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Carlson v. Bukovic

September 2, 2010

JUNE O. CARLSON, PLAINTIFF-APPELLANT,
v.
SCOTT BUKOVIC, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:07-cv-00006-Nan R. Nolan, Magistrate Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge.

ARGUED FEBRUARY 17, 2010

Before RIPPLE, MANION and SYKES, Circuit Judges.

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*fn1 claim against the City for failure to train the officer.*fn2 With respect to these claims, the parties cross-moved for sum-mary 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.*fn3

I. BACKGROUND

A.

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.*fn4

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.*fn5

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 ...


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