David Clarke to face trial Jan. 22 over airport incident, but most claims dismissed

A federal judge on Friday dismissed most of a civil rights lawsuit against former Sheriff David A. Clarke Jr. over an incident at Milwaukee's Mitchell airport last year.

But a claim that Clarke retaliated on Facebook for Daniel Black's exercise of his First Amendment right to shake his head at Clarke survives, and is now set for trial Jan. 22.

Black and Clarke were on the same flight from Dallas to Milwaukee on Jan. 15, 2017. Black saw Clarke wearing Dallas Cowboys gear and asked if he was David Clarke. Clarke said he was, and Black shook his head and walked away to his seat in coach.

When the plane landed in Milwaukee, Black was greeted by six sheriff's deputies who had been directed by Clarke to take Black aside and question him. They then escorted him from the airport.

Black later posted on social media about the incident and filed a complaint with the county. Clarke responded on social media by calling Black "Snowflake."

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The next month, Black sued Clarke and the six deputies, claiming violations of his Fourth Amendment right against unreasonable seizure, retaliation for exercising his First Amendment rights by having him stopped at the airport and the subsequent mockery on Facebook, and his due process rights under the 14th Amendment. The suit also sought to have the county held liable for Clarke's actions.

In a 27-page order, U.S. District Judge J.P. Stadtmueller on Friday granted summary judgment to Clarke on the Fourth and one of the First Amendment claims, and just dismissed the 14th Amendment claim as "completely without merit," as well as the claim against the county and the six deputies, all originally identified as John Doe.

"While Clarke's actions reflect poor judgment, they do not shock the conscience," to a degree to support the due process claim, Stadtmueller found.

He also found that Black's 15-minute discussion with deputies was not a seizure, since they never drew their guns, used friendly language and weren't expecting to arrest or cite Black.

But the judge said a jury should decide whether Clarke's reaction on Facebook was the kind of threat or intimidation that amounted to retaliation against Black. One post read, “Cheer up, snowflake . . . if Sheriff Clarke were to really harass you, you wouldn’t be around to whine about it.”

Black's attorney, William Sulton, said Friday he had not yet had a chance to read the order carefully. Clarke's attorney did not immediately return messages seeking reaction to the order.

Dan Bice of the Journal Sentinel staff contributed to this report.