Reher v. Vivo

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2180

R ONALD D. R EHER,

Plaintiff-Appellant,

v.

F RANK V IVO , et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:09-cv-02801—Suzanne B. Conlon, Judge.

A RGUED M ARCH 29, 2011—D ECIDED S EPTEMBER 7, 2011

Before R OVNER, W ILLIAMS, and H AMILTON, Circuit Judges.

W ILLIAMS, Circuit Judge. An angry crowd accused

Ronald D. Reher of videotaping their children in a public

park. Police officers Marilyn Gabinski and Frank Vivo

arrested Reher for disorderly conduct. The charges were

eventually dropped and Reher sued the officers,

claiming they arrested him without probable cause in

violation of his Fourth Amendment rights. The district

court entered summary judgment in favor of the offi-

cers. Reher now appeals.

2 No. 10-2180

We find that Gabinski had probable cause to arrest

Reher because she was aware of suspicious circum-

stances surrounding Reher’s conduct and his presence

at the park that would justify an arrest for disorderly

conduct. Whether Vivo had probable cause is a closer

question because all Vivo knew at the time of the arrest

was that the crowd was upset and that Reher had been

accused of frequenting the park to film and look at the

children. While we find that the information possessed

by Vivo was too vague to give rise to probable cause

to arrest Reher for disorderly conduct, we conclude

that Vivo is entitled to qualified immunity because an

officer in his position could have reasonably but mistak-

enly believed that there was probable cause. We affirm.

I. BACKGROUND

Because we are reviewing the district court’s entry of

summary judgment against Reher, we recount the facts

in the light most favorable to him. See Grieveson v.

Anderson, 538 F.3d 763, 767 (7th Cir. 2008). On May 7, 2007,

after a morning of fishing, hiking, and videotaping wild-

life, Ronald Reher rode his bicycle to Edson Park in

Lombard, Illinois. Edson Park is a small neighborhood

park with a playground located behind two apartment

buildings, one of them located at 1155 South Finley. In

addition to his bicycle, Reher carried with him a bait

bucket, a fishing pole, a video camera, a pair of binoculars,

and a folding knife.

When Reher arrived at the park, there were about 15

to 20 people using it, including seven or eight children.

No. 10-2180 3

Reher sat on a bench and propped up his bicycle nearby. A

few of the adults, including Reher’s estranged seven-

teen-year-old daughter Ashley, started giving Reher

strange looks. Reher claims that he did not recognize his

daughter because he had not seen her in eight years.

After sitting in the park for about 30 minutes, Reher

was approached by Ezeldra Outlaw. Outlaw is Ashley’s

mother. Outlaw and Reher were in a romantic relation-

ship in 1990 and had lived together for a short time at

1155 South Finley. The relationship ended soon after

Ashley was born. By May 2007, it had been four years

since Reher had last seen Outlaw.

As Reher saw Outlaw approach, he claims that he

pulled out his video camera and turned it on to film the

encounter. Reher later stated in his deposition that he

did so because, “I was pretty much just going to cover

myself to make sure . . . if she said I threatened her,

I have to have proof that I didn’t.”

According to Reher, Outlaw started yelling at him that

he was “not supposed to be there.” She then snatched

the camera from his hands, threw it on the ground

several times (breaking it), and ran off across the

parking lot.

At this point, a “bunch of little kids” led by two

women, later identified as Crichandra Llorens and Cathy

Spitcock, started wheeling away Reher’s bicycle. The

neighbors had called the police and were allegedly trying

to prevent Reher from leaving before the police arrived.

Reher went over and said, “Let go of it. Don’t steal my

bike,” to which the women responded by accusing

4 No. 10-2180

Reher of “filming the kids here.” Reher denied that he

had been videotaping the children and said that he had

just been minding his own business. He then tried to

wrest the bike away from the crowd, but eventually let

it go out of concern for the children’s fingers.

Within a few minutes, five Lombard police offi-

cers—Officers Terry Evoy, Joseph Statkus, Paula

Krupiczowicz, and defendants Frank Vivo and Marilyn

Gabinski—arrived at the scene. Officer Vivo noticed that

there was a group of 20 to 25 visibly upset residents

near Officer Evoy, who was in the north end of the park.

Some of them were screaming that a suspect was video-

taping their children. The officers heard angry comments

about “kids being photographed” and sex offenders.

Llorens, also visibly upset and shaken, told the officers

that she had seen Reher sitting in the park a couple of

times before and that he was “probably, like, a perve

or something out there looking at the children.” Llorens

at the time did not realize that Reher was Ashley’s father.

According to Reher’s deposition testimony, Sergeant

Gabinski spoke to Outlaw, who claimed that Reher had

been videotaping their daughter Ashley and the other

children. Vivo, Gabinski, and another officer then ques-

tioned Reher. They asked him what he was doing in the

park. Reher told the officers that he was an amateur

videographer and liked to tape nature scenes. He com-

plained that the neighbors had taken his bike and

broken his camera.

Gabinski, however, was not buying Reher’s story. She

remembered previous allegations Outlaw had lodged

No. 10-2180 5

against Reher, including that he kept her under surveil-

lance. Gabinski knew that there was a history of domestic

disputes and violations of orders of protection between

Reher and Outlaw, and that Outlaw in the past had

accused Reher of harassing her by telephone, throwing

a rock through her window, and distributing nude photo-

graphs of her in the courtyard of her building. With-

out mincing words, Gabinski told Reher that she

thought his story was “bullshit.”

Upset at Gabinski’s tone, Reher claims that he replied,

“I don’t want to talk to that bitch,” referring to Gabinski.

Vivo, who was present and heard the exchange be-

tween Reher and Gabinski, handcuffed Reher and

placed him in a squad car. Reher claims that the moment

he made the statement about Gabinski, Vivo looked at

him and said, “That’s it. You’re under arrest. You can’t

swear at the boss and get away with it.” (Vivo claimed

in his deposition that Reher called Gabinski a “fucking

bitch,” raised his hand, and took a step toward her.) On

the way to the station, Vivo told Reher that he was

under arrest for disorderly conduct. The case against

Reher was later dismissed.

Reher subsequently brought a § 1983 lawsuit against

Vivo and Gabinski, claiming that he was arrested with-

out probable cause. The officers moved for summary

judgment. The district court granted the motion, finding

that the officers had probable cause to arrest Reher, and

that even if they did not, they were entitled to qualified

immunity. Reher appeals.

6 No. 10-2180

II. ANALYSIS

An officer’s right to qualified immunity turns on:

(1) whether the facts presented, taken in the light most

favorable to the plaintiff, describe a violation of a con-

stitutional right; and (2) whether the federal right at

issue was clearly established at the time that the alleged

violation occurred. Jones v. Clark, 630 F.3d 677, 682 (7th

Cir. 2011). We may consider these questions in any

order. See Pearson v. Callahan, 555 U.S. 223, 241 (2009). The

relevant inquiry in determining whether a right is

clearly established is whether it would have been clear

to a reasonable officer that his conduct was unlawful in

the situation the officer confronted. Id. at 231-32. Where

the law is open to interpretation, qualified immunity

protects police officers who reasonably interpret an

unclear statute. See Northen v. City of Chicago, 126 F.3d

1024, 1027-28 (7th Cir. 1997).

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 to

provoke a breach of the peace.” 720 ILCS 5/26-1(a)(1). To

commit the offense of disorderly conduct, a person must

engage in conduct that: (1) is unreasonable; (2) alarms

or disturbs another; and (3) threatens to provoke or

provokes a breach of the peace. Id.; see also Biddle v. Martin,

992 F.2d 673, 677 (7th Cir. 1993). Reher concedes that

the police reasonably believed that the neighbors in the

park were disturbed and that the police had sufficient

information to indicate that a breach of the peace was

threatened. Reher contends, however, that the police

No. 10-2180 7

lacked probable cause to arrest him because his conduct

was not unreasonable.

An officer has probable cause to make an arrest only

when the facts and circumstances within his knowledge

and of which he has reasonably trustworthy informa-

tion are sufficient to warrant a prudent person in

believing that the suspect has committed an offense.

United States v. Mounts, 248 F.3d 712, 715 (7th Cir. 2001).

The test is a purely objective one, meaning that an

officer’s subjective motivations have no bearing on the

inquiry. Payne v. Pauley, 337 F.3d 767, 776 (7th Cir. 2003);

Harrell v. Cook, 169 F.3d 428, 431 (7th Cir. 1999) (noting

that “qualified immunity depends on the objective

legal reasonableness of the defendants’ actions, not on

their subjective motivations”). In considering whether

the officers here had probable cause, we draw all reason-

able inferences and view the facts in the light most favor-

able to Reher. See Grieveson, 538 F.3d at 767.

Videotaping other people in public, while potentially

intrusive, is not illegal in Illinois. See Jones v. Kaminski, 630

F.3d 677, 683 (7th Cir. 2011) (although neighborhood

residents were concerned that plaintiff was taking

pictures of their houses, “it is not a crime to take pictures

on the street”); Graham v. Village of Niles, No. 02 C 4405,

2003 WL 22995159, at *6 (N.D. Ill. 2003) (videotaping

in public in and of itself may not give police probable

cause to arrest a person for disorderly conduct although

videotaping accompanied by other suspicious conduct

may) (citing Illinois cases); cf. People v. Raibley, 788 N.E.2d

1221, 1229 (Ill. App. Ct. 2003) (“A person’s possession of

8 No. 10-2180

nonpornographic images of children does not create

probable cause to seize that person’s [videotapes] in the

belief that it might contain child pornography.”); 720 ILCS

5/26-4 (making it unlawful to film a person’s undergar-

ments through their clothes and to engage in other

similar conduct without that person’s consent).

But videotaping other people, when accompanied by

other suspicious circumstances, may constitute disorderly

conduct. Graham, 2003 WL 22995159, at *6 (citing Illinois

cases and finding that probable cause existed when

suspect surreptitiously videotaped women in parking lot

and videotape contained images zooming in on women’s

breasts).

The difficulty, and the reason the officers in this case

are entitled to qualified immunity, is that, given the lack

of case law on point, a reasonable officer would not

necessarily have known whether Reher’s alleged video-

taping of the children was suspicious enough to cross

the line between “mere videotaping” and videotaping

plus whatever else is necessary to give rise to dis-

orderly conduct in Illinois. Certain things, however,

should have been clear to the officers. It should have

been clear that refusing to talk to and calling Gabinski

a pejorative name was not enough to arrest Reher for

disorderly conduct. See Payne, 337 F.3d at 777 (“Illinois

courts have time and again held that arguing with a

police officer, even if done loudly, or with profane or

offensive language, will not in and of itself constitute

disorderly conduct.”). It also should have been clear that

the neighbors’ agitation, alone, did not give the officers

No. 10-2180 9

probable cause to arrest—especially since Reher claims to

have told the officers that he remained calm when the

neighbors accosted him and took his bicycle. 720 ILCS

5/26-1(a)(1) (requiring unreasonable conduct to commit

disorderly conduct); cf. Payne, 337 F.3d at 777 (“Arguing

with a police officer does not evolve into disorderly

conduct merely because a crowd gathers to watch the

argument.”).

But here there was more. Gabinski, at least, was aware

that there was a long history of domestic disputes between

Reher and Outlaw. While the last such dispute had oc-

curred several years before, the incidents Gabinski was

aware of were fairly serious, and included distributing

nude pictures of Outlaw in the apartment complex,

throwing a rock through Outlaw’s window, and violating

orders of protection. At the scene, Outlaw accused

Reher of harassing her and her daughter, and at least one

neighbor told the police that she had seen Reher in the

park before.

An arrest for disorderly conduct is justified when the

defendant directly harasses or threatens other people.

See In re D.W., 502 N.E.2d 419, 420-21 (Ill. App. Ct. 1986)

(defendant’s threat to “kick [the complainant’s] ass”

supported arrest for disorderly conduct). And Illinois

courts have found that behavior similar to stalking can

form the basis of a disorderly conduct charge. See

People v. Hinton, 360 N.E.2d 451, 453 (Ill. App. Ct. 1977)

(probable cause existed to arrest suspect for disorderly

conduct when suspect was peering inside windows of

apartment complex); see also People v. Rizzo, 842 N.E.2d

10 No. 10-2180

727, 732 (Ill. App. Ct. 2005) (sufficient evidence existed

to convict defendant discovered surreptitiously looking

into woman’s house under “window peeping” provision

of disorderly conduct statute, 720 ILCS 5/26-1(a)(5)).

We find that, in light of Outlaw’s accusations at the

scene, it would have been reasonable for an officer with

Gabinski’s knowledge of Reher and Outlaw’s turbulent

history to conclude that Reher was harassing Outlaw

and Ashley. Gabinski therefore had probable cause to

arrest Reher for disorderly conduct. Even assuming

otherwise, Gabinski would be entitled to qualified im-

munity. Bevier v. Hucal, 806 F.2d 123, 126 (7th Cir. 1986)

(“Police officers are allowed to make [reasonable mis-

takes.]”).

Whether Vivo is entitled to immunity is a closer ques-

tion. He was not aware of Outlaw’s allegations

against Reher. “Under the collective knowledge doc-

trine, the knowledge of one police officer is imputed

to other officers when they are in communication re-

garding a suspect.” United States v. Ellis, 499 F.3d 686, 690-

92 (7th Cir. 2007). But the district court found that

the doctrine did not apply in this case because the extent

of the communication between the officers was not clear,

and we will not disturb that conclusion. See id. (police

officer at side door did not have probable cause based

on conversation between officers and suspect at front

door because there was no evidence of communication

between the officers at the scene and no evidence that

the officer near the side door heard the conversation

between suspect and officers at front door).

No. 10-2180 11

However, Vivo was aware that one of the women had

accused Reher of videotaping the children. The same

woman also told the officers that she was suspicious

because she had seen Reher in the park several times

before watching the children. Vivo would also have

heard that Llorens, another neighbor, was worried that

Reher was a sex offender or a peeping Tom. And while

Reher counters that he did not start filming until

Outlaw came up to him, police officers are, with some

qualifications, entitled to rely on allegations by credible

eyewitnesses when these supply probable cause. See

Askew v. City of Chicago, 440 F.3d 894, 895 (7th Cir. 2006).

In this case, the neighbors’ allegations were probably

a bit too vague to support an arrest for disorderly con-

duct. Although there are no closely analogous cases,

Reher’s conduct does not strike us as being quite as

invasive as the conduct that Illinois courts have

previously found to support an arrest for disorderly

conduct. The neighbors did not allege, for example,

that Reher was getting close to the children, or that he

was attempting to videotape their private parts. Cf.

Hinton, 360 N.E.2d at 453; Graham, 2003 WL 22995159, at

*6. However, the protection of qualified immunity ap-

plies to reasonable mistakes “based on mixed questions

of law and fact.” Pearson, 555 U.S. at 231. And an officer

faced with the circumstances present here could have

reasonably, but mistakenly, believed that Reher was

in fact harassing the children and alarming their parents,

giving rise to probable cause to arrest. See People v.

Davis, 413 N.E.2d 413, 415 (Ill. 1980) (disorderly conduct

is “intended to guard against an invasion of the right of

12 No. 10-2180

others not to be molested or harassed, either mentally

or physically, without justification”); People v. Blair, 748

N.E.2d 318, 322 (Ill. App. Ct. 2001) (noting that police

arrested defendant for disorderly conduct because he

was videotaping children in a public zoo but not dis-

cussing whether the defendant’s arrest was supported

by probable cause); People v. Allen, 680 N.E.2d 795, 800

(Ill. App. Ct. 1997) (lewd remarks and conduct may

constitute disorderly conduct when directed at chil-

dren); see also Humphrey v. Staszak, 148 F.3d 719, 725

(7th Cir. 1998) (officers may not have had probable cause

to arrest but were entitled to qualified immunity

because it was unclear under then-current Illinois law

what circumstances, in addition to arguing with a

police officer, justified an arrest for disorderly conduct).

Therefore, Vivo is entitled to qualified immunity.

III. CONCLUSION

The judgment of the district court is A FFIRMED.

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