Jose Zurita v. Richard Hyde

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1165
JOSE S URITA, M ARGARET C ARRASCO
and C HRIS B LANKS,
Plaintiffs-Appellees,
v.
R ICHARD H YDE and W ILLIAM B IANG,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 6586—Milton I. Shadur, Judge.
A RGUED JANUARY 7, 2011—D ECIDED D ECEMBER 22, 2011
Before M ANION and W ILLIAMS, Circuit Judges, and
C LEVERT, District Judge.Œ
C LEVERT, District Judge. A towing ordinance of the
City of Waukegan generated several rallies or marches
Œ
The Honorable Charles N. Clevert, Jr., Chief Judge of the
United States Court for the Eastern District of Wisconsin, sitting
by designation.
2 No. 09-1165
in opposition. While dealing with protestors, City officials
barred a citizen from speaking at a city council meeting
and imposed outdoor assembly permit and fee require-
ments. Several individuals then sued the City, its
mayor, and its police chief under 42 U.S.C. § 1983, alleging
violations of their First Amendment rights of free
speech, of assembly, and to petition government for
redress of grievances. Mayor Richard Hyde and Police
Chief William Biang appeal the district court’s denial of
qualified immunity as to the First Amendment claims
of Jose Surita, Margaret Carrasco, and Chris Blanks.
I
In 2002 the City of Waukegan amended its towing
ordinance to allow police to seize and impound vehicles
and to impose a $500 fine on persons driving without a
valid license or proof of insurance (the “Towing Ordi-
nance”). The Towing Ordinance generated protests that
it applied more harshly against minorities.
In early- and mid-2004, Waukegan maintained an
outdoor assembly ordinance establishing procedures for
the permitting of certain outdoor events (the “Assembly
Ordinance”). Written application for a permit had to be
made twenty days in advance of the outdoor event, and
Waukegan had discretion to require the organizer of the
event to pay a cash deposit as a condition of permit
issuance. Waukegan’s police department was responsible
for conducting an investigation and making a report
and recommendation to the city clerk in connection
with events covered by the Assembly Ordinance.
No. 09-1165 3
A. Surita’s Claims against Mayor Hyde
During a large rally on January 18, 2004, at Waukegan’s
Belvidere Mall, Jose Surita criticized Susana Figueroa, the
City’s community liaison officer. Although details of the
encounter are in dispute, the parties agree that Surita
told Figueroa “she should do more to help her people.”
Following the rally, Figueroa reported to Mayor Richard
Hyde that Surita had been very angry, “got in her face,”
and caused her to fear that he would attack her physically.
The Waukegan City Council set aside ten minutes at
the end of each of its bimonthly meetings for “audience
time.” Any member of the public could talk for up to
three minutes, on any subject. The mayor was presiding
officer and chair of the meetings.
At a meeting on January 20, 2004, Mayor Hyde
told Surita, as he stood at the microphone during audience
time, that he would not be allowed to speak until he
apologized to Figueroa. Hyde chastised Surita for his
comments to Figueroa at the Belvidere Mall rally two
days earlier:
All right. Now I want to make one thing clear here
because I was going to talk to this gentleman. . . . The
city employees do what they are asked by the city
ordinances. We have a Community Liaison Officer.
We don’t have an Afro American, we have got a
Hispanic and she works for the City of Waukegan.
Now, Sunday she was severely confronted with lan-
guage right in her face by a male. And, now, any
man that does that to a woman is lower than a rat. So
before I will hear any person of that speaking, you
4 No. 09-1165
will come to see me after the council meeting and
you will go to that lady and you will apologize
because you severely hurt her, her personality and her
feelings. . . . And if that person does not apologize to
her in person to her face, the next time that happens
I will have that person arrested and booked on in-
timidation. And that is legal. That is very legal. I want
to make that known right now because I don’t
think our employees should have to put up with
anything from anybody because they are city em-
ployees. They are doing what they are told to do. And
this Hispanic lady was confronted with a Hispanic
man. And how any man could talk to a woman like
that, I don’t know. If he was talking to another man
like that he’d be decked, right there. So that is all
I have to say about that. Okay. No, I am not going
to listen to you until you get up and you go to . . .
Suzanne—I’m talking to you. Until you go to Suzanne
Figueroa and you apologize to her. Thank you. Okay,
Alderman’s time.
Surita wanted to discuss the Towing Ordinance
during audience time but did not speak at the city council
meeting. Other members of the public addressed the
council at the meeting, some discussing the Towing
Ordinance.
B. Carrasco’s Claims against Police Chief Biang
Margaret Carrasco opposed the Towing Ordinance and
participated in a march on June 28, 2004, to protest it.
Waukegan’s Chief of Police, William Biang, was informed
No. 09-1165 5
that Carrasco intended to conduct a rally on July 6, 2004, in
conjunction with a city council meeting that night. He
was told the upcoming rally would be larger than one
at which protesters seemed hostile to police.
On July 1, 2004, Biang sent an officer to Carrasco’s
house to ask her to attend a meeting that day to discuss
the upcoming rally. Carrasco attended the meeting that
afternoon with Biang, three other police officers, and city
attorney Gretchen Neddenriep. Exactly what was said
at the July 1 meeting is disputed, but the parties agree
that Carrasco said she and others would attend the
city council meeting on July 6.
At the July 1 meeting, Neddenriep handed Carrasco a
copy of the Assembly Ordinance and asked her to
comply with it. A follow-up letter from Neddenriep
the next day stated that Waukegan would waive the re-
quirement that the application be filed in advance but
that Carrasco had to pay a permit fee of $1,500. The fee
was based on the number of extra police officers Biang
determined were needed for the rally (ten officers at $50
per hour for three hours each). Biang was copied on
the letter.
Biang has said that he determined more officers were
needed for the rally because it was a protest as opposed
to a rally in favor of a City ordinance. Out of 530 events
in a five-year period, only two were determined to
require payment of a permit fee, and those were protests
against the Towing Ordinance. The two events triggering
a permit fee were Carrasco’s possible event and another
planned by Chris Blanks, discussed below.
6 No. 09-1165
On July 6, 2004, Carrasco told Biang and Neddenriep
that there would be no event that day, pointing out that
no deposit was required for overflowing city council
meetings. At the July 6 city council meeting Biang reserved
eight or ten seats for Carrasco and her group.
C. Blanks’s Claims against Police Chief Biang
Chris Blanks engaged in numerous protest activities
against the Towing Ordinance, including attending the
Belvidere Mall rally and speaking at city council meetings
in July and August 2004. Biang was aware that Blanks
was an outspoken critic of the Towing Ordinance.
In August 2004, Blanks advertised a rally against the
Towing Ordinance to be held September 4, 2004, in
Bedrosian Park, which was owned by the Waukegan
Park District. The Park District had its own permit
rules, and the Assembly Ordinance did not apply to its
property.
After learning of the planned rally, Biang instructed
his deputy chief, Artis Yancey, to check whether Blanks
had a permit from the Park District and to “handle it.”
Yancey learned that Blanks had no permit and told
Neddenriep.
On September 2, 2004, Neddenriep had a uniformed
police officer deliver a letter to Blanks advising him that
he was violating the Assembly Ordinance because he
had not obtained a permit twenty days in advance. The
letter told Blanks that failure to comply with the
Assembly Ordinance would result in a violation. How-
No. 09-1165 7
ever, the letter did not advise Blanks that the Park
District, rather than Waukegan, owned Bedrosian Park.
Biang and the city prosecutor were copied on the
letter. Blanks was the only person ever advised in
writing in advance of an event that he was violating
the Assembly Ordinance. Moreover, he and Carrasco
were the only persons against whom the Assembly Ordi-
nance was enforced. After receiving the letter Blanks
canceled the September 4 rally.
II
No final judgment was entered by the district court
because the case has not concluded. Generally, federal
appellate courts possess jurisdiction to hear appeals
from final decisions only, see Viilo v. Eyre, 547 F.3d 707,
711 (7th Cir. 2008), and denials of summary judgment
do not qualify as final decisions in most instances, Ortiz v.
Jordan, 131 S. Ct. 884, 891 (2011). However, Hyde and
Biang appeal the denial of qualified immunity. Assertions
of qualified immunity may fall under one of the excep-
tions to final judgment under the collateral order doc-
trine. Id.; Viilo, 547 F.3d at 711. Some pretrial orders
denying qualified immunity are appealable immediately
because review after trial would come too late to
vindicate the right of public officials not to stand trial.
Mitchell v. Forsyth, 472 U.S. 511, 525-27 (1985); Viilo, 547
F.3d at 711. Accordingly, orders denying summary judg-
ment on the basis of qualified immunity are appealable
immediately when the appellate court need not consider
the correctness of the plaintiff’s version of the facts but
8 No. 09-1165
need only determine a question of law. Mitchell, 472 U.S.
at 528; Viilo, 547 F.3d at 711. If the immunity question
cannot be decided without resolving a disputed ques-
tion of fact, we lack jurisdiction over the appeal of that
question. Ortiz, 131 S. Ct. at 891; Hill v. Coppleson, 627
F.3d 601, 605 (7th Cir. 2010).1
We review de novo the district court’s denial of de-
fendants’ motions for summary judgment based on
qualified immunity. Hill, 627 F.3d at 605.
Qualified immunity protects government officials
from liability for civil damages if their actions did not
violate “clearly established statutory or constitutional
1
In some cases, the district court may conclude that even under
the facts presented by the defendant, the defendant’s actions
violated clearly established law and qualified immunity does
not apply. In others, the district court may deny summary
judgment because if the facts are found in the plaintiff’s
favor the defendant is not immune. Mitchell, 472 U.S. at 527.
Here, the district judge granted summary judgment for
plaintiffs Surita and Carrasco, determining that even under
defendants’ version of the facts plaintiffs Surita and Carrasco
had established that their constitutional rights were violated,
thus rejecting those assertions of qualified immunity com-
pletely. However, only the denial of qualified immunity under
the collateral order rule is appealable; the grant of summary
judgment in favor of plaintiffs Surita and Carrasco is not a
final appealable order. As to Blanks’s claims, the judge denied
Biang’s motion for summary judgment based on qualified
immunity but did not grant summary judgment in Blanks’s
favor.
No. 09-1165 9
rights of which a reasonable person would have
known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009);
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It shields an
officer from liability if the officer “reasonably believes
that his or her conduct complies with the law.” Pearson,
555 U.S. at 244. Analysis of an assertion of qualified
immunity involves two familiar questions: (1) whether
a constitutional right was violated using plaintiff’s
version of the facts, and (2) whether that right was
clearly established at the time. Pearson, 555 U.S. at 236;
Viilo, 547 F.3d at 709-10.
To be clearly established a right must be specific to the
relevant factual context of a cited case and not gen-
eralized with respect to the amendment that is the basis
of the claim. Viilo, 547 F.3d at 710. However, a case with
similar facts is not necessarily required; the violation
may be so obvious in light of law existing at the time
that a reasonable person would have known that his
or her conduct was unconstitutional. Brokaw v. Mercer
Cnty., 235 F.3d 1000, 1023 (7th Cir. 2000).
A. Surita’s Claims against Mayor Hyde
The district court characterized Surita’s First Amend-
ment 2 claim as based on two theories: (1) the audience
time portion of the city council meetings was a
2
Although we reference the First Amendment, the pro-
tections of that amendment apply to the states through the
Fourteenth Amendment. See Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 44 (1983).
10 No. 09-1165
designated public forum and Mayor Hyde’s refusal to
allow Surita to speak was a content-based restriction
not narrowly tailored to a compelling governmental
interest, and (2) Hyde retaliated against Surita for the
exercise of his protected speech at the Belvidere Mall
by barring him from speaking at the city council meet-
ing. The district court found in Surita’s favor on the first
theory and did not address the second.
The First Amendment permits government to regulate
use of its property in certain instances depending on
the nature of that property. Traditional public forums
are places with a long history of being devoted to
assembly and debate, such as public streets and parks.
Designated public forums are locations or channels
of communication that the government opens up
for use by the public for expressive activity. Public prop-
erty not open for public communication by tradition or
designation is deemed a nonpublic forum. Ark. Educ.
Television Comm’n v. Forbes, 523 U.S. 666, 677 (1998);
Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473
U.S. 788, 800, 802 (1985); Perry Educ. Ass’n v.
Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46 (1983);
Christian Legal Soc’y v. Walker, 453 F.3d 853, 865 (7th
Cir. 2006).
A designated public forum is created when the gov-
ernment intentionally makes property or a channel
of communication generally open or available to a class
of speakers rather than permitting only selective access
to particular speakers who must obtain permission to
use it. Ark. Educ. Television Comm’n, 523 U.S. at 678-79.
No. 09-1165 11
There is no doubt that audience time during Waukegan
city council meetings constituted a designated public
forum. See, e.g., City of Madison Joint Sch. Dist. No. 8 v. Wis.
Pub. Emp’t Relations Comm’n, 429 U.S. 167, 176 (1976)
(“[W]hen the board sits in public meetings to conduct
public business and hear the views of citizens, it may
not be required to discriminate between speakers on the
basis of . . . their speech.”); Mesa v. White, 197 F.3d 1041,
1044 (10th Cir. 1999) (noting a lack of dispute regarding
whether the public comment period of a county commis-
sion meeting was a designated public forum); White v.
City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990)
(“City Council meetings like Norwalk’s, where the
public is afforded the opportunity to address the
Council, are the focus of highly important individual
and governmental interests. . . . [S]uch meetings, once
opened, have been regarded as public forums, albeit
limited ones.”); Jones v. Heyman, 888 F.2d 1328, 1331
(11th Cir. 1989) (“[T]he city commission designated
their meeting a public forum when the commission in-
tentionally opened it to the public and permitted
public discourse on agenda items.”); see Collinson v.
Gott, 895 F.2d 994, 1000 (4th Cir. 1990) (Phillips, J., concur-
ring) (“Speech at public meetings called by govern-
ment officials for discussion of matters of public concern
is entitled to normal first amendment protections against
general restrictions or ad hoc parliamentary rulings by
presiding officials.”); Musso v. Hourigan, 836 F.2d 736, 742
(2d Cir. 1988) (noting that an open school board meeting
is a place where public speech is usually allowed); cf.
Ark. Educ. Television Comm’n, 523 U.S. at 680 (contrasting
12 No. 09-1165
a nonpublic forum candidate debate with “an open-
microphone format”). Hyde concedes that audience
time during Waukegan city council meetings was a desig-
nated public forum.
Government has only a limited ability to regulate
expressive activity in traditional and designated public
forums. Any content-based exclusion of speech in such
forums is subject to strict scrutiny, meaning that the
government must show the exclusion “is necessary to
serve a compelling state interest and that it is narrowly
drawn to achieve that end.” Perry Educ. Ass’n, 460 U.S.
at 45; accord Ark. Educ. Television Comm’n, 523 U.S. at 677.
Government may enforce reasonable time, place, and
manner restrictions provided they are content neutral,
they are narrowly tailored to serve a significant govern-
ment interest, and ample alternative channels of com-
munication exist. Perry Educ. Ass’n, 460 U.S. at 45.
Hyde argues his bar on Surita’s speech was a
permissible time, place or manner restriction because
he believed Surita had addressed Figueroa threateningly.
However, content neutrality is a basic requirement of
a time, place or manner restriction, and the barring
of Surita’s speech was not content neutral.
Government may not discriminate among speakers.
United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 812
(2000); City of Madison Joint Sch. Dist. No. 8, 429 U.S. at
176; First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 784-
85 (1978) (“In the realm of protected speech, the legislature
is constitutionally disqualified from dictating . . . the
No. 09-1165 13
speakers who may address a public issue.”). “Laws
designed or intended to suppress or restrict the expres-
sion of specific speakers contradict basic First Amend-
ment principles.” Playboy Entm’t Grp., 529 U.S. at 812.
Just as the government may not favor one speaker
over another, Rosenberger v. Rector & Visitors of Univ. of
Va., 515 U.S. 819, 828 (1995), neither may it disfavor
one speaker over another. Although distinctions on the
basis of subject matter and identity regarding access
to nonpublic forums may be inescapable, they are imper-
missible respecting access to traditional or designated
public forums. See Perry Educ. Ass’n, 460 U.S. at 49. “The
government violates the Free Speech Clause of the First
Amendment when it excludes a speaker from a speech
forum the speaker is entitled to enter.” Christian Legal
Soc’y, 453 F.3d at 865.
Hyde barred anything and everything Surita proposed
to say at a public meeting. Because he excluded a
speaker within the class to which the designated public
forum was available his action is subject to strict scrutiny.
Ark. Educ. Television Comm’n, 523 U.S. at 677. Restric-
tions that favor or disfavor certain speech based on the
speaker rather than the content of the message are still
content based. Solantic, LLC v. City of Neptune Beach,
410 F.3d 1250, 1265 (11th Cir. 2005). The content-based
nature of Hyde’s restriction on Surita is highlighted by
Hyde’s demand that Surita apologize regarding state-
ments attributed to him by a city employee. Govern-
ment officials may neither stifle speech because of its
message nor require the utterance of a particular
14 No. 09-1165
message they favor. See Turner Broad. Sys., Inc. v.
FCC, 512 U.S. 622, 641-42 (1994); Solantic, LLC, 410 F.3d
at 1258.
Hyde contends he did not bar Surita from speaking at
a city council meeting because of Surita’s anticipated
objection to Waukegan’s Towing Ordinance—indeed,
that night other speakers criticized the Towing Ordinance
and Figueroa. Instead, Hyde says he barred Surita’s
speech because of how he believed Surita had con-
fronted Figueroa. Thus, he maintains, the bar was
content neutral and permissible.
That others were permitted to speak on the same
subject that Surita was expected to address has
no bearing on whether the restriction on Surita was
content based. The Supreme Court has rejected the argu-
ment that a First Amendment violation requires an in-
tention to suppress certain ideas. See City of Cincinnati
v. Discovery Network, Inc., 507 U.S. 410, 429 (1993).
Actual disagreement with content is not necessary for
finding the regulation of speech to be content based. See
id.; Mesa, 197 F.3d at 1045 n.4. Therefore, whether
Surita wished to speak in protest against the Towing
Ordinance, to congratulate the mayor on a job well
done, or to contend that Waukegan should collect
garbage differently does not alter the analysis. When
Hyde intentionally barred Surita from speaking he
barred the content of Surita’s speech, regardless of
whether he agreed or disagreed with the viewpoint
Surita was going to expound.
No. 09-1165 15
Moreover, even if Hyde’s restriction were content
neutral, no reasonable jury would find a total bar on
Surita’s speech to have been a valid time, place, or
manner restriction. On January 20, 2004, Surita ap-
proached the microphone at the appropriate time, and
no cited evidence suggests that he was planning to
address the city council in an inappropriate manner.
However, Hyde contends that Surita’s prior actions at
the Belvidere Mall were possibly criminal disorderly
conduct; Hyde heard reports that Surita’s conduct
at the mall rally was threatening in manner or content.
Regardless, Surita’s possible disorderly conduct two
days earlier cannot justify a restriction at the city council
meeting. Surita was not barred from speaking at the
city council meeting for disorderly conduct or being
belligerent. He was not barred from speaking because
he had strayed from an announced limited topic, was
being repetitive, or had exceeded his three-minute time
frame. See White, 900 F.2d at 1426 (“A speaker may
disrupt a Council meeting by speaking too long, by
being unduly repetitious, or by extended discussion of
irrelevancies. The meeting is disrupted because the
Council is prevented from accomplishing its business in
a reasonably efficient manner.”). He was barred com-
pletely because of something that had occurred two
days earlier—not at the city council meeting or even
related to it. Hyde’s willingness to permit Surita to
speak if he apologized first undermines any possible
argument that Surita was out-of-line at the city council
meeting; if his manner were disruptive, Hyde could
have barred his speech completely rather than premise
16 No. 09-1165
it upon an apology. Hence, the restriction on Surita was
not a content-neutral time, place or manner restriction;
instead, it was a content-based exclusion that had to
be narrowly tailored to effectuate a compelling govern-
mental interest. On that front, Hyde fails to present
any compelling interest to justify prohibition of Surita’s
speech. He argues that his restriction on Surita’s speech
was justified as a sanction for conduct toward Figueroa.
Penalties for speech protected under the First Amend-
ment are forbidden. Fairley v. Andrews, 578 F.3d 518, 525
(7th Cir. 2009). Viewing the facts in Surita’s favor, his
speech at the Belvidere Mall was not threatening. But
even if Surita threatened Figueroa at the Belvidere
Mall rally as Hyde may have been told, nothing in the
record indicates that Surita’s proposed speech at the
city council meeting would be threatening. Therefore,
Hyde used Surita’s prior speech to prohibit subsequent
protected speech. As the district court pointed out, the
absolute prohibition on Surita’s speech fails the strict-
scrutiny test. Consequently, we conclude that Hyde
violated Surita’s First Amendment rights.
Next we consider whether as of January 20, 2004, a
reasonable person should have known that barring
Surita from speaking during city council audience time
unless he apologized to Figueroa was a constitutional
violation. The answer is “yes.” Playboy Entertainment
Group, City of Madison Joint School District No. 8, Perry
Education Ass’n, Rosenberger, Mesa, and Jones predated
the January 20, 2004, city council meeting. Taken
together, these cases clearly established that the city
No. 09-1165 17
council meeting was a designated public forum, that
barring a speaker from any speech in a traditional
or designated forum constituted a content-based restric-
tion, and that barring Surita from speaking in that desig-
nated public forum because of his alleged actions or
words two days earlier was not a valid time, place,
or manner restriction and thereby constitutionally im-
permissible. The Supreme Court cases described
above set forth the basics of First Amendment forum
analysis and the difference between content-based re-
strictions (including the suppression of a particular
speaker’s words) and content-neutral time, place and
manner restrictions.
Before 2004 several cases applied those standards to
settings of public hearings and meetings of government
bodies. For instance, the Second Circuit found that
under clearly established law as of September 1983,
content-based censorship practiced by a school board
official during a public hearing constituted a First Amend-
ment violation. See Musso, 836 F.2d at 742-44. One concur-
ring judge in Collinson found that by March 1987 an
official would have known that he could not constitu-
tionally evict a person from a public meeting if there
was no reasonable basis for fearing disruption or if his
actual purpose was to prevent expression of the
speaker’s viewpoint. 895 F.2d at 1000 (Phillips, J., con-
curring).
Hyde asserts that many of these cases, dealing
with regulation in the form of legislation, cannot have
informed him that his ad hoc action at a city council
18 No. 09-1165
meeting would violate Surita’s rights. See, e.g., First Nat’l
Bank of Bos., 435 U.S. at 784-85 (discussing restrictions
on acts of the legislature). Yet, in stating that “[i]t is
axiomatic that the government may not regulate speech
based on its substantive content or the message it con-
veys,” Rosenberger, 515 U.S. at 828, the Supreme Court
did not limit its meaning for the word “regulate” solely
to legislation or contrast it against individual acts
of municipal officials. In fact, Rosenberger involved a
University committee’s refusal to pay for printing costs
of a student publication rather than any form of legisla-
tion. Further, the Musso and Jones courts recognized, in
1988 and 1989 respectively, that First Amendment rights
may be violated by ad hoc parliamentary rulings at
public meetings or hearings. See 836 F.2d at 742-44; 888
F.2d at 1331-34. In 1990, the concurring judge in
Collinson stated that under the law as of March 1987
speech at public meetings was entitled to normal
First Amendment protections against ad hoc rulings by
presiding officials. 895 F.2d at 1000. These legal rules
and standards were acknowledged to be clear more
than ten years before Hyde silenced Surita.
Hyde contends that for Surita to avoid his qualified
immunity defense Surita had to prove that he intended
to suppress speech on the basis of its content. This court
discussed in Hansen v. Bennett the importation of the
intent requirement for a First Amendment claim into
the objective qualified immunity standard, finding that
the plaintiff must show that a reasonable person in
the defendant’s position, “ ‘that is, one acting on [defen-
dant’s] information and motivated by [defendant’s] pur-
No. 09-1165 19
pose,’ would have known that ejecting [plaintiff from
a public hearing] violated his clearly established rights.”
948 F.2d 397, 399 n.4 (7th Cir. 1991). Here, Hyde’s
purpose in silencing Surita is apparent from his words
at the city council meeting: he demanded that Surita
apologize to Figueroa before he would be allowed to
speak. A reasonable person in January 2004 would have
known that silencing Surita for that purpose was con-
stitutionally impermissible. Thus, the denial of qualified
immunity on this theory is affirmed.
District Judge Shadur did not address Surita’s retalia-
tion theory, nor did he mention the retaliation case of
Vukadinovich v. Board of School Trustees of North Newton
School Corp., 278 F.3d 693 (7th Cir. 2002), in regard to
Surita’s claim (instead, he did so as to Carrasco’s claim).
Yet, Hyde contends that the district judge used the stan-
dard of Vukadinovich, allowing a claim of retaliation
for exercise of First Amendment rights to move forward
if retaliation was simply one motivating factor of the
defendant, rather than the Fairley standard requiring
that retaliation for exercise of First Amendment rights
be the “but-for” cause of the restriction on speech.
In addressing Carrasco’s retaliation claim, Judge
Shadur used a burden-shifting test from Vukadinovich:
(1) the speech was constitutionally protected (plain-
tiff’s burden); (2) the defendant’s actions were motivated
by the plaintiff’s protected speech (plaintiff’s burden);
and (3) the defendant cannot show he would have
taken the same action in the absence of the plaintiff’s
exercise of First Amendment rights (defendant’s bur-
20 No. 09-1165
den). The judge observed that if Biang met his burden
on the third element, the burden shifted back to Carrasco
to show that the proffered justifications were pretextual.
See Vukadinovich, 278 F.3d at 699. This test required at
step (2) only that the constitutionally protected speech
was a motivating factor.
Hyde and Biang argue that the motivating-factor portion
of the Vukadinovich test has been rejected. In Fairley, 578
F.3d at 525, we wrote that after Gross v. FBL Financial
Services, Inc., 129 S. Ct. 2343 (2009), but-for causation is part
of a plaintiff’s burden in all suits under federal law,
including First Amendment chilling claims, unless the
statute provides otherwise. (The district court decision
in the present case predated Gross and Fairley.) Neverthe-
less, the Fairley court recognized that before trial, if the
record contains evidence from which a reasonable
jury could find such causation, no more is necessary at
that stage, though the instructions at trial must reflect
the holding of Gross. 578 F.3d at 526.
Fairley revived a standard we had used at times. See
Abrams v. Walker, 307 F.3d 650, 655 (7th Cir. 2002) (stating
that a plaintiff cannot prevail without establishing that
the challenged action would not have occurred “but for”
the protected conduct). We disavowed Abrams’s but-for
causation in favor of motivating-factor causation in
June 2004, Spiegla v. Hull, 371 F.3d 928, 941-42 (7th
Cir. 2004), but returned to but-for causation in Fairley
in 2009. Vukadinovich, which predated Abrams, had noted
the motivating-factor standard, 278 F.3d at 699, and
that the plaintiff had to show the challenged action
No. 09-1165 21
would not have occurred but for constitutionally pro-
tected conduct, id. at 700. Hyde’s barring of Surita’s
speech occurred after Vukadinovich and Abrams but
before Spiegla.
Recently, in Greene v. Doruff, 660 F.3d 975 (7th Cir.
2011), we addressed the tension in our cases be-
tween motivating-factor causation and but-for causa-
tion, clarifying that First Amendment cases are
governed not by Gross but by Mt. Healthy City School
District Board of Education v. Doyle, 429 U.S. 274 (1977).
Greene, 660 F.3d at 977. We noted that Spiegla and Fairley
are correct to an extent because the burden of proof
relating to causation is divided between the parties in
First Amendment cases. Id. at 979-80. To meet the prima
facie burden regarding causation in a First Amendment
case, a plaintiff needs to show only that the defendant’s
conduct was a motivating factor, i.e., a “sufficient factor,”
meaning when something present makes something else
bound to happen. Id. at 978-79. The defendant can then
rebut that showing, but only by establishing that his
or her conduct was not a but-for or “necessary condition”
of the harm, i.e., that the harm would have occurred
anyway. Id. at 979.
Thus, Judge Shadur was not wrong in referencing a
burden-shifting test that included a plaintiff’s burden to
show a motivating factor. Moreover, at the summary
judgment stage the burden-shifting test is used to deter-
mine whether a plaintiff makes it to trial. Even as we
stated in Fairley, if evidence exists upon which a rea-
sonable jury could find but-for causation, no more is
22 No. 09-1165
necessary to overcome a defendant’s summary judg-
ment motion.
Here, viewing the facts in Surita’s favor, his speech at
the Belvidere Mall was protected. Hyde argues that he
was not motivated to suppress Surita’s point of view but
only the threatening manner in which Surita’s view was
delivered. However, Hyde’s comments during the city
council meeting indicate that Surita was silenced to
induce him to apologize for the Belvidere Mall speech; by
Hyde’s own words, excluding Surita from speaking was
a reaction to what Surita said at the Belvidere Mall.
Thus, Hyde’s comments at the meeting provide evidence
that the Belvidere Mall speech was the cause (whether
motivating or but-for) that prevented Surita from ex-
pressing his views at the city council meeting.
Even before January 2004 an official’s act taken in
retaliation for the exercise of free speech under the
First Amendment was recognized to violate the Con-
stitution. Vukadinovich and Abrams, decided in 2002,
made clear that Hyde could not retaliate against some-
one for protected First Amendment speech, whether
acting pursuant to a but-for motive or a substantially
motivating one. Hence, a reasonable official in Janu-
ary 2004 would have known he could not retaliate.
B. Carrasco’s Claims Against Police Chief Biang
Carrasco asserts that Biang (1) violated her First Amend-
ment rights by applying the Assembly Ordinance to her
in a discriminatory manner; (2) retaliated against her
No. 09-1165 23
for exercising First Amendment rights; and (3) attempted
to chill her future exercise of First Amendment rights.
Carrasco moved for and was granted summary judgment
on her as-applied claim. Defendants moved for and were
denied summary judgment as to all of Carrasco’s claims.
Biang contends that he did not participate in any uncon-
stitutional conduct because Neddenriep applied the
Assembly Ordinance to Carrasco; he contends he had
no personal involvement. To be liable under § 1983, a
government official must have caused the deprivation of
a constitutional right. He may do so if the deprivation
occurs at his direction or with his consent or if he “sets
in motion a series of events that [he] knew or reasonably
should have known would cause others to deprive
plaintiff of constitutional rights.” Brokaw, 235 F.3d at 1012.
It is undisputed that Biang called a July 1 meeting
with Carrasco concerning a scheduled rally protesting
Waukegan’s Towing Ordinance. He also sent an officer
to Carrasco’s house to ask her to attend the meeting,
where Waukegan’s Assembly Ordinance was discussed.
Viewing the facts in Carrasco’s favor, Biang was di-
rectly involved in discussion of the application of the
Assembly Ordinance. Further, the amount of the deposit
for Carrasco’s anticipated July 6 outdoor rally was deter-
mined based on Biang’s recommendation regarding the
number of police officers he would assign to the event.
Therefore, Biang was personally involved in the actual
application of the Assembly Ordinance to Carrasco.
An as-applied challenge is one that charges an act
is unconstitutional as applied to a plaintiff’s specific
24 No. 09-1165
activities even though it may be capable of valid applica-
tion to others. See Members of City Council v. Taxpayers
for Vincent, 466 U.S. 789, 803 & n.22 (1984).
Parks and streets are traditional public forums.
Cornelius, 473 U.S. at 802; Perry Educ. Ass’n, 460 U.S. at
45. An ordinance requiring a permit and fee before
speech in a traditional public forum is allowed amounts
to a prior restraint on that speech, but the permit and fee
may constitutionally be permitted to regulate competing
uses of the forum. Forsyth Cnty. v. Nationalist Movement,
505 U.S. 123, 130 (1992). Competing rallies at the same
time in the same limited space could reduce the forum’s
availability for free speech or conflict with other uses of
that space. Thomas v. Chi. Park Dist., 227 F.3d 921, 924
(7th Cir. 2000), aff’d, 534 U.S. 316 (2002). Again, reasonable
time, place, and manner restrictions of speech in tradi-
tional public forums are permitted, but they must be
content neutral and narrowly tailored to serve a
significant government interest, and they must allow
ample alternative channels of communication. Id.; see
Perry Educ. Ass’n, 460 U.S. at 45. Restrictions that slip
from neutral time, place, and manner concerns into
concerns about content are never permitted. Police Dep’t
v. Mosley, 408 U.S. 92, 99 (1972).
Forsyth County involved a facial challenge to a county
ordinance that permitted an administrator to vary the
permit fee for an assembly or parade to reflect estimated
administrative expenses and the cost of maintaining
public order. 505 U.S. at 127. The Supreme Court held
the ordinance unconstitutional because it lacked any
No. 09-1165 25
narrow, reasonable, and definite standards to guide the
fee determination: “The decision how much to charge
for police protection or administrative time—or even
whether to charge at all—is left to the whim of the ad-
ministrator. There are no articulated standards either in
the ordinance or in the county’s established practice.” Id.
at 133. Further, the ordinance required the fee to be
content based. To calculate the cost of maintaining
public order, the administrator had to examine the
content of the applicant’s speech, forecast the response of
others to that content, and gauge the number of police
officers needed for the event. Id. at 134.
The Supreme Court ruled that a permitting scheme
for parades or open-air assemblies must meet two re-
quirements: (1) the scheme must not assign overly broad
discretion to a government official, and (2) as with other
time, place, and manner restrictions, the scheme must be
content neutral and narrowly tailored to serve a gov-
ernmental interest, while leaving ample alternatives for
communication. Id. at 130. The Court noted that raising
revenue to cover police services cannot justify a content-
based permit fee, regardless of whether the fee is con-
sidered nominal. Id. at 135-37.
Although Forsyth County involved a facial challenge to
an ordinance, its holding applies here; the problems
noted in Forsyth County are the same problems Carrasco
encountered. The deposit imposed on Carrasco was a
function of the number of officers assigned to the event,
and Biang admitted that he would have assigned fewer
police officers to the July 6, 2004, rally if the event had
been organized in support of the Towing Ordinance.
26 No. 09-1165
Nevertheless, Biang contends his determination was
content neutral because his reasoning would apply to
any protest, not just a protest against the Towing Ordi-
nance.
Forsyth County followed by fifty years the Court’s
decision in Cox v. New Hampshire, 312 U.S. 569 (1941). At
issue in Cox was a New Hampshire statute that required
an applicant for a parade or open-air meeting license
to pay up to $300 per day for use of city property. Id. at
571 n.1. State courts determined that the fee offset
expenses for maintaining public order during the event.
Id. at 577. The Court held the fee constitutional, finding
no basis for denying “local governments that flexibility
of adjustment of fees which in the light of varying condi-
tions would tend to conserve rather than impair the
liberty sought.” Id. Hence, Biang argues that under
Cox, Waukegan may impose a fee determined by the
anticipated expense of maintaining public safety.
After Forsyth County, the viability of the fee discussion
in Cox is limited. 729, Inc. v. Kenton Cnty. Fiscal Court, 515
F.3d 485, 502 (6th Cir. 2008). Forsyth County rejected a
party’s reference to Cox because no evidence indicated
that the New Hampshire statute granted unbridled dis-
cretion to the licensing authority. 505 U.S. at 133 n.11.
Further, although Cox stated that a flexible fee to cover
expenses may be permissible, Forsyth County makes
clear that predicating a flexible fee on content is not
permissible. See 729, Inc., 515 F.3d at 502-03. Although
a government’s concern over the burden of open-air
assemblies on public resources may be legitimate, a cost-
based fee may not rest on content. Church of Am. Knights
No. 09-1165 27
of Ku Klux Klan v. City of Gary, 334 F.3d 676, 682 (7th
Cir. 2003). The government cannot impose financial
burdens on speakers based on the content of their
speech. Rosenberger, 515 U.S. at 828.
Biang contends that Forsyth County applies only to the
“heckler’s veto” scenario—when counter-protesters are
expected to cause trouble. But his reasoning is too narrow;
Forsyth County applies to any ordinance that allows
determination of an event permit fee grounded on
content, even if pegged to anticipated administrative
expense or the cost of maintaining public order. Justice
Blackmun did not limit the scope of the Court’s decision
to the heckler’s veto scenario. Instead, he stated broadly
that the Court was addressing whether the right to free
speech was violated by an assembly ordinance that al-
lowed a government official power to vary the fee ac-
cording to the estimated cost of maintaining public
order. 505 U.S. at 124.
Here, the undisputed facts show that Carrasco was
asked to pay a deposit calculated on the number of
officers Biang thought necessary for the contemplated
July 6 rally. Biang testified that he took into account that
the event was a protest rally. Had the rally been in
support of Waukegan’s Towing Ordinance, he would
have assigned fewer officers. Thus, Biang’s applica-
tion of the Assembly Ordinance fee to Carrasco was
impermissibly content based. Raising revenue to cover
police services cannot justify a content-based permit fee.
Biang maintains that he did not consider Carrasco’s
particular viewpoint. However, because he expected
28 No. 09-1165
protesters to be angry he concluded that a hostile protest
would require more officers. But deciding whether a
person is speaking in protest or support of a law always
involves consideration of viewpoint, and viewpoint
discrimination is “an egregious form of content discrim-
ination,” Rosenberger, 515 U.S. at 829.
Biang further contends that a municipality must be
allowed to vary the number of officers it assigns to
events. But assigning officers was not the constitutional
violation. Nothing in the present discussion or caselaw
suggests that police are not permitted to staff events
according to the circumstances. The problem is in
issuing permits and charging fees based on the content
of the speech at the events; Biang’s violation was his
involvement in imposing a cash deposit or fee based on
the content of Carrasco’s speech.
After Forsyth County was decided in 1992, a rea-
sonable official was on notice of the clearly established
law regarding impermissible, content-based permitting
fees. Further, Brokaw summarized in 2000 the law re-
garding an official’s participation in a constitutional
violation. Thus, by July 2004, a reasonable official
should have known that applying the Assembly
Ordinance and charging Carrasco a fee based on her
protest viewpoint was constitutionally impermissible.
Carrasco claims that Biang applied the Assembly Ordi-
nance to her in retaliation for her prior protests of the
Towing Ordinance and to chill her future speech. Retalia-
tion claims and chilling claims are related in that the
Constitution protects citizens from penalties that follow
No. 09-1165 29
protected speech (retaliation) and threats of penalties
for future protected speech (chilling). Fairley, 578 F.3d
at 525.
For the retaliation claim, the district judge used the
burden-shifting test from Vukadinovich described
above: (1) the speech was constitutionally protected
(Carrasco’s burden); (2) Biang’s actions were motivated
by Carrasco’s protected speech (Carrasco’s burden); and
(3) Biang cannot show he would have taken the same
action in the absence of Carrasco’s exercise of her First
Amendment rights (Biang’s burden). The judge was
mindful that if Biang met his burden on the third
element, the burden shifted back to Carrasco to
establish that the proffered justifications were pre-
textual. This test required at step (2) only that the con-
stitutionally protected speech was a motivating factor.
Biang’s argument that the Vukadinovich test was re-
jected in Fairley was addressed above.
Here, the first element of the retaliation claim is undis-
puted—Carrasco’s June 28 speech was protected. Re-
garding motivation, sufficient evidence establishes an
issue of fact, whether under a but-for or motivating-
factor causation standard. Biang knew of Carrasco’s
protected speech at the June 28 march and was told
she was planning a larger rally. Just three days after
Carrasco’s protected speech Biang sent an officer to
Carrasco’s house and called her in for a meeting at which
30 No. 09-1165
the Assembly Ordinance was applied. 3 The temporal
proximity between the protected speech and application
of the Assembly Ordinance suggests (while it may not
establish) a retaliatory connection, but there is more. 4 This
application of the Assembly Ordinance to Carrasco was,
as the district judge put it, “completely out of the ordi-
nary.” Prior to July 1, 2004, the Assembly Ordinance
had been applied to no one, even though it could have
been applied to applicants for 500 earlier events. Yet,
after Carrasco exercised her right to free speech on June 28,
the Assembly Ordinance was applied to her next
planned rally. Biang offers his reactions to other protest
activity by Carrasco as evidence that he did not inten-
tionally retaliate against her. For instance, he saved seats
for Carrasco and her group at the July 6 city council
3
Biang at times argues as if the July 1, 2004, meeting alone
was his allegedly unconstitutional conduct. The July 1 meeting
was not the problem; the application of the Assembly
Ordinance at and after the meeting was.
4
According to Biang, the district court erred in relying on
temporal proximity, citing Sauzek v. Exxon Coal USA, Inc., 202
F.3d 913, 918 (7th Cir. 2000). Although we have stated several
times that suspicious timing alone does not support a
reasonable inference of retaliation, the district court was not
wrong to consider it in combination with other evidence. See
id. (noting that “other circumstances must also be present”); see
also Greene, 660 F.3d at 980 (stating that timing of a conduct
report plus the threadbare nature of the report were sufficient
to create a triable issue as to whether the report was issued
in retaliation).
No. 09-1165 31
meeting and at Carrasco’s request he appeared at other
events. But other conduct that comports with the Con-
stitution does not excuse conduct that violates it.
Whether Biang would have taken the same action
absent Carrasco’s protest on June 28 is a question of fact.
Biang may have had safety concerns about a large rally
protesting the Towing Ordinance, but the unprecedented
application of the Assembly Ordinance to Carrasco
three days after her protected speech cannot be ignored.
A reasonable jury could find in Carrasco’s favor on
this point.
Nevertheless, Biang would enjoy qualified immunity as
to this claim if applicable law was not clearly established
as of July 1, 2004. However, by then it was clear that
Biang could not retaliate against a person for protected
First Amendment speech. For these reasons, determina-
tion of Biang’s qualified immunity defense must await
presentation of the facts at trial.
Finally, we turn to Carrasco’s chilling claim. The
First Amendment prohibits threats of punishment de-
signed to discourage future protected speech. Fairley,
578 F.3d at 525. We apply an objective test: whether the
alleged conduct by the defendants would likely deter
a person of ordinary firmness from continuing to en-
gage in protected activity. Id.; see Garcia v. City of
Trenton, 348 F.3d 726, 728-29 (8th Cir. 2003). Again,
Carrasco must show that her potential speech was at
least a motivating cause of Biang’s threat of punishment.
See Greene, 660 F.3d at 978-79; Fairley, 578 F.3d at 525-26.
Would a person of ordinary firmness be deterred from
32 No. 09-1165
holding a rally if called to a meeting by a uniformed officer
and told by the police chief and city attorney that the
never-used Assembly Ordinance would be enforced, a
$1500 permit fee had to be paid, and failure to comply
with the Assembly Ordinance would result in a violation
of law and denial of future permit applications? Taking
the facts in Carrasco’s favor, especially in light of the
selective nature of the Assembly Ordinance’s application,
a reasonable jury could answer “yes.” Further, a reasonable
jury could find that prohibiting Carrasco’s speech was the
motivating, or even but-for, cause of Biang’s threats. At
trial, Biang could contend that he was truly concerned
about police expense, but the selective nature of the
application of the ordinance suggests the contrary.
Biang contends that Carrasco’s speech was not
actually chilled. Moreover, chilling claims require dam-
ages. Fairley, 578 F.3d at 526. Here, there appears to be
evidence that Carrasco was not planning a rally on July 6,
and that she was able to protest the Towing Ordinance
in other ways. But whether she was planning a rally on
July 6 and chose not to proceed with it due to the threat-
ened permit fee is a question of fact, as is whether she
altered her means of protesting after learning that the
Assembly Ordinance would apply to her protests.
Notably, Neddenriep’s letter warned that advance
notice would not be waived for future permit applica-
tions. Perhaps, as a result, Carrasco foreswore future
outdoor assemblies because of the threat. “The effect on
freedom of speech may be small, but since there is no
justification for harassing people for exercising their
No. 09-1165 33
constitutional rights it need not be great in order to be
actionable.” Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982).
Regarding qualified immunity, Biang was on notice
before July 2004 that prior restraints on speech are prohib-
ited. While Fairley, in 2009, discussed confusion in use
of the word “retaliation” to describe penalties for past
speech (retaliation) and threats to deter future speech
(chilling), prior restraints have been recognized
for many years as forbidden and “quintessential first-
amendment violation[s].” See Fairley, 578 F.3d at 525
(citing Supreme Court cases from 1976, 1975, and 1919).
C. Blanks’s Claims Against Police Chief Biang
Like Carrasco, Blanks raises (1) an as-applied claim
regarding use of the Assembly Ordinance; (2) a retaliation
claim; and (3) a chilling claim. His assertions stem from
his planned September 4, 2004, protest at Bedrosian Park.
In a response similar to that regarding Carrasco’s claim,
Biang contends that he did not participate in any uncon-
stitutional conduct because Neddenriep applied the
Assembly Ordinance to Blanks, not he; according to
Biang, he had no personal involvement. On this point,
Biang succeeds.
Blanks contends that Biang did not adequately raise
qualified immunity and the district court addressed
qualified immunity only as to Blanks’s retaliation and
chilling claims. Qualified immunity pertaining to
Blanks’s claims first surfaced in Biang’s reply brief on
summary judgment. Moreover, it was fleeting—just one
34 No. 09-1165
sentence accusing Blanks of failing to produce evidence
of Biang’s intent to retaliate or chill speech. However,
Biang’s failure to discuss qualified immunity respecting
Blanks’s as-applied claim appears due to Blanks’s failure
to clarify that he was bringing such a claim. The Third
Amended Complaint named only Waukegan and clerk
Wayne Motley as defendants for Blanks’s as-applied
claim. Biang was named only in regard to the retaliation
and chilling claims.
The district court addressed the qualified immunity
issue, though briefly, and did not limit qualified
immunity to the retaliation and chilling claims. Instead,
Judge Shadur discussed qualified immunity as to Biang’s
overall liability. Hence, we will not find the qualified
immunity issue waived when the district court did not.
Biang’s involvement in the application of the Assembly
Ordinance to Blanks was insufficient to support § 1983
liability. He may have told Yancey to handle the matter
and check with Neddenriep about whether the Assembly
Ordinance applied to a rally in Bedrosian Park, but
that was not enough to find that Biang participated in
applying the Assembly Ordinance to Blanks. Biang did
not attend a meeting with Blanks during which applica-
tion of the Assembly Ordinance to the September 4 event
was discussed nor did he participate in determining
any permit fee. Neddenriep, not Biang, applied the As-
sembly Ordinance. Moreover, Biang merely received a
copy of the letter Neddenriep sent to Blanks, which no
reasonable jury could conclude is proof of personal in-
volvement. The record includes nothing showing that
No. 09-1165 35
Biang knew or reasonably should have known that
Neddenriep would deprive Blanks of his constitutional
rights.
The district judge thought Biang’s instruction to
Yancey to handle the matter was enough of a causal
connection or affirmative link, but we disagree. Thus,
summary judgment against Blanks is warranted on the
first element of the qualified immunity defense. Further,
under the law as of 2004 regarding personal involve-
ment, which required direction or setting an event in
motion, see Brokaw, 235 F.3d at 1012, a reasonable official
in Biang’s position would not have known that his di-
rection to Yancey and failure to act upon receipt of
Neddenriep’s letter would have violated the Constitution.
III
For the above-discussed reasons, we A FFIRM the denial
of qualified immunity regarding the claims of Surita and
Carrasco, R EVERSE the denial of qualified immunity as
to Blanks’s claims, and R EMAND the case for further
proceedings consistent with this opinion.
36 No. 09-1165
M ANION, Circuit Judge, concurring in part, dissenting in
part. I concur with the court’s conclusion that qualified
immunity should be denied to Mayor Hyde on plaintiff
Surita’s claim, and that qualified immunity should be
accorded to Police Chief Biang on plaintiff Blanks’s
claim. But I disagree with the court’s conclusion that
Biang was “personally involved in the application of the
Assembly Ordinance” against plaintiff Carrasco. (Opinion
at 23.) The record evidence does not support this con-
clusion. Because there is no evidence that Biang was
personally involved in the violation of Carrasco’s con-
stitutional rights, he is entitled to qualified immunity.
Therefore, I concur in part and dissent in part.
As the court notes, Carrasco advanced three free-
speech claims against Police Chief Biang: (1) that Biang
applied the Assembly Ordinance in a discriminatory
fashion; (2) that Biang applied the Assembly Ordinance
in retaliation against Carrasco; and (3) that Biang
applied the Assembly Ordinance to chill Carrasco’s
future speech. (Opinion at 22-23.) The common thread that
runs through these claims is Biang’s alleged improper
application of the Assembly Ordinance against Carrasco.
If so, it is Biang’s application of the Assembly Ordinance
that allegedly caused a violation of Carrasco’s constitu-
tional rights.
When determining qualified immunity in this
instance, we need to examine whether Biang actually
caused a violation of Carrasco’s constitutional rights.
Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009). As the
court correctly states, “[a]n official causes a constitu-
No. 09-1165 37
tional violation if he sets in motion a series of events
that [he] knew or reasonably should have known
would cause others to deprive plaintiff of constitutional
rights.” Brokaw v. Mercer Cnty., 235 F.3d 1000, 1012 (7th
Cir. 2000) (citation omitted). The court concludes that
Biang caused a violation of Carrasco’s constitutional
rights by organizing a meeting with city attorney
Gretchen Neddenriep, by sending a deputy to Carrasco’s
house to ask her to attend that meeting, and by calculating
the number of officers that would be needed to patrol
Carrasco’s planned protest. (Opinion at 23.) This limited
recitation of the facts leads the court to an erroneous
conclusion.
Biang did initiate a meeting with Carrasco after he
received word that Carrasco was planning a protest rally
outside city hall that would coincide with a city council
meeting. And a uniformed police officer did show up at
Carrasco’s door to invite her to come to the meeting—but
only after a call to Carrasco’s home had gone unanswered.
As for the purpose of the meeting, the record also
clearly shows that Biang’s aim was “[t]o establish ground
rules for where people were going to be [during the
protest].” Aware that there were likely “First Amendment
issues” surrounding the city’s response to Carrasco’s
protest, Biang also invited Neddenriep so that she could
cover any legal issues. Biang averred that, at the time
he called for the meeting, he was not aware of any en-
forcement action that might be taken against Carrasco for
not complying with the Assembly Ordinance. At the
meeting, it is undisputed that Neddenriep provided
38 No. 09-1165
Carrasco with a copy of the Assembly Ordinance and
went through the permitting and fee requirements.
Indeed, Carrasco herself stated that Neddenriep did
most of the talking during the meeting and that Biang’s
comments were limited to logistics and public safety
concerns. This testimony corroborates Biang’s contention
that it was Neddenriep, not the police department,
who decided to apply the Assembly Ordinance.
With this additional factual background, it is apparent
that Neddenriep, not Biang, set in motion a series of
events that she knew or reasonably should have known
would cause others to deprive Carrasco of her constitu-
tional rights. The undisputed evidence demonstrates
that Biang called the meeting out of a concern for
public safety, and that Biang’s estimate of the number of
police officers who were needed to patrol the protest
was likewise made out of a concern for public safety.1
Moreover, Biang summoned Carrasco to the meeting
with a uniformed officer only after the police had at-
tempted to contact Carrasco via telephone. Most con-
vincingly, Biang’s unopposed testimony shows that he
1
The court acknowledges that varying the number of officers
assigned to different events does not violate the Constitution.
(Opinion at 28.) The court concludes that Biang’s violation
was in calculating the permitting fees. But it is undisputed
that Neddenriep, not Biang, provided Carrasco with the total
fee amount. Therefore, by the court’s own reasoning, Biang
did not effect a constitutional violation by giving Neddenriep
an estimate of the number of police officers needed to patrol
the protest.
No. 09-1165 39
had no idea that Neddenriep would seek to impose the
Assembly Ordinance’s requirements on Carrasco.
Additionally, the court emphasizes the fact that, before
the meeting with Carrasco, the Assembly Ordinance had
never been applied despite the fact that more than 500
applications had been filed previously. (Opinion at 30.)
But this fact actually cuts in favor of Biang. Indeed,
because the city had never applied the Assembly Ordi-
nance, Biang could not have known—nor could he have
reasonably foreseen—at the time he called the meeting
that Neddenriep would apply the Assembly Ordinance
to Carrasco.
That said, for whatever reason, Carrasco did not
name Neddenriep as a defendant. The uncontroverted
testimony in this case points to Neddenriep as the
official responsible for applying the Assembly Ordinance
against Carrasco. Because no reasonable fact finder
could conclude that Biang did anything that he knew or
should have known would result in a violation of
Carrasco’s constitutional rights, I would reverse the
district court and hold that qualified immunity
applies to Carrasco’s claims against Biang. Accordingly,
I dissent.
12-22-11