Thayer v. Chiczewski
| Citation | 705 F.3d 237 |
| Decision Date | 27 November 2012 |
| Docket Number | 10–2064.,Nos. 10–1974,s. 10–1974 |
| Parties | Andy THAYER, et al., Plaintiffs–Appellants, v. Ralph CHICZEWSKI, et al., Defendants–Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
OPINION TEXT STARTS HERE
Elizabeth Wang (argued), Attorney, Loevy & Loevy, Chicago, IL, for Plaintiffs–Appellants.
Christopher S. Norborg (argued), Attorney, City of Chicago Law Department, Chicago, IL, for Defendants–Appellees.
Before FLAUM, EVANS*, and TINDER, Circuit Judges.
Chicago police officers arrested plaintiffs for disorderly conduct at a 2005 antiwar demonstration at the corner of Chicago's Oak Street and Michigan Avenue. The plaintiffs brought claims against both the City under Monell v. Department of Social Services and the arresting officers under section 1983 for First Amendment retaliation, Fourth Amendment false arrest, Fourteenth Amendment class-of-one equal protection, and state law malicious prosecution. They also brought facial challenges against subsection (d) of Chicago's disorderly conduct ordinance, Chicago Municipal Code, Ill. § 8–4–010(d) ( “subsection (d)”), as overbroad and unconstitutionally vague.1 (The suits were initially assigned to separate district judges but were subsequently reassigned to a single district judge.) The district court granted summary judgment and we affirm in part on the basis of qualified immunity.
The district court dismissed Bradford Lyttle's facial challenge for failure to state a claim and ruled that Andy Thayer's facial challenge was barred by res judicata. Thayer doesn't appeal that ruling. The district court granted summary judgment on the plaintiffs' remaining claims. We affirm the grant of summary judgment in favor of the defendant officers; we do so, however, on the basis of qualified immunity. Lyttle's facial attack on the ordinance is rendered moot by our recent opinion in Bell v. Keating, 697 F.3d 445 (7th Cir.2012), which partially invalidated subsection (d) on overbreadth and vagueness grounds. However, Lyttle also asserts a claim that the City violated his constitutional rights by the enforcement of subsection (d), that is, as a policy. SeeMonell v. Dep't of of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A remand will be required for resolution of that claim only.
Andy Thayer is a prominent Chicago activist. He has played a leading role in organizing antiwar protests in Chicago since at least 2003 and is well-known to many Chicago police officials, including Officer Ralph Chiczewski, Deputy Chief of the Central Control Group for the Chicago Police Department (CPD), and Officer John Killackey, Deputy Chief of Area 1 Patrol for CPD. Thayer is a leader of the Chicago Coalition Against War and Racism (CCAWR) and on behalf of this group, helped plan a protest on March 20, 2003, where 5,000 to 10,000 demonstrators gathered at Federal Plaza to protest the invasion of Iraq and then marched through the city. This march led to the mass arrests of several hundred protestors and was the subject of our decision in Vodak v. City of Chicago, 639 F.3d 738 (7th Cir.2011), where we held that a question of fact existed as to whether police had probable cause to make those mass arrests. Thayer has had extensive adversarial dealings with the CPD as a result of his activism. The CPD has covertly infiltrated Thayer's anti-war meetings, and in doing so, noted the group's anti-war and anti-Chicago police sentiments. Lyttle is also a long-time activist. Both have been arrested numerous times for protest activity.
On January 3, 2005, Thayer and CCAWR applied for a permit to lead an anti-war march on Saturday, March 19. They sought permission for 2,000 to 4,000 people to gather at the southwest corner of Oak and Michigan at noon, then march to Federal Plaza via Michigan Avenue, Randolph Street, State Street, and Adams Street. In front of the building at Oak and Michigan is a small plaza area and a wide sidewalk. This desired location for the march is at the heart of an area known as the Magnificent Mile, containing many of Chicago's major upscale hotel, retail, dining, and commercial establishments; in addition to being the site of a great deal of commercial and retail activity, it is one of Chicago's most active tourist destinations.
The city denied the application and offered an alternative assembly point at Washington Square Park, which is three blocks west and one block south of Oak and Michigan, and a parade route down Clark Street and Dearborn Street to Federal Plaza. Thayer did not accept this alternate site. He instead appealed to the Mayor's License Commission; after a two-day hearing, his appeal was denied. The Commission found that Thayer's proposed route would unduly disrupt pedestrian and motor traffic, adversely affect businesses in the area, impede ambulance traffic and bus routes, and require an unjustifiable level of law enforcement.
Thayer and CCAWR filed a complaint in federal court seeking to compel the city to grant the permit; after another two-day hearing, the district court denied the motion on March 11. On March 14, the CPD sent Thayer a letter stating that it wished to accommodate marches by allowing an assembly and march at the proposed alternate location. The CCAWR subsequently obtained a permit for a rally at the Federal Plaza.
In the week before March 19, the city posted a notice on the CPD's website directed to demonstration participants. The notice informed them that no permit had been granted for an assembly at Oak and Michigan and offered the alternative assemblypoint for the march and rally at Federal Plaza. The notice warned that any assembly or march at Oak and Michigan was illegal. Thayer saw the notice prior to March 19.
Thayer and CCAWR, however, continued to publicize Oak and Michigan as the assembly point for the March 19 demonstration through its website and flyers. On March 15, they disseminated flyers and an email declaring “Lack of Permit Won't Stop Anti–War Protest,” urging protesters to assemble at Oak and Michigan. The flyer stated that “March and Rally for Civil Liberties at Home and Self–Determination Abroad, on the 2nd Anniversary of the Iraq War.” It then stated:
Saturday, March 19
....
(Doc. # 176–7) (brackets in original). The flyer informed protestors that “it IS possible that police will arrest people assembling at Oak and Michigan if the cops give an order to disperse and people do not leave.” The flyer continued, “[f]or those who ... cannot risk arrest ... protest organizers note that the 2pm rally at Federal Plaza was granted a permit....” Id. The flyer also stated that “[t]he police can still change their minds and allow us to march down Michigan Avenue....” Id.
At some point in the week, when it became clear that the CPD wasn't going to change its mind, the CCAWR decided to hold a “press conference” on the sidewalk at noon instead of an assembly. A media alert prepared in part by Thayer in the week before March 19 called the gathering at Oak and Michigan “an informational rally” and a “press conference.” The CCAWR also took other efforts to publicize its decision to hold a “press conference;” the city still threatened arrest if protestors came to Oak and Michigan that day. Thayer wanted to announce his message that the city was unfairly opposing his efforts to organize a march and speak out against the war. He testified that the “press conference” was called to inform people that the march down Michigan was canceled, to encourage people to proceed to the permitted rally at the Federal Plaza, and to communicate their view that the city had violated their First Amendment rights by denying the permit at Oak and Michigan. However, the CCAWR website as of Friday, March 18, made no mention of CCAWR's decision to instead hold a “press conference” at Oak and Michigan.
On the morning of March 19, Thayer attended an event in front of the Cardinal's Mansion on North Avenue. Officer Chiczewski was there informing the protestors of the permitted assembly point at Washington Square Park. He told Thayer, “if you show up ... at Oak and Michigan, you will be arrested if you even appear.” Thayer told Officer Chiczewski that it was a press conference, not a rally, and that he would be on the sidewalk, not in the street, but Officer Chiczewski insisted that he “would be arrested if [he] so much as showed up at that corner.” (The content of the conversation is disputed, but on summary judgment we construe the facts in favor of the non-movant.) Officer Chiczewski said the CPD was worried about the size of the crowd assembling at that location and then walking over to the rally at Washington Square Park. Such a large mass of people, according to him, could disrupt pedestrian and vehicular traffic. Officer Chiczewski testified, however, that depending on the circumstances, no permit was needed to assemble and hold a press conference at that location.2
Officer Killackey, as the officer in command, arrived at Oak and Michigan in the morning. Around 10:00 a.m., before a crowd had gathered, officers posted signs and handed out copies of an announcement, much like the notice on the CPD website, explaining that there was no permit for an assembly or march at that location and informing protestors of the alternative site at Washington Square Park. The announcement concluded: The CCAWR was handing out flyers encouraging protestors to join the march down Adams and Dearborn to Federal Plaza at 2 p.m.
Lyttle arrived at Oak and Michigan at 11:30 a.m. and Thayer arrived by noon. At that time, there were anywhere...
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