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 threatening and harassing public posts about him on social media.
Page 13 of 27
Case 2:17-cv-00156-JPS Filed 01/05/18 Page 13 of 27 Document 39
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