Carlson v. Bukovic - .

Decision Date02 September 2010
Docket NumberNo. 09-2578.,09-2578.
Citation621 F.3d 610
PartiesJune O. CARLSON, Plaintiff-Appellant, v. Scott BUKOVIC, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit


Arthur G. Jaros, Jr., Attorney, Richter & Jaros, Oak Brook, IL, for Plaintiff-Appellant.

Laura L. Scarry, Attorney, Deano & Scarry, Chicago, IL, for Defendants-Appellees.

Before RIPPLE, MANION and SYKES, Circuit Judges.

RIPPLE, 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 claim against Officer Bukovic and a Monell 1 claim against the City for failure to train the officer. 2 With respect to these claims, the parties cross-moved for summary 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 excessive 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


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, 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.

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 explained 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 lying. 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 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 Personnel 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. 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.


The Carlsons brought this action against various WalMart corporate entities, the City of Darien and Officer Bukovic. After filing a series of amended complaints, 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, 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 summary 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 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 misunderstanding of established Supreme Court precedent governing 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 statement 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 irrelevant to the excessive force claim to be tried. 10 He contended that, in any event, Ms. Carlson's reading of the Illinois trespass statute was legally incorrect because 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...

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