Black v. Clarke, 285 F.Supp.
3d 1070 (2018)
285 F.Supp.3d 1070
United States District Court, E.D. Wisconsin.
Daniel BLACK, Plaintiff,
v.
David CLARKE, County of Milwaukee,
Wisconsin, and John Does One–Six, Defendants.
Case No. 17–CV–156–JPS
|
Signed 01/05/2018
Synopsis
Background: Airplane passenger, who was questioned after
encounter with sheriff on plane, brought action against county
sheriff and county, alleging violations of First, Fourth, and
Fourteenth Amendments. Sheriff and county moved for
summary judgment.
Holdings: The District Court, J. P. Stadtmueller, J., held that:
[1] deputies' interview of passenger did not amount to seizure
within meaning of Fourth Amendment;
[2] sheriff did not retaliate against airplane passenger by
directing deputies to interview him;
[3] genuine issue of material fact existed as to whether
sheriff's posts on social media were sufficiently threatening to
deter future speech; and
[4] sheriff did not violate Due Process Clause under state-
created danger theory.
Motion granted in part and denied in part.
West Headnotes (24)
[1] Arrest Reasonableness;  reason or founded
suspicion, etc
To state a cause of action for violation of
the Fourth Amendment right to be free form
unreasonable seizures, the defendant's conduct
must constitute a seizure and that seizure
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
must have been unreasonable in light of the
circumstances. U.S. Const. Amend. 4.
[2] Arrest What Constitutes a Seizure or
Detention
A “seizure” occurs, within meaning of Fourth
Amendment, when a person's freedom of
movement is restrained either by physical force
or a show of authority. U.S. Const. Amend. 4.
[3] Arrest What Constitutes a Seizure or
Detention
Not all encounters between law enforcement
and citizens constitute seizures under Fourth
Amendment. U.S. Const. Amend. 4.
[4] Arrest On Criminal Charges
Police-citizen encounters generally fall into
one of three categories, only the first two
of which constitute seizures under Fourth
Amendment: (1) an arrest, requiring probable
cause; (2) an investigatory stop, limited to a brief,
non-intrusive detention based on specific and
articulable facts supporting reasonable suspicion
of criminal activity; and (3) voluntary encounters
involving no restraint on the citizen's liberty. U.S.
Const. Amend. 4.
[5] Arrest What Constitutes a Seizure or
Detention
A seizure occurs, within meaning of Fourth
Amendment, only if, in view of all of
the circumstances surrounding the incident, a
reasonable person would have believed that he
was not free to leave. U.S. Const. Amend. 4.
[6] Arrest What Constitutes a Seizure or
Detention
Circumstances indicative of a seizure, within
meaning of Fourth Amendment, include the
threatening presence of several officers, display
of their weapons, physical touching of the private
1
Black v. Clarke, 285 F.Supp.3d 1070 (2018)
citizen, use of forceful language or tone of voice,
indicating that compliance with the officers'
request might be compelled, the location in
which the encounter takes place, whether police
made statements to the citizen intimating that
he or she was a suspect of a crime, whether
the citizen's freedom of movement was intruded
upon in some way, whether the encounter
occurred in a public or private place, and whether
the officers informed the suspect that he or she
was free to leave; these factors, however, are
neither exhaustive nor exclusive. U.S. Const.
Amend. 4.
[7] Arrest Particular cases
Deputies' interview of airplane passenger after
flight, at sheriff's request, did not amount to
seizure within meaning of Fourth Amendment,
although several officers were present at gate
when passenger deplaned; sheriff indicated that
passenger had not done anything that would
rise to level of citation or arrest and did not
instruct his deputies to arrest or detain passenger,
only two deputies approached passenger for
questioning, there was no indication that deputies
displayed their weapons, that deputies were
forceful with passenger, or that deputies used
forceful language, deputies' questions were of
fact-gathering, as opposed to accusatory, nature,
deputies did not intimate to passenger that he was
suspect of crime, and encounter was relatively
brief and occurred in area of airport that was open
to public. U.S. Const. Amend. 4.
[8] Constitutional Law Retaliation in general
To prevail on a First Amendment retaliation
claim, the plaintiff must show that (1) he engaged
in activity protected by the First Amendment;
(2) he suffered a deprivation that would likely
deter First Amendment activity in the future; and
(3) the First Amendment activity was at least a
motivating factor in the defendant's decision to
take the retaliatory action. U.S. Const. Amend. 1.
[9] Constitutional Law Retaliation
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
Constitutional Law Threats
Retaliatory speech is generally actionable under
First Amendment only in situations of threat,
coercion, or intimidation that punishment,
sanction, or adverse regulatory action will
immediately follow. U.S. Const. Amend. 1.
[10] Constitutional Law Retaliation
Constitutional Law Harassment by
government due to speech
A public official may face liability under First
Amendment for retaliatory speech that is not
threatening, but is humiliating or harassing; but
this is a high bar, usually limited to the release
of highly personal and extremely humiliating
details to the public. U.S. Const. Amend. 1.
[11] Constitutional Law Harassment by
government due to speech
A public official can be held liable for First
Amendment retaliation by subjecting the speaker
to a campaign of petty harassment. U.S. Const.
Amend. 1.
[12] Constitutional Law Harassment by
government due to speech
An isolated instance of public ridicule will
not amount to actionable retaliatory harassment
under First Amendment unless it is egregious
enough to deter a person of ordinary firmness
from exercising his right of free speech. U.S.
Const. Amend. 1.
1 Cases that cite this headnote
[13] Constitutional Law Interaction with
public safety officials
Sheriffs and Constables Liabilities for
negligence or misconduct in general
Sheriff did not retaliate against airplane
passenger, who stared and shook his head in
displeasure at sheriff on plane, by directing his
deputies to stop and interview him at airport, and
thus sheriff was not liable for First Amendment
2
Black v. Clarke, 285 F.Supp.3d 1070 (2018)

retaliation; sheriff's action would not deter

person of ordinary firmness from exercising
First Amendment rights in future, passenger
voluntarily submitted to interview with deputies
at airport, and he was not deprived of anything or
made to do something he did not agree to. U.S.
Const. Amend. 1.
1 Cases that cite this headnote
[18] Constitutional Law Duty to Protect;
 Failure to Act
Due process generally confers no affirmative
right to governmental aid, even where such
aid may be necessary to secure life, liberty, or
property interests. U.S. Const. Amend. 14.

[14] Federal Civil Procedure Civil rights cases

[19] Constitutional Law Creation of danger or
in general
risk
Genuine issue of material fact existed as to
Under the state-created danger doctrine, a
whether sheriff's posts on social media, allegedly
substantive due process claim can proceed
mocking and threatening airplane passenger,
where the state affirmatively places a particular
who stared and shook his head in displeasure
individual in a position of danger the individual
at sheriff on plane, were sufficiently threatening
would not otherwise have faced. U.S. Const.
to deter future speech, precluding summary
Amend. 14.
judgment on claim for First Amendment
retaliation. U.S. Const. Amend. 1.

[20] Constitutional Law Creation of danger or

[15] Constitutional Law Retaliation in general
Retaliation need not be monstrous to be
actionable under the First Amendment. U.S.
Const. Amend. 1.
[16] Constitutional Law Questions of law or
fact
Whether retaliatory conduct is sufficiently severe
as to be actionable under First Amendment is a
question of fact, unless it is so trivial that it would
not deter a person of ordinary firmness from the
exercise of the right. U.S. Const. Amend. 1.
1 Cases that cite this headnote
[17] Civil Rights Good faith and
reasonableness;  knowledge and clarity of law;
 motive and intent, in general
The doctrine of qualified immunity protects
government officials from liability for civil
damages insofar as their conduct does not violate
clearly established statutory or constitutional
rights of which a reasonable person would have
known.
risk
To prevail on a due process claim under the state-
created danger theory, plaintiff must show that
(1) the state by its affirmative acts created or
increased a danger to him, (2) the state's failure to
protect him from danger was the proximate cause
of his injury and (3) the state's failure to protect
him shocks the conscience. U.S. Const. Amend.
14.
[21] Constitutional Law Creation of danger or
risk
A public official must act with a mens rea akin to
criminal recklessness for constitutional liability
to attach under Due Process Clause pursuant to
state-created danger theory. U.S. Const. Amend.
14.
[22] Constitutional Law Conduct of Police and
Prosecutors in General
Sheriffs and Constables Liabilities for
negligence or misconduct in general
Sheriff, who posted on social media, allegedly
mocking and threatening airplane passenger,

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 3

Black v. Clarke, 285 F.Supp.3d 1070 (2018)
who stared and shook his head in displeasure
at sheriff on plane, did not violate Due Process
Clause under state-created danger theory, despite
argument that sheriff placed passenger in
position of danger by actively encouraging
harassment that passenger experienced online;
even if danger passenger faced from online
harassment by third-parties was kind of danger
meant to be addressed by state-created danger
rule, there was no indication that sheriff knew
or should have known that passenger would face
danger of online harassment from third-parties
after he made his posts. U.S. Const. Amend. 14.
[23] Civil Rights Criminal law enforcement;
 prisons
County was not liable under Monell for
alleged First Amendment retaliation arising from
sheriff's posting on social media, allegedly
mocking and threatening airplane passenger who
had stared and shook his head in displeasure at
sheriff on plane; there was no indication that
sheriff's social media conduct was undertaken
pursuant to policy or practice of county or
its sheriff's office or that sheriff had final
policymaking authority in area of responding
to complaints from citizens or using sheriff's
office's social media accounts. U.S. Const.
Amend. 1.
[24] Federal Courts Constitutional rights, civil
rights, and discrimination in general
Whether a particular official has final
policymaking authority, for purposes of Monell
liability, is a question of state law.
Attorneys and Law Firms
*1073 William F. Sulton, Peterson Johnson & Murray SC,
Milwaukee, WI, for Plaintiff.
Andrew A. Jones, Kurt Simatic, Charles H. Bohl, Leslie
A. Gutierrez, Husch Blackwell LLP, Milwaukee, WI, for
Defendants.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
ORDER
J. P. Stadtmueller, U.S. District Judge
1. INTRODUCTION
This action arises from an encounter on an airplane between
former Milwaukee County Sheriff David Clarke (“Clarke”)
and the plaintiff, Daniel Black (“Black”), which led to airport
questioning and a social media spat. Black accuses Clarke
of First, Fourth, and Fourteenth Amendment violations, and
seeks to hold both him and Milwaukee County liable.
On September 11, 2017, the defendants filed a motion for
summary judgment. (Docket # 15). Black responded on
October 11, 2017, (Docket # 25), and the defendants *1074
replied on October 25, 2017 (Docket # 29). For the reasons
explained below, the defendants' motion will be granted in
part and denied in part. The surviving claim will proceed to
a jury trial.
2. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 states that the “court
shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th
Cir. 2016). A “genuine” dispute of material fact is created
when “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986). The Court construes all facts and reasonable
inferences in a light most favorable to the non-movant. Bridge
v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th
Cir. 2016). In assessing the parties' proposed facts, the Court
must not weigh the evidence or determine witness credibility;
the Seventh Circuit instructs that “we leave those tasks to
factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688,
691 (7th Cir. 2010).
3. FACTUAL BACKGROUND
3.1 Plaintiff's Failure to Dispute Defendants' Proposed
Facts
Many of the relevant facts are undisputed because Black
failed to dispute them. Federal Rule of Civil Procedure 56 and
Civil Local Rule 56 describe in detail the form and contents
4
Black v. Clarke, 285 F.Supp.3d 1070 (2018)
of a proper summary judgment submission. In connection
with their motion for summary judgment, the defendants filed
a supporting statement of material facts that complied with
the applicable procedural rules. (Docket # 17). It contained
short, numbered paragraphs concisely stating those facts they
proposed to be beyond dispute, with supporting citations to
the attached evidentiary materials. See id.
As the party opposing the defendants' motion, Black was
required to file “a concise response to the moving party's
statement of facts” containing “a reproduction of each
numbered paragraph in the moving party's statement of
facts followed by a response to each paragraph, including,
in the case of any disagreement, specific references to
the affidavits, declarations, parts of the record, and other
supporting materials relied upon[.]” Civ. L. R. 56(b)(2)(B).
Black did no such thing. He filed only a memorandum of
law opposing summary judgment, his own proposed facts,
and a declaration attaching evidentiary material. (Docket #
25–28). The effect of this failure is that, for the purpose of
deciding summary judgment, the defendants' uncontroverted
statements of material fact are deemed admitted. Civ. L.
R. 56(b)(4); see also Fabriko Acquisition Corp. v. Prokos,
536 F.3d 605, 607–08 (7th Cir. 2008) (“[A] district court is
entitled to demand strict compliance with [the local] rules for
responding to a motion for summary judgment, and ... a court
does not abuse its discretion when it opts to disregard facts
presented in a manner inconsistent with the rules.”) (citation
omitted).
The Court will consider Black's proposed facts, (Docket # 28–
12), only to the extent they do not contradict the defendants'
uncontroverted proposed facts, (Docket # 17). 1
*1075 3.2 Relevant Facts
On January 15, 2017, Clarke boarded a plane bound for
Milwaukee, Wisconsin from the Dallas / Forth Worth
International Airport. He took his seat toward the front of the
plane. Black boarded the plane after Clarke, and, during the
boarding process, stopped in the aisle immediately adjacent
to Clarke's seat. Black asked Clarke if he was the Milwaukee
Sheriff, and Clarke responded affirmatively. Then, in what
Clarke believed was a physically threatening manner, Black
stared at Clarke and shook his head. As Black started to walk
toward his seat, Clarke asked Black if he had a problem, and
Black responded by turning, shaking his head, and waving
Clarke off in a manner indicating displeasure. The men did
not have further interaction during the flight.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
Before the plane took off, Clarke used his cell phone to call
Inspector Edward Bailey (“Bailey”), who was then employed
by the Milwaukee County Sheriff's Office and whose regular
duties included meeting Clarke at the Milwaukee airport
when Clarke arrived home from an out-of-state trip. Clarke
informed Bailey of the confrontation with Black, saying “it
had happened again” and that he had had a “confrontation
with a passenger on an aircraft.” (Docket # 17 at 4). 2
Clarke described Black to Bailey and told Bailey that the
confrontation had not been physical. Clarke did not think that
it amounted to an offense for which a citation or arrest was
appropriate. Clarke nevertheless told Bailey that he wanted
deputies to conduct a “field interview” of Black when the
plane arrived in Milwaukee. According to Clarke's undisputed
version of the facts, a “field interview” in the Sheriff's
parlance is a “voluntary police-citizen encounter in which
an officer obtains information from a citizen and makes an
identification of the citizen.” (Docket # 17 at 4). 3
Bailey immediately called Captain Mark Witek (“Witek”),
commander of the Airport Division of the Milwaukee County
Sherriff's Office, to relay the information he had just received
from Clarke. Separately, Clarke sent a text message to Witek
instructing him to have deputies conduct a field interview
of Black after the plane landed. Before the plane arrived in
Milwaukee, Witek told Deputies Steven Paull (“Paull”) and
Jeffrey Hartung (“Hartung”) that there was an individual on
Clarke's flight that had possibly harassed him, and that the
deputies were to conduct a field interview of that individual
to identify him and obtain basic information.
After the plane landed, Clarke exited the plane, entered the
concourse at Gate *1076 D54, and walked up to several
waiting Milwaukee County Sheriff's Office personnel. Witek,
Sergeant James Sajdowitz (“Sajdowitz”), Deputy Karen Mills
(“Mills”), and Mills' canine were there to greet Clarke as
part of standard procedure for the sheriff's airport arrival.
Paull and Hartung were there solely for the field interview.
Clarke stayed in the gate area with the other Sheriff's
Office personnel until Black exited the plane and entered
the concourse. Clarke identified Black to Witek, Paull, and
Hartung and then left the gate area with Witek, Sajdowitz, and
Mills.
Paull and Hartung approached Black and said they needed
to speak with him about an incident with Clarke on the
plane. A brief segment of security footage from the gate
area shows that the deputies did not use physical force when
5
Black v. Clarke, 285 F.Supp.3d 1070 (2018)

confronting Black. (Docket # 22–10). They walked with
him to an open area at the center of Concourse D, near an
unoccupied commercial space, that was not as confined and
crowded as the gate area. 4 As they walked, Paull was several
feet to Black's left and Hartung was behind Paull. When they
arrived in the open area of the concourse, the deputies told
Black to set down his bag and provide proof of his identity,
which he did. Hartung called dispatch to run a check of
Black's name and information from his Illinois driver's license
for any outstanding warrants.
While they waited on dispatch, Paull asked Black to describe
what happened with Clarke on the plane. Black relayed
his account, and Paull, skeptical that Black's account was
complete, asked Black if he had done anything else toward
Clarke. Black called the situation ridiculous and Paull agreed.
Paull asked Black what he thought of Clarke and Black
responded, “[n]o comment.” (Docket # 17 at 8). Paull and
Black then discussed other topics, apparently in a friendly
manner. The three men learned that they all had attended
the University of Wisconsin—Milwaukee for college, and
both Black and Hartung had played rugby there. When the
field interview concluded (presumably the warrant check
came back negative), the deputies escorted Black through the
airport and outside to a waiting car driven by Black's friend.
The field interview lasted approximately fifteen minutes. 5
on. From behind me he asked if I had a problem and I
shook my head no again. When we landed at Mitchell
International, I had a welcoming party of about six cops and
drug/bomb dogs, who questioned me for about 15 minutes
before escorting me out. Just posting to let y'all know be
careful around our Sheriff, he needs to be in a safe space
at all times.
(Docket # 22–1 at 13).
A couple days after the airport incident, Black filed a formal
complaint about Clarke with Milwaukee County. (Docket #
22–1 at 12). A day or two after that, on January 18, 2017,
the Milwaukee County Sherriff's Office Facebook account
posted a link to Black's complaint and a comment attributed
to Clarke: “Next time [Black] or anyone else pulls this stunt
on a plane they may get knocked out. The Sheriff ... does not
have to wait for some goof to assault him. He reserves the
reasonable right to pre-empt a possible assault.” See (Docket
# 22–1 at 15). 7 The next day, Clarke posted on the same
Facebook account a meme, reproduced below, that included a
picture of Black and the text “Cheer up, snowflake ... if Sheriff
Clarke were to really harass you, you wouldn't be around to
whine about it.” (Docket # 22–1 at 15 and # 30 at 10). 8
*1078

At no point in the interview did the deputies tell Black he

was not free to leave, nor did Black ask if he was free to
leave. 6 Black used his cell phone during the encounter to
communicate with the friend who was picking him up at
the *1077 airport. Black also filmed video as the deputies
escorted him out of the airport, and the deputies did not
stop him from doing so. At his deposition, Black described
the deputies who questioned him as “kind.” (Docket # 22–
1 at 2). Black acknowledged that he did not refuse to
answer the deputies' questions and said he was “trying to be
helpful.” (Docket # 22–1 at 8). He also testified that he felt
as though he could not leave without answering the deputies'
questions. Id.

Shortly after leaving the airport, Black posted about his

interaction with Clarke and the deputies on a public Facebook
group page. (Docket # 22–1 at 13). His post read:

Just got off a flight from Dallas. Our wonderful Sheriff

Clarke was on the flight. I couldn't tell if it was him because Black testified that he interpreted Clarke's posts as threats, and
he was all decked out in all Cowboys gear, so I asked. that they caused him mental and emotional harm. (Docket #
When he responded yes, I shook my head at him and moved 22–1 at 17). Black also testified that because of Clarke's posts,

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 6

Black v. Clarke, 285 F.Supp.3d 1070 (2018)
he has become the target of threatening and anti–Semitic
comments online. Id.
4. ANALYSIS
Black brings claims against Clarke under the First, Fourth,
and Fourteenth Amendments. 9 Black also brings a Monell
*1079 claim against Milwaukee County based on Clarke's
alleged constitutional violations. The defendants respond by
contesting each of the alleged constitutional violations and
arguing that, even if the Court finds a violation, Clarke is
entitled to qualified immunity.
The Court's analysis begins with Black's Fourth Amendment
claim, as the facts underlying that claim begin the story of
this case. The Court then turns to Black's First and Fourteenth
Amendment claims, and finally to Black's Monell claim
against Milwaukee County. Clarke's entreaty for qualified
immunity as to Black's constitutional claims is addressed only
where the Court finds a potential constitutional violation.
4.1 Fourth Amendment
[1] Black contends that Clarke violated his Fourth
Amendment right to be free from unreasonable seizures, see
United States v. Swift, 220 F.3d 502, 506 (7th Cir. 2000), when
Clarke directed deputies to confront him in the airport and
conduct an interview. To state a cause of action under the
Fourth Amendment, the defendant's conduct must constitute a
seizure and that seizure must have been unreasonable in light
of the circumstances. Brokaw v. Mercer Cnty., 235 F.3d 1000,
1010 (7th Cir. 2000). Defendants argue that: 1) Black was not
seized within the meaning of the Fourth Amendment; 2) even
if he was, Clarke did not direct the seizure; and 3) the seizure
was reasonable in any event. Determining whether Black was
seized at all is sufficient to dispose of the claim.
[2] [3] [4] [5] Stated in general terms, a seizure occurs
when a person's “freedom of movement” is restrained either
by “physical force” or a “show of authority.” United States v. Bailey and Witek to have deputies conduct an interview of
Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d
497 (1980). Not all encounters between law enforcement
and citizens constitute seizures. Police-citizen encounters
generally fall into one of three categories, only the first
two of which constitute seizures: (1) an arrest, requiring
probable cause; (2) an investigatory stop, limited to “a brief,
non-intrusive detention” based on specific and articulable
facts supporting reasonable suspicion of criminal activity;
and (3) voluntary encounters involving no restraint on the
citizen's liberty. United States v. Scheets, 188 F.3d 829, 836
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
(7th Cir. 1999). A seizure occurs “only if, in view of all
of the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave.”
Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870.
[6] Because this question is context-dependent, courts have
developed various factors to determine whether a seizure has
occurred. For example, circumstances indicative of a seizure
include
the threatening presence of several
officers, display of their weapons,
physical touching of the private
citizen, use of forceful language
or tone of voice (indicating that
compliance with the officers' request
might be compelled), and the location
in which the encounter takes place.
Courts also consider whether police
made statements to the citizen
intimating that he or she was a
suspect of a crime, whether the
citizen's freedom of movement was
intruded upon in some way, whether
the encounter occurred in a public or
private place, and whether the officers
informed the suspect that he or she was
free to leave. These factors, however,
are neither exhaustive nor exclusive.
United States v. Smith, 794 F.3d 681, 684 (7th Cir. 2015)
(internal quotations and marks omitted).
[7] Under the totality of the circumstances, the deputies'
interview of Black, at Clarke's request, did not amount to a
*1080 seizure. First, it is undisputed that Clarke instructed
Black, and that Black had not done anything that would rise
to the level of a citation or arrest. Clarke did not instruct his
deputies to arrest or detain Black.
Although several officers were present at the gate when
Black deplaned, only two approached him for questioning.
There is no allegation and no evidence in the record that
the deputies displayed their weapons. There is also no
allegation or evidence that the deputies were forceful with
Black, confirmed by the short amount of video surveillance
7
Black v. Clarke, 285 F.Supp.3d 1070 (2018)
capturing the deputies' initial contact with Black showing no
use of force. Nor did the deputies use forceful language; in
fact, Black testified that the deputies who interviewed him
were “kind.”
Next, the deputies' questions were of a fact-gathering, as
opposed to accusatory, nature. The deputies did not intimate
to Black that he was a suspect of a crime. The limited
information that Clarke conveyed to Witek, who presumably
conveyed the same to the deputies, was that Black had had
an interaction with Clarke on the plane that Clarke perceived
as threatening. The deputies collected Black's biographical
information, as well as his side of the story, before agreeing
that the whole incident was “ridiculous” and escorting Black
out of the airport to an awaiting car. Finally, the encounter was
relatively brief and occurred in an area of the airport that was
open to the public.
True enough, the deputies did not tell Black he was free to
leave, but Black also did not ask to leave. Black contends
that it was “obvious” he wanted to leave the airport without
staying to answer the deputies' questions, but that he could
not leave because the deputies had instructed him to set
down his bag and the deputies had his driver's license in
hand. (Docket # 28–12 at 3–4). The defendants counter that
Black answered the deputies' questions voluntarily, and Black
admits he sought to be helpful to the deputies. “[W]hether
a person asks permission to leave is but one factor among
many in the arrest analysis,” Fox v. Hayes, 600 F.3d 819, 833
(7th Cir. 2010), and in this case, the dispute about permission
to leave is overshadowed by the other circumstances of the
encounter, described above, which demonstrate that Black
was not seized. See Scheets, 188 F.3d at 837 (no seizure
occurred when subject agreed to accompany a federal agent
and private security officer to casino security office, and
subject was free to leave through an unlocked door next to
his chair).
Because Black was not seized within the meaning of the
Fourth Amendment, the defendants are entitled to summary
judgment on that claim. Brokaw, 235 F.3d at 1010.
4.2 First Amendment Retaliation
Black complains of two First Amendment violations. First,
he alleges that in response to his expressive conduct on the
plane (shaking his head in displeasure), Clarke retaliated
against him by sending his deputies to question him. Second,
he alleges that in response to his filing a complaint with
Milwaukee County, Clarke retaliated against him by making
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
threatening and harassing public posts about him on social
media.
[8] To prevail on a First Amendment retaliation claim, the
plaintiff must show that “(1) he engaged in activity protected
by the First Amendment; (2) he suffered a deprivation that
would likely deter First Amendment activity in the future; and
(3) the First Amendment activity was at least a motivating
factor in the defendant's decision to take the retaliatory
action.” *1081 Bridges v. Gilbert, 557 F.3d 541, 546 (7th
Cir. 2009) (citations and internal marks omitted).
[9] As to the second factor, retaliatory speech is generally
actionable “only in situations of threat, coercion, or
intimidation that punishment, sanction, or adverse regulatory
action will immediately follow.” Novoselsky v. Brown, 822
F.3d 342, 356 (7th Cir. 2016) (quotation and internal marks
omitted). A common fact pattern for retaliation cases is in
the employment context, where an employer threatens to
terminate, or actually terminates, an employee in retaliation
for the employee's protected (but unpopular) speech. See, e.g.,
Valentino v. Vill. of S. Chicago Heights, 575 F.3d 664, 674
(7th Cir. 2009) (municipal employee stated First Amendment
claim against mayor, municipal administrator who terminated
her, and municipality claiming she was fired in retaliation for
speaking out against their practices of nepotism and ghost
payrolling).
In fewer cases, possibly because the practice happens
less frequently, the Seventh Circuit has found actionable
retaliation where the defendant public official threatens
physical harm. In Fairley v. Andrews, for example,
correctional officers harassed two fellow officers to prevent
them from testifying in a civil rights case brought by several
inmates. 578 F.3d 518, 520 (7th Cir. 2009). The defendant
officers taunted and physically assaulted the plaintiff officers,
and when one of the plaintiff officers was attacked by an
inmate with a shank, a defendant officer remarked: “[y]ou
see that, Fairley? You fuck with people, that's how you get
stabbed.” Id.
[10] A public official may also face liability for retaliatory
speech that is not threatening, but is humiliating or harassing.
“But this is a high bar, usually limited to the release of highly
personal and extremely humiliating details to the public.”
Novoselsky, 822 F.3d at 356 (quotation omitted). The Seventh
Circuit has pointed to Bloch v. Ribar, a Sixth Circuit case, as
an example. Id. (citing Bloch v. Ribar, 156 F.3d 673 (6th Cir.
1998) ). In that case, a sheriff responded to a rape victim's
8
Black v. Clarke, 285 F.Supp.3d 1070 (2018)
criticism of his investigation of her rape by revealing to the
media intimate, humiliating, and undisclosed details about the
rape. Bloch, 156 F.3d at 679–80. The court found that the
victim stated a claim against the sheriff for First Amendment
retaliation. Id.
[11] Finally, a public official can be held liable for First
Amendment retaliation by subjecting the speaker to a
“campaign of petty harassment.” See, e.g., Bart v. Telford, 677
F.2d 622, 624 (7th Cir. 1982). In Bart, the Court of Appeals
found a cognizable First Amendment retaliation claim in
the employment context based on the defendants' concerted,
prolonged campaign of harassment. Id. This included such
things as baseless reprimands and ridicule for bringing a
birthday cake to the office on the occasion of the birthday
of another employee although the practice was common. Id.
Although the harassment allegations carried “a certain air of
the ridiculous,” the court held that they presented a question
of fact as to “whether the campaign reached the threshold of
actionability under section 1983.” Id. at 625.
Similarly, in Wallace v. Benware, the Court of Appeals
affirmed a jury's finding that the defendant county sheriff
violated the First Amendment by engaging in a campaign of
retaliatory harassment directed at the plaintiff deputy who
had announced that he would run against the sheriff in an
upcoming election. 67 F.3d 655, 662 (7th Cir. 1995). The
harassment included taking away the deputy's portable radio
and radar unit, ordering the deputy (but no one else) to
leave his squad car at *1082 the station on weekends,
inhibiting the deputy's ability to fulfill his responsibilities
in the department's D.A.R.E. program, giving the deputy
a series of atypical cleaning assignments, and, in the most
serious instance, putting the deputy in harm's way during
an armed robbery by ordering him to leave the scene from
a concealed position for no sensible reason. Id. at 656–58;
see also Bridges, 557 F.3d at 551–52 (prisoner sufficiently
pled retaliation by alleging that, after he filed an affidavit
in the wrongful death action of a deceased inmate's mother,
he experienced delays in his incoming and outgoing mail,
harassment by a guard kicking his cell door, turning his cell
light off and on, and opening his cell trap and slamming it
shut in order to startle him, unjustified disciplinary charges,
and improper dismissal of his grievances).
[12] In contrast, an isolated instance of public ridicule will
not amount to actionable retaliatory harassment unless it is
egregious enough to deter a person of ordinary firmness from
exercising his right of free speech. For example, the same
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
defendant in this case skirted a claim of retaliatory harassment
in Hutchins v. Clarke, where the Seventh Circuit found that
Clarke's statements on a radio show about a deputy who
had criticized Clarke did not amount to First Amendment
retaliation. 661 F.3d 947, 956–57 (7th Cir. 2011). In that
case, Clarke called into a radio show to respond to the
deputy's on-air criticism by calling the deputy “a ‘slacker’
who did not deserve to be an employee of the sheriff's
department,” and “express[ing] the view that [the deputy]
was bitter and carried a grudge against him because of a
disciplinary action” that Clarke had taken against the deputy.
Id. at 950. Clarke identified the disciplinary action on-air “as
a step taken as a result of [the deputy's] ‘sexual harassment’ of
another employee. In actuality, the disciplinary action was for
[the deputy's] violation of a department rule that prohibited
offensive conduct or language toward the public or toward
county officers or employees.” Id.
The Court of Appeals found that Clarke's statements did not
threaten punishment, and that “[e]ven if some ‘harassment
and ridicule’ might be retaliatory speech under § 1983, Sheriff
Clark[e]'s statements did not rise to that level.” Id. at 956–
57 (quotation omitted). After all, the Court must take into
account the defendant speaker's own right to free speech. Id. at
956; see also Novoselsky, 822 F.3d at 356 (“Unconstitutional
retaliation by a public official requires more than criticism or
even condemnation.”).
Having surveyed the landscape of applicable First
Amendment jurisprudence, the Court turns now to the two
incidents of alleged retaliation in this case.
4.2.1 The airport encounter
[13] Black first alleges that Clarke retaliated against him
by directing his deputies to stop and interview him at the
airport in response to Black having stared and shaken his
head in displeasure at Clarke on the plane. The defendants do
not contest that Black's expressive gesture on the plane was
protected speech or that Clarke's directive for the interview
was motivated by that speech. See (Docket # 29 at 12). The
only question, then, is whether the retaliatory action would
“deter a person of ordinary firmness” from exercising his First
Amendment rights in the future. Bridges, 557 F.3d at 552.
As discussed above, Black voluntarily submitted to an
interview with deputies at the airport. He was not “deprived”
of anything, or made to do something he did not agree to do.
9
Black v. Clarke, 285 F.Supp.3d 1070 (2018)
Black cites no authority for the proposition that being asked
to submit to voluntary questioning by police, in response
*1083 to a protected speech act, would deter a person from
exercising his speech rights in the future.
The analysis might be different if Black had been issued a
citation and/or fined for his on-board glare. See, e.g., Citizens
United v. Fed. Election Comm'n, 558 U.S. 310, 348, 130 S.Ct.
876, 175 L.Ed.2d 753 (2010) (“If the First Amendment has
any force, it prohibits Congress from fining or jailing citizens,
or associations of citizens, for simply engaging in political
speech.”). Different, too, if Black had been arrested. See,
e.g., Thayer v. Chiczewski, 705 F.3d 237, 252–53 (7th Cir.
2012) (recognizing that an arrest is a deprivation for purposes
of a First Amendment retaliatory claim, but noting that the
case law is unsettled as to whether the existence of probable
cause would be a complete bar to such a claim). On the facts
presented, however, Black has not shown that being stopped
for fifteen minutes in order to voluntarily respond to deputies'
questions would likely deter First Amendment activity in the
future. The defendants' motion for summary judgment must
be granted on this claim.
4.2.2 The Facebook posts
Black next alleges that Clarke retaliated against him by
making mocking and, in his view, threatening, posts on
Facebook in response to the airplane snub and the formal
complaint Black submitted to Milwaukee County. Recall that
Clarke's first post said that “[n]ext time [Black] or anyone
else pulls this stunt on a plane they may get knocked out,”
see (Docket # 22–1 at 15), and his second said that “if Sheriff
Clarke were to really harass you, you wouldn't be around to
whine about it,” (Docket # 22–1 at 15 and # 30 at 10). Black
claims to understand these post as threats meant to deter him
or others from criticizing Clarke.
[14] Again here, the defendants do not contest that Black
engaged in protected speech or that Clarke's posts were
motivated thereby. See (Docket # 29 at 12). The only question,
then, is whether Clarke's Facebook posts would deter a person
of ordinary firmness from exercising his First Amendment
rights.
The defendants are right that Clarke's posts do not amount
to a “campaign” of harassment like what was described in
Bart and Wallace, where the defendants repeatedly tormented
the plaintiffs with petty reprimands and ridicule. And Clarke's
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
posts are not profoundly humiliating to Black in the way that
the sheriff's public statements were to the plaintiff rape victim
in Bloch.
But Clarke's posts could reasonably be understood as a
“threat, coercion, or intimidation that punishment ... will
immediately follow.” Novoselsky, 822 F.3d at 356. They say
as much on their face, and in aggressive and combative
language. Cf. Fairley, 578 F.3d at 520 (defendant's comment
implying plaintiff officers deserved to be stabbed was
sufficiently threatening to state a claim). Of course, another
interpretation is that the posts are intentionally hyperbolic
(and juvenile) attempts at mockery and self-promotion, and
that an ordinary person would not be intimidated by them.
[15] [16] In this Circuit, “retaliation need not be monstrous
to be actionable under the First Amendment[.]” DeGuiseppe
v. Vill. of Bellwood, 68 F.3d 187, 192 (7th Cir. 1995). Whether
retaliatory conduct is sufficiently severe as to be actionable
is a question of fact, Wallace, 67 F.3d at 664, n.9, unless
it is so trivial that it would not deter a person of ordinary
firmness from the exercise of the right. Bart, 677 F.2d at
625. On the record before the Court, taking all facts in a
light most favorable to Black, the Court cannot say Clarke's
posts were so trivial that no jury *1084 could find them
to be sufficiently threatening to deter future speech. The
defendants' motion for summary judgement as to this claim
must be denied.
4.2.3 Qualified Immunity
[17] At this juncture, having determined that triable issues of
fact preclude summary judgment on Black's First Amendment
claim, the Court would ordinarily turn to the issue of
qualified immunity. The doctrine of qualified immunity
protects government officials “from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Pearson v. Callahan, 555 U.S. 223, 231,
129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d
396 (1982) ).
However, Clarke has not argued for qualified immunity as to
Black's First Amendment claim based on the Facebook posts;
he argues for qualified immunity only as to Black's Fourth
Amendment claim. (Docket # 16 at 10–13 and # 29 at 13–
15). For example, in his opening brief, Clarke argues that
10
Black v. Clarke, 285 F.Supp.3d 1070 (2018)
“[i]ndeed, there is and was on January 15, 2017, no clearly
established right on the part of an individual to avoid non-
coercive questioning and identification by law enforcement
after interacting with a public official who has a high-risk
security profile.” (Docket # 16 at 12). He repeats, nearly
verbatim, the same argument in his reply brief. (Docket # 29
at 13). Nowhere in his entreaty for qualified immunity does
Clarke even mention the Facebook posts, let alone argue that
he is entitled to protection for liability for a First Amendment
claim based on those posts.
It is not the Court's job to present arguments on a party's
behalf. Luddington v. Ind. Bell Tel. Co., 966 F.2d 225, 230
(7th Cir. 1992) (“If we assume lawyers' responsibilities, we
unbalance the market for legal services and take time away
from our consideration and decision of other cases.”). The
Court will not consider whether Clarke would be entitled to
qualified immunity for Black's surviving First Amendment
claim.
4.3 Fourteenth Amendment
[18] [19] Black's final claim against Clarke arises under are “underdeveloped, conclusory, or unsupported by law” are
the Due Process Clause of the Fourteenth Amendment.
Due process generally confers “no affirmative right to
governmental aid, even where such aid may be necessary
to secure life, liberty, or property interests.” DeShaney v.
Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 196, 109
S.Ct. 998, 103 L.Ed.2d 249 (1989). “Under the state-created
danger doctrine, however, a substantive due process claim
can proceed where the state ‘affirmatively places a particular
individual in a position of danger the individual would not
otherwise have faced.’ ” Wilson–Trattner v. Campbell, 863
F.3d 589, 593 (7th Cir. 2017) (quoting Doe v. Vill. of Arlington Clarke's actions reflect poor judgment, they do not shock
Heights, 782 F.3d 911, 916 (7th Cir. 2015) ).
[20] To prevail on a due process claim under the state-created
danger theory, Black must show that “(1) the state by its
affirmative acts created or increased a danger to [him], (2) the
state's failure to protect [him] from danger was the proximate
cause of [his] injury and (3) the state's failure to protect [him]
shocks the conscience.” Id. (citation omitted).
[21] “The ‘shocks the conscience’ prong is an attempt to
quantify the rare ‘most egregious official conduct’ required
for substantive due process liability.” Flint v. City of
Belvidere, 791 F.3d 764, 770 (7th Cir. 2015) (quoting *1085
Jackson v. Indian Prairie Sch. Dist. 204, 653 F.3d 647, 654–
55 (7th Cir. 2011) ). A public official “must act with a mens
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
rea akin to criminal recklessness for constitutional liability to
attach[.]” Flint, 791 F.3d at 770.
Conscience-shocking conduct includes, for example, officers
arresting a sober driver and leaving behind an obviously
drunk passenger with the keys to the vehicle who later caused
a collision, injuring the plaintiffs. Reed v. Gardner, 986 F.2d
1122, 1127 (7th Cir. 1993). So, too, when officers arrested a
woman in a safe place and released her in a hazardous one
while she was unable to protect herself. Paine v. Cason, 678
F.3d 500, 511 (7th Cir. 2012). In each of these cases, the
plaintiff was safe (or safer) until the police stepped in.
[22] Black claims that Clarke placed him in a position of
danger by “actively encourag[ing] harassment that Black
experienced online” because “without Sheriff Clarke's post
there are no threatening messages to Black.” (Docket # 25 at
16). This is the only sentence in Black's brief explaining why
he believes Clarke's conduct is actionable under this theory.
Id. The Court would be well within bounds to treat this claim
as underdeveloped, and thus waived. See Puffer v. Allstate
Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012) (arguments that
waived). Nevertheless, because it is also completely without
merit, the claim will be dismissed for that reason.
First, Black has not persuaded the Court that the “danger”
he faces from online harassment by third-parties is the kind
of danger meant to be addressed by the state-created danger
rule. Even if it were, Black has not even alleged, much less
proven with evidence, that Clarke knew or should have known
that Black would face the “danger” of online harassment
from third-parties after he made his Facebook posts. While
the conscience. To the extent Black wishes Clarke or other
officers would stop online bullies from harassing him, the
Fourteenth Amendment does not require the state to step in
to prevent private violence, much less private name-calling.
DeShaney, 489 U.S. at 196–97, 109 S.Ct. 998 (1989); Vill.
of Arlington Heights, 782 F.3d at 918. Black's Fourteenth
Amendment claim must be dismissed.
4.4 Monell
Finally, Black seeks to hold Milwaukee County liable for
Clarke's constitutional violations under Monell v. Dep't of
Soc. Servs. of City of New York, 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). The Supreme Court held in
Monell that although local government entities cannot be held
vicariously liable for constitutional violations committed by
11
Black v. Clarke, 285 F.Supp.3d 1070 (2018)
their employees, they can be held liable under Section 1983
if “the unconstitutional act complained of is caused by: (1) an
official policy adopted and promulgated by its officers; (2) a
governmental practice or custom that, although not officially
authorized, is widespread and well settled; or (3) an official
with final policy-making authority.” Thomas v. Cook Cnty.
Sheriff's Dep't, 604 F.3d 293, 303 (7th Cir. 2009) (citing
Monell, 436 U.S. at 690, 98 S.Ct. 2018).
[23] The only surviving constitutional claim for which
Milwaukee County could possibly be liable is Black's First
Amendment retaliation claim based on Clarke's Facebook
posts. Black has barely argued for application of Monell
to that claim. He primarily argues that Milwaukee County
should be held liable for a Fourth Amendment violation
based on the airport encounter, see (Docket # 25 at 17–
19), but the Court has already determined there was no
Fourth Amendment violation. See *1086 Swanigan v. City
of Chicago, 775 F.3d 953, 962 (7th Cir. 2015) (citing City
of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571,
89 L.Ed.2d 806 (1986) ) (“If the plaintiff fails to prove a
violation of his constitutional rights in his claim against the
individual defendants, there will be no viable Monell claim
based on the same allegations.”); see also Sallenger v. City
of Springfield, Ill., 630 F.3d 499, 504 (7th Cir. 2010) (“[A]
municipality cannot be liable under Monell [for failure to
train] where there is no underlying constitutional violation by
a municipal employee.”).
Black's underdeveloped argument for Monell liability as to the
First Amendment claim is that Clarke is a final policymaker
for Milwaukee County and he “encouraged his followers to
harass Black.” (Docket # 25 at 18). Black's complaint sheds
little additional light on his theory, adding that “[i]t is the
policy and practice of Sheriff Clarke's office and Milwaukee
County to intimidate and dissuade citizens from complaining
about misconduct by Sheriff Clarke and his deputies” and “to
threaten citizens that complain about misconduct by Sheriff
Clarke or his deputies.” (Docket # 1 at 10–11).
First, Black has not introduced any evidence whatsoever that
Clarke's social media conduct was undertaken pursuant to a
policy or practice of Milwaukee County or its Sheriff's Office.
The allegations here relate to isolated actions in one case, not
a policy or practice.
[24] Next, “whether a particular official has ‘final
policymaking authority’ is a question of state law,” City of
St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
L.Ed.2d 107 (1988), and Black has not pointed to Wisconsin
law indicating that Clarke has final policymaking authority
in the area of responding to complaints from citizens (or
using the Sheriff's Office social media accounts). Black only
argues that Clarke is a final policymaker in the area of law
enforcement at the airport. (Docket # 25 at 18).
The Court will not make Black's case for him. “Summary
judgment is the ‘put up or shut up’ moment in a lawsuit.”
Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010)
(quotation omitted). Black has not put up any evidence
connecting Milwaukee County to Clarke's potential First
Amendment violation in this case, and therefore summary
judgment must be granted in the defendants' favor as to
Black's Monell claim.
4.5 Doe defendants
Finally, the Court will dismiss the six John Doe defendants
who Black named in his complaint but who have not been
further identified in this case. The complaint alleges that
Does One and Two are the deputies who questioned Black
at the airport, and Does Three through Six are the other
deputies present at the gate when the plane carrying Black and
Clarke arrived in Milwaukee. (Docket # 1 at 5). Black learned
the identities of these deputies in discovery and addressed
them by name in his brief opposing summary judgment. See
(Docket # 25 at 7). He had more than ample opportunity to
amend his pleading to name these deputies as defendants if
he intended to maintain claims against them, and he did not.
They will be dismissed.
5. CONCLUSION
Black has raised a triable issue of fact as to his claim for First
Amendment retaliation based on Clarke's Facebook posts.
Unless otherwise resolved, that claim will proceed to a jury
trial as scheduled for January 22, 2018 (Docket # 13). As
to the *1087 balance of Black's claims, the defendants are
entitled to judgment as a matter of law. 10
Accordingly,
IT IS ORDERED that Black's motion for leave to untimely
file materials in opposition to summary judgment (Docket #
28) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the defendants' motion to
seal Exhibit A to the Declaration of Brian Barkow (Docket #
20) be and the same is hereby GRANTED;
12
Black v. Clarke, 285 F.Supp.3d 1070 (2018)

IT IS FURTHER ORDERED that defendants Milwaukee

IT IS FURTHER ORDERED that the defendants' motion
County and John Does One through Six be and the same are
for summary judgment (Docket # 15) be and the same is
hereby DISMISSED.
hereby GRANTED in part and DENIED in part as stated
in this Order;
All Citations
IT IS FURTHER ORDERED that Black's claims under the
Fourth and Fourteenth Amendments, his claim under the First 285 F.Supp.3d 1070
Amendment based on the airport interrogation, and his Monell
claim be and the same are hereby DISMISSED; and

Footnotes
1 Black filed amended proposed facts, an amended declaration, and accompanying exhibits a day after his deadline to
respond to the defendants' summary judgment motion. He moved the Court to excuse the late filing and accept his
submissions, stating that technical problems prevented him from completing a timely filing. (Docket # 28). The defendants
did not oppose Black's request. The Court will grant Black's motion and accept his submissions.
2 Clarke states that he had several unprovoked confrontations with members of the public at airports or on airplanes during
his tenure as Milwaukee County Sheriff. (Docket # 18 at 1).
3 Black states in his proposed facts that “[t]he term ‘field interview’ means a stop based on reasonable suspicion.” (Docket
# 27 at 5). This is inconsistent with the defendants' proposed facts and, as noted earlier, Black's failure to properly dispute
the defendants' proposed facts constrains this Court to accept the defendants' account. Further, even if Black had properly
disputed this fact, it would not change the Court's analysis, as Fourth Amendment claims are governed by an objective
standard. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (“Subjective intentions
play no role in ordinary, probable-cause Fourth Amendment analysis.”); Tebbens v. Mushol, 692 F.3d 807, 816 (7th Cir.
2012) (subjective intent of officers is irrelevant to inquiry into the nature of detention).
4 Black describes the area differently, stating in his proposed facts that it was “not open to the public.” (Docket # 30 at 4).
The defendants' undisputed version of this fact will be accepted. In any event, Black's deposition testimony makes clear
that the area to which he was taken for questioning was closed to the public only in the sense that it was beyond the
security checkpoint through which travelers pass to access the airports' gates. See (Docket # 22–1 at 7).
5 The parties bicker about whether the deputies' questioning lasted 15 minutes (in the defendants' view) or 25 minutes (in
Black's view). The plane carrying Clarke and Black landed at 2:32 p.m., see (Docket # 22–3) and the deputies escorted
Black out of the airport nineteen minutes later, at 2:51 p.m., see (Docket # 22–1 at 10). The defendants' estimate is not
properly disputed and also more accurate; it will be accepted.
6 Black offers contradictory testimony, stating that he did ask to leave and was told to wait. (Docket # 28–12 at 4). But his
failure to dispute the defendants' facts leaves those facts undisputed. Further, the Court's acceptance of the defendants'
version is bolstered by Hartung's deposition testimony. He indicated that when the deputies perceived Black was anxious
to meet his awaiting ride, they did not make him wait any longer, and escorted him out of the airport. See (Docket #
22–9 at 6).
7 Black did not include copies of the relevant Facebook posts as evidence in opposition to the defendants' summary
judgment motion. The Court therefore relies on reproductions in the complaint, Black's deposition testimony describing the
posts, and the posts themselves, which still appear on Facebook. See Milwaukee County Sheriff's Office, Facebook (Jan.
18, 2017), https://www.facebook.com/MilwaukeeCountySheriff/posts/10154659733950189; Milwaukee County Sheriff's
Office, Facebook (Jan. 19, 2017), https://www.facebook.com/MilwaukeeCountySheriff/posts/10154663044105189:0.
8 Although the January 19, 2017 post is not directly attributable to Clarke on its face, the defendants do not contest that
it was Clarke who made it. (Docket # 30 at 9–10).
9 The defendants ask the Court to disregard Black's First and Fourteenth Amendment claims because Black first asserted
them in response to their motion for summary judgment, and that, they argue, is too late in the day. The defendants are
right that a plaintiff “may not amend his complaint through arguments in his brief in opposition to a motion for summary
judgment.” Anderson v. Donahoe, 699 F.3d 989, 997 (7th Cir. 2012). On the other hand, a plaintiff has latitude to refine
and develop his legal theories based on the record that emerges in discovery. See CMFG Life Ins. Co. v. RBS Sec.,
Inc., 799 F.3d 729, 743 (7th Cir. 2015). This latitude is in keeping with Rule 8(a)'s notice pleading regime, under which

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 13

Black v. Clarke, 285 F.Supp.3d 1070 (2018)

“[a] complaint need not identify legal theories.” Id. at 744; see also Currie v. Chhabra, 728 F.3d 626, 629 (7th Cir. 2013)
(“It therefore does not matter whether the complaint mentioned the Fourth Amendment, the Fourteenth Amendment, or
neither, so long as it provided adequate notice of the plaintiff's claim to the defendants.”). A plaintiff opposing summary
judgment may not inject “new and drastic factual allegations,” but instead must adhere to the complaint's “fundamental
factual allegation[s].” Whitaker v. Milwaukee Cnty., 772 F.3d 802, 808 (7th Cir. 2014). Although Black's complaint does
not include reference to the First or Fourteenth Amendments, it does include the factual allegations on which those claims
are based, namely Clarke's social media response to Black's protected speech acts. See (Docket # 1 at 6–7, 10–11).
The defendants were on sufficient notice to defend against Black's First and Fourteenth Amendment claims as presented
in his summary judgment submission.
10 One last item remains for the Court's attention. Along with their summary judgment submissions, the defendants filed
a motion to seal Exhibit A to the declaration of Brian Barkow. (Docket # 20). The exhibit is matrix of information
summarizing “threats” made against Clarke between July 2016 and July 2017. It includes identifying information about
private citizens, including names, addresses, and birthdays. The defendants contend that public disclosure of this matrix
could jeopardize ongoing investigations, provide assistance to individuals hostile to Clarke or Milwaukee County, and
bring unwanted attention to the citizens whose identifying information is included. Id. Black opposes sealing, arguing
there is no expectation of privacy for people who make statements online and that, in any event, the matrix is irrelevant to
the claims at issue in this case. (Docket # 23). The defendants introduced the matrix to support their arguments opposing
Black's Fourth Amendment claim, which will be dismissed. See (Docket # 24 at 1–2). Because the exhibit is not dispositive
to any issue in this case, and because it includes personal, identifying information about citizens who are not parties,
the Court will grant the defendants' motion to seal it. See Goesel v. Boley Int'l (H.K.) Ltd., 738 F.3d 831, 833 (7th Cir.
2013) (“[T]he presumption of public access ‘applies only to the materials that formed the basis of the parties' dispute and
the district court's resolution’; other materials that may have crept into the record are not subject to the presumption.”)
(quotation omitted); see also Baxter Intern., Inc. v. Abbott Labs., 297 F.3d 544, 547 (7th Cir. 2002) (“Where confidential
material is non-dispositive ... sealing may be appropriate.”).

End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works.

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 14

Black v. Clarke, 285 F.Supp.3d 1070

Filings (13)

Title PDF Court Date Type

1. Complaint — E.D.Wis. Feb. 02, 2017 Pleading
Daniel BLACK, Plaintiff, v. David CLARKE, in his personal
capacity, John Doe One, in his personal capacity, John
Doe Two, in his personal capacity, John Doe Three, in
his personal capacity, John Doe Four, in his personal
capacity, John Doe Five, in his personal capacity, John
Doe Six, in his personal capacity, and COUNTY OF
MILWAUKEE, WISCONSIN, Defendants.
2017 WL 467737
2. Brief in Support of Defendants' Motion to Compel — E.D.Wis. Oct. 31, 2017 Motion
Daniel BLACK, Plaintiff, v. David A. CLARKE, Jr., et al.,
Defendants.
2017 WL 6017571
3. Reply Brief in Support of Defendants' Motion for — E.D.Wis. Oct. 25, 2017 Motion
Summary Judgment
Daniel BLACK, Plaintiff, v. David A. CLARKE, Jr., et al.,
Defendants.
2017 WL 6017570
4. Brief in Opposition to Defendants' Motion for — E.D.Wis. Oct. 11, 2017 Motion
Summary Judgment by Plaintiff Daniel Black
Daniel BLACK, Plaintiff, v. David CLARKE, and COUNTY
OF MILWAUKEE, WISCONSIN, Defendants.
2017 WL 6017568
5. Brief in Opposition to Defendants' Motion for — E.D.Wis. Oct. 11, 2017 Motion
Summary Judgment by Plaintiff Daniel Black
DANIEL BLACK, Plaintiff, v. David CLARKE, and County
of Milwaukee, Wisconsin, Defendants.
2017 WL 7735761
6. Brief in Support of Defendants' Motion for — E.D.Wis. Sep. 11, 2017 Motion
Summary Judgment
Daniel BLACK, Plaintiff, v. David A. CLARKE, Jr., et al.,
Defendants.
2017 WL 6017565
7. Brief in Support of Defendants' Motion for — E.D.Wis. Sep. 11, 2017 Motion
Summary Judgment
Daniel BLACK, Plaintiff, v. David A. CLARKE, Jr., et al.,
Defendants.
2017 WL 7735759
8. Joint Final Pretrial Report — E.D.Wis. Jan. 11, 2018 Filing
DANIEL BLACK, Plaintiff, v. David A. CLARKE Jr.,
Defendant.
2018 WL 5003468
9. Jury Instructions — E.D.Wis. Jan. 22, 2018 Jury
DANIEL BLACK, Plaintiff, v. David CLARKE, Defendant. Instruction
2018 WL 5003462

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Black v. Clarke, 285 F.Supp.3d 1070

Title PDF Court Date Type

10. 2018 WL 9413772 — E.D.Wis. Jan. 22, 2018 Jury Verdict
Defense Verdict for First Amendment Claim Against
Sheriff Clarke
2018 WL 9413772
11. Judgment — E.D.Wis. Jan. 24, 2018 Jury Verdict
Daniel BLACK, Plaintiff, v. David CLARKE, County
of Milwaukee, Wisconsin, and John Does One-Six,
Defendants.
2018 WL 1000983
12. Special Verdict — E.D.Wis. Jan. 22, 2018 Jury Verdict
Daniel BLACK, Plaintiff, v. David CLARKE, Defendant.
2018 WL 1000985
13. Docket 2:17-CV-00156 — E.D.Wis. Feb. 02, 2017 Docket
Black v. Clarke

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Black v. Clarke, 285 F.Supp.3d 1070

Citing References (4)

Treatment Title Date Type Depth Headnote(s)

Cited by 1. Siddique v. Laliberte Apr. 10, 2019 Case 12
2019 WL 1558495, *3 , E.D.Wis. 13
16
This action arises from a contested student
government election at the University of Wisconsin- F.Supp.3d
Milwaukee (“UWM”). On July 2, 2018, Plaintiff
submitted a fourth amended complaint...
— 2. First Amendment Protection Against 2019 ALR — 14
Curtailment of Access to, or Retaliation for
Communications on, Social Media F.Supp.3d
38 A.L.R. Fed. 3d Art. 5
Social media postings go beyond cat videos and
pictures of breakfast to include political debate and
commentary on public institutions, as well as other
less savory communications,...
— 3. "State-created danger," or similar theory, as 2000 ALR — 20
basis for civil rights action under 42 U.S.C.A. s 21
1983
159 A.L.R. Fed. 37 F.Supp.3d

In DeShaney v. Winnebago County Dept. of Social

Services, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed.
2d 249 (1989), the United States Supreme Court
explained that the Due Process...
— 4. Searches and Seizures Arrests and 2020 Other — 7
Confessions s 2:2, § 2:2. Types of government Secondary 13
conduct amounting to search or seizure Source
F.Supp.3d
Any conduct by a government agent or official which
intrudes upon a person's reasonable expectation
of privacy is a search or seizure under the Fourth
Amendment. No matter how...

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Black v. Clarke, 285 F.Supp.3d 1070

Table of Authorities (48)

Treatment Referenced Title Type Depth Quoted Page

Number
Cited Case 1079
1. Anderson v. Donahoe
699 F.3d 989, 7th Cir.(Ill.), 2012
LABOR AND EMPLOYMENT - Discrimination.
United States Postal Service was entitled to
summary judgment on employee's Rehabilitation
Act retaliation claim.
Cited Case 1074
2. Anderson v. Liberty Lobby, Inc.
106 S.Ct. 2505, U.S.Dist.Col., 1986
Libel action was brought against magazine, its
publisher, and its chief executive officer. The
United States District Court for the District of
Columbia, 562 F.Supp. 201, granted...
Distinguished Case 1081+
3. Bart v. Telford
677 F.2d 622, 7th Cir.(Ill.), 1982
Employee of city department under apparent
supervision of mayor brought civil rights action
against mayor and three of his subordinates,
seeking actual and punitive damages for...
Cited Case 1087
4. Baxter Intern., Inc. v. Abbott Laboratories
297 F.3d 544, 7th Cir.(Ill.), 2002
LITIGATION - Appeals. Motion was not sufficiently
specific to support maintaining secrecy of
documents on appeal.
Cited Case 1074
5. Berry v. Chicago Transit Authority
618 F.3d 688, 7th Cir.(Ill.), 2010
LABOR AND EMPLOYMENT - Discrimination.
Statement by supervisor did not create a hostile
work environment.
Distinguished Case 1081+
6. Bloch v. Ribar
156 F.3d 673, 6th Cir.(Ohio), 1998
Crime victim and her husband sued sheriff under §
1983, alleging that sheriff retaliated against them
for exercising their First Amendment right to criticize
public officials and...
Mentioned Case 1074
7. Boss v. Castro
816 F.3d 910, 7th Cir.(Ill.), 2016
LABOR AND EMPLOYMENT - Discrimination.
Employee was not subject to a hostile work
environment.
Cited 8. Bridge v. New Holland Logansport, Inc. Case 1074
815 F.3d 356, 7th Cir.(Ind.), 2016
LABOR AND EMPLOYMENT - Discrimination.
Corporate veil would not be pierced to determine if
employer was covered under ADEA.

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Black v. Clarke, 285 F.Supp.3d 1070

Treatment Referenced Title Type Depth Quoted Page

Number
Discussed Case 1081+
9. Bridges v. Gilbert
557 F.3d 541, 7th Cir.(Wis.), 2009
CIVIL RIGHTS - Prisons. Prisoner stated claim for
First Amendment retaliation against prison officials.
Cited Case 1079+
10. Brokaw v. Mercer County
235 F.3d 1000, 7th Cir.(Ill.), 2000
CIVIL RIGHTS - Searches and Seizures. Manner
in which county employees seized children from
parents' home violated Fourth Amendment.
Cited Case 1083
11. Citizens United v. Federal Election
Com'n
130 S.Ct. 876, U.S., 2010
CIVIL RIGHTS - Free Speech. Corporations have
First Amendment political speech rights.
Mentioned Case 1086
12. City of Los Angeles v. Heller
106 S.Ct. 1571, U.S.Cal., 1986
Plaintiff brought civil rights action against city,
members of city police commission, and two city
police officers. He claimed damages by reason of
having been arrested without...
Cited Case 1086
13. City of St. Louis v. Praprotnik
108 S.Ct. 915, U.S.Mo., 1988
City employee who was transferred and laid off filed
suit alleging he had been penalized for exercising
his First Amendment rights and deprived of due
process. The United States...
Cited 14. CMFG Life Ins. Co. v. RBS Securities, Inc. Case 1079+
799 F.3d 729, 7th Cir.(Wis.), 2015
COMMERCIAL LAW - Contracts. Trader through
course-of-dealing could rely on guidelines-
compliance representations.
Cited 15. Currie v. Chhabra Case 1079
728 F.3d 626, 7th Cir.(Ill.), 2013
CIVIL RIGHTS - Arrest and Detention. Health care
providers were not entitled to qualified immunity to
estate's civil rights claim under Fourth Amendment.
Cited Case 1083
16. DeGuiseppe v. Village of Bellwood
68 F.3d 187, 7th Cir.(Ill.), 1995
Police officers brought § 1983 action against village
and its police chief, alleging retaliation in violation of
First Amendment. The United States District Court
for the...

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Black v. Clarke, 285 F.Supp.3d 1070

Treatment Referenced Title Type Depth Quoted Page

Number
Cited Case 1084+
17. DeShaney v. Winnebago County Dept. of
Social Services
109 S.Ct. 998, U.S.Wis., 1989
Mother of child who had been beaten by father
brought civil rights action against social workers and
local officials who had received complaints that the
child was being abused by...
Mentioned Case 1084+
18. Doe v. Village of Arlington Heights
782 F.3d 911, 7th Cir.(Ill.), 2015
CIVIL RIGHTS - Duty to Protect. Officer was not
liable for violating minor's due process rights
pursuant to state-created danger theory.
Cited 19. Fabriko Acquisition Corporation v. Prokos Case 1074
536 F.3d 605, 7th Cir.(Wis.), 2008
REAL PROPERTY - Vendor and Purchaser.
Potential purchaser did not breach its duty to act in
good faith to obtain financing.
Discussed Case 1081+
20. Fairley v. Andrews
578 F.3d 518, 7th Cir.(Ill.), 2009
CIVIL RIGHTS - Free Speech. Coworkers' bullying
and threats to deter guards from testifying would
violate the First Amendment.
Cited Case 1084+
21. Flint v. City of Belvidere
791 F.3d 764, 7th Cir.(Ill.), 2015
CIVIL RIGHTS - Duty to Protect. Officers were
not liable under state-created danger doctrine for
violating informant's substantive due process rights.
Cited Case 1080
22. Fox v. Hayes
600 F.3d 819, 7th Cir.(Ill.), 2010
CIVIL RIGHTS - Damages. Damages award of
$2.7 million for murder suspect's wife's loss of
consortium claim was not excessive.
Cited 23. Goesel v. Boley Intern. (H.K.) Ltd. Case 1087
738 F.3d 831, 7th Cir.(Ill.), 2013
LITIGATION - Settlements. Maintaining revised
settlement agreement under seal during appeal of
modification to settlement was not warranted.
Mentioned Case 1084
24. Harlow v. Fitzgerald
102 S.Ct. 2727, U.S.Dist.Col., 1982
Plaintiff brought suit for damages based on his
allegedly unlawful discharge from employment
in Department of Air Force. The United States
District Court for the District of...

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Black v. Clarke, 285 F.Supp.3d 1070

Treatment Referenced Title Type Depth Quoted Page

Number
Discussed 25. Hutchins v. Clarke Case 1082+
661 F.3d 947, 7th Cir.(Wis.), 2011
CIVIL RIGHTS - Free Speech. Sheriff's disclosure
of a deputy's disciplinary history was not actionable
on a First Amendment retaliation theory.
Mentioned Case 1084
26. Jackson v. Indian Prairie School Dist.
204
653 F.3d 647, 7th Cir.(Ill.), 2011
EDUCATION - Civil Rights. School district's failure
to transfer autistic student did not violate due
process rights of teacher who was injured by
student.
Cited Case 1084
27. Luddington v. Indiana Bell Telephone
Co.
966 F.2d 225, 7th Cir.(Ind.), 1992
Employee sued employer for racial discrimination
under Title VII and § 1981. The United States
District Court for the Southern District of Indiana,
John Daniel Tinder, J.,...
Examined Case 1078+
28. Monell v. Department of Social Services
of City of New York
98 S.Ct. 2018, U.S.N.Y., 1978
Female employees of the Department of Social
Services and the Board of Education of the City of
New York brought an action challenging the policies
of those bodies in requiring...
Discussed Case 1081+
29. Novoselsky v. Brown
822 F.3d 342, 7th Cir.(Ill.), 2016
TORTS - Defamation. Communications by the
Clerk of the Circuit Court of Cook County were all
statements reasonably related to her official duties.
Distinguished Case 1085
30. Paine v. Cason
678 F.3d 500, 7th Cir.(Ill.), 2012
CIVIL RIGHTS - Due Process. Watch officer was
not entitled to qualified immunity on failure-to-treat
or augmented-danger theories.
Cited Case 1084
31. Pearson v. Callahan
129 S.Ct. 808, U.S., 2009
CIVIL RIGHTS - Immunity. Officers were protected
by qualified immunity from arrestee's Fourth
Amendment claim.
Cited 32. Puffer v. Allstate Ins. Co. Case 1085
675 F.3d 709, 7th Cir.(Ill.), 2012
LABOR AND EMPLOYMENT - Appeals. Intervenors
waived disparate impact claim for consideration on
appeal.

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Black v. Clarke, 285 F.Supp.3d 1070

Treatment Referenced Title Type Depth Quoted Page

Number
Distinguished Case 1085
33. Reed v. Gardner
986 F.2d 1122, 7th Cir.(Ill.), 1993
Motorists who were injured in automobile collision
with allegedly drunk driver brought civil rights action
against police officers who allegedly had previously
failed to arrest...
Cited 34. Sallenger v. City of Springfield, Ill. Case 1086
630 F.3d 499, 7th Cir.(Ill.), 2010
CIVIL RIGHTS - Arrest and Detention. Officers
reasonably responded to arrestee's medical needs.
Cited Case 1086
35. Siegel v. Shell Oil Co.
612 F.3d 932, 7th Cir.(Ill.), 2010
COMMERCIAL LAW - Consumer Protection. Class
certification in action against oil companies under
ICFA was not warranted.
Cited Case 1086
36. Swanigan v. City of Chicago
775 F.3d 953, 7th Cir.(Ill.), 2015
CIVIL RIGHTS - Arrest and Detention. Arrestee
could pursue Monell claims that sought additional
equitable relief or were distinct from claims against
officers.
Cited 37. Tebbens v. Mushol Case 1075
692 F.3d 807, 7th Cir.(Ill.), 2012
CIVIL RIGHTS - Arrest and Detention. Probable
cause existed for former firefighter's arrest.
Cited Case 1083
38. Thayer v. Chiczewski
705 F.3d 237, 7th Cir.(Ill.), 2012
CIVIL RIGHTS - Arrest and Detention. Police had
arguable probable cause to arrest antiwar protestor.
Cited Case 1085
39. Thomas v. Cook County Sheriff's Dept.
604 F.3d 293, 7th Cir.(Ill.), 2010
CIVIL RIGHTS - Prisons. No link was shown
between sheriff's understaffing of jail, detainee's
death, precluding Monell liability in §1983 suit.
Cited Case 1079+
40. U.S. v. Mendenhall
100 S.Ct. 1870, U.S.Mich., 1980
The United States District Court for the Eastern
District of Michigan, Robert E. DeMascio, J.,
convicted defendant of drug offenses, and
defendant appealed. The Court of Appeals...
Cited Case 1079+
41. U.S. v. Scheets
188 F.3d 829, 7th Cir.(Ill.), 1999
After his motion to suppress was denied, defendant
conditionally pleaded guilty in the United States
District Court for the Central District of Illinois, Joe
B. McDade, Chief...

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Black v. Clarke, 285 F.Supp.3d 1070

Treatment Referenced Title Type Depth Quoted Page

Number
Cited Case 1079
42. U.S. v. Smith
794 F.3d 681, 7th Cir.(Wis.), 2015
CRIMINAL JUSTICE - Investigatory Stop. Officers'
encounter with defendant in a dark alley at
night was a seizure, within meaning of Fourth
Amendment.
Cited 43. U.S. v. Swift Case 1079
220 F.3d 502, 7th Cir.(Ind.), 2000
CRIMINAL JUSTICE - Arrest. Alleged unlawful
arrest did not warrant suppression of evidence.
Cited Case 1081
44. Valentino v. Village of South Chicago
Heights
575 F.3d 664, 7th Cir.(Ill.), 2009
LABOR AND EMPLOYMENT - Public Employment.
Fact issue existed as to whether municipality's
proffered reason for terminating employee was
pretextual for retaliation.
Distinguished Case 1081+
45. Wallace v. Benware
67 F.3d 655, 7th Cir.(Wis.), 1995
Deputy brought action under § 1983 against county
sheriff and alleged that sheriff violated deputy's First
Amendment rights by retaliating against deputy,
through harassment, for...
Cited Case 1079
46. Whitaker v. Milwaukee County,
Wisconsin
772 F.3d 802, 7th Cir.(Wis.), 2014
LABOR AND EMPLOYMENT - Discrimination. Even
if state and county were joint employers, county was
not liable under ADA for discriminatory acts taken
by state.
Cited Case 1075
47. Whren v. U.S.
116 S.Ct. 1769, U.S.Dist.Col., 1996
CRIMINAL JUSTICE - Searches. Constitutional
reasonableness of traffic stops does not depend
on the actual motivations of the individual officers
involved.
Cited Case 1084+
48. Wilson-Trattner v. Campbell
863 F.3d 589, 7th Cir.(Ind.), 2017
CIVIL RIGHTS — Due Process. Sheriff's
department's response to domestic abuse victim's
complaints did not violate substantive due process
under state-created danger theory.

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Black v. Clarke, 285 F.Supp.3d 1070

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