IN THE UNITED STATES DISTRICT FOR

THE WESTERN DISTRICT OF WISCONSIN

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PHILLIP S. DUNN,
Plaintiff,

v. CASE NO. 15-CV-430-BBC

RON SECORD, et al.,

Defendants.
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PLAINTIFFS NOTICE OF AND MOTION
FOR A NEW TRIAL
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NOW COMES the plaintiff Phillip S. Dunn, pursuant to Rule 59(a), Fed. R. Civ. P., to
move for a judgment to set aside the verdict finding the verdict is contrary the clear
weight of the evidence and an order granting a new trial to prevent a miscarriage of
justice. The Honorable Judge William Conley presiding as a last minute medical
emergency refrained Honorable Judge Barbara Crabb from presiding. On December 5,
2016 jury trial began and on the second day the jury returned a verdict in the
defendants finding there was no violation of the Fourth Amendment and that officers
were justified in their conduct. Contrary to the Law, cear weight of the evidence, and the
Constitution of the United States.

The grounds for this motion are as follows:

1) The verdict is contrary to the clear weight of the evidence to support a finding
that Plaintiffs right to be from unreasonable searches and seizures protected
under the Fourth Amendment:

Elements needed to prove particular rights were violated under the Fourth
Amendment regarding unreasonable search and seizure; prove that the
defendants were acting under color of law, defendants while acting under
color of law acted intentionally, and that there was a search or seizure and
that the search or seizure was unreasonable.

a) The verdict is contrary to the clear weight of the evidence to support the
findings that defendants named herein seized Plaintiffs persons after
kicking in a locked bedroom door while acting under color of law as police
officers responding to a complaint from a neighbor with no credibility.
Evidence in support of the verdict being contrary to the clear weight of the
evidence in regards to element 1(a), the defendants were acting under color
of law when the search or seizure occurred.

i. Plaintiffs exhibit 504, defendant Secords testified that on

the morning of October 28, 2014 he was an Investigater for the
city of La Crosse Police. on an examination by District attorney
in an application for search warrant; page 3 line 14-25; page 4
line 1-7, includes acting with other defendants all under color
of law performing a duty as an officer during the incident at
hand, proven by defendant himself.

ii. Plaintiffs exhibit 505, defendant Secords narrative report

page 1, supports the finding that defendant Secord was an
officer for the La Crosse Police Department and on the morning
of October 28, 2014 acted under color of law performing a
duty as an officer during the incident at hand, proven by the
defendant himself.

iii. Plaintiffs exhibit 507, defendant Pokes narrative report page

1, supports the finding in the first couple paragraphs stating
that he was a police officer for the city of La Crosse Police and
was dispatched to the Plaintiffs residence on October 28, 2014,
thereby acting under color of law performing a duty as an
officer during the incident at hand, proven by the defendant
himself.

iv. Plaintiffs exhibit 508, defendant Ulrichs narrative report

page 1, supports the finding in the first couple paragraphs
stating that he was a police officer for the city of La Crosse
Police and was dispatched to the Plaintiffs residence on October
28, 2014, thereby acting under color of law performing a duty
as an officer during the incident at hand, proven by defendant
himself.

v. Plaintiffs exhibit 516, defendant Secords testimony at the

preliminary hearing; page 3, line 17-25; page 4, line 1-25; page
5, line1-5, support the findings that the defendants listed herein
 were police officers for the La Crosse Police and were instructed
to follow up a complaint made about the Plaintiffs residence on
October 28, 2014, thereby acting under color of law
performing duties as officers during the incident at hand,
proven by defendants themselves.

b) The verdict is contrary to the clear weight of the evidence to support the
findings of seizing the Plaintiff and his persons were intentionally made and
without a justifiable reason. Defendants attempted to gain compliance to
their commands to open a locked private bedroom, while officers argue that
they knocked several times and repeatedly asked the occupants to open
the door, Investigator Secord says he doesnt remember if they knocked
and only says they announced themselves as officers and to open the door.
Wherefore, defendants then advise John Addis (tenant) that if the occupants
dont comply to their demands that they will be forced to kick in the door.
John acknowledged that he understood but never gave consent to enter the
bedroom nor could he give consent to an area in which an expectation of
privacy is made by having a locked door John had no key for. Nonetheless
the verdict is contrary to the clear weight of the evidence to support the
finding and element required to prove a particular right was violated under
the Fourth Amendment.

Evidence in support of the verdict being contrary to the clear weight of the
evidence in regards to element 1(b), the defendants were acting under color
of law and acted intentionally.

i. Plaintiffs exhibit 504, defendant Secords testimony on

examination for application of warrant beginning with page 5,
line 16 and ending on page 6, line 16 supports findings that
once officers announced themselves, and not knowing what
was going on in the bedroom, they announced themselves,
Plaintiff and Audrey Perkins refused to open the door, so officers
kicked the door in and immediately arrested the Plaintiff, then
detained the rest of the house, until they could determine what
had been taking place. The Investigator here testifies to a judge
that before any justifiable reason, probable cause, warrant, or
 exigent circumstance existed, officers under color of law
forced entry into a locked private bedroom (not common area)
that was being paid for, therefore expectation of privacy exists,
which proves further the verdict is contrary to the clear weight
of the evidence finding to support a new trial in the best
interest of justice, as a matter of law, and prevent a miscarriage
of justice.

ii. Plaintiffs exhibit 505, defendant Secords narrative report

page 1, paragraph 4 the doors to the bedroom remained
locked and they were not responding to commands by officers
ulrich and poke to open the doors, after waiting several seconds
officer poke kicked the door open into the bedroom and inside
were Dunn and Perkins. At that time everyone in the residence
was placed into handcuffs for safety until we could determine
what had been taking place. Officers not only intentionally
gain entry to a private area of a home, they seize a person
immediately, then build a case.

iii. Plaintiffs exhibit 507, defendant pokes narrative report page

1, paragraph 7, starts giving detail about banging on the door
several times and ordering Plaintiff to open, he said non-
compliance, will result in forced entry. He kicked the door in
without any exceptions to a warrantless search existing.

iv. Plaintiffs exhibit 508, defendant ulrichs narrative report

page 1, starting in Paragraph 5, Ulrich states that upon finding
out that there were 2 other people in the residence, that he
would have to perform a protective sweep, and states John
Addis advised him he understood. Under the protective sweep
doctrine there must have been an arrest prior to the protective
sweep or an exigent circumstance in which neither have any
foundation or elements to establish either or. Officer Poke and
Ulrich claim they knocked on the bedroom door before kicking it
in, yet no justifiable reason for why they needed to gain
entrance other than the 2 circumstances relied upon, that rest
 without any merit.

c) The verdict is contrary to the clear weight of the evidence to support the
findings that the seizure and search of the Plaintiff was unreasonable as
their grounds to be justifiable under the protective sweep or exigent
circumstances doctrines due to their elements lack foundation and have
neither evidence nor justifiable reason to arrest , DUNN v. SECORD et al.,
Order and Opinion on Motion for Summary Judgment, page 4(c) Arrest;
After entering the bedroom, defendants Secord, Ulrich and Poke
handcuffed and arrested plaintiff for possession of illegal drugs and drug
paraphernalia. Defendants include no discussion in their briefs about their
justification for the arrest.

Furthermore, as an ALTERNATIVE to a Judgment as a matter of law, Plaintiff moves the

court for a motion for new trial as the evidence to support findings that the verdict is
contrary to the clear weight of the evidence in support an order granting a new trial
under Federal Rules of Civil Procedures 59.

Dated this 6th day of January, 2017.

Respectfully Submitted,

s/Phillip S. Dunn

Phillip S. Dunn

407 Mallard St
Rockland, W.I. 54653
6084816049