SUMMARY BRIEF

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ESTATE OF MICHAEL EDWARD BELL, by
Special Administrator Michael Martin Bell,
KIM MARIE BELL, MICHAEL MARTIN BELL, and SHANTAE BELL,
Plaintiffs,
Case No.: 02:05-CV-01176-CNC
v.
OFFICER ERICH R. STRAUSBAUGH,
OFFICER ERICH S. WEIDNER,
LIEUTENANT DAVID H. KRUEGER,
OFFICER ALBERT B. GONZALES,
KENOSHA POLICE DEPARTMENT,
CITY OF KENOSHA,
Defendants.

PLAINTIFFS’ PROPOSED FINDINGS OF FACT AND BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

The defendants’ motion for summary judgment ignores every single disputed issue of material fact on every single one of the plaintiffs’ claims. The plaintiffs respectfully request that this Court summarily deny the defendants’ motion for summary judgment for the following reasons:

• First, all claims survived the death of Michael E. Bell, and genuine issues of material fact exist on all of the plaintiffs’ 42 U.S.C. § 1983 claims;
• Second, viewing the facts in the light most favorable to the plaintiffs, the defendants are not entitled to qualified immunity on any of the plaintiffs’ claims because:
• It was clearly established that a reasonable police officer could not stop a citizen absent reasonable suspicion that criminal activity was afoot;
• It was clearly established that a reasonable police officer could not assault a citizen without provocation;
• It was clearly established that a reasonable police officer could not tase an unarmed individual who was no longer passively resisting;
• It was clearly established that a reasonable police officer could not gratuitously beat or kill an unarmed, non-resisting individual who was handcuffed;
• It was clearly established that a reasonable police officer could not kill an unarmed, nonresistive citizen who the officer knew did not have a gun.
• Third, the defendants are not entitled to summary judgment on the plaintiffs’ Monell claim because then Chief of Police Dan Wade, and the current Chief of Police John Morrissey, expressly determined that the defendants acted “within policy.”
• Fourth, the defendants are not entitled to summary judgment dismissal of the plaintiffs’ state law claims, because the defendants acted intentionally and unlawfully in shooting Michael E. Bell and because the defendants’ violated their “ministerial duty” to use the least means of force possible under the circumstances.

For these reasons, the plaintiffs respectfully request that this Court deny the defendants motion for summary judgment.