Teesdale v. City of Chi.

• Decision Date: 10 August 2012
• Docket Number: No. 11–2741.,11–2741.
• Citation: 690 F.3d 829
• Parties: Frank TEESDALE, et al., Plaintiffs–Appellees, v. CITY OF CHICAGO, an Illinois municipal corporation, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

690 F.3d 829

Frank TEESDALE, et al., Plaintiffs–Appellees,

v.CITY OF CHICAGO, an Illinois municipal corporation, Defendant–Appellant.

No. 11–2741.

United States Court of Appeals, Seventh Circuit.

Argued March 28, 2012.

Decided Aug. 10, 2012.

Andy R. Norman, Noel W. Sterett (argued), Attorney, Mauck & Baker, Chicago, IL, for Plaintiffs–Appellees.

Jonathan Mark Powell (argued), Attorney, City of Chicago Law Department, Chicago, IL, for Defendant–Appellant.

Before MANION, SYKES, and HAMILTON, Circuit Judges.

MANION, Circuit Judge.

I.

Every July, St. Symphorosa Catholic Church in Chicago holds a summer festival for several consecutive days. The festival is open to the general public and no admission fee is charged. To conduct the festival, the parish obtains a special event permit from the Mayor's Office of Special Events, pursuant to Municipal Code of Chicago, Illinois § 10–8–335 (2011). This permit allows the parish to close portions of two public streets adjacent to the church. The streets are closed to vehicular traffic, but are open to pedestrians. The festival is not sponsored by the City of Chicago—it is organized solely by St. Symphorosa.

For the 2008 festival, St. Symphorosa obtained a City permit running from July 6 through July 14. The parish provided a team of security personnel for the festival, which consisted of paid private security guards and volunteer off-duty Chicago police officers who were also St. Symphorosa parishioners. The head of St. Symphorosa's security team, Ray Kolasinski, was a parishioner and a member of the parish's festival committee. Kolasinski was also a Chicago police officer, but at the festival, he worked as one of the off-duty volunteers. His encounter with some unexpected visitors resulted in a lawsuit and ultimately this appeal.

Located a few blocks away from St. Symphorosa is Garfield Ridge Baptist Church, led by Pastor Frank Teesdale. Members of Garfield Church regularly travel to various events and locations throughout Chicago to engage in street ministry, which involves preaching to members of the public and handing out gospel tracts. In 2008, Garfield Church decided to attend the St. Symphorosa festival to engage in this street ministry.

On July 12, 2008, Pastor Teesdale and several members of his church entered the east end of the festival and began walking down one of the blocked-off streets. Teesdale carried a bullhorn, while the other Garfield Church members carried signs and a banner with Scripture verses. The group engaged festival patrons in conversation and handed out gospel tracts.

Kolasinski was wearing a t-shirt that read “St. Symphorosa Police” and was armed with his gun and handcuffs. He approached Teesdale and told him that although he could preach at the festival, he could not use a bullhorn. Kolasinski also said that the group could not distribute literature without St. Symphorosa's permission. Teesdale then attempted to speak through the bullhorn. Kolasinski responded by taking Teesdale's arms, handcuffing them behind his back, and telling Teesdale that he was under arrest. Kolasinski walked Teesdale to the south entrance of the festival, followed by the other Garfield Church members. St. Symphorosa security called the police and asserted that they were holding an offender for criminal trespass. Teesdale was detained for approximately 30 minutes until two uniformed Chicago police officers arrived in a patrol car.

The officers were told by either Kolasinski or the St. Symphorosa business manager, Joseph Dillon, that Teesdale had been using a bullhorn and disturbing festival visitors, and that he had refused to leave when asked by security. At Kolasinski's direction, Dillon then signed a criminal complaint against Teesdale for trespass. Believing that the festival was a private event because the streets had been blocked off, the officers arrested Teesdale for trespass and brought him to the police station. Teesdale was released on bond later that night. His trespass charge was eventually dismissed.

Nearly a year later, on July 6, 2009, the Garfield Church, Pastor Teesdale, and four other church members filed the current lawsuit against the City of Chicago, the two Chicago police officers who arrested Teesdale, and ten other “John Doe” defendants. In their suit, the plaintiffs alleged that the 2008 arrest violated their First Amendment rights and Pastor Teesdale's Fourth Amendment rights. The plaintiffs also argued that they were entitled to a declaratory judgment that would enjoin the City from preventing their attendance at future festivals. This lawsuit was filed just three days before the start of the 2009 festival.

The following day, the plaintiffs filed a motion for a temporary restraining order (TRO) and a preliminary injunction, requesting an order from the court safeguarding their right to attend the 2009 festival. The City hastily filed its response the next day on July 8, 2009. In its response, the City argued that the plaintiffs did not have an unlimited First Amendment right to preach at the festival, that St. Symphorosa could exclude the plaintiffs, and that the City had a “significant interest” in preserving St. Symphorosa's right to have its message heard instead of the plaintiffs'. In support of this legal argument, the City cited the United States Supreme Court decision of Hurley v. Irish–American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). The City's legal argument on Hurley was incorrect, and ultimately, in hindsight, the City acknowledged that it was a mistake. At that time, however, the district court did not rule on the plaintiffs' motion because of the imminence of the 2009 festival. Instead, the district court urged the parties to come to a temporary agreement allowing the plaintiffs to enter the festival on terms acceptable to both sides. The parties thus prepared a standby order, which the district court entered. This order permitted Pastor Teesdale and up to nine other Garfield Church members to enter the festival during specific hours with some limitations on the size of their signs and a prohibition on using a bullhorn or other sound-enhancing device. The parties abided by the standby order, and the 2009 festival passed without incident.

The case proceeded before the district court, and in March 2010, the district court dismissed some of the plaintiffs' claims, including their claim that the City had violated the plaintiffs' First Amendment rights during the incident at the 2008 festival. Notably, the district court ruled that at the time of the 2008 incident there was no evidence that the City had an official policy that violated the plaintiffs' rights. The case continued to discovery, however, on the claims that Pastor Teesdale's Fourth Amendment rights were violated by the 2008 arrest and that the plaintiffs' First Amendment rights at future festivals were being threatened.

In July 2010, the parties again prepared a standby order for St. Symphorosa's 2010 festival that was essentially identical to the standby order from the previous year. The district court entered the order, and the 2010 festival also passed without incident.

In January 2011, at the close of discovery, the parties filed cross-motions for summary judgment. On May 26, 2011, the district court issued its opinion, ruling for the City in part: The district court held that the 2008 arrest did not violate Pastor Teesdale's Fourth Amendment rights because the officers had probable cause to arrest Teesdale for disorderly conduct and were entitled to qualified immunity. This decision was not appealed. But the district court ruled against the City on the last remaining issue in the case, finding that the plaintiffs' First Amendment rights at future festivals were threatened by an official City policy. It is this latter ruling with which we are concerned.

The district court's decision was based on the City counsel's misguided legal argument in its July 2009 response to the plaintiffs' motion for a TRO. Relying on the United States Supreme Court decision in Hurley v. Irish–American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995), the City then argued that the plaintiffs did not have an unlimited First Amendment right to preach at the festival and that St. Symphorosa could exclude the plaintiffs in order to preserve its message. The district court found that this legal position (which turned out to be inaccurate) constituted an official City policy that portended future violations of the plaintiffs' First Amendment rights. In support of this ruling, the district court noted that the City had not altered or amended its position articulated in its TRO response. As a result, it had failed to expressly state that it would not interfere with the plaintiffs' First Amendment rights. Moreover, the district court found that the only reasonable inference from the City's willingness to enter into the 2009 and 2010 standby orders permitting the plaintiffs to attend the festival was that the City had not changed its position from July 2009, asserting that “[t]he clear implication of entering into standby orders only is that the City continues to contend it can lawfully stop plaintiffs' proposed expression.” Consequently, the district court concluded that there was a “credible threat” that the City would enforce its stated policy and interfere with the plaintiffs' First Amendment rights. The district court thus entered a declaratory judgment against the City, ordering it to permit the Garfield Church members to enter any future St. Symphorosa festival. The district court's final judgment essentially adopted the terms of the two previous standby orders, authorizing the Garfield Church members to attend any future festival, with the same limitations as before: no bullhorn or other sound-enhancing device, a banner no larger than four feet by three feet, and...