Todd Cibulka v. City of Madison ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1658
TODD CIBULKA and SHELLY CIBULKA,
Plaintiffs-Appellants,
v.
CITY OF MADISON, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 18-cv-537 — James D. Peterson, Chief Judge.
____________________
ARGUED FEBRUARY 24, 2021 — DECIDED MARCH 29, 2021
____________________
Before FLAUM, MANION, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Todd and Shelly Cibulka drove to
the University of Wisconsin–Madison to visit their daughter
Emily and enjoy festivities after a Badgers football game. But
the good times took a bad turn. Todd and Shelly spent several
post-game hours heavily drinking at a bar; upon locating
them, Emily ultimately called the police; and Todd ended up
in the county jail.
2 No. 20-1658
Todd and Shelly then sued the police officers for false ar-
rest and excessive force. The district court granted summary
judgment in favor of the officers on qualified immunity
grounds. We agree that the officers are entitled to qualified
immunity and therefore affirm the district court.
I. BACKGROUND
On October 17, 2015, Todd and Shelly Cibulka drove from
their home in Poynette, Wisconsin, to the University of Wis-
consin–Madison, Todd’s alma mater, where their eighteen-
year-old daughter Emily was a freshman. It was homecoming
weekend. The plan was to attend the Badgers football game,
meet up with Emily afterwards, and then drive back to
Poynette with her. Todd and Shelly parked their truck on a
parking ramp near the state capitol and walked over to Camp
Randall Stadium for the 11:00 a.m. game against Purdue.
At about 2:00 p.m., Todd and Shelly left the game and
went to the Library Café & Bar for drinks with friends. They
imbibed for the next several hours. Emily grew impatient be-
cause she wanted to leave Madison, but her parents weren’t
answering their phones. Emily and a friend eventually ven-
tured out to find Todd and Shelly and arrived at the bar at
around 7:00 p.m., just as her parents were leaving.
The four began walking toward the capitol building, and
Todd and Shelly were clearly intoxicated—slurring their
speech, dragging their feet, walking with a sway. Emily asked
Todd for the keys to the truck, but he refused to hand them
over. She asked him where exactly the truck was parked, but
he refused to tell her. She called a cab, but her parents refused
to get in. Todd was giggling. Emily was agitated.
No. 20-1658 3
Agitated enough, in fact, to call the Madison Police De-
partment’s non-emergency number twice for assistance. (The
second call was prompted by Todd’s wandering off and uri-
nating between two houses.) Dispatch reported that Emily
was “very upset”; that her parents were “drinking all day,”
“intox[icated],” “stumbling all over,” “walking away,” and
“refusing to tell her where the truck [wa]s parked”; and that
Emily was afraid “her father w[ould] become more up-
set/start acting out” or “fall into the street.” Because the me-
andering party encroached on two jurisdictions, officers from
both the University of Wisconsin–Madison Police Depart-
ment (“UWPD”) and the Madison Police Department
(“MPD”) were sent to conduct a welfare check.
When Todd and Shelly realized that Emily had called the
police, they sat on a low retaining wall next to Johnson Street
to wait. UWPD Officer Barrett Erwin and MPD Officer Hector
Rivera pulled up at the same time; Rivera took the lead, and
Erwin stayed to assist. Emily, anxious and in tears, told the
officers that her parents had been drinking and stumbling, she
didn’t know where their truck was, her parents wouldn’t get
into a taxi, and her dad wouldn’t give her the keys.
UWPD Officer Corey Johnson and another officer arrived
and joined the conversation. Johnson understood that Emily
was worried about her parents and was trying to figure out
how to get them home safely. Johnson said he could give them
a ride to their truck (wherever it was).
Meanwhile, Erwin went over to talk with Todd and Shelly,
who were still sitting on the retaining wall, but he had a hard
time communicating with them. Then Rivera gave it a try,
with the goal of getting “everybody settled down and some-
where safe.” Rivera asked where their truck was parked;
4 No. 20-1658
Todd vaguely pointed east. The couple was giggly and eva-
sive and would not provide any substantive information
other than that their truck was parked “[n]ear the capitol.”
They wouldn’t answer any more questions and told Rivera
that they were fine. To Rivera, the pair was obviously “drunk
and belligerent.”
Rivera returned to Emily and asked how she felt about
driving her parents back to Poynette. Emily said she’d be okay
with it so long as they sat in the back seat. Emily asked if the
police could keep her parents from leaving and was told that
they were adults who could leave if they wanted to.
Around this time, about ten minutes into the encounter,
Todd stood up from the retaining wall and stepped or stag-
gered forward, toward Johnson Street. Erwin, standing in
front of Todd, thought Todd might tumble into the street,
which was filled with post-game traffic. (Todd admits that he
may have been unsteady on his feet but disputes that he al-
most fell.) Erwin grabbed Todd by the chest, shoulders, and
arm. He told Todd to sit down because he almost fell into the
street. Todd said he was “good” and would not sit down. Er-
win perceived Todd tighten up, clench his fists, and pull his
hands in toward his chest with his elbows out.
Rivera heard the exchange and turned to see Erwin and
Todd standing face to face. (Erwin is five-foot-eight and 160
pounds; Todd is six-foot-three and about 265 pounds.) Rivera
and Johnson came over and joined Erwin in grabbing Todd.
Erwin was calmly instructing, “Just take a seat, Todd.” Todd
replied, “No, I don’t want to,” “I’m not taking a seat, okay?”
Todd tried pushing Erwin away with his elbows, and the of-
ficers maintained their hold. They continued asking Todd to
sit down and he continued to refuse and pull away. Emily
No. 20-1658 5
cried from the sidelines, “They’re helping you, Dad.” Shelly
responded, “No, they’re not helping him.” Emily replied,
“Yes, they are, Mom.”
The officers decided to “decentralize” Todd, a technique
used to bring resisting subjects to the ground to reduce the
risk of harm. Johnson jumped up to get a better hold on Todd,
and the group tumbled to the pavement in a pile. Todd tried
to push himself up and yelled at the officers to get off him.
The officers told him to stop resisting, held him down, and
handcuffed him (using two handcuffs linked together owing
to his size). Todd admitted in his deposition that he was ac-
tively resisting the officers 1 and has claimed that he was try-
ing to break “free from the unlawful holds.”
UWPD Sergeant Jeffrey Ellis arrived to find the scrum un-
folding on the sidewalk. He was debriefed on the situation,
including that Emily was an “absolute disaster.”
Johnson and Erwin asked Todd if he needed medical at-
tention: “Todd, the fight is over. Nobody wants to hurt you.
You’re okay. Where does it hurt? … Does your chest hurt? Do
your arms hurt? Do your knees hurt?” Todd declined medical
attention, and the officers declined Todd’s request that the
handcuffs be removed.
The officers stood Todd up and wanted to put him in a
squad car so that spectators weren’t staring and to generally
stabilize the situation. They walked him over to the car and
1 Todd maintains on appeal that he was only “passively” resisting the
officers. We let his deposition transcript speak for itself. Q: “From the time
that officers first put hands on you until the time that you were put in the
van, is it fair to say that you actively resisted at various points throughout
that interaction on October 17, 2015?” A: “Yes.”
6 No. 20-1658
tried to persuade him to get in. Erwin told Todd that they just
wanted to talk and didn’t plan on taking him anywhere. Todd
put most of his body in the car but would not get in all the
way. Another officer, who is not a defendant, reached in the
opposite door so that Erwin could hand him the seatbelt; the
other officer then applied pressure to Todd’s jaw or neck to
get him in the car. Todd maintains that he was being choked
and yelled, “Get his hands off my neck!” Erwin ordered Todd
into the car and tried pushing him in, but he wouldn’t budge.
Erwin did not want to hurt Todd by physically forcing him
into the car, so he let him get out and Ellis took over. Ellis tried
to reason with Todd for about fifteen minutes. Todd declared
that he was not going to be forced into a police car and was
standing up for his rights. It became evident that Todd was
not going to cooperate, and he was placed under arrest for
disorderly conduct and resisting an officer. He was eventually
lifted into a police transport van and sent off to the county jail.
While not germane to this appeal, Todd’s ordeal went into
overtime. It ended only when he was released from jail at 2:30
the next morning, returned to his truck on the parking ramp,
and smashed through the gate instead of paying the exit fare.
In July 2018, Todd and Shelly filed a complaint under 42
U.S.C. § 1983 against the City of Madison, the individual of-
ficers, and other defendants that have since been dismissed.
Pertinent here, Todd and Shelly alleged that Rivera, Erwin,
Johnson, and Ellis falsely arrested Todd and used excessive
force against him in violation of the Fourth Amendment. In
March 2020, the district court granted summary judgment in
favor of the defendants on the basis that the officers are enti-
tled to qualified immunity. Todd and Shelly appealed.
No. 20-1658 7
II. ANALYSIS
We review the district court’s grant of summary judgment
on qualified immunity grounds de novo. Humphries v. Milwau-
kee County, 702 F.3d 1003, 1006 (7th Cir. 2012) (citing Levin v.
Madigan, 692 F.3d 607, 622 (7th Cir. 2012)). Qualified immun-
ity shields government officials from civil liability for conduct
that “does not violate clearly established statutory or consti-
tutional rights of which a reasonable person would have
known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
“An officer ‘cannot be said to have violated a clearly estab-
lished right unless the right’s contours were sufficiently defi-
nite that any reasonable official in [his] shoes would have un-
derstood that he was violating it,’ meaning that ‘existing prec-
edent … placed the statutory or constitutional question be-
yond debate.’” City & County of San Francisco v. Sheehan, 135 S.
Ct. 1765, 1774 (2015) (alteration in original) (citations omitted)
(first quoting Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014);
and then quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).
This standard protects “all but the plainly incompetent or
those who knowingly violate the law.” Malley v. Briggs, 475
U.S. 335, 341 (1986).
Todd and Shelly fail to overcome qualified immunity with
respect to both their false-arrest and excessive-force claims.
We’ll tackle these claims in turn.
A. False-Arrest Claim
The Cibulkas argue that Todd’s arrest for disorderly con-
duct and resisting an officer was unlawful because there was
no probable cause to believe he committed those offenses.
8 No. 20-1658
Of course, “[t]he existence of probable cause to arrest is an
absolute defense to any § 1983 claim against a police officer
for false arrest.” Abbott v. Sangamon County, 705 F.3d 706, 713–
14 (7th Cir. 2013) (citing Mustafa v. City of Chicago, 442 F.3d
544, 547 (7th Cir. 2006)). And an officer has probable cause
when, “given the ‘totality of the circumstances,’ a reasonable
officer would believe that the suspect had committed a
crime.” Gibbs v. Lomas, 755 F.3d 529, 537 (7th Cir. 2014) (quot-
ing Jones v. City of Elkhart, 737 F.3d 1107, 1114 (7th Cir. 2013)).
Moreover, “a defendant is entitled to qualified immunity
in a false-arrest case when, if there is no probable cause, ‘a
reasonable officer could have mistakenly believed that prob-
able cause existed.’ Thus, as long as [the officers] reasonably,
albeit possibly mistakenly, believed that probable cause ex-
isted to arrest [Todd], then [they are] entitled to qualified im-
munity.” Fleming v. Livingston County, 674 F.3d 874, 880 (7th
Cir. 2012) (citations omitted) (quoting Pierson v. Ray, 386 U.S.
547, 555–58 (1967)). This is the “arguable probable cause”
standard.
Here, it was eminently reasonable for the officers to be-
lieve there was probable cause to arrest Todd for disorderly
conduct and for resisting an officer. Under Wisconsin law, a
person is guilty of resisting an officer if he “knowingly resists
or obstructs an officer while such officer is doing any act in an
official capacity and with lawful authority.” Wis. Stat.
§ 946.41(1). And a person is guilty of disorderly conduct if he,
“in a public or private place, engages in violent, abusive, in-
decent, profane, boisterous, unreasonably loud or otherwise
disorderly conduct under circumstances in which the conduct
tends to cause or provoke a disturbance.” Id. § 947.01(1).
No. 20-1658 9
Todd’s conduct, which he admitted in his deposition
amounted to active resistance (though which he now says was
merely passive resistance), was sufficient for the officers to
have reasonably believed that Todd was resisting the officers
or engaging in disorderly conduct. The officers therefore had
arguable probable cause to arrest Todd. 2
The Cibulkas ask us to reject this conclusion because the
police officers themselves created the disturbance and were
not acting with lawful authority. That argument falls apart
given our following discussion and need not be discussed in-
dependently.
We therefore agree with the district court that the officers
are entitled to qualified immunity with respect to Todd’s
false-arrest claim.
B. Excessive-Force Claim
To overcome qualified immunity in an excessive-force
case, the plaintiff must either (1) “identif[y] a ‘closely analo-
gous case that established a right to be free from the type of
force the police officers used on him,’” or (2) show “that the
force was so plainly excessive that, as an objective matter, the
police officers would have been on notice that they were vio-
lating the Fourth Amendment.” Weinmann v. McClone, 787
2 Todd argues that whether there was probable cause is a question of
fact for the jury. But whether arguable probable cause supports qualified
immunity “is a pure question of law” to be decided by the court. Thayer v.
Chiczewski, 705 F.3d 237, 247 (7th Cir. 2012). At any rate, a court may de-
cide the issue of probable cause where “there is no room for a difference
of opinion concerning the facts or the reasonable inferences to be drawn
from them.” Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 473 (7th Cir.
1997) (quoting Sheik–Abdi v. McClellan, 37 F.3d 1240, 1246 (7th Cir. 1994)).
10 No. 20-1658
F.3d 444, 450 (7th Cir. 2015) (quoting Findlay v. Lendermon, 722
F.3d 895, 899 (7th Cir. 2013)).
The Cibulkas admit that they “are unable to cite … a case
that clearly applies to the level of force exercised by the de-
fendant officers … because none exist.” Admissions of this
sort are often fatal to plaintiffs’ attempts to overcome quali-
fied immunity. See, e.g., Liker v. Marino, 78 F.3d 582 (5th Cir.
1996) (“The plaintiffs concede that they can point to no case
establishing that a sheriff cannot [engage in the challenged
conduct]. There being no clearly established right, the defend-
ants are entitled to qualified immunity.”); Post v. City of Fort
Lauderdale, 7 F.3d 1552, 1560 (11th Cir. 1993), modified, 14 F.3d
583 (11th Cir. 1994) (“As plaintiffs conceded at oral argument,
no case clearly establishes that civilians have a duty to inter-
vene. [The defendant] is thus entitled to qualified immun-
ity.”).
But the Cibulkas argue that the analysis should not end
there for two main reasons. First, they contend that “a reason-
able officer should not be able to assume his conduct is rea-
sonable … unless there is case law affirmatively so stating.”
They cite no support for this argument, which is unsurprising
because that’s plainly not the law. “In this circuit, once a de-
fendant claims qualified immunity, the burden is on the plain-
tiff to show that the right claimed to have been violated was
clearly established.” Marshall v. Allen, 984 F.2d 787, 797 (7th
Cir. 1993) (citing, among other cases, Pounds v. Griepenstroh,
970 F.2d 338, 342 (7th Cir. 1992)). We will not flip this well-
established burden on its head.
Second, the Cibulkas employ the expected last-ditch argu-
ment against qualified immunity and claim that the officers’
constitutional violations were so obvious that the Cibulkas
No. 20-1658 11
don’t need to cite a closely analogous case. But they misplay
this argument, too, because they still need to identify “some
settled authority that would have shown a reasonable officer
in [these officers’] position that [their] alleged actions violated
the Constitution.” Leiser v. Kloth, 933 F.3d 696, 702 (7th Cir.
2019) (citing Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)); accord
Howell v. Smith, 853 F.3d 892, 897 (7th Cir. 2017). In other
words, they must show that “a general constitutional rule al-
ready identified in the decisional law … appl[ies] with obvi-
ous clarity to the specific conduct in question,” United States
v. Lanier, 520 U.S. 259, 271 (1997), so that “a reasonable person
necessarily would have recognized it as a violation of the
law,” Leiser, 933 F.3d at 701 (quoting Howell, 853 F.3d at 897).
If anything is obvious about this case, however, it’s that
the officers’ conduct did not obviously violate the Constitu-
tion. Let’s take a look at the instant replay.
First, the officers grabbed Todd when he stood up from
the retaining wall and moved toward Johnson Street. Todd
disputes that he was going to fall into the street, but a reason-
able officer could certainly have thought that Todd was in dan-
ger of toppling headlong into traffic and potentially harming
himself (or disappointed Purdue fans driving back to Indi-
ana). Erwin testified that he did think Todd was about to fall
and grabbed him for that reason. The Cibulkas cite no “settled
authority that would have shown a reasonable officer” that
grabbing an inebriated individual for his own safety is a con-
stitutional foul. Id. at 702. And it is not the least bit surprising
that such cases do not exist. See Winter v. Adams, 254 F.3d 758,
764 (8th Cir. 2001) (holding that police are not “required
simply to walk away … thus permitting a possibly intoxicated
12 No. 20-1658
individual to … potentially harm[] himself and other citi-
zens”).
Next, the officers took down and handcuffed Todd after
he admittedly began resisting and refused to sit down (and
after, we repeat, arguable probable cause to arrest was
formed). Again, we fail to see how this routine police activity
is an obvious constitutional violation. Indeed, cases involving
arguably more forceful conduct indicate otherwise. E.g., Daw-
son v. Brown, 803 F.3d 829, 834 (7th Cir. 2015) (holding that an
officer “could reasonably believe it was necessary to tackle” a
72-year-old man who was nonviolently interfering with his
son’s arrest); Rooni v. Biser, 742 F.3d 737, 739, 743 (7th Cir.
2014) (holding that an officer was entitled to qualified immun-
ity where he “grabbed [the resisting plaintiff] by the back of
the neck and jerked him back” while handcuffing him);
Findlay v. Lendermon, 722 F.3d 895, 898–900 (7th Cir. 2013)
(holding that an officer who tackled a nonviolent suspect was
entitled to qualified immunity).
Finally, the officers huddled with Todd and tried to per-
suade him to get into a squad car to de-escalate the situation.
When those efforts failed, they used incremental levels of
force to get him into the car. And when those efforts failed too,
they called a timeout and let Todd get out. Once again, the
Cibulkas fail to convince us that this is one of those “rare cases
… where the state official’s alleged conduct is so egregious
that it is an obvious violation of a constitutional right.” Leiser,
933 F.3d at 702 (citing Abbott, 705 F.3d at 723–24); see Brant v.
Volkert, 72 F. App’x 463, 466 (7th Cir. 2003) (nonprecedential)
(“[T]he officers’ tactics in placing [the plaintiff] in the police
car may have been clumsy or imprudent, but they were not
objectively unreasonable.”).
No. 20-1658 13
In the end, “it should go without saying that this is not an
‘obvious case’ where ‘a body of relevant case law’ is not
needed.” District of Columbia v. Wesby, 138 S. Ct. 577, 591 (2018)
(quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)). Maybe
the Cibulkas’ case would be more persuasive if, say, the offic-
ers started gratuitously smashing Todd’s ribs. Rambo v. Daley,
68 F.3d 203, 207 (7th Cir. 1995) (“The Constitution clearly does
not allow police officers to force a handcuffed, passive suspect
into a squad car by breaking his ribs.”). But they stopped well
short of such unnecessary roughness. 3
That’s enough to decide the Cibulkas’ excessive-force
claim. We need not take up the parties’ offer to consider the
“community caretaker doctrine.” See Cady v. Dombrowski, 413
U.S. 433 (1973). We note only that the pertinent cases from the
Supreme Court and this court shed virtually no light on how
that doctrine might apply to this case, and Wisconsin cases
(which we may consider, Sutterfield v. City of Milwaukee, 751
F.3d 542, 553 (7th Cir. 2014)) have applied it to justify the war-
rantless seizure of an individual in public, see In re Kelsey C.R.,
626 N.W.2d 777 (Wis. 2001).
If anything, these cases make it even more reasonable for
an officer to believe that the conduct here was fair game and
violated no clearly established rights. But ultimately, the com-
munity caretaker doctrine is beside the point. The only thing
that matters is that the Cibulkas cite neither “‘controlling au-
thority’ [n]or ‘a robust consensus of cases of persuasive au-
thority’” that establish the right to be free from the conduct in
3 Todd makes repeated reference to being “choked.” Accepting that
disputed fact as true, as we must, it is nevertheless irrelevant, for the of-
ficer who Todd claims choked him is not a defendant in this case.
14 No. 20-1658
this case, Wesby, 138 S. Ct. at 589–90 (quoting al–Kidd, 563 U.S.
at 741–42), and the officers’ conduct was not “so egregious
that it is an obvious violation of a constitutional right,” Leiser,
933 F.3d at 702 (citing Abbott, 705 F.3d at 723–24).
Qualified immunity is therefore proper with respect to the
Cibulkas’ excessive-force claim.
III. CONCLUSION
The officers are entitled to qualified immunity because at
no point did they violate Todd Cibulka’s clearly established
rights. For that reason, we AFFIRM the district court’s deci-
sion granting summary judgment in favor of the defendants.