Lalowski v. City of Des Plaines

• Decision Date: 17 June 2015
• Docket Number: No. 12–3604.,12–3604.
• Parties: Dick V. LALOWSKI, Plaintiff–Appellant, v. CITY OF DES PLAINES, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

789 F.3d 784

Dick V. LALOWSKI, Plaintiff–Appellant

v.CITY OF DES PLAINES, et al., Defendants–Appellees.

No. 12–3604.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 10, 2013.

Decided June 17, 2015.

Keith A. Karlson, Attorney, Hinsdale, IL, for Plaintiff–Appellant.

Lucy B. Bednarek, Attorney, Ellen Kornichuk Emery, Attorney, Ancel, Glink, Diamond, Bush, Dicianni & Krafthefer, P.C., Chicago, IL, Charles E. Hervas, Attorney, Hervas, Condon & Bersani, Itasca, IL, for Defendants–Appellees.

Before KANNE, WILLIAMS, and TINDER, Circuit Judges.

Opinion

TINDER, Circuit Judge.

Dick Lalowski was formerly a police officer for the City of Des Plaines, Illinois. However, on the morning of May 20, 2006, he had two altercations with a group of demonstrators at an abortion clinic, one while he was on duty and the other shortly after his shift ended. Lalowski's conduct during these altercations led the City's police chief at the time, James Prandini, to file charges against him with the Des Plaines Board of Fire and Police Commissioners and to recommend his discharge. The Board held two sets of administrative hearings, one on the merits of the charges against Lalowski and the other on the appropriate penalty. After the first set of hearings, the Board voted unanimously to sustain the charges, and after the second set of hearings, it voted unanimously to terminate Lalowski's employment. The Board issued a written decision on May 30, 2008.

On July 2, 2008, Lalowski filed this action against Prandini, the Board, and the City. He brought five claims, but only two are at issue in this appeal: (1) a claim against all three defendants under 42 U.S.C. § 1983, alleging that they retaliated against him for his protected speech in violation of the First Amendment; and (2) a claim against the Board under Illinois's Administrative Review Law, 735 I.L.C.S. 5/3–101 et seq., seeking review of the Board's decision to terminate his employment. The district court granted summary judgment against Lalowski on both claims, and he appeals that ruling.

I. SPEECH RETALIATION CLAIM

The parties filed cross-motions for summary judgment on Lalowski's speech retaliation claim under the First Amendment. “On review of cross-motions for summary judgment, we view all facts and inferences in the light most favorable to the nonmoving party on each motion.” Wis. Alumni Research Found. v. Xenon Pharm., Inc., 591 F.3d 876, 882 (7th Cir.2010). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Below, we recite the facts relevant to Lalowski's speech retaliation claim that were before the district court on summary judgment. These facts are undisputed unless otherwise noted.

A. Summary Judgment Record

During the early morning hours of May 20, 2006, a group of demonstrators gathered outside an abortion clinic in Des Plaines, Illinois. The demonstrators hoped to dissuade women from entering the clinic, and as part of that effort, they planned to display large signs containing images of aborted fetuses. Meanwhile, then-Officer Lalowski was nearing the end of an overnight shift. Around 6:30 a.m., he noticed the demonstrators setting up, and he pulled his marked police vehicle up to them and began speaking to a woman named Paula Emmerth. Lalowski told Emmerth not to impede traffic or to stop anyone from entering the clinic. He also told the demonstrators that he would arrest them if they did not comply.

At this point, the stories diverge. Emmerth claims Lalowski called her a “fat fucking cow.” She and other demonstrators also claim that Lalowski used repeated profanities and threats (e.g., “I'll fucking arrest you”), accused the demonstrators of acting like the Taliban, and generally behaved in a way that was intimidating and “out of control.” Lalowski, on the other hand, concedes that this initial confrontation with the demonstrators was “adversarial” but denies using profanity or accusing them of acting like the Taliban. In any event, this first exchange lasted only a few minutes. Upon request, Lalowski provided the demonstrators with his name and badge number, then he left the clinic and returned to the Des Plaines police station.

Back in the station locker room, Lalowski began to think about the images of aborted fetuses the demonstrators were displaying, and he became upset. He testified in his deposition, “At that time I was thinking about why would somebody put those signs out there, why would anybody who was trying to help people do that [?] I had to know.” Thus, he decided that he would go back to the clinic to confront the demonstrators about their signs.

Around 7:00 a.m., Lalowski, now off duty and wearing plain clothes, returned to the abortion clinic in his personal vehicle. He parked his car in an adjacent lot and walked over to Matthew Jones, a fellow Des Plaines police officer who was stationed at the clinic to provide security and ensure that the demonstration remained orderly. After a brief conversation with Jones, Lalowski approached Paula Emmerth, greeted her, and asked if she remembered him. Emmerth said that she remembered him as the police officer who had spoken to her earlier that morning. Lalowski told her that he was now off duty and “not [t]here representing anybody.” However, he concedes that he wanted the demonstrators to know that he was a police officer so they would show him respect, even though he was off duty.

Lalowski then asked Emmerth why the demonstrators were displaying the aborted-fetus signs. Emmerth said that they were using the signs to tell the truth about abortion, to which Lalowski responded, “Okay. Let's talk about the truth then. You're fat.” Lalowski then started telling Emmerth and other demonstrators that they should not show the fetus signs because “the truth sometimes hurts.” He noted that a woman who had recently had a miscarriage might drive by and be upset by the signs. When Emmerth refused to take down the signs, Lalowski called her a “fat fucking cow” and a “sinner of gluttony,” then he sarcastically asked her whether she was hiding food somewhere. Lalowski claims to have made these statements to provide Emmerth with a few stinging examples of how the truth can hurt. He then began to lecture Emmerth on the importance of exercise and got down on all fours to demonstrate aerobic exercises she could do to lose weight.

After demonstrating the exercises, Lalowski got up and continued talking to Emmerth. At some point, he reached out and made physical contact with her. There is a factual dispute as to the manner of the touching. Lalowski says that he patted Emmerth on the shoulder to “convey sincerity,” but Emmerth says that he “poked” her in both arms and rubbed her arms “in a creepy, sexual way.”

This time, Lalowski remained at the clinic for approximately one hour and twenty minutes. During the course of that time he spoke with many demonstrators, and there are factual disputes over his specific language, tone of voice, and general demeanor during these conversations. However, it is undisputed that Lalowski accused the demonstrators of using intimidation tactics like the Taliban, compared their use of the aborted-fetus signs to using an image of a priest “bending over” a small boy to protest sexual abuse within the Catholic church, called demonstrator Wanda Glitz a “psycho” and a “man hater,” called Paula Emmerth a “fat cow” several times, called Paula's sister Teresa Emmerth “fatty,” and told Paula Emmerth that she would be a beautiful woman if she were not so fat. At some point, Officer Jones called Lalowski over to notify him that a demonstrator had called 911 to request police assistance in dealing with him. Finally, after Lalowski realized that his efforts to persuade the demonstrators to take down their signs were futile, he hugged Paula Emmerth, told her that he loved her, and went on his way. He made no report of his on-duty or off-duty contact with the demonstrators.

Later that day, then-police chief Prandini received a call at home from one of his sergeants about the morning's incidents. Prandini asked two officers, Sergeant Kevin O'Connell and Deputy Chief Terry McAllister, to investigate Lalowski's conduct at the clinic. During the course of the investigation, Lalowski and several demonstrators were interviewed and gave written statements. On May 24, 2006, Sergeant O'Connell and Deputy Chief McAllister sent Prandini a final report of their investigation. The report stated in part, “Officer Lalowski's conduct [on the morning of May 20th] toward the public was harsh, profane, and unruly and caused a huge disturbance among numerous citizens of the city of Des Plaines. He used insulting, profane language toward numerous female citizens and caused a hostile feeling towards the city of Des Plaines and the Des Plaines Police Department.”

Based on this report, Prandini decided to suspend Lalowski without pay and file charges with the Board of Fire and Police Commissioners seeking his termination. Prandini filed five charges against Lalowski for violations of the police department's rules and regulations governing unbecoming conduct, courteous and orderly dealings with the public, the obligation to obey all laws and department rules and regulations, truthfulness, and impartiality. Two additional charges were brought against him based on violations of Illinois Criminal Code Sections 5/12–1 and 5/12–3, which deal with assault and battery. After a series of administrative hearings, the Board unanimously voted to sustain all charges against Lalowski and to order his discharge from the Des Plaines Police Department.

In reaching its decision, the Board credited the demonstrators' version of the events and found that Lalowski had been untruthful to the extent that his story contradicted theirs. The Board also relied upon Lalowski's disciplinary history as an aggravating factor in its decision to terminate his...