Officers Try to Avoid an Arrest and De-Escalate and Are Rewarded with a Lawsuit

by | April 22, 2021

Cibulka v. City of Madison, 2021 WL 1169824 (7th Cir. 2021)

Todd and Shelly Cibulka drove to the University of Wisconsin–Madison (Todd’s alma mater) for homecoming weekend. They intended to visit their daughter Emily and drive her home after the football game. After the Wisconsin Badger football team defeated the Purdue Boilermakers, 24-7, Todd and Shelly went to a local bar and drank for five hours. Neither parent answered Emily’s phone calls, so Emily and a friend scoured the area looking for her parents. She found them just leaving a bar—and very drunk.

Emily asked her father for the truck keys, but he refused to give them to her or to even tell her where the truck was parked. Emily called a cab, but her parents refused to get in. Todd was giggling. Emily was so frustrated that she called the police and explained she was worried her father would become more upset and possibly “fall into the street.”

Two officers arrived. One of the officers offered to give Emily and her parents a ride to the truck, but Todd and Shelly refused to tell anyone where it was parked. Todd staggered toward the busy street and an officer grabbed him and told him to sit down. Todd refused, then tightened up, clenched his fists and pulled his hands in toward his chest in a fighting pose.

Another officer saw that Todd, six-foot-three and about 265 pounds, appeared to be preparing to hit the officer, who weighed about 100 pounds less and stood much shorter. The second officer tried to help Todd sit, but he refused. The officers took Todd to the ground, told him to stop resisting and handcuffed him. After all this, the officers were still intent on avoiding an arrest and giving Todd and the others a ride to the truck.

The officers walked Todd to a patrol car, but he refused to get in. At this point, the officers arrested Todd for disorderly conduct and resisting an officer. He was lifted into a police van and taken to jail. When he was released the following day, Todd returned to his truck and smashed through the gate instead of paying the parking fee. Todd and Shelly then sued the officers, claiming false arrest and excessive force.

“If anything is obvious about this case, however, it’s that the officers’ conduct did not obviously violate the Constitution.”

Todd claimed there was no reason to arrest him for disorderly conduct and resisting an officer. The existence of probable cause to arrest is an “absolute defense to any 42 U.S.C. § 1983 claim against a police officer for false arrest” (Abbott v. Sangamon County, 705 F.3d 706, 713–14 (7th Cir. 2013)). The court also observed that the officers would be entitled to qualified immunity for a false-arrest claim even if there is no probable cause, but a “a reasonable officer could have mistakenly believed that probable cause existed…Thus, as long as the officers reasonably, albeit possibly mistakenly, believed that probable cause existed to arrest Todd, then they are entitled to qualified immunity.”

The court held it “was eminently reasonable for the officers to believe there was probable cause to arrest Todd.” Todd admitted in his deposition that he resisted the officers. However, he claimed the officers started the disturbance. The court’s response makes one wonder how Todd’s attorney made such a claim with a straight face.

Getting into the spirit of the Badger’s rout over Purdue, the court said: “If anything is obvious about this case, however, it’s that the officers’ conduct did not obviously violate the Constitution. Let’s take a look at the instant replay.” The court made short work of Todd’s claim that the officers improperly grabbed him when he was likely to fall into the busy street, finding no legal support for the call “that grabbing an inebriated individual for his own safety is a constitutional foul.” If the officers hadn’t completed the tackle, Todd could have toppled “headlong into traffic” and harmed himself or potentially harmed “disappointed Purdue fans driving back to Indiana.”

The court commended the officers’ attempts at de-escalation. “When those efforts failed too, they called a timeout and let Todd get out” of the police car. The court held the officers’ conduct was “fair game.” The officers “stopped well short of such unnecessary roughness” and “at no point did they violate Todd Cibulka’s clearly established rights.” Touchdown for the officers.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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