Purtell, Jeffrey v. Mason, Bruce

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-3176

JEFFREY R. P URTELL and V ICKI A. P URTELL,

Plaintiffs-Appellants,

v.

B RUCE M ASON, in his individual capacity,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 7005—Amy J. St. Eve, Judge.

____________

A RGUED A PRIL 4, 2007—D ECIDED M AY 14, 2008

____________

Before K ANNE, W ILLIAMS, and SYKES, Circuit Judges.

S YKES, Circuit Judge. This free-speech lawsuit requires

us to determine the present scope of the “fighting-words”

doctrine. The setting is a neighborhood feud. The case

features an unsightly, 38-foot recreational vehicle stored

on a residential driveway in suburban Chicago, a neigh-

borhood petition drive to force its removal, and a derog-

atory Halloween yard display erected in retaliation

against the neighbors who led the petition drive. An

unlucky police officer dispatched to mediate the dispute

2 No. 06-3176

was sued for his efforts, accused of violating the First

and Fourth Amendments.

The plaintiffs claimed their Halloween display—wooden

tombstones with epitaphs describing, in unflattering

terms, the demise of their neighbors—was constitutionally

protected speech. They alleged their rights under the

First and Fourth Amendments were violated when the

officer ordered them to remove the display on pain of

arrest. The district court granted summary judgment

for the officer on the Fourth Amendment claim but per-

mitted the free-speech claim to proceed to trial. A sensible

but probably misinstructed jury returned a verdict for

the police officer.

We affirm. Summary judgment on the Fourth Amend-

ment claim was properly granted. At the moment of arrest,

the neighbor-combatants were engaged in a noisy argu-

ment over the tombstones, culminating in a “chest-butt.”

This provided probable cause to arrest for disorderly

conduct. The First Amendment claim need not have been

tried. The tombstone inscriptions, although insulting,

cannot be considered fighting words as that doctrine

is presently understood. The display was, accordingly,

protected speech. But the officer’s mistake about the

scope of the plaintiffs’ constitutional right to ridicule their

neighbors was one a reasonable officer might make in

this situation. He was therefore entitled to qualified im-

munity.

I. Background

Jeffrey and Vicki Purtell owned a large recreational

vehicle—38 feet long and 12 feet high—and for a while

stored it at a rental-storage facility. In 2001, however, they

No. 06-3176 3

fell on hard financial times and parked it on the driveway

of their home in the Village of Bloomingdale, Illinois. There

it sat for more than a year. Here is a picture:

The Purtells’ neighbors were unhappy but tolerated the

presence of this eyesore, at least initially. Their patience

eventually wore thin, however, and they complained to

the Village of Bloomingdale. There was little the Village

could do because the Purtells were not violating any

existing laws.

Several of the neighbors then took matters into their own

hands and started a petition drive urging the Village to

adopt an ordinance banning homeowners from storing

RVs on their property. This effort was ultimately success-

ful. In late November 2002, the Village Board enacted an

ordinance prohibiting the storage of RVs on residential

property.

The Purtells eventually complied with the ordinance

and moved their RV, but not before making a crude

4 No. 06-3176

retaliatory statement to their complaining neighbors. While

the RV ordinance was still under consideration by the

Village Board, the Purtells erected six wooden tombstones

on their front lawn. It was mid-October and Halloween

was coming, but the tombstones were not mere seasonal

decorations; they carried a message for the neighbors

who had pressed for the RV ordinance. Five of the six

tombstones referred to a specific complaining neighbor

followed by a short inscription describing the neigh-

bor’s death.

To be more specific, each tombstone was about three feet

tall, and they were placed about five feet from the side-

walk, facing the street. Here is a picture of the display:

The tombstones were inscribed with epitaphs, in doggerel

verse, directed at the neighbors who had petitioned for the

RV ordinance. All but one referred to particular neighbors

by name and specified a year of death corresponding to the

No. 06-3176 5

neighbor’s street address, plus one additional number.

For example, a tombstone referring to John Berka, who

resides at 188 Jackson Lane, was inscribed as follows:

Old John Burkuh

Said he didn’T give a care

So They buried hiM

aLive uP To his hair.

He couLdn’T breath

So now we’re relieved

Of ThaT NasTy oLd jerk!

~ 1888 ~

The remaining tombstones read as follows:

~ 1610 ~

Dyean was Known for Lying

So She was Fried.

Now underneath these daisies

is where she goes crazy!!

~ 1680 ~

Roses are red.

Violets are blue.

There’s stiLL some space

Waiting for you!

6 No. 06-3176

BeTTe wAsN’T ReaDy,

BuT here she Lies

Ever since thAt night She DieD,

12 Feet deep in this trench. . .

Still wAsn’T Deep enough

For thAt wenches STench!

~ 1690 ~

Here Lies Jimmy,

The OlD Towne IDiot.

MeAn As sin even withouT his Gin.

No LonGer Does he wear

that sTupiD Old Grin. . .

Oh no, noT where

they’ve sent Him!

~ 1690 ~

OLd Man CrimP was a

GimP who couldn’t hear.

SLiced his wife from ear To ear

She died. . .He was Fried.

Now They’re TogeTher

again side by side!

~ 1720 ~

No. 06-3176 7

CrysTy wAs misTy-eyed

The DAy she DieD

AXE to the HeAD. . .

No DoubT She wAs DeAD.

Now There’s no more comPlain’n

Even When iT’s rain’n!

~ 1860 ~

These inscriptions referred to neighbors Diane Lesner,

Betty Garbarz, James Garbarz, and a neighbor who owned

a crimping shop. The “misty-eyed Crysty” referred to on

the sixth tombstone was fictional; Jeff Purtell said he

included this one to “balance out” the display.

The Purtells’ neighbors were upset by the tombstone

display, and several called the Bloomingdale Police

Department to report that they felt intimidated by it and

wanted it removed. On October 18 police officers were dis-

patched to the neighborhood and attempted to persuade

Jeff Purtell to take down the tombstones; he refused, but

agreed to cover the names with duct tape.

Halloween came and went, and still the tombstones

remained. The simmering tension in the neighborhood

eventually came to a boil on November 6, 2002, when the

police were called because the duct tape had fallen off the

tombstones and the names were visible again. Officer

Bruce Mason and another officer went to the neighbor-

hood to try once more to mediate the dispute. They spoke

with Betty Garbarz and Diane Lesner, who told the officers

they felt threatened by the display, which they saw as a

means for Purtell to vent his anger over the dispute about

his RV. The officers then went to the Purtell residence and

8 No. 06-3176

met with Jeff Purtell, explaining the depth of his neighbors’

reaction to the tombstones. Purtell agreed to reapply the

duct tape and came outside to do so. While he was reap-

plying the tape, Officer Mason asked him to take the

tombstones down altogether. Officer Mason told Purtell the

neighbors wanted him arrested because they felt threat-

ened by the display. Purtell said that was not his intent.

While Officer Mason and Purtell were talking on the

Purtells’ front lawn, Bob Lesner, the Purtells’ next-door

neighbor and husband of Diane Lesner (the subject of one

of the tombstones) arrived home. He came onto the

Purtells’ front lawn and began arguing with Jeff Purtell

about the display. Tempers flared, a shouting match

erupted, and Lesner chest-butted Purtell. After Officer

Mason separated the men, he told Purtell if he did not

agree to remove the tombstones, he would be arrested

for disorderly conduct. Purtell again refused and was

momentarily handcuffed. At that point, he rethought his

options and relented, saying he would rather take the

tombstones down than be arrested. Officer Mason removed

the handcuffs, and Purtell dismantled the tombstone

display.

The Purtells then sued Officer Mason for damages under

42 U.S.C. § 1983, asserting a First Amendment claim for

violation of their free-speech rights and a Fourth Amend-

ment claim for arresting Jeff Purtell without probable

cause. Officer Mason moved for summary judgment on

both counts, arguing that the arrest was supported by

probable cause and he was entitled to qualified immunity

because the speech on the tombstones was unprotected

under the “fighting-words” doctrine. The district court

granted the motion in part, holding there was probable

cause to arrest Purtell for disorderly conduct, but con-

No. 06-3176 9

cluded that material factual issues precluded a ruling on

qualified immunity on the First Amendment claim.

The case was then tried to a jury. At the close of evidence,

the Purtells orally moved for judgment as a matter of

law; the judge took the motion under advisement. The

court had decided to submit the question of whether

the speech on the tombstones constituted fighting words

to the jury, but the parties disagreed over the proper

language for the fighting-words jury instruction. Their

dispute centered on whether the definition of fighting

words should include words that “by their very utter-

ance inflict injury or tend to incite an immediate breach

of the peace”—the classic formulation from Chaplinsky v.

New Hampshire, 315 U.S. 568, 572 (1942)—or ought to be

limited to words that are inherently likely to incite an

immediate breach of the peace. The Purtells argued that

including speech that merely “inflicts injury” in the

definition of unprotected fighting words could not be

justified under more recent First Amendment case law.

The district court disagreed and instructed the jury as

follows:

Let me explain what speech is protected by the First

Amendment to the United States Constitution. Insofar

as this case is concerned, any and all speech is pro-

tected by the First Amendment to the United States

Constitution except what is referred to in law as

“fighting words.” In law, “fighting words” are abusive

words or phrases (1) directed at the person of the

addressee, (2) which by their very utterance inflict

injury or tend to incite an immediate breach of the

peace, that is, words that are likely to provoke a vio-

lent reaction, and (3) play no role in the expression of

ideas.

10 No. 06-3176

The jury returned a verdict in favor of Officer Mason. The

district court subsequently denied the Purtells’ Rule 50

motion and entered judgment in favor of Officer Mason.

The Purtells appealed.

II. Analysis

The Purtells contend the district court’s jury instruction

defining fighting words misstated the law. They also

challenge the denial of their Rule 50 motion, arguing that

the inscriptions on the tombstones were fully protected

speech under the First Amendment, not fighting words as

that doctrine has evolved. Both arguments depend on

whether speech that merely “inflicts injury”—as distinct

from speech that “tends to incite an immediate breach of

the peace”—may properly be regarded as fighting words

under the Supreme Court’s post-Chaplinsky case law. The

Purtells also contend that summary judgment on the

Fourth Amendment claim was improper. Officer Mason

defends the summary judgment, the jury instruction,

and the verdict. He argues in the alternative that he

should not have been subjected to trial at all because he

was entitled to qualified immunity; this determination

also turns on the proper legal standard for fighting words.

There is considerable merit to the Purtells’ argument

about the current reach of the fighting-words doctrine

(more on that later). However, we agree with Officer

Mason that this case should not have been tried. Qualified

immunity “shields government officials against suits

arising out of their exercise of discretionary functions ‘as

long as their actions could reasonably have been thought

consistent with the rights they are alleged to have vio-

lated.’ ” Jones v. Wilhelm, 425 F.3d 455, 460 (7th Cir. 2005)

No. 06-3176 11

(quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)).

The doctrine of qualified immunity is broad, protecting

“all but the plainly incompetent or those who knowingly

violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

Qualified immunity leaves “ ’ample room for mistaken

judgments’ by police officers.” Payne v. Pauley, 337 F.3d

767, 776 (7th Cir. 2003) (quoting Malley, 475 U.S. at 343).

This case involves just such a reasonable mistake.

A. Qualified Immunity Standard

Whether a government official is entitled to qualified

immunity is a legal question for resolution by the court,

not a jury. Hunter v. Bryant, 502 U.S. 224, 228 (1991); Hughes

v. Meyer, 880 F.2d 967, 969 (7th Cir. 1989); Jones v. City

of Chicago, 856 F.2d 985, 994 (7th Cir. 1988). Qualified

immunity “ordinarily should be decided by the court long

before trial,” Hunter, 502 U.S. at 228, “because ‘[t]he

entitlement is an immunity from suit rather than a mere

defense to liability,’ ” id. at 227 (quoting Mitchell v. Forsyth,

472 U.S. 511, 526 (1985)). The doctrine protects public

officials “from undue interference with their duties and

from potentially disabling threats of liability.” Harlow v.

Fitzgerald, 457 U.S. 800, 806 (1982); see also Borello v. Allison,

446 F.3d 742, 746 (7th Cir. 2006) (“Qualified immunity

protects a defendant from liability as well as from the

burden of standing trial. For that reason, courts should

determine as early on in the proceedings as possible

whether a defendant is entitled to qualified immunity.”).

Qualified-immunity claims are determined by reference

to the two-part inquiry established in Saucier v. Katz, 533

U.S. 194, 201 (2001). First, the court “must consider . . . this

threshold question: Taken in the light most favorable to

12 No. 06-3176

the party asserting the injury, do the facts alleged show

the officer’s conduct violated a constitutional right?” Id.;

see also Wilhelm, 425 F.3d at 460 (citing Saucier, 533 U.S. at

201). If the answer to this question is “yes,” then “the next,

sequential step is to ask whether the right was clearly

established” at the time of the alleged violation. Saucier,

533 U.S. at 201.

This second inquiry “must be undertaken in light of the

specific context of the case, not as a broad general prop-

osition.” Id. “The relevant, dispositive inquiry in deter-

mining whether a right is clearly established is whether

it would be clear to a reasonable officer that his conduct

was unlawful in the situation he confronted.” Id. at 202.

As long as “officers of reasonable competence could dis-

agree on [the] issue, immunity should be recognized.”

Malley, 475 U.S. at 341; see also Wagner v. Washington

County, 493 F.3d 833, 837 (7th Cir. 2007). Stated differently,

the “clearly established” inquiry asks whether “in the

light of pre-existing law the unlawfulness. . . [of the

conduct was] apparent.” Anderson, 483 U.S. at 640. The

plaintiff bears the burden of demonstrating the violation

of a clearly established right. Forman v. Richmond Police

Dep’t, 104 F.3d 950, 957-58 (7th Cir. 1997).

Saucier made it clear that the two steps in the qualified-

immunity determination “must be considered in proper

sequence.” 533 U.S. at 200. This “rigid order of battle” has

been criticized on practical, procedural, and substantive

grounds. 1 See Brosseau v. Haugen, 543 U.S. 194, 201-02 (2004)

1

The “rigid” order of the Saucier test has been called into

question because, among other things, it forces courts to resolve

constitutional questions unnecessarily when there is no clearly

(continued...)

No. 06-3176 13

(Breyer, Scalia, and Ginsburg, JJ., concurring) (“a rigid

‘order of battle’ makes little administrative sense and can

sometimes lead to a constitutional decision that is effec-

tively insulated from review”). The Supreme Court re-

cently granted certiorari to consider whether Saucier

should be overruled. Pearson v. Callahan, 76 U.S.L.W. 3510

(2008) (directing the parties to “brief and argue the follow-

ing question: ‘Whether the Court’s decision in Saucier v.

Katz, 533 U.S. 194 (2001) should be overruled?’ ”). In the

1

(...continued)

established right. Morse v. Frederick, 127 S. Ct. 2618, 2641 (2007)

(Breyer, J., concurring and dissenting) (“Sometimes the rule

will require lower courts unnecessarily to answer difficult

constitutional questions, thereby wasting judicial resources.

Sometimes it will require them to resolve constitutional issues

that are poorly presented. Sometimes the rule will immunize

an incorrect constitutional holding from further review. And

often the rule violates the longstanding principle that courts

should ‘not . . . pass on questions of constitutionality . . . unless

such adjudication is unavoidable.’ ” (citation omitted)); Bunting

v. Mellen, 541 U.S. 1019, 1024-25 (2004) (Scalia, J., dissenting

from denial of certiorari) (identifying Saucier’s procedural and

substantive flaws and pointing out confusion among circuits

about whether the order of the Saucier test is customary or

mandatory); Saucier v. Katz, 533 U.S. 194, 210 (2001) (Ginsburg,

J., concurring); Lyons v. City of Xenia, 417 F.3d 565, 580-84 (6th

Cir. 2005) (Sutton, J., concurring) (describing the practical and

legal anomalies of Saucier’s sequential-question mandate);

Dirrane v. Brookline Police Dep’t, 315 F.3d 65, 69-70 (1st Cir. 2002)

(stating the rigid order of the Saucier test “makes sense

where the issue is whether some abstract right exists[,] . . . [b]ut

it is an uncomfortable exercise where . . . the answer whether

there was a violation may depend on a kaleidoscope of facts

not yet fully developed”).

14 No. 06-3176

meantime, of course, we continue to apply the sequential

approach it prescribed.2

B. First Amendment Claim

The district judge declined to decide whether Officer

Mason was entitled to qualified immunity on the First

Amendment claim because she thought “there [was] a

genuine issue of material fact as to whether [the officer]

acted in an objectively reasonable manner when he asked

Jeffrey Purtell to take down the tombstones.” This was

error. The historical facts were undisputed. Whether

Officer Mason’s actions were reasonable is the second

half of the qualified-immunity inquiry. Whether the

facts established a constitutional violation (the first half

2

Officer Mason could have immediately appealed the denial

of his qualified-immunity claim. Behrens v. Pelletier, 516 U.S.

299, 313 (1996); Mitchell v. Forsyth, 472 U.S. 511, 524-25 (1985);

Coady v. Steil, 187 F.3d 727, 730 (7th Cir. 1999). That he did not

do so does not preclude us from resolving this appeal based

on qualified immunity. Pearson v. Ramos, 237 F.3d 881, 883 (7th

Cir. 2001) (“Even when there is a right of interlocutory

appeal, a party can wait till the case is over and then appeal,

bringing before us all nonmoot interlocutory rulings adverse

to him. This principle is as applicable to rulings on immunity

as to any other interlocutory rulings.”) (citations omitted);

Kurowski v. Krajewski, 848 F.2d 767, 773 (7th Cir. 1988) (holding

that “a public official may raise questions of immunity on

appeal from a final judgment, even though he bypassed an

opportunity to take an interlocutory appeal”). This principle

permits Officer Mason to raise qualified immunity as an

alternative ground upon which to affirm the judgment in

his favor.

No. 06-3176 15

of the immunity inquiry) requires a determination and

application of the proper legal standard for fighting

words. These were questions for the court, not the jury.

In Chaplinsky, the Supreme Court identified “certain

well-defined and narrowly limited classes of speech, the

prevention and punishment of which has never been

thought to raise any Constitutional problem.” 315 U.S. at

571-72. “These include the lewd and obscene, the profane,

the libelous, and the insulting or ‘fighting’ words—those

which by their very utterance inflict injury or tend to

incite an immediate breach of the peace.” Id. at 572. The

Court observed that “such utterances are no essential

part of any exposition of ideas, and are of such slight

social value as a step to truth that any benefit that may be

derived from them is clearly outweighed by the social

interest in order and morality.” 3 Id.

3

Although some of the Purtells’ neighbors said they felt

threatened by the tombstone display, Officer Mason prudently

did not invoke the “true-threats” doctrine. A “true threat” has

been defined as follows:

“True threats” encompass those statements where the

speaker means to communicate a serious expression of an

intent to commit an act of unlawful violence to a particular

individual or group of individuals. . . . The speaker need not

actually intend to carry out the threat. Rather, a prohibition

on true threats “protect[s] individuals from the fear of

violence” and “from the disruption that fear engenders,” in

addition to protecting people “from the possibility that

the threatened violence will occur.”

Virginia v. Black, 538 U.S. 343, 359-60 (2003) (citations omitted)

(quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992)). Nor

did Officer Mason attempt to defend his order to dismantle the

(continued...)

16 No. 06-3176

Although Chaplinsky purported to define fighting words

in the alternative—words that “by their very utterance

inflict injury or tend to incite an immediate breach of the

peace,” id. (emphasis added)—the statute under chal-

lenge in the case had been definitively construed by the

state courts to apply only to speech falling in the latter

category. Noting that “[t]he statute, as construed, does

no more than prohibit the face-to-face words plainly

likely to cause a breach of the peace by the addressee,” the

Court upheld it against a facial challenge. Id. at 573 (“We

are unable to say that the limited scope of the statute as

thus construed contravenes the constitutional right of

free expression.”). The Court then rejected the as-applied

challenge as well. The defendant in the case had been

convicted for calling a law enforcement officer a “damn

racketeer” and a “damn Fascist.” Id. at 569. The Court

held that “[a]rgument is unnecessary to demonstrate that

the appellations ‘damn racketeer’ and ‘damn Facist’ are

epithets likely to provoke the average person to retaliation,

and thereby cause a breach of the peace.” Id. at 574.

Accordingly, the Court in Chaplinsky had no occasion to

elaborate on the “inflict-injury” aspect of the fighting-

words definition it had articulated.

In later cases, the Court has either dropped the “inflict-

injury” alternative altogether or simply recited the full

Chaplinsky definition without further reference to any

distinction between merely hurtful speech and speech that

tends to provoke an immediate breach of the peace. See

Virginia v. Black, 538 U.S. 343, 359 (2003) (a cross-burning

3

(...continued)

tombstones as a reasonable “time, place, or manner” restriction.

See R.A.V., 505 U.S. at 386.

No. 06-3176 17

case decided on threat-doctrine grounds in which the

Court quoted the full Chaplinsky test but noted Cohen v.

California’s narrowing of the fighting-words doctrine);

Texas v. Johnson, 491 U.S. 397, 409 (1989) (in throwing out

a flag-burning conviction, the Court dropped the inflict-

injury prong of the Chaplinsky definition and confined

fighting words to those that are “likely to provoke the

average person to retaliation, and thereby cause a breach

of the peace”) (internal quotes omitted); NAACP v.

Claiborne Hardware Co., 458 U.S. 886, 927 (1982) (describing

fighting words as “those that provoke immediate vio-

lence”); Lewis v. City of New Orleans, 415 U.S. 130, 132

(1974) (quoting full Chaplinsky definition but omitting

any reference to the inflict-injury prong); Gooding v.

Wilson, 405 U.S. 518, 524-27 (1972) (same); Cohen v. Califor-

nia, 403 U.S. 15, 20 (1971) (modifying definition of fighting

words to encompass “those personally abusive epithets

which, when addressed to the ordinary citizen, are, as

a matter of common knowledge, inherently likely to

provoke violent reaction”); Terminiello v. City of Chicago,

337 U.S. 1, 4 (1949) (stating speech is protected “unless

shown likely to produce a clear and present danger of a

serious substantive evil that rises far above public incon-

venience, annoyance, or unrest . . . [;] [t]here is no room

under our Constitution for a more restrictive view”); see

also R.A.V. v. City of St. Paul, 505 U.S. 377, 414 (1992)

(White, J., concurring) (“The mere fact that expressive

activity causes hurt feelings, offense, or resentment does

not render the expression unprotected.”).

Although the “inflict-injury” alternative in Chaplinsky’s

definition of fighting words has never been expressly

overruled, the Supreme Court has never held that the

government may, consistent with the First Amendment,

18 No. 06-3176

regulate or punish speech that causes emotional injury

but does not have a tendency to provoke an immediate

breach of the peace. See Note, The Demise of the Chaplinsky

Fighting Words Doctrine: An Argument for its Interment,

106 H ARV . L. R EV. 1129, 1129 (1993) (“The jurisprudential

history of the Chaplinsky doctrine has led some commenta-

tors to conclude that the Court has sub rosa overruled the

entire fighting words doctrine, or at least the ‘inflict injury’

prong.”); see also L AURENCE H. T RIBE, A MERICAN C ON-

STITUTIONAL L AW § 12-18, at 929 n.9 (2d ed. 1988) (“The

Court has in effect incorporated the clear and present

danger test into the fighting words doctrine.”); Nadine

Strossen, Regulating Racist Speech on Campus: A Modest

Proposal?, 1990 D UKE L.J. 484, 508-09 (explaining that “the

first prong of Chaplinsky’s fighting words definition, words

‘which by their very utterance inflict injury,’ was dictum”;

the Court has subsequently “substantially narrowed

Chaplinsky’s definition of fighting words by bringing that

definition into line with Chaplinsky’s actual holding”). The

justification for “plac[ing] fighting words outside the

protection of the First Amendment” is not their capacity

to inflict emotional injury—many words do that—but

their tendency “to provoke a violent reaction and hence

a breach of the peace.” Nuxoll ex rel. Nuxoll v. Indian Prairie

Sch. Dist. #204, No. 08-1050, 2008 WL 1813137, at *2

(7th Cir. Apr. 23, 2008).

We have previously held that speech inflicting psychic

trauma alone—without any tendency to provoke respon-

sive violence or an immediate breach of the peace—does

not lose constitutional protection under the fighting-words

doctrine. Collin v. Smith, 578 F.2d 1197, 1203 (7th Cir. 1978)

(“A conviction for less than words that at least tend to

incite an immediate breach of the peace cannot be justi-

No. 06-3176 19

fied under Chaplinsky.”) Collin involved a proposed Nazi

march through the Village of Skokie, Illinois. The parade

would feature members of the National Socialist Party of

America wearing the uniforms of the German Nazi Party

and carrying Nazi flags bearing swastikas. Skokie had a

large Jewish population and was home to many Holocaust

survivors and their families; the potential for severe

psychological injury as a result of the proposed Nazi

parade was conceded. It was also conceded, however, that

the march was not likely to provoke responsive violence

or immediate breaches of the peace. Absent that tendency,

we held the speech in question did not qualify as fighting

words and remained constitutionally protected. Id.

We see nothing in the Supreme Court’s more recent

iterations of the fighting-words doctrine that would

presage a revitalization of the “inflict-injury” alternative

in the Chaplinsky definition. To the contrary, whatever

vitality it may have had when Chaplinsky was announced,

the “inflict-injury” subset of the fighting-words defini-

tion has never stood on its own. It seems unlikely that

speech causing emotional injury but not tending to

provoke an average person to an immediate breach of the

peace would qualify as fighting words, unprotected by

the First Amendment and therefore capable of being

regulated or punished without raising any constitutional

concern.

With this understanding of the contours of the fighting-

words doctrine, we proceed to step one of the Saucier

inquiry: whether Officer Mason violated the Purtells’ free-

speech rights by ordering Jeff Purtell to remove the tomb-

stones or face arrest. The jury found for the officer,

having been instructed that all speech is protected except

fighting words, which it was told included words that

20 No. 06-3176

“inflict injury” or “tend to incite an immediate breach of

the peace.” As we have noted, it was error to submit this

claim to the jury in the first place, but not because the

facts do not make out a constitutional violation—they

do, notwithstanding the jury’s verdict to the contrary.

While the tombstones apparently elicited an emotional

response from the Purtells’ neighbors—embarrassment,

anger, resentment, and for some, fear—the messages

were not, in context, the sort of provocatively abusive

speech that inherently tends to incite an immediate breach

of the peace. These were Halloween decorations, after all.

It is true their mocking messages were directed at par-

ticular neighbors as well as the passing public. See Hess v.

Indiana, 414 U.S. 105, 107-08 (1973) (speech must be per-

sonally insulting and directed at particular person or

group to be considered fighting words). But the average

person, understanding the full context, would recognize

the tombstone inscriptions as nothing more than an

adolescent attempt at retaliatory ridicule—not the sort

of inflammatory and personally abusive epithets that

tend to provoke a violent reaction.

As importantly, the tombstones were on display for

weeks without raising any potential for violence or dis-

ruption. Although an actual disturbance is not required

for the doctrine to apply, see Gower v. Vercler, 377 F.3d 661,

670 (7th Cir. 2004), to qualify as fighting words, the

speech in question must have a tendency to provoke an

average person to commit an immediate breach of the

peace. The tombstones did not have that tendency, and

in fact for a long time stood on the Purtells’ lawn with-

out incident, sometimes with the neighbors’ names ob-

scured by duct tape, sometimes not. The neighbors com-

plained to the police, but the scene remained quiet until

No. 06-3176 21

the November episode of shouting and chest-butting

between Purtell and Bob Lesner. Such a belated breach

of the peace cannot be attributed to the words themselves

or used to demonstrate that the speech at issue was

inherently provocative of a violent or “fighting” reaction.

Because the tombstones did not have an inherent ten-

dency to incite an immediate breach of the peace, they

did not fall within that “narrowly limited” class of unpro-

tected speech defined by the fighting-words doctrine.

Frankly, we doubt whether the words on the tombstones

were strong enough to qualify as words that “by their very

utterance inflict injury”—if that, standing alone, were

enough to constitute fighting words. Considered in

their context, the tombstones did not inflict the sort of

severe, personal, and inherently injurious insult that the

fighting-words doctrine contemplates, however wounded

the Purtells’ neighbors might actually have felt.

But Officer Mason’s mistake in thinking he could con-

stitutionally order Purtell to dismantle the tombstone

display on pain of arrest was one a reasonable officer

might make in this situation. Although the fighting-

words doctrine has been with us for decades, it has not

been entirely clear (as we have explained) whether

speech that injures but does not incite an immediate

breach of the peace is protected or unprotected. And

Officer Mason reasonably may have misunderstood the

immediacy requirement of the fighting-words doctrine

in the context of this case. He did have a fight on his

hands, and he reasonably believed he had the authority

to force the removal of the irritant in order to keep the

peace. In misapprehending the constitutionally pro-

tected status of the Purtells’ tombstone speech, Officer

22 No. 06-3176

Mason did not violate clearly established rights.4 First

Amendment line-drawing is often difficult, even in hind-

sight. Officer Mason’s on-the-street judgment, though

mistaken, is entitled to qualified immunity.

C. Fourth Amendment Claim

The district court granted Officer Mason’s motion for

summary judgment on the Fourth Amendment claim,

holding there was probable cause to arrest. See Morfin v.

City of East Chicago, 349 F.3d 989, 997 (7th Cir. 2003) (stating

that existence of probable cause bars § 1983 claim). This

decision was manifestly correct. “Police ordinarily have

probable cause if, at the time of the arrest, the ‘facts and

circumstances within the officer’s knowledge . . . are

sufficient to warrant a prudent person, or one of reason-

able caution, in believing, in the circumstances shown,

that the suspect has committed, is committing, or is about

to commit an offense.’ ” Wagner, 493 F.3d at 836 (quoting

Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). The facts

and circumstances are considered as they appeared to

Officer Mason at the time of arrest. Id.

Officer Mason arrested Purtell after witnessing his

participation in a loud argument with his neighbor that

4

This conclusion is supported by the Purtells’ inability to point

to a closely analogous case that would be instructive to an

officer faced with this situation. See Forman v. Richmond Police

Dep’t, 104 F.3d 950, 957-58 (7th Cir. 1997) (quoting Powers v.

Lightner, 820 F.2d 818, 821 (7th Cir. 1987)) (stating plaintiff can

meet burden of showing clearly established right by pointing

to “closely analogous cases” decided before the defendants

acted or failed to act).

No. 06-3176 23

had escalated to a chest-butt before the officer was able to

intervene to prevent further physical altercation. This

qualifies as disorderly conduct under Illinois law: “A

person commits disorderly conduct when he knowingly . . .

[d]oes any act in such unreasonable manner as to alarm

or disturb another and to provoke a breach of the peace.”

720 ILL. C OMP. S TAT. 5/26-1(a)(1) (2006). That Bob Lesner

was not also arrested is irrelevant. That the focus of the

argument was the tombstones—protected speech—is

likewise irrelevant. We have already held that Officer

Mason is entitled to qualified immunity to the extent the

arrest was related to Jeff Purtell’s exercise of his First

Amendment rights. The mounting public argument

between Lesner and Purtell supplied probable cause to

arrest for disorderly conduct apart from Purtell’s exercise

of free speech. Accordingly, there was no Fourth Amend-

ment violation, and summary judgment on this claim

was appropriate.

III. Conclusion

In closing, a few words in defense of a saner use of

judicial resources. It is unfortunate that this petty neigh-

borhood dispute found its way into federal court, invoking

the machinery of a justice system that is admired around

the world. The suit was not so wholly without basis in

fact or law as to be frivolous, but neither was it worth

the inordinate effort it has taken to adjudicate it—on the

part of judges, jurors, court staff, and attorneys (all, of

course, at public expense). We take this opportunity

to remind the bar that sound and responsible legal repre-

sentation includes counseling as well as advocacy. The

wiser course would have been to counsel the plaintiffs

against filing such a trivial lawsuit. Freedom of speech

24 No. 06-3176

encompasses “ ’the freedom to speak foolishly and without

moderation,’ ” Cohen, 403 U.S. at 26 (quoting Baumgartner

v. United States, 322 U.S. 665, 674 (1944)), but it does not

follow that every nominal violation of that right is—or

should be—compensable. See Brandt v. Bd. of Educ. of

City of Chi., 480 F.3d 460, 465 (7th Cir. 2007) (“[D]e

minimis non curat lex (the law doesn’t concern itself

with trifles) is a doctrine applicable to constitutional as to

other cases,” and an award of nominal damages “presup-

poses a violation of sufficient gravity to merit a judg-

ment, even if significant damages cannot be proved.”).

Not every constitutional grievance deserves an airing in

court. Lawsuits like this one cast the legal profession in

a bad light and contribute to the impression that Ameri-

cans are an overlawyered and excessively litigious people.

A FFIRMED.

USCA-02-C-0072—5-14-08