Shaun J. Matz v. Rodney Klotka , 769 F.3d 517 ( 2014 )

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. 1No. 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.