distinguishing Cohen v. California, 403 U.S. 15 (1971)
How later courts described this case
- distinguishing Cohen v. California, 403 U.S. 15 (1971)
- in which a man was placed under arrest after refusing to answer a police offi- cer’s inquiry as to whether he lived in the neighborhood, and instead informing the officer, “I don’t tell you people anything”
- “regulation of speech activity where the Government has not dedicated its property to First Amend- ment activity is examined only for reasonableness.”
- considering the meaning of an identical State of Wisconsin disorderly conduct statute
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-4143
ROBERT C. BRAUN,
Plaintiff-Appellant,
v.
LEVERETT BALDWIN, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01-C-852—Rudolph T. Randa, Chief Judge.
____________
ARGUED MAY 27, 2003—DECIDED OCTOBER 10, 2003
____________
Before BAUER, POSNER, and COFFEY, Circuit Judges.
POSNER, Circuit Judge. September 5 is “Jury Rights Day”
in Milwaukee. On that day in 2000, Robert Braun, the
plaintiff in this civil rights suit under 42 U.S.C. § 1983, and
his companion-in-arms William “Whistleblower” Currier,
as was their custom on Jury Rights Day entered the Milwau-
kee County Courthouse for the purpose of advocating jury
nullification, that is, that jurors should feel free to disregard
the instructions on the law that judges give them. They
stationed themselves in the lobby of the courthouse. Currier
was dressed in a judicial robe and carried a sign that said,
“Why do judges hide the truth?”—the “truth” referred to
2 No. 02-4143
apparently being that juries can acquit in criminal cases
lawlessly. He handed persons entering the lobby, who may
have included witnesses and even jurors, pamphlets
advocating jury nullification. Braun stood by, holding a
camera, apparently to enable him to obtain evidence, which
might provide a basis for litigation, of any attempt by
courthouse personnel to expel the judge-impersonating
“Whistleblower.” Braun and Currier are serial protesters
and arrestees; they appear to be “dedicated to the propaga-
tion of litigation.” Currier v. Baldridge, 914 F.2d 993, 994 (7th
Cir. 1990).
A sheriff’s deputy named Frank Franckowiak, the only
defendant who belongs in the case (the other two defen-
dants—the sheriff himself and Milwaukee County—have no
possible legal liability for the conduct about which Braun
is complaining), observing but doing nothing to impede
Currier’s antics, noticed that Braun, standing at a distance
from Currier, was taking pictures of the officer.
Franckowiak was on the alert for trouble because someone
had phoned the police that there was a “disturbance” taking
place in the courthouse and he had been told about the call.
He approached Braun and asked him what his business in
the courthouse was. Braun refused to answer and instead
threatened to sue Franckowiak, who in response asked
Braun to “step aside.” (Braun admits this, while also
claiming that Franckowiak told him to leave the building
altogether.) When Braun refused, Franckowiak arrested him
for disorderly conduct. No charges were filed; nor was
Braun jailed—he was merely expelled from the courthouse,
though later permitted to return. But the arrest precipitated
this civil rights suit for infringement of freedom of speech
and for false arrest—Braun’s threat to sue had not been an
idle one. Braun also claims to have been subjected to exces-
sive force in the course of his arrest, mainly because the
No. 02-4143 3
handcuffs were fastened too tightly, Herzog v. Village of
Winnetka, 309 F.3d 1041, 1043-44 (7th Cir. 2002), but as there
is no indication that his arrest was effected in an unusual or
improper manner, the excessive-force claim has no possible
merit. The district court granted summary judgment for the
defendants on all counts.
We address the free-speech issue first. When Franckowiak
arrested Braun, he may not even have known that Braun
was present to assist Currier in advocating jury nullification.
In that event, even if the arrest had been improper (the
second issue that we consider), it could not have been
intended to curtail Braun’s freedom of speech. Rakovich v.
Wade, 850 F.2d 1180, 1189-90 (7th Cir. 1988) (en banc). For
that matter, we don’t know whether Braun had any inten-
tion of speaking or pamphleting or otherwise exercising a
claimed right of free speech, so we don’t know whether
there was even an unintentional interference with his
freedom of speech. Currier was not intimidated by Braun’s
arrest and continued handing out his pamphlets in the
courthouse lobby without interference.
But there is a deeper problem with Braun’s free-speech
claim. First Amendment rights are not absolute. If they
were, it would be unconstitutional for states or the federal
government to provide a legal remedy for defamation, to
punish the possession and distribution of child pornogra-
phy, to forbid the publication of military secrets, to ever
conduct legal proceedings in camera, or, coming closer to
home, to prevent Currier and Braun from handing their
pamphlets advocating jury nullification to jurors sitting in
the jury box. Although advocacy of jury nullification could
no more be flatly forbidden than advocacy of Marxism,
nudism, or Satanism, we cannot think of a more reasonable
regulation of the time, place, and manner of speech than to
forbid its advocacy in a courthouse.
4 No. 02-4143
“A State may adopt safeguards necessary and appropriate
to assure that the administration of justice at all stages is
free from outside control and influence.” Cox v. Louisiana,
379 U.S. 559, 562 (1965); see also United States v. Grace, 461
U.S. 171, 177-78 (1983); Ryan v. County of DuPage, 45 F.3d
1090, 1095 (7th Cir. 1995) (distinguishing Cohen v. California,
403 U.S. 15 (1971)); Dorfman v. Meiszner, 430 F.2d 558, 561
(7th Cir. 1970) (per curiam); Pouillon v. City of Owosso, 206
F.3d 711, 716 (6th Cir. 2000) (dictum). As we explained in
Sefick v. Gardner, 164 F.3d 370, 372-73 (7th Cir. 1998) (citation
omitted), a case that involved a kinetic statue in the lobby of
the federal courthouse in Chicago satirizing one of the
judges in the building—a kind of robotic version of Whistle-
blower Currier—“the lobby of the courthouse is not a
traditional public forum or a designated public forum, not
a place open to the public for the presentation of views . . . .
Courts seek to induce in the jurors, witnesses, and litigants
who pass through the lobby on the way to the courtrooms
a serious cast of mind. . . . The judiciary does not show
reruns of the Three Stooges in courthouse lobbies, and from
the perspective of promoting the judicial mission a sculp-
ture satirizing judges would be worse than old physical
comedies. No one doubts that displays in courtrooms and
adjacent corridors may be limited to the icons of govern-
ment, such as seals and flags, and that judges may insist
that all those present behave in a dignified manner. Why
should this be less true of the lobby? Newspapers and the
streets outside are open to scathing criticism of what
happens within the courthouse. But the halls of justice may
be kept hushed.”
The Supreme Court in the passage we quoted from Cox,
and our own court in the passage we just quoted from Sefick,
might have been speaking of this case. Jurors have the
power, but not the right, to ignore the judge’s instructions.
No. 02-4143 5
A defendant’s lawyer isn’t permitted to argue to the jury
that it should disregard the law, Sparf v. United States, 156
U.S. 51, 102 (1885); Gibbs v. VanNatta, 329 F.3d 582, 584 (7th
Cir. 2003); United States v. Bruce, 109 F.3d 323, 327 (7th Cir.
1997); United States v. Manning, 79 F.3d 212, 219 (1st Cir.
1996)—a restriction on speech that does not violate the
Constitution. Currier and Braun have no greater right than
a criminal defendant’s lawyer to tell jurors in the courthouse
to disobey the judge’s instructions. Or to impersonate a
judge; cf. Ryan v. County of DuPage, supra, 45 F.3d at 1092,
upholding against First Amendment challenge a rule
banning the wearing of masks in court. The biggest surprise
in this case is that the Milwaukee justice system tolerates
Currier’s antics, aided and abetted by Braun. If it thinks the
First Amendment requires this, it is mistaken. Sefick makes
that clear; and see United States v. Ogle, 613 F.2d 233, 242-43
(10th Cir. 1979), rejecting a challenge based on the First
Amendment to a conviction for obstruction of justice for
giving a juror a pamphlet advocating jury nullification. See
also Turney v. State, 936 P.2d 533, 541 (Alaska 1997); Zal v.
Steppe, 968 F.2d 924, 932-33 (9th Cir. 1992) (concurring
opinion).
We turn now to the second issue, which is whether
Franckowiak had probable cause to arrest Braun. The ordi-
nance under which Braun was arrested provides that “no
person shall engage in violent, abusive, indecent, profane,
boisterous, unreasonably loud, or otherwise disorderly
conduct under circumstances in which such conduct tends
to cause or provoke a disturbance.” Milwaukee County
Code § 63.01(1). (The state’s disorderly-conduct statute
is almost identical. Wis. Stat. § 947.01(1).) Although
Franckowiak testified at his deposition that Braun was abu-
sive, boisterous, and unreasonably loud, this testimony is
disputed by other witnesses, including Braun, and so cannot
6 No. 02-4143
be taken as true in the current posture of the case. And it is
not contended that Braun was violent, indecent, or profane.
But that leaves the catchall “or otherwise disorderly.” We
must consider whether his conduct in refusing to explain to
the officer why he was taking a picture of him, and instead
threatening to sue him, and then refusing to step aside to
continue his argument with the officer when ordered to do
so, created probable cause, in a courthouse seething with
rumor of disturbance, to believe that he was being disor-
derly in circumstances in which his behavior could provoke
or exacerbate a disturbance.
Bearing in mind the emphasis that Wisconsin’s highest
court places on the coalescence of conduct with circum-
stances in deciding whether conduct is disorderly, see, e.g.,
City of Oak Creek v. King, 436 N.W.2d 285, 289 (Wis. 1989),
we think there was probable cause for Braun’s arrest. The
altercation took place in a courthouse lobby, during work-
ing hours. It is conceded that other persons besides Braun,
Currier, and the officer were present—other persons who
can be assumed to have had business in the courthouse
and who, for all that Franckowiak could have known, might
have been witnesses or jurors. These persons would have
observed the strange spectacle—rendered stranger by
Currier’s antics—of Braun’s photographing a police officer,
refusing to explain why, threatening to sue him, and refus-
ing his order to step outside the lobby. This conduct dis-
turbed the sedate, irenic, dignified, solemn, and even hiera-
tic (“temple of justice”) ambiance that courthouses seek to
preserve.
It is not a case of a person who, accosted on the street by a
policeman who has no reason to suspect him of unlawful
behavior, refuses to answer the policeman’s questions, as he
is entitled to do. Florida v. Bostick, 501 U.S. 429, 437 (1991);
Terry v. Ohio, 392 U.S. 1, 34 (1968) (concurring opinion);
No. 02-4143 7
United States v. Burton, 228 F.3d 524, 527 (4th Cir. 2001).
Braun’s arrest occurred after the catastrophic bombing of a
federal building in Oklahoma City in 1995 engendered
heightened fears for the security of government buildings.
Even before then courthouses had been recognized as
potentially dangerous places because of the presence of
criminal defendants, bitterly divorcing spouses and
custody-contesting ex-spouses, and other highly stressed,
emotionally excited, and even violence-prone litigants.
Because of the character of a courthouse’s clientele and the
importance of preserving a calm atmosphere for the sake
particularly of the lay people—witnesses and jurors,
outsiders to the legal system—who nevertheless play a vital
role in the administration of justice, police and guards are
entitled to exercise a degree of control that would be
oppressive in a different setting. Currier’s grotesque
display, Braun’s picture taking and obstinateness, and the
telephone warning about a disturbance in the courthouse,
taken all together, justified a prudent officer in taking steps
to head off possible trouble.
Moreover, as we explained in Ryan v. County of DuPage,
supra, 45 F.3d at 1093, defiance of a police officer’s order to
move is itself disorderly conduct if the order is lawful. We
were dealing in that case with Illinois law, but Wisconsin
law appears to be the same; compare City of Oak Creek v.
King, supra, 436 N.W.2d at 289-90, upholding the disorderly-
conduct conviction of a person who had refused to obey a
lawful police order, with State v. Werstein, 211 N.W.2d 437,
440-41 (1973), reversing the convictions of defendants who
had refused to obey an unlawful order. So let us consider,
as a possible alternative justification for the arrest of Braun,
whether the order that he step aside was lawful. We think
it was. His action in refusing to explain why he was photo-
graphing a police officer who had done nothing provocative
8 No. 02-4143
or illegal, occurring as it did in the lobby of a courthouse
where a judge impersonator was pamphleting passersby
and a report of a disturbance had been received, would
have led a reasonable officer to fear that a disturbance of the
peace of the courthouse was imminent, making it prudent
to remove Braun at least temporarily from the immediate
scene. Terry v. Ohio, supra, 392 U.S. at 20-27, allows police to
stop a person and pat him down for weapons upon mere
reasonable suspicion. The grounds for suspicion here were
insufficient to have justified a typical Terry stop involving
a search for weapons, but the intrusion on personal privacy
and liberty involved in being asked to step aside is less than
that involved in a pat down for weapons, sufficiently less to
be reasonable in the circumstances.
The case that provides the strongest support for Braun’s
position—though it is a case that his lawyer, with an in-
souciance characteristic of his representation of his client in
this court, has not bothered to cite—is State v. Werstein,
supra. The Supreme Court of Wisconsin held in that case
that it was not disorderly conduct for four draft protesters
during the Vietnam War to refuse a police officer’s order to
leave a military induction center. Although we have called
them “protesters,” it appears from the stipulation of facts on
which the court based its decision that they were just sitting
quietly in the induction center, being there to lend moral
support to an inductee who was planning to refuse induc-
tion. Id. at 438. The center was a public place and they had
a right to remain in it as long as they were not interfering
with the induction process; and so far as appears they were
sitting as quietly as mice. The Milwaukee County court-
house is public too, but of a special sensitivity as we have
seen and here was Braun arguing with a police officer,
taking photographs of the officer, refusing to explain what
he was doing—and this against the background of Currier’s
No. 02-4143 9
disruptive, or at least distracting, impersonation of a judge
and the rumor of a disturbance. In these unusual circum-
stances, we think the officer was within his rights to order
Braun to step aside.
Probable cause is not proof beyond a reasonable doubt, or
even proof by a preponderance of evidence. So although
Braun’s conduct was at the margin of the disorderly-con-
duct ordinance, there was enough evidence of a violation of
that capaciously worded regulation—which is not however
challenged in Braun’s appeal (or challengeable, see City of
Oak Creek v. King, supra, 436 N.W.2d at 291) as unreasonably
vague or overbroad—to justify the arrest.
AFFIRMED.
COFFEY, Circuit Judge, dissenting. On September 5, 2000,
Robert Braun and his partner, William Currier, were peace-
fully passing out pamphlets in the lobby of the Milwaukee
County courthouse—and were granted express permission
from the Milwaukee County Sheriff to do this—when
(according to Braun) Deputy Sheriff Frank Franckowiak
“accosted [him] first by stating that [he] could not pass
out papers or take pictures inside the courthouse.” See
Braun’s Certified Declaration ¶ 5. Braun further alleges that
Franckowiak “showed anger toward [him] before [he] had
a chance to respond to [Franckowiak’s] claim that [he] was
doing something wrong,” and Franckowiak, when asked by
10 No. 02-4143
Braun what ordinance prohibited his pamphleting and
photography activities, “would not answer.” Id. ¶¶ 5, 7, 9.
According to Braun, Franckowiak then “told [Braun]
that [he] must leave the building immediately or face arrest.”
Id. ¶ 9. When Braun “said [he] didn’t intend to leave [the
building] unless [Franckowiak] could tell [him] what au-
thority he was relying on to order [him] from the building,”
id. ¶ 10—obviously a reasonable response under the circum-
stances, considering the fact that he had received the Sheriff’s
permission to pass out pamphlets in that very area (the hallway of
the courthouse), and had been assured that the County’s deputy
sheriffs would not interfere with such activities—Franckowiak
stated, “you’re coming with me,” and immediately put
Braun under arrest for disorderly conduct. See Braun Dep.
at 38. The charge against Braun was ultimately dropped,
and Braun filed this civil rights claim against Franckowiak
under the First and Fourth Amendments. The district court
granted summary judgment in favor of Franckowiak on all
counts.
Regarding Braun’s claim that his First Amendment
“right” to pass out pamphlets was violated by the arrest,
I am in agreement with the majority that Braun has no
First Amendment right to pamphlet inside the Milwaukee
County courthouse, for the courthouse lobby is not and never
has been a public forum; nor has it ever been designated a limited
1
public forum. As this Court stated in Sefick v. Gardner, “[t]he
1
Indeed, Mr. Braun may be getting more than he bargained for
in the instant appeal if this Court’s opinion wakes Milwaukee
County up to the fact that it need not open the doors of the
Milwaukee County Courthouse to Braun and Currier to distrib-
ute leaflets professing jury nullification, solely out of fear of being
(continued...)
No. 02-4143 11
lobby of [a] courthouse is not a traditional public forum or
a designated public forum, not a place open to the public for the
presentation of views.” Sefick v. Gardner, 164 F.3d 370, 372 (7th
Cir. 1998) (emphasis added). Thus, the County Courthouse
falls into the category of government property known as
“nonpublic fora,” over which “the government may exercise
considerable selectivity” in “deciding what may be displayed”
or what other expressive activity may be permitted therein.
Id. at 372 (emphasis added).
The Milwaukee County Courthouse being a nonpublic
forum, I concur with the majority that neither Braun nor
anyone else had any First Amendment right to pass out jury
nullification fliers on “Jury Rights” day (or any other day),
and agree with the majority’s decision to affirm the district
court’s grant of summary judgment against Braun as to his
First Amendment claim. I would also add that Milwaukee
County officials certainly have the authority, if they so
choose, and would indeed be well advised to enact and
impose reasonable and viewpoint-neutral restrictions on
speech or other activity in the area inside the Milwaukee
County Courthouse. See United States v. Kokinda, 110 S. Ct.
3115 (1990) (“regulation of speech activity where the
Government has not dedicated its property to First Amend-
ment activity is examined only for reasonableness.”).
On the other hand, I wish to make clear that I am forced
to dissent from this Court’s affirmance of the district court’s
1
(...continued)
subject to suit. See Oral Argument Transcript (statement of
Milwaukee County’s attorney that the County “acknowledg[ed]
[Braun’s and Currier’s] right to [pass out pamphlets]” in the
courthouse simply because it was “tired of being sued by these
people [Braun and Currier].”
12 No. 02-4143
grant of summary judgment as to Braun’s unlawful arrest
claim, and would reverse and remand that issue for trial,
because based upon all the facts and circumstances, when
considered in their totality, as well as the explicit permission
Braun had been given by the Milwaukee County Sheriff to
pass out pamphlets, I am convinced that Officer
Franckowiak did not have probable cause to arrest Braun
for disorderly conduct under the Milwaukee County
Ordinance.
Deputy Franckowiak admits that Braun was “free to dis-
tribute literature” in the courthouse lobby on Jury Rights day
(September 5, 2000), so long as his conduct was orderly. See
Franckowiak’s Br. at 3 (emphasis added). And the facts
recited in the record, “view[ed] . . . in the light most favor-
able to [Braun],” Palmer v. Marion County, 327 F.3d 588, 590
(7th Cir. 2003), support that Braun’s leafleting activities were
entirely peaceful and did not disrupt the traffic flow in the
courthouse lobby. See infra at 17-21. As for the appellant
Braun’s discussion with Officer Franckowiak, Braun claims
that he was “n[either] loud, obstructive, [n]or uncoopera-
tive.” See Braun’s Opposition to Summary Judgment at 2;
Currier Aff. ¶ 10 (“Braun . . . was not loud or boisterous [in]
responding to questions from Deputy Franckowiak.”). And,
notwithstanding the majority’s assertion that “Franckowiak
. . . asked Braun to ‘step aside,’ [and] Braun refused . . .,”
Opinion at 2, both Franckowiak and Braun—the two
principals involved in the discussion—deny on the record that
Franckowiak ever gave Braun an order to “step aside” (or that
Braun refused to comply such an order). Further, Franckowiak
himself states that “the only thing [he (Franckowiak)] [ordered]
[Braun] to do [was] to come with [him]” into custody, and
“[Braun] obeyed . . . .” See Franckowiak Dep. at 15. Given
these facts, Braun did not at any time engage in any behav-
ior that would support probable cause for his arrest on a
No. 02-4143 13
disorderly conduct charge; thus, I respectfully dissent from
the majority’s decision to affirm the district court’s grant of
summary judgment to Franckowiak on this issue.
The Rule 56(c) summary judgment standard provides for
the granting of summary judgment only when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Fed. R. Civ. P. 56(c) (empha-
sis added); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). Importantly in the instant case, in performing de novo
review of the district court’s grant of summary judgment,
Ornelas v. United States, 517 U.S. 690, 699 (1996), we must
view all facts and draw all inferences in favor of the petitioner-
appellant Braun. Outlaw v. Newkirk, 259 F.3d 833, 836 (7th Cir.
2001).
In granting Officer Franckowiak summary judgment as to
Braun’s Fourth Amendment unlawful arrest claim, the
district court stated: “the undisputed facts clearly establish
that Franckowiak had probable cause to arrest Braun for
disorderly conduct.” Braun v. Baldwin, No. 01-CV-852, at *9
(E.D. Wis., November 14, 2002). Braun in response to this
finding argues that the district court failed to view all the
facts in the light most favorable to him, and that the undis-
puted facts and circumstances in the record fall short
of supporting a finding of probable cause. The majority
has ruled that the district court’s grant of summary judg-
ment to Officer Franckowiak was proper, but I am con-
vinced that, viewing all the facts in the light most favorable
to Braun, as we must, Franckowiak did not have probable
cause to arrest Braun under the Milwaukee County disor-
derly conduct ordinance. I thus disagree with the majority’s
conclusion to the contrary.
14 No. 02-4143
It is well-settled that an officer has probable cause to make
an arrest only when “ ‘the facts and circumstances within
[his] knowledge and of which [he has] reasonably trustwor-
thy information [are] sufficient to warrant a prudent
[person] in believing that the [suspect] had committed or is
committing an offense.’ ” United States v. Mounts, 248 F.3d
712, 715 (7th Cir. 2001) (quoting United States v. Gilbert, 45
F.3d 1163 (7th Cir. 1995)). Resolution of the probable cause
question “typically falls within the province of the jury. . .
.” Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 473 (7th
Cir. 1997). A conclusion that probable cause exists as a
matter of law is only “appropriate when there is no room for
a difference of opinion concerning the facts or the reasonable
inferences to be drawn from them.” Id. (emphasis added). Thus,
for us to affirm the district court’s finding of probable cause,
we must be convinced (and I am not) that the undisputed facts
point to only one reasonable conclusion—that probable cause was
present.
The Milwaukee County Municipal Ordinance (the “Ordi-
nance”) under which Braun was arrested, reads:
No person shall engage in violent, abusive, indecent,
profane, boisterous, unreasonably loud, or otherwise
disorderly conduct under circumstances in which such
conduct tends to cause or provoke a disturbance.
Milwaukee County Code ¶ 63.01(1) (emphasis added).
The majority notes that “Braun was [not] violent, in-
decent, or profane,” Opinion at 6; thus, his conduct comes
within the ambit of the Ordinance (if at all) only through the
“catchall” “otherwise disorderly” phrase, which is further
defined and limited in the very language of the Ordinance’s
requirement that the conduct be of the type that, under the
circumstances, “tends to cause or provoke a disturbance.”
Id. That is, Officer Franckowiak had probable cause to arrest
No. 02-4143 15
as a matter of law only if the facts were sufficient to warrant
a prudent person to believe that Braun engaged in or was
engaging in conduct that was both “disorderly” and furthermore
would “tend[] to cause or provoke a disturbance” under the
circumstances. Id. Viewing the facts in the light most favor-
able to Braun, as we must at this stage of the litigation,
Braun’s actions did not fulfill the probable cause require-
ment so vital to his arrest made under the Ordinance.
According to Braun, the facts are as follows: beginning
at 8:15 a.m. on September 5, 2000, Braun and his partner,
William Currier, were standing in the middle of the first-
floor lobby of the Milwaukee County courthouse, located in
the City and County of Milwaukee, Wisconsin, and offering
and “handing out [jury nullification] fliers” to anyone who
would take them. See Braun Dep. at 32. It is accepted by
both parties that, prior to that date, the then County Sheriff,
Leverett Baldwin, had sent Currier a letter “assur[ing]
Currier and [Braun], that Deputy Sheriffs from Milwaukee
County would not interfere with peaceful and orderly
pamphleting at the courthouse by issuing citations of disorderly
2
conduct or otherwise.” See Amended Complaint ¶ 8 (empha
2
The fact that the Sheriff agreed “not to interfere with [Braun’s]
peaceful and orderly pamphleting at the courthouse,” see
Amended Complaint ¶ 8, has been (surprisingly, as my col-
leagues point out) uncontested by the County. See Defendants’
Answer ¶ 8 (“admit[ting] that [Baldwin] sent” a letter to Braun
and Currier agreeing “not [to] interfere with peaceful and orderly
pamphleting at the Courthouse,” Amended Complaint ¶ 8). Ap-
parently, some time prior to the incident in question, passing out
fliers in the lobby of the courthouse had been prohibited by a
judicial directive issued on September 8, 1992, but this directive
had been rescinded by then-Chief Judge of Milwaukee County in
(continued...)
16 No. 02-4143
sis added); Answer ¶ 8 (“admit[ting] that [such] a letter [of
permission] was sent [by the Milwaukee County Sheriff] to
Currier as alleged [by Braun] . . . .”). See also Robinson Dep.
at 10 (stating that the men were “allowed” to stay and
pamphlet “as long as [they] did not cause a disruption . . .”).
(Although Franckowiak, Braun and Currier each admit that
Currier received a letter of permission from the Sheriff to
pamphlet in the courthouse hallway, that letter, for reasons
unexplained, is not contained in the record.)
At approximately 9:20 a.m. on the date of September 5,
2000, Deputy Sheriff Janet Robinson was sent to the ground
floor of the Milwaukee County Courthouse to investigate
a complaint about a disruption made by an unidentified
complainant. Upon arrival, she approached Mr. Currier (she
claims initially she did not notice Braun) and remarked that,
at that time, “it didn’t appear that [Currier] was causing a
disturbance.” Robinson Dep. at 9. She told Currier to leave
(she claims not to have talked to Braun), but Currier
refused: “[N]o, I won’t leave. . . . I have a right to stay here.”
2
(...continued)
1995, well before Braun’s arrest in this case (September 5, 2000).
It is also undisputed that, shortly after the directive was lifted,
the Sheriff of Milwaukee County, Leverett Baldwin, informed
Currier by letter “that deputies would not interfere with [his]
peaceful and orderly pamphleting at the Courthouse” on Jury
Rights Day. See Amended Complaint ¶ 8. At oral argument,
Franckowiak’s counsel admitted that Milwaukee County has
“erred on the side of liberality in that we do permit these gen-
tlemen to come to the courthouse every year on September 5” to
pass out jury nullification pamphlets. Indeed, Braun and Currier
have passed out pamphlets on prior occasions, in particular in the
years of 1997 and 1998, without any problems. See Braun Dep. at
26-27 (noting that they “skipped” the year 1999).
No. 02-4143 17
Id. at 10. Currier went on to state to Robinson that he had
“sued the county before” and said “that [she] should talk to
[her] sergeant” about the issue. Id.
As Robinson moved away from the immediate area to call
her sergeant (Jeffrey Bilda), Braun snapped her picture. At
this time, she (Robinson) recognized Braun from prior
contacts and conversations with him in the courthouse.
Id. at 5-6, 11 (“I knew who Mr. Braun was”). Robinson
further testified that although she thought Braun’s picture-
taking was “unusual,” nothing Braun had done in her
presence was “loud,” “boisterous” or “causing a distur-
bance.” Id. at 13, 15. According to Robinson, Sergeant Bilda,
in his phone conversation with her, thereafter confirmed to
her that “as long as there was no disruption, as long as
people weren’t milling around [or] crowding around,
[Braun and Currier] [we]re entitled to stay [in the hallway]”
passing out pamphlets. Id. at 13. Having observed none of
the problems Sergeant Bilda recited, Robinson proceeded to
leave the area. Id. at 13.
Meanwhile, Deputy Sheriff Frank Franckowiak arrived on
the scene, and recognized Braun, because he had “r[un]
across [Braun] a couple times” before when Braun was at
the courthouse for other reasons. See Franckowiak Dep. at
3. As Franckowiak approached, Braun admits that he “took
a picture [of Franckowiak]” from a distance of about 20 feet
away. See Braun’s Certified Declaration ¶ 3.
Franckowiak, for his part, concedes that “when [he] ar-
rived [at the scene, he] didn’t see any . . . disturbance,” and
admits that there was “no[thing] loud” taking place, and
absolutely “nothing going on . . .” in the area of Braun’s
18 No. 02-4143
3
pamphleting activities. See Franckowiak Dep. at 10 (em--
phasis added). Nonetheless, Braun claims (and we must
accept as true) that Franckowiak came right up to him,
“accosted [him] first by stating that [he] could not pass out
papers or take pictures inside the courthouse,” see Braun’s
Certified Declaration ¶ 5, and then ordered Braun “to
leave the building right now, immediately.” See Braun Dep.
at 38 (emphasis added). Braun alleges that Franckowiak
“showed anger toward [him] before [he] had a chance
3
The majority states that “we don’t know whether Braun had
any intention of speaking or pamphleting,” Opinion at 3, and
that “[w]hen Franckowiak arrested Braun, he may not even have
known that Braun was present to assist Currier in advocating
jury nullification.” Id. But if we are to believe Braun’s testimony
(as we must, at this stage), Braun was pamphleting that day, be-
cause in his deposition testimony he stated that he was present in
the courthouse lobby that morning “handing out [jury nul-
lification] fliers.” See Braun Dep. at 32. As far as whether
Franckowiak was aware of the pamphleting, we must also accept
Braun’s claim that, upon arriving at the scene, Franckowiak in-
formed him (Braun) that he “c[ouldn’t] hand out papers in this hall
. . . .” Id. at 37 (emphasis added). Obviously, contrary to and in
direct opposition to the majority’s statement that “Franckowiak
. . . may not even have known that Braun was . . . advocating
jury nullification” by passing out jury nullification pamphlets,
Braun’s claim that Franckowiak immediately told him he could
not hand out papers in the hall would serve to establish that
Franckowiak did know Braun was passing out pamphlets (other-
wise, why would the officer have asked him to stop?). In any
event, Franckowiak in his own deposition testimony admitted
that Currier was pamphleting, and furthermore admitted to
recognizing that the two men were “most likely” together be-
cause he had “seen them do this before.” See Franckowiak Dep.
at 12. Thus, it seems quite evident that Franckowiak was aware of
Braun’s pamphleting activities.
No. 02-4143 19
to respond to [Franckowiak’s] claim that [he] was doing
something wrong,” and that Braun, while making a rea-
sonable inquiry of Franckowiak, asked what ordinance
prohibited his pamphleting and photography activities, but
Franckowiak “would not answer.” Braun’s Certified
Declaration ¶¶ 5, 7.
Braun and Franckowiak agree that Braun continued to
talk and explained to him (Franckowiak) that he “didn’t
have to listen to [Franckowiak],” see Franckowiak Dep. at 9,
or, as Braun put it, that he “didn’t intend to [obey
Franckowiak’s order to] leave unless [Franckowiak] could
tell [him] what authority he was relying on to order [him]
from the building.” See Braun’s Certified Declaration ¶10.
This statement did not rise to the level of “disorderly con-
duct,” however, for “[s]urely one is not to be punished for
nonprovocatively voicing his objection to what he obviously felt
was a highly questionable [order] by a police officer.” Norwell v.
City of Cincinnati, 414 U.S. 14, 16 (1973) (per curiam) (em-
phasis added).
Braun also does not deny that he threatened to sue
Franckowiak, and admits that he “refused to answer
[Franckowiak’s] questions regarding his reason for being in
the courthouse, because it was so clear that [he] w[as]
present [to] pass[] out literature [as part of a] peaceful[]
protest[].” See Amended Complaint ¶ 11. Indeed, it evi-
dently was clear to Franckowiak that Braun was there to
pass out pamphlets, for (as he admitted at deposition) he
had seen Braun and Currier “[pass out pamphlets] the year
before [and] many times before.” See Franckowiak Dep. at
10. Moreover, according to Braun, the first thing out of
Franckowiak’s mouth (upon his approach) was a declara-
tion “that [Braun] could not pass out papers or take pictures
inside the courthouse . . .,” see Braun’s Certified Declaration
20 No. 02-4143
¶ 5; Braun Dep. at 38; thus, Franckowiak must have known
Braun was passing out fliers in the courthouse that day.
Braun and Franckowiak dispute whether Braun was
disruptive in his dealings with Officer Franckowiak. On the
one hand, Braun says that he was “not loud, obstructive or
uncooperative” with Franckowiak. See Braun’s Memoran-
dum In Opposition to Summary Judgment (September 23,
2002) at 2; Currier Aff. 10 (“Braun was not . . . loud or
boisterous with respect to responding to questions from
Deputy Franckowiak”). And although Officer Franckowiak
admits that “when [he] arrived [at the scene, he] didn’t
see any . . . disturbance,” he claims that Braun eventually
became “loud, obstreperous and uncooperative” in respond-
ing to Franckowiak’s inquiries in the hallway, see
Franckowiak’s Proposed Findings of Fact ¶ 18, an assertion
supported by Officer Keith Kolodzyk’s testimony that Braun
was “being loud” as he addressed Officer Franckowiak. See
Kolodzyk Dep. at 10. Obviously, this is another dispute in the
testimonial evidence which serves to create an issue of fact that
must be left to a jury of Franckowiak’s and Braun’s peers and
thus may not be resolved at this summary judgment stage.
After this brief exchange with Braun, Franckowiak, by
his own admission, ordered Braun to “come with [him],”
and, still standing in the middle of the hallway, immed-
iately placed Braun under arrest for disorderly conduct.
See Franckowiak Dep. at 15. At deposition, Officer
Franckowiak went on to state for the record that Braun
“came along real nice.” Id. at 17. Franckowiak further ex-
plained that “the only thing [he (Franckowiak)] asked [Braun] to
do [was] to come with [him] [and that] [Braun] obeyed [that or-
der.]” Id. at 15 (emphasis added). According to Franckowiak,
the entire discussion lasted just 30 seconds—in fact, he says,
“[i]t could have been [even] shorter than that.” Id.
No. 02-4143 21
Franckowiak, the arresting officer, testified that he did
not observe whether any passersby were bothered by (or exhi-
bited any reaction whatsoever) to Braun’s behavior during
the brief 30-second (or less-than-30-second) discussion. Id.
But Deputy Sheriff Kimberly Dunigan, who also had re-
sponded to the scene along with Franckowiak, was standing
nearby and observing the entire incident and noted
that Braun was not blocking any doorway, courtroom or jury
room, and instead remained “basically in the middle of the hall-
way.” See Dunigan Dep. at 18 (emphasis added). Further,
she recounted that, “[d]uring the 30 seconds to a minute
that Deputy Franckowiak had confronted Mr. Braun . . . [no]
crowd gather[ed].” Id. at 26. She also recounted that she saw
no one “stop in the hallway” to gawk or watch the scene,
nor did she see any passersby “respond in any way to what
Mr. Braun said to Deputy Franckowiak.” Id. at 28 (emphasis
added). Finally, although Dunigan stated at her deposition
that Franckowiak at one point asked Braun to “step aside,”
and further stated that Braun refused, this statement
likewise is a disputed issue of fact, for Deputy Franckowiak
himself denied giving such a command, testifying instead that
“the only thing [he] asked [Braun] to do [was] to come with him
[into custody],” and that Braun “obeyed [that order].” See
Franckowiak Dep. at 15 (emphasis added).
Deputy Sheriff Keith Kolodzyk came in “[a]t the end” of
Braun’s discussion with Franckowiak, see Kolodzyk Dep. at
10, and watched as Braun was put under arrest. He con-
firmed that “[no] crowd gather[ed]” at any point, but, as is
frequently the case, one witness sees a situation one way
while another interprets it a different way, and Kolodzyk
remarked (in conflict with Deputy Dunigan’s testimony)
that some passersby did “seem[] upset and . . . were moving
away” from the area. Id. at 16. Most interestingly, Kolodzyk
has never specified much less explained how he came to this
22 No. 02-4143
conclusion that the alleged passersby seemed “upset,” nor
has he given any suggestion as to what was in fact causing
4
the alleged passersby to exhibit a reaction.
At this time, after detaining Braun for “[c]lose to an hour,”
see Braun Dep. at 42, Franckowiak finally decided to issue
Braun a citation for disorderly conduct—after a nurse
intervened after taking Braun’s blood pressure—and
escorted him out the door of the courthouse building. Braun
immediately returned to the scene of the activity and joined
Currier, and the two men continued to distribute pamphlets
within the building for another 30 to 45 minutes, during
which time no other officer made contact with them. Nor
did Franckowiak ever again order Braun to cease
pamphleting or leave the premises. Ultimately, Braun and
Currier decided to leave the courthouse of their own accord.
4
One would like to know whether the alleged reaction of pass-
ersby was caused by Braun’s purportedly “disorderly” conduct,
or perhaps by Deputy Sheriff Franckowiak’s allegedly “angry”
behavior (which he exhibited in spite of the fact that he was well
aware the pamphleting was permitted and furthermore that he
had “no problem with [the pamphleting activities] at all,”
Franckowiak Dep. at 10)? From the facts before us, either scenario
is plausible. After all, Deputy Sheriff Dunigan observed that
Franckowiak was “irritated by [Braun’s] camera,” Dunigan at 28,
and Braun himself claimed Franckowiak “showed anger toward
[him (Braun)]” during their discussion, and refused to give him
any “chance to respond” to his (Franckowiak’s) allegation that
“[Braun] was doing something wrong.” See Braun’s Certified
Declaration ¶¶ 5, 7, and 9. Such an unwarranted demonstration
of anger toward a peaceful pamphleter may very well have of-
fended the sensibilities of passersby, causing them to “seem
upset.”
No. 02-4143 23
Some months after receiving the citation, Braun appeared
in court in response to the disorderly conduct charge issued
by Deputy Sheriff Franckowiak. But the charge never went
forward, for, at the first in-court hearing in the matter, the
district attorney must have agreed with Braun that he could
not prove the disorderly conduct charge and moved the
court to withdraw the charge. The court acquiesced and
dismissed the pending (and indeed most questionable)
disorderly conduct charge.
To address the district court’s and the majority’s conclu-
sions that Franckowiak had probable cause to arrest Braun
for disorderly conduct, I must point out that, contrary to the
Rule 56(c) summary judgment standard which allows us
“only [to grant summary judgment if] the record discloses no
dispute as to any material fact,” Lesch v. Crown Cork & Seal Co.,
282 F.3d 467, 471 (7th Cir. 2002) (emphasis added), both the
district court and the majority of this Court, in reaching their
conclusion to grant summary judgment on the probable cause
issue, have improperly relied on “facts” in the record that remain
in dispute at this stage.
The district court, for instance, relies heavily on Deputy
Sheriff Kolodzyk’s testimony that others in the courthouse
lobby “ ‘seemed upset and . . . were moving away from the
disturbance,’ ” Braun v. Baldwin, No. 01-CV-852, at *4 (E.D.
Wis., November 14, 2002), to support that Braun’s interac-
tion with Deputy Sheriff Franckowiak was “disorderly,”
and further remarks that this testimony was “[u]nrebutted” in
the record. Id. This is a misstatement of the record and is not
the case, for Deputy Sheriff Kolodzyk’s claim that people
“seemed upset” was rebutted elsewhere in the record—
24 No. 02-4143
5
namely, by Deputy Sheriff Dunigan. Deputy Dunigan—
who was also a witness to the entire scene—testified at her
deposition that she “[d]id [not] see any person passing by
respond in any way to what Mr. Braun said to Deputy
Franckowiak.” Id. at 28 (emphasis added). Thus, viewing the
facts in the light most favorable to Braun as I have pointed
out earlier we are mandated to do under the ruling case law,
Dunigan’s testimony clearly supports the very logical
inference that passersby were unaffected and uninterested
by and even oblivious of the discussion between Braun
and Franckowiak (perhaps because nothing was going
6
on) —and this evidence falls far short of supporting
Franckowiak’s contention that Braun’s behavior “tended to
cause or provoke a disturbance.”
5
Furthermore, Deputy Kolodzyk (who claimed that passersby
“seemed upset”) at no time gave any specific details or other
information as to why he reached the conclusion people “seemed
upset” by Braun’s and Franckowiak’s discussion; thus, if we
draw all inferences in favor of Braun (as we must), we might just
as well logically assume that those who became “upset” did so
because they witnessed Franckowiak’s “anger” toward Braun—
not because they were somehow offended by Braun’s conduct.
See supra note 4.
6
Franckowiak being the diligent officer that he is, we may also
presume that if passersby had exhibited negative reactions to
Braun’s discussion with Franckowiak, Franckowiak would have
done a thorough investigation and obtained the names and con-
tact information of those bystanders in anticipation of the instant
litigation. According to the evidence in the record, no such
bystandards were contacted or otherwise came forward with any
testimony—either that they witnessed the exchange between
Braun and Franckowiak, or that they were negatively affected by
the discussion between the two men.
No. 02-4143 25
The Court’s majority in this case similarly casts aside
conflicting evidence in the record when it recites the “fact”
that Braun “[refused an order by Franckowiak] to ‘step
aside’ ” in support of its conclusion that there was probable
cause to arrest. Opinion at 2, 7-9. As an examination of the
record reveals, the very person who Dunigan claims gave
the “step aside” order—Officer Franckowiak himself—
emphatically refuted this allegation at his deposition. In-
deed, Franckowiak stated that he only gave Braun one
order—to “come with [him]” into custody—an order with
which Braun fully complied. See Franckowiak Dep. at 15
(emphasis added). Franckowiak further admitted that he
never “instruct[ed] [Braun] to move to a different part of the
hallway.” Id. at 14-15 (emphasis added). Moreover,
Franckowiak’s recitation of his reasons for arresting Braun,
recorded on the face of the citation itself, made no mention
whatsoever of any “step aside” order (nor of Braun’s alleged
refusal to obey such an order) as the reason for the disor-
derly conduct arrest. See Braun Aff., Exhibit B (noting only
that Braun “stated [that] he didn’t have to listen to
[Franckowiak] and that he wanted [Franckowiak’s] picture
to sue [him]” and that Braun “was advised to leave and
wouldn’t [and was thereafter] [p]laced under arrest and
served citation.”). It is certainly strange, and I am at a loss
to understand how Deputy Dunigan heard Franckowiak
give an order that he (Franckowiak) himself claimed he
never gave, but one thing is clear: this Court would be
foolhardy to accept her word as convincing at this stage, for
the very officer (Franckowiak) involved denies and contest
7
Deputy Dunigan’s assertion.
7
Braun’s version of events likewise seems to contradict
Dunigan’s allegation that Franckowiak gave Braun (and Braun
(continued...)
26 No. 02-4143
7
(...continued)
refused) an intermediate “step aside” order. While the majority
claims that Braun “admits [that Franckowiak . . . asked Braun to
‘step aside’],” see Opinion at 2, the record reflects otherwise, for
Braun never admits in the record that Franckowiak issued him an
order “to step aside from the crowd in the hallway to speak with
[Franckowiak],” see Franckowiak’s Br. at 5.
Braun testified at his deposition that, when Officer
Franckowiak approached him, Franckowiak immediately in-
formed him (Braun) that he “c[ould]n’t hand out papers in th[e]
hallway,” see Braun Dep. at 38—a false assertion, given that
Braun had been given permission by the County Sheriff to pass
out fliers in the courthouse (as Franckowiak was well aware,
see Franckowiak Dep. at 10 (admitting “there [wa]s nothing
unlawful about [Braun] handing out literature [in the court-
house]” and that he knew Currier and Braun “distributed
literature at a certain time every year in September”)). See
supra note 2. Franckowiak then proceeded to “[order Braun] to
leave the building” and thereafter (when Braun refused to leave,
given that he did have permission to pass out flyers) said, “you’re
coming with me” and put Braun under arrest. See Braun Dep. at
38. See also Braun’s Br. at 8 (“[Franckowiak told] Braun. . . to leave
the building because he could not pass out pamphlets or take his
picture . . . [and, a]fter taking Franckowiak’s picture,
[Franckowiak] grabbed [Braun’s] arm . . . [and] placed him under
arrest.”). Thus, Braun never stated either at his deposition or
elsewhere in his briefs and court filings that Franckowiak issued
him an order (or that Braun refused an order) to “step aside” to
discuss his pamphleting activites.
Considering that Braun and Franckowiak both deny
Franckowiak ever gave (or Braun ever refused to obey) a “step
aside” order, it is beyond comprehension that the majority can
rely on such a dubious allegation to support the grant of sum-
mary judgment to Franckowiak. I refuse to join the majority in
(continued...)
No. 02-4143 27
Nor was Braun’s arrest justified by the fact that court-
house security breaches such as the Oklahoma City bomb-
ings had “heightened fears” connected to courthouse acti-
vities, Opinion at 7, for contrary to the majority’s speculation,
there is no evidence that Braun has ever posed any security threat
in performing his annual Jury Rights day pamphleting activities
spanning the years 1993 to 2000. See Defendants’ Memoran-
dum in Support of Summary Judgment at 2-3 (“it is undis-
puted that from 1993 until 2000, Braun and Currier [partici-
pated in] Jury Rights Day annually by distributing pam-
phlets promoting their views on jury nullification in the
Milwaukee County Courthouse without notable incident.”)
After all, Braun and Currier had engaged in peaceful
pamphleteering activity inside the courthouse on at least
seven occasions in the past, and all the evidence suggests that
Braun’s and Currier’s prior Jury Rights day activities
occurred without any problems or disturbance (although
these activities may have been a nuisance to the Milwaukee
County authorities—a nuisance created by their own poor
judgment in giving these two men permission to pamphlet
8
on the premises of the courthouse). See Defendants’ Pro-
7
(...continued)
putting words in Franckowiak’s mouth that both Franckowiak
and Braun deny were ever said, and certainly do not believe that
such a flimsy allegation may be used to support a grant of sum-
mary judgment to Franckowiak.
8
Franckowiak admits that Braun and Currier had permission to
pass out pamphlets inside the courthouse, and states that, “[w]ith
the exception of 1993, Braun participated in the annual obser-
vance of Jury Rights day [by passing out pamphlets inside the
courthouse] . . . and was not forbidden from doing so, and was
not removed from the Courthouse, and was issued no citations
(continued...)
28 No. 02-4143
posed Findings of Fact [hereinafter DPFF] ¶ 7, 10 (“With the
exception of 1993, Braun participated in the . . . observance
of Jury Rights day [by handing out pamphlets in the
courthouse on an annual basis, beginning in approximately
1991] and was not forbidden from doing so, was not re-
moved from the Courthouse, and was issued no citations
until September 5, 2000.”). Indeed, Milwaukee County
deputy sheriffs—including Franckowiak—knew Braun and
Currier from prior encounters, and Officer Robinson even
conceded that relations with the men were “friendly.” See
Robinson Dep. at 13 (“We have always been on a friendly
type basis.”). In fact, the Milwaukee County Sheriff—the
County’s chief law enforcement officer—being aware of and
providing his consent to Braun’s and Currier’s pamphleting
activities, agreed not to interfere with the distribution of leaflets
on the courthouse premises on the date in question. See supra at
15-16. Clearly, the majority’s observation in this factual situ-
ation that courthouses are “potentially dangerous places” is
8
(...continued)
until September 5, 2000.” Defendants’ Proposed Findings of Fact
¶ 10. Braun did receive one citation for distributing the pam-
phlets, in 1993, but at that time the Chief Judge of Milwaukee
County had previously issued some type of directive prohibiting
pamphleting inside the courthouse; therefore, issuing a citation
for such activity was entirely proper. The prohibition was there-
after rescinded on September 12, 1995, see supra note 2; thus, by
the date of Braun’s arrest in this case (September 5, 2000), there
was no prohibition against pamphleting in the courthouse, and
in fact Braun and Currier had received express permission to do
so, as long as their activities remained “peaceful and orderly.” See
id. Moreover, there is no evidence in the record that, since
receiving permission to pass out pamphlets, Braun and Currier
had engaged in any impermissible or disorderly conduct in
connection with their Jury Rights day pamphleting activities.
No. 02-4143 29
a scare tactic, for comparing the pamphleting situation in
Milwaukee County to the Oklahoma City bombing borders
on the extreme. General courthouse security concerns of the
Oklahoma City bombing variety had no application here,
for Braun and Currier were a known quantity to
Franckowiak and his peers due to their prior pamphleting
activities (at least seven occasions over a period of nine
years).
After clearing up these misstatements in the record, it
is not surprising that the County prosecutor moved to dismiss
and the court granted dismissal of the disorderly conduct charge
against Braun, for the prosecutor likewise must have been
convinced he would not be able to establish probable cause
for the arrest based on the totality of the evidence presented
by the complexity of all of the litigants and the witnesses.
Indeed, the only undisputed facts that Franckowiak relies on
to justify his decision to arrest Braun are: (1) Braun’s
snapping a picture of Franckowiak; (2) his refusal to answer
Franckowiak’s inquiry as to why he was in the courthouse;
and (3) his statement that he “didn’t have to listen” to
Franckowiak and would sue Franckowiak if he infringed his
First Amendment rights. Since when has any one of these
acts, or even a combination of some or all of these acts, been
the basis for a conviction on a disorderly conduct charge
under the Milwaukee County Ordinance?
The taking of the picture of an officer is certainly not
adequate to support a disorderly conduct charge, for such
activity is not the type that tends to “cause or provoke
a disturbance.” Franckowiak failed to supply any case law
in support of his theory that the mere taking of a police offi-
cer’s picture has been adjudged an act of disorderly con-
duct; nor have we, in conducting our research, been able
to find any case law in support of his claim. Furthermore,
the County did not put forth any ordinance that restricted
30 No. 02-4143
or prohibited the use of cameras inside courthouse hallways
9
at the time Braun took Franckowiak’s picture. Indeed, the
County, at oral argument, expressly admitted that the fact that
Braun took a picture inside the courthouse “was not disorderly
10
conduct."
Turning to Braun’s failure to inform Franckowiak what
business brought him to the courthouse, I am similarly
unconvinced that his failure to respond to this inquiry was
the type of behavior that “tends to cause or provoke a dis-
turbance.” Milwaukee County Code ¶ 63.01(1). After all,
“[p]olice officers reasonably may be expected to exercise a higher
degree of restraint than the average citizen and should be less
likely to be provoked into misbehavior by [offensive] speech.”
Payne v. Pauley, 337 F.3d 767, 777 (7th Cir. 2003) (emphasis
added). Moreover, it was obvious what Braun was doing, for
Braun was engaged in pamphleting activities in the very
courthouse hallway area where (as Franckowiak admits)
Braun had been granted permission to pass out pamphlets.
And although Franckowiak claims he did not see Braun
passing out pamphlets prior to putting him under arrest,
Braun vigorously disputes this fact, and claims that the first
thing Franckowiak said to him (Braun) upon approaching him
was: “[Y]ou can’t hand out papers in this hallway and you can’t
take pictures in this hallway.” See Braun’s Dep. at 37. Given
9
Nor did Milwaukee County put forth any evidence that pam-
phleting was restricted by ordinance. See supra note 2 (discussing
Franckowiak’s admission that Braun’s pamphleting activities
were expressly permitted by the Milwaukee County Sheriff him-
self).
10
Officer Robinson, whose picture was taken by Braun, also ad-
mitted that Braun “was not loud . . . was not boisterous, and . . .
was not causing a disturbance” at any time (including during her
own picture-taking incident). See Robinson Dep. at 15.
No. 02-4143 31
that Franckowiak knew full well who Braun was, and
obviously was aware of what Braun was doing in the
courthouse, and considering his admission that he had seen
Braun and Currier passing out fliers on numerous prior
occasions inside the courthouse, Franckowiak’s demand
that Braun explain what he was doing in the courthouse was
more likely a harassment tactic than a good-faith request for
information in connection with an investigation. In any case,
Braun’s failure to respond to this inquiry clearly fell far
short of “ ‘warrant[ing] a prudent [person] in believing that
[Braun] had committed or [wa]s committing an offense.’ ”
Mounts, 248 F.3d at 715 (quoting United States v. Gilbert, 45
F.3d 1163 (7th Cir. 1995)).
As for Braun’s statements that he “didn’t have to listen to”
Franckowiak’s order to leave the premises, and would file
a lawsuit against Franckowiak if he was forced to leave and
cease pamphleting, these likewise are obviously inadequate
grounds for arrest, for “[s]urely, one is not to be punished for
nonprovocatively voicing his objection to what he obviously felt
was a highly questionable [order] by a police officer.” Norwell v.
City of Cincinnati, 414 U.S. 14, 16 (1973) (in which a man was
placed under arrest after refusing to answer a police offi-
cer’s inquiry as to whether he lived in the neighborhood,
and instead informing the officer, “I don’t tell you people
anything”) (emphasis added). “Regardless of what the
motivation may have been behind [Braun’s] expression in
this case, it is clear that there was no abusive language or
11
fighting words.” Id.
11
Braun’s statements—(1) that he “didn’t have to listen to”
Franckowiak’s assertion that Braun was “not allowed” to pass out
papers and (2) that he would sue Franckowiak if forced to stop
pamphleting—fall far outside the scope of “fighting words”
(continued...)
32 No. 02-4143
The Supreme Court has indeed emphasized that “the First
Amendment protects a significant amount of verbal criticism
and challenge directed at police officers.” City of Houston v.
Hill, 482 U.S. 451, 461 (1987) (emphasis added). As this
Court recently asserted, “even profanity-laden speech
directed at police officers” qualifies as First Amendment-
protected speech. See Payne v. Pauley, 337 F.3d 767, 776 (7th
Cir. 2003) (emphasis added). Also pertinent to the instant
case, we noted that “arguing with a police office[r] does not
evolve into disorderly conduct merely because a crowd
gathers to watch the argument.” Id. at 777 (emphasis
added). Because swearing at and arguing with a police
officer do not always rise to the level of disorderly conduct,
we noted in Payne that “[p]olice officers must be more thick
skinned than the ordinary citizen and must exercise re-
straint in dealing with the public. They ‘must not conceive
that every threatening or insulting word, gesture, or motion
amounts to disorderly conduct.’ ” Id.
Here, Braun did not use any profanity; and, although
he did question Franckowiak’s authority to order him
from the courthouse, no crowd gathered around him and
Franckowiak during this discussion. Indeed, if Braun’s
testimony is accurate, there was no reason for a crowd to gather,
for there was nothing “disorderly” taking place: Braun
merely informed Deputy Sheriff Franckowiak that (contrary
to Franckowiak’s assertions) he did “ha[ve] permission to be
in the hallways handing out fliers,” see Braun Dep. at 40,
11
(...continued)
delineated in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
particularly since Braun claims (and we must accept) that he
made the statements in a normal tone of voice, and a calm, “non-
boisterous” manner.
No. 02-4143 33
and that he would sue if he was forced to leave. Indeed, this
was a reasonable (though unfortunate) response under the
circumstances, considering Braun had been advised by the
Milwaukee County Sheriff that he could pass out pamphlets
in the courthouse lobby that day (a fact that is not disputed
by the County), and thus he was of the belief that he was
allowed to participate in what Franckowiak was telling him
he could not do (i.e., the distribution of fliers in the hall-
way).
In any event, it is clear that these statements were neither
“threatening, profane [n]or obscene,” much less “plainly
likely to cause a breach of the peace by the addressee . . .,”
Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942), and
thus do not fall within the ambit of conduct proscribed by
the Milwaukee disorderly conduct ordinance. Thus, it is
most clear that Braun’s conduct did not rise to the level of
disorderly conduct under the Ordinance (much less estab-
lish probable cause to make an arrest under the Ordinance),
if we are to interpret and not make the law.
Though this is the Court’s first opportunity to address the
Milwaukee County disorderly conduct ordinance, it is
worth noting that, in other instances, we have required far
more egregious conduct than what is at issue here to sup-
port a “disorderly conduct” violation. For example, in Lester
v. City of Chicago, 830 F.2d 706, 708 (7th Cir. 1987), we
considered whether evidence that a defendant had—inside
a police station lobby—“holler[ed] and scream[ed]” at police
officers, “push[ed] people out of her way,” and caused
onlookers to “sh[y] away,” was sufficient to support a find-
ing of probable cause under the Illinois disorderly conduct
statute. Noting that the defendant in that case had engaged
a police officer in a “loud, offensive argument,” and that there
was evidence the argument had “disrupted the station’s normal
activities,” id. at 708, 715 (“[no]thing was getting done [in the
34 No. 02-4143
police station] other than [the] hollering”), we held there
was sufficient evidence to support a finding of probable
cause to arrest for disorderly conduct—but even in that case,
the probable cause question had been left for the jury.
Likewise, in Biddle v. Martin, 992 F.2d 673 (7th Cir. 1993),
we concluded that probable cause existed to arrest an in-
toxicated man for disorderly conduct, because the man had
engaged a police officer in a “violent argument,” after he
was informed by the officer that his car would be towed.
Id. at 677. We noted that “when a citizen’s argument with a
police officer is at issue, the key inquiry is [often] whether
there is a clear relationship between the citizen’s conduct and the
threat to public order.” Id. (emphasis added). We further rea-
soned that, because the defendant had “scream[ed] profani-
ties at an officer for ten minutes” (something we deemed an
unreasonable response under the circumstances), and
because the “screaming [wa]s accompanied by violent arm
gestures,” the “relationship between [the defendant’s] un-
reasonable conduct and a breach of the peace [wa]s clear
enough to satisfy the requirements of probable cause.” Id.
By contrast, in the case before us, Braun claims (and
we must accept) that he was “n[ever] loud or boisterous
[in] responding to [Franckowiak’s] questions . . . .” Currier Aff.
¶ 10 (emphasis added). Further, there is no allegation that
Braun punctuated his statements with obscenities, hand
gestures, much less hand or arm waves. By Franckowiak’s
own admission, the incident was but a mere 30 seconds
long—“[maybe] shorter.” See Franckowiak Dep. at 15. And,
as further evidence that Braun’s statements did not “tend to
create or provoke a disturbance,” I note that no one had
stopped to listen to Braun, no crowd had gathered around him,
and no passersby were “respond[ing] in any way to what [Braun]
said to Deputy Franckowiak.” See Dunigan Dep. at 28 (empha-
sis added). Thus, for all we know from the record before us,
No. 02-4143 35
people in the hallway in all probability may not even have
12
paid any attention at all to Braun and Franckowiak’s discussion.
Both Braun and Deputy Dunigan assert that Deputy
Franckowiak was angered by Braun’s statements to him just
prior to the arrest. See Braun’s Certified Declaration ¶ 5
(noting that Franckowiak “showed anger toward [Braun]”);
Dunigan Dep. at 28 (stating that Franckowiak was “irritated
by [Braun’s] camera” because it was “pretty rude” of Braun
to take Franckowiak’s picture). While I understand that
Braun’s behavior may have been annoying to Deputy Sheriff
Franckowiak, this alone does not justify an arrest for
disorderly conduct (nor an overly-heated response on the
part of Franckowiak), for, as noted earlier, “[p]olice officers
reasonably may be expected to exercise a higher degree of restraint
than the average citizen and should be less likely to be provoked
into misbehavior by [offensive] speech.” Payne, 337 F.3d at 776
(emphasis added). And in this case, given the absence of any
undisputed evidence that Braun’s statements were made in
a loud or boisterous manner, or that the exchange between
12
We are aware that under Wisconsin law, “[i]t is not necessary
that an actual disturbance must have resulted” from a person’s
conduct for that particular conduct to qualify as the “type which
tends to cause or provoke a disturbance.” City of Oak Creek v.
King, 148 Wis.2d 532, 545 (Wis. Ct. App. 1989) (considering the
meaning of an identical State of Wisconsin disorderly conduct
statute). But Wisconsin law does permit consideration of onlook-
ers’ subjective reactions as “evidence of [whether, under the]
circumstances,” a person’s actions “tend[ed] to create or pro-
voke” a disturbance. State v. Migliorino, 170 Wis.2d 576, 594 (Wis.
App. 1992). And in this case, the lack of reaction of passersby (no
crowd gathering, people “not responding in any way”) suggests
that the circumstances were not such that Braun’s actions in the
hallway rises to the level of “disorderly conduct.”
36 No. 02-4143
Braun and Franckowiak had any type of a disruptive effect
on passersby, there is insufficient basis for a finding of
probable cause.
Additionally, I would note that even the doctrine of qual-
ified immunity (which Defendant pleaded as an affirmative
defense but failed to address in his appellate brief) is un-
available (in my view) as a basis for affirming the grant of
summary judgment in this case. An officer is shielded from
liability under the doctrine of qualified immunity if his
conduct “does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.” Sparing v. Village of Olympia Fields, 266
F.3d 684, 687 (7th Cir. 2001). To evaluate a claim of qualified
immunity, we engage in a two-step analysis, asking: (1)
“whether the plaintiff[’s] claim states a violation of [his]
constitutional rights,” and then (2) “whether those rights
were clearly established at the time the violation occurred.”
Jacobs v. City of Chicago, 215 F.3d 758, 766 (7th Cir. 2000). “A
clearly established right is one where ‘[t]he contours of the
right [are] sufficiently clear that a reasonable official would
understand that what he is doing violates that right.’ ” Id.
In Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998),
we addressed the issue of probable cause in the context of
a Section 1983 case where the plaintiff disputes whether
probable cause exists:
[w]ith an unlawful arrest claim in a § 1983 action when
a defense of qualified immunity has been raised, we will
review to determine if the officer actually had probable
cause or, if there was no probable cause, whether a
reasonable officer could have mistakenly believed that
probable cause existed. Courts have referred to this
second inquiry as asking whether the officer had
“arguable” probable cause. Arguable probable cause
No. 02-4143 37
exists when “a reasonable police officer in the same
circumstances and with the same knowledge . . . as the
officer in question could have reasonably believed that
probable cause existed in light of well-established law.
Because I am convinced that material issues of fact remain
as to whether Franckowiak had probable cause, qualified
immunity must here be based, if at all, on a conclusion that
a reasonable officer could have mistakenly believed that
probable cause existed. Unfortunately for Franckowiak, the
same material issues of fact that preclude a legal determina-
tion of probable cause at this stage similarly preclude a
determination that a reasonable person in Franckowiak’s
position could have failed to ascertain that what he was
doing was illegal. To name a few, there remains a dispute as
to: (1) whether Braun was addressing Franckowiak in a loud
or boisterous manner; (2) whether Braun disobeyed an
alleged “step aside” order given by Franckowiak (which
Franckowiak himself denies making); and (3) whether
Braun’s statements to Franckowiak had any negative effect
on passersby in the vicinity (Braun says no crowd was
gathering, and nobody was bothered, while other evidence
suggests passersby were “upset”). Given that these material
facts are in dispute, Defendant Franckowiak is not entitled
to qualified immunity as a matter of law, for reasonable
persons could disagree on whether a reasonable law
enforcement officer in the same circumstances and with the
same knowledge as Franckowiak could have reasonably
believed the arrest was lawful.
I want to make it eminently clear that I do not condone
the foolish actions of these two individuals—Braun and
Currier—who hold themselves out as protectors of the
ideals of our United States Constitution, for in my estima-
tion these men are merely seeking notoriety, and are doing
38 No. 02-4143
so at the expense of their fellow citizens and the justice sys-
tem. Indeed, their local community might be better served
by their marching and performing in the annual circus
parade than by their continuing their annual visits to the
Milwaukee County Courthouse to advocate such a destruc-
tive practice as jury nullification. Nonetheless, Milwaukee
County officials have—at least until now—permitted these
two men to pass out jury nullification fliers on Jury Rights day
(which is also a clear exercise of poor judgment), and so
Braun’s actions on September 5, 2000 (his passing out the
literature, his taking Franckowiak’s picture, his maintaining
that he had permission to pass out fliers, and his refusal to
leave the premises unless he was given a valid reason for
doing so) could not be classified as unlawful or disruptive
actions (at least if we are to assume, as we must at this
stage, that these actions were done in neither a loud nor
boisterous manner). Because Braun’s actions fall short of
supporting probable cause for arrest, I would reverse the
district court’s grant of summary judgment on Plaintiff’s
unlawful arrest claim.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-10-03