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Strasser v. Ratzmann

United States District Court, E.D. Wisconsin

July 2, 2018

JEFFREY STRASSER, Plaintiff,
v.
ERIC RATZMANN and RAY BOGUST, Defendants.

          ORDER

          LYNN ADELMAN, DISTRICT JUDGE.

         Jeffrey 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.

         I. Evidentiary Error

         First, 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. 2012)).

         During 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.

         Strasser 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.

         Strasser 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.

         II. Verdict Against the Weight of the Evidence

         Second, 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).[1]

         According 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.

         Defendants 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 evidence:

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.

         Defs.' 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.

         The 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, ...


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