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Craig Mastantuono July 14, 2014

Mastantuono & Coffee recently concluded federal civil rights litigation over the wrongful arrest, prosecution, and evidence destruction by the City of Waukesha Police resulting in a grave injustice to one of our clients. Fortunately, we were able to get his criminal prosecution dismissed by a Circuit Court Judge due to police bad faith in destroying video evidence that would have vindicated our client and implicated police in the bad arrest, and ultimately secured a monetary settlement in the federal civil rights case against the Department.

The Journal Sentinal coverage of the civil case outcome is below.

Waukesha settles civil rights claim over arrest, lost videoBy Bruce Vielmetti of the Journal Sentinel June 24, 2014

The City of Waukesha has agreed to pay what the plaintiff's attorney calls a "substantial" amount to settle a civil rights lawsuit against police who destroyed video of an arrest the subject contends was unfounded and done with excessive force.

The resulting charges and litigation spurred claims of political paybacks and biased journalism before the city decided to pay.

Mark Schroeder, 54, of Wauwatosa had driven up on the scene of a car accident involving his daughter in June 2010. As he tried to approach his daughter, an officer ordered him to stay away. The officer wound up taking Schroeder to the ground, putting a knee in his back, and handcuffing him.

Two months later, Schroeder was charged with resisting arrest. He denied the charge, and as soon as his attorney requested the dash cam video of the arrest be preserved, it was instead destroyed. Police claimed it was a mistake, but a Waukesha judge accused officers involved of bad faith, and dismissed the charge against Schroeder.

In 2013, Schroeder sued. The case had been set for trial Monday, but earlier this month, an attorney for the city and the several officers named as defendants notified the court that the parties had reached a settlement.

The settlement followed the judge's denial of Waukesha's attempt to keep any mention of the video's destruction from being mentioned at trial. While the city claimed the loss of the video was irrelevant to Schroeder's claim, U.S. District Judge J.P. Stadtmueller strongly disagreed.

"The loss of the video is highly probative of the credibility of the defendants’ witnesses. Because there is a vast gulf between the different accounts of the events, the loss of the one piece of evidence that could readily show exactly what occurred is highly suspicious," he ruled.

Stadtmueller also denied the city's request that the case be dismissed.

"The defendants continue to assert that there remain no genuine issues of material fact. They are wrong. All of the claims rest upon the factual version of events that occurred at Mr. Schroeder’s arrest and in the following criminal prosecution, including the destruction of the video."

The judge did dismiss Schroeder's claim against the officers in their official capacities, finding no evidence the officers were acting pursuant to an official policy or practice.

Attorney Craig Mastantuono represented Schroeder in the criminal case and on the civil rights suit with co-counsel Eric Darling. Mastantuono said the settlement will help his client, who lost his leg in a steel mill accident before the criminal charge had been dismissed, but who now has a prosthetic leg and hopes to return to work some day.

"The money will make a difference to my client, and, in my opinion, will be heard at the police department," Mastantuono said.

Waukesha police referred questions to the Madison lawyer who handled the case for the city's insurers, who did not return a message seeking comment.