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Black v. Clarke

United States District Court, E.D. Wisconsin

January 5, 2018

DANIEL BLACK, Plaintiff,



         1. INTRODUCTION

         This action arises from an encounter on an airplane between former Milwaukee County Sheriff David Clarke (“Clarke”) and the plaintiff, Daniel Black (“Black”), which led to airport questioning and a social media spat. Black accuses Clarke of First, Fourth, and Fourteenth Amendment violations, and seeks to hold both him and Milwaukee County liable.

         On September 11, 2017, the defendants filed a motion for summary judgment. (Docket #15). Black responded on October 11, 2017, (Docket #25), and the defendants replied on October 25, 2017 (Docket #29). For the reasons explained below, the defendants' motion will be granted in part and denied in part. The surviving claim will proceed to a jury trial.


         Federal Rule of Civil Procedure 56 states that the “court shall grant summary judgment if the movant shows that 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); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A “genuine” dispute of material fact is created when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court construes all facts and reasonable inferences in a light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). In assessing the parties' proposed facts, the Court must not weigh the evidence or determine witness credibility; the Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010).


         3.1 Plaintiff's Failure to Dispute Defendants' Proposed Facts

         Many of the relevant facts are undisputed because Black failed to dispute them. Federal Rule of Civil Procedure 56 and Civil Local Rule 56 describe in detail the form and contents of a proper summary judgment submission. In connection with their motion for summary judgment, the defendants filed a supporting statement of material facts that complied with the applicable procedural rules. (Docket #17). It contained short, numbered paragraphs concisely stating those facts they proposed to be beyond dispute, with supporting citations to the attached evidentiary materials. See id.

         As the party opposing the defendants' motion, Black was required to file “a concise response to the moving party's statement of facts” containing “a reproduction of each numbered paragraph in the moving party's statement of facts followed by a response to each paragraph, including, in the case of any disagreement, specific references to the affidavits, declarations, parts of the record, and other supporting materials relied upon[.]” Civ. L. R. 56(b)(2)(B). Black did no such thing. He filed only a memorandum of law opposing summary judgment, his own proposed facts, and a declaration attaching evidentiary material. (Docket #25-28). The effect of this failure is that, for the purpose of deciding summary judgment, the defendants' uncontroverted statements of material fact are deemed admitted. Civ. L. R. 56(b)(4); see also Fabriko Acquisition Corp. v. Prokos, 536 F.3d 605, 607-08 (7th Cir. 2008) (“[A] district court is entitled to demand strict compliance with [the local] rules for responding to a motion for summary judgment, and . . . a court does not abuse its discretion when it opts to disregard facts presented in a manner inconsistent with the rules.”) (citation omitted).

         The Court will consider Black's proposed facts, (Docket #28-12), only to the extent they do not contradict the defendants' uncontroverted proposed facts, (Docket #17).[1]

         3.2 Relevant Facts

         On January 15, 2017, Clarke boarded a plane bound for Milwaukee, Wisconsin from the Dallas / Forth Worth International Airport. He took his seat toward the front of the plane. Black boarded the plane after Clarke, and, during the boarding process, stopped in the aisle immediately adjacent to Clarke's seat. Black asked Clarke if he was the Milwaukee Sheriff, and Clarke responded affirmatively. Then, in what Clarke believed was a physically threatening manner, Black stared at Clarke and shook his head. As Black started to walk toward his seat, Clarke asked Black if he had a problem, and Black responded by turning, shaking his head, and waving Clarke off in a manner indicating displeasure. The men did not have further interaction during the flight.

         Before the plane took off, Clarke used his cell phone to call Inspector Edward Bailey (“Bailey”), who was then employed by the Milwaukee County Sheriff's Office and whose regular duties included meeting Clarke at the Milwaukee airport when Clarke arrived home from an out-of-state trip. Clarke informed Bailey of the confrontation with Black, saying “it had happened again” and that he had had a “confrontation with a passenger on an aircraft.” (Docket #17 at 4).[2] Clarke described Black to Bailey and told Bailey that the confrontation had not been physical. Clarke did not think that it amounted to an offense for which a citation or arrest was appropriate. Clarke nevertheless told Bailey that he wanted deputies to conduct a “field interview” of Black when the plane arrived in Milwaukee. According to Clarke's undisputed version of the facts, a “field interview” in the Sheriff's parlance is a “voluntary police-citizen encounter in which an officer obtains information from a citizen and makes an identification of the citizen.” (Docket #17 at 4).[3]

         Bailey immediately called Captain Mark Witek (“Witek”), commander of the Airport Division of the Milwaukee County Sherriff's Office, to relay the information he had just received from Clarke. Separately, Clarke sent a text message to Witek instructing him to have deputies conduct a field interview of Black after the plane landed. Before the plane arrived in Milwaukee, Witek told Deputies Steven Paull (“Paull”) and Jeffrey Hartung (“Hartung”) that there was an individual on Clarke's flight that had possibly harassed him, and that the deputies were to conduct a field interview of that individual to identify him and obtain basic information.

         After the plane landed, Clarke exited the plane, entered the concourse at Gate D54, and walked up to several waiting Milwaukee County Sheriff's Office personnel. Witek, Sergeant James Sajdowitz (“Sajdowitz”), Deputy Karen Mills (“Mills”), and Mills' canine were there to greet Clarke as part of standard procedure for the sheriff's airport arrival. Paull and Hartung were there solely for the field interview. Clarke stayed in the gate area with the other Sheriff's Office personnel until Black exited the plane and entered the concourse. Clarke identified Black to Witek, Paull, and Hartung and then left the gate area with Witek, Sajdowitz, and Mills.

         Paull and Hartung approached Black and said they needed to speak with him about an incident with Clarke on the plane. A brief segment of security footage from the gate area shows that the deputies did not use physical force when confronting Black. (Docket #22-10). They walked with him to an open area at the center of Concourse D, near an unoccupied commercial space, that was not as confined and crowded as the gate area.[4] As they walked, Paull was several feet to Black's left and Hartung was behind Paull. When they arrived in the open area of the concourse, the deputies told Black to set down his bag and provide proof of his identity, which he did. Hartung called dispatch to run a check of Black's name and information from his Illinois driver's license for any outstanding warrants.

         While they waited on dispatch, Paull asked Black to describe what happened with Clarke on the plane. Black relayed his account, and Paull, skeptical that Black's account was complete, asked Black if he had done anything else toward Clarke. Black called the situation ridiculous and Paull agreed. Paull asked Black what he thought of Clarke and Black responded, “[n]o comment.” (Docket #17 at 8). Paull and Black then discussed other topics, apparently in a friendly manner. The three men learned that they all had attended the University of Wisconsin- Milwaukee for college, and both Black and Hartung had played rugby there. When the field interview concluded (presumably the warrant check came back negative), the deputies escorted Black through the airport and outside to a waiting car driven by Black's friend. The field interview lasted approximately fifteen minutes.[5]

         At no point in the interview did the deputies tell Black he was not free to leave, nor did Black ask if he was free to leave.[6] Black used his cell phone during the encounter to communicate with the friend who was picking him up at the airport. Black also filmed video as the deputies escorted him out of the airport, and the deputies did not stop him from doing so. At his deposition, Black described the deputies who questioned him as “kind.” (Docket #22-1 at 2). Black acknowledged that he did not refuse to answer the deputies' questions and said he was “trying to be helpful.” (Docket #22-1 at 8). He also testified that he felt as though he could not leave without answering the deputies' questions. Id.

         Shortly after leaving the airport, Black posted about his interaction with Clarke and the deputies on a public Facebook group page. (Docket #22-1 at 13). His post read:

Just got off a flight from Dallas. Our wonderful Sheriff Clarke was on the flight. I couldn't tell if it was him because he was all decked out in all Cowboys gear, so I asked. When he responded yes, I shook my head at him and moved on. From behind me he asked if I had a problem and I shook my head no again. When we landed at Mitchell International, I had a welcoming party of about six cops and drug/bomb dogs, who questioned me for about 15 minutes before escorting me out. Just posting to let y'all know be careful around our Sheriff, he needs to be in a safe space at all times.

(Docket #22-1 at 13).

         A couple days after the airport incident, Black filed a formal complaint about Clarke with Milwaukee County. (Docket #22-1 at 12). A day or two after that, on January 18, 2017, the Milwaukee County Sherriff's Office Facebook account posted a link to Black's complaint and a comment attributed to Clarke: “Next time [Black] or anyone else pulls this stunt on a plane they may get knocked out. The Sheriff . . . does not have to wait for some goof to assault him. He reserves the reasonable right to pre-empt a possible assault.” See (Docket #22-1 at 15).[7] The next day, Clarke posted on the same Facebook account a meme, reproduced below, that included a picture of Black and the text “Cheer up, snowflake . . . if Sheriff Clarke were to really harass you, you wouldn't be around to whine about it.” (Docket #22-1 at 15 and #30 at 10).[8]

         (IMAGE OMITTED)

         Black testified that he interpreted Clarke's posts as threats, and that they caused him mental and emotional harm. (Docket #22-1 at 17). Black also testified that because of Clarke's posts, he has become the target of threatening and anti-Semitic comments online. Id.

         4. ANALYSIS

         Black brings claims against Clarke under the First, Fourth, and Fourteenth Amendments.[9] Black also brings a Monell claim against Milwaukee County based on Clarke's alleged constitutional violations. The defendants respond by contesting each of the alleged constitutional violations and arguing that, even if the Court finds a violation, Clarke is entitled to qualified immunity.

         The Court's analysis begins with Black's Fourth Amendment claim, as the facts underlying that claim begin the story of this case. The Court then turns to Black's First and Fourteenth Amendment claims, and finally to Black's Monell claim against Milwaukee County. Clarke's entreaty for qualified immunity as to Black's constitutional claims is addressed only where the Court finds a potential constitutional violation.

         4.1 ...

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