Goldhamer v. Nagode

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2332

D ON G OLDHAMER and R OBIN S HIRMER,

Plaintiffs-Appellees,

v.

A LFRED N AGODE, et al.,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07 C 5286—John F. Grady, Judge.

A RGUED A PRIL 1, 2010—D ECIDED S EPTEMBER 2, 2010

Before E ASTERBROOK, Chief Judge, and B AUER and

H AMILTON, Circuit Judges.

H AMILTON, Circuit Judge. The City of Chicago has

enacted an ordinance prohibiting disorderly conduct.

One controversial portion of that ordinance makes it a

crime for a person to fail to disperse from a group when

ordered to do so by a police officer while others are

engaging in disorderly conduct nearby: “A person com-

2 No. 09-2332

mits disorderly conduct when he knowingly . . . (d) Fails

to obey a lawful order of dispersal by a person known

by him to be a peace officer under circumstances where

three or more persons are committing acts of disorderly

conduct in the immediate vicinity, which acts are likely

to cause substantial harm or serious inconvenience,

annoyance or alarm . . . .” Chicago Municipal Code

§ 8-4-010(d). This provision has obvious uses in con-

trolling unruly and potentially dangerous crowds. Yet it

also lends itself to overly broad application that can

interfere with core First Amendment rights of free

speech and assembly. The “three or more persons . . .

committing acts of disorderly conduct” could be reacting

to (or even attempting to disrupt) the speech of the

person arrested for a failure to disperse, so this provision

can be applied to impose what amounts to an uncon-

stitutional “heckler’s veto” of protected speech. See, e.g.,

Forsyth County v. Nationalist Movement, 505 U.S. 123, 134

(1992) (“Listeners’ reaction to speech is not a content-

neutral basis for regulation.”).

In this case, the district court permanently enjoined the

city from enforcing the failure-to-disperse provision of

section 8-4-010(d), reasoning that it imposes too great a

burden on protected free speech and is unconstitu-

tionally vague. The city has appealed. We do not address

this provision’s constitutionality because we conclude

that the plaintiffs lack standing to challenge its facial

validity. When these plaintiffs were arrested, according

to this record, they were not even arguably violating the

failure-to-disperse provision. Nor have they shown a

reasonable prospect of future arrest for again violating

No. 09-2332 3

that same provision. We recognize that the plaintiffs

were arrested for supposedly violating this provision, but

the grounds for the arrest were apparently specious.

Plaintiffs have ample other remedies available to redress

any injury they may have suffered from their arrests,

but they do not have standing to challenge the facial

validity of the law that was misapplied to them.

The Plaintiffs and Their Arrest: In the summer of

2006, plaintiffs Don Goldhamer and Robin Schirmer

participated in a peaceful demonstration near a military

recruiting booth at the annual Taste of Chicago

Festival in downtown Chicago. Plaintiffs and others

who opposed military recruitment began handing out

flyers and speaking to people near the recruiting booth.

Defendant Alfred Nagode, a lieutenant with the Chicago

Police Department, and several uniformed patrol officers

formed a line between the protestors and the military

recruiting booth. Lieutenant Nagode then ordered the

protestors to go to a designated protest zone. After some

protestors failed to relocate in response to his order,

Lieutenant Nagode ordered them to disperse. The plain-

tiffs apparently failed to heed this order. Both were

arrested, transported to a police station, and charged

with disorderly conduct for violating section 8-4-010(d).

There is no evidence in this record, however, that

plaintiffs or any other people in the immediate vicinity

were engaged in conduct recognizable as “disorderly

conduct” under the ordinance. See City of Chicago v.

Fort, 262 N.E.2d 473, 475 (Ill. 1970) (construing “disorderly

conduct” to mean an act conducted “in such unreasonable

4 No. 09-2332

manner as to provoke, make or aid in making a breach

of peace”). Genuine disorderly conduct by at least three

persons in the immediate vicinity is an essential founda-

tion for an order to disperse that is itself a prerequisite

for an arrest under section 8-4-010(d).

The plaintiffs appeared in state court on the charges

against them on several occasions. The state apparently

was never prepared to follow through on the prosecution

of these arrests. At their final court appearance, the

court denied the prosecution’s motion for a continuance

and dismissed the charges.

Litigation in the District Court: Plaintiffs Goldhamer

and Shirmer then filed this suit under 42 U.S.C. § 1983

alleging violations of their rights under the First, Fourth,

and Fourteenth Amendments of the Constitution and

under state law. Plaintiffs alleged in part that section 8-4-

010(d) was invalid as applied to their protest activities,

and that this provision was facially invalid under the

First Amendment and was unconstitutionally vague. In

support of their request for an injunction against this

provision’s enforcement, the plaintiffs stated that they

“plan to continue their participation in constitutionally

protected political activities and protests and . . . fear

repeated disruption of these activities and protests and

prosecution for them.” Plaintiffs did not allege that they

had been threatened with future arrest or prosecution

for those activities.

The district court directed the parties to submit cross-

motions for summary judgment on the facial validity

of the failure-to-disperse provision. The district court

No. 09-2332 5

granted summary judgment for the plaintiffs, determining

that the failure-to-disperse provision of the ordinance

is facially invalid under the First Amendment and uncon-

stitutionally vague. Goldhamer v. Nagode, 611 F. Supp. 2d

784 (N.D. Ill. 2009). In a separate order, the court issued

a permanent injunction prohibiting the city from en-

forcing section 8-4-010(d).

Appellate Jurisdiction: The district court’s orders did

not resolve all claims pending before it. Although

the plaintiffs later dismissed many of their remaining

claims with prejudice pursuant to a settlement, the dis-

missal did not resolve plaintiffs’ claim for damages

under the count alleging that the failure-to-disperse

provision is unconstitutionally vague. Nevertheless,

pursuant to 28 U.S.C. § 1292(a)(1), we have jurisdiction

to consider this appeal from the grant of permanent

injunctive relief. See Jones-El v. Berge, 374 F.3d 541, 543-44

(7th Cir. 2004). Because the district court’s grant of sum-

mary judgment was “inextricably bound” to the injunc-

tion, we have limited jurisdiction to review that grant

of summary judgment as well, to the extent necessary.

See Coronado v. Valleyview Public School Dist. 365-U, 537

F.3d 791, 795 (7th Cir. 2008); Shaffer v. Globe Protection,

Inc., 721 F.2d 1121, 1124 (7th Cir. 1983) (noting the great

caution with which jurisdiction under § 1292(a)(1) is to

be exercised).

Standing to Seek Injunctive Relief: We may not con-

sider the facial validity of the failure-to-disperse pro-

vision unless the plaintiffs had standing to request

the injunctive relief. Article III of the United States Con-

6 No. 09-2332

stitution limits the jurisdiction of the federal courts to

actual “Cases” and “Controversies.” Unless a case or

controversy is presented, no federal court has the juris-

diction to decide whether a federal, state, or local law is

constitutional. Golden v. Zwickler, 394 U.S. 103, 110 (1969),

quoting Liverpool, N.Y. & P.S.S. Co. v. Commissioners, 113

U.S. 33, 39 (1885). Because standing is “an essential and

unchanging part of the case-or-controversy requirement

of Article III,” Lujan v. Defenders of Wildlife, 504 U.S.

555, 560 (1992), we must consider this jurisdictional

issue even though the parties have not raised it. E.g.,

Mainstreet Org. of Realtors v. Calumet City, 505 F.3d 742,

747 (7th Cir. 2007).

We have no doubt that plaintiffs had standing to

pursue their claims for damages based on what may well

have been unlawful arrests that also interfered with

expression protected by the First Amendment. Plaintiffs’

standing on those claims, however, does not necessarily

carry over to their facial challenge requesting an injunc-

tion against any enforcement of the failure-to-disperse

provision. A plaintiff “must demonstrate standing sepa-

rately for each form of relief sought.” Friends of the

Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167,

185 (2000); accord City of Los Angeles v. Lyons, 461 U.S. 95,

109 (1983) (plaintiff had standing to seek damages but

not injunctive relief against abusive police practices). The

only slice of this case before us is plaintiffs’ request

for prospective relief—an injunction against enforcement

of the failure-to-disperse provision. To establish their

standing to seek that relief, the plaintiffs must show

that: (1) they are under threat of an actual and imminent

No. 09-2332 7

injury in fact; (2) there is a causal relation between that

injury and the conduct to be enjoined; and (3) it is likely,

rather than speculative or hypothetical, that a favorable

judicial decision will prevent or redress that injury.

Summers v. Earth Island Institute, 129 S. Ct. 1142, 1149

(2009); Lujan, 504 U.S. at 560-61; Sierra Club v. Franklin

County Power of Illinois, LLC, 546 F.3d 918, 925 (7th Cir.

2008).

The clearest path to resolution of this case focuses on

the third element, the likelihood that the injunction will

actually prevent an injury that these plaintiffs reasonably

fear they will suffer. This element is missing here

because the failure-to-disperse provision clearly did not

apply to the plaintiffs’ actions, actions that we assume

they would like to repeat in the future but for their

stated fear of prosecution. No allegations or facts in the

record indicate that three or more individuals were

committing acts of disorderly conduct in the plaintiffs’

immediate vicinity. Their arrests appear to have been

baseless, and for that reason, the district court’s injunc-

tion against enforcement of the provision is unlikely to

prevent any injury to these plaintiffs.

The fact that these plaintiffs were actually arrested and

prosecuted for violating the failure-to-disperse provi-

sion does not by itself show the plaintiffs’ standing to

seek injunctive relief. We assume that plaintiffs intend, as

they say, to continue to participate in demonstrations

and other expressions protected by the First Amend-

ment. We understand that they may be worried about a

possible repeat of the events of the 2006 Taste of Chicago

8 No. 09-2332

Festival. And we recognize that the failure-to-disperse

provision can be misused to impose a heckler’s veto or

otherwise to suppress speech and expressive conduct

protected by the First Amendment. The relevant ques-

tion for our purposes, though, is whether these plain-

tiffs have sufficient reason to fear such arrest and pros-

ecution as to justify a federal judicial decision on the

facial validity of the law.

We conclude that the answer is no. As a general rule,

the fact that a person was previously prosecuted for

violating a law is insufficient by itself to establish that

person’s standing to request injunctive relief. See Steel Co.

v. Citizens for a Better Environment, 523 U.S. 83, 108 (1998)

(stating that standing to request injunctive relief is

lacking when only past harm is alleged); O’Shea v.

Littleton, 414 U.S. 488, 495-96 (1974) (“Past exposure to

illegal conduct does not in itself show a present case

or controversy regarding injunctive relief, however, if

unaccompanied by any continuing, present adverse

effects.”); see also City of Los Angeles v. Lyons, 461 U.S. at

111 (finding no standing to request injunctive relief

where plaintiff could not show he had reason to expect

to be arrested and subjected to controversial chokehold

again); Rizzo v. Goode, 423 U.S. 362, 372 (1976) (holding

that plaintiffs lacked standing to obtain injunctive

relief against senior police officials to impose tighter

police discipline to prevent harm to civilians).

This is an issue on which courts need to maintain a

delicate balance between adequately protecting First

Amendment rights and avoiding unnecessary constitu-

No. 09-2332 9

tional decisions. A person need not risk arrest before

bringing a pre-enforcement challenge under the First

Amendment, Holder v. Humanitarian Law Project, 130 S. Ct.

2705, 2717 (2010); Steffel v. Thompson, 415 U.S. 452, 459

(1974), but to present a justiciable controversy, the

person must assert more than a wholly speculative pos-

sibility of criminal consequences. Babbitt v. United Farm

Workers Nat’l Union, 442 U.S. 289, 302 (1979). A plaintiff

must show that she has “an intention to engage in a

course of conduct arguably affected with a constitu-

tional interest, but proscribed by a statute, and [that]

there exists a credible threat of prosecution thereunder.”

Id. at 298; Virginia v. American Booksellers Ass’n, Inc.,

484 U.S. 383, 393 (1988) (determining that plaintiffs

had standing because they “alleged an actual and

well-founded fear that the law will be enforced against

them”). “When plaintiffs ‘do not claim that they have

ever been threatened with prosecution, that a prosecu-

tion is likely, or even that a prosecution is remotely pos-

sible,’ they do not allege a dispute susceptible to resolu-

tion by a federal court.” Babbitt, 442 U.S. at 298-99,

quoting Younger v. Harris, 401 U.S. 37, 42 (1971); see Steffel,

415 U.S. at 459 (determining that the threat of prosecu-

tion was not speculative because the plaintiff had

been warned to cease his activities and was threatened

with prosecution if he failed to do so).

When a person is considering whether he risks pros-

ecution for future actions, he rarely deals with certainties,

but rather a broad spectrum of possibilities derived

from a number of unknown variables. This uncertainty

is particularly problematic in the realm of free speech,

10 No. 09-2332

given the danger that vital protected speech will be

chilled due to a reasonable fear of prosecution. See, e.g.,

Laird v. Tatum, 408 U.S. 1, 11 (1972) (“[C]onstitutional

violations may arise from the deterrent, or ‘chilling,’ effect

of governmental regulations that fall short of a direct

prohibition against the exercise of First Amendment

rights.”). For that reason, when an ambiguous statute

arguably prohibits certain protected speech, a reasonable

fear of prosecution can provide standing for a First

Amendment challenge. See Majors v. Abell, 317 F.3d 719,

721 (7th Cir. 2003) (reversing dismissal for lack of

standing where scope of statute was unclear); Commodity

Trend Serv., Inc. v. Commodity Futures Trading Comm’n,

149 F.3d 679, 687 (7th Cir. 1998) (stating that “a threat of

prosecution is credible [under Babbitt] when a plaintiff’s

intended conduct runs afoul of a criminal statute”);

California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088,

1095 (9th Cir. 2003) (“In the free speech context, [an

actual and well-founded] fear of prosecution will only

inure if the plaintiff’s intended speech arguably falls

within the statute’s reach.”).

In Majors, however, we also observed that the plain-

tiff would have lacked standing for a First Amendment

challenge if the statute in question “clearly fails to

cover [the plaintiff’s] conduct.” 317 F.3d at 721. In a later

case we affirmed dismissal of a pre-enforcement chal-

lenge for lack of standing (the prosecutor had expressed

no interest in prosecuting the plaintiff under the statute),

and we echoed the point from Majors: a plaintiff lacks

standing to bring a pre-enforcement challenge if the

plaintiff’s “conduct was clearly outside the statute’s

No. 09-2332 11

scope.” Lawson v. Hill, 368 F.3d 955, 957 (7th Cir. 2004).

While it is possible that the plaintiffs “might be pros-

ecuted under a statute the text of which clearly failed

to cover [their] conduct,” such remote fear does not

justify an injunction absent something more than a

“nontrivial probability of prosecution.” Id. at 958.

In a case remarkably similar to this one, the Tenth Circuit

struck the right balance in PeTA v. Rasmussen, 298

F.3d 1198, 1203 (10th Cir. 2002), and held that plain-

tiffs lacked standing to bring a facial challenge to a law

that did not apply by its terms to their desired conduct.

The Tenth Circuit reached that conclusion even though

the plaintiffs had been threatened with arrest by an

officer who had received bad legal advice about whether

the law applied to the plaintiffs’ conduct. In Rasmussen,

PeTA (People for the Ethical Treatment of Animals) and

its members sought money damages and an injunc-

tion against the enforcement of a statute forbidding

“interfere[nce] with the peaceful conduct of the activities

of any school.” PeTA members had staged a protest at

a junior high school (the school had placed, of all things,

a McDonald’s flag on its flagpole), but they had dispersed

after a police officer threatened to arrest them under

the statute. Only after that incident did the parties learn

that the statute defined “school” as an “institution of

higher education,” so that it clearly did not apply to

plaintiffs’ planned future protests at the junior high

school. 298 F.3d at 1201. Because the statute at issue did

“not apply to the protests PeTA has conducted and

has expressed an intention to conduct in the future,” the

Tenth Circuit held that PeTA had an insufficient chance

12 No. 09-2332

of being injured in the future and therefore lacked

standing to request injunctive relief or to mount a facial

challenge to the statute’s validity. Id. at 1203.

Majors, Lawson, and Rasmussen guide our resolution of

standing in this case. If we had any indication that the

police were even arguably acting within the scope of the

failure-to-disperse provision when they arrested plain-

tiffs, then these plaintiffs could have standing to chal-

lenge the facial constitutionality of that provision and

to request injunctive relief. Our reading of the provi-

sion’s language and the reported Illinois cases inter-

preting it, however, indicates that section 8-4-010(d)

cannot fairly be read to prohibit peaceful protests of the

sort engaged in by the plaintiffs. The types of conduct

previously determined to be within the provision’s

scope are much different from the conduct at issue in

this case. See City of Chicago v. Weiss, 281 N.E.2d 310, 316-17

(Ill. 1972) (rocks and firecrackers were being thrown);

City of Chicago v. Greene, 264 N.E.2d 163, 166 (Ill. 1970)

(members of 500-person crowd were hurling objects at

police); City of Chicago v. Jacobs, 263 N.E.2d 41, 42-43

(Ill. 1970) (during protest involving several thousand

demonstrators, defendants crossed police line into pro-

hibited area); People v. Gonzalez, 357 N.E.2d 616, 620 (Ill.

App. 1976) (crowd surrounded police). Nevertheless,

the police arrested these plaintiffs and had them charged

with failure to disperse without even arguable probable

cause for doing so. There is no indication that three

or more persons in the “immediate vicinity” were, in

the words of section 8-4-010(d), committing acts of disor-

derly conduct of any kind, let alone that they were likely

No. 09-2332 13

to cause substantial harm or serious inconvenience,

annoyance, or alarm. See Fort, 262 N.E.2d at 475 (defining

“disorderly conduct”). Such a clear misuse of a law

does not provide a basis for a federal court to explore

that law’s facial constitutionality.

Perhaps if we had a record showing a persistent

pattern of similar police misconduct, persons intending

to engage in protected speech and expression might be

able to show that they were entitled to injunctive relief

of some kind, if not against all enforcement of the provi-

sion then at least against future such misconduct. See,

e.g., Allee v. Medrano, 416 U.S. 802, 815 (1974) (affirming

injunction against pattern of police misconduct aimed

at preventing unionization of farm workers). The record

before us, however, shows only an isolated misuse of

the failure-to-disperse provision. We understand that

plaintiffs intend to act in the future as they acted when

they were arrested without apparent justification, but

they have not presented any evidence sufficient to

justify a conclusion that their experience was the result

of a Chicago policy or custom of misapplying local ordi-

nances against disfavored speech. These plaintiffs’ ex-

perience appears, on this record, to be the result of an

isolated misuse of the failure-to-disperse provision

and indicates that they are not reasonably likely to face

a future prosecution if section 8-4-010(d) is enforced

according to its terms. As the Supreme Court observed

in Allee: “Isolated incidents of police misconduct under

valid statutes would not, of course, be cause for exercise

of a federal court’s equitable powers.” Id.

14 No. 09-2332

As a final note, we do not mean to imply that the plain-

tiffs lack standing to pursue any claim in regard to

their arrests and prosecution. The police officers appar-

ently had no reason to arrest and charge these plain-

tiffs, who properly asserted their rights by pursuing

damages against the officers and the city for the arrests.

Plaintiffs settled those claims on terms that are not part

of the record before us. Damages were the remedy sought

in Hartnett v. Schmit, 501 F. Supp. 1024 (N.D. Ill. 1980),

where the plaintiffs had been arrested for a failure to

disperse even though it was undisputed that there was

no nearby disturbance of any kind. Judge Aspen

granted summary judgment for the plaintiffs as to liabil-

ity and held that the defendant police officers were not

entitled to qualified immunity because it was clear

that they had arrested the plaintiffs without probable

cause. 501 F. Supp. at 1028-29. A claim for money dam-

ages, not a request for injunctive relief, is an appro-

priate and effective method for dealing with isolated

circumstances in which police officers arrest civilians

who are not even arguably violating the law. See Lyons,

461 U.S. at 111 (“The legality of the violence to which

Lyons claims he was once subjected is at issue in his

suit for damages and can be determined there.”); Rasmus-

sen, 298 F.3d at 1203 (holding that PeTA had standing

to pursue monetary damages despite its lack of standing

to pursue prospective relief).1

1

Our decision in this case should not be understood to

extend to a situation in which police misuse of the failure-to-

(continued...)

No. 09-2332 15

Accordingly, we V ACATE the district court’s order

enjoining the enforcement of Chicago Municipal Code

§ 8-4-010(d) and R EMAND this matter for further pro-

ceedings consistent with this opinion.

1

(...continued)

disperse law has become so common as to amount to a munici-

pal policy or custom that would subject the city to direct

liability under section 1983. See generally Monell v. Department

of Social Services, 436 U.S. 658, 694 (1978). Plaintiffs in this

case settled their Monell claim, so we do not address that

prospect.

9-2-10