Purtell v. Mason
| Decision Date | 14 May 2008 |
| Docket Number | No. 06-3176.,06-3176. |
| Citation | 527 F.3d 615 |
| Parties | Jeffrey R. PURTELL and Vicki A. Purtell, Plaintiffs-Appellants, v. Bruce MASON, in his individual capacity, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John R. Wimmer (argued), Downers Grove, IL, for Plaintiffs-Appellants.
James L. DeAno (argued) DeAno & Scarry, Wheaton, IL, for Defendant-Appellee.
Before KANNE, WILLIAMS, and SYKES, Circuit Judges.
This free-speech lawsuit requires us to determine the present scope of the "fighting-words" doctrine. The setting is a neighborhood feud. The case features an unsightly, 38-foot recreational vehicle stored on a residential driveway in suburban Chicago, a neighborhood petition drive to force its removal, and a derogatory Halloween yard display erected in retaliation against the neighbors who led the petition drive. An unlucky police officer dispatched to mediate the dispute was sued for his efforts, accused of violating the First and Fourth Amendments.
The plaintiffs claimed their Halloween display — wooden tombstones with epitaphs describing, in unflattering terms, the demise of their neighbors — was constitutionally protected speech. They alleged their rights under the First and Fourth Amendments were violated when the officer ordered them to remove the display on pain of arrest. The district court granted summary judgment for the officer on the Fourth Amendment claim but permitted the free-speech claim to proceed to trial. A sensible but probably misinstructed jury returned a verdict for the police officer.
We affirm. Summary judgment on the Fourth Amendment claim was properly granted. At the moment of arrest, the neighbor-combatants were engaged in a noisy argument over the tombstones, culminating in a "chest-butt." This provided probable cause to arrest for disorderly conduct. The First Amendment claim need not have been tried. The tombstone inscriptions, although insulting, cannot be considered fighting words as that doctrine is presently understood. The display was, accordingly, protected speech. But the officer's mistake about the scope of the plaintiffs' constitutional right to ridicule their neighbors was one a reasonable officer might make in this situation. He was therefore entitled to qualified immunity.
Jeffrey and Vicki Purtell owned a large recreational vehicle — 38 feet long and 12 feet high — and for a while stored it at a rental-storage facility. In 2001, however, they fell on hard financial times and parked it on the driveway of their home in the Village of Bloomingdale, Illinois. There it sat for more than a year. Here is a picture:
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE
The Purtells' neighbors were unhappy but tolerated the presence of this eyesore, at least initially. Their patience eventually wore thin, however, and they complained to the Village of Bloomingdale. There was little the Village could do because the Purtells were not violating any existing laws.
Several of the neighbors then took matters into their own hands and started a petition drive urging the Village to adopt an ordinance banning homeowners from storing RVs on their property. This effort was ultimately successful. In late November 2002, the Village Board enacted an ordinance prohibiting the storage of RVs on residential property.
The Purtells eventually complied with the ordinance and moved their RV, but not before making a crude retaliatory statement to their complaining neighbors. While the RV ordinance was still under consideration by the Village Board, the Purtells erected six wooden tombstones on their front lawn. It was mid-October and Halloween was coming, but the tombstones were not mere seasonal decorations; they carried a message for the neighbors who had pressed for the RV ordinance. Five of the six tombstones referred to a specific complaining neighbor followed by a short inscription describing the neighbor's death.
To be more specific, each tombstone was about three feet tall, and they were placed about five feet from the sidewalk, facing the street. Here is a picture of the display:
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE
The tombstones were inscribed with epitaphs, in doggerel verse, directed at the neighbors who had petitioned for the RV ordinance. All but one referred to particular neighbors by name and specified a year of death corresponding to the neighbor's street address, plus one additional number. For example, a tombstone referring to John Berka, who resides at 188 Jackson Lane, was inscribed as follows:
Old John Burkuh
Said he didn'T give a care
So They buried hiM
aLive uP To his hair
He couLdn'T breath
So now we're relieved
Of ThaT NasTy oLd jerk
~ 1888 ~
The remaining tombstones read as follows:
These inscriptions referred to neighbors Diane Lesner, Betty Garbarz, James Garbarz, and a neighbor who owned a crimping shop. The "misty-eyed Crysty" referred to on the sixth tombstone was fictional; Jeff Purtell said he included this one to "balance out" the display.
The Purtells' neighbors were upset by the tombstone display, and several called the Bloomingdale Police Department to report that they felt intimidated by it and wanted it removed. On October 18 police officers were dispatched to the neighborhood and attempted to persuade Jeff Purtell to take down the tombstones; he refused, but agreed to cover the names with duct tape.
Halloween came and went, and still the tombstones remained. The simmering tension in the neighborhood eventually came to a boil on November 6, 2002, when the police were called because the duct tape had fallen off the tombstones and the names were visible again. Officer Bruce Mason and another officer went to the neighborhood to try once more to mediate the dispute. They spoke with Betty Garbarz and Diane Lesner, who told the officers they felt threatened by the display, which they saw as a means for Purtell to vent his anger over the dispute about his RV. The officers then went to the Purtell residence and met with Jeff Purtell, explaining the depth of his neighbors' reaction to the tombstones. Purtell agreed to reapply the duct tape and came outside to do so. While he was reapplying the tape, Officer Mason asked him to take the tombstones down altogether. Officer Mason told Purtell the neighbors wanted him arrested because they felt threatened by the display. Purtell said that was not his intent.
While Officer Mason and Purtell were talking on the Purtells' front lawn, Bob Lesner, the Purtells' next-door neighbor and husband of Diane Lesner (the subject of one of the tombstones) arrived home. He came onto the Purtells' front lawn and began arguing with Jeff Purtell about the display. Tempers flared, a shouting match erupted, and Lesner chest-butted Purtell. After Officer Mason separated the men, he told Purtell if he did not agree to remove the tombstones, he would be arrested for disorderly conduct. Purtell again refused and was momentarily handcuffed. At that point, he rethought his options and relented, saying he would rather take the tombstones down than be arrested. Officer Mason removed the handcuffs, and Purtell dismantled the tombstone display.
The Purtells then sued Officer Mason for damages under 42 U.S.C. § 1983, asserting a First Amendment claim for violation of their free-speech rights and a Fourth Amendment claim for arresting Jeff Purtell without probable cause. Officer Mason moved for summary judgment on both counts, arguing that the arrest was supported by probable cause and he was entitled to qualified immunity because the speech on the tombstones was unprotected under the "fighting-words" doctrine. The district court granted the motion in part, holding there was probable cause to arrest Purtell for disorderly conduct, but concluded that material factual issues precluded a ruling on qualified immunity on the First Amendment claim.
The case was then tried to a jury. At the close of evidence, the Purtells orally moved for judgment as a matter of law; the judge took the motion under advisement. The court had decided to submit the question of whether the speech on the tombstones constituted fighting words to the jury, but the parties disagreed over the proper language for the fighting-words jury instruction. Their dispute centered on whether the definition of fighting words should include words that "by their very utterance inflict injury or tend to incite an immediate breach of the peace" — the classic formulation from ...
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