In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-2578

JUNE O. C ARLSON,
                                                  Plaintiff-Appellant,
                                  v.

S COTT B UKOVIC, et al.,
                                               Defendants-Appellees.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
         No. 1:07-cv-00006—Nan R. Nolan, Magistrate Judge.



   A RGUED F EBRUARY 17, 2010—D ECIDED S EPTEMBER 2, 2010




  Before R IPPLE, M ANION and SYKES, Circuit Judges.
  R IPPLE, Circuit Judge. June Carlson brought a multi-
count civil rights action under 42 U.S.C. § 1983 against
Officer Scott Bukovic and the City of Darien, an Illinois
municipal corporation. Certain counts were dismissed
by the district court and are not at issue in this appeal.
Remaining are a Fourth Amendment excessive force
2                                                       No. 09-2578

claim against Officer Bukovic and a Monell1 claim
against the City for failure to train the officer.2 With
respect to these claims, the parties cross-moved for sum-
mary judgment. The district court granted summary
judgment in favor of the City on the Monell claim but
denied summary judgment to both parties on the exces-
sive force claim. That claim proceeded to trial, and a
jury determined that Officer Bukovic did not violate
Ms. Carlson’s constitutional rights because no Fourth
Amendment seizure had occurred. Ms. Carlson now
appeals the district court’s final determination of both
the excessive force claim and the Monell claim. For the
reasons stated in this opinion, we affirm the judgment
of the district court.3


                                   I
                         BACKGROUND
                                  A.
  The facts surrounding Ms. Carlson’s excessive force
claim were contested initially. Because the action was
tried to a jury, however, we must take the facts in the
light most favorable to the party who prevailed at trial,



1
    Monell v. Dep’t of Soc. Servs., 

, 701 (1978).
2
  The district court had jurisdiction over the action pursuant
to 28 U.S.C. § 1331.
3
  We have jurisdiction over the appeal pursuant to 28 U.S.C.
§ 1291.
No. 09-2578                                                  3

Officer Bukovic, and draw all inferences in his favor.
See Majeske v. City of Chi., 

, 820 (7th Cir. 2000).
  On January 3, 2005, Ms. Carlson and her son, Paul
Carlson, visited the WalMart store in Darien, Illinois. At
that time, Ms. Carlson was approximately 83 years old;
Mr. Carlson is a handicapped adult. During their visit to
the store, Mr. Carlson scratched his arm on a fire hose
box and reported the incident to store employees. The
employees consequently requested that Mr. Carlson
complete certain forms. During that process, a dispute
arose between the store employees and the Carlsons
over whether the store would provide Ms. Carlson with
copies of the forms. The store manager explained:
    Well, as [Ms. Carlson] was upset and agitated by
    not having the forms, [Mr. Carlson] made a
    gesture towards me as to come towards me
    where I felt like I was threatened by his actions,
    and then I had asked him to step back, that I had
    felt threatened by him coming towards me. And
    there was some—a little bit of commotion. When
    I did ask him to step back, he did move back, and
    I remember her saying that, we’re not threatening
    you. And I remember stating, no, I feel threatened,
    and, you know, I’m asking for him to step back.
    He made a step again.
       And then at some point in time . . . we phoned
    the police department to help, not to banish them
    or—but to alleviate the situation because at that
    point in time, I felt threatened to the point where
    it was—I would not be able to end the situation.
4                                            No. 09-2578

Trial Tr. at 454-55. A store employee called the City of
Darien Police Department to complain that the Carlsons
were being disruptive.
  Darien Police Officers Scott Bukovic and Richard Stutte
soon arrived and asked the store manager what had
happened. The manager explained that Mr. Carlson had
scratched his arm and that, during the claims process,
he had become loud and threatening. Ms. Carlson
accused the manager of lying and tried to interrupt
Officer Bukovic’s conversation with the manager
several times. Ms. Carlson’s voice was raised; she was
upset and, by some accounts, hysterical. She tapped
Officer Bukovic on the arm, to which he said, “let me
finish with [the store manager], please don’t touch me,
and then I will get to you.” Trial Tr. at 461.
  Officer Bukovic spoke next to Mr. Carlson, who ex-
plained his side of the story. Officer Bukovic observed
Mr. Carlson to be loud and boisterous. Officer Bukovic
relayed to the manager what Mr. Carlson had said; the
manager reiterated that she had felt threatened. Officer
Bukovic believed the manager.
  Officer Bukovic then attempted to get Ms. Carlson’s
side of the story, but she would not explain what had
happened. Ms. Carlson said that the manager was ly-
ing. Ms. Carlson’s manner also was loud and boisterous.
Officer Bukovic then asked the store manager what
she wanted him to do. The manager said that Mr. Carlson
could remain and complete his paperwork, but that
Ms. Carlson would have to leave the store because she
was being disruptive. Officer Bukovic told Ms. Carlson
No. 09-2578                                                    5

that, if she did not leave, he could arrest her for trespass.
Ms. Carlson said she would not leave because she was
concerned about her son.
  Officer Bukovic tried three or more times to convince
Ms. Carlson to leave the store, but she would not go. As
Officer Bukovic made his last request, he reached for
Ms. Carlson’s right arm with both of his hands, placing
one hand on her forearm and one hand on her upper
arm. The touch was a calm, escorting gesture in an
attempt to guide Ms. Carlson out of the store. The Per-
sonnel Manager of the WalMart, who witnessed the
scene, testified that Officer Bukovic “was just asking
her to—that it was time to leave the store, I think, and
he kind of went like this. . . . To like you would do a
grandmother, you know, to sort of maybe turn
towards the exit. He barely touched her, and she started
screaming.” Trial Tr. at 392-93.4
  The Store Manager of the WalMart testified that
“when the officers went to go help [Ms. Carlson] to the
front door or escort [her] to the front door, one of
them—how can I describe it?—as if you were helping
your grandma through the parking lot on an icy day,
grabbed her elbow, let me help you to the front.” 

4
   See also Trial Tr. at 400 (“He didn’t really have any physical
actions with her other than when he barely—when he put his
arm around her, but that was like you would to your grand-
mother or something, or mother or something if you were
saying, you know, let’s go this way. It’s more of a guiding
manner than—there was no other physical interaction that
I saw.”).
6                                                      No. 09-2578

Ms. Carlson “freaked out” and began flailing her arms.

Officer Bukovic grabbed onto one or both of
her arms to prevent her from striking him and, at the
same time, tried to get her to calm down. Ms. Carlson
put her hands up and crossed her arms in front of her
chest. The incident lasted no more than five seconds.5
  After Ms. Carlson had calmed down, Officer Bukovic
asked her if she needed any medical attention, but she
refused to acknowledge him. Eventually, she left the
store. The officers did not arrest Ms. Carlson.


                                  B.
  The Carlsons brought this action against various
WalMart corporate entities, the City of Darien and
Officer Bukovic. After filing a series of amended com-
plaints, Mr. Carlson abandoned his claims, and
Ms. Carlson narrowed her complaint to consist only of
a Fourth Amendment excessive force claim against
Officer Bukovic and a section 1983 Monell claim against
the City for failure to train. Importantly, Ms. Carlson
disavowed any intention to assert a Fourth Amendment
false arrest claim.6
  The parties cross-moved for summary judgment on both
outstanding claims. Ms. Carlson’s version of the facts,



5
    See Trial Tr. at 187-90, 201-03, 393-400, 412, 469, 488, 511-12.
6
   See Appellant’s Br. 22; see also Tr. at 20, May 18, 2009 (“We’re
not bringing a false arrest claim.”); Tr. at 4-6, June 5, 2009 (“This
is not a false arrest case.”).
No. 09-2578                                                     7

described in her motion, was very different from the
version described by the defendants. She essentially
contended that Officer Bukovic attacked and brutalized
her in the WalMart store. Ms. Carlson contended that,
because Officer Bukovic had touched her, no genuine
issue of material fact existed as to whether a Fourth
Amendment seizure had occurred. She also claimed,
however, that summary judgment was appropriate on
the reasonableness of the force used, as well as on the
Monell claim asserted against the City. The defendants
cross-moved for summary judgment on those same
issues and also asserted that Officer Bukovic was
entitled to qualified immunity.
  The district court 7 denied the cross-motions for sum-
mary judgment because a genuine issue of material fact
existed as to whether Officer Bukovic had seized
Ms. Carlson.8 The district court also concluded that, due
to the conflicting factual accounts, a genuine issue of
material fact existed as to whether the seizure, assuming
one had occurred, was unreasonable. The district
court also denied Officer Bukovic qualified immunity
due to the factual differences. However, the district



7
  The parties agreed to have the case tried before a magistrate
judge. See 28 U.S.C. § 636(c); see also R.15 (joint consent form).
8
  See R.82 at 12 (“There is a question of fact as to the nature
of the physical interaction between Plaintiff and Officer
Bukovic and, thus, summary judgment is not appropriate to
either party on this portion of Plaintiff’s claim that she was
seized in violation of the Fourth Amendment.”).
8                                             No. 09-2578

court granted the City summary judgment on the Monell
failure-to-train claim.
  Ms. Carlson asked the court to reconsider its ruling;
she argued that the force used by Officer Bukovic, even
though minimal, was a seizure as a matter of law. She
essentially maintained that any touching used by an
officer to influence a citizen’s movements constitutes a
Fourth Amendment seizure. In her view, the district
court’s contrary ruling was based on a misunder-
standing of established Supreme Court precedent gov-
erning the law of Fourth Amendment seizure. She
further argued that other cases that had determined
that, despite the occurrence of some physical contact, no
Fourth Amendment seizure had taken place were not
controlling. The district court denied that motion.
  Prior to trial, Officer Bukovic filed a motion in limine
to exclude, among other things, any reference to or state-
ment about Ms. Carlson’s lawful presence in the
WalMart store. See R.112 (item #9).9 Officer Bukovic
argued that, because Ms. Carlson had not advanced a
Fourth Amendment false arrest claim, the issue of
Ms. Carlson’s lawful presence at the WalMart store was




9
  Ms. Carlsons’s attorney had posed questions during
Officer Bukovic’s deposition about whether he believed he
could have arrested Ms. Carlson for trespassing. Officer
Bukovic anticipated that M s. Carlson intended to
discuss the trespass issue at trial.
No. 09-2578                                               9

irrelevant to the excessive force claim to be tried.1 0
He contended that, in any event, Ms. Carlson’s reading
of the Illinois trespass statute was legally incorrect be-
cause the criminal law of Illinois prohibits remaining on
the property of another after having been asked to
leave. Officer Bukovic contended that Ms. Carlson’s
anticipated presentation of the trespass issue would be
erroneous and would mislead the jury. He asked that
such evidence be excluded under Federal Rule of
Evidence 403.
  Ms. Carlson opposed the motion. She contended that the
issue of her lawful presence and Officer Bukovic’s
probable cause to detain her were central to the action.
She further argued that the Illinois criminal trespass
statute did not apply because the statute included an
“open to the public” exception. Tr. at 76-77, May 18,
2009. She maintained that the issue was related to the rea-
sonableness of Officer Bukovic’s seizure, and, thus, testi-
mony about the trespass issue should be admissible at trial.
  The district court granted the motion in limine, ruling
that “injecting the issue of criminal trespass will mis-
lead and confuse the jury and lead to unfair preju-
dice.” R.124 at 5 (citing Rule 403). The district court
also ruled:
       Ms. Carlson may argue only that she did not want
       to leave and that she did not believe she was
       trespassing because the store was open to the


10
     See R.112; see also Tr. at 18-20, May 18, 2009.
10                                                       No. 09-2578

       public; she was there during normal business
       hours; and she was not creating a disturbance.
       Officer Bukovic, in turn, may argue that he be-
       lieved Ms. Carlson was trespassing because the
       store owner wanted her to leave; she refused his
       order to leave; and she was behaving in a disrup-
       tive manner.

Over the course of several pretrial confer-
ences, Ms. Carlson asked the district court to reconsider
its ruling. However, the district court steadfastly main-
tained that, because Ms. Carlson had disavowed any
intention to assert a Fourth Amendment false arrest
claim, the issue of Ms. Carlson’s legal status on the
WalMart property and Officer Bukovic’s probable cause
to seize her were irrelevant to the issues to be tried.1 1
  With these parameters in place, the district court con-
ducted a four-day jury trial. The evidence consisted of
testimony from Officer Bukovic, Ms. Carlson, Mr. Carlson,
the WalMart store employees and Ms. Carlson’s doctors.
The evidence established that Officer Bukovic asked
Ms. Carlson to leave the store, and that he momentarily
placed his hands on her arm.
  Unsatisfied with the parties’ proposed jury instruc-
tions, the district court crafted instructions using the
Seventh Circuit and Ninth Circuit pattern instructions on
the law of Fourth Amendment excessive force claims.
The district court removed references to arrest situations


11
     See Tr. at 19-21, May 18, 2009; see also R.145 at 12-14.
No. 09-2578                                              11

and, instead, proposed giving instructions on how to
determine whether a Fourth Amendment seizure had
occurred.
  Ms. Carlson objected, primarily taking issue with the
court’s instruction that “in performing his job, an officer
can use force that is reasonably necessary under the
circumstances.” See R.151. She maintained that any touch-
ing by an officer without probable cause to detain was
per se unreasonable. She proposed several alternative
instructions. The first would have required the jury to
determine whether Officer Bukovic had probable cause
to detain her for questioning. Another would have in-
structed that, if Officer Bukovic lacked probable cause to
detain, any “knowing or intentional use of force . . . is
automatically [that is, per se] unreasonable.” See Appel-
lant’s Br. 24 (brackets in original); see also Tr. at 33-37,
June 15, 2009. Ms. Carlson also proposed an instruction
essentially requiring the jury to find that she was not
trespassing because she was in the store during normal
business hours. See Appellant’s Br. 26.
  The district court rejected Ms. Carlson’s proposed
instructions because they misstated the law of Fourth
Amendment excessive force claims. The district court
decided to give the instructions that it had formulated.
The parties also disagreed over how the verdict form
should be structured. Ms. Carlson proposed a special
verdict form that would have asked the jury nine ques-
tions about disputed facts, such as whether Officer
Bukovic “intentionally applied some degree of force to
12                                                 No. 09-2578

the person of Plaintiff.” See R.183.1 2 Her proposed verdict
form also asked the jury to determine whether Officer
Bukovic had “probable cause to believe that Plaintiff
was committing the crime of disorderly conduct” and
“the crime of criminal trespass to property in his pres-
ence.” See 

court rejected Ms. Carlson’s proposed verdict
form because it interjected irrelevant issues and would
confuse the jury. Instead, the district court fashioned
a special verdict form that tracked the law of Fourth
Amendment excessive force claims. It asked: “Do you
find that Plaintiff has proven by a preponderance of
evidence that Defendant, Scott Bukovic[,] ‘seized’ Plain-
tiff, June Carlson, as that term has been defined in these
instructions?”; if the jury answered “yes” to that question:
“Do you find that Plaintiff has proven by a prepon-
derance of evidence that Defendant, Scott Bukovic[,] used
‘excessive force’ against Plaintiff, June Carlson, as that
term has been defined in these instructions?” R.185.
   The jury answered no to the first question, concluding
that no Fourth Amendment seizure had occurred. The
district court accepted the verdict. Ms. Carlson did not
file a motion for judgment as a matter of law under
Federal Rule of Civil Procedure 50.




12
     See also Tr. at 2-10, 15-16, June 11, 2009.
No. 09-2578                                                         13

                                  II
                          DISCUSSION
                                  A.
           The Section 1983 Fourth Amendment
                  Excessive Force Claim
  Ms. Carlson’s primary contention is that the district
court erred by sending the question of whether
there was a seizure to the jury because Officer Bukovic’s
touching was a seizure as a matter of law and that the
seizure was “per se” unreasonable.1 3



13
  We do not understand Ms. Carlson’s argument to be related
solely to the sufficiency of the evidence—an argument that was
waived when Ms. Carlson neglected to file a Rule 50 motion
at trial. See Unitherm Food Sys. v. Swift-Eckrich, Inc., 

, 401-02 (2006). To the extent Ms. Carlson appeals
purely legal issues—she contends that the district court misap-
prehended the law of Fourth Amendment seizure, erred by
granting the motion in limine and erred by rejecting her
preferred verdict form—such issues have been preserved for
our review. See Fuesting v. Zimmer, Inc., 

, 940 (7th
Cir. 2006) (“[T]he ability of the court of appeals to award a
new trial where there is prejudicial evidentiary error is
well-established and undisturbed by Unitherm.”); Chemetall
GMBH v. ZR Energy, Inc., 

, 720 (7th Cir. 2003) (“[I]f
the legal question can be separated from the factual one, then
we see no bar to reviewing the legal question notwith-
standing the party’s failure to raise it in a motion for judg-
ment as a matter of law at trial.”); see also Pediatrix Screening, Inc.
                                                       (continued...)
14                                                   No. 09-2578

  Throughout the district court proceedings, Ms. Carlson
maintained that she was “seized as a matter of law”
and that the seizure was “per se unreasonable.” As her
counsel stated at one point: “[E]ven though Defendant
opted not to arrest Plaintiff, his initiation and continua-
tion of unconsented-to physical contact against her
person, no matter how brief, falls within an exception
to the per se unreasonable rule only if he had probable
cause to arrest her.” R.132 at 11. The district court cor-
rectly rejected Ms. Carlson’s formulations of the law.
  Any Fourth Amendment inquiry necessarily begins
with a determination of whether a search or seizure
actually occurred. See Scott v. Harris, 

, 381
(2007) (beginning a section 1983 Fourth Amendment
excessive force inquiry with a determination that a
seizure occurred and then turning to whether the force
used was unreasonable); Leaf v. Shelnutt, 

,
1089 (7th Cir. 2005) (“In order to determine whether [an
officer] seized [an individual] in violation of the Fourth
Amendment, . . . [w]e first consider whether [the individ-
ual] was seized . . . .”). If that question is answered in
the affirmative, the next question is whether the seizure
was unreasonable. See Brower v. County of Inyo, 489


(...continued)
v. Telechem Intern., Inc., 

, 548 (3d Cir. 2010) (“Given
the length and breadth of the District Court’s examination of
the issues and the opportunities extended to both parties to
present their arguments, we are satisfied that [the plaintiff’s
legal] challenge was fully aired in the District Court and
preserved for appellate review.”).
No. 09-2578                                                  

, 599 (1989) (“ ‘Seizure’ alone is not enough for
§ 1983 liability; the seizure must be ‘unreasonable.’ ”);
see also Graham v. Connor, 

, 395 n.10 (1989)
(distinguishing the seizure inquiry from the reason-
ableness inquiry); 

(“[I]f we con-
clude that [the individual] was seized, we then must
determine whether the seizure was unreasonable.”). The
seizure and reasonableness inquiries are distinct
and should not be conflated. Furthermore, an officer’s
probable cause to seize is not antecedent to this two-
step inquiry but rather is a subset of the larger reason-
ableness inquiry of the second step.
  With respect to the first inquiry—whether there has
been a seizure—the traditional approach is whether
the person believed he was “free to leave.” This
standard is an objective one and “is made on the basis
of the ‘totality of the circumstances’ surrounding the
encounter.” United States v. Jerez, 

, 690 (7th
Cir. 1997) (quoting Florida v. Bostick, 

, 437
(1991)). For an understanding of this standard, we begin
with Justice Stewart’s opinion in United States v.
Mendenhall, 

(1980), and the plurality opin-
ion of the Supreme Court in Florida v. Royer, 

(1983).14 In Mendenhall, Justice Stewart noted that


14
  In Florida v. Royer, 

(1983), Justices Marshall,
Powell and Stevens joined an opinion authored by Justice
White, adopting the “reasonable person-free to leave” standard
enunciated in Justice Stewart’s decision in United States v.
                                                  (continued...)
16                                               No. 09-2578

physical contact with the police was but one of several
“circumstances that might indicate a seizure.” See

. Additional circumstances
include the number and threatening presence of
officers, the display of a weapon and the police officers’
language and tone of voice suggesting compulsion. 

In Royer, the Court determined that a seizure
had occurred in an airport when the officers took a
man’s plane ticket and license, thus preventing him
from walking away. 

. In both cases,
the focus was squarely on whether a reasonable person
would have felt free to leave.
  Later, in I.N.S. v. Delgado, 

(1984), the
Court ruled that immigration “sweeps” in workplaces,
whereby government agents asked questions of workers
while other agents stood at the doors, did not constitute
a Fourth Amendment seizure. The Court explained
that “[u]nless the circumstances of the encounter are so
intimidating as to demonstrate that a reasonable person
would have believed he was not free to leave if he had
not responded, one cannot say that the questioning re-
sulted in a detention under the Fourth Amendment.” 

Notably, the agents had tapped one of the
workers on the shoulder and asked her questions; the
Court found that no seizure had occurred. 

In



14
  (...continued)
Mendenhall, 

(1980). Justice Blackmun joined, in
his dissenting opinion, the plurality’s adoption of that stan-
dard. See 

(Blackmun, J., dissenting).
No. 09-2578                                                17

Tennessee v. Garner, 

, 7 (1985), while holding
that “there can be no question that apprehension by the
use of deadly force is a seizure,” the Court reaffirmed
the continued viability of the Mendenhall totality of the
circumstances approach because, in other circumstances,
“it is not always clear just when minimal police inter-
ference becomes a seizure.”
  In cases where physical contact with a citizen
occurred, the Court has suggested that the official pur-
pose of the contact matters.1 5 In Brower v. County of Inyo,

(1989), the Court reversed an appellate
court determination that a police roadblock that caused
a fatal car crash was not a seizure. The Supreme Court
determined that the roadblock was indeed a seizure
because the roadblock effectively controlled and stopped
the suspect. The Court explained,
     Violation of the Fourth Amendment requires an
     intentional acquisition of physical control. A
     seizure occurs even when an unintended person
     or thing is the object of the detention or taking,
     but the detention or taking itself must be will-



15
  The purpose of an encounter must not be confused with an
officer’s subjective intent when engaging the encountered
individual. The reasonable person-free to leave standard is
an objective one, and both the officer’s and the encountered
individual’s subjective beliefs during the encounter are not
determinative as to whether a seizure occurred. See 4 Wayne R.
LaFave, Search and Seizure: A Treatise on the Fourth Amend-
ment § 9.4(a), pp. 413-14 (4th ed. 2010).
18                                              No. 09-2578

     ful. . . . In sum, the Fourth Amendment addresses
     misuse of power, not the accidental effects of
     otherwise lawful government conduct.
      ....
       . . . It is clear, in other words, that a Fourth
     Amendment seizure does not occur whenever
     there is a governmentally caused termination of
     an individual’s freedom of movement (the inno-
     cent passerby), nor even whenever there is a
     governmentally caused and governmentally
     desired termination of an individual’s freedom
     of movement (the fleeing felon), but only when
     there is a governmental termination of freedom
     of movement through means intentionally applied.

(internal citations and quotation
marks omitted) (emphasis in original); see also County of
Sacramento v. Lewis, 

, 844 (1998) (concluding
that no seizure occurred where the police accidentally
struck and killed a motorcyclist during a high-speed
pursuit). The Court expanded on that rationale in
California v. Hodari D., 

, 624-29 (1991), where
the Court determined that no seizure occurred when
a suspect was approached by police, then ran away
and was chased. The Court stated that “[t]he word ‘sei-
zure’ readily bears the meaning of laying on of hands
or application of physical force to restrain movement,
even when it is ultimately unsuccessful.” 

The
Court cited with approval commentary that explained
that an arrest could be accomplished by “ ‘constructive
detention,’ ” which “ ‘is accomplished by merely touching,
No. 09-2578                                             19

however slightly, the body of the accused, by the
party making the arrest and for that purpose.’ ” 

(citing A. Cornelius, Search and Seizure 163-64 (2d ed.
1930)) (emphasis added). Finally, an important caveat
to the free to leave standard, often employed in bus sweep
contexts, is that “when a person ‘has no desire to
leave’ for reasons unrelated to the police presence, the
‘coercive effect of the encounter’ can be measured better
by asking whether ‘a reasonable person would feel free
to decline the officers’ requests or otherwise terminate
the encounter.’ ” Brendlin v. Cal., 

, 255
(2007) (quoting 

).
  As this discussion makes clear, mere physical contact
by an officer, although a significant factor, does not
automatically qualify an encounter as a Fourth Amend-
ment seizure. See 4 Wayne R. LaFave, Search and Seizure:
A Treatise on the Fourth Amendment § 9.4(a), p. 427
(4th ed. 2010) (“Even physical contact is acceptable if it
is consensual, a normal means of attracting a person’s
attention or obviously serves some nonseizure pur-
pose.” (internal quotation marks and citations omitted));
see also 

& accompanying text (commenting
that “physically grabbing and moving the suspect,” with
a concomitant show of force and authority, may indicate
that a seizure occurred). For instance, we have sug-
gested that physical contact does not elevate auto-
matically an encounter to the level of a Fourth Amend-
ment seizure. As we said in Acevedo v. Canterbury, 

, 725 (7th Cir. 2006), “[c]ertain types of non-
restraining physical contact, without a concomitant
showing of authority, are just too minor to constitute a
20                                              No. 09-2578

‘seizure’ for Fourth Amendment purposes without doing
violence to that word.” See also Williams v. City of Cham-
paign, 

, 829 (7th Cir. 2008) (“In constitutional
tort cases (including cases brought to vindicate rights
created by the Fourth Amendment) as elsewhere in the
law, de minimis non curat lex.”); 

(determining that no seizure occurred where officers
pointed guns and shined lights towards a sleeping man,
even if they nudged him). In sum, there are, of course,
situations in which the totality of the circumstances
require a determination that a seizure has occurred as
a matter of law. See, e.g., Tenn. v. Garner, 

, 7
(1985) (fatal shooting of suspect constituted seizure).
However, it is also clear that a mere touch is not per se
a seizure under the Fourth Amendment.
  The application of these principles to this case centers
on the question of whether a seizure took place. In this
case, this question admittedly is one of some difficulty.
We conclude, accordingly, that the district court cor-
rectly submitted the matter to the jury. Even accepting
the evidence in the light most favorable to Officer
Bukovic, we cannot characterize the situation as the sort
of de minimis touching that, as a matter of law, has no
Fourth Amendment implications. There certainly was
evidence of record that would have permitted the jury
to determine that a seizure in fact did take place. On
the other hand, the jury also was entitled to reach the
opposite conclusion: Officer Bukovic’s contact with
Ms. Carlson’s arm may have been so light and so momen-
tary that it did not convey, to the objective observer, a
demonstration of anything more than an encourage-
No. 09-2578                                                    21

ment that she leave the area. We must remember that
police officers find themselves in a myriad of contentious,
and potentially explosive, situations where in an effort
to defuse the situation, a combination of verbal declara-
tions and gestures must be employed. When considered
in context, such actions may be more exhortatory than
commanding in nature. While it could have determined
otherwise, we believe that the jury was entitled to deter-
mine that, at the time he touched Ms. Carlson’s arm,
Officer Bukovic’s action was just this type of gesture:
more exhortatory than commanding. The appropriate
characterization of this situation was a question for the
jury after it had heard all the evidence. Cf. 

(concluding that the question of whether
an officer seized an individual by punching him in the
face was a question for the jury).
  The district court’s formulation of jury instruc-
tions adequately articulated these legal principles.1 6 The



16
  Ms. Carlson does not dispute that the jury was competent to
serve as the factfinder on the issue of whether a Fourth Amend-
ment seizure had occurred. Indeed, that proposition is well
established. See, e.g., Acevedo v. Canterbury, 

, 725
(7th Cir. 2006) (“Based on this testimony, a reasonable jury
could have found that Acevedo was seized by Canterbury’s
blow to his head.”); Driebel v. City of Milwaukee, 

,
638 (7th Cir. 2002) (commenting that “a rational jury might very
well conclude that Officer Sgrignuoli . . . was seized by the
detectives who accosted him,” but assuming that seizure had
occurred); see also Gardenhire v. Schubert, 

, 313-15
                                                    (continued...)
22                                                  No. 09-2578

district court informed the jury that the seizure deter-
mination depended on whether Ms. Carlson’s liberty
was restrained and whether “a reasonable person
would not have felt free to ignore the presence of law
enforcement and to go about her business.” Trial Tr. at
568. The jury was instructed to evaluate objectively the
totality of the circumstances. The district court pro-
vided, moreover, appropriate factors to guide the
jury’s consideration of the issue. Ms. Carlson was not
entitled to an instruction that made the determination
depend entirely on whether physical contact had
occurred; that factor is but one that the jury ought to
consider. See 

.1 7 Nor was
Ms. Carlson entitled to an instruction linking the
seizure inquiry to the issue of probable cause because
those concepts are not to be conflated. The district court
did not abuse its discretion in rejecting Ms. Carlson’s
proposed jury instructions.
  The district court also acted well within its discre-
tion when it declined to give a jury instruction
describing the Illinois criminal trespass statute and
when it precluded Ms. Carlson from presenting evidence




16
  (...continued)
(6th Cir. 2000); Hawkins v. City of Farmington, 

, 702
(8th Cir. 1999); Cassady v. Tackett, 

, 697-98 (6th
Cir. 1991).
17
  See also 4 Martin A. Schwartz & George C. Pratt, Section 1983
Litigation § 8.01 (2d ed. 2009) (Instruction 8.01.7).
No. 09-2578                                                  23

to show that she had not violated the statute.1 8 Whether
the statute was violated was not relevant to the
threshold issue of whether a seizure had occurred. Deter-
mining whether a seizure occurred needed to be
decided separate and apart from the question of reason-
ableness.19


18
  We review a rejected jury instruction in comparison to the
actual charge issued by the district court. See Ammons-Lewis
v. Metro. Water Reclamation Dist. of Greater Chi., 

,
751 (7th Cir. 2007). We review Rule 403 rulings for abuse of
discretion. See Estate of Moreland v. Dieter, 

, 754-
55 (7th Cir. 2005).
19
  Additionally, the trespass issue had very little relevance to
whether Officer Bukovic used excessive force in committing
the alleged seizure. The doctrine of Fourth Amendment reason-
ableness has distinct, component parts. A seizure without
probable cause is conceptually different from a seizure
that employs excessive force; both are unreasonable, but for
different reasons. See Evans v. Poskon, 

, 364 (7th
Cir. 2010) (distinguishing between Fourth Amendment unrea-
sonableness based on lack of probable cause and excessive
force in the exclusionary rule context); McKenna v. City of
Phila., 

, 460 (3d Cir. 2009) (“The District Court
properly rejected Timothy McKenna’s argument that it should
have instructed the jury, which rejected plaintiffs’ excessive
force claims, that any amount of force used to effect an arrest
without probable cause is per se excessive. [That] statement of
the law is unsupported by citation, and, moreover, is wrong.
As the Court correctly concluded, the jury was required to
review any excessive force claims under a totality of the cir-
                                                  (continued...)
24                                                      No. 09-2578




19
  (...continued)
cumstances test, as enunciated in Graham v. Connor, 

(1989), to determine whether the force used was reason-
able.” (parallel citations omitted)); Snell v. City of York, Pa.,

, 672-73 (3d Cir. 2009) (rejecting “efforts to boot-
strap excessive force claims and probable cause challenges”);
Cortez v. McCauley, 

, 1127 (10th Cir. 2007) (distin-
guishing between Fourth Amendment excessive force and
false arrest claims); Papineau v. Parmley, 

, 62 (2d Cir.
2006) (“[T]he reasonableness test established in Graham
remains the applicable test for determining when excessive
force has been used, including those cases where officers
allegedly lack probable cause to arrest.”); Beier v. City of
Lewiston, 

, 1064 (9th Cir. 2004) (“Because the
excessive force and false arrest factual inquiries are distinct,
establishing a lack of probable cause to make an arrest
does not establish an excessive force claim, and vice-versa.”).
   Of course, we have recognized false arrest as a valid basis for
a section 1983 Fourth Amendment claim. See Bentz v. City of
Kendallville, 

, 779 (7th Cir. 2009) (“Where an arrest
occurs without probable cause, the plaintiff may bring a claim
for unreasonable seizure.”). Such a claim necessarily focuses the
reasonableness metric on the existence of an officer’s probable
cause to detain. See, e.g., Belcher v. Norton, 

, 748 (7th
Cir. 2007). Often times, Fourth Amendment excessive force and
false arrest claims are asserted in the same action. See, e.g., Catlin
v. City of Wheaton, 

, 364-65 (7th Cir. 2009); Williams
v. City of Champaign, 

, 827 (7th Cir. 2008); Tibbs v.
City of Chi., 

, 662 (7th Cir. 2006); Morfin v. City of E.
Chi., 

, 994-96 (7th Cir. 2003). In this case, however,
                                                       (continued...)
No. 09-2578                                                     25

  For the same reasons, the district court acted well
within its discretion in declining to approve a verdict
form submitted by Ms. Carlson. It simply did not
comport accurately with the governing legal principles.2 0


                                B.
              The Section 1983 Monell Claim
  Ms. Carlson also appeals the district court’s dismissal
of her Monell failure-to-train claim asserted against the
City. However, because Ms. Carlson’s section 1983
Fourth Amendment excessive force claim failed, her
Monell claim failed as well. See Jenkins v. Bartlett, 

, 492 (7th Cir. 2007) (“[T]here can be no liability
under Monell for failure to train when there has been
no violation of the plaintiff’s constitutional rights.”);
Windle v. City of Marion, Ind., 

, 663 (7th Cir.
2003) (“[A] plaintiff must prove that the individual
officers are liable on the underlying substantive claim in
order to recover damages from a municipality under [a
theory of] . . . failure to train.”). Accordingly, we affirm



19
  (...continued)
Ms. Carlson did not advance a false arrest claim. In fact, she
affirmatively disavowed any intention to assert a false arrest
claim. See Appellant’s Br. 22; Tr. at 20, May 18, 2009; Tr. at 4-6,
June 5, 2009.
20
  We review the rejection of a verdict form for abuse of dis-
cretion. See Evans v. City of Chi., 

, 741 (7th Cir.
2008), cert. denied, 

(2009).
26                                                No. 09-2578

the district court’s grant of summary judgment in favor
of the City on the Monell claim.


                              C.
            The District Court’s Alleged Bias
  Ms. Carlson contends that the district court was biased
because it showed sympathy for Officer Bukovic when it
referred to him as “this poor cop” during a pretrial con-
ference. See Appellant’s Br. 45-47. Ms. Carlson does not
specifically request a form of relief under this theory,
but we assume she demands a new trial with a dif-
ferent presiding judge. Ms. Carlson, however, did not
move for the district court’s disqualification under 28
U.S.C. § 455. Although we have left open the question
of “whether we may review a refusal to recuse under
section 455(b) when the argument is raised for the first
time on appeal,” United States v. Smith, 

, 764
(7th Cir. 2000), we need not resolve that issue today
because recusal was unnecessary in this case.2 1 The
district court’s off-the-cuff remark did not “display a
deep-seated favoritism or antagonism that would make
fair judgment impossible.” In re Huntington Commons
Assocs., 

, 158 (7th Cir. 1994) (internal quotation
marks omitted); see also Hook v. McDade, 

, 354-56



21
   “[T]he denial of a request that the judge recuse himself
under section 455(a) must be appealed immediately by ap-
plication for writ of mandamus, or it is waived.” United States
v. Horton, 

, 316 (7th Cir. 1996).
No. 09-2578                                            27

(7th Cir. 1996) (describing the various forms of and bases
for § 455 recusal). Our review of the entire record has
assured us that the district court managed Ms. Carlson’s
case competently and fairly.
  Ms. Carlson also appears to contend that the district
court was biased and should have been removed
pursuant to 28 U.S.C. § 144. However, Ms. Carlson con-
cedes that she did not comply with the “procedural and
substantive requirements” of § 144. See United States
v. Barnes, 

, 1072 (7th Cir. 1990).


                       Conclusion
  For the reasons stated in this opinion, we affirm the
judgment of the district court.
                                                A FFIRMED




                          9-2-10