UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ESTATE OF DEREK WILLIAMS, JR.,
TANIJAH WILLIAMS, DEREK
WILLIAMS III, and TALIYAH S.
WILLIAMS,

Case No. 16-CV-869-JPS

Plaintiffs,

ORDER

v.
CITY OF MILWAUKEE, JEFFREY
CLINE, RICHARD TICCIONI,
PATRICK COE, JASON
BLEICHWEHL, ROBERT THIEL,
TODD KAUL, ZACHARY THOMS,
GREGORY M. KUSPA, CRAIG
THIMM, and DAVID LETTEER,
Defendants.
1.

BACKGROUND
This action arises from the death of Derek Williams, Jr. (“Williams”)

on July 6, 2011 while in the custody of the City of Milwaukee Police
Department. See (Docket #1). Plaintiffs, Williams’ estate and surviving
minor children, have sued the City of Milwaukee and various police officers
(collectively, the “Officer Defendants”) whom they contend violated
Williams’ constitutional rights during the events leading to his death. Id.
Summarized, they allege that in the course of being arrested and detained,
Williams demonstrated obvious respiratory distress and a need for medical
attention. Id. The Officer Defendants ignored him and refused to call for
medical assistance until after Williams had died in the back seat of a police
vehicle. Id.

 On August 4, 2017, the Court denied Defendants’ motion for
summary judgment, including their assertion of the defense of qualified
immunity (the “Order”). (Docket #74). Defendants took an interlocutory
appeal of the denial of qualified immunity. (Docket #75); see Gutierrez v.
Kermon, 722 F.3d 1003, 1009 (7th Cir. 2013) (“[A]n order denying qualified
immunity on summary judgment often is immediately appealable on the
basis that it is a final decision on the defendant’s right not to stand trial[.]”).
The appeal was pending in the Court of Appeals for over a year. Finally, on
October 23, 2018, the Circuit court’s mandate issued. (Docket #89). The
Court of Appeals reversed this Court’s denial of qualified immunity and
remanded for further analysis of the issue. Id. at 14–15. The Court provides
that analysis herein.
2.

ISSUES OTHER THAN QUALIFIED IMMUNITY
Defendants’ appeal was expressly limited to the part of the Order

which denied them summary judgment on the basis of qualified immunity.
(Docket #75 at 2). The appeal did not question any other part of the Order
and so those parts were not before the Court of Appeals. To avoid any
confusion, however, the Court will expressly reinstate and incorporate by
reference each aspect of the Order other than the portion addressing
qualified immunity. See (Docket #74 at 48–51) (Part 4.4 of the Order). The
Court will also adopt the parties’ recent stipulation for the dismissal of
Defendants Craig Thimm and David Letteer as defendants. (Docket #91).
3.

QUALIFIED IMMUNITY
3.1

General Principles

Qualified immunity protects government officials from civil liability
when they perform discretionary functions “insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a
Page 2 of 15

 reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). “Put simply,” says the Supreme Court, “qualified immunity
protects ‘all but the plainly incompetent or those who knowingly violate
the law.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)). It is a defense available to each of the Officer
Defendants in his individual capacity, and not available to municipal
defendants such as the City of Milwaukee. (Docket #89 at 13). Qualified
immunity is a defense only to claims grounded in federal law. Dist. of
Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (“Under our precedents, [police]
officers are entitled to qualified immunity under § 1983 unless (1) they
violated a federal statutory or constitutional right, and (2) the unlawfulness
of their conduct was clearly established at the time.”) (quotation omitted).
Plaintiffs bear the burden to defeat the defense once raised, and must
prove two elements to do so. Weinmann v. McClone, 787 F.3d 444, 450 (7th
Cir. 2015). First, Plaintiffs must proffer facts which, if believed, amount to a
violation of constitutional rights. Id. Second, they needed to show that this
right to medical care was “clearly established under applicable law at the
time and under the circumstances that the defendant official acted.”
Easterling v. Pollard, 528 F. App’x 623, 656 (7th Cir. 2013) (citing Pearson v.
Callahan, 555 U.S. 223, 232 (2009)). Earlier this year, the Supreme Court
offered this concise statement of the rule:
To be clearly established, a legal principle must have a
sufficiently clear foundation in then-existing precedent. The
rule must be settled law, . . . which means it is dictated by
controlling authority or a robust consensus of cases of
persuasive authority[.] It is not enough that the rule is
suggested by then-existing precedent. The precedent must be
clear enough that every reasonable official would interpret it
to establish the particular rule the plaintiff seeks to apply.
Page 3 of 15

 ...
The “clearly established” standard also requires that
the legal principle clearly prohibit the officer’s conduct in the
particular circumstances before him. The rule’s contours must
be so well defined that it is clear to a reasonable officer that
his conduct was unlawful in the situation he confronted. . . .
We have repeatedly stressed that courts must not define
clearly established law at a high level of generality, since
doing so avoids the crucial question whether the official acted
reasonably in the particular circumstances that he or she
faced.
Wesby, 138 S. Ct. at 589–90 (citations and quotations omitted).
3.2

The Order

At the outset of the Order, the Court set forth in detail the material
facts and the parties’ disputes thereof. (Docket #74 at 3–26). This included a
timeline of the events describing each of the Officer Defendants’
involvement in the incident. Id. at 3–12. Because it was Defendants who
presented the motion for summary judgment, all of the evidence and
inferences therefrom was construed in Plaintiffs’ favor. Bridge v. New
Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016).
Later in the Order, the Court turned to the qualified immunity
defense. (Docket #74 at 48–51). The Court determined that the first
element—a violation of Williams’ constitutional rights—was easily met.
Refusing to obtain medical care for an arrestee who obviously needs it, and
whom the Officer Defendants in fact knew needed such care, violates the
arrestee’s Fourth Amendment right to reasonable medical care. (Docket #74
at 38–43); Ortiz v. City of Chi., 656 F.3d 523, 530 (7th Cir. 2011).
In addressing the second issue—whether this constitutional right
was clearly established at the time of the incident—the Court first held that

Page 4 of 15

 Defendants improperly relied on their own version of the facts. (Docket #74
at 49–50). Viewing the facts in a light favorable to Plaintiffs, “one can
conclude that the Officer Defendants knew that Williams’ breathing
complaints stemmed from a serious medical condition and that they
intentionally did nothing (until it was too late) because they were confident
that they would suffer no discipline and that their mistreatment would not
come to public light.” Id. at 50.
Second, the Court found that it was “purposeless” to search out a
factually analogous case which would clearly establish the relevant
constitutional right. The Officer Defendants’ conduct was so egregious that
they could never have reasonably concluded that deliberately ignoring
Williams’ medical needs was consistent with his Fourth Amendment rights.
Id. Indeed, if Plaintiffs’ version of events were true, the Officer Defendants
had knowingly violated the law. Id. at 51 (citing Mullenix, 136 S. Ct. at 308).
3.3

The Appeal

On appeal, Defendants questioned the Court’s analysis as to both
elements of qualified immunity. The Court of Appeals held that it lacked
jurisdiction to review this Court’s determination on the first because it
rested on disputes of fact. (Docket #89 at 6–12). Thus, the Court of Appeals
could not overturn this Court’s conclusion that the Officer Defendants had,
viewing the facts in Plaintiffs’ favor, violated Williams’ constitutional
rights. Id. at 10 (“[W]e conclude that this court lacks jurisdiction to decide
whether a constitutional violation occurred, that is, prong one of the
qualified immunity inquiry.”). As to the second element, however, the
Court of Appeals found that it could properly exercise jurisdiction over the
legal question of whether the right to reasonable medical care was clearly
established at the time of Williams’ death. Id. at 1213.
Page 5 of 15

 The Court of Appeals then explained that because qualified
immunity is a defense available to each individual Officer Defendant, this
Court erred in failing to assess each officer’s conduct separately and in
detail. Namely, the Court of Appeals held that this Court “had the duty to
determine whether each defendant violated Williams’ Fourth Amendment
rights and, if so, whether that right, defined at an appropriate level of
specificity, was clearly established at the time that Williams was in
custody.” Id. at 13. The dissenting opinion put it more bluntly, stating that
this Court failed to follow the “elemental step” of conducting an individual
qualified immunity analysis and provided only a “vague, amorphous
determination” which stumped both the panel and the parties’ counsel.
(Docket #89 at 16–17). The dissent declined to undertake a “cumbersome
review of the record” and agreed with the majority that this Court must do
so. Id. at 19.
This Court had, however, already conducted a review of the record
and set forth the material facts in the appropriate section of the Order.
(Docket #74 at 3–12). Neither the Court of the Appeals nor the parties were
saddled with any burden to undertake this review themselves. In the
qualified immunity section of the Order, the Court did not laboriously
recount each of the Officer Defendants’ actions because it had already done
so. More to the point, this exercise would have been nothing more than
make-work. When taking all reasonable factual inferences in Plaintiffs’
favor, there was little material difference between what each officer did and
said during the events leading to Williams’ death. What mattered then, and
what matters now, is that they all heard Williams cry out for help
repeatedly and ignored him.

Page 6 of 15

 With this in mind, the Court questions the value of the Court of
Appeals’ demand for an express officer-by-officer report of the facts and the
outcome of the qualified immunity analysis. Whatever this Court’s feelings
are on this issue, it is bound by the higher court’s decision. That it took a
year for the Seventh Circuit to direct the completion of this exercise is at
best inexplicable.
3.4

Qualified Immunity Revisited

The Court now proceeds to separately discuss the facts relevant to
each officer’s claim of qualified immunity. In the interest of brevity, the
evaluation below assumes familiarity with the relevant facts as recited in
the Order as well as the evidence underlying them. See (Docket #74 at 3–12).
In contrast to its lengthy and detailed discussion of the facts in the Order,
the Court will now dispense with any further discussion of the parties’
factual disputes; below are the facts and inferences taken in a light most
favorable to Plaintiffs.
3.4.1

Jeffrey Cline

Jeffrey Cline (“Cline”) initially chased Williams to the alley and
responded when Richard Ticcioni (“Ticcioni”) and Patrick Coe (“Coe”)
found Williams hiding in the backyard. Cline was present during the
handcuffing and then followed Williams to the squad car. During this time,
Williams complained about respiratory distress and was sometimes limp
and unresponsive. Though Cline denies hearing Williams, a jury could find
the denial not credible. Williams was so loud that neighbors far away could
hear his cries, and other officers in the area have admitted that they heard
Williams. Cline also sat in the squad car with Williams while Williams
continued to complain, rock around in distress, and say that he was dying.
Though he never looked at Williams, Cline seemed to acknowledge
Page 7 of 15

 Williams’ distress by rolling down the window and turning on the air
conditioning. At no point did Cline radio for medical assistance, though it
would have taken a matter of seconds.
The Court considers four factors to determine whether an arrestee’s
Fourth Amendment right to medical care was violated: “(1) whether the
officer has notice of the detainee’s medical needs; (2) the seriousness of the
medical need; (3) the scope of the requested treatment; and (4) police
interests, including administrative, penological, or investigatory concerns.”
Ortiz, 656 F.3d at 530. The Officers Defendants have conceded the last two
factors; calling an ambulance was easy and would not have hindered any
police interests. (Docket #89 at 10). As to the first two factors, a jury could
reasonably infer that Cline knew Williams was experiencing a medical
emergency and nevertheless refused to call for medical assistance.
At the time Cline acted, it was clearly established that deliberately
ignoring Williams’ serious medical need would violate his constitutional
rights. Williams v. Rodriguez, 509 F.3d 392, 403–04 (7th Cir. 2007); Sides v. City
of Champaign, 496 F.3d 820, 828 (7th Cir. 2007); Egebergh v. Nicholson, 272 F.3d
925, 928 (7th Cir. 2001) (officers violated an arrestee’s constitutional rights
when they “knowingly exposed [him] to a substantial danger to his health
for no good reason,” namely by denying the diabetic arrestee an insulin
shot); Walker v. Benjamin, 293 F.3d 1030, 1040 (7th Cir. 2002) (when medical
personnel refused to give a prisoner his pain medication, whether they
were credible in stating that they thought he was malingering simply to get
narcotics was an issue for the jury); Cooper v. Casey, 97 F.3d 914, 916 (7th Cir.
1996) (“Deliberately to ignore a request for medical assistance has long been
held to be a form of cruel and unusual punishment,” which is a more
onerous standard the mere objective reasonableness).
Page 8 of 15

 3.4.2

Richard Ticcioni

Ticcioni found Williams hiding in the backyard. In the course of
arresting and handcuffing Williams, Ticcioni found himself resting his knee
(and bodyweight) on Williams’ back. After hearing Williams’ breathing
complaints, Ticcioni shifted his weight to reduce the pressure. Ticcioni’s
behavior, like that of Cline, tacitly admits knowledge of Williams’ medical
need. During Ticcioni’s radio message which informed dispatch that
Williams had been captured, Williams can be heard stating that he could
not breathe. Ticcioni has further admitted hearing Williams’ complaints of
respiratory distress. He also carried Williams out of the backyard and to the
squad car, during which Williams fell limply to the ground. Ticcioni then
threw Williams into the back seat of the squad car. Finally, he stood beside
the squad car for a time as Williams continued to cry out in distress. At no
point did Ticcioni radio for medical assistance, though it would have taken
a matter of seconds.
A jury could reasonably infer that Ticcioni knew Williams was
experiencing a medical emergency and nevertheless refused to call for
medical assistance. Ortiz, 656 F.3d at 530. At the time Ticcioni acted, it was
clearly established that deliberately ignoring Williams’ serious medical
need would violate his constitutional rights. Williams, 509 F.3d at 403–04;
Sides, 496 F.3d at 828; Egebergh, 272 F.3d at 928; Walker, 293 F.3d at 1040;
Cooper, 97 F.3d at 916.
3.4.3

Patrick Coe

Coe found Williams hiding in the backyard and assisted Ticcioni in
the initial arrest. During Ticcioni’s radio message which informed dispatch
that Williams had been captured, Williams can be heard stating that he
could not breathe. Coe has further admitted hearing Williams’ complaints.
Page 9 of 15

 He also carried Williams out of the backyard and to the squad car, during
which Williams fell limply to the ground. Coe then threw Williams into the
back seat of the squad car. At no point did Coe radio for medical assistance,
though it would have taken a matter of seconds.
A jury could reasonably infer that Coe knew Williams was
experiencing a medical emergency and nevertheless refused to call for
medical assistance. Ortiz, 656 F.3d at 530. At the time Coe acted, it was
clearly established that deliberately ignoring Williams’ serious medical
need would violate his constitutional rights. Williams, 509 F.3d at 403–04;
Sides, 496 F.3d at 828; Egebergh, 272 F.3d at 928; Walker, 293 F.3d at 1040;
Cooper, 97 F.3d at 916.
3.4.4

Jason Bleichwehl

Jason Bleichwehl (“Bleichwehl”) was part of the group who first
encountered Williams on the street. He then responded when Ticcioni and
Coe found Williams hiding in the backyard. He arrived after Williams had
been handcuffed. Bleichwehl has admitted to hearing Williams’ breathing
complaints. He followed as Williams was taken to the squad car. During
this time, Williams complained loudly about his respiratory distress such
that neighbors far away could hear his cries, and he was sometimes limp
and unresponsive. Bleichwehl also stood near the squad car as Cline spoke
to Williams, and then took Cline’s spot in the driver’s seat for a time.
Bleichwehl did not turn to look at Williams until he was already
unresponsive. He then went to get help from other officers before medical
assistance was finally called for. At no point did Bleichwehl radio for
medical assistance, though it would have taken a matter of seconds.
A jury could reasonably infer that Bleichwehl knew Williams was
experiencing a medical emergency and nevertheless refused to call for
Page 10 of 15

 medical assistance. Ortiz, 656 F.3d at 530. At the time Bleichwehl acted, it
was clearly established that deliberately ignoring Williams’ serious medical
need would violate his constitutional rights. Williams, 509 F.3d at 403–04;
Sides, 496 F.3d at 828; Egebergh, 272 F.3d at 928; Walker, 293 F.3d at 1040;
Cooper, 97 F.3d at 916.
3.4.5

Robert Thiel

Robert Thiel (“Thiel”) initially assisted in forming a perimeter
around the block where Williams was hiding. He then responded when
Ticcioni and Coe found Williams hiding in the backyard. He was present
during the handcuffing, saw Williams in a limp and unresponsive state, and
performed some sternum rubs on Williams. Thiel told Ticcioni and Coe to
take Williams to the street. During this time, Williams complained of
respiratory distress and was sometimes limp and unresponsive. Though
Thiel denies hearing Williams, a jury could find the denial not credible.
Williams was so loud that neighbors far away could hear his cries, and other
officers in the area have admitted that they heard Williams. At no point did
Thiel radio for medical assistance, though it would have taken a matter of
seconds.
A jury could reasonably infer that Thiel knew Williams was
experiencing a medical emergency and nevertheless refused to call for
medical assistance. Ortiz, 656 F.3d at 530. At the time Thiel acted, it was
clearly established that deliberately ignoring Williams’ serious medical
need would violate his constitutional rights. Williams, 509 F.3d at 403-04;
Sides, 496 F.3d at 828; Egebergh, 272 F.3d at 928; Walker, 293 F.3d at 1040;
Cooper, 97 F.3d at 916.

Page 11 of 15

 3.4.6

Todd Kaul

Todd Kaul (“Kaul”) initially assisted in forming a perimeter around
the block where Williams was hiding. He then responded when Ticcioni
and Coe found Williams hiding in the backyard. He arrived after Williams
had been handcuffed. Kaul then proceeded to search for a gun. During this
time, Williams complained about his respiratory distress and was
sometimes limp and unresponsive. Though Kaul denies hearing Williams,
a jury could find the denial not credible. Williams was so loud that
neighbors far away could hear his cries, and other officers in the area have
admitted that they heard Williams. Kaul was later present when Williams
was thrown into the squad car. At no point did Kaul radio for medical
assistance, though it would have taken a matter of seconds.
A jury could reasonably infer that Kaul knew Williams was
experiencing a medical emergency and nevertheless refused to call for
medical assistance. Ortiz, 656 F.3d at 530. At the time Kaul acted, it was
clearly established that deliberately ignoring Williams’ serious medical
need would violate his constitutional rights. Williams, 509 F.3d at 403–04;
Sides, 496 F.3d at 828; Egebergh, 272 F.3d at 928; Walker, 293 F.3d at 1040;
Cooper, 97 F.3d at 916.
3.4.7

Zachary Thoms

Zachary Thoms (“Thoms”) was part of the group who first
encountered Williams on the street. He then responded when Ticcioni and
Coe found Williams hiding in the backyard. He was present during the
handcuffing. Thoms proceeded to search for a gun, and then followed
Williams out to the squad car. During this time, Williams complained about
his respiratory distress and was sometimes limp and unresponsive. Though
Thoms denies hearing Williams, a jury could find the denial not credible.
Page 12 of 15

 Williams was so loud that neighbors far away could hear his cries, and other
officers in the area have admitted that they heard Williams. At no point did
Thoms radio for medical assistance, though it would have taken a matter of
seconds.
A jury could reasonably infer that Thoms knew Williams was
experiencing a medical emergency and nevertheless refused to call for
medical assistance. Ortiz, 656 F.3d at 530. At the time Thoms acted, it was
clearly established that deliberately ignoring Williams’ serious medical
need would violate his constitutional rights. Williams, 509 F.3d at 403–04;
Sides, 496 F.3d at 828; Egebergh, 272 F.3d at 928; Walker, 293 F.3d at 1040;
Cooper, 97 F.3d at 916.
3.4.8

Gregory Kuspa

Gregory Kuspa (“Kuspa”) was part of the group who first
encountered Williams on the street. He then responded when Ticcioni and
Coe found Williams hiding in the backyard. He was present during the
handcuffing. Kuspa proceeded to search for a gun. During this time,
Williams complained loudly about his respiratory distress such that
neighbors far away could hear his cries, and he was sometimes limp and
unresponsive. Kuspa has further admitted to hearing Williams’ breathing
complaints. At no point did Kuspa radio for medical assistance, though it
would have taken a matter of seconds.
A jury could reasonably infer that Kuspa knew Williams was
experiencing a medical emergency and nevertheless refused to call for
medical assistance. Ortiz, 656 F.3d at 530. At the time Kuspa acted, it was
clearly established that deliberately ignoring Williams’ serious medical
need would violate his constitutional rights. Williams, 509 F.3d at 403–04;

Page 13 of 15

 Sides, 496 F.3d at 828; Egebergh, 272 F.3d at 928; Walker, 293 F.3d at 1040;
Cooper, 97 F.3d at 916.
4.

CONCLUSION
As was readily apparent when the Court issued the Order more than

one year ago, the material facts of this case are deeply disputed. When
viewing those facts most favorably to Plaintiffs, and making all reasonable
inferences in their favor, none of the Officer Defendants come close to an
entitlement to the qualified immunity defense. Though each had slight
variances in their roles during the incident, crucially, each was present long
enough to hear Williams’ loud, repeated cries of respiratory distress, but
none even attempted to obtain medical assistance for him.
At best, the Officer Defendants ignored Williams because they
believed he was a malingerer. This sort of behavior has long been
prohibited. Walker, 293 F.3d at 1040. At worst, the Officer Defendants
intentionally allowed Williams to die because of their animus toward
African-Americans, combined with the belief that they could get away with
it. Such obviously unlawful conduct does not enjoy any form of immunity.
The Officer Defendants’ request for summary judgment on the basis of
qualified immunity must, therefore, be again rejected.1
Accordingly,
IT IS ORDERED that the parties’ stipulation of dismissal as to
Defendants Craig Thimm and David Letteer (Docket #91) be and the same
is hereby ADOPTED;

With this ruling, Plaintiffs’ request for further briefing on the issue of
qualified immunity becomes moot. (Docket #90).
1

Page 14 of 15

 IT IS FURTHER ORDERED that Defendants Craig Thimm and
David Letteer be and the same are hereby DISMISSED from this action
with prejudice;
IT IS FURTHER ORDERED that Plaintiffs’ motion for leave to file
supplemental proposed findings of fact and conclusions of law (Docket #90)
be and the same is hereby DENIED as moot; and
IT IS FURTHER ORDERED that, except as modified herein, the
balance of the Court’s August 4, 2017 Order (Docket #74) be and the same
is hereby REINSTATED in its entirety.
Dated at Milwaukee, Wisconsin, this 15th day of November, 2018.
BY THE COURT:

____________________________
J. P. Stadtmueller
U.S. District Judge

Page 15 of 15