Shaun J. Matz v. Rodney Klotka

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1674

SHAUN J. MATZ,

Plaintiff-Appellant,

v.

RODNEY KLOTKA, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:08 CV 00494— Rudolph T. Randa, Judge.

ARGUED SEPTEMBER 9, 2013 — DECIDED OCTOBER 6, 2014

Before POSNER, ROVNER, and HAMILTON, Circuit Judges.

ROVNER, Circuit Judge. Shaun J. Matz brought this action

under 42 U.S.C. § 1983 against a number of current and former

Milwaukee Police Department officers. He claims that in

September 2003 the officers violated his Fourth and Fifth

Amendment rights by arresting him without reasonable

suspicion or probable cause, failing to make a prompt probable

cause determination once he was under arrest, and continuing

2 No. 12-1674

to question him after he invoked his right to remain silent. The

district court granted summary judgment to the defendants,

and Matz appeals. We affirm the grant of summary judgment

in favor of the defendants on Matz’s § 1983 claims.

I.

Because we are reviewing the district court’s grant of

summary judgment against Matz, we recount the facts in the

light most favorable to him, noting discrepancies in the parties’

version of events where relevant. See Zepperi-Lomanto v. Am.

Postal Workers Union, 751 F.3d 482, 483 (7th Cir. 2014). On the

evening of September 16, 2003, Matz and several other individ-

uals were on the porch of an apartment located at 1335 South

Layton Boulevard in Milwaukee, Wisconsin. That same

evening two Milwaukee police officers then assigned to the

warrant squad, defendants Rodney Klotka and Karl Zuberbier,

were driving through the area on an unrelated matter. Klotka

and Zuberbier were both in uniform and were driving an

unmarked squad car. As they drove down Layton Boulevard,

Zuberbier, who was the passenger, saw an individual named

Javier Salazar standing with the others on the porch. Zuberbier

recognized Salazar from a warrant squad briefing as a member

of the Latin Kings gang who he believed was wanted for

armed robbery. Specifically, Zuberbier thought there was a

“temporary felony want” for Salazar, who Zuberbier believed

was also a suspect in two homicides and several shootings.

Zuberbier pointed out Salazar to Klotka, who looked over at

the individuals on the porch.

By the time Klotka was able to make a U-turn and approach

the apartment, everyone on the porch was leaving. Matz

No. 12-1674 3

admits having seen the police, but claims that he had already

left the porch when their car turned around. He acknowledges

having heard someone say “detects” as he was leaving the

porch. When Klotka pulled up to the curb, Zuberbier jumped

out and ran along the south side of the house where several of

the individuals had headed. Klotka followed shortly behind

him. As Zuberbier ran into the alley he saw three people

starting to run southbound down the alley and two more

people in a car starting to drive away. As he ran towards the

car, he drew his gun and pointed it at the vehicle while

shouting, “Police! Stop!” Matz says that Zuberbier also

threatened to blow his “fucking head off” if he did not stop.

Klotka, who by that point also had his gun drawn, arrived

right behind Zuberbier and ordered Matz and the vehicle

occupants to get out and keep their hands visible.1 Although

the parties differ as to the precise order of the events that

happened next, it is clear that the following occurred within a

short period of time after the stop: (1) Matz was handcuffed

and put into a patrol car; (2) it came to light that the car he was

driving was stolen; and (3) other officers (at least six squads

total) arrived at the scene in response to a call for backup.

Klotka then briefly left the scene to ascertain if anyone else

from the porch was still in the vicinity. And although there is

conflicting testimony as to which officer arrested Salazar, it is

1

Although it is immaterial to Matz’s claim, there is a dispute about the

order in which the officers arrived on the scene and who directed Matz out

of the vehicle. Klotka recalls arriving first, pointing his gun, and ordering

the car to stop, but Matz recalls that it was Zuberbier who first arrived and

gave the command to stop. Klotka also recalls that another officer removed

Matz from the vehicle while he left the scene to search for the others.

4 No. 12-1674

undisputed that he was arrested shortly thereafter inside the

residence.

According to Matz, while he was in the patrol van Michael

Caballero, a detective in the homicide division, grabbed his left

arm and stated, “he’s one of them” when he saw Matz’s

tattoos. Matz also alleges that Caballero questioned him about

two homicides and continued to do so after Matz said he did

not want to talk about it and wanted an attorney. Matz was

then taken to the city jail, where he was booked and given a

cell. The next morning two more homicide detectives, Shannon

Jones and Percy Moore, interviewed Matz about the homicides

and an armed robbery. Matz claims that although he told Jones

and Moore from the outset that he did not wish to speak to

them about the homicides and wanted to go back to his cell,

they continued questioning him for over three hours. Later that

same evening, Caballero and another defendant, Detective

Mark Walton, again interrogated Matz in the face of his

insistence that he did not want to talk. Matz says Walton

acknowledged Matz’s rights but insisted that he give them a

statement anyway. After several hours of questioning, Matz,

who was sitting in a “defeated” position, provided a statement

admitting his involvement in the homicides. Throughout this

period Matz was never provided with various medications he

had been taking for psychosis and depression (Olanzapine,

Prozac, Klonopin, and Neurontin). He alleges that being

without his medication impaired his thought process, affected

his impulsivity, and caused him to make poor decisions. He

was also at this time still recovering from pneumonia, for

which he had been hospitalized until two days before his arrest

on September 16. He later recanted his inculpatory statement

No. 12-1674 5

and named Salazar as the shooter, although he admitted being

present. He said he confessed because he believed it was the

only way he could return to his cell. Despite recanting his

statement, Matz pleaded guilty to one count of first-degree

reckless homicide and one count of felony murder with

robbery as the underlying crime. The Milwaukee County

Circuit Court sentenced him to a total of sixty years imprison-

ment and forty-five years extended supervision between the

two counts.

Matz was not presented for an initial in person appearance

before a court commissioner until seven days after his arrest.

To support their claim that Matz received an adequate proba-

ble cause determination, the defendants submitted an “arrest-

detention report” signed by a Milwaukee County Court

Commissioner at 10:58 a.m. on September 18, 2003—less than

two days after his initial arrest. The report reflects Commis-

sioner Liska’s determination that probable cause existed to

believe that Matz committed a crime and her decision setting

cash bail at $100,000.00.

Matz initiated this suit under § 1983 in 2010, alleging that

Klotka, Zuberbier, Jones, Moore, Walton, and Caballero

violated his Fourth and Fifth Amendment rights. The district

court appointed counsel, who filed a second amended com-

plaint and added an additional Fifth Amendment claim against

certain defendants. Ultimately the district court granted

summary judgment in favor of the defendants on all of Matz’s

claims. The court concluded that Matz had failed to establish

that his Fourth Amendment rights were violated because

Klotka and Zuberbier had reasonable suspicion to detain Matz

when he attempted to leave the scene and that no reasonable

6 No. 12-1674

factfinder would conclude that the officers lacked probable

cause for his subsequent arrest. Relying on the arrest-detention

report submitted by the defendants, the district court also

concluded that it was undisputed that Matz had received a

timely probable cause determination. Finally, the district court

rejected Matz’s Fifth Amendment claim based on his allegedly

coerced confession, concluding that because both his convic-

tion and sentence depended in part on the confession, Matz’s

challenge was barred by Heck v. Humphrey, 512 U.S. 477, 487

(1994).

II.

We review the district court’s grant of summary judgment

de novo. Summary judgment is appropriate when “there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);

e.g., Hawkins v. Mitchell, 756 F.3d 983, 990-91 (7th Cir. 2014). We

construe the evidence in the light most favorable to Matz as the

non-moving party, and draw all reasonable inferences from the

evidence in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986); Miller v. Gonzalez, ---- F.3d ----- 2014, 2014 WL

3824318, at *4.

A. Reasonable Suspicion for a Terry Stop

The Fourth Amendment protects individuals “against

unreasonable searches and seizures.” U.S. Const. amend. IV.

Ordinarily seizures are “reasonable” only when supported by

probable cause to believe an individual has committed a crime.

See, e.g., Dunaway v. New York, 442 U.S. 200, 213 (1979); Bailey

v. United States, 133 S. Ct. 1031, 1037 (2013). The longstanding

exception to this rule arises under Terry v. Ohio, 392 U.S. 1

No. 12-1674 7

(1968), which authorizes brief investigatory detentions based

on the less demanding standard of reasonable suspicion that

criminal activity is afoot, id. at 21-22; United States v. Baskin,

401 F.3d 788, 791 (7th Cir. 2005). Such a brief detention is

permitted when it demands only a limited intrusion into an

individual’s privacy and rests on “specific and articulable facts

which, taken together with rational inferences from those facts,

reasonably warrant that intrusion.” Terry, 392 U.S. at 21.

Determining whether such an investigatory detention is

constitutional requires balancing the governmental interest in

the seizure against the degree to which it intrudes on an

individual’s personal liberty. See id. at 20-21. And although

reasonable suspicion is a less demanding standard than

probable cause, such a stop requires at least a minimal level of

objective justification and the officer must be able to articulate

more than an “inchoate and unparticularized suspicion or

‘hunch’” of criminal activity. Id. at 27; see also Ill. v. Wardlow,

528 U.S. 119, 123-24 (2000). Ultimately, determining whether

reasonable suspicion exists is not an exact science, and “must

be based on commonsense judgments and inferences about

human behavior.” Wardlow, 528 U.S. at 125.

Although Matz insists that Officers Klotka and Zuberbier

have demonstrated nothing beyond an unparticularized hunch

to support their decision to stop his car, the record establishes

otherwise. The officers both saw and recognized Salazar from

their warrant squad briefings, where he was identified as a

member of the Latin Kings gang wanted in connection with an

armed robbery. Zuberbier had also been told that Salazar was

a suspect in several homicides. And by the time the officers

were able to make a U-turn and approach the building in an

8 No. 12-1674

attempt to speak with Salazar, every individual on the porch

was leaving the scene.2 During the chase that ensued, officers

had no way of knowing where exactly Salazar had gone and

could reasonably have believed he was hidden in the car with

Matz and other individuals from the porch.

In the face of this evidence, Matz insists that neither his

proximity to Salazar on the porch nor his flight from officers,

standing alone, would establish reasonable suspicion to

support a Terry stop. Matz’s assertion is correct as far as it goes.

We have recognized that simply being in the presence of others

who are themselves suspected of criminal activity is insuffi-

cient standing alone to establish particularized suspicion for a

Terry stop and frisk. See Ybarra v. Ill., 444 U.S. 85, 91 (1979)

(“[A] person’s mere propinquity to others independently

suspected of criminal activity does not, without more, give rise

to probable cause to search that person.”) (emphasis added).

Likewise, we have acknowledged that suspicion of illegal

activity at a particular location does not transfer such a

suspicion to an individual leaving the property. See United

States v. Bohman, 683 F.3d 861, 864 (7th Cir. 2012). Neither does

the act of choosing to avoid a police encounter—either by

refusing to cooperate or leaving the scene—by itself create

2

Matz submitted a declaration in the district court in which he maintained

that he “did not run from the porch area.” But he has not disputed the

accounts of both Klotka and Zuberbier that by the time they exited their

vehicles all occupants of the porch had left and were moving quickly

enough that it was necessary for the officers to give chase in order to speak

with anyone from the porch.

No. 12-1674 9

sufficient objective justification for a seizure or detention. See,

e.g., Fl. v. Bostick, 501 U.S. 429, 437 (1991).

But it is axiomatic that in determining whether officers had

the requisite particularized suspicion for a Terry stop, we do

not consider in isolation each variable of the equation that may

add up to reasonable suspicion. See, e.g., United States v.

Johnson, 170 F.3d 708, 714 (1999) (“Applying the Terry standard,

we have consistently held that reasonable suspicion is to be

determined in light of the totality of the circumstances.”).

Instead, we consider the sum of all of the information known

to officers at the time of the stop. Terry, 392 U.S. at 22-23;

United States v. Lenoir, 318 F.3d 725, 729 (7th Cir. 2003). And

this includes behavior that may in other circumstances be

considered innocent; in other words, context matters. Baskin,

401 F.3d at 793 (“[B]ehavior which is susceptible to an innocent

explanation when isolated from its context may still give rise

to a reasonable suspicion when considered in light of all the

factors at play.”); United States v. Fiasche, 520 F.3d 694, 697-98

(7th Cir. 2008).

First, it is undisputed that the officers had particularized

suspicion as to Salazar connecting him to armed robbery and

multiple homicides. Given that Salazar and Matz were together

on the porch, they also had a basis from which to conclude that

Salazar may have fled in the same car as Matz and the other

individual visible to them in the car. Although Salazar was not

visible to the officers from their vantage point outside the car,

he could have been hidden in the car to avoid detection and

capture. In fact, it is unlikely that a person police believed to be

wanted for armed robbery and possibly multiple homicides,

10 No. 12-1674

who had run from law enforcement, would remain in plain

view as officers approached the car rather than hide in some

way. Given that both Salazar and Matz were together on the

porch and both exited the area simultaneously, the officers had

an objectively reasonable basis to believe that Salazar could be

in the vehicle with Matz, and therefore had an objectively

reasonable basis to stop the vehicle and briefly detain the

occupants while they ascertained whether Salazar was with

him or whether they were complicit in helping him evade law

enforcement. And it does not matter whether that was their

actual motivation for stopping the vehicle, because the test

under the Fourth Amendment is whether the seizure was

objectively reasonable. E.g., Whren v. United States, 517 U.S. 806,

813-14 (1996).

In sum, the officers possessed particularized and specific

suspicion as to Salazar, a known gang member suspected of

committing violent crimes. Their attempt to approach Salazar

was met with the precipitous departure of the entire group,

including Matz. In their justifiable attempt to apprehend

Salazar, Klotka and Zuberbier gave chase to everyone scatter-

ing from the porch. They were outnumbered as they ap-

proached a moving vehicle that they reasonably could have

believed contained Salazar, who was suspected of committing

violent crimes and who could very well have been armed.

Given these circumstances, it was reasonable for them to

conduct further investigation, including stopping the vehicle

leaving the scene and detaining the occupants so they could

assess the situation. See United States v. Howard, 729 F.3d 655,

659 (7th Cir. 2013) (collecting cases and noting that the Su-

preme Court “has recognized limited situations at the scene of

No. 12-1674 11

police activity in which it may be reasonable for police to

detain people not suspected of criminal activity themselves, so

long as the additional intrusion on individual liberty is

marginal and is outweighed by the governmental interest in

conducting legitimate police activities safely and free from

interference”); cf. Wardlow, 528 U.S. at 125 (recognizing that

when officers confront behavior susceptible of two potential

explanations, one innocent and one potentially criminal, they

are entitled to “detain the individuals to resolve the ambigu-

ity”).

B. Probable Cause for Arrest

So Officers Klotka and Zuberbier had (narrowly) enough

reasonable suspicion to briefly detain Matz as they attempted

to get the situation under control and ascertain where Salazar

had gone. But Matz argues that what they actually did was

more akin to a full-blown arrest than the limited detention

permitted under Terry. And although eventually the officers

learned that Matz was driving a stolen vehicle, he maintains

that functionally, he was under arrest before the officers had

probable cause. In assessing the reasonableness of an investiga-

tory stop, we first consider whether the detention was justified

from the outset and then ask “whether it was reasonably

related in scope to the circumstances which justified the

interference in the first place.” Terry, 392 U.S. at 20; see also

Rabin v. Flynn, 725 F.3d 628, 632 (7th Cir. 2013); Jewett v. Anders,

521 F.3d 818, 824 (7th Cir. 2008). A Terry stop may be trans-

formed into a formal arrest requiring probable cause if an

officer’s use of force is sufficiently disproportionate to the

purpose of the stop—which may include ensuring the safety of

12 No. 12-1674

the officers or others—in light of the surrounding circum-

stances. Rabin, 725 F.3d at 632-33; Jewett, 521 F.3d 824-25. It may

also become a de facto arrest if the detention continues longer

than necessary to accomplish the purpose of the stop or

becomes “unreasonably intrusive.” See United States v. Bullock,

632 F.3d 1004, 1015 (7th Cir. 2011). The investigation following

a Terry stop “‘must be reasonably related in scope and duration

to the circumstances that justified the stop in the first instance

so that it is a minimal intrusion on the individual’s Fourth

Amendment interests.’” Id. (quoting United States v. Robinson,

30 F.3d 774, 784 (7th Cir. 1994)).

Although the issue is again close, we conclude that given

the circumstances it was reasonable for the officers to draw a

weapon and even handcuff Matz while they controlled the

situation and accounted for the individuals from the front

porch. At the outset, we note that only a short period of time

elapsed between when the officers first detained Matz and

when they learned that he was driving a stolen vehicle.

According to Matz, Zuberbier ran the VIN for the vehicle and

discovered it was stolen sometime before the backup officers

arrived at the scene. And although neither side has presented

a specific time line, even a generous reading of the facts

supports the conclusion that not much time could have elapsed

between the time Matz was ordered out of the car and the

moment Zuberbier (or another officer)3 learned the car was

3

Under the officers’ version of events, Matz was placed in a police vehicle

while they tracked down the other individuals from the porch and one of

the backup officers who had arrived on the scene discovered that the car

(continued...)

No. 12-1674 13

stolen, thus providing probable cause for an arrest. This

sequence of events makes it clear that police were diligently

investigating to confirm or dispel their suspicions about the

occupants of the vehicle. See Rabin, 725 F.3d at 634 (upholding

detention of individual for approximately an hour and a half

while officers verified legitimacy of his firearm license and

noting that evidence suggested officers had diligently pursued

likely avenue to resolve their suspicions); United States v.

Adamson, 441 F.3d 513, 520 (7th Cir. 2006) (“There is no bright-

line rule as to how long an investigative detention may last;

instead we look to whether the police diligently pursued a

means of investigating that was likely to confirm or dispel

quickly their suspicions.”). So the duration of the stop is

unproblematic given that officers diligently pursued informa-

tion that, as it turned out, revealed in short order evidence that

gave them probable cause for a full-blown arrest.

We are thus left with the question whether Matz has

created a triable issue of fact as to whether the manner in

which the officers effectuated the detention—pointing guns at

Matz while ordering him to stop or risk having his “fucking

head” blown off, frisking, handcuffing, and placing him in a

patrol car—was reasonably related in scope to the circum-

stances which initially justified the interference. Terry, 392 U.S.

at 20. The use of a firearm and handcuffs undoubtedly puts

Matz’s encounter at the outer edge of a permissible Terry stop.

3

(...continued)

was stolen. The precise chronology is immaterial given our conclusion that

under either version, officers were diligently pursuing information to

resolve their suspicions.

14 No. 12-1674

As we have previously recognized, “‘[s]ubtle, and perhaps

tenuous distinctions exist between a Terry stop, a Terry stop

rapidly evolving into an arrest and a de facto arrest.’” Bullock,

632 F.3d at 1016 (internal quotations and citation omitted).

These tenuous distinctions are at the heart of Matz’s claim: he

asserts that Zuberbier and Klotka made a de facto arrest

without probable cause, and the officers argue, in essence, that

a legitimate Terry stop evolved rapidly into an arrest sup-

ported by probable cause. The officers argue alternatively that

qualified immunity protects them from liability because under

the circumstances it would not have been clear to a reasonable

officer that using force and handcuffs to detain Matz violated

clearly established law. See Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982) (setting forth well-known qualified immunity test

that government officials are protected from civil damages as

long as conduct does not violate clearly established constitu-

tional rights of which a reasonable person would have known);

Jones v. Clark, 630 F.3d 677, 680 (7th Cir. 2011) (entitlement to

qualified immunity turns on whether facts describe the

violation of a clearly established constitutional right).

Although the hallmarks of formal arrest such as applying

handcuffs, drawing weapons, and placing suspects in police

vehicles should not be the norm during an investigatory

detention, all of those measures have been recognized as

appropriate in certain circumstances. See Bullock, 632 F.3d at

1016 (collecting cases); Tilmon, 19 F.3d at 1224-25 (noting “for

better or for worse” the trend of expanding Terry stops to

include “the permitting of the use of handcuffs, the placing of

suspects in police cruisers, the drawing of weapons, and other

measures of force more traditionally associated with arrest

No. 12-1674 15

than with investigatory detention”); United States v. Weaver,

8 F.3d 1240, 1244 (7th Cir. 1993) (measured use of appropriate

force does not convert seizure into arrest). In evaluating

whether the force used converted an encounter into a full

arrest, we must consider whether the surrounding circum-

stances would support an officer’s legitimate fear for personal

safety. See Jewett, 521 F.3d at 824. We must also take into

account the suspect’s own behavior in resisting an officer’s

efforts. Id at 825. (citing United States v. Lawshea, 461 F.3d 857,

860 (7th Cir. 2006)).

First, the officers were undoubtedly confronting a situation

where they may have legitimately believed drawing weapons

was necessary to protect themselves. They were pursuing an

individual suspected of having committed armed robbery and

possibly murder who was a member of the Latin Kings gang.

Not only were they outnumbered, they were approaching a

moving vehicle containing individuals who had been with

Salazar just moments beforehand. Given the possibility that

Salazar was hidden inside the vehicle, their clear disadvantage

attempting on foot to stop a moving vehicle, and the possibil-

ity, given the nature of Salazar’s suspected crimes, that

individuals in the car may have been armed, it was not

unreasonable to draw weapons to safely effect the stop.

These same reasons support the officers’ decision to detain

Matz with handcuffs, frisk him, and search the car to verify

that Salazar was not inside. Matz and everyone else in the

vicinity had already made it patently clear that they did not

intend to remain where they were and speak to the police, and

so Klotka and Zuberbier could reasonably have believed

handcuffing the occupants of the car was the most safe and

16 No. 12-1674

efficient way to ascertain Salazar’s whereabouts and any

pertinent information about his suspected crimes. It was also

a reasonable approach to deal with the rapidly evolving

situation and prevent things from turning violent. Cf. Brendlin

v. Cal., 551 U.S. 249, 258 (2007) (“It is also reasonable for

passengers to expect that an officer at the scene of a crime,

arrest, or investigation will not let people move around in

ways that could jeopardize his safety.”). Klotka and Zuberbier

called for backup almost immediately. With the benefit of

hindsight we may be able to think of less intrusive ways–from

a Fourth Amendment perspective—the officers could have

detained Matz and the others. But the “fact that ‘the protection

of the public might, in the abstract, have been accomplished by

‘less intrusive’ means does not, by itself, render the search

unreasonable.’” Tilmon, 19 F.3d at 1225 (quoting Cady v.

Dombrowski, 413 U.S. 433, 447 (1973)); see also United States v.

Ocampo, 890 F.2d 1363, 1369-70 (7th Cir. 1989) (stop not

rendered unreasonable by fact that officer could have effectu-

ated it without drawing his gun). Furthermore, we must “take

care to consider whether the police are acting in a swiftly

developing situation, and in such cases the court should not

indulge in unrealistic second-guessing.” United States v. Sharpe,

470 U.S. 675, 686 (1985).

Although we conclude that the officers’ safety and the

dynamic situation they confronted justified using force and

restricting Matz’s movement, we again caution law enforce-

ment officers that in the ordinary case a Terry stop should not

be functionally indistinguishable from a full-blown arrest. Of

particular cause for concern in this regard is Zuberbier’s

deposition testimony that he considers such detentions with

No. 12-1674 17

handcuffs as part of “normal” police work: “[W]e detain

people all the time. We handcuff them, we find out it’s all

legitimate, talk to them, let them go. It’s part of daily police

work.” On the contrary, we remind law enforcement that using

handcuffs generally signifies an arrest, which requires probable

cause and not the less demanding reasonable suspicion

standard that permits only a brief and minimally intrusive

detention. Indeed, the fact that we have recognized exceptions

for concerns such as officer safety should not be read to imply

that the use of handcuffs and more intrusive measures will not

be a significant factor in assessing whether officers have

exceeded the bounds of a limited Terry detention. See Ramos v.

City of Chicago, 716 F.3d 1013, 1018 (7th Cir. 2013) (“The

proliferation of cases in this court in which ‘Terry’ stops involve

handcuffs and ever-increasing wait times in police vehicles is

disturbing, and we would caution law enforcement officers

that the acceptability of handcuffs in some cases does not

signal that the restraint is not a significant consideration in

determining the nature of the stop.”); see also Rabin, 725 F.3d at

639-41 (concurring opinion) (detailing exceptions supporting

use of handcuffs and other formal hallmarks of arrest and

reiterating that such invasive measures should be exception

not rule).

C. Probable Cause Determination

Matz next claims that after his arrest, he never received the

constitutionally required prompt determination of probable

cause. It is well-established that “the Fourth Amendment

requires a timely judicial determination of probable cause as a

prerequisite for detention.” Gerstein v. Pugh, 420 U.S. 103, 126

18 No. 12-1674

(1975). Probable cause determinations made within 48 hours of

arrest are presumptively prompt. County of Riverside v.

McLaughlin, 500 U.S. 44, 56 (1991). Beyond the requirement of

a “prompt” determination, states retain wide latitude to craft

procedures for probable cause determinations that “accord

with a State’s pretrial procedure viewed as a whole,” and the

Supreme Court has expressly recognized “the desirability of

flexibility and experimentation by the States.” Gerstein, 420 U.S.

at 123. Matz argues principally that “Milwaukee County’s

practice of allowing court commissioners to make probable

cause determinations based on arrest and detention reports” is

inconsistent with Riverside’s requirement of a prompt determi-

nation of probable cause.

Matz’s claim cannot succeed insofar as it is leveled against

Milwaukee County or the “court commissioner” (who the

parties fail to describe beyond referring to her as “Commis-

sioner Liska”).4 A damages suit under § 1983 requires that a

defendant be personally involved in the alleged constitutional

deprivation. See Minix v. Canarecci, 597 F.3d 824, 833 (7th Cir.

2010) (“[I]ndividual liability under § 1983 requires ‘personal

involvement in the alleged constitutional deprivation’”)

(quoting Palmer v. Marion Cty, 327 F.3d 588, 594 (7th Cir. 2003)).

As the quoted language above makes clear, Matz’s claim

hinges on Milwaukee County’s “practice,” allegedly followed

in his case, of allowing unsworn statements in an arrest report

4

Neither party provides any more detail about the “court commissioner”

and nowhere does Matz argue expressly that the court commissioner fails

to satisfy the requirement of a “judicial determination” of probable cause,

so we do not explore the issue further.

No. 12-1674 19

presented to a county commissioner to supply the necessary

probable cause for arrest. And as troubling as this practice may

be, Matz has presented no evidence that any defendants

named here had anything to do with it.

Indeed, the entire thrust of his argument on this point has

shifted on appeal. In the district court, Matz argued that

genuine issues of material fact existed as to whether he

received a timely probable cause determination. Specifically,

Matz claimed that Captain Moffet’s affidavit accompanying the

“probable cause determination” report signed by Commis-

sioner Liska failed to establish that Moffet was qualified to

verify that the report was kept during the regular course of

business, and so the report was inadmissable hearsay as to the

question of whether Matz receive a probable cause determina-

tion. The district court rejected this argument, and Matz does

not renew it on appeal. Instead, as discussed above, he attacks

the practice of allowing unsworn statements and the unsworn

statements themselves. But as the defendants point out, the

report was not authored, signed, nor otherwise created by any

of the named defendants.

The report states that it was written by an officer Richard

Wearing, who was assigned to the warrant squad. He describes

the encounter Zuberbier and Klotka had with Matz that

culminated in the revelation that he was driving a stolen

vehicle. There is then another paragraph written by Detective

Gary Temp, who recounts that Omar Rodriquez was shot and

killed five days prior to Matz’s arrest, Victoriano Mariano was

shot and killed four days before Matz’s arrest, and that two

other individuals were shot and sustained injuries four days

before Matz’s arrest. The report then states that after being

20 No. 12-1674

advised of and waiving his Miranda rights, Matz admitted to

shooting all four individuals. The report bears the seal of a

notary (David B. Zibolski), who signed to verify that it was

subscribed and sworn before him on September 18, 2003.

Finally, a box bearing the heading “Probable Cause Determi-

nation,” contains a signature the parties agree to be that of

Commissioner Liska. It is clear that at least the second portion

of the report, written by Detective Temp, was sworn before a

notary. But Matz claims that we cannot consider this section

because it is based on his confession allegedly procured in

violation of the Fifth Amendment, and the portion written by

Wearing is also off limits because it is unsworn.

Citing our decision in Haywood v. City of Chicago, 378 F.3d

714 (7th Cir. 2004), Matz now advances the argument that any

probable cause determination is constitutionally inadequate

because the report contains unsworn statements—specifically,

the portion written by Richard Wearing that recounts Matz’s

arrest.5 Haywood does little for Matz, however, because in that

§ 1983 suit the plaintiff sued the City of Chicago and two

arresting officers, one of whom forged the other’s name on the

complaint presented to secure probable cause to hold the

plaintiff. The problem in Haywood was that although the

complaint purported to satisfy the Fourth Amendment’s

5

Both parties agree that Officer Wearing provides a confusing description

of the events leading to Matz’s arrest. This is because Wearing refers

interchangeably to Salazar and Matz as the “subject,” and fails to identify

Matz by name, thus leaving it unclear whether Zuberbier and Klotka

arrested Salazar or Matz after stopping the vehicle. But it is ultimately of no

consequence because Matz is not suing Officer Wearing for writing an

inadequate report about the encounter.

No. 12-1674 21

requirement that “no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation,” the only basis the

defense advanced for finding probable cause “was a falsely

sworn complaint whose falsity was, so far as appears, un-

known to the judge at the probable-cause hearing.” Id. at 718.

Here there is no allegation that Officer Wearing or Detective

Temp falsely signed the report or that the report contained

false information. Matz believes that because the notarized seal

is closest to the portion of the report authored by Temp, Officer

Wearing’s contribution is necessarily unsworn and therefore

inadequate under the Fourth Amendment to establish probable

cause. Haywood is obviously and immediately distinguishable

based on the fact that both the City and the individuals who

authored and (falsely) claimed to have authored the report

were sued. Matz has not sued Gary Temp, Richard Wearing, or

Milwaukee County, who he claims has a “practice” of allowing

unsworn statements to suffice for probable cause determina-

tions. Indeed, as it is not a defendant, we have no way of

knowing what Milwaukee County’s “practice” is and whether

it was followed here. In any event, what is clear is that Matz

has presented no evidence that Matz, Klotka, Jones, Caballero,

Walton, or Moore had any hand in crafting the report or

presenting it to the court commissioner for a probable cause

determination.

Matz deems it “irrelevant” whether the defendants were

personally involved in authoring the arrest report. But in a

§ 1983 claim for damages, the sole issue cannot be, as he would

have it “whether the district court correctly found that the

arrest report established, as a matter of law” that Matz re-

ceived an adequate and timely probable cause determination.

22 No. 12-1674

That question itself is irrelevant if none of these defendants

were personally involved in the alleged deprivation. It is thus

hardly irrelevant whether these defendants participated in

submitting the arrest report to the commissioner in lieu of

providing him with an in-person probable cause determination

(a process that did not occur until September 23, 2003, seven

days after Matz’s arrest and well outside Riverside’s 48-hour

window). He belatedly argues in his reply brief that Klotka and

Zuberbier provided some information in the report and

Walton, Caballero, Jones, and Moore were involved in obtain-

ing the allegedly coerced statement recounted by Detective

Temp—and that the named defendants were therefore

“involved” in the deprivation. But according to Matz, it is the

practice of using unsworn statements, and the use of an

allegedly coerced confession that make the document submit-

ted to Commissioner Liska deficient. And he has presented no

evidence that these defendants either knew about that practice

or participated in the decision to include Matz’s allegedly

coerced confession in the report. Thus, they are entitled to

summary judgment on Matz’s Fourth Amendment Riverside

claim. See Hildebrandt v. Ill. Dep’t of Natural Res., 347 F.3d 1014,

1039 (2003) (“‘Section 1983 creates a cause of action based on

personal liability and predicated upon fault; thus, liability does

not attach unless the individual defendant caused or partici-

pated in a constitutional deprivation.’”)(quoting Vance v. Peters,

97 F.3d 987, 991 (7th Cir. 1996)).

No. 12-1674 23

D. Fifth Amendment Claim

That leaves Matz’s claim that several of the defendants

violated his Fifth Amendment rights by continuing to interro-

gate him after he invoked his right to remain silent. It is

undisputed that Matz did not make any incriminating state-

ments during either his interview in the patrol van with

Detective Caballero or the next day when Jones and Moore

interviewed him at the police station. The Fifth Amendment

“privilege against self-incrimination, and thus the Miranda

doctrine, concerns the use of compelled statements in criminal

prosecutions.” Hanson v. Dane Cnty., Wis., 608 F.3d 335, 339

(7th Cir. 2010). No rational juror could conclude that the first

two interrogations violated Matz’s Fifth Amendment

rights—he said nothing incriminating at all, and so there was

obviously no statement used against him in his criminal

proceeding. See id. (“Police cannot ‘violate Miranda,’ despite

colloquial usage. … There’s nothing wrong with compelling

people to speak.”). Matz, however, claims that he may still be

entitled to monetary damages against Moore and Jones

because their initial interrogations were part of the “causal

chain” that resulted in his later involuntary confession to

Caballero and Walton.

But whether treated as a continuous interrogation that

produced an inculpatory statement or separated into three

distinct interviews, we agree with the district court that Matz’s

Fifth Amendment claim for damages is barred under Heck v.

Humphrey, 512 U.S. 477 (1994). Under Heck, a plaintiff may not

recover damages under § 1983 when a judgment in his favor

would necessarily imply the invalidity of a criminal conviction

24 No. 12-1674

or sentence that has not been reversed, expunged, invalidated,

or otherwise called into question. See id. at 486-87; Helman v.

Duhaime, 742 F.3d 760, 762 (7th Cir. 2014). There is no question

that Matz’s conviction and sentence have neither been invali-

dated nor called into question6. The only question is thus

whether Matz’s conviction or sentence necessarily depended

on his allegedly coerced confession.

We conclude, like the district court, that success on Matz’s

Fifth Amendment claim would necessarily imply the invalidity

of Matz’s sentence. At sentencing, the judge relied heavily on

Matz’s confession as well as his subsequent decision to recant

his admissions. Specifically, Matz explained to the judge that

he confessed out of loyalty to his fellow Latin King codefend-

ants in the hopes that he could take the fall and the rest of them

“would be able to go home.” The sentencing judge rejected the

notion that Matz confessed because “it was the right thing to

do,” and opined instead that Matz thought he could be out in

“five — ten years” and emerge in his “rightful spot” as the

leader of the Latin Kings brotherhood because he had stepped

up and taken responsibility for the “weaklings” beneath him.

The judge believed that when the reality of the prison sentence

Matz was facing set in and it came to light that his fellow Latin

Kings had inculpated him in the crime, he was scared and

realized that it was not worth taking the fall for his confeder-

ates. The court accordingly concluded that Matz had only a

6

Matz’s conviction was affirmed on direct appeal and the Wisconsin

Supreme Court denied his petition for review; he has also unsuccessfully

petitioned under 28 U.S.C. § 2254 to vacate, set aside, or correct his

sentence.

No. 12-1674 25

“sort of a selfish, self-centered remorse” and thus posed a high

risk of reoffending. Matz’s confession and the sentencing

judge’s assessment of the reasons behind it thus figured

prominently in the court’s decision to sentence Matz consecu-

tively on the two counts of conviction. Because that sentence

remains intact, Matz cannot pursue a § 1983 claim for damages

premised on his allegedly coerced confession because success

on his claim would call into question his sentence. Heck thus

bars Matz’s Fifth Amendment claim. See Davis v. Kan. Dep’t of

Corr., 507 F.3d 1246, 1249 (10th Cir. 2007) (barring claim

challenging sentencing calculation); cf. Muhammad v. Close, 540

U.S. 749, 751 (2004) (per curiam) (summarizing Heck bar as

applicable to any § 1983 damages action that “would implicitly

question the validity of conviction or duration of sentence” that

has not been previously invalidated) (emphasis added).

III.

For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment in favor of the defendants.