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Alston v. City of Madison

United States Court of Appeals, Seventh Circuit

April 10, 2017

Eric T. Alston, Plaintiff-Appellant,
City of Madison, et al., Defendants-Appellees.

          Argued February 16, 2017

         Appeal from the United States District Court for the Western District of Wisconsin. No. 13-cv-635 - Barbara B. Crabb, Judge.

          Before Flaum, Manion, and Kanne, Circuit Judges.


         The Madison Police Department established a focused deterrence program to increase surveillance of repeat violent offenders in Madison. Eric Alston was one of ten repeat violent offenders originally selected for the program.

         Alston brought this § 1983 suit against the City of Madison, then Chief of Police Noble Wray Lieutenant Tom Woodmansee, and three detectives-Cory Nelson, Samantha D. Kellogg, and Paige Valenta-claiming that he was selected for the program because of his race in violation of his equal-protection rights. Alston also argued that his inclusion in the program deprived him of liberty without due process of law: he contended that he was stigmatized as a repeat violent offender and subjected to increased surveillance, penalties, and reporting requirements, and to a biased probation-revocation hearing examiner.

         While in the program, Alston's probation officer Brian Reynolds issued an apprehension request when Alston allegedly failed to attend a scheduled appointment. Alston argued that he rescheduled the appointment before he missed it, so the apprehension request violated his Fourth Amendment rights.

         The district court granted the defendants' motion for summary judgment. Because Alston failed to produce evidence that would allow a reasonable trier of fact to conclude that the program had a discriminatory effect or purpose, that Alston's legal rights were altered by being included in the program, and that the apprehension request issued without reasonable suspicion, we reject Alston's arguments.

         I. Background

         Repeat violent offenders are responsible for a disproportionate percentage of crime in Madison, and the police department expends more resources policing those offenders than others. The department created the Special Investigations Unit to run a focused deterrence program designed to combat that problem. The program used a two-pronged approach: (1) increase surveillance of repeat violent offenders to deter criminal conduct and (2) provide resources to repeat violent offenders to help them become productive members of society.

         If program members continued to reoffend, the department wanted them to be punished to the greatest extent possible. To promote enforcement and punishment, investigations unit detectives[1] met with other law-enforcement agencies to explain the program and to seek the agencies' help implementing it. In particular, the detectives met with probation-revocation hearing examiners and encouraged them to revoke the probation of program members who violated their probation terms.

         Not every repeat violent offender in Madison was a part of the program; the aim was to monitor only the worst of that group. The investigations unit relied on two lists to select participants for the program: one from the department of corrections, which identified the most violent offenders released in the last year, and one from the police department technology staff, which identified the most prolific violent offenders in the department's database. From those lists, investigations unit detectives made qualitative and quantitative judgments about potential candidates' criminal history, likelihood of reoffending, effect on the community, and drain on department resources. Detectives chose eighteen candidates and created a candidate profile for each person. Each candidate's profile included the candidate's age, gang membership (if any), a breakdown of prior criminal conduct (including convictions and charged offenses), and pending cases.

         The investigations unit presented the candidate profiles to a selection committee, which chose ten candidates for the program. The department of corrections then sent a letter notifying the selected candidates that they had been chosen for the program. The members were told both in the letter and by their probation officers that they had to attend a notification meeting to learn more about the program.

         Alston, who was one of the first ten people chosen for the program, described the program less charitably. He argued that the program was designed to reduce disproportionate minority incarceration in Madison by making examples of minority offenders. He based this conclusion on three pieces of evidence. First, blacks accounted for only 4.5 percent of the Madison population but 37.6 percent of arrests and 86 percent of the program.[2] Second, as to the first ten members chosen, the four candidates associated with allegedly black gangs were selected while the one candidate associated with an allegedly white gang was not. And third, quotes from two high-ranking police-department officials, both involved in establishing the program, revealed that the disparity in minority incarceration was a concern when creating the program. Lieutenant Woodmansee stated that "the goal, truly, was to have a positive impact on disproportionate minority confinement." (R. 113 at 6.) And an investigations unit report credited Chief of Police Noble Wray with describing the program "as a tangible means of addressing racial disparity in the criminal justice system." (R. 111-1 at 34.)

         Alston also argued that Reynolds, his probation officer, violated his Fourth Amendment rights. After receiving notice that he had been selected for the program, Alston started having problems with law enforcement. One of Alston's probation conditions required him to attend appointments with Reynolds. On November 16, Alston was not at home for a scheduled visit. Alston alleges that he called Reynolds before he missed the meeting and told Reynolds that he would be late. According to Alston, they rescheduled the appointment for December 2.

         Reynolds contends that he did not hear from Alston on November 16. According to Reynolds, Alston did not contact him until November 25. Reynolds claims that Alston's phone died during the November 25 conversation and that Alston did not call him back until November 30. Under Reynolds's ...

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