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  • WisBar Court Review
    March 30, 2021

    Police Get Immunity for 'Good Times Turned Bad' After Badger Football Game

    Joe Forward

    Madison Night

    March 30, 2021 – The U.S. Court of Appeals for the Seventh Circuit has ruled that city of Madison and U.W. police officers are entitled to qualified immunity for excessive force claims brought by a man arrested after a U.W.-Madison Badger Football game.

    In 2015, Todd and Shelly Cibulka attended a Badger game on Homecoming weekend against Purdue, a 24-7 win for the Badgers at Camp Randall Stadium. The Cibulkas left the game early, about 2 p.m., and ventured to the Library Café’ & Bar to meet friends.

    They drank alcohol for several hours before their daughter, a U.W. freshman who had been looking for them, eventually found them as they were leaving the bar.

    Daughter was planning to drive to their Poynette home with her parents that night, but the Cibulkas were intoxicated and uncooperative to the point that she called police.

    When both U.W. and Madison police officers arrived, they attempted to ascertain the location of the Cibulkas’ car (the daughter could drive), but they were not cooperating, acting “belligerent,” and unable or unwilling to pinpoint their vehicle’s location.

    About 10 minutes into the encounter, Todd stood up and staggered toward a busy street. The facts begin to diverge here, but one officer grabbed Todd and told him to sit down, fearing he would tumble into traffic. Todd refused to sit down.

    According to the officer, Todd (6-foot-3, 265 pounds) appeared to be taking a fighting stance (clenching his fists) and was face-to-face with the smaller officer. Two other officers joined in to grab Todd and force him to sit, but Todd began to resist.

    The officers brought Todd to the ground using a trained technique. Todd continued to resist, but later claimed he was trying to break free from unlawful holds.

    Officers attempted to place Todd in the squad car to chat, but Todd would not get inside the squad car completely. An officer then applied pressure to Todd’s jaw or neck to force compliance. Todd still resisted and would not get into the squad car.

    They let him out to talk, but Todd refused to get into the squad car. Eventually, he was arrested for disorderly conduct and resisting arrest, lifted into a police transport van and sent to the county jail. After his release the next morning at 2:30 a.m., he returned to his truck and smashed through the parking lot exit gate. He did not pay for parking.

    Qualified Immunity

    In 2018, the Cibulkas filed a civil action against the City of Madison and the individual police officers involved in his arrest, under 42 U.S.C. section 1983, alleging false arrest and excessive force in violation of Todd’s Fourth Amendment rights.

    The federal district court granted summary judgment to defendants on the basis that the officers were entitled to qualified immunity. The Cibulkas appealed that decision.

    In Cibulka v. City of Madison, et al, No. 20-1658 (March 29, 2021), a panel for the Seventh Circuit Court of Appeals affirmed, concluding the Cibulkas failed to overcome qualified immunity with respect to the false-arrest and excessive force claims.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    The panel noted that probable cause is an absolute defense to section 1983 claims and an officer defendant is entitled to qualified immunity, even without probable cause, if “a reasonable officer could have mistakenly believed that probable cause existed.”

    On the false arrest claim, the Cibulkas argued that police did not have probable cause to believe Todd violated Wisconsin’s disorderly conduct and resisting arrest laws.

    “Here, it was eminently reasonable for the officers to believe there was probable cause to arrest Todd for disorderly conduct and for resisting an officer,” wrote Judge Michael Kanne, one of three judges on the deciding panel.

    Judge Kanne noted that Todd later admitted to actively resisting, proving the officers sufficient belief that he was violating the state law on resisting arrest. The panel rejected the Cibulkas’ argument that police created the disturbance.

    On the excessive force claim, the panel also ruled that the officers had qualified immunity. The Cibulkas admitted that no other cases establish a right to be free from the type of force that officers used to restrain Todd.

    They argued that police officers have the burden to prove, with affirmative case law, that their conduct was reasonable. But the panel did not buy that argument.

    “In this circuit, once a defendant claims qualified immunity, the burden is on the plaintiff to show that the right claimed to have been violated was clearly established,” Judge Kanne wrote. “We will not flip this well-established burden on its head.”

    The Cibulkas argued that the officers’ conduct was so obviously unconstitutional that they did not need support from analogous cases to make their case.

    “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,” Kanne wrote.

    The panel retraced the events that led to Todd’s arrest, noting cases in which police officers were granted qualified immunity for similar, or more forceful conduct.

    “Maybe the Cibulkas’ case would be more persuasive if, say, the officers started gratuitously smashing Todd’s ribs,” wrote Judge Kanne, citing a case where that happened. “But they stopped well short of such unnecessary roughness.”

    “The officers are entitled to qualified immunity because at no point did they violate Todd Cibulka’s clearly established rights,” Judge Kanne wrote.





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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2021 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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