Darrell Haze v. Mark Kubicek , 880 F.3d 946 ( 2018 )

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.