a factual dispute. Arguing only that "occurred" means "discovered" was not sufficient. ​

The dissent

Southport was not required to plead when damage occurred in order to make a valid claim for inverse condemnation....

As the movant, DOT had the burden to prove that it was entitled to judgment on the pleadings. Furthermore, failing to comply with a notice of claim statute is an affirmative defense. The pleadings do not provide the proof necessary for DOT to prevail on its affirmative defense.

I write in dissent because basic rules of civil procedure that control when judgment on the pleadings may be granted have been disregarded by three courts. In addition, the majority opinion creates a new element for an inverse condemnation claim and converts an affirmative defense into a pleading requirement for Southport. When this court disregards basic rules of civil procedure, changes pleading rules and overrules precedent of this court without so much as a by-your-leave in order to obtain the outcome it prefers, it causes confusion throughout the court system that goes far beyond Southport's claim for inverse condemnation....

A review of the record shows that the circuit court actually did not conclude that the Verified Complaint failed to state a claim for inverse condemnation. Rather, the circuit court concluded, at DOT's urging, that Wis. Stat. § 88.87(2)(c) created a three-year statute of repose starting when DOT completed the construction project on Southport's property. Because Southport filed its notice of claim with DOT after that three-year period, the circuit court dismissed its inverse condemnation claim. The majority opinion does the same thing....

There can be no question that the Verified Complaint stated a claim for inverse condemnation. The majority opinion initially agreed with my conclusion....

The majority opinion then morphs into discussing a fact that Southport was not required to plead in order to state a claim for inverse condemnation. The majority opinion is creative in how it gets around basic rules of civil procedure. First, it concludes that Southport stated a claim for inverse condemnation, then it adds a new requirement to pleadings for inverse condemnation....Because Southport did not allege "the date of the damage," the majority grants what it labels judgment on the pleadings to DOT....

Maple Grove (a case precedent) teaches that timeliness of compliance with a notice of claim statute was DOT's issue to raise as an affirmative defense. And, as an affirmative defense, it was DOT's burden to prove that notice was not timely. 

The reader should take note that the majority opinion actually is making two legal determinations that are quite different from what one would ascertain by simply reading the quoted words. First, the majority opinion has added a new required element for an inverse condemnation claim, the date the damage occurred. There is no support for this in Wis. Stat. § 32.10 which establishes the elements of an inverse condemnation claim, or for that matter, in the reasoning of the majority opinion. It is just a way to get the result the majority prefers. Second, the majority opinion converted an affirmative defense, noncompliance with a notice of claim statute, into a pleading obligation for a plaintiff in an inverse condemnation claim. All of this is new law that has no legal foundation, (and) ignores basic rules of civil procedure....  

DOT's motion for judgment on the pleadings actually was a motion for judgment on its affirmative defense. Intertwined with that defense are factual questions about DOT's ongoing maintenance of 120th Avenue and whether that maintenance factually affected Southport's damage. There also are legal questions about the meaning of "occurred" during construction  and how that term is interpreted when continued damage is alleged to have been caused by DOT's on-going maintenance of 120th Avenue.

It is not possible to decide the legal questions of statutory interpretation before deciding the factual questions about which types of actions by DOT caused damage to Southport. Therefore, DOT's affirmative defense cannot be determined solely by review of the pleadings. Accordingly, DOT did not carry its burden as proponent of the affirmative defense and its motion should have been denied. ​