Surita v. Hyde
| Decision Date | 22 December 2011 |
| Docket Number | No. 09–1165.,09–1165. |
| Citation | 665 F.3d 860 |
| Parties | Jose SURITA, Margaret Carrasco and Chris Blanks, Plaintiffs–Appellees, v. Richard HYDE and William Biang, Defendants–Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Robert S. Libman, Jeffrey I. Cummings (argued), Nancy L. Maldonado, Attorneys, Miner, Barnhill & Galland, Chicago, IL, for Plaintiffs–Appellees.
James A. Flesch (argued), Attorney, Glickman, Flesch & Rosenwein, Chicago, IL, for Defendants–Appellants.
Before MANION and WILLIAMS, Circuit Judges, and CLEVERT, District Judge.*CLEVERT, District Judge.
A towing ordinance of the City of Waukegan generated several rallies or marches in opposition. While dealing with protestors, City officials barred a citizen from speaking at a city council meeting and imposed outdoor assembly permit and fee requirements. Several individuals then sued the City, its mayor, and its police chief under 42 U.S.C. § 1983, alleging violations of their First Amendment rights of free speech, of assembly, and to petition government for redress of grievances. Mayor Richard Hyde and Police Chief William Biang appeal the district court's denial of qualified immunity as to the First Amendment claims of Jose Surita, Margaret Carrasco, and Chris Blanks.
In 2002 the City of Waukegan amended its towing ordinance to allow police to seize and impound vehicles and to impose a $500 fine on persons driving without a valid license or proof of insurance (the “Towing Ordinance”). The Towing Ordinance generated protests that it applied more harshly against minorities.
In early– and mid–2004, Waukegan maintained an outdoor assembly ordinance establishing procedures for the permitting of certain outdoor events (the “Assembly Ordinance”). Written application for a permit had to be made twenty days in advance of the outdoor event, and Waukegan had discretion to require the organizer of the event to pay a cash deposit as a condition of permit issuance. Waukegan's police department was responsible for conducting an investigation and making a report and recommendation to the city clerk in connection with events covered by the Assembly Ordinance.
During a large rally on January 18, 2004, at Waukegan's Belvidere Mall, Jose Surita criticized Susana Figueroa, the City's community liaison officer. Although details of the encounter are in dispute, the parties agree that Surita told Figueroa “she should do more to help her people.” Following the rally, Figueroa reported to Mayor Richard Hyde that Surita had been very angry, “got in her face,” and caused her to fear that he would attack her physically.
The Waukegan City Council set aside ten minutes at the end of each of its bimonthly meetings for “audience time.” Any member of the public could talk for up to three minutes, on any subject. The mayor was presiding officer and chair of the meetings.
At a meeting on January 20, 2004, Mayor Hyde told Surita, as he stood at the microphone during audience time, that he would not be allowed to speak until he apologized to Figueroa. Hyde chastised Surita for his comments to Figueroa at the Belvidere Mall rally two days earlier:
All right. Now I want to make one thing clear here because I was going to talk to this gentleman.... The city employees do what they are asked by the city ordinances. We have a Community Liaison Officer. We don't have an Afro American, we have got a Hispanic and she works for the City of Waukegan. Now, Sunday she was severely confronted with language right in her face by a male. And, now, any man that does that to a woman is lower than a rat. So before I will hear any person of that speaking, you will come to see me after the council meeting and you will go to that lady and you will apologize because you severely hurt her, her personality and her feelings.... And if that person does not apologize to her in person to her face, the next time that happens I will have that person arrested and booked on intimidation. And that is legal. That is very legal. I want to make that known right now because I don't think our employees should have to put up with anything from anybody because they are city employees. They are doing what they are told to do. And this Hispanic lady was confronted with a Hispanic man. And how any man could talk to a woman like that, I don't know. If he was talking to another man like that he'd be decked, right there. So that is all I have to say about that. Okay. No, I am not going to listen to you until you get up and you go to ... Suzanne—I'm talking to you. Until you go to Suzanne Figueroa and you apologize to her. Thank you. Okay, Alderman's time.
Surita wanted to discuss the Towing Ordinance during audience time but did not speak at the city council meeting. Other members of the public addressed the council at the meeting, some discussing the Towing Ordinance.
Margaret Carrasco opposed the Towing Ordinance and participated in a march on June 28, 2004, to protest it. Waukegan's Chief of Police, William Biang, was informed that Carrasco intended to conduct a rally on July 6, 2004, in conjunction with a city council meeting that night. He was told the upcoming rally would be larger than one at which protesters seemed hostile to police.
On July 1, 2004, Biang sent an officer to Carrasco's house to ask her to attend a meeting that day to discuss the upcoming rally. Carrasco attended the meeting that afternoon with Biang, three other police officers, and city attorney Gretchen Neddenriep. Exactly what was said at the July 1 meeting is disputed, but the parties agree that Carrasco said she and others would attend the city council meeting on July 6.
At the July 1 meeting, Neddenriep handed Carrasco a copy of the Assembly Ordinance and asked her to comply with it. A follow-up letter from Neddenriep the next day stated that Waukegan would waive the requirement that the application be filed in advance but that Carrasco had to pay a permit fee of $1,500. The fee was based on the number of extra police officers Biang determined were needed for the rally (ten officers at $50 per hour for three hours each). Biang was copied on the letter.
Biang has said that he determined more officers were needed for the rally because it was a protest as opposed to a rally in favor of a City ordinance. Out of 530 events in a five-year period, only two were determined to require payment of a permit fee, and those were protests against the Towing Ordinance. The two events triggering a permit fee were Carrasco's possible event and another planned by Chris Blanks, discussed below.
On July 6, 2004, Carrasco told Biang and Neddenriep that there would be no event that day, pointing out that no deposit was required for overflowing city council meetings. At the July 6 city council meeting Biang reserved eight or ten seats for Carrasco and her group.
Chris Blanks engaged in numerous protest activities against the Towing Ordinance, including attending the Belvidere Mall rally and speaking at city council meetings in July and August 2004. Biang was aware that Blanks was an outspoken critic of the Towing Ordinance.
In August 2004, Blanks advertised a rally against the Towing Ordinance to be held September 4, 2004, in Bedrosian Park, which was owned by the Waukegan Park District. The Park District had its own permit rules, and the Assembly Ordinance did not apply to its property.
After learning of the planned rally, Biang instructed his deputy chief, Artis Yancey, to check whether Blanks had a permit from the Park District and to “handle it.” Yancey learned that Blanks had no permit and told Neddenriep.
On September 2, 2004, Neddenriep had a uniformed police officer deliver a letter to Blanks advising him that he was violating the Assembly Ordinance because he had not obtained a permit twenty days in advance. The letter told Blanks that failure to comply with the Assembly Ordinance would result in a violation. However, the letter did not advise Blanks that the Park District, rather than Waukegan, owned Bedrosian Park.
Biang and the city prosecutor were copied on the letter. Blanks was the only person ever advised in writing in advance of an event that he was violating the Assembly Ordinance. Moreover, he and Carrasco were the only persons against whom the Assembly Ordinance was enforced. After receiving the letter Blanks canceled the September 4 rally.
No final judgment was entered by the district court because the case has not concluded. Generally, federal appellate courts possess jurisdiction to hear appeals from final decisions only, see Viilo v. Eyre, 547 F.3d 707, 711 (7th Cir.2008), and denials of summary judgment do not qualify as final decisions in most instances, Ortiz v. Jordan, –––U.S. ––––, 131 S.Ct. 884, 891, 178 L.Ed.2d 703 (2011). However, Hyde and Biang appeal the denial of qualified immunity. Assertions of qualified immunity may fall under one of the exceptions to final judgment under the collateral order doctrine. Id.; Viilo, 547 F.3d at 711. Some pretrial orders denying qualified immunity are appealable immediately because review after trial would come too late to vindicate the right of public officials not to stand trial. Mitchell v. Forsyth, 472 U.S. 511, 525–27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Viilo, 547 F.3d at 711. Accordingly, orders denying summary judgment on the basis of qualified immunity are appealable immediately when the appellate court need not consider the correctness of the plaintiff's version of the facts but need only determine a question of law. Mitchell, 472 U.S. at 528, 105 S.Ct. 2806; Viilo, 547 F.3d at 711. If the immunity question cannot be decided without resolving a disputed question of fact, we lack jurisdiction over the appeal of that question. Ortiz, 131 S.Ct. at 891; Hill v. Coppleson, 627 F.3d 601, 605 (7th Cir.2010).1
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