By: dmc-admin//September 3, 2010//
Civil Rights
Excessive force
Mere physical contact by a police officer does not automatically qualify as a seizure.
“[T]he district court correctly submitted the matter to the jury. Even accepting the evidence in the light most favorable to Officer Bukovic, we cannot characterize the situation as the sort of de minimis touching that, as a matter of law, has no Fourth Amendment implications. There certainly was evidence of record that would have permitted the jury to determine that a seizure in fact did take place. On the other hand, the jury also was entitled to reach the opposite conclusion: Officer Bukovic’s contact with Ms. Carlson’s arm may have been so light and so momentary that it did not convey, to the objective observer, a demonstration of anything more than an encouragement that she leave the area. We must remember that police officers find themselves in a myriad of contentious, and potentially explosive, situations where in an effort to defuse the situation, a combination of verbal declarations and gestures must be employed. When considered in context, such actions may be more exhortatory than commanding in nature. While it could have determined otherwise, we believe that the jury was entitled to determine that, at the time he touched Ms. Carlson’s arm, Officer Bukovic’s action was just this type of gesture: more exhortatory than commanding. The appropriate characterization of this situation was a question for the jury after it had heard all the evidence. Cf. Acevedo, 457 F.3d at 725 (concluding that the question of whether an officer seized an individual by punching him in the face was a question for the jury).”
Affirmed.
09-2578 Carlson v. Bukovic
Appeal from the United States District Court for the Northern District of Illinois, Nolan, Mag. J., Ripple, J.