Connie Anne Shaw v. Greg Leatherberry
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2005 WI 163 SUPREME COURT CASE NO.: OF WISCONSIN 2003AP2316 COMPLETE TITLE: Connie Anne Shaw, Plaintiff-Appellant, v. Greg Leatherberry, Roger L. Finch and Amy Elve, Defendants-Respondents. ON CERTIFICATION FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 7, 2005 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Dane Gerald C. Nichol December 6, 2005 JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the plaintiff-appellant there were briefs (in the court of appeals) by A. Steven Porter and Porter, Jablonski & Associates, S.C., Madison, and oral argument by A. Steven Porter. For the defendants-respondents there were briefs by John M. Moore, Sheila M. Sullivan and Bell, Gierhart & Moore, S.C., Madison, and oral argument by Sheila M. Sullivan. An amicus curiae brief was filed by Mark J. Steichen and Boardman, Suhr, Curry & Field, LLP, Madison, on behalf of the Civil Trial Counsel of Wisconsin. An amicus curiae brief was filed (in the court of appeals) by Jeff Scott Olson and the Jeff Scott Olson Law Firm, S.C., Madison, on behalf of the Wisconsin Academy of Trial Lawyers and the Wisconsin Employment Lawyers Association, and there was oral argument by Jeff Scott Olson. An amicus curiae brief was filed (in the court of appeals) by G. Michael Halfenger and Foley & Lardner LLP, Milwaukee, and Laurence J. Dupuis, Milwaukee, on behalf of the American Civil Liberties Union of Wisconsin Foundation, Inc., and there was oral argument by G. Michael Halfenger. 2 2005 WI 163 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2003AP2316 (L.C. No. 1998CV2857) STATE OF WISCONSIN : IN SUPREME COURT Connie Anne Shaw, Plaintiff-Appellant, FILED v. DEC 6, 2005 Greg Leatherberry, Roger L. Finch and Amy Elve, Cornelia G. Clark Clerk of Supreme Court Defendants-Respondents. APPEAL from an order of the Circuit Court for Dane County, Gerald C. Nichol, Judge. ¶1 JON P. WILCOX, Reversed. J. This case certification from the court of appeals. comes to us on The appellant, Connie Anne Shaw (Shaw), appealed an order of the Circuit Court for Dane County, Gerald C. Nichol, Judge, denying Shaw's motion for a new trial, and from the court's decision at trial imposing the middle burden of proof clear and convincing evidence on the liability questions put to the jury in the special verdict. No. 2003AP2316 I ¶2 The court of appeals certified the following question: What standard of proof applies to cases alleging excessive use of force by the police brought pursuant to 42 U.S.C. § 1983 (1994 & Supp. III 1998)1 in Wisconsin courts? ¶3 States We conclude that the Supremacy Clause of the United Constitution2 requires Wisconsin courts to apply the lowest burden of proof preponderance of the evidence in civil rights actions under 42 U.S.C. § 1983, alleging excessive use of 1 Section 1983 of Title 42 of the United States Code states: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 42 U.S.C. § 1983 (1994 & Supp. III 1998). 2 "This Constitution, and the laws of the United States which shall be made in pursuance thereof; . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding." U.S. Const. art VI, cl.2. 2 No. 2003AP2316 force by police personnel. As such, we reverse the order of the circuit for court, and remand a new trial on the issue of liability. II ¶4 In the early morning hours of January 17, 1998, Shaw was the victim of a hit-and-run accident on the Capitol Square in Madison. As Shaw exited her vehicle to survey the damage, the other vehicle drove away. Shaw pursued the car around the Square to the 600 block of West Washington Avenue, whereupon a female driver vehicle. and two other female passengers exited Shaw also left her car, and before she could say anything, the other driver punched her in the face. ensued, their and eventually Shaw's attackers got back A fight into their vehicle and sped away. ¶5 Shaw chased the other vehicle back around the Square and down East Washington Avenue at speeds of up to 80 miles per hour. along Shaw stated that she had hoped to spot a police officer the way for help. Eventually, commercial business parking lot. they ended up in a Although she thought she could go to jail for her actions, she chased the occupants of the vehicle around the lot and rammed the other vehicle with her car. The police later arrived at arrested by Officer Carrie Hemming. the scene, and Shaw was Shaw was then taken to the Dane County Jail to be booked on charges of criminal damage to property and reckless endangerment of safety. ¶6 Deputy Sheriff Greg Leatherberry the booking deputy on duty that night. 3 (Leatherberry) was Leatherberry testified No. 2003AP2316 that Shaw was cooperative and quiet at times, while at other times she was angry, loud, and noncompliant. As part of the booking process, Leatherberry asked Shaw some standard medical questions. Shaw told Leatherberry that she had post-traumatic stress disorder. Furthermore, Leatherberry testified that when he asked Shaw if she was contemplating suicide, she did not immediately answer him. When he asked a exclaimed: second "You're God damn right I am!" time, Shaw Leatherberry then asked the normal follow-up question of if she had ever thought about how she would try to commit suicide. something about completed how the a person answer. could This Shaw started to say "stuff," but triggered she never Leatherberry's recollection of an incident in the prison where a person had committed suicide by stuffing a sock in his mouth. everything Shaw told him, Leatherberry made Based on the decision escorted her to strip Shaw of her clothing. ¶7 Leatherberry handcuffed Shaw and segregation cell in the female housing area. to a Deputy Roger Finch (Finch) was waiting at the holding cell when Leatherberry and Shaw arrived. Because Shaw was female, Deputy Amy Elve (Elve) was summoned to assist. When asked to remove her clothing voluntarily, Shaw refused, and Leatherberry told her that the deputies would be forced to remove her clothing. Shaw denies ever remove being given the opportunity to voluntarily her clothing in the sole presence of Elve. ¶8 Shaw testified that Leatherberry threw her across a cement block bunk, where she struck a cement block wall and fell 4 No. face-first on the bunk. 2003AP2316 She also testified that Leatherberry put his knee in the back of her neck and jerked her handcuffed hands up so that her arms were perpendicular to her body. The deputies proceeded to remove her clothes, and Shaw stated that Finch, who was holding the door of the cell open, stood in the doorway grinning at her. Shaw was given Leatherberry's a After her clothing had been removed, jail actions smock to caused wear. her Shaw great pain testified and that emotional distress, and Finch and Elve did not attempt to intervene to prevent Leatherberry from using excessive force, though they had the opportunity to do so. ¶9 The deputies, on the other hand, testified that Shaw's head never hit the wall, Leatherberry never put his knee on her, and no one testified pulled that he her used handcuffed the arms necessary up. force Leatherberry to remove her clothing given Shaw's physical resistance. ¶10 Shaw filed an action in Dane County Circuit Court on November 4, 1998, which alleged four claims for relief: (1) that the deputies subjected her to an illegal strip search under Wis. Stat. § 968.255 (1997-98); (2) that the deputies tortiously assaulted and battered her; (3) that the deputies deprived her of her rights to be free from an illegal strip search and subjection to excessive force as guaranteed by the Fourteenth Amendment of the United States Constitution and made actionable pursuant to 42 U.S.C. § 1983; and (4) that Dane County and the 5 No. 2003AP2316 Sheriff of Dane County negligently trained the deputies.3 In regard to her § 1983 claim, Shaw claimed deprivations of her constitutional rights by Leatherberry's alleged use of excessive force and by Elve and Finch's failure to intervene on her behalf while Leatherberry mistreated her. ¶11 On October 23, 2000, the defendants moved for summary judgment. In an order dated February 13, 2001, the court granted summary judgment and dismissed each of Shaw's claims except for her claim that she was subjected to excessive force under 42 U.S.C. § 1983. ¶12 On dismissal May of 9, 2002, the complaint identified or served. the as deputies they had moved not for been summary personally At the hearing on the motion to dismiss, Shaw's counsel failed to appear, and the circuit court granted the motion. Shaw moved to reopen and to amend her complaint to include names Finch, the and the individual deputies Leatherberry, On Elve. of May 22, the 2002, court vacated the dismissal and granted Shaw leave to amend her complaint. ¶13 The jury trial was held from May 19 to May 22, 2003. The circuit court utilized an amended version of Wisconsin Jury Instruction-Civil 2155 entitled "Excessive Force in Maintaining Jail Security Federal Civil Rights: § 1983 Action" as agreed upon by burden the of parties, except proof on the with issue of respect to the liability. appropriate Over Shaw's objection, the court used the middle burden of proof contained 3 The negligence claim was voluntarily abandoned by Shaw. 6 No. in Wisconsin Jury Instruction-Civil questions in the special verdict.4 205 for 2003AP2316 the liability On the question of damages, the jury was instructed on the lower burden of proof. Shaw argued that the jury should have been instructed on the lower burden of proof for each question in the special verdict. The court was sympathetic to Shaw's position, but it felt obligated to follow the law in Wisconsin as articulated in cases such as Johnson v. Ray, 99 Wis. 2d 777, 299 N.W.2d 849 (1981) and Wirsing v. Krzeminski, 61 Wis. 2d 513, 213 N.W.2d 37 (1973), which stated that in civil claims alleged against police officers for excessive force, the proper standard is the middle burden of proof. ¶14 was "at At one point, the jury reported to the judge that it a block" on the liability. question relating to Leatherberry's However, after nearly five hours of deliberation in total, the jury later returned a verdict of 11-1 in favor of Leatherberry and Elve on the issue of liability, and 10-2 in favor of Finch on the issue of liability.5 In regard to damages, the jury voted 11-1 that Shaw should receive no money for past 4 For each individual deputy, the special verdict first asked the jury if Deputy Leatherberry used excessive and unnecessary force against Shaw or if Deputies Finch and Elve failed to act in violation of Shaw's right not to be subjected to excessive or unreasonable force. Only if the jury answered in the affirmative did it reach the second question of whether the individual deputy's conduct caused harm to Shaw. 5 Because the jury found in favor of each defendant on the question of excessive force or failure to intervene, it did not answer the question of causation for any of the defendants. 7 No. medical expenses; medical pain, expenses. suffering However, the and disability; jury was 2003AP2316 or unanimous future in its decision to award Shaw $5000 in damages for mental pain and emotional distress. ¶15 Shaw filed a motion for a new trial claiming, in part, that the circuit court erred by instructing the jury that she had to establish liability under the middle burden of proof. In an order filed on July 17, 2003, the circuit court denied Shaw's motion for a new trial. The court stated that under Wisconsin law, the middle burden of proof is used in excessive force cases involving police officers. It also noted that the burden of proof is appropriately higher for police officers in assault cases because they are privileged to use force under some circumstances. III ¶16 Preliminarily, we note that jurisdiction actions does not rest exclusively in federal courts. of § 1983 See Maine v. Thiboutot, 448 U.S. 1, 3 n.1 (1980) ("Any doubt that state courts may also entertain such actions was dispelled by Martinez v. California, 444 U.S. 277, 283-84, n.7 (1980)."). Prior to this conclusive statement of the United States Supreme Court, this court had held jurisdiction to decide that Wisconsin actions based state upon courts § 1983. have Terry Kolski, 78 Wis. 2d 475, 479, 254 N.W.2d 704 (1977). v. Indeed, "there are no longer any state court systems that refuse to hear § 1983 years cases[,]" as the and forum "[s]tate of courts choice 8 for have an emerged increasing in recent number of No. plaintiffs suing . . . § 1983." state and local 2003AP2316 defendants under Steven H. Steinglass, Section 1983 Litigation in State Courts § 1:1, at 1-1, 1-4 (2002). ¶17 § 1983 The issue of what burden of proof is appropriate in a action alleging excessive force in state matter of first impression before this court. court is a "Determination of the appropriate burden of proof in this case presents a question of statutory interpretation, a question of law which this court determines independently of other courts, benefiting from their analyses." Carlson & Erickson Builders, Inc. v. Lampert Yards, Inc., 190 Wis. 2d 650, 658, 529 N.W.2d 905 (1995). "Statutory interpretation is a question of law that we review de novo." State v. Stenklyft, 2005 WI 71, ¶7, 281 Wis. 2d 484, 697 N.W.2d 769 (citing Columbus Park Hous. Corp. v. City of Kenosha, 2003 WI 143, ¶9, 267 Wis. 2d 59, 671 N.W.2d 633). IV ¶18 Shaw contends that the circuit court erroneously instructed the jury that she had to establish liability under the middle burden of proof clear and convincing evidence as detailed in Wisconsin Jury Instruction Civil 205. Shaw further asserts that the lower burden of proof preponderance of the evidence contained in Wisconsin Jury Instruction Civil 200 was the proper burden of proof in a § 1983 alleging excessive force by the police. state court action The deputies, on the other hand, argue that the circuit court utilized the proper burden of proof as established under this court's prior case law. We agree with Shaw that the preponderance of the evidence 9 No. 2003AP2316 standard should have been used, and we remand on the issue of liability. jury We do not remand on the issue of damages, as the properly considered damages under the lower burden of proof. ¶19 The circuit court relied on Wisconsin Jury Instruction Civil 2155 in concluding that the middle burden of proof was required in this case on the issue of liability. Specifically, the Comment to this jury instruction suggests that in cases alleging excessive force under § 1983, the middle burden of proof is appropriate on the special verdict questions of whether excessive force was caused injury to the plaintiff.6 used and whether such force See Wis JI Civil 2155 (citing Johnson, 99 Wis. 2d 777; Wirsing, 61 Wis. 2d 513). ¶20 The decisions relied upon by the circuit court involved civil tort actions alleging assault and battery by the police. Johnson, 99 Wis. 2d at 781; Wirsing, 61 Wis. 2d at 519. Although the appropriate burden of proof was not the central issue in actions these alleging decisions, this excessive court force of observed a police that in officer, tort the plaintiff must satisfy the jury "by a clear and satisfactory preponderance of the evidence." Johnson, 99 Wis. 2d at 783 (citing Wirsing, 61 Wis. 2d at 520). ¶21 The heightened burden of proof would appropriate if this case arose under state tort law. 6 have been However, On the question of whether the defendants were acting under color of state law, the Comment states that the lower burden of proof is appropriate. See Wis JI Civil 2155. 10 No. 2003AP2316 Shaw's claim that the deputies tortiously assaulted and battered her was dismissed on summary judgment. The sole cause of action tried was Shaw's claim under § 1983 that the deputies' actions deprived her of her federal constitutional rights. As such, the proper focus of the analysis is determining the burden of proof under § 1983 and not the burden of proof under state tort law. ¶22 To be sure, there is no contained within the text of § 1983. explicit burden of proof In such a case "[w]here Congress has not prescribed the appropriate standard of proof and the Constitution does not dictate a particular standard, [the Supreme Court] must prescribe one." Herman & MacLean v. Huddleston, 459 U.S. 375, 389 (1983). ¶23 The deputies argue that there is no controlling federal authority establishing the burden of proof to be used for § 1983 claims alleging excessive use of force. there is clear authority that federal courts However, consistently require plaintiffs to prove their § 1983 claims under the lower burden of proof a preponderance of the evidence. See, e.g., Crawford-El v. Britton, 523 U.S. 574, 594 (1998). ¶24 As a general matter, the Supreme Court has recognized that "[i]n a typical civil suit for money damages, plaintiffs must prove their case by a Huddleston, 459 U.S. at 387. preponderance of the evidence." The burden of proof "serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate Addington v. Tex., 441 U.S. 418, 423 (1979). decision." Specifically, the "preponderance-of-the-evidence standard allows both parties to 11 No. 'share the Huddleston, risk 459 of U.S. error at 390 in roughly (quoting equal Addington, 2003AP2316 fashion.'" 441 U.S. at 423). ¶25 The Supreme Court applies a clear and convincing level of proof "where particularly important individual interests or rights are at stake." Id. at 389 (citing Santosky v. Kramer, 455 U.S. 745 (1982) (proceeding to terminate parental rights); Addington, 441 U.S. at 418 (involuntary commitment proceeding); Woodby v. INS, 385 U.S. 276, 285-86 (1966) (deportation)). "By contrast, imposition of even severe civil sanctions that do not implicate such interests has been permitted after proof by a preponderance of the evidence." Id. at 389-90 (citing United States v. Regan, 232 U.S. 37, 48-49 (1914)). Court concluded that "[t]he interests of The Huddleston defendants in a securities case do not differ qualitatively from the interests of defendants sued for violations of other federal statutes such as the antitrust statute or civil rights laws, for which proof by a preponderance of the evidence suffices." Id. at 390 (emphasis added). ¶26 Turning to a § 1983 case, in Crawford-El, a "litigious and outspoken" prison inmate serving a life sentence brought suit under § 1983 against a corrections officer alleging that the officer materials and deliberately other misdirected personal boxes belongings of containing his when legal he was transferred among various prisons. Crawford-El, 523 U.S. at 578. part, The prisoner claimed, in that the officer "deliberately misdirected the boxes to punish him for exercising 12 No. 2003AP2316 his First Amendment rights and to deter similar conduct in the future." Id. The district court dismissed Crawford-El's claims, in part, because "the First Amendment retaliation claim did not allege direct evidence of unconstitutional motive." at 581 (internal District of quotes Columbia omitted). Circuit, The Court en banc, sitting of Appeals, reviewed dismissal of the First Amendment retaliation claim. primary clear opinion and concluded convincing that evidence "unless on the the Id. Id. plaintiff state-of-mind the The offers issue at summary judgment and trial, judgment or directed verdict (as appropriate) should be granted for the individual defendant." Id. at 583. ¶27 The United States Supreme Court recognized that the heightened burden of proof in improper motivation cases was the court of appeals' attempt to address the problem of "insubstantial claims" and the concerns the court had "with the social costs of subjecting public officials to discovery and trial, as well as Nevertheless, the liability Crawford-El for damages." Court Id. concluded at that 584-85. "[n]either the text of § 1983 or any other federal statute, nor the Federal Rules of Civil Procedure, provide any support for imposing the clear and convincing burden of proof on plaintiffs either at the summary judgment stage or in the trial itself." From this appeals' determination, requirement litigants. Id. of the a Court higher rejected burden of Id. at 594. the proof court on of § 1983 "The unprecedented change made by the Court of Appeals in this case [] lacks any common-law pedigree and alters 13 No. 2003AP2316 the cause of action itself in a way that undermines the very purpose of § 1983 to federal rights." ¶28 provide a remedy for the violation of Id. at 594-95. In our view, the Court's decision in Crawford-El would not have been any different in an excessive force context. That is, the clear and convincing evidence burden of proof undermines the remedial purpose of § 1983 just as much in an excessive force case as it does in a case such as Crawford-El, which concerned the failure to deliver a prison inmate's legal papers. ¶29 In excessive force cases arising under § 1983, the Seventh Circuit has tacitly approved the preponderance of the evidence standard. In McNair v. Coffey, for example, the Seventh Circuit recognized that "a § 1983 case is not a criminal prosecution, and the claims of all sorts." preponderance standard applies to civil McNair v. Coffey, 234 F.3d 352, 355 (7th Cir. 2000), vacated on other grounds by 533 U.S. 925 (2001), overruled on remand McNair v. Coffey, 279 F.3d 463 (7th Cir. 2002). See also Stone v. City of Chicago, 738 F.2d 896, 900-01 (7th Cir. 1984) (analyzing jury instruction that utilized the preponderance of the evidence standard in an excessive force case arising under § 1983).7 Indeed, even looking beyond the 7 The Committee on Federal Civil Jury Instructions for the Seventh Circuit recently drafted a series of proposed pattern jury instructions, including an instruction for excessive force cases under § 1983 alleged by an arrestee or pretrial detainee. The instruction states in part: "In this case, Plaintiff claims that Defendant used excessive force against him. To succeed on this claim, Plaintiff must prove each of the following things by a preponderance of the evidence: . . . ." Fed. Civ. Jury Instructions of the 7th Cir. § 7.08 (2005). 14 No. 2003AP2316 Seventh Circuit, we have found many federal appellate decisions that utilize an ordinary civil burden of proof in § 1983 excessive force cases.8 ¶30 All told, our review of federal law leads us to the conclusion that if Shaw had brought this cause of action in federal court, the appropriate burden of proof would have been the lower civil burden. ¶31 The issue then becomes which burden of proof to apply in a § 1983 cause of action alleging excessive force in state court. The "[j]ust as apply federal state Tompkins, United States law 304 to U.S. courts state 64 Supreme are has recognized constitutionally claims, (1938)] Court so [citing too the Erie that obligated to R.R. v. Supremacy Co. Clause imposes on state courts a constitutional duty 'to proceed in such manner that all the substantial rights of the parties under controlling federal law [are] protected.'" Felder v. Casey, 487 U.S. 131, 151 (1988) (quoting Garrett v. Moore-McCormack Co., 317 U.S. 239, 245 (1942)). Inasmuch as the burden of proof is substantive, we hold that under the Supremacy Clause, the lower federal burden of proof applies in § 1983 excessive force cases in state court. 8 See, e.g., Davis v. Rennie, 264 F.3d 86, 105 (1st Cir. 2001); Kerman v. City of N.Y., 261 F.3d 229, 243 n.10 (2d Cir. 2001); Rogala v. Dist. of Columbia, 161 F.3d 44, 58 (D.C. Cir. 1998); Tatro v. Kervin, 41 F.3d 9, 14-15 (1st Cir. 1994); Zuchel v. City & County of Denver, Colo., 997 F.2d 730, 735 (10th Cir. 1993); Miller v. Taylor, 877 F.2d 469, 471 n.2 (6th Cir. 1989); Wing v. Britton, 748 F.2d 494, 496 (8th Cir. 1984). 15 No. ¶32 2003AP2316 In Garrett, the plaintiff, an injured seaman, filed an action for damages in state court under a federal admiralty law. Garrett, 317 U.S. at 240. The trial court utilized the higher burden of proof under state law. Id. at 242. The Pennsylvania Supreme Court affirmed, determining that although federal law controlled the cause of action, the procedural and not substantive rule. burden Id. of proof is a Therefore, the court concluded that the burden of proof was controlled by state law. Id. The United States Supreme Court reversed. ¶33 Id. at 249. The Court first made it clear that federal substantive law applied. "We do not have in this case an effort of the state court to enforce rights claimed to be rooted in state law. The petitioner's suit rested on asserted rights federal law and the state courts so treated it." granted by Id. at 243. Thus, because the cause of action arose under federal law "[t]he source of the governing law applied is in the national, not the state, governments." Id. at 245. The Court went on to state: If by its practice the state court were permitted substantially to alter the rights of either litigant, as those rights were established in federal law, the remedy afforded by the State would not enforce, but would actually deny, federal rights which Congress, by providing alternative remedies, intended to make not less but more secure. The constant objective of legislation and jurisprudence is to assure litigants full protection for all substantive rights intended to be afforded them by the jurisdiction in which the right itself originates. . . . [I]n trying this case the state court was bound to proceed in such manner that all the substantial rights of the parties under controlling federal law would be protected. Id. at 245. 16 No. ¶34 2003AP2316 The Court concluded by determining that, as a general proposition, the burden of proof is a substantive aspect of the cause of action. the burden of "The right of the petitioner to be free from proof imposed by the Pennsylvania local rule inhered in his cause of action. . . . [I]t was a part of the very substance of his claim and cannot be considered a mere incident of a form of procedure." Id. at 249. See also Raleigh v. Ill. Dept. of Revenue, 530 U.S. 15, 20-21 (2000) ("Given its importance to the outcome of cases, we have long held the burden of proof to be a 'substantive' aspect of a claim.") (citing Dir., Office of Workers' Comp. Programs v. Greenwich Collieries, 512 U.S. 267, 271 (1994); Dick v. N.Y. Life Ins. Co., 359 U.S. 437, 446 (1959); and Garrett, 317 U.S. at 249). Thus, because the burden of proof is substantive and the cause of action arose under federal law, the Court held that the lower federal burden of proof applied. ¶35 This Id. case differs from Garrett in two respects. First, the cause of action arises under a federal civil rights statute and not a federal admiralty statute. Second, the state court improperly shifted the burden of proof from the defendant to the plaintiff, as opposed to applying the wrong burden. However, we see no reason why the principles elicited in Garrett should not apply with equal vigor to a § 1983 excessive force cause of action in state court where a heightened burden of proof was imposed on the plaintiff. See Felder, 487 U.S. at 138 ("[W]here state courts entertain a federally created cause of action, the 'federal right cannot be defeated by the forms of 17 No. 2003AP2316 local practice.'") (quoting Brown v. Western Ry. of Ala., 338 U.S. 294, 296 (1949)). ¶36 Thus, the burden of proof is a substantive aspect of this § 1983 claim. when the circuit over the See Raleigh, 530 U.S. at 20-21. court federally exercised created cause its of concurrent action, it As such, jurisdiction was required under the Supremacy Clause to instruct the jury on the lower burden of proof, a clear attribute of a § 1983 cause of action. ¶37 However, even if the burden of proof were not a substantive aspect of the cause of action, federal law would still preempt Wisconsin law in this instance because a higher burden of proof is inconsistent compensation and deterrence. with § 1983's purposes of In other words, the higher burden of proof utilized in state tort law causes of action is not "consistent with the goals of the federal civil rights laws, [and] instead '"stand[s] as an obstacle to the accomplishment and execution Congress."'" of the Felder, full 487 purposes U.S. at and 138 objectives (quoting Perez of v. Campbell, 402 U.S. 637, 649 (1971) (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941))). ¶38 In Felder, the Court held that Wisconsin's notice of claim statute was preempted by federal law in § 1983 actions in state Court. Id. at 138. The Felder court noted that under the Supremacy Clause, "'the relative importance to the State of its own law is not material when there is a conflict with a valid federal law,' for 'any state law, however clearly within a State's acknowledged power, which interferes with or is contrary 18 No. to federal law, must yield.'" U.S. 663, 666 (1962)). 2003AP2316 Id. (quoting Free v. Bland, 369 With this concept in mind, the Court ultimately held the following: Because the notice-of-claim statute at issue here conflicts in both its purpose and effects with the remedial objectives of § 1983, and because its enforcement in such actions will frequently and predictably produce different outcomes in § 1983 litigation based solely on whether the claim is asserted in state or federal court, we conclude that the state law is pre-empted when the § 1983 action is brought in state court. Thus, under the Felder analysis we now analyze whether a Id. higher burden of proof in this context impermissibly interferes in its purpose and effects with the remedial objectives of § 1983 or is outcome-determinative. ¶39 Section 1983 originated in § 1 of the Civil Rights Act of 1871.9 Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 503 (1982). "The 1871 Congress intended § 1 to 'throw open the doors the of threatened United with, or States who constitutional rights[.]" Cong., Indeed, 1st Sess., "[t]he very App. courts' had to suffered, individuals the who deprivation were of Id. at 504 (quoting Cong. Globe, 42d 46 purpose (1871) of (remarks § 1983 was of to Rep. Lowe)). interpose the federal courts between the States and the people, as guardians of the people's federal rights to protect the people from unconstitutional action under color of state law, 'whether that 9 Act of Apr. 20, 1871, ch.22, § 1, 17 Stat. 13 ("An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes."). 19 No. action be executive, legislative, or judicial.'" 2003AP2316 Mitchum v. Foster, 407 U.S. 225, 242 (1972) (quoting Ex parte Virginia, 100 U.S. 339, 346 (1879)). "Thus, § 1983 provides 'a uniquely federal remedy against incursions . . . upon rights secured by the Constitution and laws of the Nation,' Mitchum, 407 U.S. at 239, and is to be accorded 'a sweep as broad as its language.' United States v. Price, 383 U.S. 787, 801 (1966)." Felder, 487 U.S. at 139. ¶40 actors With this broad sweep, § 1983 seeks to "deter state from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails." Wyatt v. Cole, 504 U.S. 158, 161 (1992) (citing Carey v. Piphus, 435 U.S. 247, 25457 (1978)). forms, The Supremacy Clause ensures that any state law practices, and procedures that interfere with these purposes of the federal civil rights law are preempted. Felder, 487 U.S at 138. See The Supreme Court, in turn, closely scrutinizes any policy that undermines the remedial purpose of § 1983. See Crawford-El, 523 U.S. at 594-95 (rejecting the imposition of a heightened burden of proof in a § 1983 action by an inmate alleging an interference with the right of access to the courts against a prison official). Indeed, the Crawford-El Court recognized that "the heightened standard of proof directly limits the availability of the remedy." federal purposes court is of § 1983 not at through liberty a to Id. at 595 n.16. undermine heightened 20 burden the of If a remedial proof, we No. 2003AP2316 conclude that the Supremacy Clause preempts our state courts from imposing a higher burden of proof in § 1983 actions. ¶41 analysis Another aspect determinative in the Felder Court's whether concerned of the state law § 1983 litigation depending action was brought in state or federal court. at 138. preemption was on outcome- whether the Felder, 487 U.S. The Court determined that Wisconsin "may not alter the outcome of federal claims it chooses to entertain in its courts by demanding compliance with outcome-determinative rules that are inapplicable when such claims are brought in federal court." Felder, 487 U.S. at 152. In other words, "[a] law that predictably alters the outcome of § 1983 claims depending solely on whether they are brought in state or federal court within the same State is obviously inconsistent with [the] federal interest in intrastate uniformity." Id. at 153. See also, Casteel v. Vaade, 167 Wis. 2d 1, 13, 481 N.W.2d 277 (1992). ¶42 state Although we conclude that a higher burden of proof in court in this instance may not necessarily affect the outcome of every case, it does disrupt the federal interest in uniformity. for the same Furthermore, allowing different burdens of proof action, based solely on where the action is brought, would be discriminatory against Wisconsin plaintiffs, and would, in effect, violate the purposes of § 1983. ¶43 Thus, even if we set aside the fact that the burden of proof is a substantive aspect of the cause of action, when we consider the purposes and objectives of the federal civil rights law, the application of the higher burden of proof in state 21 No. 2003AP2316 court actions in this particular context is inconsistent with § 1983 and is therefore preempted under the Supremacy Clause. ¶44 this Finally, we must determine the appropriate remedy in case. This court's decision in Bengston v. Estes, is clear: In Carle v. Nelson, 145 Wis. 593, 130 N.W. 467 (1911), we said that a party upon whom an instruction has cast a greater burden than the law requires can justly complain thereof when the answer is unfavorable to him and an erroneous instruction as to the burden of proof upon a material issue must be deemed to affect the substantial rights of the party. We adhered to this principle in Heineman v. Old Nat. Bank, 157 Wis. 289, 147 N.W. 360 (1914), and reaffirm it now. Bengston v. Estes, 260 Wis. 595, 600, 51 N.W.2d 539 (1952). again follow this principle here. We In this case, however, the court properly instructed the jury on the lower burden of proof in determining the amount of damages. for granting the plaintiff a new Thus, there is no basis trial for damages, and we remand solely on the issue of liability.10 V ¶45 In sum, we conclude that the Supremacy Clause of the United States Constitution requires Wisconsin courts to apply the lowest burden of proof preponderance of the evidence in civil rights actions under 42 U.S.C. § 1983, alleging excessive 10 Although Shaw did not object to the jury's damage award in the trial court, she now asks this court to remand on all issues, including damages, in the interests of justice. Because we believe the increased burden of proof on liability did not affect the amount of damages awarded to the plaintiff for her injuries, we do not remand on this issue. 22 No. use of force by police personnel. 2003AP2316 As such, we reverse the order and judgment of the circuit court, and remand for a new trial on the issue of liability. By the Court. The circuit court is reversed, and the cause is remanded for further proceedings opinion. 23 consistent with this No. 1 2003AP2316
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