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June 1, 2020

2/4/2020 7:30:00 AM
County files response to lawsuit filed in connection with Sanns Street incident

Heather Schaefer
Associate Editor

Attorneys for Oneida County, the town of Minocqua, and two local law enforcement officers have filed a response to a lawsuit filed in late 2019 by the estate of a Rhinelander man who died in April 2017, 11 days after a large-scale police operation took place at his residence.

According to complaint, filed Nov. 26, 2019 in the U.S. District Court for the Western District of Wisconsin, the estate of Thomas Smith, by special administrator Shannon Bryfczynski, is alleging the defendants violated Smith's "right to be free from unreasonable seizure when they employed excessive force in arresting him after he came out of his house" on April 7, 2017.

"By virtue of the unlawful actions of the Defendants alleged above, Thomas Smith suffered loss of liberty, and physical and emotional distress, and premature death, for which his estate seeks an award of compensatory damages in an amount deemed just by the Court," Madison attorney Jeff Scott Olson has alleged on behalf of the plaintiffs.

According to the narrative set forth by Olson, at the heart of the lawsuit are the events of the evening of April 7, 2017 when Smith's health conditions left him unable to fully communicate with an Oneida County dispatcher, resulting in law enforcement erroneously concluding that there was a possible hostage situation, rather than a medical emergency, at his 10 Sanns Street residence.

Law enforcement officers surrounded the house and eventually Smith emerged, however his estate claims officers used an excessive degree of physical force in dealing with "a disabled old man" resulting in his premature death days later.

However, in the county's 12-page response to the lawsuit, attorney Lori Lubinsky argues the plaintiffs damages may have been caused by "intervening or superseding causes" and no constitutional violations occurred on April 7.

According to the narrative set forth in the complaint, Smith was 65 years old on that day in 2017 and had previously suffered a stroke that had left him unable to speak. He was also suffering from a Parkinsonian-type illness called Multiple System Atrophy, that caused difficulty walking and problems with coordination when performing even the simplest tasks, the complaint states. "In addition, he was an insulin-dependent diabetic," the complaint notes. "He was quite frail and slow."

Smith's son, Alan, lived with him at the time and served as his primary caretaker. However, on April 7, Alan Smith left the Sanns Street residence to attend a birthday party for his daughter. While he was gone, his father suffered a medical problem and called 9-1-1 for assistance, according to the complaint.

"When his call was answered, he was unable to verbally answer questions, so the 911 dispatcher asked Thomas Smith to press buttons on his phone in order to respond to the dispatcher's queries," the complaint continues. "Thomas Smith tried to respond to the dispatcher's questions by pressing buttons on the phone, but he could not coherently convey his situation to the dispatcher, who got a wildly erroneous impression of his circumstances. The dispatcher interpreted his responses to mean that there may have been a medical emergency but also that there was a hostage situation with gunshot injuries to one or more persons in the house and a bomb located somewhere on the property. There was no truth to any of the conclusions of anti-social behavior or criminal conduct which were drawn by the dispatchers and other authorities from Mr. Smith's signals transmitted by pushing buttons on his phone. After approximately fifty-five minutes, the call was terminated by Thomas Smith. Law enforcement responded to his call by sending the Marathon-Oneida County Sheriffs' Bomb Squad, which deployed a Bearcat armored vehicle, as well as by sending officers from the Minocqua Police Department, the Rhinelander Police Department and the Oneida County Sheriff's Department to Mr. Smith's home at 10 Sanns Street."

Officers surrounded the Smith home and demanded, via loudspeaker, for the occupant to exit, the complaint continues.

After Smith exited his home, "an officer with a bullhorn commanded him to put his hands on his head. As Thomas Smith moved forward, the officer with the bullhorn commanded him to turn around with his hands on his head. Because of Mr. Smith's medical conditions, walking was difficult for him, and he moved with a shuffling gait. Because of Mr. Smith's medical conditions, he could not raise his arms over his head. He could not turn around, or did not understand the command to do so, and, thus, Mr. Smith continued to move forward down his driveway, shuffling slowly along in his bedroom slippers, while officers surrounded him with guns drawn," Olson wrote.

At that point, Olson contends "it was obvious by then to the officers surrounding Thomas Smith that he was a disabled and demented old man who was not a danger to anyone and who might very well be unable to comply with police commands to respond verbally or to take certain physical actions, and it was obvious that he could be led to go wherever the officers wanted him to go with the most minimal of guidance and without applying any significant degree of physical force, much less sufficient force to throw him to the ground or otherwise injure him, if they were just patient with his slowness."

"There was no objective need for the officers present to inflict any degree of physical force on Thomas Smith, much less sufficient force to potentially injure him," Olson argues. "Nevertheless, Thomas Smith was then set upon by Defendants (Oneida County deputy Stetson) Grant and (then Minocqua police officer Gary) Loduha, who took hold of him, threw him to the ground, dragged him around the Bearcat armored vehicle, and threw him to the pavement again. While he was on the pavement, the individual Defendants shackled Mr. Smith's ankles and handcuffed his wrists. Then they picked him up and tossed him into the back of the Bearcat. All of this rough handling of a physically compromised and frail elderly man caused significant injury to Thomas Smith."

When Alan Smith arrived on scene, he was directed to wait in a squad car, the complaint continues.

After that, a police detective showed Smith a photo of Thomas Smith and advised that both Thomas Smith and Alan Smith's daughter had been shot.

"Alan Smith had replied that his daughter was at a birthday party, was not present at 10 Sanns Street, and that his father had Parkinson's disease," the complaint continues. "The detective had then asked Alan Smith if there were weapons in the home and Alan Smith had replied that there were none - no guns, no bombs, no bows, no weapons of any kind."

Officers eventually transported Alan Smith to the hospital so he could assist in communicating with his father.

According to the complaint, when Alan Smith saw his father in the hospital Thomas Smith "was wearing a neck brace, and he had cuts to the right side of his face and big bumps on his right forehead. None of these injuries had been visible when Alan Smith had last spoken with his father earlier in the day."

Eight days later, Thomas Smith was discharged to in-home hospice care.

"His discharge diagnosis was pneumonia, right lower lobe; closed head injury with abrasion/laceration of the right periorbital region (the tissue surrounding the right eye); Type 2 diabetes with hyperglycemia, chronic; urinary retention, acute, discharged with catheter; multiple system atrophy, Parkinsonian type, chronic, severe, and progressive; chronic kidney disease, stage 3; cachectic ( a diagnosis of general ill health with emaciation) with weight loss secondary to the multiple system atrophy," according to Olson's narrative.

Three days after he entered hospice care, Smith died.

According to the complaint, Smith's primary care physician had previously told the family that "it would be six to eight months before Smith would need nursing home care."

The lawsuit also requests punitive damages.

"Because the acts of the individual Defendants herein alleged were carried out maliciously or with reckless disregard for Mr. Smith's fundamental rights, the Plaintiff seeks awards of punitive damages against the individual Defendants to deter them and others similarly situated from similar wrongful acts in the future," the complaint states.

According to online federal court records, the defendants filed their answer to the complaint on Jan. 26.

The answer includes a long list of denials as well as assertions that the defendants "deny knowledge or information sufficient to form a belief as to the truth" of certain allegations .

The answer also includes a section where Lubinsky lists a number of affirmative defenses including:

• The individual defendants are entitled to qualified immunity;

• The individual defendants are not liable for compensatory damages;

• The municipal defendants are not liable for punitive damages;

• Plaintiff may have failed to mitigate his damages;

• Plaintiff's damages may be attributable to the conduct of other third-parties;

• Plaintiff's damages may have been caused by intervening or superseding causes;

• No constitutional violation resulted from a municipal policy or custom;

In the days following the incident, city and county law enforcement officials publicly defended their actions in response to Mr. Smith's 9-1-1 call.

"We, in law enforcement, would rather err on the side of caution when we are getting reports of people being injured by gunshots and so forth. In the world we live in today, we have to use caution in how we are approaching these situations," said then interim police chief Ron Lueneburg. "Some people might call it an overreaction, but we consider it an appropriate response. We would rather err on the side of caution for community safety then not respond appropriately."

Lueneburg was the highest ranking city officer on scene that day.

At the time, he was acting as interim chief following the resignation of former chief Mike Steffes. In May 2017, Lloyd Gauthier was hired as the new police chief. It should be noted that neither the city of Rhinelander nor any of its officers are defendants in this lawsuit.

For her part, Oneida County sheriff's captain Terri Hook called the situation at 10 Sanns Street that evening "unique".

"It is unusual for a caller not to speak with dispatch when they call," she wrote in a statement released days after the incident. "The situation indicated by the caller through the use of the button pressing technique appeared probable and the caller's inability to speak validated the credibility of the call. We are aware that there was a very large presence of law enforcement resource in the area on Friday night, but this is the type of response needed if this situation had truly occurred. As soon as we determined that this was in fact only a medical issue, we deescalated quickly. A review of the initial 911 call reveals that the telecommunicator who took the call acted in a professional manner to ensure the caller as well as the responding personnel were safe. Due to the fact the caller was responding to the telecommunicator and providing primarily consistent information, the telecommunicator had no way of knowing that the situation was not as it was being reported. Law enforcement must respond to what is reported until it can be proven otherwise. Our primary responsibility is the safety of the community and the safety of our personnel. Our actions were in protection of the community and our personnel."

The plaintiff has requested a jury trial. A pre-trial conference has been scheduled for 1 p.m. March 3 in Madison.

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