CARLSON v. BUKOVIC (September 2, 2010)

June Carlson and her adult handicapped son Paul were shopping at their local Walmart store when Paul scratched himself on a fire hose box. They reported the incident to store personnel and were in the process of completing some forms when things got heated. The store manager eventually felt threatened and the police were called. Officer Bukovic interviewed the manager and the Carlsons. June Carlson, a woman in her 80s, became very upset, raised her voice, and accused the manager of lying -- but refused to cooperate with the Officer's interview. The manager told Officer Bukovic that he wanted Ms. Carlson to leave the store. After Ms. Carlson refused several requests to leave, Officer Bukovic gently placed his hands on her arm to guide her out. She began screaming and flailing about. Eventually, she calmed down and left the store -- and sued. She asserted a § 1983 Monell claim against the City of Darien and a Fourth Amendment excessive force claim against Bukovic. Magistrate Judge Nolan (N.D. Ill.) granted the City's summary judgment motion on the Monell claim. The excessive force claim was tried to a jury, which found that no “seizure” had occured. Carlson appeals.

In their opinion, Judges Ripple, Manion, and Sykes affirmed. The principal issue before the Court was Carlson's argument that the mere touching by Bukovic was a seizure as a matter of law and "per se" unreasonable. The Court rejected the argument. The Fourth Amendment inquiry has two prongs -- whether there was a seizure and, if so, whether it was unreasonable. There are a number of factors that go into the "totality of the circumstances" test to determine whether there was a seizure. Physical contact is one of those factors. But so are the number of officers, the display of a weapon, and the tone of voice. The Supreme Court has held that the purpose of the contact is relevant in physical contact cases. The mere fact that there is a touching or physical contact does not automatically create a seizure. The Court concluded that the district court properly submitted the question to the jury. Given the Court's disposition of the excessive force claim, it also rejected Carlson’s appeal of the Monell claim. There can be no municipal Monell liability without an underlying constitutional violation.