697 F.3d 445 (7th Cir. 2012), 11-2408, Bell v. Keating

Docket Nº:11-2408.
Citation:697 F.3d 445
Opinion Judge:FLAUM, Circuit Judge.
Party Name:Buddy BELL, Plaintiff-Appellant, v. Chicago Police Deputy Chief James KEATING, Chicago Police Officers Carlos Mota, Patrick Murray, and the City of Chicago, Defendants-Appellees.
Attorney:Melinda Longford Power, Attorney, West Town Community Law Office, Elizabeth Wang (argued), Attorney, Loevy & Loevy, Chicago, IL, for Plaintiff-Appellant. Christopher S. Norborg (argued), Attorney, City of Chicago Law Department, Chicago, IL, for Defendants-Appellees.
Judge Panel:Before FLAUM, ROVNER, and WILLIAMS, Circuit Judges.
Case Date:September 10, 2012
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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697 F.3d 445 (7th Cir. 2012)

Buddy BELL, Plaintiff-Appellant,


Chicago Police Deputy Chief James KEATING, Chicago Police Officers Carlos Mota, Patrick Murray, and the City of Chicago, Defendants-Appellees.

No. 11-2408.

United States Court of Appeals, Seventh Circuit.

September 10, 2012

Argued June 1, 2012.

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Melinda Longford Power, Attorney, West Town Community Law Office, Elizabeth Wang (argued), Attorney, Loevy & Loevy, Chicago, IL, for Plaintiff-Appellant.

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

Before FLAUM, ROVNER, and WILLIAMS, Circuit Judges.

FLAUM, Circuit Judge.

A Chicago ordinance criminalizes an individual's refusal to leave a scene when so instructed by a police officer when three or more individuals are engaging in disorderly conduct nearby. Buddy Bell was arrested under that ordinance, the enforcement of which he presently seeks to enjoin as facially violative of the First and Fourteenth Amendments. The district court dismissed his claims, ruling that he lacked standing to sue for injunctive relief.

We hold that Buddy Bell may sue to enjoin the ordinance as facially unconstitutional. We also conclude that Chicago Municipal Code § 8-4-010(d) (hereinafter " Subsection D" ) substantially inhibits protected speech and is not amenable to clear and uniform enforcement. We partially invalidate the ordinance and reverse.

I. Background

On January 7, 2008, Buddy Bell participated in a protest against Operation Iraqi Freedom on the corner of Dearborn Street and Jackson Boulevard in downtown Chicago. He, along with other protesters,

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held a banner that said, " End the war and occupation TROOPS HOME NOW." At the time, President Bush was at a luncheon at the nearby Union League Club.

One protester, Andy Thayer, entered the street carrying a large banner and, according to Chicago police, advanced on the Deputy Chief who was monitoring the area on a Segway. Thayer was arrested, handcuffed, and placed in a squadrol. Bell and two other protesters, their own banner in hand, began approaching the squadrol, also walking into the street. The police ordered the three men to get back on the sidewalk several times. They refused and began chanting, " Hell no, we won't go. Set him free." Chicago police again ordered Bell and the other protesters to get back on the sidewalk. They refused, and the police arrested them for disorderly conduct. In particular, police arrested Bell pursuant to Subsection D, which criminalizes an individual's behavior when he " knowingly ... [f]ails to obey a lawful order of dispersal by a person known by him to be a peace officer under circumstances where three or more persons are committing acts of disorderly conduct in the immediate vicinity, which acts are likely to cause substantial harm or serious inconvenience, annoyance or alarm." Chicago Municipal Code § 8-4-010(d).

A state court acquitted Bell of violating Subsection D. Subsequently, Bell sued various members of Chicago law enforcement and the City of Chicago in federal court for violating his First, Fourth, and Fourteenth Amendment rights, as well as for malicious prosecution and indemnification. See 42 U.S.C. § 1983. He ultimately dropped all but his indemnification claim against the City of Chicago. He presented his Fourth Amendment claims of false arrest and his malicious prosecution claim to a jury, which found in favor of the defendants. The jury returned three special verdicts. It found (1) that Chicago police had probable cause to arrest Bell for disorderly conduct under an ordinance of the City of Chicago; (2) that Chicago police lacked probable cause to arrest Bell for disorderly conduct under Illinois law; and (3) that Chicago police lacked probable cause to arrest Bell for obstructing a peace officer under Illinois law.1

Bell's claims that Subsection D facially contravened the First and Fourteenth Amendments remained before the district court. He alleged unconstitutional overbreadth and vagueness, respectively. Bell moved for declaratory relief and a permanent injunction barring enforcement of Subsection D, which the district court denied. The district court then dismissed Bell's First and Fourteenth Amendment challenges to Subsection D, ruling that Bell lacked standing to apply for injunctive relief because he did not demonstrate a likelihood of future or repeat injury. Bell presently and timely appeals the judgment of the district court.

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II. Discussion

We review a party's standing to pursue injunctive relief de novo, see ACLU of Ill. v. Alvarez, 679 F.3d 583, 590-91 (7th Cir.2012), as we do challenges to a statute's constitutionality, see United States v. Juarez, 454 F.3d 717, 719 (7th Cir.2006).

A. The District Court's Findings on Bell's Standing

An Article III court enjoys jurisdiction over a case only if the plaintiff demonstrates that he suffered an injury in fact, the defendant's actions caused the injury, and the remedy he seeks would redress his injury. See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); see also Alvarez, 679 F.3d at 590-91. When the plaintiff applies for prospective relief against a harm not yet suffered— or one he believes he will suffer again— he must establish that he " is immediately in danger of sustaining some direct injury as the result of the challenged official conduct [,] and [that] the injury or threat of injury [is] both real and immediate, not conjectural or hypothetical." City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (internal quotation marks omitted). Otherwise, he fails to allege an actual case or controversy before the court. See U.S. CONST. art. III, § 2, cl. 1.

As a general matter, a plaintiff who wishes to engage in conduct arguably protected by the Constitution, but proscribed by a statute, successfully demonstrates an immediate risk of injury. See Alvarez, 679 F.3d at 590-91. The existence of the statute constitutes the government's commitment to prosecute in accordance with it and, thus, a concrete prospect of future harm for one who would flout it. Id. (citing Bauer v. Shepard, 620 F.3d 704, 708 (7th Cir.2010); Majors v. Abell, 317 F.3d 719, 721 (7th Cir.2003)). Accordingly, when a plaintiff expresses a credible intention to disobey a statute, a sufficient likelihood of injury exists, and a pre-enforcement challenge is appropriate. See Alvarez, 679 F.3d at 590-91 (citing Brandt v. Vill. of Winnetka, Ill., 612 F.3d 647, 649 (7th Cir.2010); Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)). He need not wait to be arrested to bring suit for injunctive relief.

We distinguish claims where a statute criminalizes the plaintiff's conduct or desired conduct from those where the plaintiff seeks relief from the defendant's criminal or unconstitutional behavior. For the latter type of claim, the putative injury typically proves too remote or attenuated to sustain our jurisdiction under Article III. See Lyons, 461 U.S. at 105-06, 103 S.Ct. 1660 (finding no standing to sue for injunctive relief where the plaintiff suffered an unconstitutional chokehold during a traffic stop, feared that he would endure a chokehold again, but did not allege that every police officer in Los Angeles always applied chokeholds or that the City itself ordered chokeholds as protocol); O'Shea v. Littleton, 414 U.S. 488, 494-99, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (finding no standing to sue for injunctive relief where plaintiffs alleged discriminatory law enforcement and inferred future harm based on a pattern of past violative conduct, not the likely enforcement of a statute). The same logic obtains when a statute was or would have to be misapplied to justify the plaintiff's arrest. In Schirmer v. Nagode, for example, protesters who opposed military recruitment organized to hand out flyers near a recruiting booth at the Taste of Chicago. 621 F.3d 581, 583 (7th Cir.2010). When the protesters ignored the police's request to move to a designated protest zone and a later request to disperse,

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they were arrested pursuant to Subsection D. Id. The charges were ultimately dismissed, and the plaintiffs sued under Section 1983. We held that the plaintiffs lacked standing to facially challenge Subsection D or pursue injunctive relief because the law " c[ould not] fairly be read to prohibit peaceful protests of the sort [in which they were engaged]" and concluded that the police's " clear misuse of a law d[id] not provide a basis for a federal court to explore that law's facial constitutionality." Id. at 587-88. That is, we concluded that, whatever injury the plaintiffs suffered by virtue of their arrests pursuant to Subsection D and whatever damages to which they were entitled, id. at 583, a facial challenge and injunctive relief were inappropriate because the statute itself did not portend arrest and prosecution for peaceful protests. Id. at 588 (" These plaintiffs' experience appears, on this record, to be the result of an isolated misuse of the failure-to-disperse provision and indicates that they are not reasonably likely to face a future prosecution if section 8-4-010(d) is enforced according to its terms." ).

In this case, the district court, applying Schirmer, denied Bell standing, finding that the circumstances of his arrest were indistinguishable from those in Schirmer and that he " ha[d] not demonstrated more than a wholly speculative possibility of criminal consequences." We conclude, contrary to...

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