Ryan v. County of DuPage

• Citation: 45 F.3d 1090
• Decision Date: 19 January 1995
• Docket Number: No. 93-3893,93-3893
• Parties: Timothy T. RYAN, Jr., Plaintiff-Appellant, v. COUNTY OF DuPAGE, and Sheriff Richard P. Doria and Deputy Sheriff Miller, individually and in their official capacities, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1090

45 F.3d 1090

Timothy T. RYAN, Jr., Plaintiff-Appellant, v. COUNTY OF DuPAGE, and Sheriff Richard P. Doria and Deputy Sheriff Miller, individually and in their official capacities, Defendants-Appellees.

No. 93-3893.

United States Court of Appeals Seventh Circuit.

Submitted Nov. 22, 1994.

Decided Jan. 19, 1995.

Timothy T. Ryan, Jr. (submitted), Warrenville, IL, for plaintiff-appellant.

Thomas F. Downing, George J. Sotos, Office of the State's Atty. of DuPage County, Wheaton, IL, for defendants-appellees.

Before POSNER, Chief Judge, and CUMMINGS and MANION, Circuit Judges.

POSNER, Chief Judge.

This appeal by the plaintiff in a suit under 42 U.S.C. Sec. 1983 requires us to consider the limits of the right of protest in a courthouse. The plaintiff, Timothy Ryan, was the Democratic candidate for DuPage County Clerk of Court and the president of Court Crusade, a "watchdog" group that investigates corruption and impropriety in the court system and that had vigorously protested about the air quality at the DuPage County Courthouse, which the group believed to be infested by the bacteria that causes Legionnaires' Disease and which it attributed to (in Ryan's words) "the wilful misconduct of the Republican Demigods, who rule and govern this county."

One day a number of people working in the courthouse became ill because of a problem with the ventilation system, and the courthouse was closed. It reopened two days later, and on the day it reopened Ryan entered the courthouse to attend a hearing in a case to which he was a party. He was wearing a paper air-filtration mask which covered his mouth and nose. Court security officers at the entrance to the courthouse building ordered him to take off his mask and leave it with them if he wanted to enter. He complied, but left the building shortly, retrieving the mask on his way out. A quarter of an hour later he re-entered, this time with the mask in his briefcase to evade the security officers. Once inside the building he put on the mask and went to an upper floor where the courtrooms are. There defendant Miller, a deputy sheriff of DuPage County, accosted Ryan and ordered him to take off the mask. Ryan refused and Miller arrested him, detaining him for thirty minutes and then releasing him on the surprising condition that he could continue to wear the mask in the courthouse as long as he didn't tell anybody why he was wearing it.

The suit is against the county and its sheriff (Doria) as well as Miller. It charges violations of the First and Fourth Amendments, which have, of course, been held applicable to state action under the Fourteenth Amendment. After depositions of the dramatis personae (other than Miller, who however submitted two affidavits) were taken the district judge dismissed the suit on the grounds that Miller was entitled to qualified immunity, that Doria had not participated in the arrest, and that the county was not responsible for the policies of the sheriff's office.

It is plain that the county was properly dismissed; Illinois sheriffs are independently elected officials not subject to the control of the county. Thompson v. Duke, 882 F.2d 1180, 1187 (7th Cir.1989). But we have our doubts whether the sheriff was properly dismissed on the ground that he had not participated in the arrest. The sheriff was in charge of the courthouse, there was a rule against wearing masks in the courthouse, and Ryan was arrested because he wore a mask inside the courthouse. The arrest followed from the rule, and the rule was an act of the sheriff because he is the policymaker for the county sheriff's office. Upton v. Thompson, 930 F.2d 1209, 1215 (7th Cir.1991). He was therefore responsible for the arrest. Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); Wolf-Lillie v. Sonquist, 699 F.2d 864, 870 (7th Cir.1983).

It is true that the provenance of the rule is unclear; there is no indication of when it was promulgated--whether in Doria's reign or that of a previous sheriff. But the cases have assumed, we think correctly or at least inevitably, that the policymaker for a government office, who in this case is the sheriff, is responsible for the office's policies, whether they are created by him or merely inherited by him. Cf. Wolf-Lillie v. Sonquist, 699 F.2d 864 (7th Cir.1983).

There is a further wrinkle, however--a hint that the rule was actually promulgated not by Sheriff Doria or any of his predecessors, but by the chief judge of the circuit court of DuPage County, which occupies the county courthouse; a hint, that is, that the judge, not the sheriff, is the relevant policymaker. But it is not a definite enough hint to get the sheriff off the hook on summary judgment. The sheriff has "custody and care of the courthouse," Ill.Rev.Stat., ch. 55, p 5/3-6017, and with that custody comes the authority to issue reasonable rules for maintaining the safety and decorum of the building. See Primm v. County of DuPage, 1993 WL 338762, * 4 (N.D.Ill.1993); 1912 Ill.Atty.Gen.Op. 254, 255; 1983 Ill.Atty.Gen.Op. 49, 50-51 ("the responsibility for the safety and security of the courthouse is vested in the sheriff"); cf. Ruehman v. Sheahan, 34 F.3d 525, 529 (7th Cir.1994). The rule against masks was, at least so far as the present record discloses, an exercise of this authority, and the sheriff must assume responsibility for it.

But it was a reasonable rule, and Ryan's arrest for violating it did not in our view violate any of his constitutional rights. The wearing of a mask inside a courthouse implies intimidation. Imagine what a witness in a criminal case would think, or a juror, if either saw masked people sitting in the spectator section of the courtroom. Considering that courts nowadays, especially state courts hearing criminal and domestic relations cases--such as the circuit court of DuPage County--have acute security problems, it would be the height of irresponsibility to allow masked people into courthouses. The very courthouse involved in this case has, the record shows, been the scene of a crime committed by a masked man.

If as we believe the rule is reasonable, it must be enforceable; and the next question bearing on the constitutional issues presented by the appeal is whether arresting the violator, and thus seizing him within the meaning of the Fourth Amendment, is a proper means of enforcement. The rule itself is not, of course, a criminal statute; its violation is not a crime. Nevertheless the arrest was proper if Ryan's action in disobeying Deputy Miller's order to remove the mask was a crime, for, if so, there is no doubt that Miller had probable cause to believe that Ryan had committed that crime. In lieu of arresting Ryan, Miller could have forcibly removed the mask from Ryan's face when Ryan refused to remove it; it would have been like confiscating illegal drugs or other contraband discovered in plain view, held lawful in Minnesota v. Dickerson, --- U.S. ----, ---- - ----, 113 S.Ct. 2130, 2136-37, 124 L.Ed.2d 334 (1993). But no principle of either Illinois or federal law forbids an otherwise lawful arrest merely because the objective of the arrest could be achieved by an alternative means, which in this case might have been the more violent.

Was the arrest lawful? Resistance to a lawful order of a police officer is a crime under Illinois law, Ill.Rev.Stat., ch. 720, p 5/31-1(a), but Ryan points to cases which hold that to constitute grounds for a valid arrest the resistance must be physical; merely verbal resistance or refusal to cooperate is not enough. People v. Weathington, 82 Ill.2d 183, 44 Ill.Dec. 496, 497-98, 411 N.E.2d 862, 863-64 (1980); People v. Hilgenberg, 223 Ill.App.3d 286, 165 Ill.Dec. 784, 787-88, 585 N.E.2d 180, 183-84 (App.1991); People v. Stoudt, 198 Ill.App.3d 124, 144 Ill.Dec. 466, 468, 555 N.E.2d 825, 827 (App.1990). These are state cases, construing Illinois law, and the issue here is one of federal constitutional law. Gordon v. Degelmann, 29 F.3d 295, 300-01 (7th Cir.1994). But the legality under the Fourth Amendment of an arrest for violating state law depends on that law in the following sense: there must be probable cause to believe that a state crime has been committed, Michigan v. DeFillippo, 443 U.S. 31, 36, 99 S.Ct. 2627, 2631, 61 L.Ed.2d 343 (1979), and in Illinois the crime of resisting an officer in the performance of his duty requires physical resistance. The requirement is satisfied. The physical resistance took the form of Ryan's refusing to take off the mask, which left the police with a choice between arresting him and removing the mask forcibly. "Going limp" has been deemed physical resistance under Illinois law. People v. Weathington, supra, 44 Ill.Dec. at 497, 411 N.E.2d at 863; People v. Raby, 40 Ill.2d 392, 240 N.E.2d 595, 599 (1968); People v. Hilgenberg, supra, 165 Ill.Dec. at 785, 585 N.E.2d at 183; cf. People v. Woidtke, 224 Ill.App.3d 791, 167 Ill.Dec. 486, 587 N.E.2d 1101, 1109-10 (1992); People v. Stoudt, supra, 144 Ill.Dec. at 468, 555 N.E.2d at 827. This was not a case of "mere argument." People v. Weathington, supra, 44 Ill.Dec. at 498, 411 N.E.2d at 864.

Even if this is wrong, Ryan can hardly argue that Miller violated a clearly established right of his in arresting him for resisting the order to remove his mask. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), therefore immunizes Miller from liability for damages, even if he violated the Fourth Amendment, which we think he did not. Doria's immunity defense to the Fourth Amendment claim was rejected by the district court and has been abandoned on appeal, but his only responsibility was for the anti-mask rule, and it was a proper rule, so he is off the liability hook as well. He would not be liable for Miller's enforcing the rule improperly unless he told Miller to do so, which is not suggested.

We note that Miller was in all likelihood entitled to arrest Ryan for...