Andy Thayer v. Ralph Chiczewski , 705 F.3d 237 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-1974 & 10-2064
A NDY T HAYER, et al.,
Plaintiffs-Appellants,
v.
R ALPH C HICZEWSKI, et al.,
Defendants-Appellees.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 1:07-cv-01290 & 1:07-cv-01406—John W. Darrah, Judge.
A RGUED A PRIL 6, 2011—D ECIDED S EPTEMBER 18, 2012
Before F LAUM, E VANSΠ, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Chicago police officers arrested
plaintiffs for disorderly conduct at a 2005 antiwar demon-
stration at the corner of Chicago’s Oak Street and Michigan
Avenue. The plaintiffs brought claims for First Amend-
Œ
Circuit Judge Terence T. Evans died on August 10, 2011, and
did not participate in the decision of this case, which is
being resolved by a quorum of the panel under 28 U.S.C. § 46(d).
2 Nos. 10-1974 & 10-2064
ment retaliation, Fourth Amendment false arrest, Four-
teenth 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 unconstitu-
tionally 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 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 defendants; we do so, however, on the basis
of qualified immunity. Lyttle’s facial attack on the ordi-
nance is rendered moot by our recent opinion in Bell v.
Keating, No. 11-2408, 2012 WL 3892506 (7th Cir. Sept. 10,
2012), which partially invalidated subsection (d) on
overbreadth and vagueness grounds. While we are sym-
pathetic that the plaintiffs’ arrests under a now-invalid
ordinance may have affected their free speech rights,
they did not bring an as-applied challenge (for seemingly
cognizable reasons) to redress such an injury.
1
The suits were initially assigned to separate district judges
but were subsequently reassigned to a single district judge.
Nos. 10-1974 & 10-2064 3
I. Background
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
4 Nos. 10-1974 & 10-2064
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 addi-
tion 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 alterna-
tive 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 partici-
Nos. 10-1974 & 10-2064 5
pants. The notice informed them that no permit had
been granted for an assembly at Oak and Michigan
and offered the alternative assembly point 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
Noon: Oak St. & Michigan Ave., Chicago [There is
not a permit for this assembly point and march]
2 PM: Federal Plaza, Adams & Dearborn [There is a
permit for this rally]
....
(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 2 pm 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.
6 Nos. 10-1974 & 10-2064
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 confer-
ence;” 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 com-
municate 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 deci-
sion 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 con-
ference, not a rally, and that he would be on the
sidewalk, not in the street, but Officer Chiczewski
Nos. 10-1974 & 10-2064 7
insisted that he “would be arrested if [he] so much as
showed up at that corner.” (The content of the conversa-
tion is disputed, but on summary judgment we con-
strue 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
2
Under the Chicago ordinances governing demonstrations, a
permit is required for a “parade,” Chi., Ill., Mun. Code § 10-8-
330(b) (2004), defined as “any march, procession or other
similar activity consisting of persons . . . upon any public street,
sidewalk . . . which requires a street closing or otherwise
requires police officers to stop or reroute vehicular traffic
because the marchers will not comply with normal and usual
traffic regulations or controls.” Id. at § 10-8-330(a)(1). The
ordinance doesn’t require a permit for a “public assembly”
meaning “a company of persons which is reasonably anti-
cipated to obstruct the normal flow of traffic upon the public
way and that is collected together in one place, or . . . any
organized march or procession of persons upon any public
sidewalk that is reasonably anticipated to obstruct the normal
flow of pedestrian traffic on the public way, but which does
not meet the definition of parade . . . .” Id. at § 10-8-330(a)(2).
A person planning a public assembly, however, is required to
notify the commissioner of transportation, at least five business
(continued...)
8 Nos. 10-1974 & 10-2064
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 Wash-
ington Square Park. The announcement concluded:
“Assembly at Oak and Michigan is unlawful, a march
down Michigan Avenue is unlawful. If you violate the
law, you will be arrested . . . .” The CCAWR was
handing out flyers encouraging protestors to join the
march down Adams and Dearborn to Federal Plaza
at 2 p.m.
2
(...continued)
days in advance (or as soon as practicable if the event is of
a spontaneous or urgent nature), to inform the commissioner
of the “date, time, location, route, and estimated number of
persons participating, so that the city can make any preparations
necessary to provide personnel or other city services to mini-
mize the obstruction to pedestrian and other traffic and to
otherwise protect the participants and the public.” Id. at § 10-8-
330(r). A public assembly must be allowed unless the commis-
sioner informs the person within two days (or as soon as
practicable) “that there would be a . . . significant public safety
issue, limited to those set forth for parades . . . .” Id. Defendants
do not rely on this ordinance to assert that the protestors
needed to notify the commissioner of a public assembly, so
we do not need to explore the murky waters of the subtle
distinctions between a parade and assembly.
Nos. 10-1974 & 10-2064 9
Lyttle arrived at Oak and Michigan at 11:30 a.m. and
Thayer arrived by noon. At that time, there were any-
where between fifty and two-hundred protestors and
an estimated two-hundred police officers dressed in riot
gear. Officer Killackey read the announcement over
a bullhorn three times (11:55 a.m., 11:58 a.m., and
12:02 p.m.). Even though Officer Killackey told pro-
testors gathered at Oak and Michigan that it was
unlawful to assemble there, he later testified that he
was aware that no permit was needed to hold an
assembly or press conference on the sidewalk (as opposed
to a “parade” down the street).
Thayer brought a portable amplifier to speak to the
crowd. After their arrival, Officer Killackey read the
announcement (this was the third time) over the
bullhorn and warned the crowd to “start moving,” “let’s
go, gotta move it” or risk arrest. The parties dispute
whether the protestors were blocking the sidewalk or
traffic. The undisputed evidence shows that the police
closed the first lane of traffic on Michigan due to
concerns about the safety of pedestrians. A video of the
“press conference” shows congestion at the corner, some
of which was attributable to police presence, and pedes-
trian traffic being impeded.
After Officer Killackey’s announcement, Bill Massey
began speaking on a microphone as some of the crowd
started dispersing west on Oak Street in the direction
of Washington Square park. Massey stated, “We have
been threatened with arrest if we hold this news confer-
ence. We are holding it. We will stand up for our rights
10 Nos. 10-1974 & 10-2064
if it means—” in the background Officer Killackey
said, “time to move, time to move,” and Massey con-
tinued—“if it means going to jail, we will go to jail.”
Immediately after Massey’s speech, Thayer took the
microphone and said, “We have seen in the past, in past
unjust war, that when the authorities see the tide
turning against them that they respond with attacks on
civil liberties, and that is precisely what we are seeing
here today. The city of Chicago is clamping down on
free speech because people are turning against this
war.” Thayer spoke for less than thirty seconds before
Officer Chiczewski arrested him. Officer Chiczewski
said, “That’s it, Andy. You’re going to jail.” Thayer
went limp as another officer was trying to handcuff
him. As Thayer was being arrested, Detective Madsen
told Massey to “step back,” but Massey refused. Detec-
tive Madsen said, “You are not allowed to be on Oak
and Michigan right now,” and Massey replied, “I am.”
Detective Madsen ordered him to disperse, but Massey
said he would not. Officer Chiczewski also order
Massey to disperse. Massey was not arrested.
The crowd began to disperse. As Thayer was being
taken away, Reverend Paul Jakes grabbed the micro-
phone and said: “This is a peaceful rally, this is a peaceful
rally, we come today calling for justice, calling for an
end to the war. We ask that you do not act violently . . . . ”
He then spoke and prayed about the injustice of the war
for several minutes, undisturbed by the police. Jakes
told a police officer that he intended to move west on
Oak toward Washington Square Park; he was not ar-
rested. The crowd continued to disperse.
Nos. 10-1974 & 10-2064 11
When asked why he did not arrest Massey or Jakes,
Officer Chiczewski had little explanation. As to Massey,
he testified, “I don’t know” and “It was his lucky day.” As
to Jakes, he testified, “You know what, I was a little
busy with Andy at that particular time. I can’t tell you
why anybody was or wasn’t arrested.” Officer Chiczewski
then testified that he arrested Thayer because he was
the organizer of the group and he had previous discus-
sions with Thayer about not assembling at Oak and
Michigan.
Officer Killackey directed officers to form a line along
the sidewalk of Michigan, move the crowd west on
Oak, and not allow protestors to walk southbound on
Michigan. After clearing the crowd west on Oak, Officer
Killackey returned to the police line along Michigan
and ordered the officers to arrest protestors not moving
as the line advanced. Non-protestors were allowed to
walk south down the sidewalk along Michigan. Officer
Chiczewski testified that there was nothing illegal about
people walking down Michigan carrying signs, and
Officer Killackey testified that people dispersing could
leave in any direction, including down Michigan.
By 12:05 to 12:10 p.m., Officer Killackey had cleared
enough room at the corner of Oak and Michigan for
pedestrians to walk through. Lyttle was holding a sign
that said, “End the Occupation of Iraq and Afghanistan.”
At 12:08 p.m., he attempted to walk south down the
Michigan Avenue sidewalk by himself when he came
up to the line of officers and was told he could not con-
tinue. Lyttle responded, “I think I have the right to do
12 Nos. 10-1974 & 10-2064
this, to demonstrate peacefully and walk down
Michigan Avenue, and I’d like to proceed.” Officer
Killackey ordered Officer Shields to arrest him. Lyttle
denies that he pushed any officer or blocked the side-
walk. He was standing alone. Lyttle heard Officer
Killackey’s announcements over the bullhorn but
thought they were recommendations and didn’t hear
anyone say he had to disperse in any particular direction.
Lyttle testified, “I was dispersing from the place where
I was. I was trying to walk south on Michigan Avenue,
which was away from the intersection of Oak and Michi-
gan. So I was dispersing whether . . . I had been
ordered to or not.”
After the arrests of Thayer and Lyttle, the CPD facilitated
the assembly and parade at the alternative location;
thousands of protestors engaged in that anti-war demon-
stration. Thayer and Lyttle were charged with dis-
orderly conduct under subsection (d). Thayer was also
charged with resisting arrest. A jury found Thayer
guilty of both counts. The state court rejected Thayer’s
argument that Officer Chiczewski arrested him without
probable cause. Thayer was also issued a civil citation
for conducting a parade without a permit and at an
administrative hearing, the hearing officer rejected
Thayer’s claim that he was holding a “press conference”
at Oak and Michigan. The hearing officer found that a
rally was taking place and traffic was blocked on one
lane of Oak and one lane of Michigan. He found it to be
a “semantical difference” by calling it a “press confer-
ence” and it seemed “that what was originally intended
way back at the beginning of the permit process that there
Nos. 10-1974 & 10-2064 13
was an effort to get that underway.” The state court
affirmed the administrative decision. Thayer did not
appeal either the convictions or the civil citation. Lyttle
was acquitted because the court found that he did not
have adequate opportunity to disperse.
II. Discussion
We review a district court’s grant of summary judg-
ment de novo, construing all facts and reasonable infer-
ences in the light most favorable to the non-moving
party. Spivey v. Adaptive Mktg. LLC, 622 F.3d 816, 822
(7th Cir. 2010). Summary judgment is appropriate only
if “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56(a).
A. False Arrest and Malicious Prosecution
To prevail on a claim of false arrest, Lyttle must show
there was no probable cause for his arrest. See Williams
v. Rodriguez, 509 F.3d 392, 398 (7th Cir. 2007). “Probable
cause to arrest is an absolute defense to any claim under
Section 1983 against police officers for wrongful arrest.”
Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006).
Thayer doesn’t raise a similar challenge, having been
convicted of this offense, he concedes that he is barred
from arguing that officers lacked probable cause for
his arrest.
Probable cause exists if “at the time of the arrest, the
facts and circumstances within the officer’s knowledge . . .
14 Nos. 10-1974 & 10-2064
are sufficient to warrant a prudent person, or one of
reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing,
or is about to commit an offense.” Gonzalez v. City of
Elgin, 578 F.3d 526, 537 (7th Cir. 2009) (quoting Michigan
v. DeFillippo, 443 U.S. 31, 37 (1979)). It “requires only
that a probability or substantial chance of criminal
activity exists; it does not require the existence of
criminal activity to be more likely true than not true.”
Mucha v. Vill. of Oak Brook, 650 F.3d 1053, 1056-57 (7th
Cir. 2011). Probable cause “is a fluid concept that relies
on the common-sense judgment of the officers based
on the totality of the circumstances.” United States v.
Reed, 443 F.3d 600, 603 (7th Cir. 2006). To make this deter-
mination, we must “step[ ] into the shoes of a reasonable
person in the position of the officer[,]” Wheeler v. Lawson,
539 F.3d 629, 634 (7th Cir. 2008), considering the facts
known to the officer at the time, Carmichael v. Vill. of
Palatine, Ill., 605 F.3d 451, 457 (7th Cir. 2010). This is an
objective inquiry; we do not consider the subjective
motivations of the officer. Whren v. United States, 517
U.S. 806, 810 (1996). Although we have declared subsec-
tion (d) unconstitutional, see Bell, No. 11-2408, 2012 WL
3892506, an arrest made in good-faith reliance on an
ordinance is valid regardless of a subsequent judicial
determination of its unconstitutionality, see DeFillippo,
443 U.S. at 37-40.
Officers are also afforded an extra layer of protection
through the defense of qualified immunity (also
known as arguable probable cause). “Qualified immunity
protects public officials from liability for damages if
their actions did not violate clearly established rights
Nos. 10-1974 & 10-2064 15
of which a reasonable person would have known.”
Fleming v. Livingston Cnty., Ill., 674 F.3d 874, 879 (7th Cir.
2012) (quotations omitted). An officer “is entitled to
qualified immunity in a false-arrest case when, if there
is no probable cause, ‘a reasonable officer could have
mistakenly believed that probable cause existed.’ ” Id. at
880 (quoting Humphrey v. Staszak, 148 F.3d 719, 725 (7th
Cir. 1998)); see also Reher v. Vivo, 656 F.3d 772, 777 (7th Cir.
2011) (granting qualified immunity to officer who
could have reasonably, but mistakenly, believed that
plaintiff had committed disorderly conduct even though
the information available to the officer at the time was
probably too vague to support an arrest). “[Q]ualified
immunity protects police officers who reasonably
interpret an unclear statute.” Mustafa, 442 F.3d at 549.
The defendants raised the issue of arguable probable
cause before the district court and the plaintiffs
addressed it (albeit briefly) in their appellants’ brief. The
defendants, however, didn’t address qualified immunity
on the false arrest claim in their appellees’ brief. Though
not raised on appeal, we can “affirm on any ground
supported in the record, so long as that ground was
adequately addressed in the district court and the
nonmoving party had an opportunity to contest the
issue.” Peretz v. Sims, 662 F.3d 478, 480 (7th Cir. 2011)
(quotations omitted). “[T]he failure of an appellee to have
raised all possible alternative grounds for affirming
the district court’s original decision, unlike an appellant’s
failure to raise all possible grounds for reversal, should not
operate as a waiver.” Transamerica Ins. Co. v. South, 125 F.3d
392, 399 (7th Cir. 1997) (emphasis in original) (quoting
16 Nos. 10-1974 & 10-2064
Schering Corp. v. Ill. Antibiotics Co., 89 F.3d 357, 358 (7th
Cir. 1996)); see also Froebel v. Meyer, 217 F.3d 928, 933
(7th Cir. 2000). We do not find that the plaintiffs will be
prejudiced from our consideration of qualified immunity
because it was properly raised below, is closely related
to the probable cause analysis addressed by both parties
on appeal, and is a pure question of law. See, e.g.,
Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 968
(9th Cir. 2010).
“A police officer’s probable cause determination
depends on the elements of the applicable criminal stat-
ute.” Stokes v. Bd. of Educ. of the City of Chi., 599 F.3d 617,
622 (7th Cir. 2010). Section 8-4-010 states: “A person
commits 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 incon-
venience, annoyance or alarm.” Chi., Ill., Mun. Code § 8-4-
010(d). Section 8-4-010(a) identifies conduct that con-
stitutes disorderly conduct, including an act conducted
“in such unreasonable manner as to provoke, make or
aid in making a breach of peace.” Id. at § 8-4-010(a); see
also City of Chicago v. Fort, 262 N.E.2d 473, 475 (Ill. 1970).
The disorderly conduct must also be “likely to cause
substantial harm or serious inconvenience, annoyance
or alarm.” Fort, 262 N.E.2d at 474. We recently dis-
cussed thoroughly each component of this last phrase in
Bell. See Bell, No. 11-2408, 2012 WL 3892506. For this
appeal, it is sufficient to note that “annoyance” and
Nos. 10-1974 & 10-2064 17
“alarm” do not provide any further limitation on “disor-
derly conduct.” See Bell, 2012 WL 3892506, at *9
(stating that “alarm” is “conjugate with the term ‘dis-
orderly conduct,’ ” and annoyance may even be less
demanding). This vague language therefore provided
officers with discretion to order dispersal when three
or more persons in the immediate vicinity were
acting disorderly.
Illinois courts have looked to cases interpreting the
similar Illinois disorderly conduct statute when con-
struing the Chicago ordinance. Fort, 262 N.E.2d at 476;
Lester v. City of Chicago, 830 F.2d 706, 714 n.9 (7th Cir.
1987) (“Illinois courts have treated the Chicago ordinance
and the Illinois statutes alike.”). The Illinois disorderly
conduct statute states that “[a] person commits dis-
orderly conduct when he knowingly . . . [d]oes any act
in such unreasonable manner as to alarm or disturb
another and to provoke a breach of the peace . . . .” 720
ILCS 5/26-1(a)(1);3 see also Biddle v. Martin, 992 F.2d 673,
677 (7th Cir. 1993). “Illinois courts have recognized that
‘the types of conduct intended to be included under
[the Illinois disorderly conduct statute] almost defy def-
inition,’ ” Gower v. Vercler, 377 F.3d 661, 669 (7th Cir. 2004)
(quoting People v. Davis, 413 N.E.2d 413, 415 (Ill. 1980)); see
also People v. Albert, 611 N.E.2d 567, 569 (Ill. App. Ct. 1993)
(same), but the statute has nonetheless “received a fairly
3
Other aspects of 720 ILCS 5/26-1 and Section 8-4-010 are not
similar. For example, the Illinois statute doesn’t contain a
failure-to-disperse provision similar to subsection (d) of the
Chicago ordinance.
18 Nos. 10-1974 & 10-2064
well defined gloss,” Sroga v. Weiglen, 649 F.3d 604, 606
(7th Cir. 2011) (quoting United States v. Woodard, 376
F.2d 136, 141 (7th Cir. 1967)); see also People v. Allen,
680 N.E.2d 795, 798 (Ill. App. Ct. 1997).
To commit disorderly conduct, “a person must engage
in conduct that: (1) is unreasonable; (2) alarms or
disturbs another; and (3) threatens to provoke or
provokes a breach of the peace.” Reher, 656 F.3d at 775
(citing 720 ILCS 5/26-1(a)(1)). Illinois courts look to
the reasonableness of the conduct in relation to the sur-
rounding circumstances to determine whether a viola-
tion of the ordinance has occurred. City of Chicago v.
Mateja, 372 N.E.2d 1060, 1062 (Ill. App. Ct. 1978). We have
recently provided a succinct definition for disorderly
conduct, endorsing the definition in Restatement (Second)
of Torts § 116 (1965): “[A] public offense done by
violence, or one causing or likely to cause an immediate
disturbance of public order.” Sroga, 649 F.3d at 607.
“[S]peech alone cannot form the basis for a disorderly
conduct charge.” People v. Rokicki, 718 N.E.2d 333, 339
(Ill. App. Ct. 1999); see also People v. Raby, 240 N.E.2d 595,
598 (Ill. 1968) (stating that “[u]nder no circumstances
would the statute allow persons to be punished merely
for peacefully expressing unpopular views” (quotations
omitted)); see also People v. Justus, 372 N.E.2d 1115, 1118
(Ill. App. Ct. 1978) (“[A]busive language does not
evolve into a crime simply because persons nearby stop,
look and listen.”). “It remains no crime to express an
unpopular view even if the person expressing those
views draws attention to herself or himself or annoys
Nos. 10-1974 & 10-2064 19
others nearby.” Rokicki, 718 N.E.2d at 339. A similar
limitation has been placed on the dispersal ordinance.
See City of Chicago v. Weiss, 281 N.E.2d 310, 315 (Ill. 1972)
(noting narrowing construction when situation presents
heckler’s veto).
The Illinois Supreme Court has upheld disorderly
conduct convictions under varying circumstances.
For example, in Weiss, the court upheld a conviction
where officers gave a lawful order to disperse based
on their reasonable belief that a group of 3,000 demon-
strators, if permitted to move into a densely populated
area in which violence had recently occurred, presented
a serious threat to the peace and safety of the commu-
nity. Id. at 315. The court explained that “[t]here are cir-
cumstances . . . when the first amendment right to as-
semble and demonstrate in a specific place or area must
yield to the compelling interest of the community to main-
tain peace and order.” Id. Defendant Weiss attempted
to march past the police line despite police orders to
disperse. The court rejected Weiss’s argument that he
was completely disassociated from the other marchers.
Id. at 316. The court then found the other elements of
the ordinance met because at the time the defendants
crossed the police line, three or more people in the im-
mediate vicinity were throwing rocks and firecrackers.
Id. at 316-17.
Illinois courts have similarly upheld convictions
under the ordinance when the defendant was in a crowd
where others were throwing objects at officers, City of
Chicago v. Greene, 264 N.E.2d 163, 166 (Ill. 1970); where
20 Nos. 10-1974 & 10-2064
the defendant and other demonstrators crossed a police
line into a prohibited area (the line had been drawn
to protect caulking repairs recently made to a building)
and the defendant disobeyed the officer’s order to step
back, City of Chicago v. Jacobs, 263 N.E.2d 41, 43 (Ill. 1970);
and where defendants, who were sitting on parked cars
that did not belong to them and blocking the entrances
to private establishments, failed to disperse, Fort, 262
N.E.2d at 474-76. We have also said that “the act of block-
ing the free flow of pedestrian or vehicular traffic on
public ways will support a conviction for the offense of
disorderly conduct.” Jones v. Watson, 106 F.3d 774, 779
(7th Cir. 1997) (Illinois law); see also Marcavage v. City of
Chicago, 659 F.3d 626, 632 (7th Cir. 2011) (finding
probable cause under disorderly conduct statute where
protestor obstructed pedestrian traffic along sidewalk).
Lyttle was acquitted of the offense of disorderly
conduct, but the question is not whether he violated
the ordinance, it’s whether an officer at the time could
reasonably believe he was committing an offense. To
require dispersal under subsection (d), officers had to
reasonably believe that three or more persons in the
immediate vicinity were causing disorderly conduct
likely to cause substantial harm or serious incon-
venience, annoyance or alarm. We don’t have to decide
whether officers had probable cause to arrest, however,
because we find that they had arguable probable cause
to order dispersal and arrest Lyttle for his failure to
comply. See Pearson v. Callahan, 555 U.S. 223, 235-36 (2009)
(holding that we do not need to address whether a con-
stitutional right was violated before addressing whether
the right in question was sufficiently well established).
Nos. 10-1974 & 10-2064 21
The parties dispute the extent of disruption caused
by the protestors at the time Officer Killackey gave the
dispersal orders. No threats of violence or civil unrest
occurred. No one was attempting to engage in an
unpermitted march or parade, no one was inciting the
crowd, and by all accounts the demonstration on the
public sidewalk was peaceful. On the other hand, the
videos submitted by the parties show that the crowd
was hindering the flow of pedestrian traffic. The record
reveals that there were more than fifty protestors on
the plaza and sidewalk area, at a busy intersection in
the heart of downtown Chicago. The officers had
legitimate reasons to be concerned with the blockage of
pedestrian and vehicular traffic and the manner in
which the protestors intended to convey their message.
See Cox v. State of Louisiana, 379 U.S. 536, 554 (1965) (ex-
plaining that free speech rights do not give protestors
the right to “address a group at any public place and at
any time[;] . . . [t]he control of travel on the streets is a
clear example of governmental responsibility to insure
this necessary order. . . .”). Our review of the video leads
us to conclude that an officer could have reasonably
(even if mistakenly) perceived the situation as creating
a disturbance within the confines of the ordinance. See
Humphrey, 148 F.3d at 727 (suggesting that the defense
of qualified immunity should provide broad protection
from suit in the context of an arrest for disorderly conduct).
We further find that although it is questionable
whether officers had probable cause to arrest Lyttle, they
are nonetheless entitled to qualified immunity. Lyttle
denies that he pushed any officer or blocked the side-
22 Nos. 10-1974 & 10-2064
walk and at the time he was arrested, there was no in-
dication that other protestors were attempting to
follow him; in fact, most of the protestors had started
dispersing in the other direction, and the sidewalk was
clearing. No city ordinance requires a permit for an
individual to walk down the sidewalk with a protest
sign. Officer Chiczewski and Officer Killacky even
testified that there was nothing illegal about people
walking down Michigan Avenue carrying signs and that
the protestors could disperse in any direction. Cf. Weiss,
281 N.E.2d at 315 (officers could order defendant to
disperse in certain direction when attempting to block a
group of 3,000 demonstrators from marching into a
densely populated area). The officers, however, did not
violate clearly established rights of which a reasonable
person would have known. Officers could reasonably
(again, even if mistakenly) believe that based on
their announcements and conduct in forming a line to
advance the crowd west that protestors were
prohibited from breaking through the police line. In
fact, most protestors at the time obeyed by heading
west. Lyttle was part of the group of protestors ordered
to disperse and Officer Killackey could reasonably
believe that Lyttle heard the dispersal order. Cf. Vodak,
639 F.3d at 746. When Lyttle attempted to cross the
police line, he was told he could not continue and he
responded that he had the right to proceed. A reasonable
officer under this chaotic and fluid situation could have
believed that Lyttle was failing to follow their orders.
Officers did not have to wait for Lyttle to actually break
through the police line.
Nos. 10-1974 & 10-2064 23
At the time of Lyttle’s arrest, the officers were still
trying to manage the crowd; forming a police line
and ordering dispersal toward the permitted location of
the march was the most logical way to accomplish
this goal. Although certain evidence showed that the
CCAWR intended to simply hold a “press conference” at
the corner of Oak and Michigan, based on some of the
flyers and emails circulating, the CPD could be con-
cerned that the protestors intended to turn the
“press conference” and “informational rally” into an
impermissible march, thus, justifying a directional dis-
persal. After the crowd was dispersed, nothing prevented
Lyttle from returning and peacefully protesting down
Michigan Avenue. (In fact, the record suggests that some
protestors did just that.) At the time Lyttle was trying
to cross the police line, the crowd may have been
clearing, but the video still shows congestion at the
corner. Under these circumstances, we cannot find that
it would have been clear to every reasonable officer that
no probable cause existed to arrest Lyttle for dis-
obeying their order. See Ryan v. Cnty. of DuPage, 45 F.3d
1090, 1093 (7th Cir. 1995) (quoting People v. Yocum, 321
N.E.2d 731, 733 (Ill. App. Ct. 1974)) (“Refusal to obey
the lawful order of police may form the basis of a disor-
derly conduct prosecution.”).4
4
Because the defendants haven’t asserted that there was
another basis to arrest Lyttle (for example, obstructing an
officer in the performance of his duties, 720 ILCS 5/31-1(a)), we
don’t address the reasonableness of his arrest on different
grounds. See Fox v. Hayes, 600 F.3d 819, 837 (7th Cir. 2010).
24 Nos. 10-1974 & 10-2064
The existence of arguable probable cause to arrest
Lyttle is an absolute bar to his § 1983 claim for unlawful
arrest and false imprisonment. See Biddle, 992 F.2d at 678;
see also Stokes, 599 F.3d at 626 (Illinois law). In light of our
findings of qualified immunity and (as explained below)
no retaliatory animus, Lyttle’s state law malicious pros-
ecution claim also fails. See Aleman v. Vill. of Hanover
Park, 662 F.3d 897, 907 (7th Cir. 2011) (Illinois law) (mali-
cious prosecution requires “proof not only of lack of
probable cause but also of ‘malice’ ”). Accordingly, we
affirm the district court’s entry of summary judgment on
Lyttle’s false arrest and malicious prosecution claims.
B. Retaliation under First Amendment
Thayer and Lyttle both assert claims of retaliation for
exercising their First Amendment rights. “The law is
settled that as a general matter the First Amendment
prohibits government officials from subjecting an individ-
ual to retaliatory actions . . . for speaking out.” Hartman v.
Moore, 547 U.S. 250, 256 (2006). To make out a prima
facie case on summary judgment, the plaintiffs must
show that: (1) they engaged in activity protected by the
First Amendment; (2) they suffered a deprivation that
would likely deter First Amendment activity; and (3) the
First Amendment activity was at least a motivating
factor in the police officer’s decision. See Kidwell v.
Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012); see also
Greene v. Doruff, 660 F.3d 975, 977-78 (7th Cir. 2011). The
plaintiffs undisputedly engaged in First Amendment
activity and suffered a deprivation as a result of their
Nos. 10-1974 & 10-2064 25
arrests, so the first two elements are met. We focus on
causation.
We recently set forth the standard for analyzing causa-
tion in Greene: a “plaintiff need only show that a viola-
tion of his First Amendment rights was a ‘motivating
factor’ of the harm he’s complaining of”; once he shows
that “the burden shifts to the defendant to show that
the harm would have occurred anyway.” 660 F.3d at 977
(citing Spiegla v. Hall, 371 F.3d 928, 941-43 (7th Cir. 2004));
see also Brown v. Cnty. of Cook, 661 F.3d 333, 335 (7th
Cir. 2011).
We first discuss Thayer. Assuming he made out a
prima facia case, we must decide if taking all the facts
and reasonable inferences in his favor, there can be no
reasonable dispute that Officer Chiczewski would have
arrested him despite any animus toward his protected
First Amendment activity. Once a defendant produces
evidence that the same decision would have been made
in the absence of the protected speech, the burden shifts
back to the plaintiff to demonstrate that the proffered
reason was pretextual and that the real reason was retalia-
tory animus. See Zellner v. Herrick, 639 F.3d 371, 379 (7th
Cir. 2011). “At the summary judgment stage, this means
a plaintiff must produce evidence upon which a rational
finder of fact could infer that the defendant’s proffered
reason is a lie.” Id; see also Massey v. Johnson, 457 F.3d 711,
720 (7th Cir. 2006) (summary judgment appropriate
where court can say without reservation that a rea-
sonable finder of fact would be compelled to credit the
defendant’s non-retaliatory explanation). If retaliation is
26 Nos. 10-1974 & 10-2064
not the but-for cause of the arrest, “the claim fails for
lack of causal connection between unconstitutional
motive and resulting harm, despite proof of some retalia-
tory animus in the official’s mind.” Hartman, 547 U.S. at
260 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287 (1977)). “It may be dishonorable to act
with an unconstitutional motive . . . but action colored
by some degree of bad motive does not amount to a
constitutional tort if that action would have been
taken anyway.” Id.
Thayer does not dispute that Officer Chiczewski had
probable cause for his arrest. Probable cause, if not a
complete bar to Thayer’s First Amendment retaliatory
arrest claim, provides strong evidence that he would have
been arrested regardless of any illegitimate animus. See
Reichle v. Howards, 132 S. Ct. 2088, 2095-97 (2012); see also
Hernandez v. Cook Cnty. Sheriff’s Office, 634 F.3d 906, 915
(7th Cir. 2011) (“[E]vidence of probable cause may act as
highly valuable circumstantial evidence that the com-
plained-of conduct would have occurred even without a
retaliatory motive.”) (quotations omitted). The record
shows that Thayer’s refusal to disperse, not his speech,
was the “but for” cause of his arrest. But even if the
record permitted a competing inference in favor of
Thayer, Officer Chiczewski is entitled to qualified immu-
nity.
The defendants didn’t argue qualified immunity on
appeal as to the plaintiffs’ First Amendment retaliation
claims, but we find it proper to consider this defense
for the same reasons we addressed arguable probable
Nos. 10-1974 & 10-2064 27
cause above. First, the defendants raised the issue below.
Second, the parties’ underlying arguments on appeal
addressing the unresolved issue of whether probable
cause bars First Amendment retaliatory arrests claims is
in essence the basis of our qualified immunity finding.
Third, the defendants raised their qualified immunity
defense on appeal when discussing plaintiffs’ related class-
of-one equal protection claim. As such, the plaintiffs
were aware of the issue and had the opportunity to
make arguments in response. Further, even if we re-
manded, the plaintiffs don’t suggest that the defendants
are precluded from re-asserting qualified immunity as a
defense, see, e.g., Narducci v. Moore, 572 F.3d 313, 325
(7th Cir. 2009), which they no doubt would do in light
of Reichle.
The case law is unsettled on whether probable cause is
a complete bar to First Amendment retaliatory arrest
claims. The Supreme Court has said that it is a bar to
retaliatory prosecution claims. See Hartman, 547 U.S. at
261. We have not resolved the issue, see Hernandez, 634
F.3d at 915 (citing a 2002 case from this circuit), and
other circuits are split, see, e.g., Skoog v. Cnty. of Clackamas,
469 F.3d 1221, 1232 & n.31 (9th Cir. 2006) (setting forth
circuit split). After briefing in this case, the Supreme
Court granted certiorari on the following two questions:
“whether a First Amendment retaliatory arrest claim
may lie despite the presence of probable cause to
support the arrest, and whether clearly established law
at the time of [the plaintiff’s] arrest so held.” Reichle, 132
S. Ct. at 2093. The Court elected to address only the
second, concluding that at the time of the plaintiff’s
28 Nos. 10-1974 & 10-2064
arrest, “it was not clearly established that an arrest sup-
ported by probable cause could violate the First Amend-
ment.” Id.
Based on the Court’s decision in Reichle,
Officer Chiczewski is entitled to qualified immunity.
“Qualified immunity shields government officials from
civil damages liability unless the official violated a statu-
tory or constitutional right that was clearly established
at the time of the challenged conduct.” Id. A clearly
established right is one that is sufficiently clear such
that “every reasonable official would have understood
that what he is doing violates that right.” Id. (internal
quotations and brackets omitted). As the Supreme Court
held in Reichle, the “clearly established” standard is not
met in this case because neither our circuit nor the Su-
preme Court has “recognized a First Amendment right
to be free from a retaliatory arrest that is supported
by probable cause.” Id.
The Supreme Court in Reichle concluded that “[a]l-
though Hartman involved only a retaliatory prosecution,
reasonable officers could have questioned whether the
rule of Hartman also applied to arrests,” and “could have
interpreted Hartman’s rationale to apply to retaliatory
arrests.” Id. at 2095. “Hartman injected uncertainty into
the law governing retaliatory arrests, particularly in
light of Hartman’s rationale and the close relationship
between retaliatory arrest and prosecution claims.” Id. at
2096-97. Although Hartman was issued in 2006 before
the plaintiffs’ arrest, uncertainty pre-dated Hartman. See,
e.g., Hernandez, 634 F.3d at 915 (citing a 2002 case), see also
Nos. 10-1974 & 10-2064 29
Harman, 547 U.S. at 255-56. Accordingly, we find that
Officer Chiczewski is entitled to qualified immunity
and affirm dismissal of Thayer’s retaliatory arrest claim.
Lyttle similarly argues that Officers Killackey and Shields
arrested him in retaliation for exercising his free speech
rights to march down the sidewalk of Michigan Avenue
with an anti-war sign. We found that the officers had
arguable probable cause to arrest Lyttle under subsection
(d) and we see no reason to distinguish Reichle on that
basis. In any event, the record is void of evidence
showing that the officers acted with retaliatory animus
in arresting him. See Baribeau v. City of Minneapolis, 596
F.3d 465, 481 (8th Cir. 2010) (finding no First Amend-
ment retaliation even though officers arrested protestors
under an unreasonable, yet mistaken, belief that they
were violating Minnesota disorderly conduct statute
because the record revealed no retaliatory animus).
Most protestors complied with the dispersal orders
and were not arrested even though they were engaging
in similar speech. It is true that Lyttle was arrested when
attempting to protest down Michigan Avenue, while
shoppers and other non-protestors were not so prohib-
ited. Lyttle, however, was part of the disorderly group
and thus, subject to the dispersal order. See, e.g., Bernini v.
City of St. Paul, 665 F.3d 997, 1003 (8th Cir. 2012), pet. for
cert. filed, 81 U.S.L.W. 3032 (U.S. June 6, 2012) (No. 11-1490)
(generally stating that officers have grounds to arrest if
they “believe all arrested persons [are] part of the unit
observed violating the law.”) (emphasis in original)
(quotations omitted). It was his failure to comply with that
30 Nos. 10-1974 & 10-2064
order, not retaliatory animus, that motivated his arrest. We
therefore affirm the district court’s dismissal of his re-
taliatory arrest claim.
C. Equal Protection Claim
Thayer has also brought a “class-of-one” equal protection
claim. “We have held that class-of-one claims can be
brought based on allegations of the irrational or malicious
application of law enforcement powers.” Geinosky v. City
of Chicago, 675 F.3d 743, 747 (7th Cir. 2012). Even
though Thayer has asserted a violation of his free speech
rights—a fundamental right—we apply the rational
basis test to his claims. The plaintiffs only mention height-
ened scrutiny review in passing, and otherwise, have
limited their class-of-one argument to rational basis
review.5
5
We note that normally unequal treatment on the basis of a
fundamental right triggers heightened scrutiny. See Martin v.
Shawano-Gresham Sch. Dist., 295 F.3d 701, 712 (7th Cir. 2002); see
also Vision Church v. Vill. of Long Grove, 468 F.3d 975, 1000 (7th
Cir. 2006) (“Heightened scrutiny . . . is appropriate when
government action interferes with a person’s fundamental
rights, such as freedom of speech or religion.”). A true class-of-
one case claim, on the other hand, does not implicate funda-
mental rights. See Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887,
911 (7th Cir. 2012) (en banc) (Wood, J., dissenting). At least one
circuit has concluded that heightened scrutiny is inapplicable
where the conduct doesn’t infringe on a class of people’s
(continued...)
Nos. 10-1974 & 10-2064 31
Unfortunately, the class-of-one standard in this circuit
is in flux. Thayer must show that he was intentionally
treated differently from other similarly situated individu-
als and that there was no rational basis for this difference
in treatment. See Vill. of Willowbrook v. Olech, 528 U.S.
562, 564 (2000); see also Woodruff v. Mason, 542 F.3d 545,
554 (7th Cir. 2008). But some of our cases also require a
showing of improper motive (sometimes referred to as
“illegitimate animus”). See Reget v. City of La Crosse, 595
F.3d 691, 695 (7th Cir. 2010); see also Srail v. Vill. of Lisle,
Ill., 588 F.3d 940, 944 (7th Cir. 2009). Our recent attempt
to clarify the standard in Del Marcelle v. Brown Cnty. Corp.,
680 F.3d 887 (7th Cir. 2012) (en banc) resulted in a tie
vote with no controlling opinion. We therefore remain
divided over the appropriate standard for a class-of-
one equal protection claim against law enforcement
personnel.
The plurality opinion in Del Marcelle (with a vote
from five judges), which happens to be the dissent, pro-
posed the following standard: “(1) plaintiff was the
5
(...continued)
fundamental rights. See Scarbrough v. Morgan Cnty. Bd. of Educ.,
470 F.3d 250, 260-61 (6th Cir. 2007) (emphasis added). In other
words, the Sixth Circuit has “decline[d] to extend the funda-
mental rights analysis to classes of one.” Id. at 261; see also
Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 986 (6th
Cir. 2012). The court in that case explained that “[t]o so extend
the fundamental rights analysis would allow the Equal Protec-
tion Clause to render other constitutional provisions super-
fluous.” Scarbrough, 470 F.3d at 261.
32 Nos. 10-1974 & 10-2064
victim of intentional discrimination, (2) at the hands of
a state actor, (3) the state actor lacked a rational basis
for so signaling out the plaintiff, and (4) the plaintiff
has been injured by the intentionally discriminatory
treatment.” Id. at 913 (Wood, J., dissenting).
The “lead” opinion (with a vote from four judges)
proposed the following standard: “that the plaintiff be
required to show that he was the victim of discrimination
intentionally visited on him by state actors who knew
or should have known that they had no justification,
based on their public duties, for signaling him out for
unfavorable treatment—who acted in other words for
personal reasons, with discriminatory intent and effect.” Id.
at 889 (Posner, J., lead opinion) (emphasis omitted). A
“plaintiff must plead and prove both the absence of a
rational basis for the defendant’s action and some
improper personal motive (which need not be
hostility . . .) for the differential treatment.” Id. (emphasis
in original).
We do not need to decide what standard announced
in Del Marcelle is correct because we find that Officer
Chiczewski is entitled to qualified immunity. As we
have already alluded to, this protection gives officers
“breathing room to make reasonable but mistaken judg-
ments, and protects all but the plainly incompetent
or those who knowingly violate the law.” See Messerschmidt
v. Millender, 132 S. Ct. 1235, 1244 (2012) (quotations omit-
ted). We do not define clearly established rights at a
high level of generality but in a “particularized sense
so that the contours of the right are clear to a reasonable
Nos. 10-1974 & 10-2064 33
official.” Reichle, 132 S. Ct. at 2094 (quotations omitted).
We ask whether every reasonable officer would have
understood that what he was doing violates that right.
See Hernandez v. Foster, 657 F.3d 463, 474 (7th Cir. 2011).
Although it is not necessary for the plaintiff to identify
a case directly on point, “existing precedent must have
placed the statutory or constitutional question beyond
debate.” Id.
We initially note that Thayer’s class-of-one equal pro-
tection claim is seemingly a mere rewording of his First
Amendment retaliation claim. Thayer alleges that he was
treated differently than the other speakers at the “press
conference” because of his political activism. It may be
proper to find that the equal protection and First Amend-
ment claims coalesce; thus, requiring that they fall to-
gether. See Vukadinovich v. Bartels, 853 F.2d 1387, 1391-92
(7th Cir. 1988) (dismissing equal protection claim that
constituted “a mere rewording of plaintiff’s First
Amendment-retaliation claim”). For completeness,
though, we address the class-of-one claim separately.
As stated in Del Marcelle, “[q]ualified immunity will . . .
frequently relieve state actors of the burden of litigation
in this area: if discretion is broad and the rules are vague,
it will be difficult to show both a violation of a constitu-
tional right and the clearly established nature of that
right.” 680 F.3d at 915 (Wood, J., dissenting). This is
especially true in cases where an officer uses his
discretion to choose which, among several violators, to
arrest. As the Supreme Court has said:
There are some forms of state action . . . which by their
nature involve discretionary decisionmaking based
34 Nos. 10-1974 & 10-2064
on a vast array of subjective, individualized assess-
ments. In such cases the rule that people should be
‘treated alike, under like circumstances and condi-
tions’ is not violated when one person is treated
differently from others, because treating like indi-
viduals differently is an accepted consequence of
the discretion granted.
Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 603 (2008).
Although Engquist’s holding was confined to the public-
employment context, its reasoning, to some extent,
applies to discretionary law-enforcement decisions. See
Del Marcelle, 680 F.3d at 897 (Posner, J.) & 912 (Wood, J.,
dissenting).
Officer Chiczewski could not target Thayer because of
his speech, but he could target Thayer for his unprotected
conduct—i.e., his role in organizing an assembly that
turned disorderly and subsequent refusal to disperse
when ordered. Officer Chiczewski testified that due to
concerns about the size of the crowd and blockage of
pedestrian and vehicular traffic, he told Thayer not to
assemble at Oak and Michigan. After officers deter-
mined that three or more people were engaged in acts of
disorderly conduct at the corner, they ordered dispersal.
Thayer does not dispute that the officers had probable
cause to do so. An officer, acting pursuant to his public
duties, is given discretion to determine how best to effectu-
ate a lawful order. Officer Chiczewski had a legitimate
police objective in arresting Thayer to more rapidly and
efficiently disperse the disruptive crowd. After
Thayer’s arrest, the crowd began to disperse and Officer
Nos. 10-1974 & 10-2064 35
Chiczewski’s attention was on Thayer, not the other
speakers.
Even considering all the facts in favor of Thayer, we
cannot conclude that every reasonable officer would
have understood that by arresting Thayer, the perceived
“chief” of the group, and not Massey and Jakes that
Officer Chiczewski was violating Thayer’s right to equal
protection. Cf. Geinosky, 675 F.3d at 745 (plaintiff stated
class-of-one claim where defendants allegedly cited
plaintiff for twenty-four bogus parking tickets) and
Hanes v. Zurich, 578 F.3d 491, 492-96 (7th Cir. 2009) (defen-
dants not entitled to qualified immunity where plaintiff
alleged that defendants arrested him eight times on
charges later dropped for no reason other than malicious
intent). Given the uncertainly in the law and the
unique factual situation at issue here, the constitutional
question was not beyond dispute. See, e.g., Lunini v.
Grayeb, 395 F.3d 761, 772 (7th Cir. 2005) (defendants
entitled to qualified immunity where ordinary police
officer could not have known that failure to arrest council-
man would violate equal protection). Rather, a rea-
sonable officer could have believed that arresting Thayer
was the most effective way to gain compliance with
the dispersal order.
D. Constitutionality of Subsection (d)
Lyttle has mounted an attack on the facial validity of
subsection (d) asserting both an overbreadth and vague-
ness challenge and seeking an injunction against its
prospective enforcement. (The district court held that
36 Nos. 10-1974 & 10-2064
Thayer’s facial challenge was barred by res judicata;
Thayer doesn’t appeal that ruling.). In light of our recent
opinion partially invalidating subsection (d), see Bell,
2012 WL 3892506, Lyttle’s claim seeking a declaration
and an injunction in that respect is moot. See, e.g., Eagle
Books, Inc. v. Difanis, 873 F.2d 1040, 1042 (7th Cir. 1989)
(claim moot where state supreme court declared statute
unconstitutional); see also Miller v. Benson, 68 F.3d 163,
165 (7th Cir. 1995) (amendment of statute mooted claim);
Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d
1248, 1257 (10th Cir. 2004) (claim moot where statute
repealed); Longley v. Holahan, 34 F.3d 1366, 1367 (8th
Cir. 1994) (claim moot where statute declared unconstitu-
tional in companion case).
III. Conclusion
We A FFIRM the district court’s entry of summary judg-
ment in favor of the defendants on Lyttle’s false arrest
and malicious prosecution claims, on Lyttle’s and
Thayer’s First Amendment retaliation claims, and on
Thayer’s class-of-one equal protection claim. We D ISMISS
Lyttle’s facial challenge to subsection (d) as moot.
9-18-12