Gower, Keith v. Vercler, Jeffrey ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-4112
KEITH GOWER,
Plaintiff-Appellant,
v.
JEFFREY VERCLER and RYAN GARRETT,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 01-2030—Michael P. McCuskey, Judge.
____________
ARGUED MAY 20, 2003—DECIDED JULY 23, 2004
____________
Before COFFEY, KANNE, and DIANE P. WOOD, Circuit
Judges.
COFFEY, Circuit Judge. On February 12, 2001, the
Plaintiff-Appellant, Keith Gower, filed suit in federal court
against two Champaign County, Illinois, sheriff’s deputies
seeking redress for the alleged violation of his Fourth
Amendment rights, pursuant to 42 U.S.C. §§ 1983 and
1985, and malicious prosecution, pursuant to Illinois law.
Gower’s claim was based on his assertion that on February
12, 2000, Deputies Jeffrey Vercler and Ryan Garrett il-
legally entered his home and arrested him for violation of
2 No. 02-4112
720 Ill. Comp. Stat. 5/26-1(a)(1), Illinois’ disorderly conduct
statute. The case was tried before a jury and after all the
evidence had been submitted, Gower moved for a directed
verdict under Rule of Civil Procedure 50(a). After hearing
arguments, the trial judge denied Gower’s motion, and the
jury proceeded to find in favor of the Defendants on each of
the claims, the § 1983 and Illinois tort claims. Gower
appeals, urging us to hold that the district court erred in deny-
ing his motion for a directed verdict and, in the alternative,
that the jury’s verdict was unsupported by the evidence
and, thus, was unreasonable. We affirm.
I. BACKGROUND
In 1999, Keith Gower (“Gower”) lived in a rural area of
Champaign County, Illinois, with his wife, Tina, and with
his two children, Kassandra and Preston. The Gowers were
geographically close neighbors of Tina’s mother and step-
father, Thomas and Diana Taylor. Indeed, the homes of the
two families were located approximately 70 yards apart
from each other. In spite of their proximity, however, the
Gowers and Taylors have a documented history of animos-
ity towards each other, which has occasionally necessitated
the involvement of law enforcement officers. For example,
on October 31, 1999, Deputy William Oliger, who is not a
party to this suit, and Defendant Deputy Jeffrey Vercler of
the Champaign County Sheriff’s Department responded
to an emergency call alleging a domestic disturbance at the
Gower residence. Diana Taylor had placed the call, re-
questing assistance and stating that her husband and Keith
Gower were exchanging verbal insults across their respec-
tive property lines. After the deputies had investigated the
matter, Gower told them that he was going to stay some-
where else for the remainder of the night so that he could
“cool off.” Having diffused the situation and assured the
No. 02-4112 3
safety of the parties, the deputies refrained from issuing
any citations nor did they make any arrests.
A few months later, on the evening of February 11, 2000,
the two families again engaged in a dispute, this time due
to the Gowers’ refusal to allow their son Preston to visit the
Taylors’ home. When they returned home that evening,
Diana Taylor told the Gowers that she was going to take
Preston with her. However, the Gowers refused to allow
Preston to go because they were concerned that Diana’s
smoking would aggravate his asthmatic condition.1 This
sparked an argument, which resulted in Thomas Taylor,
who was nearby, getting involved. Thomas allegedly charged
up the driveway of the Gower home and simultaneously
appeared to be reaching for a buck knife that he commonly
carried in his back pants pocket; however, neither party
alleges a weapon was ever brandished. In response to this
perceived threat, Gower stated that he went back to the
kitchen and grabbed a six-inch chef’s knife and held the
weapon out of view while he returned to the front door
where his wife Tina was trying to reason with her step-
father.2 According to the Gowers, the Taylors continued to
demand that Preston remain with them and repeatedly
asked the Taylors to leave. However, Thomas Taylor claims
that Keith Gower also waived the knife he was holding at
him and threatened that “he [was] going to urinate on
[Thomas’s] grave when [he was] dead.” (Tr. 141.) In any
event, Thomas retreated before the argument escalated into
physical violence and Diana called the police. Once again
Deputy Oliger was one of the officers who responded to the
call, but for a second time, he refrained from issuing any
1
During previous day’s trip to the hospital, Preston had been
prescribed steroid medication for his asthma flare-up, signifying
his condition was worsening.
2
According to Keith Gower, he never revealed his possession of
the knife.
4 No. 02-4112
citation or making any arrests. Instead he suggested to the
parties that they apply for orders of protection against each
other, if they should be so inclined.
The next morning, February 12, 2000, Champaign County
deputies responded to yet another heated confrontation
between the Gowers and Taylors, which is the subject of
this action. Just before 6:00 a.m., Diana Taylor placed a 911
call alleging that a domestic disturbance had once again
occurred involving Keith Gower and her husband. Deputy
Vercler was the first to respond to the dispatch and, while
en route to the scene, he was informed by the sheriff’s
department dispatcher that deputies had been called to the
scene the night before to respond to a domestic disturbance
call. Vercler was the first to arrive at the Taylor residence
and he proceeded to interview Diana Taylor about the
alleged incident. During their conversation, the deputy
noted that Mrs. Taylor was “very upset” and observed her
“visibly shaking” and “crying.” (Tr. 160.) Diana informed
Vercler that while her husband, Thomas, was leaving for
work that morning, Keith Gower shouted several obsceni-
ties from his residence directed at her and her husband,
although she refused to repeat the exact language used by
Gower, stating only that “[i]t’s too horrible.”3 (Tr. 160.)
Continuing his investigation, Deputy Vercler telephoned
Thomas Taylor on his mobile phone and talked to him while
he was en route to work. Thomas informed Vercler that, as
he was walking to his garage to leave for work, Gower
shouted “fuck you” three or four times, called him “a fat
son-of-a-bitch,” and made noises that sounded like a
3
While Deputy Vercler testified at trial that Mrs. Taylor would
not divulge any more information to him regarding precisely what
Gower had been yelling at the Taylors that morning, during her
own testimony, Mrs. Taylor stated that “I was being called a psy-
cho b-i-t-c-h. My husband was called a big fat a-s-s MF’er and
threatening our lives.” (Tr. 153. (emphasis added)).
No. 02-4112 5
clucking chicken. (Tr. 176.) Deputy Vercler testified at trial
that, during his investigation, he also learned from Diana
(and perhaps from the emergency police dispatch call,
although he could not remember for certain) that during the
altercation the previous evening Gower had brandished a
butcher knife.
After Vercler had completed his investigation with the
Taylors, Defendant Sheriff’s Deputy Ryan Garrett arrived
on the scene, and the two deputies proceeded to the Gower
residence. At trial, the parties gave conflicting accounts of
the incident that followed. Gower testified that he never
gave the deputies permission to enter into his house.
Rather, he stated that, after getting up to call the family, he
went back to sleep and later awoke to a loud knock on the
door. He thought the noise was made by his seven-year-old
son, Preston, who, according to the Gower, would on
occasion jokingly make “fake knock[ing]” sounds. (Tr. 62.)
When Preston yelled to his father that people were at the
front door, Gower testified that he responded with “Ha, ha.
Very funny, Preston. Ha, ha.” Id. Gower stated that when
he heard adult voices in the living room shortly thereafter,
he called out to Preston and inquired as to whom he had let
into the house,4 at which time he heard someone say,
“Keith, can you come out in the living room, please.” (Tr.
63.) Gower testified that, while still in his bedroom, he
asked for the visitors to identify themselves and was told
that they were sheriff’s deputies. According to Gower, he
then awoke his wife and they proceeded to the living room
to speak with the deputies.
4
As a seven-year-old with a mental capacity of about a four or
five year-old, it is highly doubtful that Preston possessed any au-
thority, either actual or apparent, to consent to the officers’ entry
into the Gower home. In any event, the Defendants do not contend
that Preston had authority to consent to their entry of the home,
and the issue is not before this Court.
6 No. 02-4112
In contrast to Gower’s testimony, Deputy Vercler testified
that when he knocked on the door, Preston Gower an-
swered. Vercler stated that he (Vercler) then yelled “Keith,”
to which he heard a reply of “yeah” from down a hallway.
Vercler claims that he promptly announced that he was
with the Sheriff’s Department and asked, “Can we come
in?”, to which the Gower again responded “yeah” at this
time. The deputies entered the house and Gower appeared
in a bathrobe. The officers stated that they proceeded to
question Gower about the alleged insults that he had
directed at the Taylors earlier that morning. Vercler and
Garrett further testified that Gower initially told them that
he had not been out of bed yet that day but eventually
reversed his story and said that, at 6:00 a.m., he had arisen to
call the cat in from outdoors and then returned to bed.
Gower denied ever making the statements that the Taylors
alleged he had made that morning.
After interviewing Gower, the deputies arrested him for
disorderly conduct, (a class C misdemeanor in Illinois, see
720 Ill. Comp. Stat. 5/26-1(a)(1)), based upon his alleged
profane and combative statements to the Taylors—to wit,
“fuck you, fuck you, fuck you, fat son-of-a-bitch.” Later that
day, the Champaign County State’s Attorney formally
charged Gower with disorderly conduct, to which later
Gower pled not guilty and requested a jury trial. Thereaf-
ter, on the first day of his jury trial, the State voluntarily
dismissed the disorderly conduct charges against Gower.5
Gower subsequently filed suit against the deputies under
42 U.S.C. § 1983, alleging that Vercler and Garrett violated
his Fourth and Fourteenth Amendment rights by, first,
entering his home without his consent or a warrant and,
second, by arresting him without probable cause. In
5
The record on appeal fails to explain the State’s reason for dis-
missing the charges.
No. 02-4112 7
addition, Gower also brought an Illinois common law claim
against the officers, under the district court’s pendant
jurisdiction, for the intentional infliction of emotional dis-
tress. A two-day jury trial ensued on Gower’s claims against
the deputies, at which all of the principals to the events
underlying his arrest for disorderly conduct testified. At the
close of the evidence, Gower requested a directed verdict,
arguing that, as a matter of law, the Defendants lacked
probable cause to arrest him for disorderly conduct based
merely upon the alleged words that he spoke to the Taylors.
The district judge denied the motion, and the jury found in
favor of the defendant officers on both counts.
II. Analysis
Gower appeals, presenting the following issues: (1)
whether the Defendants’ warrantless entry into his resi-
dence violated the Fourth Amendment; and (2) whether the
district court erred in denying his motion for directed
verdict because the deputies lacked, as a matter of law,
probable cause to arrest him for disorderly conduct.
We review a trial court’s denial of a directed verdict de
novo, viewing all the evidence in the light most favorable to
the non-movant. Byrne v. Bd. of Educ., Sch. of West Allis,
979 F.2d 560, 564 (7th Cir. 1992). Furthermore, where, as
here, a jury subsequently returned a verdict, “[t]his Court
is limited to deciding only whether the evidence presented
at trial, with all the reasonable inferences drawn [there-
from], ‘is sufficient to support the verdict when viewed in
the light most favorable to the [prevailing party].’ ” Hasham
v. Cal. State Bd. of Equalization, 200 F.3d 1035, 1043 (7th
Cir. 2000) (quoting Collins v. Kibort, 143 F.3d 331, 335 (7th
Cir. 1998)); see also Newsome v. McCabe, 319 F.3d 301, 303
(7th Cir. 2003); Albrechtsen v. Bd. of Regents of the Univ. of
Wis. Sys., 309 F.3d 433, 435 (7th Cir. 2002). When review-
ing a jury verdict, we are not allowed to reweigh the
8 No. 02-4112
evidence or substitute our own credibility determinations for
that of the jury because “[q]uestions of ‘credibility and
weight of the evidence [are] within the purview of the jury,
whose verdict cannot be lightly set aside so long as it has a
reasonable basis in the record.’ ” Gentry v. Export Packaging
Co., 238 F.3d 842, 847 (7th Cir. 2001) (quoting Lippo v.
Mobil Oil Corp., 776 F.2d 706, 716 (7th Cir. 1985)); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)
(“Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge . . . . The evidence of the
non-movant [to a directed verdict motion] is to be believed,
and all justifiable inferences are to be drawn in his favor.”);
Tullis v. Townley Eng’g & Mfg. Co., 243 F.3d 1058, 1062
(7th Cir. 2001). Thus, in order to prevail, Gower must
establish that “ ‘no rational jury could have brought in a
verdict against [him].’ ” Sheehan v. Donlen Corp., 173 F.3d
1039, 1043 (7th Cir. 1999) (quoting EEOC v. G-K-G, Inc., 39
F.3d 740, 745 (7th Cir. 1994)). With this degree of deference
toward the jury’s verdict in mind, we address each of
Gower’s Fourth Amendment claims.
Initially, we address Gower’s assertion that the
Defendants’ warrantless entry into his residence violated
his constitutional rights under the Fourth Amendment. It is
well-settled that “[p]olice generally need a warrant to enter
a home,” United States v. Jenkins, 329 F.3d 579, 581 (7th
Cir. 2003), and that “[w]arrantless searches are per se
unreasonable under the Fourth Amendment.” United States
v. Hughes, 993 F.2d 1313, 1315 (7th Cir. 1993); see also
United States v. Walls, 225 F.3d 858, 862 (7th Cir. 2000) (“A
warrantless entry into a residence to effect an arrest is
presumptively unreasonable under the Fourth Amend-
ment.”) (citing Payton v. New York, 445 U.S. 573, 586
(1980)). However, it is recognized that if “someone with
authority to do so consents to the entry, the entry is
reasonable and the Fourth Amendment is not violated.”
No. 02-4112 9
Walls, 225 F.3d at 862; accord United States v. Durades,
929 F.2d 1160, 1163 (7th Cir. 1991). The existence of
voluntary consent to a warrantless entry of a residence “is
a question of fact to be determined by the totality of the
circumstances,” United States v. Marshall, 157 F.3d 477,
483 (7th Cir. 1998), and a determination that consent to
enter existed will only be reversed if it is clearly erroneous,
Walls, 225 F.3d at 863 (citing United States v. Durades, 929
F.2d 1160, 1163 (7th Cir. 1991)).
A. Voluntary Consent
In the instant case, the issue of whether Gower volun-
tarily consented to the warrantless entry of his home
clearly amounted to a credibility determination for the jury
to resolve. Deputies Vercler and Garrett testified at trial
that Gower voluntarily gave his consent to the deputies to
enter. In particular, Vercler testified that once Gower’s son
answered the door, he and Garrett, while still standing
outside the front door, yelled into the house, calling aloud
“Keith.” (Tr. 162-63.) Vercler testified that Keith replied,
“yeah,” after which Vercler identified himself as with the
Sheriff’s Department and asked in a loud voice, “Can we
come in?” According to Vercler, Gower again replied “yeah,”
and, after this statement, the deputies crossed the thresh-
old and entered into the house. During his testimony,
Deputy Garrett corroborated Vercler’s account of their entry
into the Gower home, stating that “[Gower] invited us in
the residence.” (Tr. 213.) The plaintiff disagreed, testifying
that he never consented to the officers’ entry. In particular,
Gower claimed that it was not until he heard adult voices
in the living room that he called out to his son and asked
whom he had let into the house, only to hear a man identi-
fying himself as from the Sheriff’s Department ask Keith to
come out to the living room.
10 No. 02-4112
Because the jury found in favor of the Defendants, it is
clear that they accepted the deputies’ version of the facts to
being more credible than Gower’s; a conclusion we refuse to
disturb:
We will not second-guess a jury on credibility issues.
While this court’s review is confined to the “cold pages”
of an appellate transcript, the jury had an opportunity
to observe the verbal and non-verbal behavior of the
witnesses, including the subject’s reactions and re-
sponses to the interrogatories, their facial expressions,
attitudes, tone of voice, eye contact, posture and body
movements . . . . [I]t is not the task of this appellate
court to reconsider the evidence or assess the credibility
of the witnesses.
Kossman v. Northeast Ill. Reg’l Commuter R.R., 211 F.3d
1031, 1037-38 (7th Cir. 2000) (citations omitted); see also
United States v. Bogan, 267 F.3d 614, 623 (7th Cir. 2001)
(“[A] credibility determination . . . is solely within the
province of the jury”); Goodwin v. MTD Prods., Inc., 232
F.3d 600, 606-07 (7th Cir. 2000). After weighing the officers’
testimony against that of the Plaintiff-Appellant’s testi-
mony, a rational jury could have properly determined that
Gower voluntarily gave the Defendants his verbal consent
to enter the house subsequent to the Defendants identifying
themselves (before crossing the threshold of the Gower
home and making entry) and asking permission to enter.
Accordingly, the jury’s finding that the deputies’
warrantless entry into Gower’s residence did not violate his
Fourth Amendment rights was entirely reasonable. We
reject Gower’s assertion that he was entitled to judgment as
a matter of law as to this Fourth Amendment claim based
on the deputies’ alleged warrantless entry into his home.6
6
We also note that the officers initially entered Gower’s home
only to investigate the Taylors’ claim and not to arrest Gower. It
(continued...)
No. 02-4112 11
B. Probable Cause
Gower next argues that the Defendants lacked, as a
matter of law, probable cause to arrest him for disorderly
conduct and that the district court should have granted his
motion for a directed verdict.7 Probable cause exists to ar-
rest a suspect “if at the time of arrest the facts and circum-
stances within the arresting officer’s knowledge and of
which [he] has reasonably trustworthy information would
warrant a prudent person in believing that the suspect had
committed or was committing an offense.” Spiegel v.
Cortese, 196 F.3d 717, 723 (7th Cir. 1999) (citations and
internal quotations omitted); see also United States v.
Mounts, 248 F.3d 712, 715 (7th Cir. 2001). Probable cause
is a “commonsense determination, measured under a rea-
sonableness standard.” Spiegel, 196 F.3d at 723 (citations
and internal quotations omitted). Furthermore, “[t]he exist-
ence of probable cause turns on the information known to
the officers at the moment the arrest is made, not on
subsequently-received information.” Id. It is largely irrel-
evant—for purposes of determining an arresting officer’s
liability—whether the person arrested is later found to be
innocent. Id.; see also Michigan v. DeFillippo, 443 U.S. 31,
6
(...continued)
is clear from the trial testimony that Officer Vercler made his
probable cause conclusion only after he had communicated with
the Gower regarding the alleged incident and had concluded that
Gower’s chronicle was unworthy of belief.
7
Gower also asserts that a warrantless arrest inside a suspect’s
home, even with probable cause, is lawful only if the suspect is
arrested for a felony, but this argument is wholly without merit:
“[Illinois law] allows a full custodial arrest for any crime on
probable cause,” Gramenos v. Jewel Cos., Inc., 797 F.2d 432, 441
(7th Cir. 1986) (emphasis added) (discussing Illinois law allowing
a custodial arrest for a misdemeanor), and a misdemeanor offense
is a crime.
12 No. 02-4112
36 (1979) (“The validity of the arrest does not depend on
whether the suspect actually committed a crime; the mere
fact that the suspect is later acquitted of the offense for
which he is arrested is irrelevant to the validity of the ar-
rest.”). Instead, “[s]o long as a reasonably credible witness
or victim informs the police that someone has committed, or
is committing, a crime, the officers have probable cause to
place the alleged culprit under arrest.” Jenkins v. Keating,
147 F.3d 577, 585 (7th Cir. 1998).
The Illinois statute proscribing disorderly conduct reads:
“A person commits disorderly conduct when he knowingly
does any act in such unreasonable manner as to alarm or
disturb another and to provoke a breach of the peace.” 720
Ill. Comp. Stat. 5/26-1(a)(1). In applying this provision,
Illinois courts have recognized that “the types of conduct
intended to be included under this section almost defy
definition.” People v. Davis, 413 N.E.2d 413, 415 (Ill. 1980)
(internal quotation omitted). We have also previously noted
that, under Illinois law, the determination of whether par-
ticular conduct is disorderly depends on how unreasonable
it is in relation to the surrounding circumstances. See
Biddle v. Martin, 992 F.2d 673, 677 (7th Cir. 1993).
When viewed in the context of the family conflict that
plagued the Gowers and the Taylors, cf. Humphrey v.
Staszak, 148 F.3d 719, 727 (7th Cir. 1998) (stating that a
jury must analyze an arrestee’s words in relation to the
surrounding circumstances), we are confident (as was the
jury) that the deputies had probable cause to conclude that
Gower’s conduct directed at the Taylors in the early morn-
ing of February 12, 2000, rose to the level of disorderly
conduct under Illinois law. At trial, evidence was presented
by the Defendants—which, given that they prevailed before
the jury, we must believe for the sake of this challenge,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)—showing that, at time of arrest, the arresting
deputies were personally well aware of the history of
No. 02-4112 13
tension between Gower and his in-laws (Taylors). Testimo-
nial evidence was also presented explaining that, when the
deputies arrested Gower, they had knowledge of the fact
that he had brandished a butcher knife in the presence of
the Taylors the night before as well as knowledge of his
obscene and overly aggressive language used the following
morning. Specifically, this conduct consisted of the Gower
shouting personally abusive obscenities directed at the
Taylors and of his attempting to provoke a violent reaction
by figuratively insulting Mr. Taylor’s courage (by mocking
him as a “chicken”). Additionally, Deputy Vercler observed
that Diana Taylor was “quite upset,” crying and visibly
shaking as a result of her encounter with Gower. This
observation further supports the conclusion that the vulgar
insults leveled at the Taylors would naturally incite trouble
among reasonable people and were intended to be abusive.
In light of these circumstances, a rational jury certainly
could have found that the deputies reasonably believed that
Gower knowingly “act[ed] in such unreasonable manner as
to alarm or disturb” the Taylors, thus “provok[ing] a breach
of the peace.” 720 Ill. Comp. Stat. 5/26-1(a)(1). In fact, the
type of behavior that Gower is alleged to have displayed
seems to be exactly the type that the Illinois disorderly
conduct statute is designed to address. Thus, it was more
than just “fairly possible” that the jury would conclude, as
it did in its verdict, that the Defendants possessed probable
cause to arrest Gower for the crime of disorderly conduct.
See Anderson, 477 U.S. at 254.
The gravamen of Gower’s directed verdict motion, how-
ever, was that his arrest under the Illinois disorderly con-
duct statute would in this case violate his First Amendment
right to free speech. That is, he is arguing that an arrest
which is premised merely on the words he yelled at the
Taylors (i.e., shouting “fuck you” a number of times, calling
Thomas Taylor a “big fat son-of-a-bitch” and “clucking” like
a chicken) on the morning of February 12, 2000, would
14 No. 02-4112
improperly punish constitutionally protected speech. Illinois
courts have previously addressed how constitutional
requirements essentially provide an additional element for
the disorderly conduct statute in the context where words
alone are deemed to be disorderly. Freedom of speech is one
of our most precious guarantees under the constitution; “it
is a fundamental right protected from invasion by the state
by the fourteenth amendment.” See People v. Redwood, 780
N.E.2d 760, 762 ( Ill. App. Ct. 2002). However, “[t]here are
certain well-defined and narrowly limited classes of speech,
the prevention and punishment of which have never been
thought to raise any [c]onstitutional problem. These include
. . . the insulting or ‘fighting’ words . . . .” Id. at 763 (quoting
Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72
(1942)). By their very nature “fighting words . . . provoke a
breach of the peace, such that they satisfy a necessary
element of disorderly conduct.” People v. Allen, 680 N.E.2d
795, 799 (Ill. App. Ct. 1997). Also, as this Court has noted
and reiterated a number of times “the emphasis of the
statute is upon the tendency of the conduct to disturb
others and to provoke disruptions of public order and upon
the unreasonableness of the activity when viewed in the
context of the surrounding circumstances.” Terket v. Lund,
623 F.2d 29, 31 (7th Cir. 1980) (quoting United States v.
Woodard, 376 F.2d 136, 139 (7th Cir. 1967)). Therefore, when
viewed in context of the totality of the circumstances, “[i]t
is clear that the right to knowingly commit an act in such
an unreasonable manner as to provoke, make or aid in
making a breach of the peace does not come within the
protections of the first amendment.” City of Chicago v.
Morris, 264 N.E.2d 1, 3 (Ill. 1970). Gower opines that his
alleged statements did not constitute “fighting words” as a
matter of law and, thus, his speech was constitutionally
protected and the Defendant deputies lacked probable cause
to arrest him for disorderly conduct.
We reject Gower’s assertion because we have little diffi-
culty concluding, as a matter of law, that Deputies Vercler
No. 02-4112 15
and Garrett had probable cause to believe that Gower’s
reported verbal assaults, directed at the Taylors, consisted
of “fighting words” that “by their very utterance inflict
injury or tend to incite an immediate breach of the peace,”
Chaplinsky, 315 U.S. at 572, and “the prevention and
punishment of which has never been thought to raise any
Constitutional problem.” Id. at 571-72. Gower’s repeated
remarks to the Taylors of “fuck you,” his calling of his father-
in-law a “fat son-of-a-bitch,” and his attempt to humiliate
his father-in-law by essentially calling him a coward (i.e.,
clucking like a chicken), together plainly represent fighting
words, because they are “personally abusive epithets which,
when addressed to the ordinary citizen, are, as a matter of
common knowledge, inherently likely to provoke violent
reaction.” Cohen v. California, 403 U.S. 15, 20 (1971).
Moreover, when these invectives come from a man who, the
night before, had brandished a large knife at the
Taylors—the intended audience of his abusive words on the
morning of February 12, 2000—the likelihood of a violent,
immediate reaction is only magnified. See Terket, 623 F.2d
at 31. That Mr. Taylor properly exercised restraint by
refraining from retaliating in a violent manner to the
insults (probably so that he would not be tardy for work)
does not alter the fact that Gower’s words were those which
“[a] reasonable onlooker would have regarded . . . as a direct
personal insult or an invitation to exchange fisticuffs.”
Texas v. Johnson, 491 U.S. 397, 409 (1989), and which
breached the peace. Cf. Allen, 680 N.E.2d at 799 (explaining
that under Illinois law the term “breach of the peace”
describes “conduct that creates consternation and alarm. It
is an indecorum that incites public turbulence; yet violent
conduct is not a necessary element.”).
In all, Gower’s inflammatory, implicitly threatening, and
personally abusive language, which was uttered after
Gower had brandished a butcher knife at the Taylors the
night before, is not the type of speech which is protected by
16 No. 02-4112
the First Amendment and, therefore, the Illinois disorderly
conduct statue was not applied unconstitutionally against
Gower based on the facts of this case. Thus, the jury was
properly allowed to rule in favor of the Defendants on
Gower’s claim that Deputies Vercler and Garrett lacked
probable cause to arrest him for disorderly conduct. The
trial court’s denial of Gower’s motion for a directed verdict
was correct.8
III. Conclusion
For the reasons stated herein, the judgment of the district
court is
AFFIRMED.
8
Because we hold that Gower’s arrest did not abridge any of his
constitutional rights, we need not discuss whether, if his consti-
tutional rights had been violated, Gower would have been entitled
to physically resist arrest or whether 720 ILCS 5/7-7 is unconsti-
tutional as overly broad. See 720 Ill. Comp. Stat. 5/7-7 (“A person
is not authorized to use force to resist an arrest which he knows
is being made either by a peace officer or by a private person
summoned and directed by a peace officer to make the arrest, even
if he believes that the arrest is unlawful and the arrest in fact is
unlawful.”). Regardless, Gower concedes that he did not in fact
resist arrest and, therefore, he would not have standing to chal-
lenge the statute in the first instance. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992) (holding that a plaintiff must
suffer an “injury in fact” which would be redressed by a favorable
judgment in order to have standing).
No. 02-4112 17
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-23-04