June Carlson v. Scott Bukovic

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2578

JUNE O. C ARLSON,

Plaintiff-Appellant,

v.

S COTT B UKOVIC, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:07-cv-00006—Nan R. Nolan, Magistrate Judge.

A RGUED F EBRUARY 17, 2010—D ECIDED S EPTEMBER 2, 2010

Before R IPPLE, M ANION and SYKES, Circuit Judges.

R IPPLE, Circuit Judge. June Carlson brought a multi-

count civil rights action under 42 U.S.C. § 1983 against

Officer Scott Bukovic and the City of Darien, an Illinois

municipal corporation. Certain counts were dismissed

by the district court and are not at issue in this appeal.

Remaining are a Fourth Amendment excessive force

2 No. 09-2578

claim against Officer Bukovic and a Monell1 claim

against the City for failure to train the officer.2 With

respect to these claims, the parties cross-moved for sum-

mary judgment. The district court granted summary

judgment in favor of the City on the Monell claim but

denied summary judgment to both parties on the exces-

sive force claim. That claim proceeded to trial, and a

jury determined that Officer Bukovic did not violate

Ms. Carlson’s constitutional rights because no Fourth

Amendment seizure had occurred. Ms. Carlson now

appeals the district court’s final determination of both

the excessive force claim and the Monell claim. For the

reasons stated in this opinion, we affirm the judgment

of the district court.3

I

BACKGROUND

A.

The facts surrounding Ms. Carlson’s excessive force

claim were contested initially. Because the action was

tried to a jury, however, we must take the facts in the

light most favorable to the party who prevailed at trial,

1

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 701 (1978).

2

The district court had jurisdiction over the action pursuant

to 28 U.S.C. § 1331.

3

We have jurisdiction over the appeal pursuant to 28 U.S.C.

§ 1291.

No. 09-2578 3

Officer Bukovic, and draw all inferences in his favor.

See Majeske v. City of Chi., 218 F.3d 816, 820 (7th Cir. 2000).

On January 3, 2005, Ms. Carlson and her son, Paul

Carlson, visited the WalMart store in Darien, Illinois. At

that time, Ms. Carlson was approximately 83 years old;

Mr. Carlson is a handicapped adult. During their visit to

the store, Mr. Carlson scratched his arm on a fire hose

box and reported the incident to store employees. The

employees consequently requested that Mr. Carlson

complete certain forms. During that process, a dispute

arose between the store employees and the Carlsons

over whether the store would provide Ms. Carlson with

copies of the forms. The store manager explained:

Well, as [Ms. Carlson] was upset and agitated by

not having the forms, [Mr. Carlson] made a

gesture towards me as to come towards me

where I felt like I was threatened by his actions,

and then I had asked him to step back, that I had

felt threatened by him coming towards me. And

there was some—a little bit of commotion. When

I did ask him to step back, he did move back, and

I remember her saying that, we’re not threatening

you. And I remember stating, no, I feel threatened,

and, you know, I’m asking for him to step back.

He made a step again.

And then at some point in time . . . we phoned

the police department to help, not to banish them

or—but to alleviate the situation because at that

point in time, I felt threatened to the point where

it was—I would not be able to end the situation.

4 No. 09-2578

Trial Tr. at 454-55. A store employee called the City of

Darien Police Department to complain that the Carlsons

were being disruptive.

Darien Police Officers Scott Bukovic and Richard Stutte

soon arrived and asked the store manager what had

happened. The manager explained that Mr. Carlson had

scratched his arm and that, during the claims process,

he had become loud and threatening. Ms. Carlson

accused the manager of lying and tried to interrupt

Officer Bukovic’s conversation with the manager

several times. Ms. Carlson’s voice was raised; she was

upset and, by some accounts, hysterical. She tapped

Officer Bukovic on the arm, to which he said, “let me

finish with [the store manager], please don’t touch me,

and then I will get to you.” Trial Tr. at 461.

Officer Bukovic spoke next to Mr. Carlson, who ex-

plained his side of the story. Officer Bukovic observed

Mr. Carlson to be loud and boisterous. Officer Bukovic

relayed to the manager what Mr. Carlson had said; the

manager reiterated that she had felt threatened. Officer

Bukovic believed the manager.

Officer Bukovic then attempted to get Ms. Carlson’s

side of the story, but she would not explain what had

happened. Ms. Carlson said that the manager was ly-

ing. Ms. Carlson’s manner also was loud and boisterous.

Officer Bukovic then asked the store manager what

she wanted him to do. The manager said that Mr. Carlson

could remain and complete his paperwork, but that

Ms. Carlson would have to leave the store because she

was being disruptive. Officer Bukovic told Ms. Carlson

No. 09-2578 5

that, if she did not leave, he could arrest her for trespass.

Ms. Carlson said she would not leave because she was

concerned about her son.

Officer Bukovic tried three or more times to convince

Ms. Carlson to leave the store, but she would not go. As

Officer Bukovic made his last request, he reached for

Ms. Carlson’s right arm with both of his hands, placing

one hand on her forearm and one hand on her upper

arm. The touch was a calm, escorting gesture in an

attempt to guide Ms. Carlson out of the store. The Per-

sonnel Manager of the WalMart, who witnessed the

scene, testified that Officer Bukovic “was just asking

her to—that it was time to leave the store, I think, and

he kind of went like this. . . . To like you would do a

grandmother, you know, to sort of maybe turn

towards the exit. He barely touched her, and she started

screaming.” Trial Tr. at 392-93.4

The Store Manager of the WalMart testified that

“when the officers went to go help [Ms. Carlson] to the

front door or escort [her] to the front door, one of

them—how can I describe it?—as if you were helping

your grandma through the parking lot on an icy day,

grabbed her elbow, let me help you to the front.” Id. at 462.

4

See also Trial Tr. at 400 (“He didn’t really have any physical

actions with her other than when he barely—when he put his

arm around her, but that was like you would to your grand-

mother or something, or mother or something if you were

saying, you know, let’s go this way. It’s more of a guiding

manner than—there was no other physical interaction that

I saw.”).

6 No. 09-2578

Ms. Carlson “freaked out” and began flailing her arms.

Id. at 511. Officer Bukovic grabbed onto one or both of

her arms to prevent her from striking him and, at the

same time, tried to get her to calm down. Ms. Carlson

put her hands up and crossed her arms in front of her

chest. The incident lasted no more than five seconds.5

After Ms. Carlson had calmed down, Officer Bukovic

asked her if she needed any medical attention, but she

refused to acknowledge him. Eventually, she left the

store. The officers did not arrest Ms. Carlson.

B.

The Carlsons brought this action against various

WalMart corporate entities, the City of Darien and

Officer Bukovic. After filing a series of amended com-

plaints, Mr. Carlson abandoned his claims, and

Ms. Carlson narrowed her complaint to consist only of

a Fourth Amendment excessive force claim against

Officer Bukovic and a section 1983 Monell claim against

the City for failure to train. Importantly, Ms. Carlson

disavowed any intention to assert a Fourth Amendment

false arrest claim.6

The parties cross-moved for summary judgment on both

outstanding claims. Ms. Carlson’s version of the facts,

5

See Trial Tr. at 187-90, 201-03, 393-400, 412, 469, 488, 511-12.

6

See Appellant’s Br. 22; see also Tr. at 20, May 18, 2009 (“We’re

not bringing a false arrest claim.”); Tr. at 4-6, June 5, 2009 (“This

is not a false arrest case.”).

No. 09-2578 7

described in her motion, was very different from the

version described by the defendants. She essentially

contended that Officer Bukovic attacked and brutalized

her in the WalMart store. Ms. Carlson contended that,

because Officer Bukovic had touched her, no genuine

issue of material fact existed as to whether a Fourth

Amendment seizure had occurred. She also claimed,

however, that summary judgment was appropriate on

the reasonableness of the force used, as well as on the

Monell claim asserted against the City. The defendants

cross-moved for summary judgment on those same

issues and also asserted that Officer Bukovic was

entitled to qualified immunity.

The district court 7 denied the cross-motions for sum-

mary judgment because a genuine issue of material fact

existed as to whether Officer Bukovic had seized

Ms. Carlson.8 The district court also concluded that, due

to the conflicting factual accounts, a genuine issue of

material fact existed as to whether the seizure, assuming

one had occurred, was unreasonable. The district

court also denied Officer Bukovic qualified immunity

due to the factual differences. However, the district

7

The parties agreed to have the case tried before a magistrate

judge. See 28 U.S.C. § 636(c); see also R.15 (joint consent form).

8

See R.82 at 12 (“There is a question of fact as to the nature

of the physical interaction between Plaintiff and Officer

Bukovic and, thus, summary judgment is not appropriate to

either party on this portion of Plaintiff’s claim that she was

seized in violation of the Fourth Amendment.”).

8 No. 09-2578

court granted the City summary judgment on the Monell

failure-to-train claim.

Ms. Carlson asked the court to reconsider its ruling;

she argued that the force used by Officer Bukovic, even

though minimal, was a seizure as a matter of law. She

essentially maintained that any touching used by an

officer to influence a citizen’s movements constitutes a

Fourth Amendment seizure. In her view, the district

court’s contrary ruling was based on a misunder-

standing of established Supreme Court precedent gov-

erning the law of Fourth Amendment seizure. She

further argued that other cases that had determined

that, despite the occurrence of some physical contact, no

Fourth Amendment seizure had taken place were not

controlling. The district court denied that motion.

Prior to trial, Officer Bukovic filed a motion in limine

to exclude, among other things, any reference to or state-

ment about Ms. Carlson’s lawful presence in the

WalMart store. See R.112 (item #9).9 Officer Bukovic

argued that, because Ms. Carlson had not advanced a

Fourth Amendment false arrest claim, the issue of

Ms. Carlson’s lawful presence at the WalMart store was

9

Ms. Carlsons’s attorney had posed questions during

Officer Bukovic’s deposition about whether he believed he

could have arrested Ms. Carlson for trespassing. Officer

Bukovic anticipated that M s. Carlson intended to

discuss the trespass issue at trial.

No. 09-2578 9

irrelevant to the excessive force claim to be tried.1 0

He contended that, in any event, Ms. Carlson’s reading

of the Illinois trespass statute was legally incorrect be-

cause the criminal law of Illinois prohibits remaining on

the property of another after having been asked to

leave. Officer Bukovic contended that Ms. Carlson’s

anticipated presentation of the trespass issue would be

erroneous and would mislead the jury. He asked that

such evidence be excluded under Federal Rule of

Evidence 403.

Ms. Carlson opposed the motion. She contended that the

issue of her lawful presence and Officer Bukovic’s

probable cause to detain her were central to the action.

She further argued that the Illinois criminal trespass

statute did not apply because the statute included an

“open to the public” exception. Tr. at 76-77, May 18,

2009. She maintained that the issue was related to the rea-

sonableness of Officer Bukovic’s seizure, and, thus, testi-

mony about the trespass issue should be admissible at trial.

The district court granted the motion in limine, ruling

that “injecting the issue of criminal trespass will mis-

lead and confuse the jury and lead to unfair preju-

dice.” R.124 at 5 (citing Rule 403). The district court

also ruled:

Ms. Carlson may argue only that she did not want

to leave and that she did not believe she was

trespassing because the store was open to the

10

See R.112; see also Tr. at 18-20, May 18, 2009.

10 No. 09-2578

public; she was there during normal business

hours; and she was not creating a disturbance.

Officer Bukovic, in turn, may argue that he be-

lieved Ms. Carlson was trespassing because the

store owner wanted her to leave; she refused his

order to leave; and she was behaving in a disrup-

tive manner.

Id. at 5-6. Over the course of several pretrial confer-

ences, Ms. Carlson asked the district court to reconsider

its ruling. However, the district court steadfastly main-

tained that, because Ms. Carlson had disavowed any

intention to assert a Fourth Amendment false arrest

claim, the issue of Ms. Carlson’s legal status on the

WalMart property and Officer Bukovic’s probable cause

to seize her were irrelevant to the issues to be tried.1 1

With these parameters in place, the district court con-

ducted a four-day jury trial. The evidence consisted of

testimony from Officer Bukovic, Ms. Carlson, Mr. Carlson,

the WalMart store employees and Ms. Carlson’s doctors.

The evidence established that Officer Bukovic asked

Ms. Carlson to leave the store, and that he momentarily

placed his hands on her arm.

Unsatisfied with the parties’ proposed jury instruc-

tions, the district court crafted instructions using the

Seventh Circuit and Ninth Circuit pattern instructions on

the law of Fourth Amendment excessive force claims.

The district court removed references to arrest situations

11

See Tr. at 19-21, May 18, 2009; see also R.145 at 12-14.

No. 09-2578 11

and, instead, proposed giving instructions on how to

determine whether a Fourth Amendment seizure had

occurred.

Ms. Carlson objected, primarily taking issue with the

court’s instruction that “in performing his job, an officer

can use force that is reasonably necessary under the

circumstances.” See R.151. She maintained that any touch-

ing by an officer without probable cause to detain was

per se unreasonable. She proposed several alternative

instructions. The first would have required the jury to

determine whether Officer Bukovic had probable cause

to detain her for questioning. Another would have in-

structed that, if Officer Bukovic lacked probable cause to

detain, any “knowing or intentional use of force . . . is

automatically [that is, per se] unreasonable.” See Appel-

lant’s Br. 24 (brackets in original); see also Tr. at 33-37,

June 15, 2009. Ms. Carlson also proposed an instruction

essentially requiring the jury to find that she was not

trespassing because she was in the store during normal

business hours. See Appellant’s Br. 26.

The district court rejected Ms. Carlson’s proposed

instructions because they misstated the law of Fourth

Amendment excessive force claims. The district court

decided to give the instructions that it had formulated.

The parties also disagreed over how the verdict form

should be structured. Ms. Carlson proposed a special

verdict form that would have asked the jury nine ques-

tions about disputed facts, such as whether Officer

Bukovic “intentionally applied some degree of force to

12 No. 09-2578

the person of Plaintiff.” See R.183.1 2 Her proposed verdict

form also asked the jury to determine whether Officer

Bukovic had “probable cause to believe that Plaintiff

was committing the crime of disorderly conduct” and

“the crime of criminal trespass to property in his pres-

ence.” See id.

The district court rejected Ms. Carlson’s proposed verdict

form because it interjected irrelevant issues and would

confuse the jury. Instead, the district court fashioned

a special verdict form that tracked the law of Fourth

Amendment excessive force claims. It asked: “Do you

find that Plaintiff has proven by a preponderance of

evidence that Defendant, Scott Bukovic[,] ‘seized’ Plain-

tiff, June Carlson, as that term has been defined in these

instructions?”; if the jury answered “yes” to that question:

“Do you find that Plaintiff has proven by a prepon-

derance of evidence that Defendant, Scott Bukovic[,] used

‘excessive force’ against Plaintiff, June Carlson, as that

term has been defined in these instructions?” R.185.

The jury answered no to the first question, concluding

that no Fourth Amendment seizure had occurred. The

district court accepted the verdict. Ms. Carlson did not

file a motion for judgment as a matter of law under

Federal Rule of Civil Procedure 50.

12

See also Tr. at 2-10, 15-16, June 11, 2009.

No. 09-2578 13

II

DISCUSSION

A.

The Section 1983 Fourth Amendment

Excessive Force Claim

Ms. Carlson’s primary contention is that the district

court erred by sending the question of whether

there was a seizure to the jury because Officer Bukovic’s

touching was a seizure as a matter of law and that the

seizure was “per se” unreasonable.1 3

13

We do not understand Ms. Carlson’s argument to be related

solely to the sufficiency of the evidence—an argument that was

waived when Ms. Carlson neglected to file a Rule 50 motion

at trial. See Unitherm Food Sys. v. Swift-Eckrich, Inc., 546

U.S. 394, 401-02 (2006). To the extent Ms. Carlson appeals

purely legal issues—she contends that the district court misap-

prehended the law of Fourth Amendment seizure, erred by

granting the motion in limine and erred by rejecting her

preferred verdict form—such issues have been preserved for

our review. See Fuesting v. Zimmer, Inc., 448 F.3d 936, 940 (7th

Cir. 2006) (“[T]he ability of the court of appeals to award a

new trial where there is prejudicial evidentiary error is

well-established and undisturbed by Unitherm.”); Chemetall

GMBH v. ZR Energy, Inc., 320 F.3d 714, 720 (7th Cir. 2003) (“[I]f

the legal question can be separated from the factual one, then

we see no bar to reviewing the legal question notwith-

standing the party’s failure to raise it in a motion for judg-

ment as a matter of law at trial.”); see also Pediatrix Screening, Inc.

(continued...)

14 No. 09-2578

Throughout the district court proceedings, Ms. Carlson

maintained that she was “seized as a matter of law”

and that the seizure was “per se unreasonable.” As her

counsel stated at one point: “[E]ven though Defendant

opted not to arrest Plaintiff, his initiation and continua-

tion of unconsented-to physical contact against her

person, no matter how brief, falls within an exception

to the per se unreasonable rule only if he had probable

cause to arrest her.” R.132 at 11. The district court cor-

rectly rejected Ms. Carlson’s formulations of the law.

Any Fourth Amendment inquiry necessarily begins

with a determination of whether a search or seizure

actually occurred. See Scott v. Harris, 550 U.S. 372, 381

(2007) (beginning a section 1983 Fourth Amendment

excessive force inquiry with a determination that a

seizure occurred and then turning to whether the force

used was unreasonable); Leaf v. Shelnutt, 400 F.3d 1070,

1089 (7th Cir. 2005) (“In order to determine whether [an

officer] seized [an individual] in violation of the Fourth

Amendment, . . . [w]e first consider whether [the individ-

ual] was seized . . . .”). If that question is answered in

the affirmative, the next question is whether the seizure

was unreasonable. See Brower v. County of Inyo, 489

(...continued)

v. Telechem Intern., Inc., 602 F.3d 541, 548 (3d Cir. 2010) (“Given

the length and breadth of the District Court’s examination of

the issues and the opportunities extended to both parties to

present their arguments, we are satisfied that [the plaintiff’s

legal] challenge was fully aired in the District Court and

preserved for appellate review.”).

No. 09-2578 15

U.S. 593, 599 (1989) (“ ‘Seizure’ alone is not enough for

§ 1983 liability; the seizure must be ‘unreasonable.’ ”);

see also Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)

(distinguishing the seizure inquiry from the reason-

ableness inquiry); Leaf, 400 F.3d at 1089 (“[I]f we con-

clude that [the individual] was seized, we then must

determine whether the seizure was unreasonable.”). The

seizure and reasonableness inquiries are distinct

and should not be conflated. Furthermore, an officer’s

probable cause to seize is not antecedent to this two-

step inquiry but rather is a subset of the larger reason-

ableness inquiry of the second step.

With respect to the first inquiry—whether there has

been a seizure—the traditional approach is whether

the person believed he was “free to leave.” This

standard is an objective one and “is made on the basis

of the ‘totality of the circumstances’ surrounding the

encounter.” United States v. Jerez, 108 F.3d 684, 690 (7th

Cir. 1997) (quoting Florida v. Bostick, 501 U.S. 429, 437

(1991)). For an understanding of this standard, we begin

with Justice Stewart’s opinion in United States v.

Mendenhall, 446 U.S. 544 (1980), and the plurality opin-

ion of the Supreme Court in Florida v. Royer, 460 U.S. 491

(1983).14 In Mendenhall, Justice Stewart noted that

14

In Florida v. Royer, 460 U.S. 491 (1983), Justices Marshall,

Powell and Stevens joined an opinion authored by Justice

White, adopting the “reasonable person-free to leave” standard

enunciated in Justice Stewart’s decision in United States v.

(continued...)

16 No. 09-2578

physical contact with the police was but one of several

“circumstances that might indicate a seizure.” See

Mendenhall, 446 U.S. at 554. Additional circumstances

include the number and threatening presence of

officers, the display of a weapon and the police officers’

language and tone of voice suggesting compulsion. Id.

at 554-55. In Royer, the Court determined that a seizure

had occurred in an airport when the officers took a

man’s plane ticket and license, thus preventing him

from walking away. See 460 U.S. at 504-06. In both cases,

the focus was squarely on whether a reasonable person

would have felt free to leave.

Later, in I.N.S. v. Delgado, 466 U.S. 210 (1984), the

Court ruled that immigration “sweeps” in workplaces,

whereby government agents asked questions of workers

while other agents stood at the doors, did not constitute

a Fourth Amendment seizure. The Court explained

that “[u]nless the circumstances of the encounter are so

intimidating as to demonstrate that a reasonable person

would have believed he was not free to leave if he had

not responded, one cannot say that the questioning re-

sulted in a detention under the Fourth Amendment.” Id.

at 216. Notably, the agents had tapped one of the

workers on the shoulder and asked her questions; the

Court found that no seizure had occurred. Id. at 220. In

14

(...continued)

Mendenhall, 446 U.S. 544 (1980). Justice Blackmun joined, in

his dissenting opinion, the plurality’s adoption of that stan-

dard. See Royer, 460 U.S. at 514 (Blackmun, J., dissenting).

No. 09-2578 17

Tennessee v. Garner, 471 U.S. 1, 7 (1985), while holding

that “there can be no question that apprehension by the

use of deadly force is a seizure,” the Court reaffirmed

the continued viability of the Mendenhall totality of the

circumstances approach because, in other circumstances,

“it is not always clear just when minimal police inter-

ference becomes a seizure.”

In cases where physical contact with a citizen

occurred, the Court has suggested that the official pur-

pose of the contact matters.1 5 In Brower v. County of Inyo,

489 U.S. 593 (1989), the Court reversed an appellate

court determination that a police roadblock that caused

a fatal car crash was not a seizure. The Supreme Court

determined that the roadblock was indeed a seizure

because the roadblock effectively controlled and stopped

the suspect. The Court explained,

Violation of the Fourth Amendment requires an

intentional acquisition of physical control. A

seizure occurs even when an unintended person

or thing is the object of the detention or taking,

but the detention or taking itself must be will-

15

The purpose of an encounter must not be confused with an

officer’s subjective intent when engaging the encountered

individual. The reasonable person-free to leave standard is

an objective one, and both the officer’s and the encountered

individual’s subjective beliefs during the encounter are not

determinative as to whether a seizure occurred. See 4 Wayne R.

LaFave, Search and Seizure: A Treatise on the Fourth Amend-

ment § 9.4(a), pp. 413-14 (4th ed. 2010).

18 No. 09-2578

ful. . . . In sum, the Fourth Amendment addresses

misuse of power, not the accidental effects of

otherwise lawful government conduct.

....

. . . It is clear, in other words, that a Fourth

Amendment seizure does not occur whenever

there is a governmentally caused termination of

an individual’s freedom of movement (the inno-

cent passerby), nor even whenever there is a

governmentally caused and governmentally

desired termination of an individual’s freedom

of movement (the fleeing felon), but only when

there is a governmental termination of freedom

of movement through means intentionally applied.

Brower, 489 U.S. at 596-97 (internal citations and quotation

marks omitted) (emphasis in original); see also County of

Sacramento v. Lewis, 523 U.S. 833, 844 (1998) (concluding

that no seizure occurred where the police accidentally

struck and killed a motorcyclist during a high-speed

pursuit). The Court expanded on that rationale in

California v. Hodari D., 499 U.S. 621, 624-29 (1991), where

the Court determined that no seizure occurred when

a suspect was approached by police, then ran away

and was chased. The Court stated that “[t]he word ‘sei-

zure’ readily bears the meaning of laying on of hands

or application of physical force to restrain movement,

even when it is ultimately unsuccessful.” Id. at 626. The

Court cited with approval commentary that explained

that an arrest could be accomplished by “ ‘constructive

detention,’ ” which “ ‘is accomplished by merely touching,

No. 09-2578 19

however slightly, the body of the accused, by the

party making the arrest and for that purpose.’ ” Id. at 625

(citing A. Cornelius, Search and Seizure 163-64 (2d ed.

1930)) (emphasis added). Finally, an important caveat

to the free to leave standard, often employed in bus sweep

contexts, is that “when a person ‘has no desire to

leave’ for reasons unrelated to the police presence, the

‘coercive effect of the encounter’ can be measured better

by asking whether ‘a reasonable person would feel free

to decline the officers’ requests or otherwise terminate

the encounter.’ ” Brendlin v. Cal., 551 U.S. 249, 255

(2007) (quoting Bostick, 501 U.S. at 435-36).

As this discussion makes clear, mere physical contact

by an officer, although a significant factor, does not

automatically qualify an encounter as a Fourth Amend-

ment seizure. See 4 Wayne R. LaFave, Search and Seizure:

A Treatise on the Fourth Amendment § 9.4(a), p. 427

(4th ed. 2010) (“Even physical contact is acceptable if it

is consensual, a normal means of attracting a person’s

attention or obviously serves some nonseizure pur-

pose.” (internal quotation marks and citations omitted));

see also id. at n.85 & accompanying text (commenting

that “physically grabbing and moving the suspect,” with

a concomitant show of force and authority, may indicate

that a seizure occurred). For instance, we have sug-

gested that physical contact does not elevate auto-

matically an encounter to the level of a Fourth Amend-

ment seizure. As we said in Acevedo v. Canterbury, 457

F.3d 721, 725 (7th Cir. 2006), “[c]ertain types of non-

restraining physical contact, without a concomitant

showing of authority, are just too minor to constitute a

20 No. 09-2578

‘seizure’ for Fourth Amendment purposes without doing

violence to that word.” See also Williams v. City of Cham-

paign, 524 F.3d 826, 829 (7th Cir. 2008) (“In constitutional

tort cases (including cases brought to vindicate rights

created by the Fourth Amendment) as elsewhere in the

law, de minimis non curat lex.”); Leaf, 400 F.3d at 1090-91

(determining that no seizure occurred where officers

pointed guns and shined lights towards a sleeping man,

even if they nudged him). In sum, there are, of course,

situations in which the totality of the circumstances

require a determination that a seizure has occurred as

a matter of law. See, e.g., Tenn. v. Garner, 471 U.S. 1, 7

(1985) (fatal shooting of suspect constituted seizure).

However, it is also clear that a mere touch is not per se

a seizure under the Fourth Amendment.

The application of these principles to this case centers

on the question of whether a seizure took place. In this

case, this question admittedly is one of some difficulty.

We conclude, accordingly, that the district court cor-

rectly submitted the matter to the jury. Even accepting

the evidence in the light most favorable to Officer

Bukovic, we cannot characterize the situation as the sort

of de minimis touching that, as a matter of law, has no

Fourth Amendment implications. There certainly was

evidence of record that would have permitted the jury

to determine that a seizure in fact did take place. On

the other hand, the jury also was entitled to reach the

opposite conclusion: Officer Bukovic’s contact with

Ms. Carlson’s arm may have been so light and so momen-

tary that it did not convey, to the objective observer, a

demonstration of anything more than an encourage-

No. 09-2578 21

ment that she leave the area. We must remember that

police officers find themselves in a myriad of contentious,

and potentially explosive, situations where in an effort

to defuse the situation, a combination of verbal declara-

tions and gestures must be employed. When considered

in context, such actions may be more exhortatory than

commanding in nature. While it could have determined

otherwise, we believe that the jury was entitled to deter-

mine that, at the time he touched Ms. Carlson’s arm,

Officer Bukovic’s action was just this type of gesture:

more exhortatory than commanding. The appropriate

characterization of this situation was a question for the

jury after it had heard all the evidence. Cf. Acevedo, 457

F.3d at 725 (concluding that the question of whether

an officer seized an individual by punching him in the

face was a question for the jury).

The district court’s formulation of jury instruc-

tions adequately articulated these legal principles.1 6 The

16

Ms. Carlson does not dispute that the jury was competent to

serve as the factfinder on the issue of whether a Fourth Amend-

ment seizure had occurred. Indeed, that proposition is well

established. See, e.g., Acevedo v. Canterbury, 457 F.3d 721, 725

(7th Cir. 2006) (“Based on this testimony, a reasonable jury

could have found that Acevedo was seized by Canterbury’s

blow to his head.”); Driebel v. City of Milwaukee, 298 F.3d 622,

638 (7th Cir. 2002) (commenting that “a rational jury might very

well conclude that Officer Sgrignuoli . . . was seized by the

detectives who accosted him,” but assuming that seizure had

occurred); see also Gardenhire v. Schubert, 205 F.3d 303, 313-15

(continued...)

22 No. 09-2578

district court informed the jury that the seizure deter-

mination depended on whether Ms. Carlson’s liberty

was restrained and whether “a reasonable person

would not have felt free to ignore the presence of law

enforcement and to go about her business.” Trial Tr. at

568. The jury was instructed to evaluate objectively the

totality of the circumstances. The district court pro-

vided, moreover, appropriate factors to guide the

jury’s consideration of the issue. Ms. Carlson was not

entitled to an instruction that made the determination

depend entirely on whether physical contact had

occurred; that factor is but one that the jury ought to

consider. See Mendenhall, 446 U.S. at 554.1 7 Nor was

Ms. Carlson entitled to an instruction linking the

seizure inquiry to the issue of probable cause because

those concepts are not to be conflated. The district court

did not abuse its discretion in rejecting Ms. Carlson’s

proposed jury instructions.

The district court also acted well within its discre-

tion when it declined to give a jury instruction

describing the Illinois criminal trespass statute and

when it precluded Ms. Carlson from presenting evidence

16

(...continued)

(6th Cir. 2000); Hawkins v. City of Farmington, 189 F.3d 695, 702

(8th Cir. 1999); Cassady v. Tackett, 938 F.2d 693, 697-98 (6th

Cir. 1991).

17

See also 4 Martin A. Schwartz & George C. Pratt, Section 1983

Litigation § 8.01 (2d ed. 2009) (Instruction 8.01.7).

No. 09-2578 23

to show that she had not violated the statute.1 8 Whether

the statute was violated was not relevant to the

threshold issue of whether a seizure had occurred. Deter-

mining whether a seizure occurred needed to be

decided separate and apart from the question of reason-

ableness.19

18

We review a rejected jury instruction in comparison to the

actual charge issued by the district court. See Ammons-Lewis

v. Metro. Water Reclamation Dist. of Greater Chi., 488 F.3d 739,

751 (7th Cir. 2007). We review Rule 403 rulings for abuse of

discretion. See Estate of Moreland v. Dieter, 395 F.3d 747, 754-

55 (7th Cir. 2005).

19

Additionally, the trespass issue had very little relevance to

whether Officer Bukovic used excessive force in committing

the alleged seizure. The doctrine of Fourth Amendment reason-

ableness has distinct, component parts. A seizure without

probable cause is conceptually different from a seizure

that employs excessive force; both are unreasonable, but for

different reasons. See Evans v. Poskon, 603 F.3d 362, 364 (7th

Cir. 2010) (distinguishing between Fourth Amendment unrea-

sonableness based on lack of probable cause and excessive

force in the exclusionary rule context); McKenna v. City of

Phila., 582 F.3d 447, 460 (3d Cir. 2009) (“The District Court

properly rejected Timothy McKenna’s argument that it should

have instructed the jury, which rejected plaintiffs’ excessive

force claims, that any amount of force used to effect an arrest

without probable cause is per se excessive. [That] statement of

the law is unsupported by citation, and, moreover, is wrong.

As the Court correctly concluded, the jury was required to

review any excessive force claims under a totality of the cir-

(continued...)

24 No. 09-2578

19

(...continued)

cumstances test, as enunciated in Graham v. Connor, 490 U.S.

386 (1989), to determine whether the force used was reason-

able.” (parallel citations omitted)); Snell v. City of York, Pa.,

564 F.3d 659, 672-73 (3d Cir. 2009) (rejecting “efforts to boot-

strap excessive force claims and probable cause challenges”);

Cortez v. McCauley, 478 F.3d 1108, 1127 (10th Cir. 2007) (distin-

guishing between Fourth Amendment excessive force and

false arrest claims); Papineau v. Parmley, 465 F.3d 46, 62 (2d Cir.

2006) (“[T]he reasonableness test established in Graham

remains the applicable test for determining when excessive

force has been used, including those cases where officers

allegedly lack probable cause to arrest.”); Beier v. City of

Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004) (“Because the

excessive force and false arrest factual inquiries are distinct,

establishing a lack of probable cause to make an arrest

does not establish an excessive force claim, and vice-versa.”).

Of course, we have recognized false arrest as a valid basis for

a section 1983 Fourth Amendment claim. See Bentz v. City of

Kendallville, 577 F.3d 776, 779 (7th Cir. 2009) (“Where an arrest

occurs without probable cause, the plaintiff may bring a claim

for unreasonable seizure.”). Such a claim necessarily focuses the

reasonableness metric on the existence of an officer’s probable

cause to detain. See, e.g., Belcher v. Norton, 497 F.3d 742, 748 (7th

Cir. 2007). Often times, Fourth Amendment excessive force and

false arrest claims are asserted in the same action. See, e.g., Catlin

v. City of Wheaton, 574 F.3d 361, 364-65 (7th Cir. 2009); Williams

v. City of Champaign, 524 F.3d 826, 827 (7th Cir. 2008); Tibbs v.

City of Chi., 469 F.3d 661, 662 (7th Cir. 2006); Morfin v. City of E.

Chi., 349 F.3d 989, 994-96 (7th Cir. 2003). In this case, however,

(continued...)

No. 09-2578 25

For the same reasons, the district court acted well

within its discretion in declining to approve a verdict

form submitted by Ms. Carlson. It simply did not

comport accurately with the governing legal principles.2 0

B.

The Section 1983 Monell Claim

Ms. Carlson also appeals the district court’s dismissal

of her Monell failure-to-train claim asserted against the

City. However, because Ms. Carlson’s section 1983

Fourth Amendment excessive force claim failed, her

Monell claim failed as well. See Jenkins v. Bartlett, 487

F.3d 482, 492 (7th Cir. 2007) (“[T]here can be no liability

under Monell for failure to train when there has been

no violation of the plaintiff’s constitutional rights.”);

Windle v. City of Marion, Ind., 321 F.3d 658, 663 (7th Cir.

2003) (“[A] plaintiff must prove that the individual

officers are liable on the underlying substantive claim in

order to recover damages from a municipality under [a

theory of] . . . failure to train.”). Accordingly, we affirm

19

(...continued)

Ms. Carlson did not advance a false arrest claim. In fact, she

affirmatively disavowed any intention to assert a false arrest

claim. See Appellant’s Br. 22; Tr. at 20, May 18, 2009; Tr. at 4-6,

June 5, 2009.

20

We review the rejection of a verdict form for abuse of dis-

cretion. See Evans v. City of Chi., 513 F.3d 735, 741 (7th Cir.

2008), cert. denied, 129 S. Ct. 899 (2009).

26 No. 09-2578

the district court’s grant of summary judgment in favor

of the City on the Monell claim.

C.

The District Court’s Alleged Bias

Ms. Carlson contends that the district court was biased

because it showed sympathy for Officer Bukovic when it

referred to him as “this poor cop” during a pretrial con-

ference. See Appellant’s Br. 45-47. Ms. Carlson does not

specifically request a form of relief under this theory,

but we assume she demands a new trial with a dif-

ferent presiding judge. Ms. Carlson, however, did not

move for the district court’s disqualification under 28

U.S.C. § 455. Although we have left open the question

of “whether we may review a refusal to recuse under

section 455(b) when the argument is raised for the first

time on appeal,” United States v. Smith, 210 F.3d 760, 764

(7th Cir. 2000), we need not resolve that issue today

because recusal was unnecessary in this case.2 1 The

district court’s off-the-cuff remark did not “display a

deep-seated favoritism or antagonism that would make

fair judgment impossible.” In re Huntington Commons

Assocs., 21 F.3d 157, 158 (7th Cir. 1994) (internal quotation

marks omitted); see also Hook v. McDade, 89 F.3d 350, 354-56

21

“[T]he denial of a request that the judge recuse himself

under section 455(a) must be appealed immediately by ap-

plication for writ of mandamus, or it is waived.” United States

v. Horton, 98 F.3d 313, 316 (7th Cir. 1996).

No. 09-2578 27

(7th Cir. 1996) (describing the various forms of and bases

for § 455 recusal). Our review of the entire record has

assured us that the district court managed Ms. Carlson’s

case competently and fairly.

Ms. Carlson also appears to contend that the district

court was biased and should have been removed

pursuant to 28 U.S.C. § 144. However, Ms. Carlson con-

cedes that she did not comply with the “procedural and

substantive requirements” of § 144. See United States

v. Barnes, 909 F.2d 1059, 1072 (7th Cir. 1990).

Conclusion

For the reasons stated in this opinion, we affirm the

judgment of the district court.

A FFIRMED

9-2-10