Hardy v. City of Milwaukee et al

Filing 251

ORDER signed by Judge J P Stadtmueller on 2/27/15: granting in part and denying in part 224 Defendants' Motion to Alter or Amend the Judgment and 226 Defendants' Motion for New Trial -- the Rule 59 motions are granted insofar as the C ourt is obliged to reduce the punitive damages award to $54,000.00 or to grant a new trial on the issue of punitive damages; within 21 days of the entry of this order, Plaintiff shall file a letter with the Court either consenting to the reduced punitive damages award or requesting a new trial; in the event that Plaintiff elects to accept the reduced punitive damages award, the Court will immediately enter an amended judgment reflecting the reduced award; in the event that Plaintiff elects a new trial, the Court will coordinate with the parties to schedule the trial to occur forthwith -- the Rule 59 motions are denied in all other respects; referring 219 Plaintiff's Motion for Fees and 220 Bill of Costs to Magistrate Judge Aaron Goodstein for mediation; denying as moot 232 Plaintiff's Motion to Adjourn adjudication of his bill of costs; and granting 237 Plaintiff's Motion to Amend or Correct his bill of costs. See Order. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LEO HARDY,
Plaintiff,
v.

Case No. 13-CV-769-JPS

CITY OF MILWAUKEE,
OFFICER MICHAEL GASSER,
OFFICER KEITH GARLAND, JR., and
OFFICER MICHAEL VALUCH, JR.,

ORDER

Defendants.
The plaintiff, Leo Hardy, filed suit in this case on July 10, 2013. He
alleged that a number of Milwaukee Police Department (“MPD”) officers
stopped him without reasonable suspicion, strip searched him, and falsely
arrested him, and that no officer acted to intervene. He sued those officers
under 42 U.S.C. § 1983, asserting that the stop, search, arrest, and failure to
intervene violated his constitutional rights. Mr. Hardy also sued several MPD
supervisors on a supervisory liability theory and the City of Milwaukee (“the
City”) for indemnification.
Over the course of pretrial proceedings, Mr. Hardy’s claims were
narrowed substantially. By the time of trial, his claims remained only against
Officers Michael Gasser, Keith Garland, and Michael Valuch.1 Mr. Hardy
alleged that Officers Gasser and Garland: stopped him and searched him
without reasonable suspicion; strip searched him and/or failed to intervene
to prevent the other officer from strip searching him; and falsely arrested

1

Mr. Hardy’s indemnification claim against the City also remained
outstanding, but the Court will ignore that claim because the City agreed that it
would indemnify the defendant officers. (Docket #208).

him. Mr. Hardy asserted that Officer Valuch strip searched him and/or failed
to intervene to prevent others from doing so. Mr. Hardy sought
compensatory and punitive damages for these alleged violations.
Mr. Hardy took his claims before a jury and prevailed in part.
Specifically, the jury found that Officers Gasser and Garland lacked a
reasonable suspicion to stop and frisk Mr. Hardy and that they falsely
arrested him. However, the jury rejected Mr. Hardy’s contention that he had
been strip searched and likewise rejected his failure to intervene claims. The
jury awarded Mr. Hardy the following damages:
$5,000.00 in compensatory damages on his stop-and-frisk claims
($2,500.00 apiece against Officers Gasser and Garland);
$1,000.00 in compensatory damages on his false arrest claim (jointly
against Officers Gasser and Garland); and
$500,000.00 in punitive damages ($250,000.00 apiece against Officers
Gasser and Garland).
The City2 filed post-trial motions. It requests a new trial (Docket #226)
or, in the alternative, an altered or amended judgment (Docket #224). In
support of its request for a new trial, pursuant to Rule 59(a) of the Federal
Rules of Civil Procedure, the City asserts that the Court made several
evidentiary errors (Docket #227 at 7–16); that the punitive damages issue
should be re-tried (Docket #227 at 16–19); and that the jury was confused or
biased (Docket #227 at 20–21). In support of its motion for an altered or
amended judgment, pursuant to Rule 59(e), the City argues that the Court
should significantly reduce the punitive damages award (Docket #225 at
7–16) and strike the jury’s false arrest finding (Docket #225 at 17–18).

2

The Court will hereinafter refer to the remaining defendants as “the City,”
because the City provided representation for them.

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After those motions were fully briefed, the Court held a conference
with the parties and, with the parties’ consent, referred the case to the
assigned magistrate judge for further mediation. (Docket #245, #246). That
mediation ultimately proved unsuccessful. (Docket #249, #250).
Thus, the parties’ post-trial motions are now before the Court and
ready for decision. The Court will address each separately, beginning with
the City’s motion for a new trial.3
1.

RULE 59(a) MOTION FOR A NEW TRIAL
Rule 59(a) provides that the Court “may, on motion, grant a new trial

on all or some of the issues…after a jury trial, for any reason for which a new
trial has heretofore been granted in an action at law in federal court.” Fed. R.
Civ. P. 59(a)(1)(A). This is generally accepted to mean that the Court “may
only order a new trial if the jury’s verdict is against the manifest weight of
the evidence,…or if for other reasons the trial was not fair to the moving
party.” Willis v. Lepine, 687 F.3d 826, 836 (7th Cir. 2012) (quoting Marcus &
Millichap Inv. Servs. v. Sekulovski, 639 F.3d 301, 313 (7th Cir. 2011); Pickett v.
Sheridan Health Care Ctr., 610 F.3d 434, 440 (7th Cir. 2010)) (internal quotation
marks omitted).
The City’s Rule 59(a) motion is rather confusing. It is untethered from
the Rule 59(a) standard set forth above. It identifies alleged legal errors that
may have affected the fairness of the trial (the Court’s evidentiary rulings)
and alleged evidence of unfairness (the jury’s verdict), but never ties those
items together into a cohesive argument in favor of a new trial. Instead, it

3

Rather than provide a detailed factual discussion, the Court will assume the
reader’s familiarity with its prior orders on substantive motions (Docket #41, #93)
and the course of the trial (see Docket #214, #215, #216, #217, #218). Where necessary
for discussion, the Court will provide relevant facts within its analysis of the issues.

Page 3 of 56

appears that, as Mr. Hardy puts it, the City’s “motion for a new trial is at
bottom an attempt to remit the jury’s punitive damages award.” (Docket
#238 at 3).
In the end, as best the Court can discern, the City’s motion for a new
trial relates almost entirely to the fairness aspect of the Rule 59(a) standard.
In asserting that the Court committed evidentiary errors, the City is
essentially contending that it was deprived of a fair trial because the
admitted evidence improperly prejudiced the jury. The City also argues that
the size of the award, itself, is evidence that the trial was unfair. Finally, the
City posits that the jury was somehow irrational or inflamed, such that the
verdict it rendered was unfair.
Despite the City’s focus on the fairness aspect of Rule 59(a), the Court
will address that Rule’s evidentiary aspect, specifically whether the jury’s
findings were against the manifest weight of the evidence. Thereafter, the
Court will address the more important issues regarding fairness.
1.1

Weight of the Evidence

For the most part, the City never asserts that the jury’s verdict was
against the manifest weight of the evidence. Nor could it. The Court should
“set aside a verdict as contrary to the manifest weight of the evidence only
if no rational jury could have rendered the verdict.” Lewis v. City of Chicago
Police Dep’t, 590 F.3d 427, 440 (7th Cir. 2009). That high bar has not been met
here.
There are several portions of the jury’s verdict that the City suggests
were against the manifest weight of the evidence: the stop-and-frisk portion;
the false arrest portion; and the punitive damages portion.

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1.1.1

Stop-and-Frisk Claim

In this case, the jury’s verdict in Mr. Hardy’s favor on the stop-andfrisk claim was entirely supported by the evidence, rather than against it in
any way. In the Court’s view, a preponderance of the evidence amply
demonstrated that Officers Gasser and Garland lacked any reasonable
suspicion to stop and search Mr. Hardy.
Officers Gasser and Garland attempted to justify their initial stop of
Mr. Hardy by providing shifting reasons for the stop. (Compare Docket #215
at 185:7–192:19, with Docket #216, 463:15–468:20). Perhaps it was for
investigatory purposes (Docket #215 at 225:10–226:23), but then Mr. Hardy
should have been free to leave or to decline to cooperate, see, e.g., United
States v. Tyler, 512 F.3d 405, 409 (7th Cir. 2008), which he was not. Perhaps it
was because Officer Gasser smelled marijuana on Mr. Hardy (Docket #215 at
185:7–192:19), but Officer Garland testified that he did not smell marijuana
(Docket #216 at 464:13–23) and, in the end, no officer found marijuana or
drug paraphernalia on Mr. Hardy or in his car (Docket #215 at
191:22–192:15). Perhaps the officers believed that Mr. Hardy was carrying a
gun in violation of his probation (see, e.g., Docket #216 at 452:6–9,
465:10–466:8), but the incident report made no mention of such possibility
and the officers’ actions were not consistent with such a belief (Docket #216
at 465:10–466:8). Mr. Hardy did not commit any crimes or traffic violations.
(Docket #216 at 457:2–7).
Given that the officers could not identify any reason for a stop,
together with the fact that their inconsistent testimony significantly reduced

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their credibility,4 there was sufficient evidence from which the jury could
reach its verdict in favor of Mr. Hardy on his stop-and-frisk claim. Simply
put, the evidence showed that the officers did not know—at the time of the
stop or at the time of trial—why they stopped Mr. Hardy. The Court finds it
exceedingly likely that Officers Gasser and Garland did not formulate their
offered justifications until after the stop and search of Mr. Hardy had already
occurred. The verdict evidences the jury’s reasoned belief that this was the
case.
For these reasons, the Court concludes that there was sufficient
evidence to support the jury’s verdict on Mr. Hardy’s stop-and-frisk claims.
To the extent that the City’s motion suggests otherwise, the Court must deny
it.
1.1.2

False Arrest Claim

In its motion for a new trial, the City argues (rather obliquely) that the
jury’s false arrest finding is against the manifest weight of the evidence. (See,
e.g., Docket #227 at 19, 21). This argument, however, relates more to the legal
underpinnings of Mr. Hardy’s false arrest claim than to the underlying
evidence. The City appears to acknowledge this, having set forth the
argument in much greater detail in its Rule 59(e) motion to alter or amend
the judgment. That being the case, the Court will wait to address the
argument until it addresses the City’s Rule 59(e) motion in Section 2.1, infra.
1.1.3

Punitive Damages Award

The jury’s award of punitive damages is the only portion of the
verdict that the City clearly challenges on the basis of the sufficiency of the

4

The Court notes that the officers’ credibility was even further diminished
by Mr. Hardy’s counsel’s powerful examination of them as to why they had Mr.
Hardy’s car towed. (Docket #215 at 194:15–196:19; Docket #216, 481:25–490:16).

Page 6 of 56

evidence.5 (See Docket #227 at 16–19). The City posits that “Mr. Hardy did not
present sufficient evidence to prove evil motive or intent or reckless or
callous indifference on the part of Officers Gasser and Garland in the initial
stop and the decision to conduct a pat-down search of the Plaintiff.” In
support, it points out that neither Officer Gasser nor Officer Garland knew
Mr. Hardy prior to the day in question and acted quickly in stopping and
searching Mr. Hardy. (Docket #227 at 18 (citing Docket #215 at 185:23–186:3;
Docket #217 at 666:15–19)).
Under the Smith standard for punitive damages in 42 U.S.C. § 1983
cases, “[a] jury may award punitive damages…in § 1983 actions when it finds
conduct motivated by evil intent or involving reckless or callous indifference
to the federally-protected rights of others.” Erwin v. Cty. of Manitowoc, 872
F.2d 1292, 1299 (7th Cir. 1989) (citing Smith v. Wade, 461 U.S. 30, 45–49 (1983)).
See also Marshall ex rel. Gossens v. Teske, 284 F.3d 765, 772 (7th Cir. 2002) (citing
Colter v. Vitale, 882 F.2d 1286, 1289 (7th Cir. 1989)). This standard is satisfied
when the “defendant actually derive[d] satisfaction from hurting the
plaintiff,” or, “while not having any particular desire to hurt the plaintiff,
trample[d] on the plaintiff’s rights in a fashion that can fairly be called
reckless, to accomplish his own aims.” Soderbeck v. Burnett Cty., Wis., 752
F.2d 285, 289 (7th Cir. 1985). In Kolstad v. American Dental Ass’n, the
Supreme Court expounded upon the Smith standard and used it in the
context of 42 U.S.C. § 1981a claim. Kolstad, 527 U.S. 526, 534–36 (1999) (“We
gain understanding of the meaning of the terms ‘malice’ and ‘reckless

5

In analyzing this issue, the Court’s focus is upon determining whether the
evidence in this case allows for an award of punitive damages against Officers
Gasser and Garland—not whether the amount of the award issued by the jury was
appropriate.

Page 7 of 56

indifference’ as used in § 1981a, from this Court’s decision in Smith[, 461 U.S.
30].”) Kolstad noted that Smith “at a minimum required recklessness in its
subjective form.” Kolstad, 527 U.S. at 536 (citing Smith, 461 U.S. at 45–48). The
Seventh Circuit, in the context of a 42 U.S.C. § 1981a claim, has further
clarified this standard:
the plaintiff must show that the employer acted with malice or
reckless indifference toward the employee’s rights under
federal law. A plaintiff may satisfy this element by
demonstrating that the relevant individuals knew of or were
familiar with the anti-discrimination laws but nonetheless
ignored them or lied about their discriminatory activities
E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 835 (7th Cir. 2013) (quoting Kolstad,
527 U.S. at 533–46; Bruso v. United Airlines, Inc., 490 U.S. 228, 253 (1989))
(quotations omitted). In applying that formulation to the circumstances of
this case, the Court will determine whether the officers “knew of or were
familiar with the [Constitutional] laws but nonetheless ignored them or lied
about their…activities.” See AutoZone, 707 F.3d at 835.
With that standard in mind, it is clear that there was sufficient
evidence to support a punitive damages award against Officers Gasser and
Garland. The officers, having been trained on appropriate police practices,
were clearly aware of the Constitutional standard of “reasonable suspicion”
necessary for a stop and search. Officer Garland testified to that fact. (Docket
#216 at 463:18–24). Yet, despite their awareness of the law, they ignored the
law, stopping and searching Mr. Hardy without any reasonable suspicion.
See Section 1.1.1, supra. Thereafter, they lied about their basis for the stop,
creating post-hoc justifications for the incident report and rehashing those
post-hoc justifications in depositions and at trial. This evidence weighs
strongly in favor of an award of punitive damages.

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Meanwhile, the Court is not swayed by the City’s evidence against the
award of punitive damages. To begin, the fact that the officers did not know
Mr. Hardy prior to the day in question is largely irrelevant. It may go to the
officers’ state of mind, but nothing in Smith or its progeny require that the
officers harbored some specific animus towards Mr. Hardy, himself.6 See, e.g.,
Smith, 461 U.S. at 45–49; AutoZone, 707 F.3d at 835. On the other hand, the
officers’ quick action is more relevant to the Smith determination. It is
probative of the fact that, perhaps, in their haste they believed that they had
reasonable suspicion to search Mr. Hardy. However, even giving that
contention significant credit, the Court still could not find that “no rational
jury” could have discounted it to side with the opposing evidence.
In the end, in light of all of the evidence, the Court finds that the jury
acted rationally in determining that the officers acted with reckless or callous
indifference to Mr. Hardy’s rights. There was ample evidence in favor of such
a finding and, at best, evidence of slightly lesser weight opposing it. Thus, the
jury’s award of punitive damages under the Smith standard was not against
the manifest weight of the evidence. Thus, Rule 59(a) relief on that basis
would be inappropriate and the Court will deny the City’s motion in that
regard.
1.2

Fairness

As the Court has already noted, the main thrust of the City’s motion
for a new trial is that the trial was not fair, due to erroneous evidentiary
rulings or jury confusion or bias. The City also argues that the jury’s
substantial award of punitive damages is evidence that the trial was unfair.

6

And with good reason; otherwise, defendants could escape punitive
damages by showing that they lacked intent to harm any specific person, even if
they generally intended serious harm to some random person.

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The Court will address each of those arguments in turn. Further, while the
City did not specifically argue as much, the Court will address whether the
cumulative effect of all of the alleged errors (even if they were harmless,
standing alone) justifies a new trial. See, e.g., Venson v. Altamirano, 749 F.3d
641, 658 (7th Cir. 2014); Barber v. City of Chicago, 725 F.3d 702, 715 (7th Cir.
2013).7
In deciding whether a new trial is appropriate, the Court must be
guided by the principle that “civil litigants are entitled to a fair trial, not a
perfect one”; the Court should decline to order a new trial “unless there was
an error that caused some prejudice to the substantial rights of the parties.”
Lemons v. Skidmore, 985 F.2d 354, 357 (7th Cir. 1993) (citing Chicago Council of
Lawyers v. Bauer, 522 F.2d 242, 248 (7th Cir. 1975), cert. denied, 427 U.S. 912
(1976)).
1.2.1

Evidentiary Issues

The City argues that the Court made several evidentiary errors during
the course of trial. Specifically, the City challenges the Court’s admission of
evidence regarding:
(1)

another strip search and related investigation (Docket #227 at
8–10);

7

The Court also notes that the City seems to have raised an argument that
Mr. Hardy’s closing argument resulted in unfair prejudice. (Docket #227 at 15–16).
This argument is waived, as it was never raised during trial so as to give the Court
an opportunity to remedy the prejudice. See Doe by G.S. v. Johnson, 52 F.3d 1448,
1465 (7th Cir. 1995). It is also waived because the City now raises it in a vague and
perfunctory manner. Roundy’s Inc. v. N.L.R.B., 674 F.3d 638, 650 (7th Cir. 2012).
Moreover, Mr. Hardy’s attorney’s argument was accurate and fair. It did not cause
any unfair prejudice. For these reasons—each adequate standing alone—the Court
will not address this argument separately.

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(2)

Officer Gasser’s comments on Facebook and his meeting in a
park with other officers under suspicion for conducting strip
searches (Docket #227 at 10–12);

(3)

Officer Gasser’s invocation of the Fifth Amendment and
retention of attorney in the context of strip search
investigations (Docket #227 at 13–14); and

(4)

the threatening culture of MPD, as recounted by a nondefendant officer (Officer Zachary Thoms), whom Mr. Hardy
called as a witness (Docket #227 at 14–15).

The City also challenges the cumulative effect of these evidentiary rulings,
arguing that—even if harmless standing alone—the evidentiary errors
combined to influence the jury’s verdict. (Docket #227 at 15–16).
Before turning to the specifics of those arguments, the Court will set
forth the governing principles that apply to the City’s post-trial evidentiary
challenges.
The most basic of those governing principles are Rules 401 and 402 of
the Federal Rules of Evidence, which govern the admissibility of relevant
evidence. Rule 401 provides that “[e]vidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action.” This
is a “low threshold” to satisfy, as the definition of relevance is very broad.
United States v. Boswell, 772 F.3d 469, 475 (7th Cir. 2014) (citing United States
v. Boros, 668 F.3d 901, 907 (7th Cir. 2012); United States v. McKibbins, 656 F.3d
707, 711 (7th Cir. 2011); Int’l Merger Acquisition Consultants, Inc. v. Armac
Enters., Inc., 531 F.2d 821, 823 (7th Cir. 1976)). As long as evidence meets that
low relevance threshold and its admission does not run afoul of some other
rule or statute, it is admissible under Rule 402. The City argues that the
evidence described above did not meet that low threshold and thus was not
relevant under Rule 401.
Page 11 of 56

The City also argues that, even if the evidence was relevant under
Rule 401, Rule 403 should still have prevented its admission. Rule 403 allows
the Court to “exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Ev. 403. The City argues
that the challenged evidence was either unfairly prejudicial or confusing.
As to unfair prejudice, the Seventh Circuit has repeatedly reminded
the courts that, because “‘most relevant evidence is, by its very nature,
prejudicial,’…evidence must be unfairly prejudicial to require exclusion.”
United States v. Hanna, 630 F.3d 505, 511 (7th Cir. 2010) (quoting United States
v. Thomas, 321 F.3d 627, 630 (7th Cir. 2003)) (emphasis in original). “‘Evidence
is unfairly prejudicial only to the extent that it will cause the jury to decide
the case on improper grounds.’” United States v. Khan, 771 F.3d 367, 377 (7th
Cir. 2014) (quoting United States v. Richards, 719 F.3d 746, 762–63 (7th Cir.
2013)). This requires a balancing test because “[t]he amount of prejudice that
is acceptable varies according to the amount of probative value the evidence
possesses.” Boswell, 772 F.3d at 476 (citing United States v. Vargas, 552 F.3d
550, 554 (7th Cir. 2008)).
Rule 403 also calls for exclusion where “the probative value of [a piece
of evidence is] substantially outweighed by the risk of jury confusion.”
United States v. Fauls, 65 F.3d 592 (7th Cir. 1995). See also Fed. R. Ev. 403;
United States v. Lupton, 620 F.3d 790, 800 (7th Cir. 2010); R.J. Reynolds Tobacco
Co. v. Cigarettes Cheaper!, 462 F.3d 690, 698 (7th Cir. 2006); Heft v. Moore, 351
F.3d 278, 284 (7th Cir. 2003).
Even if the Court committed some evidentiary violation, though, it
does not necessarily require that the City be granted a new trial. “A new trial
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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.” Cerabio LLC v. Wright Med. Tech., Inc., 410 F.3d 981, 994
(7th Cir. 2005) (internal citation omitted). “Evidentiary errors satisfy this
standard only when a significant chance exists that they affected the outcome
of the trial.” E.E.O.C. v. Mgmt. Hospitality of Racine, Inc., 666 F.3d 422, 440 (7th
Cir. 2012).
1.2.1.1

Other Strip Searches and Investigations

The City first attacks the admission of Officer Gasser’s testimony
regarding a separate strip search performed by another officer that Officer
Gasser witnessed and later described as lawful. (Docket #227 at 8). The City
argues that the Court should not have allowed this testimony, pursuant to
Rules 401 and 403, as the testimony was irrelevant and also unfairly
prejudicial or confusing. (Docket #227 at 8–10).
At trial, the Court allowed Mr. Hardy’s attorneys to question Officer
Gasser regarding a prior strip search. (Docket #115 at 163:20–165:10). Officer
Michael Vagnini8 conducted that prior search with Officer Gasser present.
(Trial Ex. 27). Later, two detectives and an FBI agent interviewed Officer
Gasser about the incident. (Docket #115 at 164:8–15; Trial Ex. 27). During that
interview, Officer Gasser stated that strip searches like the one Officer
Vagnini had performed were not unusual and that there was nothing wrong
with such searches. (Docket #115 at 164:16–25; Trial Ex. 27).

8

Officer Vagnini was MPD’s primary strip-search offender. He is now
serving a prison sentence as a result of his criminal actions in improperly searching
individuals. He is also a defendant in many of the strip-search cases now pending
in this district, although he is not a defendant in this case.

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At trial, the City objected to this testimony on the basis of relevance
and prejudice. (Docket #115 at 165:6–7). The Court overruled that objection
at the time, noting that “[i]t goes to what the witness understood were
reasonable and accepted police practices with regard to this sort of police
action.” (Docket #115 at 165:8–10).
The Court stands by that reasoning in rejecting the City’s Rule 401
relevance argument. Mr. Hardy alleged that Officer Gasser strip-searched
him. Officer Gasser’s previous course of conduct—witnessing a strip search
and later stating that such search was not unusual and was, in fact,
legal—shows that he believed strip searches were permissible, making it
more likely that he conducted a strip search of Mr. Hardy in this case. Thus,
the evidence has a “tendency to make a fact [of consequence (the strip
search)] more…probable than it would be without the evidence,” as required
for relevance under Rule 401.
The City makes two arguments against this finding. First, it argues
that the evidence could not be relevant because determining the
constitutionality of any given search involves “‘a fact-specific inquiry that
depends upon the way each plaintiff was searched and the security risks
presented by each plaintiff.’” (Docket #241 at 5 (quoting Klein v. Dupage Cty.,
119 F.R.D. 29, 30 (N.D. Ill. 1988))). That fact-specific inquiry occurred at the
trial in this case, and one portion of it involved an inquiry into the
individuals who were present at the search. Officer Gasser, who stated his
belief that strip searches are permissible, was present at Mr. Hardy’s search
and allegedly performed a strip search at that time. Thus, even applying the
City’s narrow lens, the evidence would be relevant. Second, the City argues
that the information could not be relevant because it:

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does not tend to establish that he lied when he denied putting
his hand into Mr. Hardy’s pants. Stated differently, under the
Plaintiff’s theory there actually would have been no reason for
Officer Gasser to lie about or attempt to cover up Mr. Hardy’s
search because, according to the Plaintiff, Officer Gasser was of
the belief that the search described by Mr. Hardy was
constitutional.
(Docket #241 at 5). But that argument actually goes to the weight of the
evidence, as opposed to its legal relevance. The fact that Officer Gasser did
or did not do something later in time does not undermine the legal relevance
of the information. Rather, this was a point that the City could have argued
to attempt to undermine the value of the evidence to the jury; it did not do
so.9
The Court also rejects the City’s argument that the evidence was
unduly prejudicial or confusing in violation of Rule 403. The City seems to
suggest that admission of this evidence was, by its nature, unfairly
prejudicial and confused the issues by injecting evidence of other searches.10
(Docket #241 at 10). To begin, the evidence was not extremely prejudicial. To
be sure, it did not cast Officer Gasser’s concept of an appropriate search in a
good light. It also made clear to the jury that there had been other stripsearch incidents involving MPD officers. But that prejudice was not unfair.

9

The Court must also point out that this tactic would likely have been
ineffective, given that Officer Gasser made the statement in question very shortly
after his search of Mr. Hardy. (See Trial Ex. 27).
10

The City hardly develops its argument regarding prejudice or confusion,
spending all of two sentences in its opening brief and concluding without analysis
that the evidence must have been prejudicial and confusing. (Docket #241 at 10).
This is a common theme of the City’s arguments: it raises them and then offers only
perfunctory arguments in support. Therefore, the arguments are likely waived, see
e.g., Roundy’s Inc. v. N.L.R.B., 674 F.3d 638, 650 (7th Cir. 2012) (undeveloped
arguments waived), though the Court will substantively analyze each.

Page 15 of 56

On balance, it did not substantially outweigh the probative value of the
evidence. Moreover, this evidence was not confusing. Mr. Hardy’s counsel
properly clarified at several times that she was asking about a separate
incident and was interested in Officer Gasser’s concept of an appropriate
stop. (See, e.g., Docket #215 at 162:14–163:14, 164:8–25). At bottom, the jury’s
return of a complete and consistent split verdict displayed its ability to parse
the evidence to reach a verdict on each separate claim. It was not confused
by this evidence. For these reasons, the Court concludes that the evidence did
not violate Rule 403.
1.2.1.2

Officer Gasser’s Facebook Comments and
Meeting

The City next challenges admission of a Facebook post made by
Officer Gasser. Officer Gasser wrote the Facebook post after he had been
placed on leave as a result of strip search allegations. (Docket #215 at
210:3–210:20). The post was made as a comment to a thread started by
someone else, the title of which was “Shit Heads 8, MPD Zero.” (Docket #215
at 209:8–14). Officer Gasser’s post in that thread included key phrases such
as: “everyone still needs to go kick ass and keep up the great work”; how
tough it was not to be backing his fellow officers up “and taking people to
jail”; and how on his “first day back, [he would] not hesitate to go right back
to doing exactly what [he] was doing before. Nothing will change in how [he
does his] job.” (Docket #215 at 209:15–210:20). The City argues that this
evidence is not relevant and was unfairly prejudicial or confusing. (Docket
#227 at 10–12).
This evidence was clearly relevant to Mr. Hardy’s punitive damages
claim. Two factors to consider in awarding punitive damages, as recounted
in the Court’s jury instructions are “the reprehensibility of the defendant
Page 16 of 56

officers’ conduct” and “[t]he likelihood that the defendant officer[] would
repeat the conduct if an award of punitive damages is not made.” (Docket
#203 at 26–27). Those instructions come practically verbatim from the
Seventh Circuit’s pattern instructions, which themselves are rooted in the
Supreme Court’s discussion of factors to consider for punitive damages in
Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991). Officer Gasser asserted
that nothing would change in how he would do his job; made clear his
concern with “kick[ing] ass” and “taking people to jail”; he also found it
appropriate to post his comment under a thread referring to accusers as shit
heads. Altogether, this was evidence that he was likely to repeat his conduct.
It was also relevant to show that Officer Gasser viewed people like Mr.
Hardy—citizens who have every right to expect officers to follow the
law—with contempt, going to Officer Gasser’s motivation and the
reprehensibility of his conduct. The evidence was relevant under Rule 401.
The City also challenges the Court’s admission of evidence related to
Officer Gasser’s attendance at a meeting with other suspended officers. This
meeting occurred four days after Officer Gasser had been suspended and
directed not to talk about the strip search allegations. (See Docket #215 at
198:23–199:8, 200:7–200:13). Officer Gasser testified that he did attend this
meeting but that no one talked about the allegations. (Docket #215 at
198:23–200:6, 201:9–16). The City challenges this evidence as irrelevant and
unfairly prejudicial or confusing.
This evidence was also relevant to Mr. Hardy’s punitive damages
claim. It gave the clear appearance that the officers present, including Officer
Gasser, were attempting to coordinate with one another to avoid the
consequences of their actions and/or to continue taking such actions. This

Page 17 of 56

would support the reprehensibility and continued-conduct prongs of the
punitive damages standard.
Furthermore, neither the Facebook post nor the evidence of the
meeting was unfairly prejudicial or confusing. The City’s only support for its
argument in this regard is its conclusory statement that “confusion, bias, and
prejudice is reflected in the punitive damages awarded by the jury.” (Docket
#227 at 12). The Court disagrees. The jury was clearly able to properly
consider the evidence, considering that it rejected Mr. Hardy’s strip search
claims. The City does not posit any other way in which either the post or
Officer Gasser’s participation in the meeting caused unfair prejudice or
confusion. In any event, because both pieces of evidence were of substantial
probative value to the punitive damages claims, the Court would not find it
to be outweighed by such prejudice or confusion. The post does not violate
the provisions of Rule 403.
1.2.1.3

Officer Gasser’s Invocation of the Fifth
Amendment and Retention of Attorney

The City next challenges the admission of evidence showing that
Officer Gasser had invoked the Fifth Amendment and retained an attorney
in relation to strip search allegations. Specifically, the Court received
testimony that, in relation to the search conducted by Officer Vagnini,
described above, Officer Gasser invoked the Fifth Amendment, retained an
attorney, and testified only after receiving immunity via a proffer letter.
(Docket #217 at 760:19–761:8, 763:13–764:7). He also declined to testify in
relation to the investigation of Mr. Hardy’s allegations. (Docket #217 at
503:18–506:19). The City challenges this evidence as irrelevant, unfairly
prejudicial, and confusing. (Docket #227 at 13–14).

Page 18 of 56

The evidence was relevant under Rule 401. It went to Officer Gasser’s
credibility. He declined to participate in the initial investigation of Mr.
Hardy’s allegations—a sharp contrast to his willingness to testify after
receiving immunity in the Vagnini-related search. And upon participating in
the investigation of Vagnini, he ultimately provided damaging testimony.
(See Docket #217 at 765:4–766:10). Likewise, here, his initial silence could be
viewed as an indication that he held damaging information and was
reluctant to provide it without receiving immunity. Granted, he eventually
did come around to cooperating in this case, ultimately providing testimony
prior to and at trial; thus, perhaps the probative value of his silence was not
extremely high. See Harris v. City of Chicago, 266 F.3d 750, 753–54 (7th Cir.
2001). But the Court cannot say that this evidence of silence carried no value.
Appreciating that this case was largely a credibility contest between Mr.
Hardy’s and the officers’ version of events, Officer Gasser’s credibility was
a fact of consequence and any source of impeachment was valuable. For
these reasons, this evidence satisfies Rule 401.
Furthermore, this evidence was not unduly prejudicial or confusing.
Again, the City has provided little analysis with regard to why this evidence
violates Rule 403. (See Docket #227 at 13–14; Docket #241 at 9–10). Officer
Gasser initially refused to testify in the investigation in two separate
instances, and that reluctance would have an understandable negative effect
on the jury’s perception of him. That is prejudicial, but the Court does not
believe that such prejudice substantially outweighs the value of the evidence
to Officer Gasser’s credibility. And, again, the Court cannot cite to any
evidence of jury confusion. This is perhaps the closest call under Rule 403.
But, even if the evidence did violate Rule 403, the lack of resulting prejudice

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(which the Court will discuss in Section 1.2.1.6, infra) leads the Court to
conclude that a new trial is not necessary. See Cerabio LLC, 410 F.3d at 994.
1.2.1.4

Officer Thoms’ Testimony Regarding MPD
Culture

The City also challenges the Court’s admission of testimony by Officer
Zachary Thoms, who testified to threats he had received as a result of
cooperating in strip search investigations. (Docket #227 at 14–15). The City
objects to that testimony on three grounds.
First, the City argues that Officer Thoms’ testimony exceeded Mr.
Hardy’s offer of proof; this argument fails. The City does not offer any
support for the contention that trial testimony cannot exceed an offer of
proof, nor can the Court find such authority.
Second, the City argues that Officer Thoms’ testimony about threats
was outside of the scope of cross-examination. The Court disagrees. The
City’s attorney attempted to show that Officer Thoms had only testified
because he had been given a proffer letter. (Docket #216 at 518:6–11). Mr.
Hardy’s attorney’s questions regarding the threats were germane to
undermining the City’s theory of Officer Thoms’ motivation to testify; that
is, while the proffer letter may have helped Officer Thoms to testify, he did
so in spite of serious threats, thus reducing the import of the proffer letter.
Third, the City argues that Officer Thoms’ testimony was irrelevant
and unduly prejudicial; these arguments also fail. The testimony was
relevant for the purpose of undermining the City’s attempt to paint Officer
Thoms as improperly motivated. It was also relevant to show that a code of
silence existed that would motivate officers to lie about precisely the same
course of strip searches at issue in this case and that Officer Thoms was
threatened for testifying about. See Paradiso v. Obaldo, No. 07-CV-4247, 2009
Page 20 of 56

WL 3272217 (N.D. Ill. Oct. 8, 2009) (allowing testimony to show that
particular officers in particular incidents maintained a code of silence). The
evidence also was not unduly prejudicial, as that probative value was not
substantially outweighed by any unfair prejudice.
For these reasons, the Court finds that Officer Thoms’ testimony was
properly admitted. Finally, as the Court discusses further in Section 1.2.1.6,
infra, the City has not indicated any resulting prejudice (aside from the issue
of punitive damages), nor can the Court identify any.
1.2.1.5

Cumulative Effect

“‘Where there are several errors, each of which is harmless in its own
right, a new trial may still be granted if the cumulative effect of those
otherwise harmless errors deprives a litigant of a fair trial.’” Jordan v. Binns,
712 F.3d 1123, 1137–38 (7th Cir. 2013) (citing Christmas v. City of Chicago, 682
F.3d 632, 643 (7th Cir. 2012)). The City argues that this sort of cumulative
error occurred in this case. (See Docket #227 at 15–16). Again, the Court
disagrees.
To begin, this argument fails as a matter of law because it rests on the
assumption that there were errors. As the Seventh Circuit’s standard
states—and as the City acknowledges—it is only when otherwise-harmless
errors combine to affect the fairness of the trial that the Court must reverse.
Jordan, 712 F.3d at 1137 (“[w]here there are several errors,” new trial may be
“granted if cumulative effect of those otherwise harmless errors,” resulted in
unfair trial.) (See also Docket #241 at 12 (“However, if the Court concludes
that evidentiary errors were made but that the errors were harmless…”)). But
here, as already exhaustively documented, the Court has concluded that it
did not err in admitting any of the evidence challenged by the City.

Page 21 of 56

Therefore, under the Seventh Circuit’s standard, the Court cannot grant Rule
59(a) relief on this basis.
In any event—even assuming that there were errors or that nonerroneous admission of evidence could result in an unfair trial—the
cumulative effect of the Court’s evidentiary rulings did not result in an unfair
trial and could not warrant Rule 59(a) relief. See Section 1.2.1.6, infra.
1.2.1.6

Lack of Prejudice as to All Evidentiary Claims

Even if the Court erred in admitting any single piece or the
cumulation of the evidence, such error did not affect the outcome of the trial,
and thus does not justify relief. See Cerabio LLC, 410 F.3d at 994.
The Court made clear in its instructions that the jury was to consider
“what actually occurred during the search[] conducted by Officer Gasser.”
(Docket #203 at 18). And the jurors did, indeed, find that there had not been
a strip search; thus, this evidence could not have prejudiced the City on the
strip search claims.
The evidence also did not prejudice the City with regard to Mr.
Hardy’s successful stop-and-frisk or false arrest claims. As the Court has
already discussed and will discuss further, there was ample evidence
supporting those claims. See Section 1.1.1, supra; Section 2.1, infra.
The City’s best argument for prejudice is that the jury’s punitive
damages award was unduly large as a result of prejudicial evidence. The
Court disagrees. As the Court discussed above, the evidence clearly showed
that the officers had no reason to stop Mr. Hardy. See Section 1.1.1, supra. The
officers, themselves, set off this extremely unfortunate chain of events by
acting illegally. The jury could rationally have been very concerned with that
fact and rendered a substantial verdict in Mr. Hardy’s favor.

Page 22 of 56

The Court also notes that it allowed both sides significant latitude in
presenting evidence. For instance, the Court allowed the City to present
evidence of Mr. Hardy’s alleged prior drug dealing. (See Docket #216 at
267:18–268:11). On balance, neither party appeared in a positive light before
the jury. Given this level playing field, the Court is obliged to conclude that
the trial was fair.
Having concluded that there was no evidentiary error and no
resulting harm, the Court is constrained to deny the City’s Rule 59(a) motion
insofar as the motion relates to the Court’s evidentiary rulings.
1.2.2

Jury Confusion and/or Bias

The City’s next argument in its Rule 59(a) motion is that the jury was
confused or biased, thus rendering its verdict unconstitutional under
concepts of due process. (Docket #227 at 20 (“Due process guarantees within
the Constitution are meant to ensure that jury verdicts are not the product of
jury passion, prejudice, or bias.”) (citing Pac. Mut. Life Ins., 499 U.S. at 41
(Kennedy, J. concurring))). The City’s only valid support for this argument
derives from the jury’s false arrest finding and substantial punitive damages
award. (See Docket #227 at 20). The City argues that both are evidence that
the jury was confused or biased.
The false arrest claim does not demonstrate confusion or bias. As the
Court will discuss further, the jury’s verdict on that claim was perfectly
reasonable in light of the evidence and the jury instructions. See Section 2.1,
infra.
The punitive damages award, on the other hand, is excessive.
Ultimately, the Court is obliged to offer Mr. Hardy the choice between a new
trial and a reduced punitive damages award, see Section 2.2, infra. But the
City does not provide any support for (nor even request that) the Court grant
Page 23 of 56

an entirely new trial purely as a result of the excessive punitive damages
award. Rather, as is common in cases involving punitive damages, the Court
can sever the punitive damages award from the otherwise-reasonable jury
verdict and grant remittitur. This is especially appropriate in light of the fact
that the only basis for the City’s prejudice argument is the size of the award,
alone. See Dresser Indus., Inc., Waukesha Engine Div. v. Gradall Co., 965 F.2d
1442, 1448-49 (7th Cir. 1992) (“theory…that passion and prejudice may be
inferred from the size of the award [is] an unclear proposition.”).
The City also argues that negative media reports about MPD and
other nationally-reported events involving police could have inflamed the
jury, but it offers no evidence for this position. Significantly, the Court
conducted a thorough voir dire (see Docket #215 at 13:24–14:1), during which
no member of the jury panel indicated any form of bias on the basis of media
reports (Docket #204 at 2–3). This argument fails.
In sum—aside from the size of the punitive damages award, which the
Court will address separately—there is absolutely no evidence to support the
City’s contention that the jury was biased or confused. The Court will,
therefore, deny the City’s Rule 59(a) motion insofar as it relies on that
argument.
1.2.3

Punitive Damages

The City has reserved the bulk of its punitive damages argument for
it Rule 59(e) motion. (Compare Docket #227 at 16–19 (limited discussion of
punitive damages issue in Rule 59(a) brief), with Docket #225 at 7–16
(providing more thorough discussion of punitive damages issue in Rule 59(e)
brief)). Accordingly, the Court will address this issue in its discussion of the
City’s Rule 59(e) motion. See Section 2.2, infra.

Page 24 of 56

1.2.4

Cumulative Effect of Multiple Errors

The concept of cumulative error is not confined to evidentiary
objections; rather, if multiple otherwise-harmless errors of any sort combined
to result in an unfair trial, Rule 59(a) relief may be appropriate. See, e.g.,
Venson, 749 F.3d at 658; Barber, 725 F.3d at 715. The City did not explicitly
raise this argument. Nonetheless, the Court will address the argument out
of an abundance of caution, in hopes of addressing every possible argument
that the City may assert (no matter how vague otherwise poorly supported).
Even considering the issue, the Court still determines that the
cumulative effect of the proceedings in this case does not warrant Rule 59(a)
relief. As with the cumulative evidence argument, the fact that the Court has
not identified any errors is enough, alone, to reach that conclusion. See
Venson, 749 F.3d at 658 (looking for some combination of errors, whereas the
Court has not identified errors in this case). Moreover, the Court concludes
that the cumulative effect of any errors was harmless. As already discussed,
this trial was fair and any prejudice reflected in the punitive damages award
can be adequately excised via remittitur. See Section 1.2.1.6, supra.
As such, the City is not entitled to a new trial on the basis of the
cumulative effect of multiple errors.
In sum, aside from a potential new trial on punitive damages, see
Section 2.2, infra, the Court is obliged to deny the City’s Rule 59(a) motion in
its entirety.
2.

RULE 59(e) MOTION TO ALTER OR AMEND THE JUDGMENT
The City’s Rule 59(e) motion to alter or amend the judgment contains

the two most significant claims for relief. The City begins by arguing that the
Court should either entirely vacate the award of punitive damages or
substantially reduce it. (Docket #225 at 7–16). The City then argues that the
Page 25 of 56

Court must vacate the portion of the jury’s verdict finding that Officers
Gasser and Garland had falsely arrested Mr. Hardy. (Docket #225 at 17–18).
Because the Court’s decision on the false arrest issue may affect its
determination on the punitive damages award, the Court will begin by
addressing the jury’s false arrest verdict.
2.1

False Arrest

The Court begins its false arrest analysis by setting forth the standards
that apply in such cases. It then provides a bit of background regarding its
denial of the City’s request for summary judgment on the false arrest claim
and the presentation of the claim to the jury. Then, with the benefit of that
relevant background, the Court turns to analyzing the City’s arguments in
favor of vacating the award.
2.1.1

False Arrest Standard

Probable cause is an absolute defense to a false arrest claim. Abbott v.
Sangamon Cty., Ill., 705 F.3d 706, 713–14 (7th Cir. 2013). Probable cause exists
where “the totality of the facts and circumstances known to the officer at the
time of the arrest would warrant a reasonable, prudent person in believing
that the arrestee had committed, was committing, or was about to commit a
crime.” Id. at 714 (citing Thayer v. Chiczewski, 705 F.3d 237, 246 (7th Cir. 2012);
Michigan v. DeFillippo, 443 U.S. 31, 37 (1979); Beck v. Ohio, 379 U.S. 89, 91
(1964)). While this requires “more than a hunch,” it does not require that
officers find “that it was more likely than not that the arrestee was engaged
in criminal activity.” Abbott, 705 F.3d at 714 (citing Henry v. United States, 361
U.S. 98, 102 (1959); Fox v. Hayes, 600 F.3d 819, 833 (7th Cir. 2010)). The inquiry
is purely objective, requiring an examination of how a reasonable officer
would act, knowing what the arresting officer knew at the time of the arrest.
Abbott, 705 F.3d at 714 (citing Devenpeck v. Alford, 543 U.S. 146, 152 (2004);
Page 26 of 56

Maryland v. Pringle, 540 U.S. 366, 371 (2003); Whren v. United States, 517 U.S.
806, 813 (1996); Ornelas v. United States, 517 U.S. 690, 696 (1996); Tebbens v.
Mushol, 692 F.3d 807, 817 (7th Cir. 2012)).
2.1.2

Denial of Summary Judgment on False Arrest Claims

At summary judgment, the City requested that Mr. Hardy’s false
arrest claims be dismissed. In support, the City made two arguments. First,
it argued that because Mr. Hardy had pled guilty to a resisting arrest charge,
he had essentially admitted that Officers Gasser and Garland had probable
cause to arrest him and was, in fact, precluded from arguing otherwise. (See
Docket #83 at 2–3). Second, the City argued that the evidence established that
the officers had probable cause to arrest Mr. Hardy. (See Docket #51 at 21–24).
The Court found both arguments unpersuasive and declined to dismiss the
false arrest claim.
The Court refused to give Mr. Hardy’s plea agreement any preclusive
effect absent further evidence. The Court noted that Wisconsin law applied,
and that the Wisconsin Supreme Court had previously refused to give plea
agreements preclusive effect. (Docket #93 at 17 (citing Reynolds v. Jamison, 488
F.3d 756, 762–63 (7th Cir. 2007)); Mrozek v. Intra Fin. Corp., 2005 WI 73,
¶¶ 17–21, 281 Wis. 2d 448, 699 N.W.2d 54). And, even if a plea agreement
could be used for preclusive effect, it would have been the City’s burden to
establish that it should be used for that purpose. (Docket #93 at 18 (citing
Masko v. City of Madison, 2003 WI App 124, ¶ 4, 265 Wis. 2d 442, 665 N.W.2d

Page 27 of 56

391)).11 Because the City had failed to present any evidence to meet its
burden, the Court refused to award preclusive effect to Mr. Hardy’s plea.12
(Docket #93 at 19).
The Court also rejected the City’s probable cause argument. The City
argued that, at the time the officers arrested Mr. Hardy, they had probable
cause to believe that Mr. Hardy had violated Wis. Stat. § 946.41(1) for
resisting or obstructing an officer, by virtue of the fact that Mr. Hardy had
run away from them. (See Docket #51 at 21–24). The Court disagreed. In
doing so, it engaged in a textual analysis of Wis. Stat. § 946.41(1), identifying
the following four elements: “(1) resistance or obstruction of an officer,
occurring while the officer (2) was acting in official capacity and (3) with
lawful authority, and (4) further that the act was done knowingly.” (Docket
#93 at 21). Important among those elements was the requirement that the
officers must have been acting “with lawful authority.” (See Docket #93 at
22). The Court noted that the question of whether an “obviously-illegal strip
search” had occurred was one for the jury. (Docket #93 at 22). And, if a strip
search had, in fact, occurred, then any reasonable person in that situation
would understand that they were acting without lawful authority and, thus,

11

Given the record in this case, the Court does not find it analogous to
Timbuktu v. Koch, 62 Fed. Appx. 676, 678–79 (7th Cir. 2003). In that case, the Seventh
Circuit found that a plaintiff’s claims for damages were precluded by a prior guilty
plea to Wis. Stat. § 946.41(1). Timbuktu, 62 Fed. Appx. at 678–79. But in that case, the
issue of probable cause “was actually decided—the state court made [its]
determination after a hearing in which Timbuktu cross-examined three police
officers, testified himself, and called another witness to testify on his behalf.” Id.
12

Nonetheless, the Court allowed the City the opportunity to renew this
argument at a later time. (Docket #93 at 19). The City failed to do so before or
during trial, and it has not renewed the argument now. The City having declined
to renew this argument, the Court will not address it any further.

Page 28 of 56

that Mr. Hardy was not acting unlawfully in fleeing. (Docket #93 at 22). The
Court also acknowledged the Supreme Court’s recognition that “[o]ne has
an undoubted right to resist an unlawful arrest, and courts will uphold the
right of resistance in proper cases.” (Docket #93 at 22 (citing United States v.
Di Re, 332 U.S. 581, 594 (1948))). For those reasons, the Court decided that the
question of probable cause would have to be presented to the jury for
determination of what happened prior to the arrest.
2.1.3. Presentation of Claim to Jury and Jury’s Verdict
Against the foregoing backdrop, the Court presented Mr. Hardy’s
false arrest claim to the jury. In doing so, it instructed the jury using large
portions of the Seventh Circuit’s pattern jury instructions regarding false
arrest and probable cause. Compare (Docket #203 at 20–21) with Seventh
Circuit Pattern Jury Instructions—Civil, §§ 7.05, 7.06. However, in light of the
complicated circumstances surrounding Mr. Hardy’s claim, in an attempt to
be as specific and as fair as possible, the Court provided additional
instructions to address the precise circumstances of the case. (See Docket #203
at 21–22). The Court noted that, if the jury found that a strip search had
occurred or that the officers lacked reasonable suspicion to stop Mr. Hardy,
then it was allowed (though not compelled) to find that Mr. Hardy had been
falsely arrested. (See Docket #203 at 21–22).
In the end, the jury returned a verdict in Mr. Hardy’s favor on the
false arrest claim. However, because the jury had determined that the officers
did not strip search Mr. Hardy, its false arrest verdict necessarily rested on
its finding that the officers lacked reasonable suspicion to stop Mr. Hardy.
2.1.4

Analysis

The City focuses upon that point—the fact that the jury’s false arrest
verdict rests upon its determination that the officers lacked reasonable
Page 29 of 56

suspicion for a stop—to attack the jury’s false arrest verdict. In making this
argument, the City posits that “[i]f a person flees, even from an unlawful
stop, the act of fleeing provides probable cause to arrest that person.”
(Docket #225 at 17 (citing United States v. Sledge, 460 F.3d 963, 966 (8th Cir.
2006))).
2.1.4.1

Waiver of Argument

The Court begins by pointing out that the jury’s verdict was actually
well-supported in light of the evidence and the jury instructions. With regard
to probable cause, the Court instructed the jury using the Seventh Circuit’s
pattern instruction. (Docket #203 at 20–21). The Court also instructed the jury
that if it “determine[d] that the officers’ stop and/or search of Mr. Hardy was
not based upon reasonable suspicion, then you may find that the officers
were acting without lawful authority, and thus lacked probable cause to
arrest Mr. Hardy.” (Docket #203 at 21–22). The jury did, in fact, find that the
officers lacked a reasonable suspicion to stop and search Mr. Hardy, and the
Court has already determined that finding was reasonable. See Section 1.1.1,
supra. Thus, the jury’s verdict fully comported with the Court’s instructions.
Because the City cannot argue that the jury did not properly follow
the instructions, it would appear that the City is actually attempting to
challenge the Court’s jury instructions (see Docket #225 at 17–18);
unfortunately for the City, this argument has been waived. Despite ample
opportunity to object to the Court’s false arrest instruction—whether at
either of two final pretrial conferences or at the Court’s extensive jury
instructions conference13—the City declined to do so. (See, e.g., Docket #152;

13

The Court also points out that the City was in possession of the draft jury
instructions for at least five weeks prior to trial.

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#214; Docket #217 at 796:11–813:18). Thus, in the Court’s view, the City has
waived this argument. See, e.g., Republic Tobacco Co. v. N. Atl. Trading Co., 381
F.3d 717, 733 (7th Cir. 2004) (defendant waived argument by failing to
propose jury instruction or object to court’s instruction); Jabat, Inc. v. Smith,
201 F.3d 852, 857 (7th Cir. 2000) (“When parties do not object to jury
instructions, these instructions generally become the law of the case. Once the
law of the case is settled, the parties can only argue that the jury did not
properly apply the instructions to the facts.”); Orix Credit Alliance v. Taylor
Mach. Works, Inc., 125 F.3d 468, 477–78 (7th Cir. 1997) (failure to raise
objection to special verdict questions waives objection).
And waiver would be appropriate in this instance, in light of the
performance of the City’s attorneys. Throughout the case, the Court was met
with obfuscation and lack of adequate preparation by the City’s attorneys.
(See, e.g., Docket #214; Docket #215 at 240:15–20). And so it has happened yet
again. Rather than raising an argument prior to the case being tried and sent
to the jury, the City has opted to wait until after the verdict has been
returned.
Nonetheless, the Court acknowledges that it may be required to
rectify a legally-erroneous judgment, even when it did not receive objections
as to jury instructions or a special verdict form. See, e.g., Duran v. Town of
Cicero, Ill., 653 F.3d 632, 642–43 (7th Cir. 2011). Thus, the Court will address
the substance of the City’s argument.14

14

Although the Court must point out that the City has decided not to put too
much substance in its brief. As has occurred throughout this case, the City
submitted a cursory argument first (Docket #225 at 17–18) followed by a more
significant argument that attempts to backfill (Docket #242 at 12–16). And even
then, the fuller argument still does not address the issue as thoroughly as it should.

Page 31 of 56

2.1.4.2

Case Law Analysis

Thus, the Court turns to the legal issue: whether, as a matter of law,
Officers Gasser and Garland must have had probable cause to arrest Mr.
Hardy, thus rendering the jury’s verdict (and the Court’s resulting judgment)
legally erroneous.
The Court begins with a common-sense point, rejecting the City’s
extremely broad assertion that “[i]f a person flees, even from an unlawful
stop, the act of fleeing provides probable cause to arrest that person.”
(Docket #225 at 17). The concept of probable cause should not be so cut-anddry as to create categorical rules such as that proposed by the City. The City’s
proposed rule would allow a police officer to arrest any person who flees,
regardless of the officer’s conduct prior to the arrest. This cannot be right, at
least under Wisconsin law, which requires officers to act with lawful
authority. Police officers should not be permitted to manufacture probable
cause by engaging in conduct that they know is unlawful. For example, a
person being beaten or strip-searched by an officer would create probable
cause for that officer by running away. To be sure, these are not common
circumstances. But, however rare, the Court wishes to avoid any rule that
would jeopardize citizens’ rights to escape the hands of an abusive police
officer.
Of course, this is an extremely fine line to walk, because the safety of
the community relies on subjects’ cooperation with police directives. Any
rules that restrict officers’ discretion to make arrests of non-compliant
individuals may result in dangerous situations, such as the escape of armed
and/or dangerous individuals and shots being fired in the community.
But there is a significant gray area between arrests that are clearly
unlawful and those that should clearly be lawful. That gray area is perfectly
Page 32 of 56

exemplified in a case like this one. Here, the jury rejected Mr. Hardy’s claims
that the officers were engaged in the clearly-unlawful act of strip searching
Mr. Hardy. On the other hand, the jury reasonably found that the officers
lacked reasonable suspicion to stop Mr. Hardy.15 See Section 1.1.1, supra.
Given that split verdict, which side of the line does the officers’ arrest
of Mr. Hardy fall? Was it an illegal false arrest due to the fact that the officers’
initial stop and search of Mr. Hardy was illegal? Or was the illegal stop
rendered null by Mr. Hardy’s intervening decision to flee? The case law that
the Court has been able to find on the topic provides inconclusive answers.
2.1.4.2.1 Seventh Circuit Authority
Nothing in the Seventh Circuit’s body of case law compels any specific
answer.
Perhaps the primary case to consider is United States v. Green, 111 F.3d
515, which the City has cited extensively (Docket #225 at 17). In Green,
officers pulled over the defendant’s car after recognizing it as having been
parked outside of the house of a fugitive. Id. at 517–18. The officers testified
that they believed the fugitive may have been in the car. Id. He was not, but
the officers detained the car while performing a warrant-check on the
defendant and his passenger. Id. The officers found that the passenger was
the subject of an outstanding warrant and arrested him. Id. Thereafter, the
defendant agreed to allow the officers to search his car, whereupon the
officers found drugs and a gun. Id.

15

The Court adds that it views the evidence to have shown that the
defendant officers knew that they lacked reasonable suspicion, given their attempts
to clean up the record by offering myriad post hoc rationalizations for their stop of
Mr. Hardy.

Page 33 of 56

The defendant was indicted and moved to suppress the evidence. The
district court denied the motion, finding that the initial stop of the car: was
valid under Terry v. Ohio, 392 U.S. 1 (1968); that the duration of the stop was
reasonable; and that the officers were entitled to search the car as a result of
arresting the passenger. See Green, 111 F.3d at 518.
The Seventh Circuit largely disagreed with the district court’s
reasoning. The Seventh Circuit held that the initial stop of the car was illegal,
because the mere fact that it had been parked in front of the fugitive’s house
did not create reasonable suspicion. Id. at 520. The defendant conceded that
the officers were justified in stopping the car to investigate whether the
fugitive was present, but the Seventh Circuit found that this rationale could
not support a continued detention once the officers had confirmed that the
fugitive was not present. Id. This sort of initial illegality often triggers
exclusion of all resulting evidence. See id. (citing Wong Sun v. United States,
371 U.S. 471 (1963)).
Nonetheless, the Seventh Circuit declined to exclude the evidence. It
found that there was sufficient attenuation between the initial illegal stop and
the later search and discovery of evidence, such that the exclusionary rule
should not apply. See Green, 111 F.3d at 521–523. In reaching that conclusion,
the Seventh Circuit applied the three-factor test for attenuation announced
in Brown v. Illinois, 422 U.S. 590 (1975). See Green, 111 F.3d at 521–23. The
second factor

of

the

Brown

test—the

presence

of

intervening

circumstances—proved very important to the analysis. See id. Specifically, the
Seventh Circuit found that the passenger’s outstanding warrant constituted
an intervening event that justified the officers’ search. Id. at 521–22. In a
passage quoted at length by the City (Docket #225 at 17–18), the Seventh
Circuit cited three cases from other circuits “where the defendant’s original
Page 34 of 56

seizure was arguably unconstitutional, but after the initial illegal stop,
circumstances developed giving the police probable cause to lawfully arrest
the defendants.” Green, 111 F.3d at 521–22 (internal citations omitted).
There are multiple reasons why the Court is unable to find that Green
compels the Court to vacate the false arrest verdict in this case. To begin,
Green deals with the attenuation and exclusionary rules applied in the
context of a motion to suppress. By no means does it deal with the question
of intervening circumstances in a false arrest case; it hardly even touches
upon the concept of probable cause. Moreover, even accepting that the Court
can import the legal concepts of Green into this case, the analysis is far more
detailed than the City acknowledges. The Green court, together with the
other circuits’ cases it cited, all require a close examination of the intervening
circumstances. See, e.g., id.; United States v. Nooks, 446 F.2d 1283 (5th Cir.
1971); United States v. Dawdy, 46 F.3d 1427, 1431 (8th Cir. 1995); United States
v. Bailey, 691 F.2d 1009 (11th Cir. 1982). In a passage from Green that the City
should have closely read—indeed, likely should have provided to the Court
for full candor—the Seventh Circuit went on to discuss when intervening
circumstances should dissipate some original illegality:
Typically, the intervening circumstance which dissipates the
taint involves a voluntary act by the defendant, such as the
voluntary confession or consent to search given after an illegal
search or seizure. In intervening circumstance cases involving
subsequent action on the defendant’s part, courts exercise great
care in evaluating the later consent or confession to ensure it is
truly voluntary and not the result of the earlier, and
unconstitutional, police action.…In these cases, the time
between the illegality and the consent is important because the
closer the time period, the more likely the consent was
influenced by the illegality, or that the illegality was exploited.
Conversely, where a lawful arrest due to an outstanding
warrant is the intervening circumstance, consent (or any act for
Page 35 of 56

that matter) by the defendant is not required. Any influence
the unlawful stop would have on the defendant's conduct is
irrelevant. And in the case of an arrest made pursuant to a
warrant there is also no chance that the “police have exploited
an illegal arrest by creating a situation in which [the] criminal
response is predictable,” such as creating a situation where the
criminal will flee, which in turn will give the police an
independent basis for an arrest, and thus a search incident to
the arrest. Thus, in this case there is less “taint” than in the
cases already recognized by the Supreme Court and this and
other circuits as fitting within the intervening circumstances
exception.
Green, 111 F.3d at 522 (internal citations omitted). Though those comments
relate primarily to the issue of consent, they exhibit the Seventh Circuit’s
concern that illegal police action will prompt an illegal response. Those
concerns are very relevant to this case, given the illegality of the initial stop
and the extremely short period of time between the stop and Mr. Hardy’s
flight. In sum, Green is not directly applicable to this case and any
applicability is significantly less important than the City suggests.16
The Court has been unable to locate any Seventh Circuit case law that
provides any clearer answers. In United States v. Johnson, the Seventh Circuit
rendered a decision very similar to Green. 383 F.3d 538 (7th Cir. 2004). But it
is of limited applicability for the same reasons as Green: it was rendered in
the context of an attenuation analysis and involved an outstanding warrant
as an intervening event. See id. at 542–56. In Henning v. O’Leary, the Seventh

16

The only cases applying Green to false arrest claims involve circumstances
that were practically identical to Green (specifically, where the intervening
circumstance was an outstanding warrant). See, e.g., Carillo v. City of Chicago, No. 09CV-2803, 2013 WL 883975 at *1–*2 (N.D. Ill. Mar. 8, 2013); Wofford v. Celani, No. 11CV-3543, 2013 WL 315744 at *4 (N.D. Ill. Jan. 28, 2013); Burns v. Office of Atty. Gen’l,
No. 05-CV-858, 2009 WL 825778 at *12, n.14 (D. Minn. Mar. 27, 2009); Hanks v. Cty.
of Delaware, 518 F. Supp. 2d 642, 648–49 (E.D. Pa. 2007).

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Circuit noted that even if a “stop and search were illegal,” the arrestee “had
no right to resist the officers’ attempts to arrest him.” 477 F.3d 492, 495 (7th
Cir. 2007) (citing State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825, 837 (1998)).
But that statement was made in dicta after it had already been determined
that the plaintiffs’ constitutional claims could not lie for other reasons. See
Henning, 477 F.3d at 494–96. It also concerned the common law right of
resistance; did not acknowledge Wis. Stat. § 946.41(1); and did not relate to
a false arrest claim. Id.
2.1.4.2.2 Other Circuits’ Authority
Since Seventh Circuit case law is unavailing, the Court looked at the
law from other circuits. Again, none of the cases compel any specific result.
The Ninth Circuit has noted that “[t]he absence of probable cause does
not grant an individual the right to offer resistance. An individual’s limited
right to offer reasonable resistance is only triggered by an officer’s bad faith
or provocative conduct.” Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d
912, 921 (9th Cir. 2001) (citing United States v. Span, 970 F.2d 573, 580 (9th Cir.
1992)). See also Young v. Cty. of Los Angeles, 655 F.3d 1156, 1164 (9th Cir. 2011).
This seems to clearly leave open the possibility that Officers Gasser and
Garland could have been liable for false arrest if they had acted in bad faith
or employed provocative conduct. The City’s response to this would likely
be that the evidence did not show bad faith or provocative conduct. But that
is why the City should have raised all of this in an objection to the jury
instructions. Then, the Court could have addressed the parties’ competing
interests prior to trial. And if the Court adopted the Ninth Circuit’s
formulation, then Mr. Hardy would have had the opportunity to prove up
bad faith or provocative conduct at trial.

Page 37 of 56

The Fourth, Fifth, Eighth, Tenth, and Eleventh Circuits, in applying
the exclusionary rule, have all engaged in analyses very similar to the
Seventh Circuit’s in Green. See, e.g., United States v. Sprinkle, 106 F.3d 613,
619–20 (4th Cir. 1997); Nooks, 446 F.2d 1283; Dawdy, 46 F.3d 1427; United States
v. Boone, 62 F.3d 323, 324 (10th Cir. 1995); Bailey, 691 F.2d 1009. But, for
reasons similar to the Court’s reluctance to apply Green, the Court hesitates
to apply those other circuits’ decision.
The City has cited to the Sledge decision from the Eighth Circuit, but
the Court is unable to apply that decision for several reasons. 460 F.3d 963,
cert. denied, 549 U.S. 1297 (2007). In Sledge, a police officer was watching a car
that was parked outside of a liquor store. Id. at 964–65. He observed an
exchange of money and alcohol between the driver of the car and an
individual who had left the liquor store. Id. Believing that he observed the
sale of alcohol to a minor taking place in the car, the officer approached the
car. Id. Upon arriving at the car, the officer requested the driver’s
identification, which showed that the driver was 19 years old. Id. The officer
also observed the defendant sitting in the back seat and recognized him as a
suspect in other unrelated violations. Id. After backup had arrived, the
officers took the defendant out of the car and began to pat him down. Id. The
defendant then attempted to run away and was quickly apprehended. Id. The
officers then performed a full search of the defendant, finding cash and
cocaine. Id.
The defendant was indicted in federal court and moved to suppress
that evidence. Id. The district judge denied that motion concluding that the
defendant “forfeited any Fourth Amendment protection by resisting and
running away from the officers, thus creating probable cause to arrest [the

Page 38 of 56

defendant] for obstructing a peace officer, in violation of Neb. Rev. Stat. § 28906(1).” Id. at 966.
The Eighth Circuit agreed with that conclusion, noting that “even
assuming arguendo the detention and pat-down search of [the defendant]
were invalid—a conclusion we need not reach today—[the defendant]’s
actions provided independent grounds for his arrest.” Id. at 967–68.
But the Court is not convinced that it should give authoritative weight
to Sledge. Of course, it being an Eighth Circuit case, it is only entitled to
persuasive authority in this district. Sledge also endorsed a very broad,
bright-line rule—specifically, that the mere fact of an attempt to escape
waives any Fourth Amendment privilege regardless of the legality of the
officers’ actions. See id. at 966–68. As the Court has already discussed, it is
reluctant to endorse such a broad and inflexible rule. Moreover, the Eighth
Circuit adopted this rule in a case where it was unnecessary. Given the fact
that the officer in Sledge had observed what clearly appeared to be an illegal
sale of alcohol to minors, he had reasonable suspicion to stop and search the
defendant. See id. at 964–65. Not only does that make the Eighth Circuit’s
broad holding unnecessary (and, thus, potentially dicta), it also separates the
circumstances in Sledge from those confronting Mr. Hardy. As already
discussed extensively, Mr. Hardy did not take any action that would have
given Officers Gasser and Garland reasonable suspicion to stop and search
him. There is one more distinct difference between Sledge and this case: the
Sledge court was considering whether probable cause existed to arrest the
defendant for violations of Nebraska statutes, which differ in significant
ways from Wisconsin’s analog statutes. Sledge found that the defendant’s
flight created probable cause to arrest for a violation of “obstructing a police
officer under Neb. Rev. Stat. § 28-906, or for resisting arrest under Neb. Rev.
Page 39 of 56

Stat. § 28-904.” Id. at 968. But both of those statutes make it a crime to resist
an officer “acting under color of his or her official capacity.” See Neb. Rev.
Stat. §§ 28-904, 28-906. Wisconsin’s statute, on the other hand makes it a
crime to resist arrest only when the officer is acting “with lawful authority.”
Wis. Stat. § 946.41(1).
The Court ends this survey of case law with a recent decision from the
D.C. Circuit that undercuts the City’s position. In United States v. Brodie, the
D.C. Circuit refused to find attenuation, contrary to the approach taken by
the Fourth, Fifth, Eighth, Tenth, and Eleventh Circuits’ decisions discussed
above. 742 F.3d 1058, 1062–64 (D.C. Cir. 2014). Brodie is another exclusionary
rule case. Id. It is important because its facts are very similar to the case at
hand.
In Brodie, officers were waiting to execute a search warrant at the
home of a murder suspect. Id. at 1060. While waiting, they saw the defendant
(who was not the murder suspect) exit the home. Id. The officers then
requested that the defendant stop and place his hands on a nearby car. Id. He
initially complied, but shortly thereafter fled. Id. During his flight, he
dropped three weapons. Id. Upon arresting the defendant, the arresting
officer conducted a pat down search and recovered crack cocaine. Id. The
defendant moved to suppress all of that evidence, which the district court
denied. Id. at 1060–61.
The D.C. Circuit reversed the district court. Id. at 1064. It held that the
officers’ initial stop of the defendant was illegal, as it was not a valid Terry
stop and also was not a legal seizure pursuant to an execution of a search
warrant. Id. at 1061–62 (citing Bailey v. United States, --- U.S. ----, 133 S.Ct. 1031
(2013); Michigan v. Summers, 452 U.S. 692, 704–05 (1981); Terry, 392 U.S. 1).

Page 40 of 56

Having determined that the initial stop was illegal, the D.C. Circuit next had
to apply Brown’s attenuation test. See Brodie, 742 F.3d at 1063. In doing so, the
D.C. Circuit held that the defendant’s flight did not constitute an intervening
circumstance. The Court quotes from Brodie at length, because the situations
are very similar:
The government contends that Brodie’s flight and
abandonment of evidence were intervening circumstances that
purged the taint. As those events flowed directly from the
seizure, however, it is hard to spot any attenuation. See United
States v. Wilson, 953 F.2d 116, 127 (4th Cir. 1991). There are
indeed a number of cases where courts have found attenuation
in a defendant's response to illegal police conduct. But in those
decisions the court found that the defendant had committed a
new crime, e.g., [ ] Bailey, 691 F.2d [at] 1015–18[ ], or had at least
fled in a manner posing serious risks to the public
safety—typically a vehicular flight leading to a high-speed car
chase, e.g., [ ] Boone, 62 F.3d [at] 324[ ].
Bailey contains perhaps the most analysis. The defendant
engaged in forcible resistance to the seizing officers, which the
court regarded as a violation of 18 U.S.C. § 111, making it a
crime to forcibly resist officers of the United States going about
the execution of their duties. The conclusion depended on the
court's reading § 111 as withholding any defense based on the
illegality of the officers’ prior conduct. Bailey, 691 F.2d at 1018.
Plainly we need not get into the soundness of these cases:
Brodie fled on foot, and the manner of his flight in itself posed
no incremental threat to anyone.
As to Brodie's discard of his weapons, the Bailey court’s
treatment of a similar case is persuasive. The court noted that
a defendant’s tossing marijuana out a car window during an
illegal stop did not constitute a new, attenuating crime: the
tossing “only revealed [the] extant crime and did not itself
constitute a crime.” Id. at 1017. So here.
United States v. Brodie, 742 F.3d 1058, 1063-64 (D.C. Cir. 2014).

Page 41 of 56

Brodie’s rationale applies almost perfectly to the situation at hand: the
officers’ initial stop of Mr. Hardy was illegal; that illegal stop precipitated Mr.
Hardy’s flight in quick succession; Mr. Hardy’s flight did not pose any
incremental threat to anyone.
2.1.4.2.3 Wisconsin Authority
Lacking any clear rule from the Seventh Circuit or any other circuit,
the Court finds it prudent to also look to Wisconsin law. It is, of course, a
nuance of Wisconsin law—the requirement that officers be acting with lawful
authority—that ultimately creates the question of whether Officers Gasser
and Garland had probable cause to arrest Mr. Hardy.
Again, the Court receives mixed guidance. In State v. Ferguson, the
Wisconsin Supreme Court affirmed that the lawful authority requirement is
a substantive element of Wis. Stat. § 946.41(1), and that “a constitutional
violation is an unlawful act.” 2009 WI 50, ¶¶ 14–17, 23, 317 Wis. 2d 586, 767
N.W.2d 187. On the other hand, the Wisconsin Supreme Court has abrogated
the common law privilege to resist an unlawful arrest; but that deals only
with the common law right to do so—not with the fact that Wis. Stat.
§ 946.41(1) requires, as an element, that officers act with lawful authority.
Wisconsin v. Hobson, 218 Wis. 2d 350, 379-80, 577 N.W.2d 825, 837 (1998). The
Wisconsin Court of Appeals recognized that distinction. Wisconsin v. Annina,
2006 WI App 202, ¶ 18, 296 Wis. 2d 599, 609-10, 723 N.W.2d 708, 713.
Considering all of this authority, the Western District of Wisconsin noted that
“[w]ithout lawful authority to make the demand [to step outside of a bar] in
the first place, [an officer] would have no probable cause to believe plaintiff
was violating § 946.41(1) by ignoring his directive.” Brunner v. McKillip, 488
F. Supp. 2d 775, 784-85 (W.D. Wis. 2007). Likewise, here, without lawful
authority to stop Mr. Hardy in the first place, the officers should have had no
Page 42 of 56

probable cause to believe that Mr. Hardy was violating § 946.41(1) by
refusing to comply with their directives.
2.1.4.3

False Arrest Conclusion

The Court reiterates that the City likely waived this argument. See
Section 2.1.4.1, supra.
But, even if it not, neither the jury instructions nor the verdict in this
case were legally erroneous, and thus the Court will allow the jury’s verdict
to stand. See Duran, 653 F.3d at 642–43. There is no clear answer to this
question, but the Court finds that the authority weighs slightly in favor of its
original position. The text of the statute, requiring lawful authority on the
part of the officers, is of particular importance. See Wis. Stat. § 946.41(1).
Wisconsin courts have affirmed that lawful authority is an element of the
crime, e.g., Ferguson, 2009 WI 50 at ¶¶ 14–17, 23, and the Western District of
Wisconsin has interpreted the statute similarly to this Court, see Brunner, 488
F. Supp. 2d at 784–85. Most of the exclusionary rule cases that could support
the City’s position are distinguishable. In fact, of all the exclusionary rule
cases, Brodie is by far the most similar and resulted in exclusion of the
evidence. While the issue presents a close call, the Court ultimately finds that
the authority supports the Court’s instructions and the jury’s verdict. There
was no legal error.
In asking whether an arrest was legal, the Supreme Court has
instructed courts to determine whether a police officer’s mistake was
“understandable” or that “the arrest [was] a reasonable response to the
situation facing [the officer] at the time.” See Atkins v. City of Chicago, 631 F.3d
823 (7th Cir. 2011) (citing Hill v. California, 401 U.S. 797, 804 (1971)). In this
case, the evidence showed that the officers’ actions were neither
understandable nor reasonable. The officers, themselves, manufactured the
Page 43 of 56

situation by stopping Mr. Hardy illegally. When Mr. Hardy took action
against that stop—similar to the defendant in Brodie—he did not present any
additional threat to the community, and the officers should have taken no
further action, knowing that they had no basis to stop him in the first place.
To be sure, the Supreme Court has recognized the necessity of
flexibility for police officers to do their jobs. See, e.g., Illinois v. Gates, 462 U.S.
213, 232 (1983). It has even recently allowed an officer’s reasonable mistake
of law to support reasonable suspicion. See Heien v. North Carolina, --- U.S.----,
135 S. Ct. 530 (2014). But whatever leeway has been allowed, all courts
should be reluctant to endorse the ability of police officers to engage in illegal
stops.17
In the end, the Court properly instructed the jury, creating a hybrid
instruction that took into account Wis. Stat. § 946.41(1) and the Seventh
Circuit’s pattern instructions, and the jury properly applied the Court’s
instructions. The Court instructed the jury to look for probable cause and
noted that the jury may find a false arrest if the officers lacked a reasonable
suspicion to stop Mr. Hardy. (See Docket #203 at 21–22). The jury considered
all of the evidence and concluded that the evidence established false arrest.

17

The City makes a half-hearted attempt to assert qualified immunity. (See
Docket #225 at 18; #241 at 15). Again, this is an argument that should have been
raised before the jury was instructed, so the Court finds that it has been waived.
See, e.g., Republic Tobacco Co., 381 F.3d at 733. Even if not waived, the Court finds
that case law had clearly established lawful authority as an element of Wis. Stat.
§ 946.41(1). See, e.g., Ferguson, 2009 WI 50 at ¶¶ 14–17, 23. Mr. Hardy also had a
clearly-established constitutional right not to be arrested without probable cause.
In light of this, the Court is of the opinion that the officers “should have been on
notice that [Mr. Hardy] had a right to be free from arrest. Rooni v. Biser, 742 F.3d
737, 742 (7th Cir. 2014) (citing Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 762 (7th
Cir. 2006)).

Page 44 of 56

That finding, being consistent with the evidence and an application of proper
law, must stand.
2.2

Punitive Damages

The City’s request that the Court reduce or set aside the punitive
damages award is the most significant part of the Rule 59 motions now under
consideration.
2.2.1

Vacatur of Entire Punitive Damages Award

The Court has already considered and rejected the City’s request to
entirely set aside the punitive damages award. See Section 1.1.3, supra. In
sum, the Court found ample evidence to support a punitive damages award.
2.2.2

Application of 1:1 Ratio

The Court can also readily reject the City’s second punitive damages
argument. The City’s second argument is that the Court should reduce the
punitive damages award using a 1:1 ratio,18 creating federal common law that
imposes such a limit on all civil rights cases. This argument fails for multiple
reasons. First, the primary case cited by the City, Exxon Shipping Co. v. Baker,
554 U.S. 471 (2008), is a maritime case. (See Docket #225 at 11–13). Second, the
Court cannot find any cases from the Seventh Circuit or any other circuit that
adopt such a limit. In fact, the Court cannot find any case law that even
questions whether punitive damages in civil rights cases are available at
ratios higher than 1:1. Finally, the Seventh Circuit considered whether to
extend Exxon Shipping’s 1:1 ratio to civil rights cases and implied it would
not, though it did not ultimately need to reach the question. Kunz v. DeFelice,

18

All ratios are in punitive:compensatory damage format. So a 1:1 ratio
would obviously be $1.00 of punitive damages to $1.00 of compensatory damages;
a 10:1 ratio would be $10.00 of punitive damages to $1.00 of compensatory
damages.

Page 45 of 56

538 F.3d 667, 678–79 (7th Cir. 2008). For these reasons, the Court cannot
adopt the City’s proposed 1:1 ratio.
2.2.3

Reduction of Award Pursuant to Principles of Due
Process

So, all that is left is the City’s request to reduce the award because it
violates due process. In appropriate circumstances, the Court has the
authority to grant a new trial on damages or a remittitur of an award that is
excessively large. See, e.g., AutoZone, 707 F.3d 824, 838–39 (7th Cir. 2013);
American Nat’l Bank & Trust Co. of Chicago v. Regional Transp. Authority, 125
F.3d 420, 437 (7th Cir. 1997); DeBlasio v. Ill. Cent. R.R., 52 F.3d 678, 687 (7th
Cir. 1995). But, consistent with the Seventh Amendment’s limitations on a
judge’s power to reexamine a jury verdict, the Court must be sure to accord
proper deference to the jury’s verdict. Farfaras v. Cit. Bank & Trust of Chicago,
433 F.3d 558, 566 (7th Cir. 2006); American Nat’l Bank & Trust Co., 125 F.3d at
437.; Latino v. Kaizer, 58 F.3d 310, 314 (7th Cir. 1995); Cygnar v. City of Chicago,
865 F.2d 827, 847 (7th Cir. 1989). The Court must limit its consideration to
“‘whether a punitive damage award is grossly excessive such that it offends
due process: (1) the degree of reprehensibility of defendant’s conduct; (2) the
disparity between the harm or potential harm suffered by the plaintiff and
his punitive damages award; and (3) the difference between this remedy and
the civil penalties authorized or imposed in comparable cases.’” Farfaras, 433
F.3d at 567 (quoting Kapelanski v. Johnson, 390 F.3d 525, 534 (7th Cir.2004);
citing BMW of N.A., Inc. v. Gore, 517 U.S. 559, 575 (1996)). See also AutoZone,
707 F.3d at 838 (citing State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408,
418 (2003)).
The Court will apply each of those three guideposts to determine
whether it should reduce the award and, if so, by how much.
Page 46 of 56

2.2.3.1

Reprehensibility of Defendants’ Conduct

“The first guidepost requires [the Court] to consider the
reprehensibility of the defendant’s conduct and is ‘[p]erhaps the most
important indicium of the reasonableness of a punitive damages award.’”
AutoZone, 707 F.3d at 838 (quoting Gore, 517 U.S. at 575). The Supreme Court
has further elaborated on this guidepost by providing courts with five factors
for analyzing the reprehensibility of a defendant’s conduct:
(1)

whether “the harm caused was physical as opposed to
economic”;

(2)

whether “the tortious conduct evinced an indifference to or a
reckless disregard for the health or safety of others”;

(3)

whether “the target of the conduct had financial vulnerability”;

(4)

whether “the conduct involved repeated actions or was an
isolated incident”; and

(5)

whether “the harm resulted from intentional malice, trickery,
or deceit, or mere accident.”

State Farm, 538 U.S. at 419 (citing Gore, 517 U.S. at 576–77).
The first of those factors weighs in favor of Mr. Hardy. The illegal stop
and false arrest did not involve an actual use of violence or cause physical
injury to Mr. Hardy. But both actions caused him mental harm and the latter
resulted in his physical detention for a significant period of time. In
considering an award of punitive damages on a malicious prosecution claim,
the Second Circuit recognized that a prosecutor “exercised an authority
backed by the weight and force of state power.” Lee v. Edwards, 101 F.3d 805,
810 (2d Cir. 1996). Thus, while the prosecutor’s “decision to charge [the
plaintiff] falsely was implemented merely by an entry on a form,…that act
nevertheless had the power to set into motion the coercive apparatus of the
state, which is ultimately rooted in a willingness to use force.” Id. (citing
Page 47 of 56

Bivens v. Six Unknown Named Agents, 403 U.S. 388, 392 (1971)). The Second
Circuit found such willingness to be evidence of violence, weighing in favor
of reprehensibility under its pre-State Farm reprehensibility framework. See
Lee, 101 F.3d at 809–810. If anything, Mr. Hardy’s situation is more
aggravated than the plaintiff’s in Lee, so the Court finds that the harm to Mr.
Hardy was physical; it is certainly more than economic.
The second factor also weighs in Mr. Hardy’s favor. In illegally
stopping Mr. Hardy to begin with, the officers’ conduct evinces an
indifference to the health and safety of others. As is evident from recent
events surrounding the deaths of Dontre Hamilton in Milwaukee, Eric
Garner in New York, and Michael Brown in Missouri, even the most routine
police stop has the possibility of escalating quickly. In other words, police
stops of citizens should not be taken lightly. And yet, for no apparent reason,
the officers in this case decided to stop Mr. Hardy. And, without a doubt, the
situation ended up escalating. Fortunately, no one was injured in this case.
But there is a thin line between Mr. Hardy’s leaving the scene in a police car
as opposed to an ambulance. Mr. Hardy is not blameless in this
situation—assuming that he was not strip-searched, as the jury found—he
put himself and others at risk by fleeing from an illegal but fairly standard
search. But the Court must be mindful of the fact that he would never have
been placed in that situation were it not for the precipitating event: the
officers’ decision to illegally stop him.
The third factor weighs slightly in Mr. Hardy’s favor. As far as the
Court can discern, Mr. Hardy is of limited means. However, this factor does
not weigh heavily in either direction, because there is no evidence that Mr.
Hardy suffered any negative financial consequences as a result of the officers’
actions.
Page 48 of 56

The fourth factor does not weigh heavily in either direction. There was
no evidence produced at trial to show that the defendant officers had
engaged in repeated acts of this sort.19
The fifth factor also does not weigh heavily in either direction. The
Court held that the jury reasonably found that the officers had acted with
reckless or callous indifference to Mr. Hardy’s rights. That seems to fall
somewhere in between “intentional malice, trickery, or deceit,” and an
“accident.”
In the end, having applied these five factors, the Court is left to
determine that the officers’ actions were reprehensible. Three factors weigh
in favor of reprehensibility, whereas two factors do not weigh in either
direction. Perhaps the officers’ actions in this case were not the worst actions
conceivable, but they did clearly violate Mr. Hardy’s rights. On balance, the
scales tip in Mr. Hardy’s favor on this first guidepost.
2.2.3.2

Disparity Between Harm and Punitive
Damages Award

The second guidepost weighs in favor of the City. “The Supreme
Court has repeatedly declined to set a fixed ratio to limit punitive damages
based on constitutional grounds, but it has recognized that in practice, ‘few
awards exceeding a single-digit ratio between punitive and compensatory

19

However, with that said, it is apparent that MPD has opted to continue the
sort of illegal stops that Mr. Hardy was subject to. MPD Chief Edward Flynn has
made clear that one of his prerogatives is encouraging large amounts of pedestrian
stops, regardless of the reasons. In criticizing Floyd v. City of New York, the Southern
District of New York case finding the New York Police Department’s stop-and-frisk
tactics illegal, Chief Flynn stated, “That’s what worries us about what’s happening
in New York. It would be a shame if some people decided to put us back in our cars
just answering calls and ceding the streets to thugs.” Heather MacDonald, “How
To Increase the Crime Rate Nationwide,” The Wall Street Journal (June 11, 2013)
(quoting previous Flynn statements to L.A. Times).

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damages…will satisfy due process.’” AutoZone, 707 F.3d at 839 (quoting State
Farm, 538 U.S. at 424–25). “This approximation is not definitive because
‘courts must ensure that the measure of punishment is both reasonable and
proportionate to the amount of harm to the plaintiff and to the general
damages recovered.’” AutoZone, 707 F.3d at 839 (quoting State Farm, 538 U.S.
at 426). The Seventh Circuit, in a pre-State Farm decision, however, offered
the following proviso, which is important to remember:
The smaller the compensatory damages, the higher the ratio of
punitive to compensatory damages has to be in order to fulfill
the objectives of awarding punitive damages, which we
canvassed in Kemezy v. Peters, 79 F.3d 33, 34–35 (7th Cir.
1996)…The compensatory damages were low here in part
because of the inherent difficulties of fixing a dollar equivalent
for subjective injuries, such as fright and pain. An award of
punitive damages proportioned to the low compensatory
damages that were awarded would have a very meager
deterrent effect, would fail to signal to the prison authorities
that savage treatment of prisoners will not be tolerated, and
would not be commensurate with the moral gravity of the
defendants’ actions.
Cooper v. Casey, 97 F.3d 914, 919-20 (7th Cir. 1996) (affirming punitive
damages award of $22,500.00 with a 12:1 ratio) (internal citation to Gore, 517
U.S. at 587 (Breyer, J., concurring), omitted). The Seventh Circuit affirmed
this general principle in Alexander v. City of Milwaukee, 474 F.3d 437, 454 (7th
Cir. 2007) (affirming punitive damages award with ratio up to 10.73:1, noting
that the compensatory damages were relatively low).
In this case, the jury awarded a total of $500,000.00 in punitive
damages and $6,000.00 in compensatory damages. This leads to an extremely
high ratio of more than 80:1.
The City is correct that such a high ratio cannot stand. This is not the
exceptional case in which the punitive damages award should exceed a
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single-digit ratio. See State Farm, 538 U.S. at 424–25. To be sure, the defendant
officers’ actions were reprehensible examples of police misconduct and the
Seventh Circuit takes police misconduct very seriously. See Cooper, 97 F.3d at
919 (in police brutality case, noting that “[t]he need to deter such behavior is
plain: police brutality is a longstanding problem with which many cities are
still coming to grips”; while perhaps not as serious as police brutality, illegal
stops like the ones in this case are still very prevalent and should be viewed
with great skepticism). But, on the greater scale of police misconduct, the
illegal stop and false arrest in this case fall toward the less-serious end.
However, with that said, the Court notes that the compensatory
damages award in this case was relatively low, and so the ratio of punitive
to compensatory damages can logically be on the higher end of the singledigit scale. See Cooper, 97 F.3d at 919–20.
Applying these principles, the Court finds that a 9:1 ratio should work
quite well. That ratio is still within the single digits, but at the higher end of
the range. It would result in a total award of $60,000.00, comprised of
$6,000.00 in compensatory damages and $54,000.00 in punitive damages.
2.2.3.3

Comparison With Other Cases

Both parties agree that it is difficult to adequately compare the award
in this case to awards in other cases. (See Docket #225 at 15; #239 at 18–20).
The fact-specific nature of claims, particularly in the civil rights context,
results in a dearth of apples-to-apples comparisons. Addressing every
existing case (or even all of the cases cited by the parties) would be a fool’s
errand. Suffice it to say that Mr. Hardy is correct when he notes that “[o]f
course, there are verdicts with lower punitive damages awards just as there
are comparable cases with higher awards….” (Docket #239 at 19–20).

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With a specific reduction already in mind—$54,000.00 using a 9:1
ratio—the Court will compare that decision to other, related awards to
ensure that it is in line. The Court finds the following Seventh Circuit cases
instructive:
•

Hendrickson v. Cooper. In case involving aggravated use of
excessive force, Seventh Circuit affirmed total award of
$200,000.00, comprised of $125,000.00 of punitive damages and
$75,000.00 of compensatory damages. 589 F.3d 887, 894–95 (7th
Cir. 2009).

•

Kunz v. DeFelice. In police brutality case, Seventh Circuit
affirmed total award of $100,000.00, composed of $90,000.00 of
punitive damages and $10,000.00 of compensatory damages.
538 F.3d at 679.

•

Alexander v. City of Milwaukee. In multi-plaintiff employment
discrimination case, Seventh Circuit affirmed award of
$102,000.00 in punitive damages to each plaintiff. Resulting
ratio ranged from 2:1 to 10.73:1, as plaintiffs had received
compensatory damages awards ranging from $9,500.00 to
$50,000.00. 474 F.3d at 454.

The Court believes that its proposed reduction falls squarely in line with
those cases. To begin, the officers’ actions in this case were not as aggravated
as what occurred in Hendrickson or Kunz. Therefore, it is rational that the
punitive damages award should be less than what was awarded in either of
those cases. Meanwhile, both Kunz and Alexander support the fact that a 9:1
ratio is available and constitutional. Moreover, Alexander employed a ratio
of greater than 9:1 on facts that, while much different, do not show
significantly greater reprehensibility than what occurred in this case. Finally,
the Court notes that the City may attempt to argue that the Court should
reduce the ratio further, pursuant to Hendrickson, seeing as Hendrickson
involved more aggravated facts and utilized a ratio of less than 2:1. The
Court would reject such reasoning, noting that the compensatory damages
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award in Hendrickson was very large, meaning that a lower ratio was
necessary to keep the punitive damages in the realm of constitutionality.
2.2.4

Damages Conclusion

In sum, the Court has considered and rejected the City’s request to
vacate the entire punitive damages award or reduce it to a 1:1 ratio.
Nonetheless, the Court is obliged to reduce the punitive damages
award, so that the award comports with principles of due process. Having
applied the three guideposts for assessing the constitutionality of punitive
damages, the Court has determined that it must reduce the punitive damages
award to $54,000.00, or $27,000.00 against each officer. This reduction results
in a total award of $60,000.00 to Mr. Hardy, comprised of $6,000.00 in
compensatory damages and $54,000.00 in punitive damages.
Having determined that remittitur is necessary on the basis that the
jury “simply…overcompensated” Mr. Hardy, the Court is obliged to offer
Mr. Hardy the choice between accepting the Court’s reformulated punitive
damages award and a new trial. See, e.g., Fox v. Hayes, 600 F.3d 819, 846 (7th
Cir. 2010) (citing Ramsey v. Am. Air Filter Co., 772 F.2d 1303, 1314 (7th Cir.
1985); Wright, Miller & Kane, 216–17 Federal Practice & Procedure § 2820 (2d
ed. 1995 & Supp. 2009); Spray-Rite Serv. Corp. v. Monsanto Co., 684 F.2d 1226,
1244 (7th Cir. 1982)). The Court will offer Mr. Hardy 21 days within which
to file a letter with the Court, either consenting to or refusing the Court’s
remission of the punitive damages award. If Mr. Hardy refuses to consent to
the reduced award, the Court will be obliged to conduct a new trial on the
question of punitive damages, alone.

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4.

CONCLUSION
In sum, the Court will grant in part and deny in part the City’s Rule

59 motions. In all but one respect, the Court is obliged to deny those motions.
But the one respect in which the Court must grant the motion is significant:
it must reduce the total punitive damages award from $500,000.00 to
$54,000.00. Without a doubt, this is a very substantial reduction. But, in light
of the evidence and case law, $54,000.00 in punitive damages is actually a
very large amount. In total, the City is obliged to pay $60,000.00 to Mr.
Hardy.
And that $60,000.00 does not take into account the fact that Mr. Hardy,
as the prevailing party, is also entitled to a very significant award of
attorneys’ fees and costs. See 42 U.S.C. § 1988; Fed. R. Civ. P. 54(d)(1). At this
juncture, the Court will not address the specifics of Mr. Hardy’s motion for
fees (Docket #219) and his request for costs (Docket #220). Rather, the Court
will again refer this case to Magistrate Judge Aaron Goodstein for one or
more mediation sessions, with the thought that the parties may be able to
reach a settlement on those matters. As the Court has done throughout the
pendency of this case, it urges the parties to work cooperatively with one
another in addressing these remaining issues. Significant time and money
could have been saved if the City had considered reasonable efforts designed
to achieve resolution of the case short of trial. Instead, the City adopted an
antagonistic approach that resulted in a trial only to be followed by the
pending request for significant fees and costs. So, once again the time is ripe
to consider taking a reasoned, collaborative approach to conclude the
remaining issues. But, for the moment, there matters remain in the hands
of the parties, working with Magistrate Judge Goodstein. If the parties are

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ultimately unable to reach a settlement on costs and fees, the Court will take
such further action as may become necessary.
Finally, the Court must do a bit of housekeeping. First, the Court
acknowledges receipt of Mr. Hardy’s motion to adjourn the adjudication of
his bill of costs until after resolution of the Rule 59 motions. (Docket #232).
The Court will deny that motion as moot, because it has now addressed the
Rule 59 motions without addressing Mr. Hardy’s bill of costs. Second, the
Court will grant Mr. Hardy’s motion to amend or correct his bill of costs.
(Docket #237). Mr. Hardy’s attorneys accidentally failed to attach an exhibit
when docketing the bill of costs, and the Court sees no reason why they
should not have an opportunity to correct that inadvertent mistake,
especially in light of the fact that this matter has now been prolonged by the
City’s Rule 59 motions. The City’s opposition is yet another example of the
sort of unnecessary intransigence exhibited by the City throughout the
pendency of this case.
Accordingly,
IT IS ORDERED that the City’s Rule 59(e) motion to alter or amend
the judgment (Docket #224) and Rule 59(a) motion for a new trial (Docket
#226) be and the same are hereby GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that the Rule 59 motions are granted
insofar as the Court is obliged to reduce the punitive damages award to
$54,000.00 (comprised of $27,000.00 apiece against Officer Gasser and Officer
Garland) or to grant a new trial on the issue of punitive damages. Within 21
days of the entry of this order, Mr. Hardy shall file a letter with the Court
either consenting to the reduced punitive damages award or requesting a
new trial. In the event that Mr. Hardy elects to accept the reduced punitive
damages award, the Court will immediately enter an amended judgment
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reflecting the reduced award. In the event that Mr. Hardy elects a new trial,
the Court will coordinate with the parties to schedule the trial to occur
forthwith.
IT IS FURTHER ORDERED that the Rule 59 motions are denied in
all other respects.
IT IS FURTHER ORDERED that Mr. Hardy’s motion for fees (Docket
#219) and bill of costs (Docket #220) be and the same are hereby REFERRED
to Magistrate Judge Aaron Goodstein for one or more mediation sessions.
The parties shall coordinate with Magistrate Judge Goodstein’s chambers to
set up the mediation session or sessions.
IT IS FURTHER ORDERED that Mr. Hardy’s motion to adjourn
adjudication of his bill of costs (Docket #232) be and the same is hereby
DENIED as moot.
IT IS FURTHER ORDERED that Mr. Hardy’s motion to amend or
correct his bill of costs (Docket #237) be and the same is hereby GRANTED.
Dated at Milwaukee, Wisconsin, this 27th day of February, 2015.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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