Shirmer v. Nagode - .

• Decision Date: 02 September 2010
• Docket Number: No. 09-2332.,09-2332.
• Citation: 621 F.3d 581
• Parties: Don Goldhamer and Robin SHIRMER, Plaintiffs-Appellees, v. Alfred NAGODE, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

621 F.3d 581

Don Goldhamer and Robin SHIRMER, Plaintiffs-Appellees,

v.Alfred NAGODE, et al., Defendants-Appellants.

No. 09-2332.

United States Court of Appeals,Seventh Circuit.

Argued April 1, 2010.

Decided Sept. 2, 2010.

Rehearing En Banc Denied Oct. 21, 2010.

Jonathan I. Loevy, Attorney, Elizabeth Wang (argued), Loevy & Loevy, Chicago, IL, for Plaintiffs-Appellees.

Mara S. Georges, Attorney, Office of the Corporation Counsel, Appeals Division, Christopher S. Norborg (argued), City of Chicago Law Department, Devlin J. Schoop, Attorney, Laner, Muchin, Dombrow, Becker, Levin & Tominberg, Chicago, IL, for Defendants-Appellants.

Before EASTERBROOK, Chief Judge, and BAUER and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

The City of Chicago has enacted an ordinance prohibiting disorderly conduct. One controversial portion of that ordinance makes it a crime for a person to fail to disperse from a group when ordered to do so by a police officer while others are engaging in disorderly conduct nearby: “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 Municipal Code § 8-4-010(d). This provision has obvious uses in controlling unruly and potentially dangerous crowds. Yet it also lends itself to overly broad application that can interfere with core First Amendment rights of free speech and assembly. The “three or more persons ... committing acts of disorderly conduct” could be reacting to (or even attempting to disrupt) the speech of the person arrested for a failure to disperse, so this provision can be applied to impose what amounts to an unconstitutional “heckler's veto” of protected speech. See, e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123, 134, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) (“Listeners' reaction to speech is not a content-neutral basis for regulation.”).

In this case, the district court permanently enjoined the city from enforcing the failure-to-disperse provision of section 8-4-010(d), reasoning that it imposes too great a burden on protected free speech and is unconstitutionally vague. The city has appealed. We do not address this provision's constitutionality because we conclude that the plaintiffs lack standing to challenge its facial validity. When these plaintiffs were arrested, according to this record, they were not even arguably violating the failure-to-disperse provision. Nor have they shown a reasonable prospect of future arrest for again violating that same provision. We recognize that the plaintiffs were arrested for supposedly violating this provision, but the grounds for the arrest were apparently specious. Plaintiffs have ample other remedies available to redress any injury they may have suffered from their arrests, but they do not have standing to challenge the facial validity of the law that was misapplied to them.

The Plaintiffs and Their Arrest: In the summer of 2006, plaintiffs Don Goldhamer and Robin Schirmer participated in a peaceful demonstration near a military recruiting booth at the annual Taste of Chicago Festival in downtown Chicago. Plaintiffs and others who opposed military recruitment began handing out flyers and speaking to people near the recruiting booth. Defendant Alfred Nagode, a lieutenant with the Chicago Police Department, and several uniformed patrol officers formed a line between the protestors and the military recruiting booth. Lieutenant Nagode then ordered the protestors to go to a designated protest zone. After some protestors failed to relocate in response to his order, Lieutenant Nagode ordered them to disperse. The plaintiffs apparently failed to heed this order. Both were arrested, transported to a police station, and charged with disorderly conduct for violating section 8-4-010(d).

There is no evidence in this record, however, that plaintiffs or any other people in the immediate vicinity were engaged in conduct recognizable as “disorderly conduct” under the ordinance. See City of Chicago v. Fort, 46 Ill.2d 12, 262 N.E.2d 473, 475 (1970) (construing “disorderly conduct” to mean an act conducted “in such unreasonable manner as to provoke, make or aid in making a breach of peace”). Genuine disorderly conduct by at least three persons in the immediate vicinity is an essential foundation for an order to disperse that is itself a prerequisite for an arrest under section 8-4-010(d).

The plaintiffs appeared in state court on the charges against them on several occasions. The state apparently was never prepared to follow through on the prosecution of these arrests. At their final court appearance, the court denied the prosecution's motion for a continuance and dismissed the charges.

Litigation in the District Court: Plaintiffs Goldhamer and Shirmer then filed this suit under 42 U.S.C. § 1983 alleging violations of their rights under the First, Fourth, and Fourteenth Amendments of the Constitution and under state law. Plaintiffs alleged in part that section 8-4-010(d) was invalid as applied to their protest activities, and that this provision was facially invalid under the First Amendment and was unconstitutionally vague. In support of their request for an injunction against this provision's enforcement, the plaintiffs stated that they “plan to continue their participation in constitutionally protected political activities and protests and ... fear repeated disruption of these activities and protests and prosecution for them.” Plaintiffs did not allege that they had been threatened with future arrest or prosecution for those activities.

The district court directed the parties to submit cross-motions for summary judgment on the facial validity of the failure-to-disperse provision. The district court granted summary judgment for the plaintiffs, determining that the failure-to-disperse 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 Jurisdiction: The district court's orders did not resolve all claims pending before it. Although the plaintiffs later dismissed many of their remaining claims with prejudice pursuant to a settlement, the dismissal did not resolve plaintiffs' claim for damages under the count alleging that the failure-to-disperse provision is unconstitutionally vague. Nevertheless, pursuant to 28 U.S.C. § 1292(a)(1), we have jurisdiction to consider this appeal from the grant of permanent injunctive relief. See Jones-El v. Berge, 374 F.3d 541, 543-44 (7th Cir.2004). Because the district court's grant of summary judgment was “inextricably bound” to the injunction, we have limited jurisdiction to review that grant of summary judgment as well, to the extent necessary. See Coronado v. Valleyview Public School Dist. 365-U, 537 F.3d 791, 795 (7th Cir.2008); Shaffer v. Globe Protection, Inc., 721 F.2d 1121, 1124 (7th Cir.1983) (noting the great caution with which jurisdiction under § 1292(a)(1) is to be exercised).

Standing to Seek Injunctive Relief: We may not consider the facial validity of the failure-to-disperse provision unless the plaintiffs had standing to request the injunctive relief. Article III of the United States Constitution limits the jurisdiction of the federal courts to actual “Cases” and “Controversies.” Unless a case or controversy is presented, no federal court has the jurisdiction to decide whether a federal, state, or local law is constitutional. Golden v. Zwickler, 394 U.S. 103, 110, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), quoting Liverpool, N.Y. & P.S.S. Co. v. Commissioners, 113 U.S. 33, 39, 5 S.Ct. 352, 28 L.Ed. 899 (1885). Because standing is “an essential and unchanging part of the case-or-controversy requirement of Article III,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), we must consider this jurisdictional issue even though the parties have not raised it. E.g., MainStreet Org. of Realtors v. Calumet City, 505 F.3d 742, 747 (7th Cir.2007).

We have no doubt that plaintiffs had standing to pursue their claims for damages based on what may well have been unlawful arrests that also interfered with expression protected by the First Amendment. Plaintiffs' standing on those claims, however, does not necessarily carry over to their facial challenge requesting an injunction against any enforcement of the failure-to-disperse provision. A plaintiff “must demonstrate standing separately for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); accord City of Los Angeles v. Lyons, 461 U.S. 95, 109, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (plaintiff had standing to seek damages but not injunctive relief against abusive police practices). The only slice of this case before us is plaintiffs' request for prospective relief-an injunction against enforcement of the failure-to-disperse provision. To establish their standing to seek that relief, the plaintiffs must show that: (1) they are under threat of an actual and imminent injury in fact; (2) there is a causal relation between that injury and the conduct to be enjoined; and (3) it is likely, rather than speculative or hypothetical, that a favorable judicial decision will prevent or redress that injury. Summers v. Earth Island Institute, --- U.S. ----, ----, 129 S.Ct. 1142, 1149, 173 L.Ed.2d 1 (2009); Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130; Sierra Club v. Franklin County Power of Illinois, LLC, 546 F.3d 918, 925 (7th Cir.2008).

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