A state appeals court this week upheld 15-day suspensions without pay for two Milwaukee police officers who confronted, swore at, and manhandled a man who was walking in the street.
The District I Court of Appeals panel rejected the officers' claim that the suspensions ordered by the Fire and Police Commission amounted to "employment double jeopardy."
Officers Brian Young and Bradley Johnson failed, the panel said in an unsigned opinion, "to provide Wisconsin authority of any kind establishing the existence of, and certainly not the specifics of, 'employment double jeopardy.'”
The ruling by Appeals Judges Brian W. Blanchard, Timothy G. Dugan, and M. Joseph Donald upheld a lower court decision by Milwaukee County Circuit Judge William Sosnay.
Young and Johnson were in uniform, patrolling a violent crime area in April 2016 when they saw a man identified as J.B. in the street on W. Concordia Ave. J.B. was about seven feet from the curb. By the time the officers drove up to him, J.B. was about two feet from the curb.
One of the officers told J.B. to "come here" and "step forward," according to the decision. J.B. responded with "don't touch me" and "for what?"
"Approximately 11 seconds after the officers opened their car doors to make contact with J.B., they placed their hands on him and tried to push his hands behind his back," the decision said. "However, J.B. kept his arms stiff as the officers continued to try to pin his arms behind his back. An officer asked if J.B. had 'weed' (marijuana) or a gun, and J.B. denied possession of either."
Young had a hand on J.B.'s shoulder. Johnson pointed a Taser at J.B. and yelled "Get on your knees now or I'm to tase your ass" and "Get down, get down on your f---ing knees."
The officers told J.B. to sit on the curb, but he refused. J.B. said he had done nothing wrong; one of the officers, according to Fire and Police Commission findings, said that J.B's "offense is standing in the roadway."
An officer told J.B. to sit on the curb and threatened to tase him if he did not comply. Young and Johnson struggled with J.B., trying to take him down, but were unsuccessful.
Johnson pointed the Taser at J.B. and yelled "Get on the f---ing ground." The two again attempted to bring J.B. down and this time were successful. The officers handcuffed J.B. about two minutes and 18 seconds after they got out of the car.
Then-Police Chief Edward Flynn determined that Young and Johnson violated the department's citizen contact protocol, which requires that officers, as much as safety conditions allow, introduce themselves to citizens with whom they make contact. The officers are to give their name, rank or title, their Police Department affiliation, and the reason for the contact or stop. The officers also had violated the Police Department's code of conduct and a requirement that officers be familiar with and abide by department policies, procedures, and training.
The Fire and Police Commission imposed the suspensions, and the officers appealed to Circuit Court, where Sosnay ruled against them.
Their double jeopardy argument on appeal stemmed from their getting counseled by a supervisor soon after the incident. The Fire and Police Commission found that counseling was not discipline, the appeals panel said, adding that "the scant legal authority offered by the officers raises more questions than it does answers."
The appeals court also rejected the officers' contention that the commission lost jurisdiction over the case because it took longer than 10 days to issue a written decision, as its own rules call for. That rule is not mandatory, the panel said.
The panel also found that the commission based its decision on the violations that Flynn alleged and rejected the officers' argument the department rules and standards they were accused of violating were "extremely vague and overbroad."
Help WJI advocate for justice in Wisconsin