Michael Marcavage v. City of Chicag

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 09-3335 & 09-4079

M ICHAEL M ARCAVAGE, et al.,

Plaintiffs-Appellants,

v.

C ITY OF C HICAGO, et al.,

Defendants-Appellees.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:06-cv-03858—Milton I. Shadur, Judge.

A RGUED N OVEMBER 4, 2010—D ECIDED O CTOBER 4, 2011

Before B AUER, M ANION and H AMILTON, Circuit Judges.

B AUER, Circuit Judge. The appeal before us arises from

events held in connection with the seventh annual Gay

Games (the “Games”), a series of athletic and cultural

gatherings with the stated mission “to foster and augment

the self-respect of gay men and women throughout the

world and to engender respect and understanding from

the non-gay world.” The events took place in Chicago,

Illinois during July 2006. The plaintiffs are volunteers

2 Nos. 09-3335 & 09-4079

with the organization Repent America, a ministry of

Christians whose self-described goal is “to proclaim the

Gospel of Jesus Christ in the public square.” In an effort

to foster their mission, the plaintiffs traveled to Chicago

and appeared at the Games to share their message with

attendees and supporters of the Games. At three different

locations during the Games, Chicago police officers

ordered the plaintiffs to change the location of their

outreach activities. Failure to comply resulted in the

arrests of plaintiffs James Deferio and Michael Marcavage.

The plaintiffs filed a complaint in the Northern

District of Illinois against the City of Chicago and indi-

vidual officers of the Chicago Police Department (col-

lectively the “City Defendants”), and against the Metro-

politan Pier and Exposition Authority (the “MPEA”), a

municipal corporation which owns and manages Navy

Pier and Gateway Park. The complaint alleged (1) denial

of their First Amendment rights to free speech and

exercise of religion; (2) denial of their Fourteenth Amend-

ment right to equal protection; and (3) denial of their

rights under the Illinois Religious Freedom Restoration

Act (the “IRFRA”). They later amended their complaint

to add claims against the City for (1) denial of equal

protection; (2) denial of their Fourth Amendment rights;

(3) state-law conversion; and (4) spoilation.

Cross motions for summary judgment were filed by

the City Defendants and the plaintiffs. The district court

denied the plaintiffs’ motion and granted the City De-

fendants’, finding that (1) the orders issued by the police

during the events at the Games were content-neutral

Nos. 09-3335 & 09-4079 3

regulations narrowly tailored to serve the legitimate

purpose of maintaining an orderly and effective flow of

traffic and therefore did not violate the First Amend-

ment; (2) the plaintiffs’ Equal Protection claim failed

because they could not identify any similarly-situated

individuals at the Games who received more favorable

treatment from the officers than they did; and (3) the

plaintiffs’ Fourth Amendment claims failed because their

arrests were supported by probable cause. The court

refused to exercise supplemental jurisdiction over the

state-law claims and later granted a motion for judgment

on the pleadings in favor of the MPEA, finding that the

issues raised in the MPEA claims were precluded by

the grant of summary judgment in favor of the City

Defendants.

The plaintiffs have appealed and we affirm in part

and reverse in part.

I. BACKGROUND

The events giving rise to the plaintiffs’ claims occurred

at Soldier Field on July 15, 2006, Navy Pier on July 16, 2006,

and Wrigley Field on July 22, 2006. A summary of the

events that transpired at each location is set forth below.

A. Soldier Field

July 15, 2006 marked the opening ceremonies of the

Games. The plaintiffs spent approximately two hours

that day demonstrating around the stadium. A large

4 Nos. 09-3335 & 09-4079

concentration of people traveled along a broad sidewalk

bordering McFetridge Drive. At one point, Deputy Chief

Daniel Dugan advised the plaintiffs they were blocking the

sidewalk and directed them to a gravel area adjacent to

it. According to deposition testimony from the plain-

tiffs, during their time at Soldier Field, they preached,

displayed signs and banners, and distributed Gospel

tracts. However, they testified that Dugan’s prohibition

against standing on the sidewalk prevented them from

engaging attendees in a “one-on-one presentation of the

Gospel of Jesus.” In the district court, the plaintiffs also

contended that they experienced difficulty handing out

Gospel tracts from their position on the gravel.

B. Navy Pier and Gateway Park

The following afternoon, the plaintiffs arrived at Navy

Pier to engage in similar activity. After exiting the

parking garage, the plaintiffs walked west along the

north side of the pier, where they encountered security

personnel. The security officers told them they could not

demonstrate on the pier without an MPEA permit autho-

rizing it; the plaintiffs did not have such a permit, nor

had they applied for one. Accordingly, the officers

escorted them toward Gateway Park. When directed to

cross the street toward the park, the plaintiffs refused

and proceeded to walk along the sidewalk fronting

the main entrance to the pier. After being warned to

cross the street or face arrest, the plaintiffs were

driven further and further from the pier, since Chicago

Police Officer Adam Andrews, who responded to the

Nos. 09-3335 & 09-4079 5

disturbance, was under the correct impression that the

MPEA’s Policy for Public Expression at Navy Pier and

the Headlands (the “Policy”) also required a permit

in order to demonstrate in Gateway Park. Marcavage

argued with Officer Andrews and called 911 in an effort

to reach a supervising officer. He was then handcuffed

and forced to sit down; James Deferio, who was carrying

a video camera, and another member of the plaintiffs’

group, Ryan Murphy, were both arrested and taken to

the 18th precinct. Following their arrest, the remaining

plaintiffs, Marcavage and Faith Deferio, along with

another member of their group, Craig Scarberry, were

ordered to leave Gateway Park under the threat of arrest.

They complied.

C. Wrigley Field

The closing ceremonies of the Games were held on

July 22, 2006 at Wrigley Field. At approximately 1:00 p.m.,

the plaintiffs arrived. Marcavage proceeded to the south-

west corner of the stadium. While walking east along

the sidewalk on the north side of Addison Street, he held

a sign in one hand and a video camera in the other. When

he reached the southeast corner, he proceeded to pace

back and forth along the sidewalk. At one point, he

stood at the intersection of Addison and Sheffield

Streets, a main thoroughfare for attendees entering the

stadium. An officer told Marcavage to “keep walking,” but

Marcavage insisted he had a right to stand there. The

officer repeated his order to cross the street many times,

but Marcavage refused. He was ultimately arrested and

charged with disorderly conduct.

6 Nos. 09-3335 & 09-4079

II. DISCUSSION

We have reviewed the district court’s grant of summary

judgment de novo 1 and conclude that summary judg-

ment was appropriately entered in favor of the City

Defendants with respect to the claims involving Soldier

Field and Wrigley Field. However, with respect to the

First Amendment claim involving Navy Pier and Gate-

way Park, we remand the case to the district court with

instructions to evaluate the constitutionality of the

MPEA’s Policy in accordance with this opinion.

A. Constitutional Claims Involving Soldier Field and

Wrigley Field

We begin with the district court’s treatment of the

claims involving Soldier Field and Wrigley Field. The

plaintiffs challenge the findings below on First Amend-

ment, Equal Protection, Fourth Amendment, and qualified

immunity grounds. We do not find their arguments

persuasive.

We start with the First Amendment and Equal Protec-

tion claims. The plaintiffs’ primary complaint is that

they were not permitted to use the main pedestrian

thoroughfares at each of the venues for their outreach

activities during the Games. They claim they were

entitled to do so under the First Amendment and that

because others were using the sidewalks during the

1

See Scott v. Edinburg, 346 F.3d 752, 755 (7th Cir. 2003).

Nos. 09-3335 & 09-4079 7

Games, their right to equal protection under the law was

violated. Both arguments are without merit.

It is true that sidewalks like the ones outside Soldier

Field and Wrigley Field are traditional public forums

where the exercise of First Amendment rights is often

most vibrant. As the Supreme Court has described the

rationale for promoting broad access to public forums,

“streets, sidewalks, parks and other similar public places

are so historically associated with the exercise of First

Amendment rights that access to them for the purpose

of exercising such rights cannot constitutionally be

denied broadly and absolutely.” Carey v. Brown, 447

U.S. 455, 460 (1980).

However, the fact that such rights cannot be denied

“broadly and absolutely” does not mean they cannot be

curtailed at all. On the contrary, the time, place, and

manner of a speaker’s activities can be regulated

without violating the First Amendment so long as the

restrictions are (1) content-neutral, (2) narrowly tailored

to serve a significant government interest, and (3) leave

open ample alternative channels for communication.

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.

37, 45 (1983).

The orders given by the officers at both locations

met each of these criteria. At both locations, officers

instructed the plaintiffs to “keep moving” to avoid inter-

8 Nos. 09-3335 & 09-4079

ference with pedestrian traffic at the Games.2 When

they refused, they were asked to move to alternate loca-

tions. (At Soldier Field, the officer suggested they move

to a gravel area immediately adjacent to the sidewalk.

At Wrigley Field, they were asked to cross the street.) At

oral argument, the plaintiffs were asked to provide what-

ever evidence they had of the officers’ hostility toward

their message; none was offered. Their inability to cite

to any such evidence is consistent with the record,

which invariably shows that the directives given by the

officers were based on the plaintiffs’ offensive conduct

(blocking the main thoroughfares of the Games), not

their message. This shows that the restrictions were

content-neutral. Since the plaintiffs do not dispute that

the government maintains a significant interest in con-

trolling pedestrian traffic, 3 their only remaining chal-

lenge is to the adequacy of the alternative venues pre-

sented for their speech. The plaintiffs argue the restric-

tions were overly broad; we disagree.

Though the plaintiffs do not feel the gravel area at

Soldier Field and the southern side of Addison Street

opposite Wrigley Field were adequate places to conduct

their activities, the fact that the permissible locations

were not the plaintiffs’ preferred venues does not render

2

Though the plaintiffs argue they were not blocking the

sidewalks, their own video recordings taken at the events

plainly show pedestrians walking around them while they

remain stationary.

3

See App. Br. at 32.

Nos. 09-3335 & 09-4079 9

them inadequate. After all, the First Amendment “does

not guarantee the right to communicate one’s views at all

times and places or in any manner that may be desired.”

Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452

U.S. 640, 647 (1981). Rather, it protects the right of every

citizen to “reach the minds of willing listeners . . . [and]

to do so, there must be opportunity to win their atten-

tion.” Hill v. Colorado, 530 U.S. 703, 728 (2000). The

alternate locations were within view and earshot of those

traveling to the Games. We harbor no doubt that from

these locations, the plaintiffs had ample opportunity

to capture the attention of the Games attendees and sup-

porters; they were only limited by their own stubborn

refusal to move there. As to the plaintiffs’ challenge

that the restrictions were overly broad, though a regula-

tion need not be the least restrictive means available,4

we cannot think of a narrower way of dealing with dem-

onstrators blocking a pedestrian walkway than to

request that they continue moving or change their loca-

tion to a place very nearby.

Having found that the officers’ directives to keep

moving or relocate were (1) content-neutral, (2) sufficiently

narrowly tailored to the significant goal of avoiding

congestion and maintaining an orderly flow of traffic at

the Games, and (3) accommodating of the need to

provide an alternative channel for the plaintiffs’ speech,

we find that such restrictions were compatible with the

4

See, e.g., Bl(a)ck Tea Society v. City of Boston, 378 F.3d 8, 12 (1st

Cir. 2004).

10 Nos. 09-3335 & 09-4079

First Amendment and that the district court did not err

in granting summary judgment in favor of the City De-

fendants on these claims.

With respect to the argument that the restrictions

violated their right to Equal Protection, the plaintiffs

have not identified similarly-situated individuals who

received preferential treatment at the Games. Whether

persons are similarly-situated is a question of fact that

is appropriately resolved on summary judgment when

no reasonable fact-finder could determine that the plain-

tiffs have met their burden on the issue. Srail v. Village of

Lisle, Illinois, 588 F.3d 940, 945 (7th Cir. 2009). To be

similarly-situated, persons must be alike “in all relevant

respects.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). Al-

though the plaintiffs argue to the contrary, the attendees,

supporters, and vendors allowed on the sidewalk were

not similarly-situated to the plaintiffs. Games organizers

contracted to hold the 2006 events in Chicago, including

an opening ceremony at Soldier Field and a closing cere-

mony at Wrigley Field. In so doing, the events brought

thousands of people to the city and the chosen venues,

much like a concert or political convention would. Atten-

dees and supporters of the Games were allowed on the

sidewalks because they had a particular purpose being

there, namely, to access the venues reserved for their

activities and to sell souvenirs. These purposes are

entirely distinguishable from the plaintiffs’ efforts to

disrupt the events by protesting along the main thorough-

fares of the Games. We hold that a reasonable factfinder

could not in good conscience find that the plaintiffs were

similarly-situated to other users of the sidewalks. Since

Nos. 09-3335 & 09-4079 11

there is no reliable evidence that there were other pro-

testors who were treated differently, the district court

appropriately granted summary judgment on the

Equal Protection claims.

The plaintiffs’ argument that Marcavage’s Fourth

Amendment rights were violated when he was ar-

rested for disorderly conduct at Wrigley Field is equally

unavailing. The plaintiffs argue that the officers at

Wrigley Field lacked probable cause to arrest Marcavage,

making his arrest without a warrant unreasonable and

unconstitutional. Police have probable cause to arrest

an individual without a warrant when “the facts and

circumstances within their knowledge and of which

they have reasonably trustworthy information” would

make a prudent person believe the individual “had com-

mitted or was committing” an offense. Kelley v. Myler,

149 F.3d 641, 646 (7th Cir. 1998). Under Illinois law, a

person commits disorderly conduct when he knowingly

does any act in such an unreasonable manner as to

alarm or disturb another and to provoke a breach of

the peace. 720 ILCS 5/26-1(a)(1). The district court

found that Marcavage’s obstruction of the walkway,

argumentative tone toward law enforcement, and refusal

to obey the lawful instructions of a police officer all

gave rise to probable cause for his arrest for disorderly

conduct. Since the act of blocking the free flow of pedes-

trian traffic alone is sufficient to support a conviction

12 Nos. 09-3335 & 09-4079

for the offense of disorderly conduct under Illinois law,5

we need not spend much time on this issue. The facts

are clear that Marcavage stubbornly refused to move

from his position on a crowded street corner during a

heavily populated event, insisting that he had a right

to demonstrate there. These findings are sufficient to

support probable cause for his arrest, so we affirm the

district court’s grant of summary judgment on the

Fourth Amendment claim. Since the arrest was objec-

tively supported by probable cause and there was no

Fourth Amendment violation at Wrigley Field, we need

not discuss the doctrine of qualified immunity.

B. Constitutional Claims Involving Navy Pier and

Gateway Park

Navy Pier and Gateway Park differ from the other

two venues in that the exercise of expressive activity at

these venues is governed by a written policy for public

expression. The Policy requires permits for expressive

activity on and around the pier and the MPEA is charged

with collecting and administering the permits. Although

we agree with the district court’s treatment of the

claims dealing with Soldier Field and Wrigley Field,

we believe that the Policy applied to exclude the plain-

tiffs from Navy Pier and Gateway Park merits further

review.

This court has considered the exercise of free speech

at Navy Pier and Gateway Park before. See Chicago Acorn

5

See Jones v. Watson, 106 F.3d 774, 779 (7th Cir. 1997).

Nos. 09-3335 & 09-4079 13

v. Metro. Pier & Exposition Auth., 150 F.3d 695 (7th Cir.

1998). In Chicago Acorn, we drew a distinction between

the constitutional protections required at various venues.

In particular, we held that while Navy Pier is a

nonpublic forum, Gateway Park is a traditional public

forum subject to heightened First Amendment protec-

tion. Id. at 700-04.

We are not troubled by the Policy’s restrictions on

speech at Navy Pier. The pier’s designation as a

nonpublic forum appropriately reflects its commercial

nature. Though it is a recreational area open to the public,

the pier itself primarily consists of event spaces, stores,

restaurants, theaters, and an amusement park. Its nature

is one of private enterprise with tangential public

benefit; while the public can enjoy firework displays,

free concerts, and views of Lake Michigan from the

many benches along the pier, the revenue-generating

outlets that support the pier fuel tourism and make

these public benefits possible. Since the pier is a

nonpublic forum, the MPEA and the City may restrict

activity on the pier so long as the restrictions are rea-

sonable and viewpoint neutral.6 The Policy states that

permits are granted on a first-come, first-served basis

“without reference to the content of the message to be

expressed” and may be denied for enumerated reasons,

6

See Cornelius v. NAACP Legal Defense and Educational Fund,

Inc., 473 U.S. 788, 800 (1985).

14 Nos. 09-3335 & 09-4079

all of which we find to be reasonable.7 The plaintiffs

have not presented evidence that the officials at Navy

Pier and Gateway Park expressed hostility toward their

message. And, since they never applied for a permit to

engage in their outreach activities at Navy Pier, it cannot

be said that they were denied a permit because of their

beliefs. Accordingly, we hold that the Policy’s regula-

tions dealing with expressive activity on Navy Pier are

constitutional.

The analysis for Gateway Park is not as straightforward.

Though the same corporation manages Navy Pier and

Gateway Park and the same Policy governs both proper-

ties, greater opportunities for public expression must

be made available to the public in the park than on

the pier, since the park is a traditional public forum

historically associated with such activity. As noted in

the previous section, any policy restricting expressive

activity in a traditional public forum such as Gateway

Park must be content-neutral, narrowly tailored, and

provide ample alternative channels of communication to

those seeking to express their views. See Perry, 460 U.S.

at 45. This is a more stringent standard than the “reason-

able and viewpoint neutral” one that governs Navy Pier.

7

Stated reasons for denying a permit application include that

the proposed number of participants would cause (a) a risk of

injury or damage to the pier’s resources; (b) traffic congestion;

(c) interference with activities for which the MPEA has

granted a lease or license; (d) impairment of the operation of

the pier’s facilities; or (e) unreasonable danger to the health

or safety of the public or the pier’s visitors.

Nos. 09-3335 & 09-4079 15

Though the extensive permitting scheme in place for

the two venues seems appropriate for Navy Pier,

whether the Policy is appropriate for Gateway Park is not

as clear-cut.

The plaintiffs, who arrived at Navy Pier and Gateway

Park in a group of five, challenge the Policy as overly

broad. They dispute the Policy’s requirements that

(1) a group as small as five must apply for a permit to

engage in expressive activity at Gateway Park at least

seven days in advance; (2) persons less than five (which

would apparently include an individual) must still

apply for a permit, although without the advance notice

requirement; and (3) individuals and groups are limited

in the frequency with which they are allowed to

submit applications for permits to engage in expressive

activity at Gateway Park.

District Judge Shadur dismissed the plaintiffs’ argu-

ments that the Policy is overly broad by citing to Thomas

v. Chicago Park Dist., 534 U.S. 316 (2002). In Thomas, the

Supreme Court upheld this court’s finding that an ordi-

nance requiring a permit for events of more than fifty

people is facially constitutional. Though Judge Shadur

is correct that permit requirements for the use of public

parks for expressive uses are “routinely imposed,” our

case differs from Thomas in two important respects.

First, it involves a group one-tenth the size of the

number that would trigger a permit requirement under

Thomas. Second, although our plaintiffs arrived in a

group of five, the Policy we are asked to review would

arguably require a permit for the expressive activity of

just one person.

16 Nos. 09-3335 & 09-4079

The plaintiffs cite a Ninth Circuit case for the proposi-

tion that a permit requirement for expressive activity by

a group as small as theirs is insufficiently narrowly

tailored to withstand constitutional scrutiny when the

venue is a traditional public forum:

In public open spaces, unlike on streets and sidewalks,

permit requirements serve not to promote traffic flow

but only to regulate competing uses and provide

notice to the municipality of the need for additional

public safety and other services. Only for quite large

groups are these interests implicated, so imposing

permitting requirements is permissible only as to

those groups.

Santa Monica Food Not Bombs v. City of Santa Monica,

450 F.3d 1022, 1042 (9th Cir. 2006). While it may be true

that most permit requirements for expressive activity

in parks are not enacted to promote efficient traffic

flow, the same cannot be said of the Policy at issue here.

As this court noted in its detailed look at the premises

of Navy Pier and Gateway Park in the Chicago Acorn

case, Gateway Park is a “narrow bottleneck” leading to a

crowded commercial pier surrounded by water on three

sides. Chicago Acorn, 150 F.3d at 703. The Policy states

that as many as 85,000 people visit Navy Pier on a

crowded day. This amount of foot traffic undoubtedly

presents unique challenges at the pier’s point of ingress

and egress: Gateway Park. While the area devoted to

public parks in the Santa Monica case amounted to

Nos. 09-3335 & 09-4079 17

245 acres,8 Gateway Park measures only 19 acres. The

two venues are hardly comparable.

Though we are dubious of the Ninth Circuit’s blanket

presumption that the sole reason permit requirements

are enacted for public open spaces is to regulate

competing uses, it is worth noting that many other

circuits have looked unfavorably on permit require-

ments for groups as small as the plaintiffs’ group of five.

In addition to the Ninth Circuit, the Fourth, Fifth, Sixth,

and Eighth Circuits have all found permit requirements

for groups of ten and under to be either unconstitutional

or constitutionally suspect.9 Such a powerful consensus

cannot be ignored. Though we are inclined to agree

with our sister circuits that a permit requirement is less

8

Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d

1022, 1026 (9th Cir. 2006).

9

See Knowles v. City of Waco, 462 F.3d 430, 436 (5th Cir. 2006)

(striking down a parade ordinance which could be interpreted

to require a permit for the activity of as few as two people); Cox

v. City of Charleston, 416 F.3d 281, 285 (4th Cir. 2005) (holding

that “the unflinching application of [a local parade ordinance]

to groups as small as two or three renders it constitutionally

infirm”); American-Arab Anti-Discrimination Comm. v. City of

Dearborn, 418 F.3d 600, 608 (6th Cir. 2005) (holding that a parade

ordinance that would require a permit “for almost any imagin-

able procession” on the streets of Dearborn, Michigan was

“hopelessly overbroad”); Douglas v. Brownell, 88 F.3d 1511, 1524

(8th Cir. 1996) (expressing doubt that applying a parade

ordinance to a group as small as ten would be sufficiently

narrowly tailored).

18 Nos. 09-3335 & 09-4079

likely to be content-neutral and narrowly tailored when

it is intended to apply even to small groups, we decline

to hold that permit requirements for groups of any speci-

fied number are per se unconstitutional.

Only after viewing the Policy in light of the concerns

that are unique to the venue in question do we believe

a court can appropriately assess the constitutionality of

the regulation. This is a factually driven inquiry. On the

one hand, Gateway Park’s location immediately adjacent

to the heavily trafficked Navy Pier poses unique logistical

concerns that may make the regulations necessary. On

the other hand, the park’s proximity to the pier makes

it a natural alternative venue for the type of expres-

sion that the pier itself cannot support. Absent a greater

understanding of the rationale behind the MPEA’s Policy,

we are left with the impression that the imposition of

burdensome restrictions for small groups at Gateway

Park might be overreaching.1 0 Accordingly, we remand

10

In Hotel Employees & Rest. Employees Union, Local 100 v. City

of New York Dep’t of Parks & Recreation (H.E.R.E. v. City of

New York), 311 F.3d 534 (2d Cir. 2002), the Second Circuit

dealt with a First Amendment challenge to restrictions on

organized public expression at New York’s Lincoln Center,

a city-owned plaza at the center of several well-known per-

forming arts venues. Although the court upheld restrictions on

such expressive activity in the central plaza of the Lincoln

Center complex, it noted that, in denying permit applications

for those who wished to leaflet or demonstrate on the plaza,

applicants were encouraged to use a public park to the south

(continued...)

Nos. 09-3335 & 09-4079 19

the case to the district court where the MPEA can be

given an opportunity to defend its Policy.

The plaintiffs’ Equal Protection and Fourth Amendment

claims dealing with Navy Pier and Gateway Park require

little discussion. With respect to their Equal Protection

claim, the plaintiffs argue that they were treated differ-

ently than attendees of the Games; however, the

attendees had a permit to use the premises and the plain-

tiffs did not. As to their Fourth Amendment claim, the

district court appropriately found that the responding

officer had probable cause to arrest Deferio and detain

Marcavage, since the two unlawfully remained on the

premises after being repeatedly told to leave or obtain a

permit. Although the constitutionality of the Policy

remains in question, the arresting officer’s objectively

reasonable reliance on the permit requirement in effect

at the time of the arrest is sufficient to shield him

from liability under the doctrine of qualified immunity.

C. Supplemental Claims

The plaintiffs’ final argument is that the district court

erred in declining to exercise supplemental jurisdiction

10

(...continued)

of the complex for their activities. This area, called Damrosch

Park, was part of the original site plan for Lincoln Center. The

use of the adjacent park at Lincoln Center as an alternate

location for expressive activity is an interesting counterpoint

to Gateway Park, an area which could serve as an alternate

location for public expression at Navy Pier, but is instead

heavily regulated under the existing Policy.

20 Nos. 09-3335 & 09-4079

over various state-law claims. A district court’s refusal to

exercise supplemental jurisdiction is reviewed for abuse

of discretion. In re Repository Technologies, Inc., 601 F.3d

710, 724 (7th Cir. 2010). Under this standard, we will

reverse a district court’s decision to relinquish jurisdic-

tion over such claims only in “extraordinary circum-

stances.” Id. at 725. Since no such circumstances are

present in this case, the district judge did not abuse his

discretion and we affirm.

III. CONCLUSION

For the reasons set forth above, summary judgment in

favor of the City Defendants is A FFIRMED, except with

respect to the First Amendment claim dealing with Gate-

way Park. This claim is R EMANDED to the district court,

where the constitutionality of the Policy shall be adjudi-

cated with the participation of all the parties. The

district court’s grant of the MPEA’s motion for judgment

on the pleadings is hereby R EVERSED, since the holding

previously given preclusive effect is to be reconsidered

on remand.

Nos. 09-3335 & 09-4079 21

H AMILTON, Circuit Judge, dissenting in part. I agree

with my colleagues that plaintiffs failed to prove viola-

tions of their constitutional rights outside Soldier Field

and Wrigley Field, and on Navy Pier. I respectfully dis-

agree with the portion of the decision that remands to the

district court plaintiffs’ claim that their rights were vio-

lated in Gateway Park, immediately west of Navy Pier,

on July 16, 2006.

The point of my disagreement may be identified by

asking what error the district court made, based on the

record before it. The majority opinion does not answer

that question. Instead, it expresses an impression that

the application of the MPEA’s permit requirements to

small groups at Gateway Park “might be overreaching,”

but instructs the district court first to develop a record

so that “the MPEA can be given an opportunity to

defend its Policy.” Ante at 18-19. The reason no such

record exists yet is that the plaintiffs did not make this

argument to the district court in a timely way, when

the city defendants moved for summary judgment. This

claim, whatever its merits, was therefore waived. See, e.g.,

Fednav Int’l Ltd. v. Continental Ins. Co., 624 F.3d 834, 841

(7th Cir. 2010); Domka v. Portage County, 523 F.3d 776,

783 (7th Cir. 2008); Lac du Flambeau Band of Lake Superior

Chippewa Indians v. Stop Treaty Abuse-Wisconsin, Inc.,

991 F.2d 1249, 1258 (7th Cir. 1993).1

1

At an early point in the litigation, plaintiffs advanced a

related point—that distinguishing between groups of five or

(continued...)

22 Nos. 09-3335 & 09-4079

In the abstract, there might well be problems with

applying the MPEA’s permit requirement for demon-

strations in Gateway Park. Navy Pier is not a public

forum, but Gateway Park is. The constitutional rules

are different. See Chicago Acorn v. Metropolitan Pier & Ex-

position Auth., 150 F.3d 695, 700-04 (7th Cir. 1998) (dis-

cussing these sites and noting MPEA’s concession that

Gateway Park is a traditional public forum). In a tradi-

tional public forum, a permit requirement applied to

demonstrations by very small groups may run afoul of the

Constitution. See Boardley v. U.S. Dep’t of Interior, 615 F.3d

508, 524 (D.C. Cir. 2010) (striking down regulations re-

quiring permits to engage in expressive activities in

national parks as “overbroad and not narrowly tailored”

because they imposed “substantial burdens on individuals

and small groups—burdens which the government has

failed to justify”); Knowles v. City of Waco, 462 F.3d 430, 436

(5th Cir. 2006) (“Other circuits have held, and we concur,

1

(...continued)

more and four or fewer is “arbitrary and irrational.” Dkt. No. 34,

at 4-6. Because plaintiffs presented no more than a passing

glimpse of their current theory to the district court, they failed

to preserve it for appeal. A “skeletal” argument does not

preserve a claim for appeal, “[e]specially not when” the party

“presents a passel of other arguments.” United States v. Dunkel,

927 F.2d 955, 956 (7th Cir. 1991). As Fednav, Domka, and Lac du

Flambeau Band show, among many other cases, we should

not encourage a litigation strategy of throwing every con-

ceivable idea against a wall to see what might stick. We also

should not encourage parties to overhaul and transform

unsuccessful cases when they present them on appeal.

Nos. 09-3335 & 09-4079 23

that ordinances requiring a permit for demonstrations

by a handful of people are not narrowly tailored to serve

a significant government interest.”); Santa Monica Food

Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1039

(9th Cir. 2006) (“Without a provision limiting the permit-

ting requirements to larger groups, or some other provi-

sion tailoring the regulation to events that realistically

present serious traffic, safety, and competing use con-

cerns . . ., a permitting ordinance is insufficiently nar-

rowly tailored to withstand time, place, and manner

scrutiny.”); American-Arab Anti-Discrimination Comm. v.

City of Dearborn, 418 F.3d 600, 608 (6th Cir. 2005)

(“Permit schemes and advance notice requirements that

potentially apply to small groups are nearly always

overly broad and lack narrow tailoring.”); Cox v. City of

Charleston, 416 F.3d 281, 283, 285-86 (4th Cir. 2005) (invali-

dating ordinance barring “any person” from participating

in “any parade, meeting, exhibition, assembly or proces-

sion . . . on the streets or sidewalks of the city” without a

permit because the city failed to “establish[ ] why bur-

dening such expression is necessary to facilitate its

interest in keeping its streets and sidewalks safe,

orderly, and accessible”).

I also agree with my colleagues that we should avoid

picking a number for the size of groups that cannot be

required to obtain a permit. The configuration of Gateway

Park as a “narrow bottleneck,” see Chicago Acorn, 150 F.3d

at 703, may enable even a very small group to block or

reduce the flow of pedestrians to and from Navy Pier.

That configuration may distinguish this location from

those in Santa Monica Food Not Bombs, 450 F.3d at 1042, and

24 Nos. 09-3335 & 09-4079

similar cases rejecting permit requirements for small

groups.

The problem, as I see it, is that the constitutional

question is before us not in the abstract but on a specific

record of the evidence and arguments that plaintiffs

chose to present in the district court. When the permit

policy question arose in the district court, plaintiffs failed

to make the arguments they make on appeal. In both their

own motion for partial summary judgment and their

memorandum opposing the city defendants’ motion for

summary judgment, plaintiffs chose not to challenge

the constitutionality of the MPEA permit policy on the

grounds they raise here. On the contrary, in opposing

summary judgment for the city defendants and in an

apparent attempt to bolster their contention that their

arrests at Gateway Park were illegal, plaintiffs asserted:

“As a matter of practice, the MPEA does not require a

permit for persons wishing to engage in free speech

activity in Gateway Park.” Dkt. No. 152 at 21. What-

ever the reasons for plaintiffs’ tactical choice, the city

defendants’ motion for summary judgment put the con-

stitutionality of the permit policy at issue. See Dkt.

No. 140 at 7-10.

That defensive use of the policy was sufficient to require

the plaintiffs to respond with any attack they wished to

make upon the policy. E.g., Domka, 523 F.3d at 783 (appel-

lant’s failure to make argument in opposing summary

judgment waived theory for appeal). As best the district

court could tell, plaintiffs’ only attack on the policy was

the broad and untenable theory that “any system that

Nos. 09-3335 & 09-4079 25

requires a permit for public demonstrations and expres-

sions of speech is per se violative of the First Amendment.”

Marcavage v. City of Chicago, 635 F. Supp. 2d 829, 840 (N.D.

Ill. 2009) (describing plaintiffs’ position in Dkt. No. 152).

At no point in the district court’s summary judgment

proceedings did plaintiffs articulate a viable challenge to

the permit policy. They certainly did not make the nar-

rower and perhaps more meritorious arguments they

make on appeal.

Only after they had lost on the city defendants’ motion

for summary judgment did plaintiffs attack the MPEA’s

permit policy. Judge Shadur understandably concluded

that he had already decided the issue against them. In

other words, a busy district court reasonably decided

that plaintiffs were not entitled to what golfers would

call a Mulligan. The court applied the doctrine of issue

preclusion based on its earlier decisions in the case.

Whether viewed in terms of issue preclusion, the law of

the case, or waiver, I see no error in the court’s handling

of the issue. The district court’s earlier decision is not

binding on this court, but the course of proceedings in

the district court shows that plaintiffs waived their chal-

lenge to the permit policy by failing to respond on that

point when the city defendants moved for summary

judgment. Based on the arguments and evidence pre-

sented, the district court did not err in rejecting plain-

tiffs’ claims arising from the Gateway Park/Navy Pier

events.

Even in these two separately-briefed appeals, plaintiffs’

muddled approach continues. Plaintiffs have failed to

26 Nos. 09-3335 & 09-4079

challenge the constitutionality of the permit policy in

No. 09-3335, their appeal from summary judgment for

the city and its officers. That was the decision in

which the district court actually considered the merits

of the permit policy. One would think that plaintiffs’

opening brief in that appeal would have been the place

both to raise the Santa Monica Food Not Bombs argument

and to explain their apparent failure to do so before the

district court. Instead, plaintiffs focused on whether

someone with authority told them on the spot that they

did not need a permit, a dispute that does not affect the

constitutionality of the policy. Only in their second

appeal have plaintiffs presented the permit policy issue

in a comprehensible form, raising at long last an argu-

ment they should have made years earlier. I would hold

the plaintiffs responsible for their own tactical decisions

and affirm the district court’s judgments in all respects.

By ordering a partial remand, my colleagues have

taken a different approach regarding the MPEA’s permit

policy. There are attractive reasons for doing so. That

approach gives the plaintiffs a second chance to get it

right. Depending on what the evidence shows, that

second chance might result in more robust protection

of First Amendment rights for plaintiffs and others. The

better approach, though, would be to adhere to a

more orderly litigation process. Plaintiffs had their op-

portunity to present their claim. They failed. In the

absence of clear error (indeed, any error) by the district

court, we should respect that process and its results.

We should do so by making clear that the district

court’s decision and our affirmance of it do not amount

Nos. 09-3335 & 09-4079 27

to a definitive constitutional blessing of the permit policy

in Gateway Park, but are based instead on the confusing

and contradictory path plaintiffs pursued in the district

court. That approach would leave the door open for

another party to bring a new and stronger challenge to

the policy. It would also protect the district court and

the defendants from the prejudice caused by plaintiffs’

shifting and inconsistent prosecution of their case.

I would affirm the district court’s judgments in their

entirety, and I respectfully dissent from the portion of

the majority decision remanding the Gateway Park

portion of the case.2

2

To the extent that this Mulligan might enable plaintiffs to

succeed to some degree on the Gateway Park issues and to seek

a reasonable attorney fee under 42 U.S.C. § 1988, the district

court can and should take into account the unusual procedural

course of the case in determining what a reasonable fee

would be.

10-4-11