Jose Zurita v. Richard Hyde

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1165

JOSE S URITA, M ARGARET C ARRASCO

and C HRIS B LANKS,

Plaintiffs-Appellees,

v.

R ICHARD H YDE and W ILLIAM B IANG,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 6586—Milton I. Shadur, Judge.

A RGUED JANUARY 7, 2011—D ECIDED D ECEMBER 22, 2011

Before M ANION and W ILLIAMS, Circuit Judges, and

C LEVERT, District Judge.Œ

C LEVERT, District Judge. A towing ordinance of the

City of Waukegan generated several rallies or marches

Œ

The Honorable Charles N. Clevert, Jr., Chief Judge of the

United States Court for the Eastern District of Wisconsin, sitting

by designation.

2 No. 09-1165

in opposition. While dealing with protestors, City officials

barred a citizen from speaking at a city council meeting

and imposed outdoor assembly permit and fee require-

ments. Several individuals then sued the City, its

mayor, and its police chief under 42 U.S.C. § 1983, alleging

violations of their First Amendment rights of free

speech, of assembly, and to petition government for

redress of grievances. Mayor Richard Hyde and Police

Chief William Biang appeal the district court’s denial of

qualified immunity as to the First Amendment claims

of Jose Surita, Margaret Carrasco, and Chris Blanks.

I

In 2002 the City of Waukegan amended its towing

ordinance to allow police to seize and impound vehicles

and to impose a $500 fine on persons driving without a

valid license or proof of insurance (the “Towing Ordi-

nance”). The Towing Ordinance generated protests that

it applied more harshly against minorities.

In early- and mid-2004, Waukegan maintained an

outdoor assembly ordinance establishing procedures for

the permitting of certain outdoor events (the “Assembly

Ordinance”). Written application for a permit had to be

made twenty days in advance of the outdoor event, and

Waukegan had discretion to require the organizer of the

event to pay a cash deposit as a condition of permit

issuance. Waukegan’s police department was responsible

for conducting an investigation and making a report

and recommendation to the city clerk in connection

with events covered by the Assembly Ordinance.

No. 09-1165 3

A. Surita’s Claims against Mayor Hyde

During a large rally on January 18, 2004, at Waukegan’s

Belvidere Mall, Jose Surita criticized Susana Figueroa, the

City’s community liaison officer. Although details of the

encounter are in dispute, the parties agree that Surita

told Figueroa “she should do more to help her people.”

Following the rally, Figueroa reported to Mayor Richard

Hyde that Surita had been very angry, “got in her face,”

and caused her to fear that he would attack her physically.

The Waukegan City Council set aside ten minutes at

the end of each of its bimonthly meetings for “audience

time.” Any member of the public could talk for up to

three minutes, on any subject. The mayor was presiding

officer and chair of the meetings.

At a meeting on January 20, 2004, Mayor Hyde

told Surita, as he stood at the microphone during audience

time, that he would not be allowed to speak until he

apologized to Figueroa. Hyde chastised Surita for his

comments to Figueroa at the Belvidere Mall rally two

days earlier:

All right. Now I want to make one thing clear here

because I was going to talk to this gentleman. . . . The

city employees do what they are asked by the city

ordinances. We have a Community Liaison Officer.

We don’t have an Afro American, we have got a

Hispanic and she works for the City of Waukegan.

Now, Sunday she was severely confronted with lan-

guage right in her face by a male. And, now, any

man that does that to a woman is lower than a rat. So

before I will hear any person of that speaking, you

4 No. 09-1165

will come to see me after the council meeting and

you will go to that lady and you will apologize

because you severely hurt her, her personality and her

feelings. . . . And if that person does not apologize to

her in person to her face, the next time that happens

I will have that person arrested and booked on in-

timidation. And that is legal. That is very legal. I want

to make that known right now because I don’t

think our employees should have to put up with

anything from anybody because they are city em-

ployees. They are doing what they are told to do. And

this Hispanic lady was confronted with a Hispanic

man. And how any man could talk to a woman like

that, I don’t know. If he was talking to another man

like that he’d be decked, right there. So that is all

I have to say about that. Okay. No, I am not going

to listen to you until you get up and you go to . . .

Suzanne—I’m talking to you. Until you go to Suzanne

Figueroa and you apologize to her. Thank you. Okay,

Alderman’s time.

Surita wanted to discuss the Towing Ordinance

during audience time but did not speak at the city council

meeting. Other members of the public addressed the

council at the meeting, some discussing the Towing

Ordinance.

B. Carrasco’s Claims against Police Chief Biang

Margaret Carrasco opposed the Towing Ordinance and

participated in a march on June 28, 2004, to protest it.

Waukegan’s Chief of Police, William Biang, was informed

No. 09-1165 5

that Carrasco intended to conduct a rally on July 6, 2004, in

conjunction with a city council meeting that night. He

was told the upcoming rally would be larger than one

at which protesters seemed hostile to police.

On July 1, 2004, Biang sent an officer to Carrasco’s

house to ask her to attend a meeting that day to discuss

the upcoming rally. Carrasco attended the meeting that

afternoon with Biang, three other police officers, and city

attorney Gretchen Neddenriep. Exactly what was said

at the July 1 meeting is disputed, but the parties agree

that Carrasco said she and others would attend the

city council meeting on July 6.

At the July 1 meeting, Neddenriep handed Carrasco a

copy of the Assembly Ordinance and asked her to

comply with it. A follow-up letter from Neddenriep

the next day stated that Waukegan would waive the re-

quirement that the application be filed in advance but

that Carrasco had to pay a permit fee of $1,500. The fee

was based on the number of extra police officers Biang

determined were needed for the rally (ten officers at $50

per hour for three hours each). Biang was copied on

the letter.

Biang has said that he determined more officers were

needed for the rally because it was a protest as opposed

to a rally in favor of a City ordinance. Out of 530 events

in a five-year period, only two were determined to

require payment of a permit fee, and those were protests

against the Towing Ordinance. The two events triggering

a permit fee were Carrasco’s possible event and another

planned by Chris Blanks, discussed below.

6 No. 09-1165

On July 6, 2004, Carrasco told Biang and Neddenriep

that there would be no event that day, pointing out that

no deposit was required for overflowing city council

meetings. At the July 6 city council meeting Biang reserved

eight or ten seats for Carrasco and her group.

C. Blanks’s Claims against Police Chief Biang

Chris Blanks engaged in numerous protest activities

against the Towing Ordinance, including attending the

Belvidere Mall rally and speaking at city council meetings

in July and August 2004. Biang was aware that Blanks

was an outspoken critic of the Towing Ordinance.

In August 2004, Blanks advertised a rally against the

Towing Ordinance to be held September 4, 2004, in

Bedrosian Park, which was owned by the Waukegan

Park District. The Park District had its own permit

rules, and the Assembly Ordinance did not apply to its

property.

After learning of the planned rally, Biang instructed

his deputy chief, Artis Yancey, to check whether Blanks

had a permit from the Park District and to “handle it.”

Yancey learned that Blanks had no permit and told

Neddenriep.

On September 2, 2004, Neddenriep had a uniformed

police officer deliver a letter to Blanks advising him that

he was violating the Assembly Ordinance because he

had not obtained a permit twenty days in advance. The

letter told Blanks that failure to comply with the

Assembly Ordinance would result in a violation. How-

No. 09-1165 7

ever, the letter did not advise Blanks that the Park

District, rather than Waukegan, owned Bedrosian Park.

Biang and the city prosecutor were copied on the

letter. Blanks was the only person ever advised in

writing in advance of an event that he was violating

the Assembly Ordinance. Moreover, he and Carrasco

were the only persons against whom the Assembly Ordi-

nance was enforced. After receiving the letter Blanks

canceled the September 4 rally.

II

No final judgment was entered by the district court

because the case has not concluded. Generally, federal

appellate courts possess jurisdiction to hear appeals

from final decisions only, see Viilo v. Eyre, 547 F.3d 707,

711 (7th Cir. 2008), and denials of summary judgment

do not qualify as final decisions in most instances, Ortiz v.

Jordan, 131 S. Ct. 884, 891 (2011). However, Hyde and

Biang appeal the denial of qualified immunity. Assertions

of qualified immunity may fall under one of the excep-

tions to final judgment under the collateral order doc-

trine. Id.; Viilo, 547 F.3d at 711. Some pretrial orders

denying qualified immunity are appealable immediately

because review after trial would come too late to

vindicate the right of public officials not to stand trial.

Mitchell v. Forsyth, 472 U.S. 511, 525-27 (1985); Viilo, 547

F.3d at 711. Accordingly, orders denying summary judg-

ment on the basis of qualified immunity are appealable

immediately when the appellate court need not consider

the correctness of the plaintiff’s version of the facts but

8 No. 09-1165

need only determine a question of law. Mitchell, 472 U.S.

at 528; Viilo, 547 F.3d at 711. If the immunity question

cannot be decided without resolving a disputed ques-

tion of fact, we lack jurisdiction over the appeal of that

question. Ortiz, 131 S. Ct. at 891; Hill v. Coppleson, 627

F.3d 601, 605 (7th Cir. 2010).1

We review de novo the district court’s denial of de-

fendants’ motions for summary judgment based on

qualified immunity. Hill, 627 F.3d at 605.

Qualified immunity protects government officials

from liability for civil damages if their actions did not

violate “clearly established statutory or constitutional

1

In some cases, the district court may conclude that even under

the facts presented by the defendant, the defendant’s actions

violated clearly established law and qualified immunity does

not apply. In others, the district court may deny summary

judgment because if the facts are found in the plaintiff’s

favor the defendant is not immune. Mitchell, 472 U.S. at 527.

Here, the district judge granted summary judgment for

plaintiffs Surita and Carrasco, determining that even under

defendants’ version of the facts plaintiffs Surita and Carrasco

had established that their constitutional rights were violated,

thus rejecting those assertions of qualified immunity com-

pletely. However, only the denial of qualified immunity under

the collateral order rule is appealable; the grant of summary

judgment in favor of plaintiffs Surita and Carrasco is not a

final appealable order. As to Blanks’s claims, the judge denied

Biang’s motion for summary judgment based on qualified

immunity but did not grant summary judgment in Blanks’s

favor.

No. 09-1165 9

rights of which a reasonable person would have

known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009);

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It shields an

officer from liability if the officer “reasonably believes

that his or her conduct complies with the law.” Pearson,

555 U.S. at 244. Analysis of an assertion of qualified

immunity involves two familiar questions: (1) whether

a constitutional right was violated using plaintiff’s

version of the facts, and (2) whether that right was

clearly established at the time. Pearson, 555 U.S. at 236;

Viilo, 547 F.3d at 709-10.

To be clearly established a right must be specific to the

relevant factual context of a cited case and not gen-

eralized with respect to the amendment that is the basis

of the claim. Viilo, 547 F.3d at 710. However, a case with

similar facts is not necessarily required; the violation

may be so obvious in light of law existing at the time

that a reasonable person would have known that his

or her conduct was unconstitutional. Brokaw v. Mercer

Cnty., 235 F.3d 1000, 1023 (7th Cir. 2000).

A. Surita’s Claims against Mayor Hyde

The district court characterized Surita’s First Amend-

ment 2 claim as based on two theories: (1) the audience

time portion of the city council meetings was a

2

Although we reference the First Amendment, the pro-

tections of that amendment apply to the states through the

Fourteenth Amendment. See Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 44 (1983).

10 No. 09-1165

designated public forum and Mayor Hyde’s refusal to

allow Surita to speak was a content-based restriction

not narrowly tailored to a compelling governmental

interest, and (2) Hyde retaliated against Surita for the

exercise of his protected speech at the Belvidere Mall

by barring him from speaking at the city council meet-

ing. The district court found in Surita’s favor on the first

theory and did not address the second.

The First Amendment permits government to regulate

use of its property in certain instances depending on

the nature of that property. Traditional public forums

are places with a long history of being devoted to

assembly and debate, such as public streets and parks.

Designated public forums are locations or channels

of communication that the government opens up

for use by the public for expressive activity. Public prop-

erty not open for public communication by tradition or

designation is deemed a nonpublic forum. Ark. Educ.

Television Comm’n v. Forbes, 523 U.S. 666, 677 (1998);

Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473

U.S. 788, 800, 802 (1985); Perry Educ. Ass’n v.

Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46 (1983);

Christian Legal Soc’y v. Walker, 453 F.3d 853, 865 (7th

Cir. 2006).

A designated public forum is created when the gov-

ernment intentionally makes property or a channel

of communication generally open or available to a class

of speakers rather than permitting only selective access

to particular speakers who must obtain permission to

use it. Ark. Educ. Television Comm’n, 523 U.S. at 678-79.

No. 09-1165 11

There is no doubt that audience time during Waukegan

city council meetings constituted a designated public

forum. See, e.g., City of Madison Joint Sch. Dist. No. 8 v. Wis.

Pub. Emp’t Relations Comm’n, 429 U.S. 167, 176 (1976)

(“[W]hen the board sits in public meetings to conduct

public business and hear the views of citizens, it may

not be required to discriminate between speakers on the

basis of . . . their speech.”); Mesa v. White, 197 F.3d 1041,

1044 (10th Cir. 1999) (noting a lack of dispute regarding

whether the public comment period of a county commis-

sion meeting was a designated public forum); White v.

City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990)

(“City Council meetings like Norwalk’s, where the

public is afforded the opportunity to address the

Council, are the focus of highly important individual

and governmental interests. . . . [S]uch meetings, once

opened, have been regarded as public forums, albeit

limited ones.”); Jones v. Heyman, 888 F.2d 1328, 1331

(11th Cir. 1989) (“[T]he city commission designated

their meeting a public forum when the commission in-

tentionally opened it to the public and permitted

public discourse on agenda items.”); see Collinson v.

Gott, 895 F.2d 994, 1000 (4th Cir. 1990) (Phillips, J., concur-

ring) (“Speech at public meetings called by govern-

ment officials for discussion of matters of public concern

is entitled to normal first amendment protections against

general restrictions or ad hoc parliamentary rulings by

presiding officials.”); Musso v. Hourigan, 836 F.2d 736, 742

(2d Cir. 1988) (noting that an open school board meeting

is a place where public speech is usually allowed); cf.

Ark. Educ. Television Comm’n, 523 U.S. at 680 (contrasting

12 No. 09-1165

a nonpublic forum candidate debate with “an open-

microphone format”). Hyde concedes that audience

time during Waukegan city council meetings was a desig-

nated public forum.

Government has only a limited ability to regulate

expressive activity in traditional and designated public

forums. Any content-based exclusion of speech in such

forums is subject to strict scrutiny, meaning that the

government must show the exclusion “is necessary to

serve a compelling state interest and that it is narrowly

drawn to achieve that end.” Perry Educ. Ass’n, 460 U.S.

at 45; accord Ark. Educ. Television Comm’n, 523 U.S. at 677.

Government may enforce reasonable time, place, and

manner restrictions provided they are content neutral,

they are narrowly tailored to serve a significant govern-

ment interest, and ample alternative channels of com-

munication exist. Perry Educ. Ass’n, 460 U.S. at 45.

Hyde argues his bar on Surita’s speech was a

permissible time, place or manner restriction because

he believed Surita had addressed Figueroa threateningly.

However, content neutrality is a basic requirement of

a time, place or manner restriction, and the barring

of Surita’s speech was not content neutral.

Government may not discriminate among speakers.

United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 812

(2000); City of Madison Joint Sch. Dist. No. 8, 429 U.S. at

176; First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 784-

85 (1978) (“In the realm of protected speech, the legislature

is constitutionally disqualified from dictating . . . the

No. 09-1165 13

speakers who may address a public issue.”). “Laws

designed or intended to suppress or restrict the expres-

sion of specific speakers contradict basic First Amend-

ment principles.” Playboy Entm’t Grp., 529 U.S. at 812.

Just as the government may not favor one speaker

over another, Rosenberger v. Rector & Visitors of Univ. of

Va., 515 U.S. 819, 828 (1995), neither may it disfavor

one speaker over another. Although distinctions on the

basis of subject matter and identity regarding access

to nonpublic forums may be inescapable, they are imper-

missible respecting access to traditional or designated

public forums. See Perry Educ. Ass’n, 460 U.S. at 49. “The

government violates the Free Speech Clause of the First

Amendment when it excludes a speaker from a speech

forum the speaker is entitled to enter.” Christian Legal

Soc’y, 453 F.3d at 865.

Hyde barred anything and everything Surita proposed

to say at a public meeting. Because he excluded a

speaker within the class to which the designated public

forum was available his action is subject to strict scrutiny.

Ark. Educ. Television Comm’n, 523 U.S. at 677. Restric-

tions that favor or disfavor certain speech based on the

speaker rather than the content of the message are still

content based. Solantic, LLC v. City of Neptune Beach,

410 F.3d 1250, 1265 (11th Cir. 2005). The content-based

nature of Hyde’s restriction on Surita is highlighted by

Hyde’s demand that Surita apologize regarding state-

ments attributed to him by a city employee. Govern-

ment officials may neither stifle speech because of its

message nor require the utterance of a particular

14 No. 09-1165

message they favor. See Turner Broad. Sys., Inc. v.

FCC, 512 U.S. 622, 641-42 (1994); Solantic, LLC, 410 F.3d

at 1258.

Hyde contends he did not bar Surita from speaking at

a city council meeting because of Surita’s anticipated

objection to Waukegan’s Towing Ordinance—indeed,

that night other speakers criticized the Towing Ordinance

and Figueroa. Instead, Hyde says he barred Surita’s

speech because of how he believed Surita had con-

fronted Figueroa. Thus, he maintains, the bar was

content neutral and permissible.

That others were permitted to speak on the same

subject that Surita was expected to address has

no bearing on whether the restriction on Surita was

content based. The Supreme Court has rejected the argu-

ment that a First Amendment violation requires an in-

tention to suppress certain ideas. See City of Cincinnati

v. Discovery Network, Inc., 507 U.S. 410, 429 (1993).

Actual disagreement with content is not necessary for

finding the regulation of speech to be content based. See

id.; Mesa, 197 F.3d at 1045 n.4. Therefore, whether

Surita wished to speak in protest against the Towing

Ordinance, to congratulate the mayor on a job well

done, or to contend that Waukegan should collect

garbage differently does not alter the analysis. When

Hyde intentionally barred Surita from speaking he

barred the content of Surita’s speech, regardless of

whether he agreed or disagreed with the viewpoint

Surita was going to expound.

No. 09-1165 15

Moreover, even if Hyde’s restriction were content

neutral, no reasonable jury would find a total bar on

Surita’s speech to have been a valid time, place, or

manner restriction. On January 20, 2004, Surita ap-

proached the microphone at the appropriate time, and

no cited evidence suggests that he was planning to

address the city council in an inappropriate manner.

However, Hyde contends that Surita’s prior actions at

the Belvidere Mall were possibly criminal disorderly

conduct; Hyde heard reports that Surita’s conduct

at the mall rally was threatening in manner or content.

Regardless, Surita’s possible disorderly conduct two

days earlier cannot justify a restriction at the city council

meeting. Surita was not barred from speaking at the

city council meeting for disorderly conduct or being

belligerent. He was not barred from speaking because

he had strayed from an announced limited topic, was

being repetitive, or had exceeded his three-minute time

frame. See White, 900 F.2d at 1426 (“A speaker may

disrupt a Council meeting by speaking too long, by

being unduly repetitious, or by extended discussion of

irrelevancies. The meeting is disrupted because the

Council is prevented from accomplishing its business in

a reasonably efficient manner.”). He was barred com-

pletely because of something that had occurred two

days earlier—not at the city council meeting or even

related to it. Hyde’s willingness to permit Surita to

speak if he apologized first undermines any possible

argument that Surita was out-of-line at the city council

meeting; if his manner were disruptive, Hyde could

have barred his speech completely rather than premise

16 No. 09-1165

it upon an apology. Hence, the restriction on Surita was

not a content-neutral time, place or manner restriction;

instead, it was a content-based exclusion that had to

be narrowly tailored to effectuate a compelling govern-

mental interest. On that front, Hyde fails to present

any compelling interest to justify prohibition of Surita’s

speech. He argues that his restriction on Surita’s speech

was justified as a sanction for conduct toward Figueroa.

Penalties for speech protected under the First Amend-

ment are forbidden. Fairley v. Andrews, 578 F.3d 518, 525

(7th Cir. 2009). Viewing the facts in Surita’s favor, his

speech at the Belvidere Mall was not threatening. But

even if Surita threatened Figueroa at the Belvidere

Mall rally as Hyde may have been told, nothing in the

record indicates that Surita’s proposed speech at the

city council meeting would be threatening. Therefore,

Hyde used Surita’s prior speech to prohibit subsequent

protected speech. As the district court pointed out, the

absolute prohibition on Surita’s speech fails the strict-

scrutiny test. Consequently, we conclude that Hyde

violated Surita’s First Amendment rights.

Next we consider whether as of January 20, 2004, a

reasonable person should have known that barring

Surita from speaking during city council audience time

unless he apologized to Figueroa was a constitutional

violation. The answer is “yes.” Playboy Entertainment

Group, City of Madison Joint School District No. 8, Perry

Education Ass’n, Rosenberger, Mesa, and Jones predated

the January 20, 2004, city council meeting. Taken

together, these cases clearly established that the city

No. 09-1165 17

council meeting was a designated public forum, that

barring a speaker from any speech in a traditional

or designated forum constituted a content-based restric-

tion, and that barring Surita from speaking in that desig-

nated public forum because of his alleged actions or

words two days earlier was not a valid time, place,

or manner restriction and thereby constitutionally im-

permissible. The Supreme Court cases described

above set forth the basics of First Amendment forum

analysis and the difference between content-based re-

strictions (including the suppression of a particular

speaker’s words) and content-neutral time, place and

manner restrictions.

Before 2004 several cases applied those standards to

settings of public hearings and meetings of government

bodies. For instance, the Second Circuit found that

under clearly established law as of September 1983,

content-based censorship practiced by a school board

official during a public hearing constituted a First Amend-

ment violation. See Musso, 836 F.2d at 742-44. One concur-

ring judge in Collinson found that by March 1987 an

official would have known that he could not constitu-

tionally evict a person from a public meeting if there

was no reasonable basis for fearing disruption or if his

actual purpose was to prevent expression of the

speaker’s viewpoint. 895 F.2d at 1000 (Phillips, J., con-

curring).

Hyde asserts that many of these cases, dealing

with regulation in the form of legislation, cannot have

informed him that his ad hoc action at a city council

18 No. 09-1165

meeting would violate Surita’s rights. See, e.g., First Nat’l

Bank of Bos., 435 U.S. at 784-85 (discussing restrictions

on acts of the legislature). Yet, in stating that “[i]t is

axiomatic that the government may not regulate speech

based on its substantive content or the message it con-

veys,” Rosenberger, 515 U.S. at 828, the Supreme Court

did not limit its meaning for the word “regulate” solely

to legislation or contrast it against individual acts

of municipal officials. In fact, Rosenberger involved a

University committee’s refusal to pay for printing costs

of a student publication rather than any form of legisla-

tion. Further, the Musso and Jones courts recognized, in

1988 and 1989 respectively, that First Amendment rights

may be violated by ad hoc parliamentary rulings at

public meetings or hearings. See 836 F.2d at 742-44; 888

F.2d at 1331-34. In 1990, the concurring judge in

Collinson stated that under the law as of March 1987

speech at public meetings was entitled to normal

First Amendment protections against ad hoc rulings by

presiding officials. 895 F.2d at 1000. These legal rules

and standards were acknowledged to be clear more

than ten years before Hyde silenced Surita.

Hyde contends that for Surita to avoid his qualified

immunity defense Surita had to prove that he intended

to suppress speech on the basis of its content. This court

discussed in Hansen v. Bennett the importation of the

intent requirement for a First Amendment claim into

the objective qualified immunity standard, finding that

the plaintiff must show that a reasonable person in

the defendant’s position, “ ‘that is, one acting on [defen-

dant’s] information and motivated by [defendant’s] pur-

No. 09-1165 19

pose,’ would have known that ejecting [plaintiff from

a public hearing] violated his clearly established rights.”

948 F.2d 397, 399 n.4 (7th Cir. 1991). Here, Hyde’s

purpose in silencing Surita is apparent from his words

at the city council meeting: he demanded that Surita

apologize to Figueroa before he would be allowed to

speak. A reasonable person in January 2004 would have

known that silencing Surita for that purpose was con-

stitutionally impermissible. Thus, the denial of qualified

immunity on this theory is affirmed.

District Judge Shadur did not address Surita’s retalia-

tion theory, nor did he mention the retaliation case of

Vukadinovich v. Board of School Trustees of North Newton

School Corp., 278 F.3d 693 (7th Cir. 2002), in regard to

Surita’s claim (instead, he did so as to Carrasco’s claim).

Yet, Hyde contends that the district judge used the stan-

dard of Vukadinovich, allowing a claim of retaliation

for exercise of First Amendment rights to move forward

if retaliation was simply one motivating factor of the

defendant, rather than the Fairley standard requiring

that retaliation for exercise of First Amendment rights

be the “but-for” cause of the restriction on speech.

In addressing Carrasco’s retaliation claim, Judge

Shadur used a burden-shifting test from Vukadinovich:

(1) the speech was constitutionally protected (plain-

tiff’s burden); (2) the defendant’s actions were motivated

by the plaintiff’s protected speech (plaintiff’s burden);

and (3) the defendant cannot show he would have

taken the same action in the absence of the plaintiff’s

exercise of First Amendment rights (defendant’s bur-

20 No. 09-1165

den). The judge observed that if Biang met his burden

on the third element, the burden shifted back to Carrasco

to show that the proffered justifications were pretextual.

See Vukadinovich, 278 F.3d at 699. This test required at

step (2) only that the constitutionally protected speech

was a motivating factor.

Hyde and Biang argue that the motivating-factor portion

of the Vukadinovich test has been rejected. In Fairley, 578

F.3d at 525, we wrote that after Gross v. FBL Financial

Services, Inc., 129 S. Ct. 2343 (2009), but-for causation is part

of a plaintiff’s burden in all suits under federal law,

including First Amendment chilling claims, unless the

statute provides otherwise. (The district court decision

in the present case predated Gross and Fairley.) Neverthe-

less, the Fairley court recognized that before trial, if the

record contains evidence from which a reasonable

jury could find such causation, no more is necessary at

that stage, though the instructions at trial must reflect

the holding of Gross. 578 F.3d at 526.

Fairley revived a standard we had used at times. See

Abrams v. Walker, 307 F.3d 650, 655 (7th Cir. 2002) (stating

that a plaintiff cannot prevail without establishing that

the challenged action would not have occurred “but for”

the protected conduct). We disavowed Abrams’s but-for

causation in favor of motivating-factor causation in

June 2004, Spiegla v. Hull, 371 F.3d 928, 941-42 (7th

Cir. 2004), but returned to but-for causation in Fairley

in 2009. Vukadinovich, which predated Abrams, had noted

the motivating-factor standard, 278 F.3d at 699, and

that the plaintiff had to show the challenged action

No. 09-1165 21

would not have occurred but for constitutionally pro-

tected conduct, id. at 700. Hyde’s barring of Surita’s

speech occurred after Vukadinovich and Abrams but

before Spiegla.

Recently, in Greene v. Doruff, 660 F.3d 975 (7th Cir.

2011), we addressed the tension in our cases be-

tween motivating-factor causation and but-for causa-

tion, clarifying that First Amendment cases are

governed not by Gross but by Mt. Healthy City School

District Board of Education v. Doyle, 429 U.S. 274 (1977).

Greene, 660 F.3d at 977. We noted that Spiegla and Fairley

are correct to an extent because the burden of proof

relating to causation is divided between the parties in

First Amendment cases. Id. at 979-80. To meet the prima

facie burden regarding causation in a First Amendment

case, a plaintiff needs to show only that the defendant’s

conduct was a motivating factor, i.e., a “sufficient factor,”

meaning when something present makes something else

bound to happen. Id. at 978-79. The defendant can then

rebut that showing, but only by establishing that his

or her conduct was not a but-for or “necessary condition”

of the harm, i.e., that the harm would have occurred

anyway. Id. at 979.

Thus, Judge Shadur was not wrong in referencing a

burden-shifting test that included a plaintiff’s burden to

show a motivating factor. Moreover, at the summary

judgment stage the burden-shifting test is used to deter-

mine whether a plaintiff makes it to trial. Even as we

stated in Fairley, if evidence exists upon which a rea-

sonable jury could find but-for causation, no more is

22 No. 09-1165

necessary to overcome a defendant’s summary judg-

ment motion.

Here, viewing the facts in Surita’s favor, his speech at

the Belvidere Mall was protected. Hyde argues that he

was not motivated to suppress Surita’s point of view but

only the threatening manner in which Surita’s view was

delivered. However, Hyde’s comments during the city

council meeting indicate that Surita was silenced to

induce him to apologize for the Belvidere Mall speech; by

Hyde’s own words, excluding Surita from speaking was

a reaction to what Surita said at the Belvidere Mall.

Thus, Hyde’s comments at the meeting provide evidence

that the Belvidere Mall speech was the cause (whether

motivating or but-for) that prevented Surita from ex-

pressing his views at the city council meeting.

Even before January 2004 an official’s act taken in

retaliation for the exercise of free speech under the

First Amendment was recognized to violate the Con-

stitution. Vukadinovich and Abrams, decided in 2002,

made clear that Hyde could not retaliate against some-

one for protected First Amendment speech, whether

acting pursuant to a but-for motive or a substantially

motivating one. Hence, a reasonable official in Janu-

ary 2004 would have known he could not retaliate.

B. Carrasco’s Claims Against Police Chief Biang

Carrasco asserts that Biang (1) violated her First Amend-

ment rights by applying the Assembly Ordinance to her

in a discriminatory manner; (2) retaliated against her

No. 09-1165 23

for exercising First Amendment rights; and (3) attempted

to chill her future exercise of First Amendment rights.

Carrasco moved for and was granted summary judgment

on her as-applied claim. Defendants moved for and were

denied summary judgment as to all of Carrasco’s claims.

Biang contends that he did not participate in any uncon-

stitutional conduct because Neddenriep applied the

Assembly Ordinance to Carrasco; he contends he had

no personal involvement. To be liable under § 1983, a

government official must have caused the deprivation of

a constitutional right. He may do so if the deprivation

occurs at his direction or with his consent or if he “sets

in motion a series of events that [he] knew or reasonably

should have known would cause others to deprive

plaintiff of constitutional rights.” Brokaw, 235 F.3d at 1012.

It is undisputed that Biang called a July 1 meeting

with Carrasco concerning a scheduled rally protesting

Waukegan’s Towing Ordinance. He also sent an officer

to Carrasco’s house to ask her to attend the meeting,

where Waukegan’s Assembly Ordinance was discussed.

Viewing the facts in Carrasco’s favor, Biang was di-

rectly involved in discussion of the application of the

Assembly Ordinance. Further, the amount of the deposit

for Carrasco’s anticipated July 6 outdoor rally was deter-

mined based on Biang’s recommendation regarding the

number of police officers he would assign to the event.

Therefore, Biang was personally involved in the actual

application of the Assembly Ordinance to Carrasco.

An as-applied challenge is one that charges an act

is unconstitutional as applied to a plaintiff’s specific

24 No. 09-1165

activities even though it may be capable of valid applica-

tion to others. See Members of City Council v. Taxpayers

for Vincent, 466 U.S. 789, 803 & n.22 (1984).

Parks and streets are traditional public forums.

Cornelius, 473 U.S. at 802; Perry Educ. Ass’n, 460 U.S. at

45. An ordinance requiring a permit and fee before

speech in a traditional public forum is allowed amounts

to a prior restraint on that speech, but the permit and fee

may constitutionally be permitted to regulate competing

uses of the forum. Forsyth Cnty. v. Nationalist Movement,

505 U.S. 123, 130 (1992). Competing rallies at the same

time in the same limited space could reduce the forum’s

availability for free speech or conflict with other uses of

that space. Thomas v. Chi. Park Dist., 227 F.3d 921, 924

(7th Cir. 2000), aff’d, 534 U.S. 316 (2002). Again, reasonable

time, place, and manner restrictions of speech in tradi-

tional public forums are permitted, but they must be

content neutral and narrowly tailored to serve a

significant government interest, and they must allow

ample alternative channels of communication. Id.; see

Perry Educ. Ass’n, 460 U.S. at 45. Restrictions that slip

from neutral time, place, and manner concerns into

concerns about content are never permitted. Police Dep’t

v. Mosley, 408 U.S. 92, 99 (1972).

Forsyth County involved a facial challenge to a county

ordinance that permitted an administrator to vary the

permit fee for an assembly or parade to reflect estimated

administrative expenses and the cost of maintaining

public order. 505 U.S. at 127. The Supreme Court held

the ordinance unconstitutional because it lacked any

No. 09-1165 25

narrow, reasonable, and definite standards to guide the

fee determination: “The decision how much to charge

for police protection or administrative time—or even

whether to charge at all—is left to the whim of the ad-

ministrator. There are no articulated standards either in

the ordinance or in the county’s established practice.” Id.

at 133. Further, the ordinance required the fee to be

content based. To calculate the cost of maintaining

public order, the administrator had to examine the

content of the applicant’s speech, forecast the response of

others to that content, and gauge the number of police

officers needed for the event. Id. at 134.

The Supreme Court ruled that a permitting scheme

for parades or open-air assemblies must meet two re-

quirements: (1) the scheme must not assign overly broad

discretion to a government official, and (2) as with other

time, place, and manner restrictions, the scheme must be

content neutral and narrowly tailored to serve a gov-

ernmental interest, while leaving ample alternatives for

communication. Id. at 130. The Court noted that raising

revenue to cover police services cannot justify a content-

based permit fee, regardless of whether the fee is con-

sidered nominal. Id. at 135-37.

Although Forsyth County involved a facial challenge to

an ordinance, its holding applies here; the problems

noted in Forsyth County are the same problems Carrasco

encountered. The deposit imposed on Carrasco was a

function of the number of officers assigned to the event,

and Biang admitted that he would have assigned fewer

police officers to the July 6, 2004, rally if the event had

been organized in support of the Towing Ordinance.

26 No. 09-1165

Nevertheless, Biang contends his determination was

content neutral because his reasoning would apply to

any protest, not just a protest against the Towing Ordi-

nance.

Forsyth County followed by fifty years the Court’s

decision in Cox v. New Hampshire, 312 U.S. 569 (1941). At

issue in Cox was a New Hampshire statute that required

an applicant for a parade or open-air meeting license

to pay up to $300 per day for use of city property. Id. at

571 n.1. State courts determined that the fee offset

expenses for maintaining public order during the event.

Id. at 577. The Court held the fee constitutional, finding

no basis for denying “local governments that flexibility

of adjustment of fees which in the light of varying condi-

tions would tend to conserve rather than impair the

liberty sought.” Id. Hence, Biang argues that under

Cox, Waukegan may impose a fee determined by the

anticipated expense of maintaining public safety.

After Forsyth County, the viability of the fee discussion

in Cox is limited. 729, Inc. v. Kenton Cnty. Fiscal Court, 515

F.3d 485, 502 (6th Cir. 2008). Forsyth County rejected a

party’s reference to Cox because no evidence indicated

that the New Hampshire statute granted unbridled dis-

cretion to the licensing authority. 505 U.S. at 133 n.11.

Further, although Cox stated that a flexible fee to cover

expenses may be permissible, Forsyth County makes

clear that predicating a flexible fee on content is not

permissible. See 729, Inc., 515 F.3d at 502-03. Although

a government’s concern over the burden of open-air

assemblies on public resources may be legitimate, a cost-

based fee may not rest on content. Church of Am. Knights

No. 09-1165 27

of Ku Klux Klan v. City of Gary, 334 F.3d 676, 682 (7th

Cir. 2003). The government cannot impose financial

burdens on speakers based on the content of their

speech. Rosenberger, 515 U.S. at 828.

Biang contends that Forsyth County applies only to the

“heckler’s veto” scenario—when counter-protesters are

expected to cause trouble. But his reasoning is too narrow;

Forsyth County applies to any ordinance that allows

determination of an event permit fee grounded on

content, even if pegged to anticipated administrative

expense or the cost of maintaining public order. Justice

Blackmun did not limit the scope of the Court’s decision

to the heckler’s veto scenario. Instead, he stated broadly

that the Court was addressing whether the right to free

speech was violated by an assembly ordinance that al-

lowed a government official power to vary the fee ac-

cording to the estimated cost of maintaining public

order. 505 U.S. at 124.

Here, the undisputed facts show that Carrasco was

asked to pay a deposit calculated on the number of

officers Biang thought necessary for the contemplated

July 6 rally. Biang testified that he took into account that

the event was a protest rally. Had the rally been in

support of Waukegan’s Towing Ordinance, he would

have assigned fewer officers. Thus, Biang’s applica-

tion of the Assembly Ordinance fee to Carrasco was

impermissibly content based. Raising revenue to cover

police services cannot justify a content-based permit fee.

Biang maintains that he did not consider Carrasco’s

particular viewpoint. However, because he expected

28 No. 09-1165

protesters to be angry he concluded that a hostile protest

would require more officers. But deciding whether a

person is speaking in protest or support of a law always

involves consideration of viewpoint, and viewpoint

discrimination is “an egregious form of content discrim-

ination,” Rosenberger, 515 U.S. at 829.

Biang further contends that a municipality must be

allowed to vary the number of officers it assigns to

events. But assigning officers was not the constitutional

violation. Nothing in the present discussion or caselaw

suggests that police are not permitted to staff events

according to the circumstances. The problem is in

issuing permits and charging fees based on the content

of the speech at the events; Biang’s violation was his

involvement in imposing a cash deposit or fee based on

the content of Carrasco’s speech.

After Forsyth County was decided in 1992, a rea-

sonable official was on notice of the clearly established

law regarding impermissible, content-based permitting

fees. Further, Brokaw summarized in 2000 the law re-

garding an official’s participation in a constitutional

violation. Thus, by July 2004, a reasonable official

should have known that applying the Assembly

Ordinance and charging Carrasco a fee based on her

protest viewpoint was constitutionally impermissible.

Carrasco claims that Biang applied the Assembly Ordi-

nance to her in retaliation for her prior protests of the

Towing Ordinance and to chill her future speech. Retalia-

tion claims and chilling claims are related in that the

Constitution protects citizens from penalties that follow

No. 09-1165 29

protected speech (retaliation) and threats of penalties

for future protected speech (chilling). Fairley, 578 F.3d

at 525.

For the retaliation claim, the district judge used the

burden-shifting test from Vukadinovich described

above: (1) the speech was constitutionally protected

(Carrasco’s burden); (2) Biang’s actions were motivated

by Carrasco’s protected speech (Carrasco’s burden); and

(3) Biang cannot show he would have taken the same

action in the absence of Carrasco’s exercise of her First

Amendment rights (Biang’s burden). The judge was

mindful that if Biang met his burden on the third

element, the burden shifted back to Carrasco to

establish that the proffered justifications were pre-

textual. This test required at step (2) only that the con-

stitutionally protected speech was a motivating factor.

Biang’s argument that the Vukadinovich test was re-

jected in Fairley was addressed above.

Here, the first element of the retaliation claim is undis-

puted—Carrasco’s June 28 speech was protected. Re-

garding motivation, sufficient evidence establishes an

issue of fact, whether under a but-for or motivating-

factor causation standard. Biang knew of Carrasco’s

protected speech at the June 28 march and was told

she was planning a larger rally. Just three days after

Carrasco’s protected speech Biang sent an officer to

Carrasco’s house and called her in for a meeting at which

30 No. 09-1165

the Assembly Ordinance was applied. 3 The temporal

proximity between the protected speech and application

of the Assembly Ordinance suggests (while it may not

establish) a retaliatory connection, but there is more. 4 This

application of the Assembly Ordinance to Carrasco was,

as the district judge put it, “completely out of the ordi-

nary.” Prior to July 1, 2004, the Assembly Ordinance

had been applied to no one, even though it could have

been applied to applicants for 500 earlier events. Yet,

after Carrasco exercised her right to free speech on June 28,

the Assembly Ordinance was applied to her next

planned rally. Biang offers his reactions to other protest

activity by Carrasco as evidence that he did not inten-

tionally retaliate against her. For instance, he saved seats

for Carrasco and her group at the July 6 city council

3

Biang at times argues as if the July 1, 2004, meeting alone

was his allegedly unconstitutional conduct. The July 1 meeting

was not the problem; the application of the Assembly

Ordinance at and after the meeting was.

4

According to Biang, the district court erred in relying on

temporal proximity, citing Sauzek v. Exxon Coal USA, Inc., 202

F.3d 913, 918 (7th Cir. 2000). Although we have stated several

times that suspicious timing alone does not support a

reasonable inference of retaliation, the district court was not

wrong to consider it in combination with other evidence. See

id. (noting that “other circumstances must also be present”); see

also Greene, 660 F.3d at 980 (stating that timing of a conduct

report plus the threadbare nature of the report were sufficient

to create a triable issue as to whether the report was issued

in retaliation).

No. 09-1165 31

meeting and at Carrasco’s request he appeared at other

events. But other conduct that comports with the Con-

stitution does not excuse conduct that violates it.

Whether Biang would have taken the same action

absent Carrasco’s protest on June 28 is a question of fact.

Biang may have had safety concerns about a large rally

protesting the Towing Ordinance, but the unprecedented

application of the Assembly Ordinance to Carrasco

three days after her protected speech cannot be ignored.

A reasonable jury could find in Carrasco’s favor on

this point.

Nevertheless, Biang would enjoy qualified immunity as

to this claim if applicable law was not clearly established

as of July 1, 2004. However, by then it was clear that

Biang could not retaliate against a person for protected

First Amendment speech. For these reasons, determina-

tion of Biang’s qualified immunity defense must await

presentation of the facts at trial.

Finally, we turn to Carrasco’s chilling claim. The

First Amendment prohibits threats of punishment de-

signed to discourage future protected speech. Fairley,

578 F.3d at 525. We apply an objective test: whether the

alleged conduct by the defendants would likely deter

a person of ordinary firmness from continuing to en-

gage in protected activity. Id.; see Garcia v. City of

Trenton, 348 F.3d 726, 728-29 (8th Cir. 2003). Again,

Carrasco must show that her potential speech was at

least a motivating cause of Biang’s threat of punishment.

See Greene, 660 F.3d at 978-79; Fairley, 578 F.3d at 525-26.

Would a person of ordinary firmness be deterred from

32 No. 09-1165

holding a rally if called to a meeting by a uniformed officer

and told by the police chief and city attorney that the

never-used Assembly Ordinance would be enforced, a

$1500 permit fee had to be paid, and failure to comply

with the Assembly Ordinance would result in a violation

of law and denial of future permit applications? Taking

the facts in Carrasco’s favor, especially in light of the

selective nature of the Assembly Ordinance’s application,

a reasonable jury could answer “yes.” Further, a reasonable

jury could find that prohibiting Carrasco’s speech was the

motivating, or even but-for, cause of Biang’s threats. At

trial, Biang could contend that he was truly concerned

about police expense, but the selective nature of the

application of the ordinance suggests the contrary.

Biang contends that Carrasco’s speech was not

actually chilled. Moreover, chilling claims require dam-

ages. Fairley, 578 F.3d at 526. Here, there appears to be

evidence that Carrasco was not planning a rally on July 6,

and that she was able to protest the Towing Ordinance

in other ways. But whether she was planning a rally on

July 6 and chose not to proceed with it due to the threat-

ened permit fee is a question of fact, as is whether she

altered her means of protesting after learning that the

Assembly Ordinance would apply to her protests.

Notably, Neddenriep’s letter warned that advance

notice would not be waived for future permit applica-

tions. Perhaps, as a result, Carrasco foreswore future

outdoor assemblies because of the threat. “The effect on

freedom of speech may be small, but since there is no

justification for harassing people for exercising their

No. 09-1165 33

constitutional rights it need not be great in order to be

actionable.” Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982).

Regarding qualified immunity, Biang was on notice

before July 2004 that prior restraints on speech are prohib-

ited. While Fairley, in 2009, discussed confusion in use

of the word “retaliation” to describe penalties for past

speech (retaliation) and threats to deter future speech

(chilling), prior restraints have been recognized

for many years as forbidden and “quintessential first-

amendment violation[s].” See Fairley, 578 F.3d at 525

(citing Supreme Court cases from 1976, 1975, and 1919).

C. Blanks’s Claims Against Police Chief Biang

Like Carrasco, Blanks raises (1) an as-applied claim

regarding use of the Assembly Ordinance; (2) a retaliation

claim; and (3) a chilling claim. His assertions stem from

his planned September 4, 2004, protest at Bedrosian Park.

In a response similar to that regarding Carrasco’s claim,

Biang contends that he did not participate in any uncon-

stitutional conduct because Neddenriep applied the

Assembly Ordinance to Blanks, not he; according to

Biang, he had no personal involvement. On this point,

Biang succeeds.

Blanks contends that Biang did not adequately raise

qualified immunity and the district court addressed

qualified immunity only as to Blanks’s retaliation and

chilling claims. Qualified immunity pertaining to

Blanks’s claims first surfaced in Biang’s reply brief on

summary judgment. Moreover, it was fleeting—just one

34 No. 09-1165

sentence accusing Blanks of failing to produce evidence

of Biang’s intent to retaliate or chill speech. However,

Biang’s failure to discuss qualified immunity respecting

Blanks’s as-applied claim appears due to Blanks’s failure

to clarify that he was bringing such a claim. The Third

Amended Complaint named only Waukegan and clerk

Wayne Motley as defendants for Blanks’s as-applied

claim. Biang was named only in regard to the retaliation

and chilling claims.

The district court addressed the qualified immunity

issue, though briefly, and did not limit qualified

immunity to the retaliation and chilling claims. Instead,

Judge Shadur discussed qualified immunity as to Biang’s

overall liability. Hence, we will not find the qualified

immunity issue waived when the district court did not.

Biang’s involvement in the application of the Assembly

Ordinance to Blanks was insufficient to support § 1983

liability. He may have told Yancey to handle the matter

and check with Neddenriep about whether the Assembly

Ordinance applied to a rally in Bedrosian Park, but

that was not enough to find that Biang participated in

applying the Assembly Ordinance to Blanks. Biang did

not attend a meeting with Blanks during which applica-

tion of the Assembly Ordinance to the September 4 event

was discussed nor did he participate in determining

any permit fee. Neddenriep, not Biang, applied the As-

sembly Ordinance. Moreover, Biang merely received a

copy of the letter Neddenriep sent to Blanks, which no

reasonable jury could conclude is proof of personal in-

volvement. The record includes nothing showing that

No. 09-1165 35

Biang knew or reasonably should have known that

Neddenriep would deprive Blanks of his constitutional

rights.

The district judge thought Biang’s instruction to

Yancey to handle the matter was enough of a causal

connection or affirmative link, but we disagree. Thus,

summary judgment against Blanks is warranted on the

first element of the qualified immunity defense. Further,

under the law as of 2004 regarding personal involve-

ment, which required direction or setting an event in

motion, see Brokaw, 235 F.3d at 1012, a reasonable official

in Biang’s position would not have known that his di-

rection to Yancey and failure to act upon receipt of

Neddenriep’s letter would have violated the Constitution.

III

For the above-discussed reasons, we A FFIRM the denial

of qualified immunity regarding the claims of Surita and

Carrasco, R EVERSE the denial of qualified immunity as

to Blanks’s claims, and R EMAND the case for further

proceedings consistent with this opinion.

36 No. 09-1165

M ANION, Circuit Judge, concurring in part, dissenting in

part. I concur with the court’s conclusion that qualified

immunity should be denied to Mayor Hyde on plaintiff

Surita’s claim, and that qualified immunity should be

accorded to Police Chief Biang on plaintiff Blanks’s

claim. But I disagree with the court’s conclusion that

Biang was “personally involved in the application of the

Assembly Ordinance” against plaintiff Carrasco. (Opinion

at 23.) The record evidence does not support this con-

clusion. Because there is no evidence that Biang was

personally involved in the violation of Carrasco’s con-

stitutional rights, he is entitled to qualified immunity.

Therefore, I concur in part and dissent in part.

As the court notes, Carrasco advanced three free-

speech claims against Police Chief Biang: (1) that Biang

applied the Assembly Ordinance in a discriminatory

fashion; (2) that Biang applied the Assembly Ordinance

in retaliation against Carrasco; and (3) that Biang

applied the Assembly Ordinance to chill Carrasco’s

future speech. (Opinion at 22-23.) The common thread that

runs through these claims is Biang’s alleged improper

application of the Assembly Ordinance against Carrasco.

If so, it is Biang’s application of the Assembly Ordinance

that allegedly caused a violation of Carrasco’s constitu-

tional rights.

When determining qualified immunity in this

instance, we need to examine whether Biang actually

caused a violation of Carrasco’s constitutional rights.

Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009). As the

court correctly states, “[a]n official causes a constitu-

No. 09-1165 37

tional violation if he sets in motion a series of events

that [he] knew or reasonably should have known

would cause others to deprive plaintiff of constitutional

rights.” Brokaw v. Mercer Cnty., 235 F.3d 1000, 1012 (7th

Cir. 2000) (citation omitted). The court concludes that

Biang caused a violation of Carrasco’s constitutional

rights by organizing a meeting with city attorney

Gretchen Neddenriep, by sending a deputy to Carrasco’s

house to ask her to attend that meeting, and by calculating

the number of officers that would be needed to patrol

Carrasco’s planned protest. (Opinion at 23.) This limited

recitation of the facts leads the court to an erroneous

conclusion.

Biang did initiate a meeting with Carrasco after he

received word that Carrasco was planning a protest rally

outside city hall that would coincide with a city council

meeting. And a uniformed police officer did show up at

Carrasco’s door to invite her to come to the meeting—but

only after a call to Carrasco’s home had gone unanswered.

As for the purpose of the meeting, the record also

clearly shows that Biang’s aim was “[t]o establish ground

rules for where people were going to be [during the

protest].” Aware that there were likely “First Amendment

issues” surrounding the city’s response to Carrasco’s

protest, Biang also invited Neddenriep so that she could

cover any legal issues. Biang averred that, at the time

he called for the meeting, he was not aware of any en-

forcement action that might be taken against Carrasco for

not complying with the Assembly Ordinance. At the

meeting, it is undisputed that Neddenriep provided

38 No. 09-1165

Carrasco with a copy of the Assembly Ordinance and

went through the permitting and fee requirements.

Indeed, Carrasco herself stated that Neddenriep did

most of the talking during the meeting and that Biang’s

comments were limited to logistics and public safety

concerns. This testimony corroborates Biang’s contention

that it was Neddenriep, not the police department,

who decided to apply the Assembly Ordinance.

With this additional factual background, it is apparent

that Neddenriep, not Biang, set in motion a series of

events that she knew or reasonably should have known

would cause others to deprive Carrasco of her constitu-

tional rights. The undisputed evidence demonstrates

that Biang called the meeting out of a concern for

public safety, and that Biang’s estimate of the number of

police officers who were needed to patrol the protest

was likewise made out of a concern for public safety.1

Moreover, Biang summoned Carrasco to the meeting

with a uniformed officer only after the police had at-

tempted to contact Carrasco via telephone. Most con-

vincingly, Biang’s unopposed testimony shows that he

1

The court acknowledges that varying the number of officers

assigned to different events does not violate the Constitution.

(Opinion at 28.) The court concludes that Biang’s violation

was in calculating the permitting fees. But it is undisputed

that Neddenriep, not Biang, provided Carrasco with the total

fee amount. Therefore, by the court’s own reasoning, Biang

did not effect a constitutional violation by giving Neddenriep

an estimate of the number of police officers needed to patrol

the protest.

No. 09-1165 39

had no idea that Neddenriep would seek to impose the

Assembly Ordinance’s requirements on Carrasco.

Additionally, the court emphasizes the fact that, before

the meeting with Carrasco, the Assembly Ordinance had

never been applied despite the fact that more than 500

applications had been filed previously. (Opinion at 30.)

But this fact actually cuts in favor of Biang. Indeed,

because the city had never applied the Assembly Ordi-

nance, Biang could not have known—nor could he have

reasonably foreseen—at the time he called the meeting

that Neddenriep would apply the Assembly Ordinance

to Carrasco.

That said, for whatever reason, Carrasco did not

name Neddenriep as a defendant. The uncontroverted

testimony in this case points to Neddenriep as the

official responsible for applying the Assembly Ordinance

against Carrasco. Because no reasonable fact finder

could conclude that Biang did anything that he knew or

should have known would result in a violation of

Carrasco’s constitutional rights, I would reverse the

district court and hold that qualified immunity

applies to Carrasco’s claims against Biang. Accordingly,

I dissent.

12-22-11