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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RICHARD BETKER,
Plaintiff,
v.                                                                                                Case No. 08C0760
CITY OF MILWAUKEE, ALLEN
GROSZCZYK, EDWARD A. FLYNN and
RODOLFO GOMEZ,
Defendants.
DECISION AND ORDER
Plaintiff, Richard Betker, brings this § 1983 action against several City of Milwaukee
police officers, the police chief and the City.   Plaintiff claims that defendants violated his
constitutional rights in the course of obtaining and executing a “no-knock” search warrant.
Before me now is defendants’ motion for summary judgment.
I.   BACKGROUND
In July, 2006, Debra Capol called the Milwaukee Police Department’s gun hotline
and spoke with defendant Rodolfo Gomez. Capol made comments indicating that she did
not get along with her sister, Sharon Betker, and asked Gomez if a convicted felon could
lawfully possess a firearm.   Gomez answered in the negative.   Capol then reported that
Sharon had a gun in her bedroom in her home in the City of Franklin.   Gomez checked
Sharon’s record and found that she had been convicted of a theft offense some twenty-five
years previous, and that she and her husband, Richard Betker, the plaintiff in the present
case, owned a home at the address that Capol provided.  Several days later, Gomez spoke
to Capol again, and Capol states that she told him that plaintiff owned hunting rifles, hunted




illegally, and possibly possessed illegally stuffed game, but that she had not been in the
Betker home in years.   Thus, Capol could not say whether guns were currently in the
home.   Subsequently, Gomez verified that plaintiff had held hunting licenses.
On August 4, 2006, Gomez filled out a  Milwaukee Police Department form affidavit
and based on the affidavit asked a court commissioner to issue a no-knock search warrant
for plaintiff’s home.  1In the affidavit, Gomez stated:
4)                                                                                           . . . that a convicted felon named Sharon Marie Betker (Capol), white
female, 01-28-53 is reported to be in possession of at least 1 handgun, a
dark colored semi-automatic handgun, at her residence at the location of
11053 S. 76th St., in the City of Franklin and County of Milwaukee, WI.   A
known citizen witness, who wishes to remain anonymous, stated that within
the last 5 days, the informant has observed BETKER in possession or
control of at least one handgun, at the above-described address.  In addition,
the informant stated that Betker and her husband RICHARD BETKER (w/m
3/12/1949) possess numerous hunting rifles and that they both engage in
illegal hunting and the informant has seen stuffed animals like eagles, which
are  a  protected  species,  in  the  residence.    Affiant  checked  with  the
Wisconsin Department of Natural Resources and confirmed that Richard
Betker at the above address obtained a Resident Gun Deer License in 2001
and a Small Game License in  2003, thus corroborating the information
related to firearms at the residence.
5)                                                                                           The affiant believes that the informant is a credible person because
the informant has given law enforcement officers information, which has
been directly corroborated by the knowledge and past experience of law
enforcement officers.   The informant is a citizen witness with prior criminal
convictions but is not currently under indictment in Milwaukee County for any
criminal charges.
6)                                                                                           The affiant knows that guns and drugs are very commonly bought and
sold together and that firearms are maintained in drug distribution houses to
protect the occupants from robbery based on large quantities of cash traded
in exchange for controlled substances.   Affiant knows that firearms are not
readily consumed and that they remain in close proximity to individuals
engaged in ongoing criminal enterprises.
1
The record does not indicate why a City of Milwaukee police officer sought a search
warrant for a home in the City of Franklin, which has its own police department.
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9)                                                                                                    That it is common for more than one firearm to be located in a
residence and that the information presented in this affidavit forms the basis
to  request  a  NO-KNOCK  warrant.    Specifically  affiant  states  that  the
possession of firearms on person(s) involved in criminal activity, or having
immediate access to them, possesses a severe and real threat to the safety
of the officers executing the search warrant.
(Gomez Aff. ¶¶ 4, 5, 6 and 9).
The court commissioner granted Gomez’s request for the no-knock warrant, and on
August 6, 2006 at about 10:00 p.m. defendant Allen Groszczyk and other officers not
including Gomez executed it.   Groszczyk entered the Betker home through the rear side
door while other officers broke the front window.   Although Groszczyk states that he
identified himself as an officer, plaintiff indicates that he did not hear any identification, only
a lot of commotion.  Plaintiff jumped out of bed and grabbed a pistol.  Groszczyk entered
the living room and saw plaintiff with a gun in his hand and his arm outstretched.
Groszczyk fired his weapon striking plaintiff’s hand and shoulder.
II.   DISCUSSION
In evaluating defendants’ summary judgment motion, I take the evidence and all
reasonable inferences therefrom in the light most favorable to plaintiff and may grant the
motion only if no reasonable juror could find for plaintiff.  Carlisle v. Deere & Co., 576 F.3d
649, 653 (7th Cir. 2009).
In order to succeed on a § 1983 claim, plaintiff must show that (1) defendants
deprived him of a federal constitutional right; (2) under color of state law.   Gomez v.
Toledo, 446 U.S. 635, 640 (1980). In the present case, only the first element is disputed.
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All but one of plaintiff’s claims fail.  Among these are his claims against Chief Flynn.
Plaintiff does not develop arguments in support of this claim and therefore waives it.
Palmer v. Marion County, 327 F.3d 588, 597-98 (7th Cir. 2003).   Moreover, to be liable
under § 1983 a defendant must personally deprive a person of a constitutional right, Minix
v. Canarecci, 597 F.3d 824, 833-34, and Flynn was not personally involved in the present
case in any way.
Plaintiff’s claims that Gomez, Groszczyk and unknown officers violated his right to
bear arms and unlawfully arrested, detained and imprisoned him also fail.  Again, plaintiff
does not develop arguments in support of these claims, and therefore waives them.
Further, neither Gomez nor Groszczyk seized plaintiff’s guns or arrested or detained
plaintiff.   And plaintiff makes no attempt to identify the unknown officers.   See Hessel v.
O’Hearn, 977 F.2d 299, 305 (7th Cir. 1992).
Plaintiff also claims that Groszczyk acted unreasonably by entering his home and
shooting him without knocking and announcing his presence and purpose.   However,
Groszczyk was entitled to rely on the no-knock warrant because nothing on its face
suggested that it was deficient. Morris v. County of Tehama, 795 F.2d 791, 795 (9th Cir.
1986) (citing Whiteley   v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 568                  (1971)).
Moreover, Groszczyk did not fire his gun until after he saw plaintiff pointing a gun in the
direction of officers assisting the search.   Groszczyk had a responsibility to protect his
fellow officers, and under the circumstances no reasonable juror could find that his conduct
was objectively unreasonable.   See Graham v. Connor, 490 U.S. 386, 395 (1989); Scott
v. Edinburg, 346 F.3d 752, 7567 (7th Cir. 2003).
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Plaintiff also claims that the City violated his Fourth Amendment rights.  To establish
municipal liability under § 1983, plaintiff must show that his injury resulted from a practice
so settled and widespread as to constitute a custom with the force of law.  Monell v. Dept.
of Soc. Servs., 436 U.S. 658, 690-91 (1978).  A single isolated incident of wrongdoing by
a non-policy maker is generally insufficient to establish municipal liability.   Cornfield v.
Consolidated High School District No. 230, 991 F.2d 1316, 1326 (1992).   Plaintiff argues
that the City’s practice of using a form affidavit that includes exaggerated allegations for
the purpose of obtaining a no-knock warrant violates the prohibition provided in Richards
v. Wisconsin,  520 U.S.  385,  394  (1997) and constitutes such a practice.   However,
plaintiff’s argument fails because plaintiff presents no evidence in support of it.   Plaintiff
refers only to Gomez’s affidavit and offers no evidence of other instances involving form
affidavits. See Henry v. Farmer City State Bank, 808 F.2d 1228, 1237 (7th Cir. 1986)
(stating that establishing “one specific incident in which the plaintiff suffered a deprivation
will not suffice”). In addition, plaintiff did not mention this claim prior to his brief opposing
summary judgment. See Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996)
(stating that a “plaintiff may not amend his complaint through arguments in his brief in
opposition to a motion for summary judgment”).
I turn next to plaintiff’s claim against Gomez for violating his Fourth Amendment
rights by making false or misleading representations in his application for the no-knock
warrant.     See, e.g., Olson v. Tyler, 771 F.2d 277, 281 (7th Cir. 1985).  Plaintiff claims that
Gomez’s misrepresentations caused the court commissioner to issue the warrant and led
to an unreasonable search of his home and ultimately to his being shot.  For this claim to
survive, plaintiff must present sufficient evidence to enable a reasonable jury to conclude
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that Gomez made false or misleading statements in his affidavit either intentionally or with
reckless disregard for the truth.  Beauchamp v. City of Noblesville, 320 F.3d 733, 742-43
(7th Cir. 2003).  Plaintiff can satisfy this burden by showing that Gomez seriously doubted
whether his statements were true, had obvious reason to doubt the accuracy of the
statements or omitted facts that he knew would negate probable cause.   Id. at 743.   In
addition, the false or misleading statements must have been necessary to the probable
cause determination.   Id.
Plaintiff presents sufficient evidence to enable a reasonable jury to conclude that
Gomez intentionally or recklessly made false or misleading representations to the court
commissioner without which the affidavit would not have supported a probable cause
determination.   Gomez’s first arguably false statement was his assertion that “A known
citizen witness, who wishes to remain anonymous, stated that within the last 5 days, the
informant has observed [Sharon] Betker in possession or control of at least one handgun,
at the above-described address.”  (Gomez Aff. ¶4).  A reasonable jury could conclude that
this statement was false and that Gomez made it intentionally or recklessly because Capol
states that she told Gomez that she had not observed Betker with a handgun within the
previous five days and, in fact, had not been in Betker’s home for years.  In his deposition,
Gomez acknowledged not knowing how Capol “knew” that Betker had a handgun in her
home.
Gomez’s second arguably false or misleading statement was his assertion that “the
informant stated that [Sharon] Betker and her husband Richard Betker (w/m 3/12/1949)
possess numerous hunting rifles and that they both engage in illegal hunting . . .” (Gomez
Aff. ¶4).  A reasonable jury could conclude that this statement was false or misleading and
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that Gomez made it intentionally or recklessly.   This is so because Capol states that she
told Gomez that Richard Betker, not Sharon, possessed rifles and illegally hunted, and that
she had not been in the Betker home for years and thus had no information about whether
Richard Betker currently possessed rifles.  Further, in his affidavit in support of defendants’
summary judgment motion, Gomez acknowledges that Capol told him that only Richard
possessed rifles.
Gomez’s other arguably misleading statements were that “guns and drugs are very
commonly bought and sold together and that firearms are maintained in drug distribution
houses to protect the occupants from robbery based on large quantities of cash. . .” and
that “firearms. . . remain in close proximity to individuals engaged in ongoing criminal
enterprises.”                                                                                     (Gomez Aff. ¶6).   Sometime after Gomez prepared the affidavit, another
person  placed  four slashes  through  the  statement  pertaining to  drugs,  leaving  the
statement pertaining to ongoing criminal enterprises intact.   A reasonable jury could
conclude that both the statements relating to drugs and ongoing criminal enterprises were
misleading in the context of the present case and that Gomez made them intentionally or
recklessly.   This is so because the statements implied that the Betkers were involved in
drug distribution or ongoing criminal enterprises, and Gomez appears to have had no basis
for suggesting that they were.
I ask next if the arguably false or misleading statements were material, i.e. whether,
without them, the affidavit supported a probable cause determination.   See Molina v.
Cooper,  325 F.3d  963,  968-69  (7th Cir.  2003).    In order to have supported such a
determination,  the  affidavit  had  to  have  contained  sufficient  evidence  to  induce  a
reasonably prudent person to believe that a search would uncover evidence of a crime.
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Junkert v. Massey,  610 F.3d  364,  367-368  (7th Cir.  2010).    After excising Gomez’s
arguably false or misleading statements, I cannot conclude that the affidavit supported a
finding of probable cause.    Actually, after excising the arguably false or misleading
statements, there is virtually nothing incriminating left in the affidavit.   I must excise
Gomez’s statement that Sharon “is reported to be in possession of at least 1 handgun”
(Gomez Aff. ¶4) because the purported basis for the statement - that Capol stated that she
had recently observed Betker with a gun - was arguably false.
Defendants assert that Gomez stated that plaintiff possessed hunting rifles and had
obtained  hunting  licenses  and  these  statements  supported  a  finding  that  Sharon
possessed  rifles.    However,  for several reasons,  I must excise the  statement that
defendants rely on.   First, Gomez did not state that plaintiff possessed hunting rifles but
rather that he and Sharon did, and this statement appears to have been false.  This is so
both because Capol states that she told Gomez that Richard, not Sharon, possessed rifles
(a statement which Gomez confirms) and that she had no knowledge of whether Richard
currently possessed rifles because she had not been in the Betker home in years.   The
only statement about hunting rifles or hunting that appeared in the affidavit that was not
arguably false or misleading was that plaintiff had obtained hunting licenses, and it could
not be reasonably inferred from this statement that Sharon possessed rifles.
Even assuming that the court commissioner could have reasonably concluded from
the non-excised portions of the affidavit that plaintiff possessed rifles, the commissioner
could not have reasonably concluded that there was probable cause that Sharon also did.
In order to support a conclusion that Sharon constructively possessed plaintiff’s rifles, the
affidavit would have had to have asserted that the rifles were stored in an area over which
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Sharon had control and that she intended to exercise control over them.   See Wis. JI -
Criminal 1343, see also State v. Loukota, 180 Wis. 2d 191, 201-02 (Ct. App. 1993).  The
affidavit contained no such representations.
Defendants argue that because Wisconsin is a marital property state, see generally
Wis. Stat. Ch.  766, if plaintiff possessed hunting rifles, ipso facto, Sharon also did.
However, this contention fails for several reasons.   First, defendants make no attempt to
develop a legal argument in support of it and, therefore, waive the issue.   See Central
States. SE & SW Areas Pension Fund v. Midwest Motor Express, 181 F.3d 799, 808 (7th
Cir.  1999)  (stating that arguments not meaningfully developed are waived).   Even if
defendants had not waived the argument, it would fail.  In his affidavit, Gomez said nothing
about who owned the rifles or whether they constituted marital property.  Thus, the marital
property factor played no part in the court commissioner’s probable cause decision, and
I may not consider it.   Even if I could consider it, Wis. Stat. § 941.29(2)(a) proscribes
possession of a firearm not ownership, and the marital property law deals with ownership.
Possession is physical control whereas ownership is legal title.   State v. Black, 242 Wis.
2d 126, 142 (2001).   Thus, even if Sharon had a marital property interest in the rifles this
would not establish probable cause that she possessed them.
Even assuming that the court commissioner could have found probable cause to
search the Betker home based on the non-excised portion of Gomez’s affidavit, it would
nevertheless be inappropriate for me to grant defendants’ motion for summary judgment.
This is so because a reasonable jury could conclude that Gomez intentionally or recklessly
made material false or misleading representations that caused the court commissioner to
issue a no-knock warrant.   A judicial officer may not issue a no-knock warrant unless he
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or she reasonably suspects that requiring the police to knock and announce their identity
and purpose would be dangerous or futile or would inhibit the effective investigation of a
crime. See  Richards, 520 U.S. at 394. In the present case, Gomez asked for a no-knock
warrant because plaintiff and Sharon presented “a severe and real threat to the safety of
the officers executing the search warrant.”                                                       (Gomez Aff.  ¶  9).      However, Gomez’s
characterization of the situation that officers would encounter in the Betker home was
based on several arguably false or misleading statements.  The first was his statement that
an informant stated that she had observed guns in the Betker home within the last five
days.   The second was his suggestion that the Betkers were engaged in criminal activity
beyond the possible possession of firearms.   (See Gomez Aff. ¶ 9, wherein he stated that
the possession of firearms by persons “involved in criminal activity . . .   possesses [sic] a
severe and real threat to the officers . . .”)  Nothing in the record suggests that Gomez had
a basis for suggesting that the Betkers were engaged in criminal activity beyond the
possible possession  of  firearms.    And, if I excise the arguably false or misleading
representations  discussed  above,  there  is  literally  nothing  left  in  Gomez’s  affidavit
suggesting a basis for a no-knock warrant.  The remaining portions of the affidavit indicate
little more than that the Betkers were a middle aged couple, that Richard Betker had
obtained hunting licenses and that Sharon had a twenty-five year old theft conviction.
Finally, defendants argue that plaintiff’s claim fails because Gomez is entitled to
qualified immunity.  Governmental actors performing discretionary functions enjoy qualified
immunity and are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person
would have known. Estate of Escobedo v. Bender, 600 F.3d 770, 778 (7th Cir. 2010).
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Gomez is obviously not entitled to qualified immunity.                                          “Where the judicial finding of
probable cause is based solely on information the officer knew to be false or would have
known was false had he not recklessly disregarded the truth, not only does the arrest
violate the fourth amendment, but the officer will not be entitled to good faith immunity.”
Olson, 771 F.2d at 282.
III.   CONCLUSION
For the reasons stated, defendants’ motion is GRANTED as to all of plaintiff’s claims
except his claim against defendant Gomez for making arguably false or misleading
representations in his application for a no-knock search warrant for plaintiff’s home.  As to
that claim, defendants’ motion is DENIED.
Dated at Milwaukee, Wisconsin, this 4th day of August 2011.
/s________________________________
LYNN ADELMAN
District Judge
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