Darrell Haze v. Mark Kubicek

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 17-1037

DARRELL K. HAZE,

Plaintiff-Appellant,

v.

MARK KUBICEK,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 13-cv-01344-NJ — Nancy Joseph, Magistrate Judge.

____________________

ARGUED MAY 22, 2017 — DECIDED JANUARY 30, 2018

____________________

Before FLAUM, EASTERBROOK, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Darrell Haze was ticketed for disor-

derly conduct after he tussled with Milwaukee Police Officer

Mark Kubicek outside the Bradley Center on the night of a

Bucks game. He contested the ticket and won. He then sued

Kubicek for damages alleging that the officer unlawfully

stopped him, falsely arrested him, used excessive force, and

targeted him based on his race.

2 No. 17-1037

Officer Kubicek moved for summary judgment on all

claims, and Haze sought partial summary judgment on the

false-arrest claim. A magistrate judge, presiding by consent,

denied the motions based on pervasive factual disputes.

After a two-day trial, a jury exonerated Kubicek on all but

the unlawful-stop claim. On that claim the jury found that

the stop was unlawful (because it was not supported by

adequate suspicion) but was not the proximate cause of any

compensable injury.

Haze filed two posttrial motions, one for judgment not-

withstanding the verdict and the other for a new trial. He

argued that the jury’s split verdict—finding that the stop

was unlawful but the officer did not use excessive force—

was fatally inconsistent. He also asked the judge for nominal

damages and a declaratory judgment as remedies for the

unlawful stop. The judge denied most of these requests, but

she did award $1 in nominal damages for the unlawful stop.

On appeal Haze contends that he was entitled to sum-

mary judgment on his claim for false arrest. That argument

is procedurally foreclosed. The false-arrest claim was tried,

the jury rejected it, and neither of Haze’s posttrial motions

challenged this aspect of the jury’s verdict. That blocks our

review. Ortiz v. Jordan, 562 U.S. 180, 188–89 (2011). Haze also

reprises his argument that the jury’s verdict was incon-

sistent. It was not. The lawfulness of the stop and the law-

fulness of the officer’s use of force were distinct inquiries

subject to different legal tests; an unlawful stop does not

make an officer’s later use of force per se unreasonable.

Finally, Haze argues that the judge wrongly rejected his

request for a declaratory judgment. The judge reasonably

No. 17-1037 3

declined to issue that extra remedy; the jury’s verdict is

vindication enough on the unlawful-stop claim.

I. Background

On the evening of March 22, 2012, Officer Mark Kubicek

and two partners, Officers Paul Helminiak and Pernell

Reynolds, were on bicycle patrol in downtown Milwaukee

near the Bradley Center, where the Bucks were playing. The

police department had recently received complaints that

scalpers were illegally selling tickets outside the Bradley

Center, so the officers were on the lookout for suspicious

activity. A Milwaukee ordinance prohibits scalping—

reselling tickets above face value—within 500 feet of the

venue two hours before the event. MILWAUKEE MUNICIPAL

CODE § 105-56. But selling tickets at or below face value is

legal.

About 30 minutes before the game started, Officer

Kubicek and his partners noticed Haze standing outside the

Bradley Center holding a sign that said “We need tickets.”

Curiously, a man standing right next to Haze held a sign

that said “Now selling tickets.” The officers sensed some-

thing amiss.

At trial Haze and Kubicek gave sharply conflicting ac-

counts of what happened next. In the officer’s telling, when

Haze saw the police nearby, he looked shifty and tried to

hide his sign, so the officers approached and asked to speak

with the two men. The second man—the one selling tick-

ets—was cooperative. He told the officers that Haze had

been “fussing and fighting” with a woman shortly before

they arrived. Haze denied this. When the officers inquired

about Haze’s sign and asked why he hadn’t bought the other

4 No. 17-1037

man’s tickets, Haze said evasively that the tickets were no

good. He then turned and quickly walked away, loudly

exclaiming that he didn’t have to put up with racial profil-

ing.

Officer Kubicek ordered Haze to stop. Haze ignored the

order and continued to walk away, so Kubicek dismounted

his bicycle, caught up with Haze, and used a pressure hold

on his right arm to stop him. When Haze began to belliger-

ently resist, Kubicek and Helminiak placed him in handcuffs

to control the scene as they continued to investigate. As

Haze was being handcuffed, he yelled to Officer Reynolds:

“Hey black boy; hey black boy; you need to help me out

with this profiling bullshit.”

At this point Lorene Lee approached the scene and iden-

tified herself as the person Haze had been fighting with

earlier that evening. Officer Kubicek noticed that Haze

reeked of alcohol, appeared intoxicated, and seemed un-

steady, so the officer leaned him up against a low wall for

balance. Haze then winked at Officer Reynolds and threw

himself onto the ground, yelling that Kubicek had hurt him

and that he would “collect thousands off you fools.”

At Haze’s request the officers called an ambulance and

summoned a supervisor to handle the abuse allegation.

Haze told the supervisor that one of the officers had threat-

ened to shoot him. When pressed for details, however, he

said he couldn’t recall which one made the threat. (He has

since abandoned this allegation.) Haze was taken by ambu-

lance to a nearby hospital and quickly released.

Haze’s account was quite different. He denied attempt-

ing to hide his sign, making comments about racial profiling,

No. 17-1037 5

walking away from the officers, or resisting in any way. He

claimed that when Officer Kubicek approached and asked

for an ID, he reached into his fanny pack to comply, but

Kubicek suddenly grabbed his arm, placed him in a painful

pressure hold, and slammed him to the ground. He said the

officer then handcuffed him and shoved him against a wall.

He denied that he threw himself on the ground; rather, he

said he was dizzy and in pain, lost his balance, and fell. He

also denied winking at Officer Reynolds or making any

remarks about a lawsuit.

Haze was ticketed for disorderly conduct. He disputed

the ticket, and a municipal judge held a trial and dismissed

it. Haze then sued Officer Kubicek for damages under

42 U.S.C. § 1983. He alleged that the officer violated his

rights under the Fourth and Fourteenth Amendments by

stopping him without reasonable suspicion, falsely arresting

him, and using excessive force. He also alleged that Kubicek

targeted him because of his race in violation of the Equal

Protection Clause. 1

Officer Kubicek moved for summary judgment on all

claims, both on the merits and based on qualified immunity.

Haze opposed the motion and filed a cross-motion for

summary judgment on the false-arrest claim. The magistrate

judge denied both motions, concluding that material facts on

all claims were sharply in dispute.

The case proceeded to trial, and a jury returned a defense

verdict on three of the four counts. The jury cleared Officer

Kubicek on the claims for false arrest, excessive force, and

1Haze also brought a due-process claim for malicious prosecution, but it

was dismissed and is not at issue here.

6 No. 17-1037

intentional discrimination. On the remaining claim for an

unlawful stop, the jurors found that Kubicek lacked reason-

able suspicion to conduct a temporary detention but the

unlawful stop was not a proximate cause of any compensa-

ble injury.

Haze filed two posttrial motions, one for judgment not-

withstanding the verdict under Rule 50(b) of the Federal

Rules of Civil Procedure and the other for a new trial under

Rule 59. Both motions asserted that the jury’s findings on the

lawfulness of the stop and the officer’s use of force were

inconsistent. More specifically, Haze argued that because the

jury found that the initial detention was unlawful, any use of

force during the encounter was necessarily unreasonable. He

also asked the judge to award nominal damages and a

declaratory judgment on the unlawful-stop claim.

The judge resolved the motions in a single order. She

granted relief in part, awarding nominal damages of $1 for

the unlawful stop. But she denied relief in all other respects,

disagreeing that the verdict was inconsistent and declining

to enter a declaration of rights on the unlawfulness of the

stop. Haze appealed.

II. Discussion

A. False-Arrest Claim; Denial of Summary Judgment

Haze’s first line of attack is a challenge to the judge’s de-

nial of his motion for summary judgment on the false-arrest

claim. That argument is procedurally barred. It is basic

procedural law that a denial of summary judgment is an

interlocutory ruling; once a claim has been tried, the losing

litigant must file a Rule 50(b) motion to preserve an appel-

late challenge to the jury’s verdict. Ortiz, 562 U.S. at 188–89;

No. 17-1037 7

Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 404

(2006). Haze’s Rule 50(b) motion did not include a challenge

to the jury’s verdict on the false-arrest claim. That omission

forecloses review. Ortiz, 562 U.S. at 189 (“Absent [a

Rule 50(b)] motion, … an appellate court is ‘powerless’ to

review the sufficiency of the evidence after trial.”).

B. Inconsistent Verdict

Haze next argues that the jury returned an inconsistent

verdict on the lawfulness of the stop and the officer’s use of

force. He raised this claim in both posttrial motions. The

redundancy was unnecessary; a Rule 59 motion for a new

trial is the correct procedural vehicle. See Deloughery v. City of

Chicago, 422 F.3d 611, 617 (7th Cir. 2005). Our review is for

abuse of discretion. Clarrett v. Roberts, 657 F.3d 664, 674 (7th

Cir. 2011). There was no inconsistency in the verdict, so the

judge was right to deny relief.

Haze reasons that because a frisk pursuant to an unlaw-

ful stop is unlawful, see Arizona v. Johnson, 555 U.S. 323, 326–

27 (2009), it follows that any use of force pursuant to an

unlawful stop—even de minimis force—is necessarily exces-

sive and thus unreasonable under the Fourth Amendment.

He cites no authority for this per se rule, and indeed there is

none.

To the contrary, it is well established that the lawfulness

of a temporary detention and the lawfulness of an officer’s

use of force are separate questions subject to different legal

tests. Both actions are subject to the Fourth Amendment’s

reasonableness requirement, but the legal inquiries are

conceptually distinct. See County of Los Angeles v. Mendez,

137 S. Ct. 1539, 1547–48 (2017) (explaining that excessive-

8 No. 17-1037

force claims are conceptually distinct from other Fourth

Amendment claims arising from the same occurrence and

should be analyzed separately); see also Sebright v. City of

Rockford, 585 F. App’x 905, 907 (7th Cir. 2014) (“[T]he lawful-

ness of an arrest is irrelevant to an excessive force analy-

sis.”); Carlson v. Bukovic, 621 F.3d 610, 622 n.19 (7th Cir. 2010)

(explaining that a “seizure without probable cause is concep-

tually different from a seizure that employs excessive force;

both are unreasonable, but for different reasons”); Evans v.

Poskon, 603 F.3d 362, 364 (7th Cir. 2010); Snell v. City of York,

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

strap excessive force claims and probable cause challenges”).

An officer’s use of force is evaluated under the totality of

the circumstances, as required by Graham v. Connor, 490 U.S.

386 (1989). Here the jury found that although Officer

Kubicek lacked adequate suspicion to justify a temporary

detention, 2 whatever degree of force he later used as the

encounter evolved was not excessive under all the circum-

stances. Those findings are not fatally inconsistent.

C. Declaratory Judgment

Finally, Haze insists that the Declaratory Judgment Act,

28 U.S.C. § 2201(a), entitles him to a declaration of rights that

2 For clarity’s sake we note that Officer Kubicek needed no suspicion at

all to justify his decision to approach Haze and ask a few questions.

United States v. Adamson, 441 F.3d 513, 519–20 (7th Cir. 2006) (“It is well

settled that police may approach an individual in a public place and seek

the individual’s cooperation in answering a few questions.”). A police-

citizen encounter like this, however, sometimes “ripen[s] into an investi-

gative detention,” which “is permitted when the police have reasonable

suspicion, supported by articulable facts, that criminal activity is afoot.”

Id. at 520.

No. 17-1037 9

the stop was unlawful in order to give effect to the jury’s

verdict. But the Act says only that the court “may declare the

rights and other legal relations of any interested party, …

not that it must do so.” MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118, 136 (2007) (internal quotation marks omitted).

This statutory text “has long been understood ‘to confer on

federal courts unique and substantial discretion in deciding

whether to declare the rights of litigants.’” Id. (quoting

Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995)).

The judge denied Haze’s request for a declaratory judg-

ment, reasoning that the jury’s verdict was a “declaration” of

sorts and an award of nominal damages for the unlawful

stop would suffice to vindicate Haze’s rights. That was an

eminently reasonable exercise of discretion. A formal decla-

ration of rights would add nothing. The jury’s verdict and

the nominal-damages award speak for themselves.

AFFIRMED.