Schor v. City of Chicago

• Citation: 576 F.3d 775
• Decision Date: 13 August 2009
• Docket Number: No. 08-2837.,08-2837.
• Parties: Gayle SCHOR, Kristine Mulcahy, and Angela Shue, Plaintiffs-Appellants, v. CITY OF CHICAGO, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

576 F.3d 775

Gayle SCHOR, Kristine Mulcahy, and Angela Shue, Plaintiffs-Appellants, v. CITY OF CHICAGO, et al., Defendants-Appellees.

No. 08-2837.

United States Court of Appeals, Seventh Circuit.

Argued April 9, 2009.

Decided August 13, 2009.

Blake W. Horwitz, Erica E. Faaborg (argued), Horwitz, Richardson & Baker, LLC, Chicago, IL, for Plaintiffs-Appellants.

Christopher S. Norborg (argued), City of Chicago Law Department, Chicago, IL, for Defendants-Appellees.

Before MANION, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Gayle Schor, Kristine Mulcahy, and Angela Shue (collectively, the "plaintiffs") brought this suit in the district court as a class action, challenging the constitutionality of a Chicago municipal ordinance that prohibits the use of wireless telephones without a "hands-free" device while driving a motor vehicle. See MUNICIPAL CODE OF CHICAGO, ILL. § 9-76-230 (the "Ordinance"). The case was nipped in the bud by the district court with a dismissal for failure to state a claim upon which relief can be granted. See FED.R.CIV.P. 12(b)(6). The district court also denied the plaintiffs' request for leave to amend their complaint on the basis that any amendment would be frivolous. See FED.R.CIV.P. 15(a). The district court was right: this case has no legs whatever. We therefore affirm the judgment.

I

On July 8, 2005, the Ordinance went into effect, 30 days after its passage and publication. (The Ordinance was originally codified at MUNICIPAL CODE OF CHICAGO, ILL. § 9-40-260. On November 5, 2008, after the plaintiffs filed their brief in this court but before oral argument, the Ordinance was recodified as we refer to it above. The recodification makes clear that a violation of the Ordinance is an "equipment violation," and not a "moving violation.") The Ordinance stipulates that no person is to drive a vehicle while using a mobile, cellular, analog wireless or digital telephone, with four exceptions: (1) when the person is an on-duty law enforcement officer or operator of an emergency vehicle, (2) when the person uses a "hands-free" device, (3) in the event of an emergency, or (4) when the motor vehicle is in a stationary position and not in gear. Amendments to the Ordinance in November 2008 clarify that the "use" of a mobile device includes: "(1) talking or listening to another person on the telephone; (2) text messaging; (3) sending, reading or listening to an electronic message; or (4) browsing the internet ...." MUNICIPAL CODE OF CHICAGO, ILL. § 9-76-230(a).

Schor, Mulcahy, and Shue were all ticketed by Chicago police officers for violating the Ordinance—Schor on March 4, 2006, Mulcahy on November 25, 2007, and Shue in November 2007. Both Schor and Shue appeared in person to contest their citations, and in both instances the citation was dismissed. Mulcahy paid the $75 fine. On December 19, 2007, the plaintiffs filed this action on behalf of themselves and others similarly situated. They allege that they were subjected to an arrest in violation of the Fourth Amendment to the Constitution and in violation of Illinois law, that enforcement of the Ordinance violates the Equal Protection Clause of the Fourteenth Amendment, that Mayor Richard Daley of Chicago personally violated their rights when he allowed the City to maintain a policy of false arrest, that the City of Chicago maintained policies or customs that violated their constitutional rights, that the City is liable for violations committed by the defendant officers and Mayor Richard Daley under common law and state law respondeat superior theories, and that City officials are liable to them under state-law theories of false arrest and malicious prosecution. The plaintiffs also ask for declaratory and injunctive relief under federal and state law.

The district court dismissed all of the plaintiffs' claims and rejected their motion to amend their first amended complaint to add two additional challenges to the constitutionality of the Ordinance (that the Ordinance was inconsistent with their constitutional right to travel and that it was void for vagueness). We affirm.

II

We note at the outset that the City defendants have not raised the defense of claim preclusion. They might have done so, since it seems that the plaintiffs had an opportunity to present their arguments in the administrative process (including an appeal to the state court). See Idris v. City of Chicago, 552 F.3d 564, 565 (7th Cir.2009). But this defense can be forfeited, and was so here. We thus turn directly to the plaintiffs' claims on appeal. The plaintiffs make two arguments: first, that the district court erred in holding that their complaint failed to state a claim; and second, that the district court erred by not permitting them to amend their complaint.

A. Dismissal of Plaintiffs' Complaint

We review a district court's dismissal of a complaint for failure to state a claim under Rule 12(b)(6) de novo, accepting as true all of the factual allegations contained in the complaint. Segal v. Geisha NYC LLC, 517 F.3d 501, 504 (7th Cir.2008). We address the plaintiffs' particular arguments in turn.

1. Fourth Amendment Claim: The plaintiffs first assert that their Fourth Amendment right to be free from an unreasonable seizure was violated when they were "pulled over by a police officer pursuant to a traffic stop [and] seized...." In their view, the police officers lacked probable cause to stop them because "the cell phone-ordinance is not, and never was, effective under Illinois law." Their analysis is flawed. As they recognize implicitly, the Fourth Amendment is not violated if a police officer has probable cause for a traffic stop. See, e.g., Williams v. Rodriguez, 509 F.3d 392, 398-400 (7th Cir.2007). If the police officer has an objectively reasonable basis to believe that a traffic law has been violated, then he or she has probable cause to make a traffic stop. United States v. Hernandez-Rivas, 513 F.3d 753, 758-59 (7th Cir.2008). Here, the record indicates that the police officers observed the plaintiffs violating the Ordinance by using their mobile phones without a hands-free device. This violation of a valid traffic law provided probable cause for the officers to stop them. The plaintiffs have not explained why the City of Chicago had no authority to enact legislation designed to protect the safety of its roads in this way, nor can we think of any restriction on its powers under either federal or state law that is so obvious we would need to take note of it here. The district court correctly dismissed the plaintiffs' Fourth Amendment claim.

2. Equal Protection Claim: The plaintiffs also argue that the City defendants violated their Fourteenth Amendment right to equal protection of the law. The plaintiffs base this claim on the so-called "class of one" equal protection theory. As they see it, when they were pulled over by Chicago police officers, they were treated differently (that is, they were ticketed) from others similarly situated (that is, others who engaged in unspecified legal acts while driving).

To allege a "class of one" claim, the plaintiffs need to show (1) that they were intentionally treated differently from others similarly situated, and (2) that there was no rational basis for that differential treatment, or that the differential treatment was the result of an illegitimate animus toward the plaintiffs by the defendants. Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000); McDonald v. Village of Winnetka, 371 F.3d 992, 1001-02 (7th Cir.2004); see also Engquist v. Oregon Dept. of Agric., ___ U.S. ___, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (holding that class-of-one theory does not apply to public employment cases). Here, while it is clear that the plaintiffs were treated differently from other motorists, it is equally clear that the plaintiffs were differently situated given that they were violating a valid ordinance. The enforcing officers did not need an ex ante constitutional ruling on the Ordinance before they were entitled to enforce it. The distinction between the plaintiffs and those who were not ticketed was rational, and so the district court did not err in dismissing the plaintiffs' equal protection claim.

3. City Liability for Constitutional Violations: Next, the plaintiffs allege that the City's policies or customs violated their constitutional rights. See Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Though Monell held that respondeat superior is not a ground for municipal liability under § 1983, it recognized the possibility of a direct claim against a municipality, based on a policy or custom of the municipality that violates the plaintiff's constitutional rights. In order to support such a claim, however, the plaintiff must begin by showing an underlying constitutional violation, in order to move forward with her claim against the municipality. Because we have concluded that these plaintiffs have not alleged any plausible constitutional violation committed by Mayor Daley or the officers, it follows that there is no wrongful conduct that might become the basis for holding the City liable. See City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986); Proffitt v. Ridgway, 279 F.3d 503, 507 (7th Cir. 2002).

4. Illinois Vehicle Code: The plaintiffs finally contend that Chapter 11 of the Illinois Vehicle Code requires a municipality to post signs notifying drivers about ordinances such as Chicago's cell-phone Ordinance that apply only within a particular municipality. The merits of this claim are not properly...