Arlotta, Andrew J. v. Bradley Center ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1584
ANDREW J. ARLOTTA,
Plaintiff-Appellant,
v.
BRADLEY CENTER and the CITY OF MILWAUKEE,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01-C-407—J.P. Stadtmueller, Judge.
____________
ARGUED SEPTEMBER 3, 2003—NOVEMBER 18, 2003
____________
Before POSNER, KANNE, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Selling something, or at least
trying to sell something, for more than you paid for it is as
American as apple pie. Yet in some instances, and this case
concerns one of them, adhering to that seemingly simple
proposition can get one in hot water. Our case today is
about “ticket scalping,” a practice we will discuss in broad
terms before turning to the specifics of the case, which
involves an appeal from a grant of summary judgment
dismissing a § 1983 civil suit brought by Andrew Arlotta
following his arrest for allegedly violating Milwaukee’s
“ticket scalping” ordinance.
2 No. 03-1584
Ticket scalping is generally understood to be the reselling
of tickets to popular entertainment or sporting events at
“greatly above the stated rates.” Webster’s Third New
International Dictionary of the English Language Un-
abridged 2024 (P. Gove ed. 1976). When one thinks of
“scalpers,” we naturally think of someone selling tickets to
sporting events, the theater, or a concert, but they have also
been known, for example, to sell tickets to the White House
tour, even though those tickets are otherwise free. Ellen
Gamerman, “Rangers are Cracking Down on White House
Ticket Scalping,” The Buffalo News, Sept. 14, 1997.
Just as the product being sold is diverse, so are the
scalpers themselves. The popular caricature of a scalper is
someone outside a ballpark who asks if you “need two.” This
is only a small percentage of the sellers who profit off the
resale of tickets, however. In 1999, New York Attorney
General Eliot Spitzer published a report on ticket selling
practices, “Why Can’t I Get Tickets? Report on Ticket
Distribution Practices,” May 27, 1999. Attorney General
Spitzer’s report concluded that “Street scalpers are . . . the
smallest part of the immense ticket resale industry.” Id. See
also, Editorial, “Broadway Robbery,” New York Times,
March 25, 1995 (“Scalping is no longer merely the province
of individuals who . . . sell [tickets] for a huge profit on the
sidewalk” but also of “[t]icket wholesalers [who] buy up
huge blocks of tickets and resell them . . . .”).1
Once a scalper gets ahold of a batch of tickets, he offers to
resell them at prices that are substantially, and sometimes
exorbitantly, higher than their face value. Since those
wishing to attend an event are no longer able to obtain
tickets from the original source, they are compelled to
1
New York state law is interesting in that it permits ticket
scalping as long as the scalper’s selling price doesn’t exceed either
$5 or 10 percent of the face value of the ticket.
No. 03-1584 3
either pay the scalper his price or forego attendance. The
event’s popularity is the only ceiling on the price a scalper
can charge.
In one sense, this is the perfect “free” market—supply and
demand leads to the optimal price for a commodity. It could
be argued that no one has a “right” to attend a sporting
event or concert, and those who can’t afford to attend, or
choose not to pay a scalper’s price to buy a ticket, should
not be heard to complain. Neither the original seller nor the
final buyer, moreover, is harmed. As the California Su-
preme Court explained in invalidating an anti-scalping law
almost 100 years ago:
The sale of a theater ticket at an advance upon the
original purchase price, or the business of reselling such
tickets at a profit, is no more immoral, or injurious to
public welfare or convenience, than is the sale of any
ordinary article of merchandise at a profit. It does not
injure the proprietor of the theater; he must necessarily
have parted with the ticket at his own price and upon
his own terms before such resale can be made. It does
not injure the second buyer; he must have had the same
opportunity as the first buyer to purchase a similar
ticket, and no greater right thereto, and having ne-
glected that opportunity, or being unwilling to undergo
the necessary inconvenience, and willing to pay a
higher price than forego the privilege which the other
by his greater diligence and effort had obtained, the
transaction is just so far as he is concerned.
Ex parte Quarg, 149 Cal. 79, 84 P. 766, 767 (1906).
We have expressed a similar notion:
Ticket scalpers, like arbitrageurs in stock markets and
dealers in gems, move assets in scarce supply toward
those willing to pay the most for them. If promoters of
an opera or rock concert underestimate the demand for
4 No. 03-1584
the tickets and set prices too low, the initial buyers
make a profit, while scalpers receive compensation for
the service of moving the tickets from those who first
acquire them to those who value them more highly.
Promoters lose nothing from scalping in such cases, and
everyone else may gain.
United States v. Mount, 966 F.2d 262, 263 (7th Cir. 1992).
There is an opposing view, however. Scalpers are viewed
not as operators in a perfect free market, but rather as
manipulators of that market. As one author wrote:
The scalper manipulates price. Through the tactic of
removing a supply of tickets from the original intended
marketplace, the scalper has deprived consumers of the
ability to purchase at the established market price.
Having eliminated the original market, the scalper is
now freed of previously existing restraints and has
empowered himself to set new, substantially higher,
prices.
Thomas A. Diamond, “Ticket Scalping: A New Look At An
Old Problem,” 37 U. Miami L. Rev. 71, 79 (1982). If this
view is accepted, entertainers and regulators have an in-
terest in enforcing anti-scalping laws, not to distort the
market, but to protect it. In this way, anti-scalping laws are
more akin to laws proscribing unfair trade practices. Id. at
80-81.
Whatever one’s view on where scalping fits in the econ-
omy—as legitimate participant or illegitimate manipu-
lator—there is a reason why local governments often wish
to enforce laws curtailing where the practice can take
place—they perceive that the presence of scalpers surround-
ing the site of an event is an annoyance and can be, in some
instances, even dangerous. Scalpers obviously need to
approach potential customers. This adds to the congestion
around a stadium or arena. As a California court recog-
nized, “Persons with tickets for sale may be expected to
No. 03-1584 5
intrude themselves along the most heavily traveled path-
ways, audibly or visually demanding the attention of the
tens of thousands who approach the [stadium] within a
short period of time.” People v. Shepherd, 141 Cal. Rptr. 379(1977), cert. denied, 436 U.S. 917 (1978).
With that background, we return to the instant appeal. In
February 2001, the Milwaukee Bucks were in the middle of
a season that would end one missed basket—by Glenn “Big
Dog” Robinson—away from a trip to the NBA finals. After
several years of mediocrity, the team had two all-stars
(Robinson and Ray Allen) and was in first place in its
division. A local newspaper headline, over a story by Dale
Hoffman, a respected sports columnist not known for
hyping the home team, epitomized the atmosphere of ex-
citement that existed in Milwaukee: “Hot Bucks Making
Sweet Music.” See Milwaukee Journal Sentinel, Jan. 24,
2001.
Not surprisingly, with the team winning, more fans
wanted to attend games. For the first time in years, the
Bradley Center, the arena where the Milwaukee Bucks
play, was regularly filled to capacity. And a full arena
meant that ticket scalpers would be out to make a buck off
the Bucks. This caused the Bradley Center to become
increasingly concerned with scalpers who were, in its judg-
ment, harassing customers. At first, the Bradley Center
attempted to deal with the scalpers itself. The problem,
however, was difficult to effectively combat. Some scalpers,
for example, threatened to physically harm security per-
sonnel who interfered with their business. In fact, the
Bradley Center had a hard time even finding security per-
sonnel willing to work outside its doors. As the number of
scalpers increased, the Bradley Center sought help from the
Milwaukee Police Department (MPD), who it hoped would
breath some life into an anti-scalping ordinance that sat,
rarely used, on the books of the city of Milwaukee. The
ordinance, with exceptions not applicable here, prohibits
6 No. 03-1584
any person from selling tickets within 500 feet of the
Bradley Center starting two hours before and ending one
hour after a scheduled event.
In January 2001, the MPD developed a plan to deal with
Bradley Center ticket scalpers. The plan was to arrest and
detain all those selling tickets close to the Bradley Center.
Those arrested would be read a notice, developed by the
Bradley Center, that advised them that they were no longer
welcome at the arena; if they returned they would be
arrested again, this time for trespassing. The MPD in-
formed the Bradley Center of its plan, which called for
using plainclothes and uniformed police officers. A plain-
clothes officer would mingle in the crowd, and if he observed
ticket sales close to the Bradley Center he would call a
uniformed officer. The uniformed officers would respond to
the call and arrest the would-be seller identified by the
plainclothes officer.
On the night of February 13, 2001, the MPD implemented
its plan. That night, Arlotta arrived at the Bradley Center
about an hour before a big Bucks game against the Phila-
delphia 76ers. He had two tickets to the game, and he says
he was waiting for his father, who was driving from Illinois
to join him. Soon after he arrived, he says that several
police officers surrounded him. He was accused of trying to
sell tickets (a charge he denied), handcuffed, searched, and
arrested. His two game tickets were confiscated.
Not surprisingly, the police tell a different tale. Officer
Richard Chin, who was in plainclothes that night, testified
that Arlotta approached him and offered to sell him tickets.
After Chin said no, he saw Arlotta walk up to others and
ask if they needed tickets. At this point, Chin called the
uniformed officers and directed them to arrest Arlotta. The
arrest was made within two minutes.
No. 03-1584 7
Although the parties dispute whether Arlotta tried to sell
tickets, everyone agrees on what happened after Arlotta was
arrested. The police held him in a police van for about an
hour, and a representative of the Bradley Center entered the
van and read a “Notice of Violation” form. Arlotta repeated
that he was not trying to sell tickets but was merely waiting
for his dad (who, by the way, had apparently arrived) before
going into the Bradley Center for the game. Later, the police
drove Arlotta and others arrested for selling (or trying to
sell) tickets to police headquarters, just a few blocks away,
for booking. Arlotta was released, after about 4 hours in
custody, and given two citations alleging municipal ordi-
nance violations.
Four days later, Arlotta and his father had a meeting with
John Steinmiller, the vice-president of business operations
for the Milwaukee Bucks, and Steven Costello, the assistant
manager of the Bradley Center. Steinmiller and Costello
apologized and said they were sorry Arlotta was arrested.
They said they would request that the police dismiss the
charges against Arlotta, and both citations were eventually
dismissed.
At this point, it is important to emphasize what this case
is not about. It is not about the wisdom of an ordinance that
prohibits all ticket-selling outside an event’s venue. While
we think it very well may be both unfair and unwise to
prohibit a person from selling an unneeded ticket for a game
at face value or below, the ordinance here does not make
that distinction. Plus, as Attorney General Spitzer’s report
which we have quoted makes clear, “street scalpers” are but
a small part of the ticket resale industry. Indeed, as one
author has wisely noted, it is ironic that laws against ticket
scalping “coexist mysteriously” with laws permitting ticket
brokers to buy tickets in bulk and then sell them at scalper
prices. See Richard A. Posner, “Rational Choice, Behavioral
Economics, and the Law,” 50 Stan. L. Rev. 1551, 1573
(1998).
8 No. 03-1584
Arlotta, who denies that he was reselling, or scalping,
tickets, however that term may be legally defined or com-
monly understood, sued the City of Milwaukee and the
Bradley Center (but not the arresting officers individually)
under 42 U.S.C. § 1983, alleging false arrest, illegal con-
finement, and malicious prosecution. The City of Milwaukee
and the Bradley Center moved for summary judgment. As
we said, that motion was granted.
To state a § 1983 claim against a municipality, a com-
plaint must allege that a constitutional deprivation was
caused by an official policy or custom. In Monell v. Dept. of
Social Services, 436 U.S. 658 (1978), the Court emphasized
that “[A] local government may not be sued under § 1983 for
an injury inflicted solely by its employees or agents.
Instead, it is when execution of a government’s policy or
custom . . . inflicts the injury that the government as an
entity is responsible under § 1983.” Id. at 694. Significantly,
a plaintiff must show a “direct causal link between the
municipal policy and the constitutional deprivation.”
McNabola v. Chicago Transit Auth., 10 F.3d 501, 510 (7th
Cir. 1993). The policy or custom must be the “moving force”
behind the alleged constitutional deprivation. Gable v. City
of Chicago, 296 F.3d 531, 537 (7th Cir. 2002). The Supreme
Court has warned:
Proof of a single incident of unconstitutional activity
is not sufficient to impose liability under Monell, unless
proof of the incident includes proof that it was caused
by an existing, unconstitutional municipal policy, which
policy can be attributed to a municipal policymaker.
Otherwise the existence of the unconstitutional policy,
and its origin, must be separately proved. But where
the policy relied upon is not itself unconstitutional,
considerably more proof than the single incident will be
necessary in every case to establish both the requisite
fault on the part of the municipality, and the causal
No. 03-1584 9
connection between the “policy” and the constitutional
deprivation.
Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985).
Here, Arlotta does not allege that the City of Milwaukee
scalping ordinance is unconstitutional.2 Instead, he argues
2
Without deciding the issue, it seems unlikely he could be suc-
cessful on such a claim. In 1927, the Supreme Court, in Tyson &
Brother v. Banton, 273 U.S. 418 (1927), ruled unconstitutional an
ordinance that prohibited the resale of any ticket to a theater or
place of amusement or entertainment at a price in excess of 50
cents beyond the price printed on the face of the ticket. The city
enacted the ordinance to protect consumers from the extortionate
prices demanded by ticket brokers who, having purchased the
available box office supply of tickets, had a virtual monopoly on
tickets to theater events. The Court determined that the ordi-
nance was unconstitutional because it was a governmental
attempt to regulate prices. Id. at 440. The Court stated that,
absent an emergency, price regulation was permissible only when
the business to be regulated was “affected with a public interest.”
Id. at 430 (quoting Munn v. Illinois, 98 U.S. 113, 126 (1876)). The
entertainment industry did not satisfy this criterion. Id. at 434.
Tyson was short-lived. In 1934, the Supreme Court, in Nebbia
v. New York, upheld a state statute fixing the minimum and
maximum retail prices of milk. 291 U.S. 502, 536 (1934). The
Court repudiated the “public interest” test. Id. at 536. In Olson v.
Nebraska ex rel. Western Reference & Bond Ass’n, 313 U.S. 236(1941), the Court, in upholding a state’s regulation of fees that an
employment agency could charge, again rejected the Tyson
rationale. Id. at 245.
In Gold v. DiCarlo, 235 F. Supp. 817 (S.D.N.Y. 1964), aff’d per
curiam, 380 U.S. 520 (1965), the Supreme Court affirmed per
curiam a district court ruling that upheld the constitutionality of
anti-scalping legislation. As the district court stated, “[W]e would
be abdicating our judicial responsibility if we waited for the
Supreme Court to use the express words, ‘We hereby overrule
(continued...)
10 No. 03-1584
that his unlawful arrest was caused by the MPD’s plan to
deal with ticket scalping. Specifically, he argues that the
plan was not properly structured to prevent mistaken ar-
rests—it was predictable that the police would make
mistakes when arresting persons in large crowds.
We disagree. The plan, of course, did not call for the police
to randomly sweep the Bradley Center in a manner that
would give rise to mistaken arrests. Instead, it was struc-
tured to prevent mistaken arrests by having plainclothes
officers observe violators and maintain eye contact with
them until an arrest was made. The plainclothes officer,
moreover, was required to confirm that the uniformed
officers apprehended the right person. The fact that Arlotta
does not assert that other people were wrongfully arrested
is strong evidence that the MPD’s plan actually worked. If
Officer Chin did, in fact, cause Arlotta to be improperly
arrested, it was because he did not follow the MPD policy,
not that the policy itself was deficient. Thus, Arlotta has
failed to establish sufficient causation between the City’s
policy and his arrest sufficient to sustain his § 1983 claim.
Arlotta also contends that his detention, some 4 hours or
so, was unconstitutional because it was unreasonably long.
He does not, and could not, argue that being booked on such
a minor charge was unconstitutional. See Doe v. Sheriff of
DuPage County, 128 F.3d 586, 588 (7th Cir. 1997) (“[T]he
‘booking’ of an arrestee, which for one thing confirms the
person’s identity, does not violate the Fourth Amendment[,]
. . . even when the arrest is for a minor matter, and even if
the arrestee is ready and able to post bail immediately.”)
2
(...continued)
Tyson’. . . before recognizing that the case is no longer binding
precedent but simply a relic for the constitutional historians.” Id.
at 819.
No. 03-1584 11
(internal citations omitted); see also, Atwater v. City of Lago
Vista, 532 U.S. 318, 354-55 (2001) (lawful to summarily
arrest individuals for fine-only offenses).
Arlotta argues that the City of Milwaukee “offered no
reason for a 2-hour delay in transporting the plaintiff-ap-
pellant the four blocks” from the Bradley Center to the
police station, where he was booked. As we have held, a 4-
hour post-arrest detention requires “an explanation” from
the government. Gramenos v. Jewel Companies, Inc., 797
F.2d 432, 437 (7th Cir. 1986), cert. denied, 481 U.S. 1028(1987). Here, the MPD met its burden to justify the reason-
ableness of Arlotta’s detention.
As an initial matter, on appeal, Arlotta exaggerates the
length of time he spent detained in the police van. In his
brief, Arlotta claims he remained in the van for 2 hours. In
both his deposition and his complaint, however, he says he
was in the van for approximately 1 hour.
The delay in transporting Arlotta was, moreover, rea-
sonable. The procedure in this unusual effort to corral
scalpers was to keep arrestees on the scene until the police
van was full, or until a half hour after the game started,
then transport all arrestees to the police station for proc-
essing at the same time. This sensible procedure was not
unreasonable. There were only a limited number of police
officers on the assignment, and forcing them to transport an
arrestee as soon as an arrest was made would have dimin-
ished the success of their plan to enforce the ordinance.
Arlotta would have the police, every time an arrest is made,
drive the arrestee immediately to booking. Instead of
looking for other suspects, the police would have been
running a taxi service—dealing with only a few arrestees in
an evening. While it certainly would have been more
convenient for Arlotta if he were taken to the station for
booking right away, considering the demands on the police
12 No. 03-1584
that evening, it was reasonable to wait to transport him
while other arrests were being made.
Nor were the hours Arlotta spent at the police station
unreasonable. Arlotta (and, it seems, the other arrestees)
were kept in custody only as long as it took their processing
officer to complete the steps necessary to finish the booking
procedure. The arrest occurred in the early evening when
the police station was busy. When a big group is arrested at
the same time, a natural booking backlog is not unusual.
Compare Gramenos, 797 F.2d at 436-37 (reversing summary
judgment where city offered no explanation for 4-hour
detention in the “dead of night” where there was evidence
to suggest that they kept the arrestee locked up “out of
spite”).
Arlotta’s claims against the Bradley Center, a private
entity, are even weaker. The Bradley Center can only be
liable under § 1983 if it engaged in illegal joint action with
the MPD. Malak v. Associated Physicians, Inc., 784 F.2d
277 (7th Cir. 1986). The Bradley Center, by seeking police
help in dealing with ticket scalpers, did not engage in any
joint action with the MPD to enforce the city’s ordinance.
And as we have already noted, the plan for dealing with
ticket scalpers itself did not cause Arlotta to be unconstitu-
tionally arrested. If Arlotta has a case for false arrest, it is
against Officer Chin. But that issue is not before us.
The judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-18-03