Eric T. Alston, Plaintiff-Appellant,
City of Madison, et al., Defendants-Appellees.
February 16, 2017
from the United States District Court for the Western
District of Wisconsin. No. 13-cv-635 - Barbara B. Crabb,
Flaum, Manion, and Kanne, Circuit Judges.
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.
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.
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.
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.
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.
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 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
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.
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.
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. 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.)
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.
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 ...