Goldhamer v. Nagode, 07 C 5286.
| Decision Date | 12 March 2009 |
| Docket Number | No. 07 C 5286.,07 C 5286. |
| Citation | 611 F.Supp.2d 784 |
| Parties | Don GOLDHAMER and Robin Schirmer, Plaintiffs, v. Lt. NAGODE, Cmdr. Keating, Officer Pohl, Unknown Police Officers and Employees of the City of Chicago, individually and in their official capacities, and the City of Chicago, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Arthur R. Loevy, Jonathan I. Loevy, Elizabeth C. Wang, Kurt Henry Feuer, Loevy & Loevy, Charles Nissim-Sabat, Jeffrey H. Frank, Law Offices of Jeffrey Frank, Chicago, IL, for Plaintiffs.
Devlin Joseph Schoop, Joseph Michael Gagliardo, Lawrence Jay Weiner, Laner, Muchin, Dombrow, Becker, Levin & Tominberg, Ltd., Andrew S. Mine, Law Department, Rebecca Alfert, Chicago, IL, for Defendants.
Before the court are the parties' cross-motions for summary judgment. For the reasons explained below, plaintiffs' motion is granted, and defendants' motion is denied.
The material facts are not in dispute. This case arises out of an occurrence at the Taste of Chicago festival in Grant Park on July 2, 2006. Numerous individuals, including plaintiffs Don Goldhamer and Robin Schirmer, were present in the vicinity of a United States Armed Forces recruiting booth. Some individuals who opposed military recruitment were handing out flyers and speaking to people. At some point, defendant Lieutenant Nagode, a Chicago police officer, and several uniformed patrol officers formed a line between the protesters and the recruiting booth. Lieutenant Nagode then told the protesters to go to a designated protest zone.
After certain protesters did not relocate in response to this order, Lieutenant Nagode ordered them to disperse. Plaintiffs did not disperse, and they and four other individuals were then arrested. Plaintiffs were charged with disorderly conduct in violation of Chicago Municipal Code § 8-4-010(d) ("subsection(d)" or the "ordinance"), the text of which is discussed infra. Plaintiffs appeared in court several times on the charges. At the final court appearance, the City sought another continuance, but the court denied the motion and dismissed the charges against plaintiffs.
The complaint in this action contains nine counts. In Count I, plaintiffs seek a declaration that subsection (d) of the disorderly conduct ordinance is unconstitutional as violative of their First Amendment rights, facially and as applied, as well as an injunction prohibiting its enforcement. Plaintiffs also bring § 1983 claims for First Amendment retaliation (Count II); conspiracy (Count III); violation of due process in that the ordinance is impermissibly vague (Count IV); and false arrest (Count V). In Count VI, plaintiffs seek to hold the City liable for damages pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Plaintiffs bring state-law claims for malicious prosecution (Count VII); respondeat superior (Count VIII); and indemnification (Count IX).
Defendants previously moved to dismiss certain counts of the complaint. We denied the motion as to Counts I, II, IV, and VI and granted it as to Count III, the conspiracy claim. Goldhamer v. Nagode, No. 07 C 5286, 2008 WL 4866603 (N.D.Ill. Aug. 4, 2008) ("Goldhamer I").1 The parties now have filed cross-motions for summary judgment. We directed the parties to limit their arguments to the issue of whether subsection (d) of the ordinance is facially unconstitutional.
Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "The evidence in the record must be viewed in the light most favorable to the nonmoving party and on cross-motions for summary judgment, inferences are drawn in favor of the party against whom the motion under consideration was made." McKinney v. Cadleway Props., Inc., 548 F.3d 496, 499-500 (7th Cir.2008) (internal citation omitted). "Summary judgment should be denied if the dispute is `genuine': `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Talanda v. KFC Nat'l Mgmt. Co., 140 F.3d 1090, 1095 (7th Cir.1998) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The court will enter summary judgment against a party who does not "come forward with evidence that would reasonably permit the finder of fact to find in [its] favor on a material question." McGrath v. Gillis, 44 F.3d 567, 569 (7th Cir.1995).
At issue is the Chicago disorderly conduct ordinance, the relevant portion of which provides:
A person commits disorderly conduct when he knowingly:
...
(d) Fails 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, Ill. Municipal Code § 8-4-010(d). Plaintiffs allege that subsection (d) violates their rights under the First and Fourteenth Amendments to the United States Constitution, as well as their rights under the Illinois Constitution.2 Plaintiffs contend that subsection (d) is void for vagueness because it does not give adequate notice as to what is prohibited and poses the potential for arbitrary and discriminatory enforcement. They also contend that subsection (d) is overbroad.
Defendants, on the other hand, argue that subsection (d) is a reasonable time, place, and manner restriction that is narrowly tailored to serve a significant government interest and allows ample alternative channels of communication. Defendants also argue that subsection (d) provides both adequate notice as to what conduct is proscribed and adequate guidelines for enforcement and therefore is not unconstitutionally vague, nor is it overbroad.
Before addressing the parties' arguments concerning the appropriate level of scrutiny, we will discuss plaintiffs' general burden on their facial challenge to subsection (d). Defendants argue that pursuant to United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), plaintiffs must establish that "no set of circumstances exists" under which the provision would be valid. Plaintiffs respond, correctly, that the stringent Salerno standard does not apply in cases involving First Amendment vagueness and/or overbreadth challenges. See Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702, 708 n. 11 (7th Cir.2003).3
The parties revisit the arguments they raised in the briefing on defendants' motion to dismiss concerning the appropriate level of scrutiny for subsection (d). Defendants continue to maintain that the provision is a content-neutral "time, place, or manner" regulation of conduct and therefore need only meet the requirements of "intermediate scrutiny." (Defs.' Consolidated Mem. at 4-5.) Plaintiffs contend that because the ordinance broadly affects speech and burdens freedom of assembly, we should employ "strict scrutiny." (Pls.' Mem. in Supp. of Mot. at 18.)
We analyzed this issue in our previous memorandum opinion and concluded that subsection (d) is content-neutral because it does not regulate speech on the basis of the substance of any message and indeed, does not purport to regulate speech at all. We found distinguishable the cases cited by plaintiffs in support of their argument, City of Ladue v. Gilleo, 512 U.S. 43, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994), in which the Court held unconstitutional an ordinance prohibiting nearly all residential signs, and Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002), in which the Court held unconstitutional an ordinance barring door-to-door advocacy without first obtaining a permit.
Plaintiffs again argue that Ladue and Watchtower Bible apply. In plaintiffs' view, these decisions "direct a court to strictly scrutinize laws that have a broad impact on possible avenues of expression, even if they are content neutral, and to balance the state's interest in regulating speech against the individual and the public's interest in protecting it." (Pls.' Mem. at 18.) We are still unpersuaded. Because Ladue and Watchtower Bible are very fact-specific, we do not believe that a mandate to strictly scrutinize laws that "have a broad impact" on First Amendment rights can be drawn from these decisions.
Plaintiffs conceded, and we previously concluded, that subsection (d) is content-neutral. That is, the regulation is not based upon a specific viewpoint contained in speech. In fact, it is more of a generally applicable law that can incidentally restrict speech in some instances. These types of regulations are generally subject to what is essentially intermediate scrutiny, as set forth in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). But there is a troublesome element of subsection (d) that we discussed in Goldhamer I, and that is the fact that the regulation seems to permit a heckler's veto.4 "First Amendment rights are not subject to the heckler's veto." Nelson v. Streeter, 16 F.3d 145, 150 (7th Cir.1994) (); see also Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295, 1299 (7th Cir.1993) ( ...
To continue reading
Request your trial
-
Shirmer v. Nagode - .
...provision of the ordinance is facially invalid under the First Amendment and unconstitutionally vague. Goldhamer v. Nagode, 611 F.Supp.2d 784 (N.D.Ill.2009). In a separate order, the court issued a permanent injunction prohibiting the city from enforcing section 8-4-010(d). Appellate Jurisd......
- Perkins v. Rogers Grp., Inc.