United States District Court, E.D. Wisconsin
ADELMAN, DISTRICT JUDGE.
Strasser brought this action under 42 U.S.C. § 1983
against Milwaukee police officers Eric Ratzmann and Ray
Bogust claiming that Ratzmann used excessive force against
him and that Bogust failed to intervene to prevent
Ratzmann's use of excessive force. Strasser's claims
were tried to a jury on March 26 and March 27, 2018. The jury
returned a verdict in favor of the defendants, and the court
entered judgment accordingly. Strasser moves for a new trial
on two grounds that I address in turn.
Strasser argues that I erred in excluding certain evidence
from trial. But, “[u]nless justice requires otherwise,
no error in admitting or excluding evidence . . . is ground
for granting a new trial.” Fed.R.Civ.P. 61. “A
new trial is warranted only if the error has a substantial
and injurious effect or influence on the determination of a
jury, and the result is inconsistent with substantial
justice.” Whitehead v. Bond, 680 F.3d 919, 930
(7th Cir. 2012) (quoting Cerabio LLC v. Wright Med.
Tech., Inc., 410 F.3d 981, 994 (7th Cir. 2005)).
“Evidentiary errors satisfy this standard only when a
significant chance exists that they affected the outcome of
the trial.” Id. (quoting E.E.O.C. v. Mgmt.
Hosp. of Racine, Inc., 666 F.3d 422, 440 (7th Cir.
trial, Strasser learned that defendants had not disclosed
that Ratzmann was suspended without pay for 33 working days
in September 2017 for violating the Milwaukee Police
Department's Code of Conduct by failing to treat the
public with courtesy and professionalism and failing to
activate his body-worn camera. Strasser moved to sanction
defendants for not disclosing Ratzmann's suspension
during discovery, to question Ratzmann about his suspension
outside the presence of the jury, and to admit evidence of
the suspension at trial. I denied Strasser's motions
citing a prior order in this case in which I granted
defendants' motion in limine to exclude evidence of other
alleged misconduct and uses of force by Ratzmann as
inadmissible character evidence based on other acts,
Fed.R.Evid. 404(b)(1), and because whatever probative value
the evidence might have had was substantially outweighed by a
danger of unfair prejudice, confusing the issues, or
misleading the jury, Fed.R.Evid. 403.
argues that the nature and severity of Ratzmann's
suspension “makes it likely [that] some allegation of
use of force was at issue” and that, by excluding
evidence of the suspension from trial, I denied him the
opportunity to “argue to the jury [that] nothing short
of a jury verdict could deter [Ratzmann] from additional
improper uses of force” in the future. Pl.'s
Motion, ECF No. 101, at 3. Even assuming Ratzmann was
suspended in 2017 due to a use of force, evidence of that
“wrong” or “other act” would have
been inadmissible to prove that he used excessive force
against Strasser in 2012, as Strasser claimed. Fed.R.Evid.
404(b)(1). Indeed, such evidence would only have been
admissible for purposes of the jury's assessment of
punitive damages against Ratzmann, which could have been
based on “the likelihood that [he] would repeat the
conduct absent an award of punitive damages, ” see
Alexander v. City of Milwaukee, 474 F.3d 437,
454 (7th Cir. 2007). As the jury found that Ratzmann was not
liable for using excessive force against Strasser, it never
reached the issue of damages. Therefore, excluding evidence
of Ratzmann's 2017 suspension could not have permissibly
affected the outcome of the trial, even if I did somehow err
in excluding it.
also states that he “was denied key impeachment
evidence about Defendant Ratzmann's 33-day suspension in
2017, ” Pl.'s Motion, supra, at 6, but he
does not elaborate or explain how any evidence that
defendants failed to disclose or that I excluded from trial
would have been admissible for purposes of attacking any
witness's credibility. See Fed. R. Evid. 607.
“Perfunctory and undeveloped arguments are waived, as
are arguments unsupported by legal authority, ”
M.G. Skinner & Assocs. Ins. Agency, Inc. v.
Norman-Spencer Agency, Inc., 845 F.3d 313, 321 (7th Cir.
2017), so Strasser's bald assertion that I or defendants
deprived him of “impeachment evidence” is
insufficient to show that he is entitled to a new trial.
Verdict Against the Weight of the Evidence
Strasser argues that the verdict was against the weight of
the evidence. In deciding whether to “grant a new trial
on weight grounds, ” a district court “has the
power to get a general sense of the weight of the evidence,
assessing the credibility of the witnesses and the
comparative strength of the facts put forth at trial.”
Mejia v. Cook County, 650 F.3d 631, 633 & n.1
(7th Cir. 2011). “If, after evaluating the evidence,
the district court is of the opinion that the verdict is
against the manifest weight of the evidence, a new trial is
appropriate.” Id. at 633. The “manifest
weight” standard reflects “a certain deference to
the jury's conclusions, ” as does the fact that the
district court is, for the most part, “bound to the
same evidence the jury considered.” Id. at 633
& n.1. Ultimately, though, “[a] motion for a new
trial is committed to the sound discretion of the judge who
presided over the trial.” Johnson v. Gen. Bd. of
Pension & Health Benefits of United Methodist
Church, 733 F.3d 722, 730 (7th Cir. 2013).
to Strasser, video evidence of Ratzmann's use of force
against him, which was repeatedly shown at trial, establishes
that Ratzmann punched him in the back of the head twice and
slapped him in the face while he was lying prone on the
ground, either not resisting or only passively resisting.
Because the Constitution permits police officers to use
“only a minimal amount of force” against
“nonresisting or passively resisting suspects, ”
see Abbott v. Sangamon County, 705 F.3d 706, 732
(7th Cir. 2013), Strasser says, Ratzmann's use of force
against him was excessive and, therefore, unconstitutional.
Indeed, he argues, “[n]o rational jury could view that
evidence and conclude that the force [used] . . . was
reasonable.” Pl.'s Reply, ECF No. 103, at 1.
argue that the image quality of the video is poor and that,
at any rate, it does not show the entire series of events
that led to the use of force, as established by other
At trial, multiple witnesses testified that the plaintiff
turned his car, a potentially deadly weapon, and drove
directly at the approaching officers. The [defendants]
testified that they initially approached the plaintiff's
vehicle after learning that he refused to pull over his car
for [another officer]. Officers Ratzmann and Bogust both
testified at trial that the plaintiff then refused orders to
exit the vehicle. The officers also testified that the
plaintiff was reaching towards the center console, a location
where a weapon may be stored, when they tried to get him out
of the vehicle. The officers further testified that the
plaintiff refused to give them his hands and was reaching
towards his waistband, where a weapon could be located, when
the focus strikes were administered.
Opp'n Br., ECF No. 102, at 7. Moreover, defendants note
that, while Strasser claims that he was “struck . . .
in the head, ” defendants “testified at trial
that [he] was instead struck in the shoulder, ” which
makes sense given the lack of evidence at trial of “any
lasting injuries . . . consistent with a head injury.”
Id. Thus, defendants say, the evidence supports the
jury's verdict that Ratzmann did not use excessive force.
evidence presented at trial is generally clear and consistent
as to many of the events leading up to Strasser's
physical altercation with defendants. For instance, Strasser
testified, and defendants did not meaningfully dispute, that
he was driving a friend's car, that he was unfamiliar
with many of its features, and that he was under the
influence of alcohol. Similarly, defendants and other
officers testified, and Strasser did not seriously dispute,