By Margo Kirchner
An attorney’s angry gesture with a pen resulted in two more months of delay for a woman’s claim that neglect by Milwaukee County jailers led to the death of her newborn child.
Attorney James J. Gende II, who represents plaintiff Shadé Swayzer, lunged toward a correctional officer during a deposition and slammed the end of a pen into a flow chart just inches from the county’s lawyer’s hand. (See video below.)
The county’s lawyer, Douglas S. Knott, accused Gende of “assault” and ended the deposition.
Swayzer’s suit against the county and its medical contractor, Armor Correctional Health Services Inc., alleges, among other things, they were negligent in providing medical care and violated the constitutional rights of both Swayzer and her deceased infant daughter, Laliah.
Knott and attorneys for Armor later filed motions for protective orders to prohibit Gende from conducting future depositions in the case. If granted, Swayzer’s representation in those depositions would shift to other lawyers on the team.
Gende apologized for losing his patience and said it had nothing to do with the witness, Correctional Officer Terina Cunningham, but did have something to do with Knott.
“I believe counsel has made it as difficult as possible over the last several examinations for me to complete my deposition of his clients,” he said.
Depositions of two Armor employees were scheduled for Oct. 20 and Nov. 2, but their lawyers, citing Gende’s conduct, refused to proceed with those depositions.
Michael Russart, an attorney for Armor, told Gende in a letter he was canceling his clients’ depositions to “protect [them] from harassment, embarrassment and potential injury.”
Russart said he would call the police if Gende appeared at Russart’s office for any depositions.
In a quickly scheduled Oct. 17 hearing, U.S. District Judge Pamela Pepper agreed that full briefing of the motions for protective orders and a further hearing were warranted. She prohibited the taking of any depositions in the meantime, noting her concern over Gende’s loss of composure at the Cunningham deposition.
Now all depositions are stayed until the Nov. 29 hearing.
Other discovery disputes also appear to be delaying progress in the case. Swayzer’s attorneys are seeking orders compelling Armor and former Sheriff David Clarke to provide responses to written questions and to produce requested documents.
Armor says it answered many of the requests and is working to supplement its responses. It said its responses were delayed by Hurricane Irma in Florida and the need for additional time to produce electronic discovery and suggested that the motion to compel its responses was actually meant to divert the court’s attention from Gende’s conduct.
Clarke says he responded to several of the discovery requests on Oct. 27, but refuses to provide additional information regarding his personal calendar and whereabouts from July 6 to 14, 2016. Clarke contends that such information is confidential and irrelevant to the case.
Pepper referred the disputes about Armor’s and Clarke’s responses to U.S. Magistrate Judge William E. Duffin for resolution. But she retained the motions about Gende’s conduct at the deposition.
Pepper recently held that Armor must turn over its internal investigation reports regarding Swayzer’s and Laliah’s medical care at the jail. Armor argued that if such information is disclosed it has no incentive to perform investigations in the future.
Pepper found that Armor’s professional obligations and economic interest in keeping its contract with the county provide incentive enough and that the need for truth about the defendants’ policies and practices at the jail outweighs confidentiality concerns.
Swayzer alleges in her suit that she was eight months pregnant when she was taken into custody in July 2016 for an alleged probation violation and placed into a maximum-security cell at the County Jail run by the Milwaukee County Sheriff’s Department and then-Sheriff Clarke.
Swayzer was more than eight months pregnant at the time, and a hospital exam just prior to her arrival at the jail showed the pregnancy to be healthy and on track. Days later, alone in her cell, Swayzer gave birth to daughter Laliah. Laliah survived just a few hours, dying in the cell in which she was born.
Swayzer and Laliah’s estate sued Clarke, Milwaukee County, several jail employees, Armor, and some of Armor’s doctors and nurses. Swayzer asserts that when she arrived at the jail on July 6, 2016, a doctor and nurse documented her mental and physical health needs and directed that Swayzer be housed in the special needs unit.
Nevertheless, though Swayzer initially resided in the special needs unit for two days, a lieutenant at the jail moved her to maximum security because she had been involved in various incidents while incarcerated on previous occasions, according to the suit. No jail or medical personnel took action to keep Swayzer in the special needs unit, the suit alleges.
Swayzer claims that from July 8 through July 13 she remained in maximum security and received no medical care. A doctor was scheduled to see Swayzer on July 13, but failed to do so.
Pepper recently held that Armor must turn over its internal investigation reports regarding Swayzer’s and Laliah’s medical care at the jail. Armor argued that if such information is disclosed it has no incentive to perform investigations at the jail in the future.
According to the suit, a guard doing rounds the evening of July 13 saw Swayzer in an unusual position, but failed to investigate. The next morning Swayzer informed that guard that she was in labor, her water had broken, and she was experiencing contractions. The guard did nothing about Swayzer’s reports. Another inmate heard Swayzer crying for help in the early morning hours of July 14, the suit says.
Swayzer delivered Laliah at about 5 a.m. without medical assistance. Swayzer wrapped Laliah in a blanket with her face exposed. The two remained in the cell alone without medical help for over an hour.
Just before 6 a.m., the same guard saw Swayzer lying in an odd manner, blood on the mattress, and bunched-up blankets, according to the suit. Despite those observations, the guard continued her rounds and then conferred with another guard about Swayzer. Neither guard called in a medical emergency until one of them returned to the control room, the suit says.
When medical staff responded to the emergency call, a guard initially denied them access to Swayzer’s cell because he was waiting for backup. When medical staff finally got to Laliah and removed her from the cell she did not appear to be breathing. Resuscitation attempts began around 6:20 a.m., but failed, and Laliah was declared dead at 6:55 a.m.
Meanwhile, guards awaited the arrival of additional jail staff before allowing Swayzer to be transported to the hospital, according to the suit.
Swayzer and Laliah’s estate allege that all defendants were deliberately indifferent to Swayzer’s and Laliah’s serious medical needs in violation of the U.S. Constitution. They claim that Milwaukee County, Clarke, and other supervisory personnel at the jail failed to train and adequately supervise staff and maintained policies that resulted in the injuries to Swayzer and Laliah. And they claim that Clarke and the jail defendants are liable under Wisconsin law for negligence and Laliah’s wrongful death.
In response to Swayzer’s discovery requests, the County admits that Clarke issued no corrective action or discipline regarding the circumstances of Swayzer’s delivery and Laliah’s death.
By Margo Kirchner
A Racine County judge on Thursday dismissed all charges against Daniel G. Scheidell, who served 20 years in prison for sexual assault before a court finally allowed him to present evidence that strongly suggested the attack was committed by someone else.
Racine County Circuit Court Judge Mark Nielsen granted the state’s motion to dismiss, after Racine County Assistant District Attorney Dirk Jensen said the state could not meet its burden in a new trial.
One of Scheidell’s supporters in the gallery clapped as the judge dismissed the case.
Scheidell’s conviction was vacated in 2015, but Attorney General Brad Schimel’s Department of Justice unsuccessfully appealed that decision twice.
A jury convicted Scheidell in October 1995 of attempted first-degree sexual assault and armed robbery following a trial based heavily on testimony of the victim, J.D.
J.D. awoke in her apartment early one morning in May, 1995, to find a knife-wielding man straddling her waist. The perpetrator during the attempted assault wore a black knit ski mask and jacket over his head and never spoke. J.D. managed to retrieve a pistol from her nightstand and the man left.
She was certain he was her upstairs neighbor, Scheidell, based on the man’s “distinctive body and walk” and part of the face she saw while she struggled with him.
When police arrived, they found Scheidell coming down the stairs, looking like he just woke up. He gave a voluntary statement and allowed police to search his apartment, but found nothing incriminating. They searched the alley – nothing.
At trial, defense counsel sought to offer evidence of a different, similar sexual assault that occurred five weeks after the attack on J.D., when he was in custody. The second assault occurred about four blocks away from J.D.’s residence, and many of the facts of the crime, including mode of entry, weapon, mask, time of day, and build of the assailant, were similar.
The assailant in the second crime, however, got away and was not identified.
Scheidell’s trial judge denied admission of the evidence because there was not any evidence directly connecting a third person to the crime Scheidell was accused of committing.
The jury found him guilty in October 1995 and Scheidell appealed all the way up to the State Supreme Court. He lost there, with the court ruling that mistaken-identity evidence is not admissible when a defendant tries to show that some unknown person committed the crime.
Scheidell applied to the Wisconsin Innocence Project for help. In 2013, the Innocence Project obtained a DNA profile from the second sexual assault and matched the profile to a Wisconsin inmate serving time for a 1998 sexual assault.
Scheidell moved for a new trial to present evidence that a now known perpetrator committed the crime for which Scheidell had been convicted.
In June 2015, Racine County Circuit Court Judge John Jude granted the motion and vacated Scheidell’s conviction. Scheidell was released on bond shortly thereafter.
Although the state appealed, a three-judge Wisconsin Court of Appeals panel (including two conservative Gov. Scott Walker appointees) affirmed the grant of a new trial in the interest of justice.
“It is undoubtedly reasonable to conclude that this new evidence casts doubt upon whether justice was done in the original proceeding,” Appeals Judge Brian K. Hagedorn wrote in a concurring opinion. The Supreme Court denied the Schimel team’s request for review and sent the case back to Racine for a new trial.
Thursday, at a hearing set for argument on a motion to modify bond, Jensen, the assistant district attorney, moved for dismissal based on additional investigation.
Nielsen granted the motion and dismissed the case without prejudice, meaning the state could theoretically file it again. The judge gave defense attorney Patrick Cafferty until Oct. 2 to file a new motion with legal support for his position that the case should be dismissed with prejudice, meaning it cannot be filed again.
Scheidell sighed audibly several times when he approached his family and friends after the hearing.
Cafferty said that he is “thrilled for this gentleman” and attributed Scheidell’s release to the work of many lawyers.
Cafferty indicated that Scheidell’s original trial counsel, in particular Debra Patterson, worked hard to get the evidence of the second assault admitted:
“The work the lawyers did early on laid the foundation” and “they deserve the credit,” he said
By Margo Kirchner
Pregnant women in Wisconsin remain at risk of being thrown in jail and forced into treatment despite a federal judge’s determination that the state’s “cocaine mom” statute is unconstitutional.
U.S. District Judge James D. Peterson last spring declared the law impermissibly vague and blocked its enforcement statewide. State Attorney General Brad Schimel immediately appealed, however, and the law remains in effect while the litigation continues.
Here’s what happened to two women under the law.
In May 2013, Alicia Beltran, then 28, learned she was pregnant. A few weeks later, she sought prenatal care at a clinic in Washington County. She informed a physician’s assistant that she previously abused Percoset, which contains an opioid, but recently finished a course of Suboxone to treat her addiction. The physician’s assistant recommended that Beltran take a second course of Suboxone and, when Beltran refused (believing she already kicked her Percoset use), the clinic reported her to a Washington County social worker.
In July 2013, five law-enforcement officers arrested Beltran at her home, handcuffed her, and took her to a doctor for evaluation. The doctor declared Beltran and her pregnancy to be healthy and said he did not consider inpatient drug treatment to be necessary. Nevertheless, the officers drove Beltran to the county jail.
An assistant district attorney filed an action against Beltran under the cocaine-mom law and an attorney was appointed for Beltran’s fetus. Beltran was taken in handcuffs and shackles to a courtroom, where she requested an attorney. The commissioner said none would be provided until the next hearing. Beltran was ordered to a treatment facility, where she tested negative for all drugs. The court held Beltran at the facility for over two months, scheduling a jury trial for late October. Beltran went to federal court to challenge her detention; the ADA, in response, dismissed the cocaine-mom action against Beltran and had her released.
In 2014, Tamara Loertscher, then 29, was unemployed and could no longer afford medication for her hypothyroidism. Without the medication she suffered depression and fatigue and began using marijuana and methamphetamine a few times a week.
When Loertscher in August 2014 suspected she was pregnant, she went to a hospital to confirm it. She acknowledged her drug use to hospital personnel but told them she planned to stop using drugs to have a healthy baby. She checked into the hospital for care and received the thyroid medication she needed. But the hospital reported Loertscher to the Taylor County Department of Human Services, saying her behavior with drugs and alcohol put her fetus in serious danger.
Taylor County appointed a lawyer to represent Loertscher’s fetus. Loertscher, however, was not entitled an appointed lawyer yet. While in the hospital, Loertscher had to appear by phone, with little notice, in a temporary physical custody hearing. Loertscher said she did not wish to speak without legal representation and refused to participate. The court commissioner considered this a waiver of appearance, continued without Loertscher, and ordered her held at the hospital and then transferred to an inpatient drug treatment facility.
Loertscher, though, checked herself out of the hospital.
After another hearing, at which Loertscher represented herself, the court found her in contempt and ordered her to report to either the inpatient treatment facility or jail. Loertscher spent 18 days in jail, during which time she received no prenatal care and experienced pain and cramping. She was not permitted to see an obstetrician. When Loertscher refused to take the redundant pregnancy test required by the jail doctor, she was placed in solitary confinement.
Loertscher on her own found a list of Taylor County public defense attorneys and contacted one;, a public defender was appointed. Loertscher was released after she signed a consent decree that required an alcohol and drug-abuse assessment and weekly drug testing at her own expense. All tests were negative. Loertscher delivered a healthy baby.
The cocaine mom law (also known as Act 292) allows medical staff or county social workers to report and detain a pregnant woman if they think she “habitually lacks self-control” regarding alcohol or drugs “to a severe degree” with a “substantial risk” of an effect on or danger for her fertilized egg, embryo or fetus.
Authorities can take a woman into initial custody if they think she meets this standard, but she refuses to accept abuse treatment. If a court agrees, it can order the woman to treatment against her will and keep her in custody indefinitely. Loertscher self-medicated, but stopped upon learning she was pregnant; Beltran previously used drugs but was clean at the time she was ordered to a treatment facility. Both women planned no further drug use during pregnancy and therefore refused abuse treatment.
In Loertscher’s case, Judge Peterson found that the statute’s language, especially in light of current medical knowledge, fails to give fair warning about what conduct is prohibited and fails to provide authorities any meaningful standard for enforcement. But Judge Peterson’s April ban on enforcement of the cocaine-mom law was short-lived. Schimel and his department immediately appealed and sought a stay of Peterson’s order.
Though both Peterson and the Seventh Circuit Court of Appeals refused to stay the order, the state was undeterred and sought relief in the U.S. Supreme Court. On July 7 the Supreme Court stayed Peterson’s injunction while the appeal is pending. The parties filed appellate briefs over the summer, but no date for oral argument is set; a decision could come months or even a year after argument. Meanwhile, pregnant women in Wisconsin remain subject to a law that may very well be unconstitutional.
The long-term future of Peterson’s injunction is uncertain. Federal courts decide only live, ongoing disputes. The state’s first argument on appeal is that Loertscher no longer has a live dispute---not because her pregnancy ended (a legal doctrine permits continuation of a case involving pregnancy if the issue is capable of repetition) but because she moved out of state before Peterson issued his order.
On appeal, the state argues that Loertscher no longer has any stake in enforcement of the law: she “makes no plausible argument that, having moved out of Wisconsin, she will be subject to Act 292 in the future.” According to the state, “the fact that the present dispute involves a pregnancy-related law does not dictate a different result---this case is moot not because of the short duration of pregnancy, but because Plaintiff has moved out of Wisconsin” and fails to show that she intends to move back.
If the Seventh Circuit agrees with the state, Loertscher’s case will be dismissed as moot, the cocaine-mom law will remain on the books, and pregnant women who once used drugs but no longer do will remain at risk.
Ten medical and public health organizations, meanwhile, filed a friend-of-the-court brief in the Seventh Circuit saying Peterson was right to declare the law unconstitutionally vague. The organizations represent hundreds of thousands of healthcare providers nationwide and include the American Medical Association, the Wisconsin Medical Society, the American College of Obstetricians and Gynecologists, and the American Academy of Pediatrics.
They argue that research contradicts the state’s assumption that prenatal exposure to controlled substances causes inevitable harm. The organizations say Peterson “rightly concluded that ‘no one knows at what level drug or alcohol use will pose a risk to the unborn child’”; thus, an expectant mother cannot know when she would be subject to the law. After repeatedly taking a pain killer before learning of pregnancy? After smoking marijuana once a week for a month or two? After having a single glass of wine?
The organizations argue that the law deters women from being honest with medical personnel or seeking essential prenatal care in the first place. Moreover, the law puts pregnant woman and her fetus on opposite sides of a legal dispute, but their health cannot be separated from each other.
The National Coalition for a Civil Right to Counsel, in a second friend-of-the-court brief, sided with Loertscher in challenging the lack of legal representation at critical proceedings. Sexual predators and mentally ill individuals receive appointed counsel at all significant stages of confinement proceedings. Fetuses are appointed attorneys at the very start of cocaine-mom proceedings. Yet pregnant women, even if poor, are not appointed lawyers for the initial temporary-custody and plea hearings, which can result in forced treatment and involuntary confinement.
Loertscher’s and Beltran’s cocaine mom proceedings show that even when a woman requests counsel at these hearings her request may be ignored. Counsel may be appointed for a later fact-finding hearing, but only if the woman contests the case at the earlier hearings. Before any right to counsel arises, the woman must decide on her own how to plead, to demand a jury, and to demand that the fact-finding hearing be held within 30 days.
Loertscher and Beltran appear to be the only two women to have challenged the cocaine mom law in the 20 years since passage. Shortly after Beltran filed her federal case, authorities released her and dropped all abuse charges.
Beltran filed a type of case used to seek release. Because she obtained that release U.S. District Judge Charles N. Clevert, Jr. dismissed the case as moot while calling what happened to Beltran “extremely disturbing” and suggesting that the result may have been different in a civil rights case. Loertscher’s challenge uses civil-rights and declaratory action laws, which could allow the case to continue after her release or delivery of her baby.
etween 2005 and 2014, said Peterson in his decision, 3,326 reports of alleged unborn-child abuse were pursued by caseworkers. Some 467 of those reports were substantiated with some evidence. The briefs in Loertscher’s appeal suggest why challenges to the law are rare.
First is the law’s coercive nature. When a woman refuses to receive treatment “voluntarily,” she faces a temporary hold in custody and a formal petition for confinement and treatment. Such a choice may coerce women to simply submit to unwanted treatment.
Second, the woman proceeds though preliminary stages without the assistance of counsel, while her fetus has counsel and is pitted against the mother. Then, by the time the woman may find a lawyer on her own or be appointed counsel, she is closer to delivery and possibly unwilling to get involved in stressful litigation.
Third, cocaine mom proceedings are not public. They occur in juvenile court, where files are sealed. The briefs in Loertscher’s appeal note only one additional publicly known case, which made the Racine paper in 2005. No public record means no public outcry and no awareness by attorneys who could advise the women affected.
If Loertscher’s case is dismissed because she moved out of state, perhaps another pregnant woman will step forward to challenge the cocaine mom law.
But how about repeal?
The state has decided not to appeal U.S. District Judge James D. Peterson's order that it stop abusing youths at the Lincoln Hills and Copper Lake juvenile prisons.
Peterson this week ordered drastic cutbacks in the the schools' use of pepper spray, solitary confinement and mechanical restraints on youths entrusted to the state's care. Peterson's full order is below.
The plaintiffs seeking to end abuses at the Lincoln Hills and Copper Lake juvenile state prisons was a far stronger preliminary injunction to accomplish their goal than state defendants will agree to, according to federal court records.
The two sides disagree on solitary confinement / restrictive housing reforms, some pepper spray reforms, and the scope of the order. They do agree, however, that the use of tethering, or handcuffing a youth's wrists to a belt around the waist, should be eliminated.
A draft preliminary injunction was filed Friday by the lawyers in the case. The document listed areas of agreement and disagreement. U.S. District Judge James D. Peterson will ultimately decide which provisions to accept or reject.
The plaintiffs, present and former inmates at the facilities, are represented by the American Civil Liberties Union of Wisconsin and the Juvenile Law Center, with pro-bono assistance from Quarles & Brady. Defendants include Lincoln Hills, Copper Lake, and Department of Corrections officials, including Secretary Jon Litscher.
Below are some of the key provisions in the draft document. The entire document is at the bottom of this post.
Areas of agreement
(Lincoln Hills School) and (Copper Lake School) should not place youth in solitary / restrictive housing for non-violent or minor infractions.
School staffs should not confine youth in pre-hearing restrictive housing unless the youth presents an immediate and substantial risk of great bodily harm to self or others. all:
All use of restrictive housing / solitary should be justified in writing.
Youth should receive rehabilitative programming.
Tethering should be eliminated; handcuffing should be minimized.
Areas of disagreement
Youths with mental illness
Plaintiffs: LHS/CLS should stop locking youth with mental health diagnoses in restrictive housing. If a youth with a mental illness becomes violent, the school should consider alternative placements.
Defendants: The schools can continue to use solitary / restrictive housing for youths with mental illness, but those placements should be reviewed by psychological service unit (PSU). (The unit already has come under sharp criticism.)
Plaintiffs: The time a youth is held in pre-hearing restrictive housing should be limited to 24 hours.
Defendants: Pre-hearing restrictive housing should be limited to three business days.
Punitive solitary / restrictive housing
Plaintiffs: Punitive use of restrictive housing should be limited to three days, with a monthly aggregated limit of four days.
Defendants: Punitive use of restrictive housing should be limited to seven days, with no monthly limit.
Plaintiffs: Youth must be out of their cells for at least eight hours per day, including at least six hours of structured activities, including on non-school days.
Defendants: Youths should be out of their cells a minimum of two hours per day, absent an immediate and substantial threat of harm or a youth's refusal to come out of his or her room.
Plaintiffs: Except in emergencies, medical and mental health staff, if on site, must be present when chemical agents are used against youths. If medical and mental health staff are not on site, they should be consulted as soon as practicable.
Defendants: Do not agree that medical and mental health staff need to be present, but do agree they should be consulted as soon as practicable.
Plaintiffs: The schools should implement a positive behavior program management program within three months.
New staff should be trained in de-escalation techniques.
The schools should establish training protocols to ensure staff is trained in adolescent development, background characteristics of youth, signs of mental illness, dealing with youth with post-traumatic youth, and working with youth with mental illness.
Defendants: Establishing such a programs and training is not necessary to the terms of the injunction.
The state's Lincoln Hills and Copper Lake juvenile prisons must reduce to five to seven days the maximum time incarcerated youths are held in solitary confinement, a federal judge told lawyers involved in a lawsuit over abusive conditions at the institutions.
State defendants in the case, including Secretary of Corrections Jon Litscher, have admitted the schools held youth in solitary for more than 50 consecutive days.
In addition, U.S. District Judge James D. Peterson wrote in a guiding order, "restrictive housing should not be routinely used for prehearing confinement."
The prisons now hold youths in solitary confinement for days before even determining whether the young people should be punished through solitary confinement.
Peterson issued his order to assist attorneys working on a the terms of preliminary injunction to eliminate the worst conditions at the institutions,
Peterson listed a total of 11 points the defendants and plaintiffs in the case should consider as they try to agree on terms of the injunction. A proposal is due from the two sides on Friday. The plaintiffs, current and former inmates of the schools, are represented by the American Civil Liberties Union of Wisconsin and the Juvenile Law Center, with pro-bono assistance from Quarles & Brady,
Peterson's points include:
An Appeals Court rejected a circuit court judge's finding that a man who was pulled from his car, handcuffed by police, and surrounded by five officers was not in police custody.
The state argued unsuccessfully that Omar Quinton Triggs was not in custody for Miranda purposes in part because police did not draw their weapons or "take him to the ground."
"We disagree," District 1 Court of Appeals Judge Joan F. Kessler wrote for the three-judge panel. "Our focus is not what police did not do, but rather, what the police did do."
The appeals court found that police did not properly inform Triggs of his Miranda rights. It also found that Triggs did not give voluntary consent for police to search his garage, where they found a large amount of marijuana.
The court, in reversing Milwaukee County Circuit Judge Clare Fiorenza, reversed Triggs' conviction on a felony charge of possessing marijuana as a second or subsequent offense. It also ordered suppression of all evidenced seized as the result of the search.
Testimony "indicates that at least three police officers removed Triggs from the car, that Triggs was handcuffed within seconds of his removal, that Triggs was handcuffed between five and ten minutes, and that three police cars surrounded his BMW," Kessler wrote.
The state argued unsuccessfully that Omar Quinton Triggs was not in custody for Miranda purposes in part because police did not draw their weapons or "take him to the ground."
Those circumstances constituted "an assertion of custody," she said. She was joined in the opinion by Appeals Judges William W. Brash III and Kitty K. Brennan.
Police reported that when officers approached Triggs' illegally parked car with potentially illegally tinted windows, they could smell fresh marijuana. Triggs informed the officers he was armed and had a concealed carry permit. Triggs began to move around the vehicle as he looked for the permit and then became agitated, prompting police to remove him from the car and handcuff him.
A passenger in the car said it was not parked illegally, but police approached it anyway.
While Triggs was handcuffed, police asked him repeatedly for permission to search a garage from which they said they had seen him walk quickly away. Officers did not remove the handcuffs until Triggs finally consented to the search.
One officer "acknowledged that Triggs was not free to leave at the time, but stated that Triggs was being detained for officer safety and was not under arrest," Kessler wrote.
Fiorenza, in refusing to suppress evidence, found that there was "a reasonable explanation as to why the defendant was initially handcuffed" and a "reasonable explanation as to why the defendant was un-handcuffed."
The appeals panel, though, found "that the degree of restraint the police used against Triggs created a situation in which a reasonable person in Triggs' position would not feel free to leave."
The court, in rejecting the argument that Triggs gave voluntary consent for the garage search, said that "opening the garage was not voluntary, but was a condition of handcuff removal imposed by the police."
Triggs was handcuffed, but was not actually arrested until after the garage search, about a half-hour after the initial stop, Kessler wrote.
"Before they knew anything beyond having observed a car parked in the alley and seeing a man quickly move from from a garage to the car, officers made it impossible for that man to move, either personally or in his vehicle," Kessler wrote. "This overwhelming show of force occurred without officers even seeing Triggs violate any laws."
The American Civil Liberties Union of Wisconsin last week filed a few pictures showing how youths in solitary confinement are treated when they are actually let out of their cells.
The pictures were filed in support of a request by the ACLU and the for a temporary injunction to halt the use of pepper spray, mechanical restraints, and solitary confinement except under very limited, urgent situations.
The defendants in the suit, meanwhile, admitted holding youth for more than 50 consecutive days in solitary confinement and pepper spraying youths who were in their cells or in mechanical restraints, among many other things. The document of admissions is at the bottom of this post.
The ACLU, along with the Juvenile Law Center and with pro-bono assistance from Quarles & Brady, is suing on behalf of past and current inmates of Lincoln Hills and Copper Lake youth prisons, alleging the extreme disciplinary practices at Lincoln Hills and Copper Lake violate the inmates' constitutional rights against unreasonable searches and cruel and unusual punishment and their right to due process. The suit alleges the institutions make routine use of strip searches, chemical sprays, solitary confinement and mechanical restraints.
The case has been assigned to U.S. District Judge James D. Peterson.
Lawyers for defendants in the case argued in a separate document that a court-ordered limit on the the use of pepper spray, solitary confinement, and mechanical restraints could actually hurt efforts by state and school officials to cut back on those things.
The defendants, including Department of Corrections Secretary Jon E. Litscher, also object to the terms "pepper spray," "on the belt," and "solitary confinement." Those terms are all "obsolete" and "inaccurate," the defendants say.
Here are some of the things the defendants admitted (while maintaining their objections to the terms above), according to a court filing:
Sheriff David Clarke testified that in a federal court lawsuit that he is not responsible for jail medical care.
"Do you have any responsibility with respect to the ...(jail) infirmary?" attorney Arthur Loevy asked Clarke.
"No, sir," Clarke responded.
Moments later the sheriff added: "We have a doctor, a medical doctor who is in charge of the -- those medical areas. Not me. I don't know anything about meds. I don't know what I would be looking at. Oh yeah, there's a bed, there's this."
Clarke's testimony came during a deposition, taken in December 2015, that is part of a lawsuit filed against Clarke and Milwaukee County by a former jail inmate who alleges she was repeatedly sexually assaulted by Corrections Officer Xavier D. Thicklen and was shackled by deputies as she gave birth to a baby in a hospital. The suit is scheduled for trial next month.
The jail's health care has come under recent scrutiny because of the deaths of four inmates over the period of several months and unfavorable reports on health care services provided by a private contractor, Armor Correctional Health Services.
"You say you are responsible," Clarke said under questioning by Loevy, a lawyer representing the woman, identified in court documents as Jane Doe. "I'm not responsible for medical stuff; the doctor that I hire is."
Clarke's assertions that he is not responsible for medical care in the jail seems to directly contradict state law, which states that "If a prisoner needs medical or hospital care or is intoxicated or incapacitated by alcohol the sheriff, superintendent or other keeper of the jail or house of correction shall provide appropriate care or treatment. ..." (§) 302.38 (1)
And for inmates held in the jail on behalf of the City of Milwaukee, "the sheriff or other keeper is legally responsible for any such prisoner's confinement; maintenance; care, including medical and hospital care. ..." (§) 302.336 (2)
"I'm not responsible for medical stuff..." Sheriff David Clarke
More from the deposition is below.
Loevy: And who does he (the doctor) report to, if anyone?
Clarke: I don't know.
Loevy: Anyone --
Clarke: I don't know how he could report --
Loevy: Anyone in the sheriff's office?
Clarke: -- to a lay person.
Loevy: Anyone in the sheriff's office?
Clarke: Maybe Inspector Schmidt, but I don't know. I don't want a doctor reporting to me. I know nothing about medicine. Nothing. Why would he report to me? Why would he report to Inspector Schmidt? He has his responsibilities. There's the code that he has to operate under. I don't know who he reports to.
Loevy: You asked me a question. It is somewhat irregular. Maybe because he says there's 50 people came to see me today, and I can't accommodate them, Sheriff. What should I do?
Clarke: I would say that's your problem, you figure it out.
Loevy: All right.
Clarke: Because now you are asking me who should be treated, who not? I'm not going there. Well, do these first and we'll have these over here? No, I'm not doing that. He has to figure that out.
Loevy: Who makes the decision as to how many -- how many hours the medical person should work?
Clarke: He does.
Loevy: So if he tells you I'm going to work two hours a week, okay with you?
Clarke: I don't know. ... He is responsible for the medical stuff.
A federal judge last week refused to dismiss a former inmate's allegation that Milwaukee County Sheriff David Clarke and the county implemented an unconstitutional policy requiring that pregnant inmates be shackled while giving birth.
Clarke and the county had argued that the claim by the former inmate, identified as "Jane Doe" in court filings, should be dismissed because she did not exhaust all potential administrative remedies available to her before filing suit, as required by law.
U.S. District Judge J.P. Stadtmueller, citing an earlier ruling from the 7th Circuit Court of Appeals, said that Doe was not required to pursue a grievance because there was little the jail could do to rectify the harm the shackling caused her as and after she gave birth to her daughter in October 2014.
"Defendants’ allegedly harmful shackling thus concluded upon the birth of her daughter, and so “[s]he had no opportunity to grieve [the shackling] until after the harm done by it was complete and could not be undone by the defendants,” Stadtmueller said in his opinion.
Doe filed suit in 2014, alleging that she was repeatedly sexually assaulted by Corrections Officer Xavier D. Thicklen while she was a County Jail inmate. Her shackling claim was added to the suit later. Doe originally sought class action status for that claim, but dropped the request in March.
The county has not disputed the claims.
The trial in the case is set for June 5.
Read earlier reporting on the case here, here, and here.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
Sign up for the free WJI newsletter.
Help WJI advocate for justice in Wisconsin