Ryan Moderson v. City of Neenah

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 23-2843

RYAN MODERSON, et al.,

Plaintiffs-Appellants,

v.

CITY OF NEENAH, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 1:21-C-272 — William C. Griesbach, Judge.

____________________

ARGUED APRIL 9, 2024 — DECIDED MAY 9, 2025

____________________

Before EASTERBROOK, ROVNER, and JACKSON-AKIWUMI,

Circuit Judges.

JACKSON-AKIWUMI, Circuit Judge. On December 15, 2015,

police officers responded to an unfolding hostage situation at

Eagle Nation Cycles in Neenah, Wisconsin. According to ini-

tial reports, a lone gunman had fired a shot inside the motor-

cycle shop and was threatening to kill hostages within

minutes. When the officers attempted to enter the shop, they

were met with a hail of gunfire and heavy smoke. Men inside

2 No. 23-2843

the shop appeared to disregard the officers’ commands as

well. Suspecting an ambush, the officers retreated. As the of-

ficers regrouped outside, several hostages escaped the build-

ing. The officers handcuffed and questioned most of those

hostages, and transported two of them to the police station—

actions which led to this lawsuit.

Plaintiffs are three of the hostages detained that day. They

sued the City of Neenah and multiple officers for violating

their Fourth Amendment rights against unreasonable sei-

zures. The district court found that Plaintiffs’ detention was

reasonable, so no constitutional violation occurred and, in the

alternative, qualified immunity shielded the officers from lia-

bility. Plaintiffs challenge that decision and also the district

court’s dismissal of Sergeant Angela Eichmann from the

suit—both decisions articulated in an order granting sum-

mary judgment to Defendants. We affirm.

I

We recount the facts in the light most favorable to Plain-

tiffs as the non-movant at summary judgment. Smith v.

Finkley, 10 F.4th 725, 729–30 (7th Cir. 2021). At 8:56 a.m. on

December 5, 2015, the City of Neenah Police Department

alerted officers to a hostage situation at Eagle Nation Cycles.

Initial reports indicated a long-haired, bearded man, dressed

in a flannel shirt and armed with a MAC-10 submachine gun

had taken two or three hostages. Police dispatch told the re-

sponding officers that a shot had been fired inside the build-

ing and the gunman said he would start killing hostages in

five minutes.

The on-duty patrol officer, Lieutenant Shaun O’Bre, in-

structed the officers to form an “invisible containment”

No. 23-2843 3

perimeter around the building to not give away the officers’

location. However, as the officers took their positions, a truck

fled the scene. Dispatch advised the officers that the shooter

was inside the truck, so some officers abandoned their posi-

tions and moved to intercept the vehicle.

Sergeant Angela Eichmann and another officer stopped

the vehicle and identified the driver as Ethan Moderson.

Ethan reported that a white male with long hair he did not

recognize had held him hostage at gunpoint inside Eagle Na-

tion, but he had escaped at the urging of his father, Plaintiff

Ryan Moderson. Ethan also reported that his father was still

in the building. Sergeant Eichmann questioned Ethan for ap-

proximately one minute before releasing him and returning

to the perimeter.

Meanwhile, Lieutenant O’Bre learned that the individual

fleeing in the truck was not the gunman, and the gunman re-

mained inside Eagle Nation. In response, he assembled a team

of officers to enter the building and free the hostages. The

team prepared to breach the building believing that, because

four minutes had already passed since the gunman threat-

ened to kill hostages, people would die if the officers did not

enter immediately.

The officers’ attempted rescue was met with chaos. Motor-

cycles and mechanical equipment frustrated their entry into

the building. Once in, the officers shouted: “Police,” “Get

down,” “Get on the ground now,” and “Show me your

hands.” Although Plaintiffs dispute this, one officer reported

seeing two individuals who did not appear in distress move

in opposite directions, consistent with a flanking maneuver.

Then, according to the officers, came a hail of gunfire during

which a cloud of smoke erupted. One officer was struck in the

4 No. 23-2843

helmet and yelled “I’m hit”; two more officers fell down an

interior stairwell; and another officer—unable to determine

the number or location of shooters—used “target-specific di-

rected fire” to provide cover, allowing for the team’s retreat

from the building. Back outside, the officers surmised based

on the heavy gunfire and the subjects’ failure to comply with

orders that they faced an ambush—not a hostage situation.

The officers then received word that two individuals were

exiting the back door of Eagle Nation. The officers handcuffed

both individuals, Plaintiffs Michael Petersen and Ryan Mod-

erson. An officer transported Petersen to the Neenah Police

Department and turned him over to an interview team. Mean-

while, an officer briefly interviewed Ryan Moderson before

transporting him from the scene to the location of his son,

Ethan. Both Modersons agreed to further interviews and vol-

untarily visited a nearby police station to provide written

statements.

Then, three minutes after the officers retreated from Eagle

Nation, another round of gunfire came from inside the build-

ing. Officers spotted an armed man, Michael Funk, run from

the building, take cover behind a vehicle, and then run across

the alley. Believing they had their hostage-taker, the officers

shot and killed him. It turned out that Funk had been one of

the hostages, not the hostage-taker.

Eventually, the hostage-taker, Brian Flatoff, exited the

building and the officers arrested him. Officers also detained

the final hostage, Plaintiff Steven Erato. Officers took Erato’s

wallet, cell phone, vehicle key, and rosary, and transported

him to the Neenah Police Department. There, Erato, accom-

panied by counsel, was advised he was not under arrest, he

was not required to answer questions, and he was free to

No. 23-2843 5

leave. He said he understood and agreed to an interview with

police.

Ryan Moderson, Petersen (by his estate), and Erato filed

suit, seeking compensatory and punitive damages from the

City of Neenah and its officers for unreasonably seizing them

in violation of the Fourth Amendment. The three plaintiffs

later conceded that there was no basis for a claim against the

City of Neenah, so the district court dismissed the city from

the suit. The court also dismissed Sergeant Eichmann based

on her lack of involvement in the alleged misconduct. The

court granted summary judgment to the remaining officers,

finding that they did not violate the Fourth Amendment, and,

in the alternative, qualified immunity barred Plaintiffs’

claims.

Plaintiffs now appeal.

II

On appeal, Plaintiffs contend that the district court erred

when it (1) granted summary judgment in Defendants’ favor

on Plaintiffs’ Fourth Amendment claims; (2) dismissed Ser-

geant Eichmann from the lawsuit; and (3) concluded qualified

immunity barred Plaintiffs’ claims. Plaintiffs also argue they

are entitled to punitive damages. We conduct a de novo re-

view of a district court’s summary judgment decision. See An-

derson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). We must

reverse if we find that a reasonable jury could have rendered

a verdict in favor of Plaintiffs. Madero v. McGuinness, 97 F.4th

516, 521 (7th Cir. 2024).

6 No. 23-2843

A

We begin with Plaintiffs’ Fourth Amendment claims. The

Fourth Amendment, applicable to the states through the

Fourteenth Amendment, guarantees an individual the right

to be free from “unreasonable searches and seizures” by the

government. Bailey v. United States, 568 U.S. 186, 192 (2013). A

police officer who “restrains [a person’s] freedom to walk

away … has ‘seized’ that person.” Terry v. Ohio, 392 U.S. 1, 16

(1968). We consider the totality of the circumstances to deter-

mine “whether ‘a reasonable person would feel free to termi-

nate the encounter.’” United States v. Lopez, 907 F.3d 472, 487

(7th Cir. 2018) (citation omitted). Here, the parties agree that,

at some point on December 5, 2015, the officers seized each

Plaintiff. The question is thus whether Plaintiffs’ seizure was

reasonable.

Our assessment of a seizure’s reasonableness varies in

form according to the type of seizure. Citizen-police interac-

tions are generally categorized as consensual encounters,

stops, or arrests. United States v. Cade, 93 F.4th 1056, 1060 (7th

Cir. 2024) (citing United States v. Shields, 789 F.3d 733, 743 (7th

Cir. 2015)). Consensual encounters are not seizures. United

States v. Mendenhall, 446 U.S. 544, 553—554 (1980) (“The pur-

pose of the Fourth Amendment is not to eliminate all contact

between the police and the citizenry, but ‘to prevent arbitrary

and oppressive interference by enforcement officials with the

privacy and personal security of individuals.’” (quoting

United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976))). But

investigative stops, also known as Terry stops, are seizures for

purposes of the Fourth Amendment. United States v. Arvizu,

534 U.S. 266, 273 (2002) (“The Fourth Amendment prohibits

‘unreasonable searches and seizures’ by the Government, and

No. 23-2843 7

its protections extend to brief investigatory stops of persons

or vehicles that fall short of traditional arrest.” (citing Terry,

392 U.S. at 9)). Officers use stops when they lack probable

cause for arrest but nonetheless have reasonable suspicion

that the suspect may be engaged in criminal activity. Terry,

392 U.S. at 20–23. In doing so, an officer may briefly detain a

suspect to verify or dispel his suspicion. Id. Only when an in-

vestigative stop morphs into an arrest is probable cause re-

quired. United States v. Olson, 41 F.4th 792, 799 (7th Cir. 2022).

To assess the reasonableness of a seizure, whether it be an

investigatory stop or an arrest, courts must “first consider

whether the detention was justified at the outset.” Matz v.

Klotka, 769 F.3d 517, 524 (7th Cir. 2014). Here, for the reasons

discussed below, we assume—but do not decide—that the de-

tentions in this case amounted to Terry stops. A Terry stop is

reasonable at its inception if the totality of the circumstances,

including the officer’s experience, would lead the officer to

reasonably suspect the individual of wrongdoing. United

States v. Howell, 958 F.3d 589, 597–98 (7th Cir. 2020). The offic-

ers seized Moderson, Petersen, and Erato during a violent

hostage situation. Gunfire thwarted the officers’ rescue at-

tempt, leading them to fear multiple shooters remained in-

side. Against this backdrop, the officers were justified in tem-

porarily detaining Plaintiffs after they escaped the building.

Plaintiffs argue that Defendants’ seizure was not reasona-

ble at the outset given the information that the officers re-

ceived from dispatch and witnesses—information the officers

had no reason to disbelieve. We cannot conclude that, faced

with the chaotic situation unfolding at Eagle Nation, the offic-

ers had to bet their lives on the accuracy of reports about a

lone gunman. See, e.g., United States v. Williams, 731 F.3d 678,

8 No. 23-2843

685–86 (7th 2013) (explaining officer’s stop of suspect was jus-

tified despite discrepancies between 911 call and scene upon

arrival). Even if the officers relied on initial descriptions of the

hostage-taker and did not believe Plaintiffs were hostage-tak-

ers or shooters, the danger inherent in the situation justified

Plaintiffs’ detentions. Est. of Biegert v. Molitor, 968 F.3d 693, 699

(7th Cir. 2020) (“Restraining an individual may be appropri-

ate in ‘inherently dangerous situations,’ even where the offic-

ers do not suspect the restrained individual of a crime.”) (ci-

tation omitted). Thus, the seizures were lawful at their incep-

tions.

Still, even a seizure that is justified at the outset may trans-

form into a violation of the Fourth Amendment if “the man-

ner of execution unreasonably infringes” on the detainee’s

constitutional rights. Illinois v. Caballes, 543 U.S. 405, 407 (2005)

(citation omitted). For example, a seizure may become unlaw-

ful “if it is prolonged beyond the time reasonably required to

complete [its] mission.” Id.; see also Matz, 769 F.3d at 524 (ex-

plaining that the seizure must be “reasonably related in scope

to the circumstances which justified the interference in the

first place” (quoting Terry, 392 U.S. at 20)); United States v.

Howard, 729 F.3d 655, 659 (7th Cir. 2013) (explaining that de-

tention is reasonable when the “intrusion on individual lib-

erty is marginal and is outweighed by the governmental in-

terest in conducting legitimate police activities safely and free

from interference”). Here, as Defendants argue, the record

shows the officers had a straightforward mission for the in-

vestigatory stops: (1) ascertain the identity of people leaving

the scene before they were lost to the officers; (2) determine

whether anyone else had firearms and, if so, how many; and

(3) investigate the situation without interference from those

stopped. With these officer objectives in mind, we review the

No. 23-2843 9

experience of each Plaintiff to determine whether their seizure

extended beyond the time necessary to accomplish the mis-

sion.

We begin with Moderson who, of the three plaintiffs, ex-

perienced the least intrusive contact with police. We conclude

that Moderson’s detention constituted a reasonable investiga-

tory stop. The parties do not dispute that Moderson’s seizure

began when the officers handcuffed him and ended when

they reunited him with his son. Plaintiffs point to no evidence

establishing that the officers held Moderson longer than the

time necessary to confirm or dispel the suspicion that Mod-

erson was the hostage-taker or a shooter. Nor do Plaintiffs

present evidence to meet Defendants’ record support for their

contention that detaining Moderson allowed them to con-

tinue their investigation. We further conclude that Mod-

erson’s visit to the police department and subsequent state-

ments were part of a consensual encounter with law enforce-

ment. Plaintiffs point to nothing in the record suggesting that

Moderson did not feel free to decline to do these things.

As for Petersen and Erato, we conclude their Fourth

Amendment claims fail, too. Without deciding the exact start

and end points of the seizures, we assume that Petersen and

Erato were seized when officers detained them and were no

longer seized sometime after the officers handed them over to

interviewers. We need not decide whether the record sup-

ports Petersen and Erato’s Fourth Amendment claims,

though, because Plaintiffs do too little to develop their posi-

tion on appeal. In their opening brief, Plaintiffs say Defend-

ants “detained [them] without probable cause” and “arrested

[them] without probable cause.” But they do not raise an ar-

gument that their detentions amounted to arrests. Plaintiffs

10 No. 23-2843

also do not mention Terry or investigatory stops, and they

opted not to file a reply brief, forgoing the opportunity to re-

spond to the specific Terry arguments detailed in Defendants’

response brief. See Brockett v. Effingham Cnty., 116 F.4th 680,

686–87 (7th Cir. 2024) (“Therefore, arguments that are under-

developed, cursory, and lack supporting authority are

waived.” (cleaned)); United States v. Valenzuela, 931 F.3d 605,

608 (7th Cir. 2019) (concluding argument was “woefully un-

derdeveloped” because it cited a case “without explaining or

defending its rationale” or “even attempt[ing] to wrestle”

with the “complicated question”).

We express no opinion on whether the officers needed to

handcuff Petersen, transport him in a police vehicle to a police

station, and hand him over to an interview team to complete

their stated mission of ascertaining Petersen’s identity, deter-

mining whether Petersen had a firearm, and investigating the

situation without interference. See United States v. Bullock, 632

F.3d 1004, 1016–17 (7th Cir. 2011) (“We have previously found

that using handcuffs, placing suspects in police cars, drawing

weapons, and other measures of force more traditionally as-

sociated with arrests may be proper during an investigatory

detention, depending on the circumstances …. [But] in some

situations, maintaining the status quo while obtaining more

information … might be the most reasonable action to take.”

(internal quotation marks omitted)). We also express no opin-

ion on whether, to get Erato’s name, check if he had a gun,

and investigate the scene without his interference, the officers

needed to handcuff him, take his belongings, transport him in

a police vehicle to a police station, and interview him. And we

express no opinion on whether Petersen or Erato’s detentions

morphed into full-blown arrests. In the end, it does not matter

whether the record supports these conclusions because the

No. 23-2843 11

skeletal arguments on which Plaintiffs rely are insufficient to

support their Fourth Amendment claims. United States v.

Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (“[P]erfunctory

and undeveloped arguments, and arguments that are unsup-

ported by pertinent authority, are waived ….”); United States

v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“A skeletal ‘argu-

ment,’ really nothing more than an assertion, does not pre-

serve a claim.” (citation omitted)).

We affirm the grant of summary judgment to Defendants

on Plaintiffs’ Fourth Amendment claims. Because no consti-

tutional violation occurred, we need not reach Plaintiffs’ ar-

gument that they are entitled to punitive damages.

B

Next, we consider Sergeant Eichmann’s dismissal from

this suit. A defendant cannot be held liable for a constitutional

violation if she did not cause or participate in the alleged vio-

lation. Hildebrandt v. Ill. Dep’t Nat. Res., 347 F.3d 1014, 1039

(7th Cir. 2003). Here, Plaintiffs failed to present evidence of a

causal connection between the alleged Fourth Amendment

violation and Sergeant Eichmann’s conduct. Eichmann partic-

ipated in two detentions—that of Ethan Moderson and

George Fuerte—and neither is party to this action any longer.

Plaintiffs nonetheless press that Sergeant Eichmann should

not be dismissed because she was “in charge of the operation”

and failed to relay the description of the hostage-taker she re-

ceived from Ethan Moderson to the officers at Eagle Nation.

However, Plaintiffs do not present evidence supporting this

information-chain theory; nor do they provide evidence

demonstrating that Sergeant Eichmann had a hand in the de-

cision to detain any of them. We therefore affirm the district

court’s order dismissing Sergeant Eichmann from this action.

12 No. 23-2843

C

Finally, Plaintiffs argue that the district court erred in

granting qualified immunity to the officers. Because we con-

clude that Plaintiffs’ claims are without merit, we do not reach

the question of qualified immunity. See Hicks v. Ill. Dep’t of

Corr., 109 F.4th 895, 900 (7th Cir. 2024) (“We conclude that the

First and Fourteenth Amendment claims are without merit.

This also means we need not reach the qualified immunity

question.”).

III

Accordingly, we AFFIRM the district court’s decision.