By Gretchen Schuldt

​A police officer who walked briskly to catch up to a man who did not want to talk to him was in "hot pursuit" and so was entitled to enter the man's garage without a warrant, a State Court of Appeals judge ruled this week. 

A police officer went to Steven D. Palmersheim's home after a witness complained that Palmersheim was "all over the road" with his car and that Palmersheim publicly urinated after leaving his car, District II Court of Appeals Judge Mark D. Gundrum wrote.

Gundrum's ruling reversed Waukesha County Circuit Judge Michael J. Aprahamian, who found there was no hot pursuit and granted Palmersheim's motion to suppress evidence.

City of Waukesha Police Officer Richard Young watched Palmersheim walk from his vehicle toward the the garage attached to his house. The garage door was open.

The officer first politely said he wanted to talk to Palmersheim, Gundrum wrote. When Palmersheim did not stop, the officer yelled at him to do so.

Palmersheim turned and looked at the uniformed officer, then turned and continued into the garage.

"The officer 'briskly walked and hustled up to try to catch up' to Palmersheim," Gundrum wrote. 

Palmersheim hit the button to close the garage door, and the officer put his foot in a position to break the beam and the door to retract.

The officer asked Palmersheim to come out of the garage and he did so. He denied driving recklessly or urinating by the vehicle, but the officer saw a "stream" coming from beneath Palmersheim's vehicle that could have been urine.

Palmersheim was arrested for second offense operating while intoxicated and disorderly conduct.

"Upon cross-examination, the officer expressed that by 'briskly walking' toward Palmersheim to prevent him from entering his residence, he was 'chasing' Palmersheim in 'hot pursuit' for urinating in the street," Gundrum wrote. "The officer added that he 'certainly stepped up [his] pace to catch up' to Palmersheim although '[t]he distance wasn’t that far'.”

The officer had enough probable cause to arrest Palmersheim, Gundrum said.

​"Within the particular context of this case, where Palmersheim, as far as we can tell from the record, did not run from the officer but nonetheless continued to steadily advance closer to the escape of his abode, and even attempted to close the garage door, which obviously would have aided his escape, the officer’s pursuit of Palmersheim was 'immediate' and 'continuous' and amounted to a hot pursuit tailored to prevent Palmersheim’s escape under these circumstances," Gundrum wrote.

The definition of "hot pursuit" depends "on the particular circumstances of each case," Gundrum wrote. 

"In this case, there is no indication Palmersheim ran from the officer, so hot pursuit could be accomplished by the officer 'stepp[ing] up [his] pace' to 'briskly walk[ing] and hustl[ing] up' to try to catch Palmersheim," he said. "The officer then stopped the closing of the garage door as part of his pursuit. The manner in which the officer engaged in hot pursuit was appropriately measured to the manner Palmersheim used to try to evade the officer."

By Margo Kirchner​

A federal appeals court last week vacated a $10 million award to employees of Pewaukee’s Waterstone Mortgage Corporation for wage and hour violations because the claimants arbitrated as a group.
 
The Seventh Circuit Court of Appeals, citing the U.S. Supreme Court decision in another Wisconsin-based case involving Epic Systems, of Verona, held that a Waterstone employee’s employment agreement limiting arbitration to a single claimant does not violate the National Labor Relations Act’s protections.
 
Pamela Herrington sued Waterstone in U.S. District Court in Madison, asserting that the company failed to pay her minimum wages and overtime as required by the Fair Labor Standards Act (FLSA).  Under FLSA, claims may be brought as collective actions, meaning that other employees may opt in to the lawsuit.  Herrington filed her case as a collective action and 174 other Waterstone employees eventually joined her case.
 
Herrington’s employment agreement, however, contained an arbitration clause covering employment disputes.  The clause said Herrington’s arbitration could not be joined with or include any claims by others against Waterstone.
 
U.S. District Judge Barbara B. Crabb agreed with Herrington’s argument that any waiver of the right to join the claims of others was invalid under the National Labor Relations Act (NLRA), which protects the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
 
Crabb’s decision aligned with applicable law at the time. The National Labor Relations Board had determined that the right to engage in concerted activities for mutual aid or protection included the right to pursue collective or class claims. The Seventh Circuit later reached the same conclusion in a case involving Epic Systems.
 
As a result, Crabb struck the portion of the arbitration clause that waived collective or class action. She then sent the case to arbitration with instructions that Herrington be allowed to join other employees in her arbitration proceedings.  The arbitrator allowed other employees to opt in and, after further proceedings, awarded the claimants over $10 million in damages and fees.
 
Crabb then enforced the award through a court judgment, and Waterstone appealed to the Seventh Circuit.
 
While Waterstone’s appeal was pending, the U.S. Supreme Court overruled the Seventh Circuit’s decision in the Epic Systems case and held that an arbitration clause limiting arbitration to a single claimant does not violate the NLRA’s protection of concerted activities.
 
The Supreme Court’s decision meant the waiver in Herrington’s employment agreement was lawful and Crabb was wrong to strike it, the Seventh Circuit said in the Herrington case.
 
Herrington also argued the arbitration clause still allows for collective or class arbitration despite the waiver.
 
U.S. Circuit Judge Amy Coney Barrett, in the decision, called the argument “weak” and suggested it was “implausible,” but remanded the case to Crabb for a determination. Barrett was joined in her decision by U.S. Circuit Judges Amy J. St. Eve and William J. Bauer.
 
If Crabb agrees with Herrington, Crabb could confirm the $10 million award. If Crabb finds that Herrington’s arbitration is limited to her claims alone, the case could be sent back to arbitration for new proceedings.

By Gretchen Schuldt

​Circuit Judge David Borowski should resign if he does not apologize and remedy the error he made last week in finding an assistant state public defender in contempt of court, an organization representing Wisconsin defense lawyers said Tuesday.

The Wisconsin Association of Criminal Defense Lawyers said Borowski should  vacate the contempt finding against Assistant State Public Defender Puck Tsai, who was handcuffed and detained in a cell after the judge said Tsai rolled his eyes and threw his arms up.

Borowski did not give Tsai an opportunity to speak before having him incarcerated, even though the right to speak before contempt sanctions are imposed is well-established in Wisconsin. 

The case in which Tsai was involved is expected to be recalled soon so the parties can deal with any outstanding issues.

WACDL, in a statement released Tuesday afternoon, said Borowski failed to follow the correct procedure for finding someone in summary contempt. 

"At best, Judge Borowski did not understand or correctly apply the law of summary contempt and should be required to explain and rectify his actions," the organization said.

WACDL President Chad Lanning said the statement referred to Borowski's failure to immediately provide Tsai with an opportunity to speak to the contempt finding and Borowski's failure to specify the terms of the sanction before ordering Tsai into custody.

WACDL called for Borowski to vacate the contempt finding and issue an order stating the finding was made in error.  WACDL has about 475 members statewide.

The proposed order "should specifically state that the original finding of contempt and detention of Tsai was in error, there was no basis for same, and should not have been made.  The order should also state that the erroneous contempt finding and detention should in no way be viewed to adversely or negatively impact Tsai for any purposes in the future, e.g., employment, any professional licensing, applications for insurance or public office."

"If Judge Borowski does not remedy what occurred and apologize - then he should resign immediately because he does not fully appreciate the limits placed on judicial powers," WACDL said. 

The statement also said that "WACDL continues to investigate this matter and other allegations it has received where Judge Borowski allegedly failed to demonstrate proper judicial temperament, failed to demonstrate the proper understanding of the limits of his judicial powers, and failed to provide litigants appearing before him with the due process which the law requires they receive. "

Borowski declined to comment.

Tsai was in court for a bail hearing Friday for Marcus Wilborn, who was charged with vehicular homicide. Wilborn had been released on a signature bond, but was in court because the urine he gave for a drug test was diluted. Dilution may suggest tampering but is not proof of it.

Borowski, clearly unhappy that Wilborn was out on a signature bond, agreed with a prosecutor's request to set a cash bail at $2,500. He found Tsai in contempt after Tsai tried to argue on behalf of his client.

"Judge, this is – judge, I wasn't able to finish any one complete sentence,"  Tsai said moments before being handcuffed and led away. "That's fine with Your Honor. You know I want to highlight for the court this is a person standing here in front of the court an innocent person." 

"No kidding," Borowski responded. "I get that. Sit down. Counsel, if you don't knock – – deputy, take him into custody for contempt."

The judge continued: "Rolling your eyes, throwing your hands in the air, acting like I'm some kind if idiot gets you locked up for contempt. We'll discuss purge later. In the meantime he sits in custody."

The prosecutor on the case - not Borowski or court staff – notified the State Public Defender's Office that Tsai was in custody. Tsai was returned to court in chains, as is customary for criminal defendants, when SPD supervisory lawyers appeared on his behalf. The chains were removed.

He was released from custody that day, as was his client, whose re-test came back clean.

Wisconsin precedent states that people accused of contempt should have the right to speak before sanctions are imposed. Borowski did not provide Tsai with an opportunity to do so until the other SPD lawyers were present, according to a transcript of the hearing.

​The State Supreme Court, in a decision written by Chief Justice Nathan Heffernan, addressed the issue in 1987.

"Because the summary contempt procedure involves imposition of a punitive sanction, not a remedial sanction, its purpose is, by definition, punishment. ..."  Heffernan wrote for the court. "Therefore, it is appropriate that a contemnor should have the opportunity, similar to a criminal defendant, for allocution before punitive sanctions are imposed. The contemnor may well have something to say that mitigates, if not explains away, the contumacious act. ..."

The case arose out of case involving jury selection for a drunk driving trial. Bruce Currie had been dismissed from the jury pool after stating during that his brother had been "murdered by a drunk driver" and that he did not like anyone in the Washington County District Attorney's Office. Passing the defense table on his way from the courtroom, Currie whispered "I hope they hang you" to the defendant.

Washington Circuit Judge James B. Schwalbach dismissed the jury panel, granted a defense motion for a new panel, and fined Currie $1,000. 

Heffernan also quoted the U.S. Supreme Court: "Due process cannot be measured in minutes and hours or dollars and cents. For the accused contemnor facing a jail sentence, his "liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.'"

(Full disclosure: Currie was represented on appeal by WJI Board member Robert Lerner.)

Another Wisconsin Supreme Court case involved an attorney, Roseann Oliveto, who was fined $250 after a Crawford County judge heard her call an order he had just handed down "ridiculous."

This 1995 opinion also was written by Heffernan. The State Supreme Court said the contempt finding was appropriate, but said Circuit Judge George S. Curry erred when he did not provide Oliveto a right to speak. The court threw out Oliveto's fine.

"The right is so basic that it will not be inferred from the record," Heffernan wrote. "The right must be exercised after the court has made its finding of contempt but before punishment is imposed, thereby permitting the judge to vacate the contempt order entirely or to give a more lenient sanction, after considering any mitigating factors revealed in the allocution."

He continued: "Due process and concepts of fundamental fairness are satisfied when the record following a summary contempt proceeding demonstrates all of the following: (1) a statement indicating the judge's decision to hold a person in contempt as well as the factual basis for the holding; (2) a statement from the judge informing the contemnor of the right of allocution and a further statement inviting the contemnor to exercise that right prior to imposition of sanction; and (3) the judge's final decision to impose sanction and the sanction, if any, is imposed."

American Bar Association standards call for judges to allow allocution by the person accused of contempt.

"Although in an extraordinary situation an in-court contempt might require punishment without notice of charges or an opportunity to be heard, such a procedure has little to commend it, is inconsistent with the basic notions of fairness, and is likely to bring disrespect on the court," the ABA says in its commentary on Standard 6-4.5 (ABA Standards for Criminal Justice: Special Functions of the Trial Judge)

"Although in an extraordinary situation an in-court contempt might require punishment without notice of charges or an opportunity to be heard, such a procedure has little to commend it, is inconsistent with the basic notions of fairness, and is likely to bring disrespect on the court.  Accordingly, notice and at least a brief opportunity to be heard should be afforded as a matter of course.

By Gretchen Schuldt

A lawyer threw up his hands, rolled his eyes and, according to Milwaukee County Circuit Judge David Borowski, treated the judge "like some kind of idiot" before Borowski found him in contempt of court, according to a transcript of the hearing.

"Judge, this is – judge, I wasn't able to finish any one complete sentence," Assistant State Public Defender Puck Tsai said moments before being handcuffed and led away. "That's fine with Your Honor. You know I want to highlight for the court this is a person standing here in front of the court an innocent person." 

"No kidding," Borowski responded. "I get that. Sit down. Counsel, if you don't knock – – deputy, take him into custody for contempt."

The judge continued: "Rolling your eyes, throwing your hands in the air, acting like I'm some kind of idiot gets you locked up for contempt. We'll discuss purge later. In the meantime he sits in custody."

Tsai was in court for a bail hearing Friday for Marcus Wilborn, who was charged with vehicular homicide. Wilborn had been released on a signature bond, but was in court because the urine he gave for a drug test was diluted. Dilution may suggest tampering but is not proof of it.

Borowski was clearly unhappy that Wilborn was out on a signature bond in the first place.

"He's out on in what I think is shocking on a PR bond...." the judge said at one point.

When the District Attorney's office asked for a $2,500 cash bond, Tsai argued that there were many reasons urine may be diluted. He also said his client was willing to be retested.

A pretrial worker testified that she did not know why the urine was diluted.

"If anything the state's request is low," Borowski said. "The bail is $2,500. He goes into custody. This is a homicide. I'm not playing games in this case. He violated the terms of his monitoring, 2,500 cash."

Tsai tried to talk about the case but Borowski cut him off. "Right, looking at the allegations where he allegedly had THC and alcohol in his system. Now he's out on what I consider to be and, I'll say this on the record, a preposterous PR bond, which, by the way, is vacated and waived, so now the county can try to collect their PR bond."

Tsai tried again. "Judge, again, if I may be heard on that. I wasn't – I want to let the court know that the criminal complaint failed to mention the reason why the collision happened was because that the deceased person was running a stop sign. ..."

Borowski: "Hang on, counsel. What the defenses are or are not has nothing to do with bail. The allegations are your client was going 65 to 75 miles an hour in a 30 mile-an-hour zone, he had THC in his system, he had a BAC that's over the legal limit. His bail is $2,500, which, again, I'm being exceedingly generous. Let's all stop talking."

The court clerk gave the next court date.

By Gretchen Schuldt

​The detaining and chaining of a defense lawyer found in contempt of court Friday by a Milwaukee County judge sends a message that "undercuts a basic tenet of our justice system," a State Public Defender's Office (SPD) official said Saturday.

"We stand with our staff attorney who was simply going about his job serving as a strong advocate for his client," said Randy Kraft, SPD communications director. 

Circuit Judge David Borowski ordered Assistant State Public Defender Puck Tsai into custody after Tsai reminded the judge of the presumption of innocence for Tsai's client and non-verbally revealed some frustration with the proceedings, which had led to his client being taken into custody, according to accounts.

Borowski declined to comment Saturday, saying the case was still pending. Tsai could not be reached for comment.

A similar incident last year in Las Vegas led to a judge being banned from the bench for life. In that case, Justice of the Peace Conrad Hafen ordered a lawyer handcuffed after she would not stop arguing on her client's behalf.

​Tsai was representing a client who had been released on signature bond in August.

According to accounts by Tsai's colleagues, the SPD, and online court records:

The District Attorney's office on Friday requested cash bail for the defendant because a drug screen showed the man had too much water in his urine. That is a sign of potential tampering but is not proof of tampering.

Tsai argued against the request and Borowski cut him off. Tsai's frustration showed as the parties started to leave. Borowski called everyone back to their seats and made a stronger record for his decision. Tsai tried to argue again and reminded Borowski that the defendant was presumed innocent.

Borowski responded and ordered Tsai taken into custody.

Assistant District Attorney Michael J. Lonski – not court staff or the Sheriff's Department – alerted SPD that its lawyer was detained.

SPD lawyers were dispatched to the courthouse. When they got there, Tsai was brought back in belly and leg chains, as is standard procedure for criminal defendants in custody.

Tsai apologized to the judge at Borowski's request and was released. 
​
SPD lawyers criticized the judge on social media in an unusually public rebuke of someone who may rule for or against them in the future. 

The SPD office also was unhappy. 

"The fact that our attorney was taken into custody, handcuffed, and belly-chained for doing his job is unacceptable," Kraft said. "The impact on our attorney and his client is of utmost concern to this agency. The message this action sends to our attorneys, whose jobs are to be zealous advocates for the rights of their clients, undercuts a basic tenet of our justice system."

And the defendant? 

He got a new drug test.

It came back clean. He, too, was released.

By Gretchen Schuldt

Outagamie County Circuit Judge Mark McGinnis went far beyond his legal authority when he sentenced a defendant last year to six months in jail for contempt of court, according to the State Court of Appeals.

The law provides for a maximum of  30 days in jail for the type of contempt invoked by McGinnis against Brian Mitchell, District III Appeals Judge Mark A. Seidl wrote in summarily dismissing the contempt finding.

McGinnis offered to purge the contempt finding if Mitchell, facing a human trafficking charge that later was dismissed, apologized orally and in writing, and paid a $5,000 fine.

But the law allows only a $500 fine, Seidl said.

McGinnis found Mitchell in contempt of court for rolling his eyes and moving papers around. He also later accused Mitchell of giving him a "fuck-you look."

Mitchell, then 27 and poor enough to have public defender representation, eventually served 42 days on the contempt charge.

McGinnis lifted the $5,000 fine after Carrie L. Plant, an attorney, obtained an order to appoint an attorney on the civil contempt charge if McGinnis refused to purge the fine, according to court records.

Mitchell appealed the entire contempt finding. The state did not put forward a response brief and instead filed a letter "in which it concedes the circuit court's contempt sanction constituted an unauthorized penalty," Seidl wrote.

Mitchell's appeal lawyer, Joseph N. Ehmann, in a court filing described his client as "an African-American man incarcerated far from home pre-trial because he could not post cash bond." 

Before the contempt finding, Ehmann wrote, Mitchell tried to explain that his top priority was a speedy trial.

"Judge McGinnis responded telling Mitchell he 'must not' understand his rights, was 'obviously very confused,' was making 'comments that don’t make sense.'" The judge also told Mitchell he better hope that he doesn't come before McGinnis for sentencing,  Ehmann wrote in his brief.

"Mr. Mitchell reacted with body language expressing frustration or exasperation, and according to Judge McGinnis, 'rolling his eyes,'” Ehmann said.

McGinnis did not make a clear record of what Mitchell did that constituted contempt, Ehmann said. The judge also failed to give McGinnis a chance to speak before imposing sanctions, as required by law, Ehmann wrote.

Seidl, in dismissing the contempt finding, said the unauthorized penalty meted out by McGinnis was enough to do so. 

The state did not respond to Mitchell's argument that the excessive penalty demanded dismissal, nor did it argue that the excessive sanction could be reduced to something allowed by law, Seidl said.

"We interpret the State's silence on this point as a concession of reversible error, and we have no obligation to develop arguments to the contrary," he wrote.

By Gretchen Schuldt

Representatives from the Wisconsin Justice Initiative and other organizations urged Milwaukee County voters Thursday to vote "yes" on the Nov. 6 referendum question asking whether recreational marijuana should be legalized and taxed.

"We're urging a 'yes' vote because it's time for Wisconsin to join the ever-growing list of states that have recognized that marijuana prohibition is an outdated and regressive policy, WJI President Craig Johnson said at a press conference. "We're urging a 'yes' vote because it's wrong to create criminals out of people using cannabis for pain relief or to help with other medical symptoms."

Marissa Ocampo, youth organizer for the ACLU of Wisconsin, said imposing hard punishments through the criminal justice system on marijuana users hasn't reduced usage. 

"Giving someone a criminal record for simple possession creates a lifetime of collateral damage," she said. "The punishment should fit the crime, and public opinion increasingly favors more sensible drug policy and a new approach to marijuana."

In 2013, she said, the ACLU released a report that showed that statewide, African-Americans were more than six times more likely than whites to be arrested for marijuana possession, while studies show that African-Americans and white use marijuana at the same rate.

The referendum question will ask, "Do you favor allowing adults 21 years of age and older to engage in the personal use of marijuana, while also regulating commercial marijuana-related activities, and imposing a tax on the sale of marijuana?"

County Supervisor John Weishan, who introduced the legislation authorizing the referendum, said arresting, prosecuting and incarcerating marijuana offenders was costly to taxpayers and the community.

"We should say, 'You know what?'" he said. "'It's time to end the prohibition on cannabis in the state of Wisconsin.'" 

State Rep. David Bowen (D-Milwaukee) said the referendum can spark a new discussion about marijuana legalization in the State Legislature. 

"It's been too taboo for too long," he said. 

Restoring Our Communities - Wisconsin, a task force of Milwaukee Inner-city Congregations Allied for Hope, also participated in the event. 

"Black people are more likely to be locked up" for cannabis offenses, ROC member Barbara Robinson said. Reforming the marijuana laws means "we can bring our prison rate down."

​WJI research shows that the vast majority of felony possession of marijuana second offense or greater cases are brought against African-American men arrested in the city of Milwaukee north of I-94.

"People used to describe marijuana as a gateway drug," WJI's Johnson said. "And unfortunately it is – because of the unequal way in which marijuana laws are enforced, for black and brown people it's a gateway into the criminal justice system, it's a gateway to jail, and it's a gateway to prison – and that's wrong."

He concluded: "We are asking the people of Milwaukee to speak up in strong voice and tell the legislators in Madison that it's time for Wisconsin to join the 21st century and end marijuana prohibition laws."

Defendants in criminal cases in Wisconsin have the right to request a different judge from the one originally assigned to the case. Defendants don't get to pick the judge they ultimately get.

Here are two charts showing substitutions among full-time Milwaukee County Circuit Court misdemeanor judges. Please note that the the top chart includes one more month than the bottom one does. 

Circuit Judges Hannah Dugan and Jean Kies were elected to the bench in April 2016; Circuit Judge Kristy Yang was elected in April 2017.

By Gretchen Schuldt

​A former Milwaukee police officer was sentenced to 18 months probation and fined $500 for kicking a suspect in the face after he surrendered and was on the ground, surrounded by other officers.

Milwaukee County Circuit Judge Kristy Yang ordered Michael L. Gasser to serve 14 days in the House of Correction, with Huber work-release privileges at the discretion of the House superintendent, as a condition of probation. She allowed Gasser 45 days to report to serve his time, and allowed the sentence to be transferred to Walworth County at Gasser's request. 

Gasser, who resigned from the Milwaukee Police Department after the incident, also is to complete 20 hours of community service, write the victim an apology letter, and "write a letter of self-compassion, which is really another way of saying reflection," Yang said.

In a highly unusual move, Gasser's case was open and closed in two days. He was charged Sept. 6 and appeared before Yang for plea and sentencing on Sept. 7. The prosecution was handled by Assistant Attorney General Annie Jay on behalf of State Attorney General Brad Schimel, records show. Gasser was represented by Michael J. Steinle.

Schimel's shop recommended probation with conditional jail time.

Gasser pleaded guilty to one count of misdemeanor battery and two counts of misdemeanor disorderly conduct.

The Aug. 4, 2017 chase Rosales led police on was high-speed and dangerous, Jay told Yang, according to a transcript of the plea and sentencing hearing.

Rosales eventually surrendered to police, who dragged him through a car window and placed him face down on the ground, according to the complaint. 

Greenfield Assistant Police Chief David Patrick said in a statement that he saw "a stocky Milwaukee Police Department officer wearing black leather boots" walk up and kick Rosales in the face. Patrick saw blood coming from Rosales' face. Patrick later identified Gasser from a squad video. 

Greenfield Police Captain Michael Brunner said he grabbed Gasser after he kicked Rosales and pulled the officer away. 

Videos show at least one kick and possibly a second, the complaint said. 

The officers said they saw blood. Rosales suffered a broken nose and said he had a seizure, according to the complaint.

Once Gasser and his partner returned to their car, the complaint says, they discussed the chase and decided it was the "best fucking thing...best one ever."

Jay said Gasser did not even need to be part of the chase.

"This defendant was, I believe, car number five or six. He wasn't even supposed to be in the chase," she said. "He was on another call for the city of Milwaukee and heard it go out, and he and his partner decided it would be fun to join in. So they joined in."

The officers did not radio in their involvement, she said.

"So this isn't a case of somebody whose life was in jeopardy, or who was involved in a high stress incident and lost his temper, and did something stupid," she said. "This was somebody who in the middle of the day cleared another call and decided to have a fun time which if you watch all the videos, Mr. Rosales is completely subdued by the time the defendant gets involved."

Other police officers from Greenfield and Milwaukee subdued Rosales and had him handcuffed and on the ground "by the time the defendant comes up and kicks him in the face," she said.

"This is the kind of case that people in the community pay attention to, and people want to know what happens when an officer takes advantage of someone who's vulnerable, down on the ground, handcuffed, and unable to defend himself, and has given up" Jay said.

"It's not a case for a fine," she said. "There are real anger management issues that need to be addressed, and there is a real punishment component that needs to be imposed."

Gasser also was involved in the MPD body-cavity search scandal, but has never been disciplined by the department, Steinle said. He has received three merit awards and numerous letters of commendation, Steinle said.

Steinle told the judge that Gasser was a witness in the body-cavity litigation. A jury in a federal civil suit found he conducted an illegal stop-and-frisk search and U.S. District Judge J.P. Stadtmueller called the actions of Gasser and another officer "reprehensible examples of police misconduct."

Steinle said Gasser never denied kicking Rosales.

"He, obviously, has lost a lot," Steinle said. "He lost his employment as a result of it, judge."

"So, judge, I believe that my client does not need correctional treatment as a result of this," Steinle said. "He's lost his job. He's lost the respect of the community, obviously, and his peers."

Gasser, in his statement to the judge, said Rosales was not handcuffed until after Gasser kicked him in the head.

"But I did do it," Gasser said. "It was something that I kind of describe it as something that I did it but didn't mean to do. It wasn't an accident. I didn't trip or something like that, but it was – it was just something that I did and could explain why did it. I've never done this before."

Gasser said he was under stress at the time and Yang acknowledged that  stress, adding "and granted, probably, officers aren't paid enough or well trained enough given the line of work they have to do."

However, she said "you were in a trusted position. And that trust is the trust that you will protect the community.… And here a member of the community was Mr. Rosales, the victim in this case. And so the need to protect the public here is great."

"Simply saying that you don't know why you did it is not enough because only you are in control of your conduct, and you are the one who makes the decision as to whether you take any corrective measures, whether it's anger management or something else."

After reviewing aggravating and mitigating factors, Yang said Gasser's character was "sort of a mixed bag.… And I think what I mean by that really is that, perhaps, your employer could have done more to help provide resources and tools."

She set the fine at $500 she said because Gasser was selling his home and moving, which she said were "financial consequences" of his actions. ​