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Haze v. Kubicek

United States Court of Appeals, Seventh Circuit

January 30, 2018

Darrell K. Haze, Plaintiff-Appellant,
Mark Kubicek, Defendant-Appellee.

          Argued May 22, 2017

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 13-cv-01344-NJ - Nancy Joseph, Magistrate Judge.

          Before Flaum, Easterbrook, and Sykes, Circuit Judges.

          Sykes, Circuit Judge.

         Darrell Haze was ticketed for disorderly 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.

         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 notwithstanding 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 summary 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 inconsistent. It was not. The lawfulness of the stop and the lawfulness 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 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 something amiss.

         At trial Haze and Kubicek gave sharply conflicting accounts 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 tickets-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 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 profiling.

         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 belligerently 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 identified herself as the person Haze had been fighting with earlier that evening. Officer Kubicek noticed that Haze reeked of alcohol, appeared intoxicated, and seemed unsteady, so the officer leaned him up against a low wall for balance. Haze then winked at Officer Reynolds and threw himself onto the ...

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