Don Goldhamer v. Alfred Nagode ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2332
D ON G OLDHAMER and R OBIN S HIRMER,
Plaintiffs-Appellees,
v.
A LFRED N AGODE, et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 5286—John F. Grady, Judge.
A RGUED A PRIL 1, 2010—D ECIDED S EPTEMBER 2, 2010
Before E ASTERBROOK, Chief Judge, and B AUER and
H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. The City of Chicago has
enacted an ordinance prohibiting disorderly conduct.
One controversial portion of that ordinance makes it a
crime for a person to fail to disperse from a group when
ordered to do so by a police officer while others are
engaging in disorderly conduct nearby: “A person com-
2 No. 09-2332
mits disorderly conduct when he knowingly . . . (d) Fails
to obey a lawful order of dispersal by a person known
by him to be a peace officer under circumstances where
three or more persons are committing acts of disorderly
conduct in the immediate vicinity, which acts are likely
to cause substantial harm or serious inconvenience,
annoyance or alarm . . . .” Chicago Municipal Code
§ 8-4-010(d). This provision has obvious uses in con-
trolling unruly and potentially dangerous crowds. Yet it
also lends itself to overly broad application that can
interfere with core First Amendment rights of free
speech and assembly. The “three or more persons . . .
committing acts of disorderly conduct” could be reacting
to (or even attempting to disrupt) the speech of the
person arrested for a failure to disperse, so this provision
can be applied to impose what amounts to an uncon-
stitutional “heckler’s veto” of protected speech. See, e.g.,
Forsyth County v. Nationalist Movement, 505 U.S. 123, 134
(1992) (“Listeners’ reaction to speech is not a content-
neutral basis for regulation.”).
In this case, the district court permanently enjoined the
city from enforcing the failure-to-disperse provision of
section 8-4-010(d), reasoning that it imposes too great a
burden on protected free speech and is unconstitu-
tionally vague. The city has appealed. We do not address
this provision’s constitutionality because we conclude
that the plaintiffs lack standing to challenge its facial
validity. When these plaintiffs were arrested, according
to this record, they were not even arguably violating the
failure-to-disperse provision. Nor have they shown a
reasonable prospect of future arrest for again violating
No. 09-2332 3
that same provision. We recognize that the plaintiffs
were arrested for supposedly violating this provision, but
the grounds for the arrest were apparently specious.
Plaintiffs have ample other remedies available to redress
any injury they may have suffered from their arrests,
but they do not have standing to challenge the facial
validity of the law that was misapplied to them.
The Plaintiffs and Their Arrest: In the summer of
2006, plaintiffs Don Goldhamer and Robin Schirmer
participated in a peaceful demonstration near a military
recruiting booth at the annual Taste of Chicago
Festival in downtown Chicago. Plaintiffs and others
who opposed military recruitment began handing out
flyers and speaking to people near the recruiting booth.
Defendant Alfred Nagode, a lieutenant with the Chicago
Police Department, and several uniformed patrol officers
formed a line between the protestors and the military
recruiting booth. Lieutenant Nagode then ordered the
protestors to go to a designated protest zone. After some
protestors failed to relocate in response to his order,
Lieutenant Nagode ordered them to disperse. The plain-
tiffs apparently failed to heed this order. Both were
arrested, transported to a police station, and charged
with disorderly conduct for violating section 8-4-010(d).
There is no evidence in this record, however, that
plaintiffs or any other people in the immediate vicinity
were engaged in conduct recognizable as “disorderly
conduct” under the ordinance. See City of Chicago v.
Fort, 262 N.E.2d 473, 475 (Ill. 1970) (construing “disorderly
conduct” to mean an act conducted “in such unreasonable
4 No. 09-2332
manner as to provoke, make or aid in making a breach
of peace”). Genuine disorderly conduct by at least three
persons in the immediate vicinity is an essential founda-
tion for an order to disperse that is itself a prerequisite
for an arrest under section 8-4-010(d).
The plaintiffs appeared in state court on the charges
against them on several occasions. The state apparently
was never prepared to follow through on the prosecution
of these arrests. At their final court appearance, the
court denied the prosecution’s motion for a continuance
and dismissed the charges.
Litigation in the District Court: Plaintiffs Goldhamer
and Shirmer then filed this suit under 42 U.S.C. § 1983alleging violations of their rights under the First, Fourth,
and Fourteenth Amendments of the Constitution and
under state law. Plaintiffs alleged in part that section 8-4-
010(d) was invalid as applied to their protest activities,
and that this provision was facially invalid under the
First Amendment and was unconstitutionally vague. In
support of their request for an injunction against this
provision’s enforcement, the plaintiffs stated that they
“plan to continue their participation in constitutionally
protected political activities and protests and . . . fear
repeated disruption of these activities and protests and
prosecution for them.” Plaintiffs did not allege that they
had been threatened with future arrest or prosecution
for those activities.
The district court directed the parties to submit cross-
motions for summary judgment on the facial validity
of the failure-to-disperse provision. The district court
No. 09-2332 5
granted summary judgment for the plaintiffs, determining
that the failure-to-disperse provision of the ordinance
is facially invalid under the First Amendment and uncon-
stitutionally vague. Goldhamer v. Nagode, 611 F. Supp. 2d
784 (N.D. Ill. 2009). In a separate order, the court issued
a permanent injunction prohibiting the city from en-
forcing section 8-4-010(d).
Appellate Jurisdiction: The district court’s orders did
not resolve all claims pending before it. Although
the plaintiffs later dismissed many of their remaining
claims with prejudice pursuant to a settlement, the dis-
missal did not resolve plaintiffs’ claim for damages
under the count alleging that the failure-to-disperse
provision is unconstitutionally vague. Nevertheless,
pursuant to 28 U.S.C. § 1292(a)(1), we have jurisdiction
to consider this appeal from the grant of permanent
injunctive relief. See Jones-El v. Berge, 374 F.3d 541, 543-44
(7th Cir. 2004). Because the district court’s grant of sum-
mary judgment was “inextricably bound” to the injunc-
tion, we have limited jurisdiction to review that grant
of summary judgment as well, to the extent necessary.
See Coronado v. Valleyview Public School Dist. 365-U, 537
F.3d 791, 795 (7th Cir. 2008); Shaffer v. Globe Protection,
Inc., 721 F.2d 1121, 1124 (7th Cir. 1983) (noting the great
caution with which jurisdiction under § 1292(a)(1) is to
be exercised).
Standing to Seek Injunctive Relief: We may not con-
sider the facial validity of the failure-to-disperse pro-
vision unless the plaintiffs had standing to request
the injunctive relief. Article III of the United States Con-
6 No. 09-2332
stitution limits the jurisdiction of the federal courts to
actual “Cases” and “Controversies.” Unless a case or
controversy is presented, no federal court has the juris-
diction to decide whether a federal, state, or local law is
constitutional. Golden v. Zwickler, 394 U.S. 103, 110 (1969),
quoting Liverpool, N.Y. & P.S.S. Co. v. Commissioners, 113
U.S. 33, 39 (1885). Because standing is “an essential and
unchanging part of the case-or-controversy requirement
of Article III,” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992), we must consider this jurisdictional
issue even though the parties have not raised it. E.g.,
Mainstreet Org. of Realtors v. Calumet City, 505 F.3d 742,
747 (7th Cir. 2007).
We have no doubt that plaintiffs had standing to
pursue their claims for damages based on what may well
have been unlawful arrests that also interfered with
expression protected by the First Amendment. Plaintiffs’
standing on those claims, however, does not necessarily
carry over to their facial challenge requesting an injunc-
tion against any enforcement of the failure-to-disperse
provision. A plaintiff “must demonstrate standing sepa-
rately for each form of relief sought.” Friends of the
Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167,
185 (2000); accord City of Los Angeles v. Lyons, 461 U.S. 95,
109 (1983) (plaintiff had standing to seek damages but
not injunctive relief against abusive police practices). The
only slice of this case before us is plaintiffs’ request
for prospective relief—an injunction against enforcement
of the failure-to-disperse provision. To establish their
standing to seek that relief, the plaintiffs must show
that: (1) they are under threat of an actual and imminent
No. 09-2332 7
injury in fact; (2) there is a causal relation between that
injury and the conduct to be enjoined; and (3) it is likely,
rather than speculative or hypothetical, that a favorable
judicial decision will prevent or redress that injury.
Summers v. Earth Island Institute, 129 S. Ct. 1142, 1149
(2009); Lujan, 504 U.S. at 560-61; Sierra Club v. Franklin
County Power of Illinois, LLC, 546 F.3d 918, 925 (7th Cir.
2008).
The clearest path to resolution of this case focuses on
the third element, the likelihood that the injunction will
actually prevent an injury that these plaintiffs reasonably
fear they will suffer. This element is missing here
because the failure-to-disperse provision clearly did not
apply to the plaintiffs’ actions, actions that we assume
they would like to repeat in the future but for their
stated fear of prosecution. No allegations or facts in the
record indicate that three or more individuals were
committing acts of disorderly conduct in the plaintiffs’
immediate vicinity. Their arrests appear to have been
baseless, and for that reason, the district court’s injunc-
tion against enforcement of the provision is unlikely to
prevent any injury to these plaintiffs.
The fact that these plaintiffs were actually arrested and
prosecuted for violating the failure-to-disperse provi-
sion does not by itself show the plaintiffs’ standing to
seek injunctive relief. We assume that plaintiffs intend, as
they say, to continue to participate in demonstrations
and other expressions protected by the First Amend-
ment. We understand that they may be worried about a
possible repeat of the events of the 2006 Taste of Chicago
8 No. 09-2332
Festival. And we recognize that the failure-to-disperse
provision can be misused to impose a heckler’s veto or
otherwise to suppress speech and expressive conduct
protected by the First Amendment. The relevant ques-
tion for our purposes, though, is whether these plain-
tiffs have sufficient reason to fear such arrest and pros-
ecution as to justify a federal judicial decision on the
facial validity of the law.
We conclude that the answer is no. As a general rule,
the fact that a person was previously prosecuted for
violating a law is insufficient by itself to establish that
person’s standing to request injunctive relief. See Steel Co.
v. Citizens for a Better Environment, 523 U.S. 83, 108 (1998)
(stating that standing to request injunctive relief is
lacking when only past harm is alleged); O’Shea v.
Littleton, 414 U.S. 488, 495-96 (1974) (“Past exposure to
illegal conduct does not in itself show a present case
or controversy regarding injunctive relief, however, if
unaccompanied by any continuing, present adverse
effects.”); see also City of Los Angeles v. Lyons, 461 U.S. at
111 (finding no standing to request injunctive relief
where plaintiff could not show he had reason to expect
to be arrested and subjected to controversial chokehold
again); Rizzo v. Goode, 423 U.S. 362, 372 (1976) (holding
that plaintiffs lacked standing to obtain injunctive
relief against senior police officials to impose tighter
police discipline to prevent harm to civilians).
This is an issue on which courts need to maintain a
delicate balance between adequately protecting First
Amendment rights and avoiding unnecessary constitu-
No. 09-2332 9
tional decisions. A person need not risk arrest before
bringing a pre-enforcement challenge under the First
Amendment, Holder v. Humanitarian Law Project, 130 S. Ct.
2705, 2717 (2010); Steffel v. Thompson, 415 U.S. 452, 459
(1974), but to present a justiciable controversy, the
person must assert more than a wholly speculative pos-
sibility of criminal consequences. Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 302 (1979). A plaintiff
must show that she has “an intention to engage in a
course of conduct arguably affected with a constitu-
tional interest, but proscribed by a statute, and [that]
there exists a credible threat of prosecution thereunder.”
Id. at 298; Virginia v. American Booksellers Ass’n, Inc.,
484 U.S. 383, 393 (1988) (determining that plaintiffs
had standing because they “alleged an actual and
well-founded fear that the law will be enforced against
them”). “When plaintiffs ‘do not claim that they have
ever been threatened with prosecution, that a prosecu-
tion is likely, or even that a prosecution is remotely pos-
sible,’ they do not allege a dispute susceptible to resolu-
tion by a federal court.” Babbitt, 442 U.S. at 298-99,
quoting Younger v. Harris, 401 U.S. 37, 42 (1971); see Steffel,
415 U.S. at 459 (determining that the threat of prosecu-
tion was not speculative because the plaintiff had
been warned to cease his activities and was threatened
with prosecution if he failed to do so).
When a person is considering whether he risks pros-
ecution for future actions, he rarely deals with certainties,
but rather a broad spectrum of possibilities derived
from a number of unknown variables. This uncertainty
is particularly problematic in the realm of free speech,
10 No. 09-2332
given the danger that vital protected speech will be
chilled due to a reasonable fear of prosecution. See, e.g.,
Laird v. Tatum, 408 U.S. 1, 11 (1972) (“[C]onstitutional
violations may arise from the deterrent, or ‘chilling,’ effect
of governmental regulations that fall short of a direct
prohibition against the exercise of First Amendment
rights.”). For that reason, when an ambiguous statute
arguably prohibits certain protected speech, a reasonable
fear of prosecution can provide standing for a First
Amendment challenge. See Majors v. Abell, 317 F.3d 719,
721 (7th Cir. 2003) (reversing dismissal for lack of
standing where scope of statute was unclear); Commodity
Trend Serv., Inc. v. Commodity Futures Trading Comm’n,
149 F.3d 679, 687 (7th Cir. 1998) (stating that “a threat of
prosecution is credible [under Babbitt] when a plaintiff’s
intended conduct runs afoul of a criminal statute”);
California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088,
1095 (9th Cir. 2003) (“In the free speech context, [an
actual and well-founded] fear of prosecution will only
inure if the plaintiff’s intended speech arguably falls
within the statute’s reach.”).
In Majors, however, we also observed that the plain-
tiff would have lacked standing for a First Amendment
challenge if the statute in question “clearly fails to
cover [the plaintiff’s] conduct.” 317 F.3d at 721. In a later
case we affirmed dismissal of a pre-enforcement chal-
lenge for lack of standing (the prosecutor had expressed
no interest in prosecuting the plaintiff under the statute),
and we echoed the point from Majors: a plaintiff lacks
standing to bring a pre-enforcement challenge if the
plaintiff’s “conduct was clearly outside the statute’s
No. 09-2332 11
scope.” Lawson v. Hill, 368 F.3d 955, 957 (7th Cir. 2004).
While it is possible that the plaintiffs “might be pros-
ecuted under a statute the text of which clearly failed
to cover [their] conduct,” such remote fear does not
justify an injunction absent something more than a
“nontrivial probability of prosecution.” Id. at 958.
In a case remarkably similar to this one, the Tenth Circuit
struck the right balance in PeTA v. Rasmussen, 298
F.3d 1198, 1203 (10th Cir. 2002), and held that plain-
tiffs lacked standing to bring a facial challenge to a law
that did not apply by its terms to their desired conduct.
The Tenth Circuit reached that conclusion even though
the plaintiffs had been threatened with arrest by an
officer who had received bad legal advice about whether
the law applied to the plaintiffs’ conduct. In Rasmussen,
PeTA (People for the Ethical Treatment of Animals) and
its members sought money damages and an injunc-
tion against the enforcement of a statute forbidding
“interfere[nce] with the peaceful conduct of the activities
of any school.” PeTA members had staged a protest at
a junior high school (the school had placed, of all things,
a McDonald’s flag on its flagpole), but they had dispersed
after a police officer threatened to arrest them under
the statute. Only after that incident did the parties learn
that the statute defined “school” as an “institution of
higher education,” so that it clearly did not apply to
plaintiffs’ planned future protests at the junior high
school. 298 F.3d at 1201. Because the statute at issue did
“not apply to the protests PeTA has conducted and
has expressed an intention to conduct in the future,” the
Tenth Circuit held that PeTA had an insufficient chance
12 No. 09-2332
of being injured in the future and therefore lacked
standing to request injunctive relief or to mount a facial
challenge to the statute’s validity. Id. at 1203.
Majors, Lawson, and Rasmussen guide our resolution of
standing in this case. If we had any indication that the
police were even arguably acting within the scope of the
failure-to-disperse provision when they arrested plain-
tiffs, then these plaintiffs could have standing to chal-
lenge the facial constitutionality of that provision and
to request injunctive relief. Our reading of the provi-
sion’s language and the reported Illinois cases inter-
preting it, however, indicates that section 8-4-010(d)
cannot fairly be read to prohibit peaceful protests of the
sort engaged in by the plaintiffs. The types of conduct
previously determined to be within the provision’s
scope are much different from the conduct at issue in
this case. See City of Chicago v. Weiss, 281 N.E.2d 310, 316-17
(Ill. 1972) (rocks and firecrackers were being thrown);
City of Chicago v. Greene, 264 N.E.2d 163, 166 (Ill. 1970)
(members of 500-person crowd were hurling objects at
police); City of Chicago v. Jacobs, 263 N.E.2d 41, 42-43
(Ill. 1970) (during protest involving several thousand
demonstrators, defendants crossed police line into pro-
hibited area); People v. Gonzalez, 357 N.E.2d 616, 620 (Ill.
App. 1976) (crowd surrounded police). Nevertheless,
the police arrested these plaintiffs and had them charged
with failure to disperse without even arguable probable
cause for doing so. There is no indication that three
or more persons in the “immediate vicinity” were, in
the words of section 8-4-010(d), committing acts of disor-
derly conduct of any kind, let alone that they were likely
No. 09-2332 13
to cause substantial harm or serious inconvenience,
annoyance, or alarm. See Fort, 262 N.E.2d at 475 (defining
“disorderly conduct”). Such a clear misuse of a law
does not provide a basis for a federal court to explore
that law’s facial constitutionality.
Perhaps if we had a record showing a persistent
pattern of similar police misconduct, persons intending
to engage in protected speech and expression might be
able to show that they were entitled to injunctive relief
of some kind, if not against all enforcement of the provi-
sion then at least against future such misconduct. See,
e.g., Allee v. Medrano, 416 U.S. 802, 815 (1974) (affirming
injunction against pattern of police misconduct aimed
at preventing unionization of farm workers). The record
before us, however, shows only an isolated misuse of
the failure-to-disperse provision. We understand that
plaintiffs intend to act in the future as they acted when
they were arrested without apparent justification, but
they have not presented any evidence sufficient to
justify a conclusion that their experience was the result
of a Chicago policy or custom of misapplying local ordi-
nances against disfavored speech. These plaintiffs’ ex-
perience appears, on this record, to be the result of an
isolated misuse of the failure-to-disperse provision
and indicates that they are not reasonably likely to face
a future prosecution if section 8-4-010(d) is enforced
according to its terms. As the Supreme Court observed
in Allee: “Isolated incidents of police misconduct under
valid statutes would not, of course, be cause for exercise
of a federal court’s equitable powers.” Id.14 No. 09-2332
As a final note, we do not mean to imply that the plain-
tiffs lack standing to pursue any claim in regard to
their arrests and prosecution. The police officers appar-
ently had no reason to arrest and charge these plain-
tiffs, who properly asserted their rights by pursuing
damages against the officers and the city for the arrests.
Plaintiffs settled those claims on terms that are not part
of the record before us. Damages were the remedy sought
in Hartnett v. Schmit, 501 F. Supp. 1024 (N.D. Ill. 1980),
where the plaintiffs had been arrested for a failure to
disperse even though it was undisputed that there was
no nearby disturbance of any kind. Judge Aspen
granted summary judgment for the plaintiffs as to liabil-
ity and held that the defendant police officers were not
entitled to qualified immunity because it was clear
that they had arrested the plaintiffs without probable
cause. 501 F. Supp. at 1028-29. A claim for money dam-
ages, not a request for injunctive relief, is an appro-
priate and effective method for dealing with isolated
circumstances in which police officers arrest civilians
who are not even arguably violating the law. See Lyons,
461 U.S. at 111 (“The legality of the violence to which
Lyons claims he was once subjected is at issue in his
suit for damages and can be determined there.”); Rasmus-
sen, 298 F.3d at 1203 (holding that PeTA had standing
to pursue monetary damages despite its lack of standing
to pursue prospective relief).1
1
Our decision in this case should not be understood to
extend to a situation in which police misuse of the failure-to-
(continued...)
No. 09-2332 15
Accordingly, we V ACATE the district court’s order
enjoining the enforcement of Chicago Municipal Code
§ 8-4-010(d) and R EMAND this matter for further pro-
ceedings consistent with this opinion.
1
(...continued)
disperse law has become so common as to amount to a munici-
pal policy or custom that would subject the city to direct
liability under section 1983. See generally Monell v. Department
of Social Services, 436 U.S. 658, 694 (1978). Plaintiffs in this
case settled their Monell claim, so we do not address that
prospect.
9-2-10