Andy Thayer v. Ralph Chiczewski

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-1974 & 10-2064

A NDY T HAYER, et al.,

Plaintiffs-Appellants,

v.

R ALPH C HICZEWSKI, et al.,

Defendants-Appellees.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

Nos. 1:07-cv-01290 & 1:07-cv-01406—John W. Darrah, Judge.

A RGUED A PRIL 6, 2011—D ECIDED S EPTEMBER 18, 2012

Before F LAUM, E VANSΠ, and T INDER, Circuit Judges.

T INDER, Circuit Judge. Chicago police officers arrested

plaintiffs for disorderly conduct at a 2005 antiwar demon-

stration at the corner of Chicago’s Oak Street and Michigan

Avenue. The plaintiffs brought claims for First Amend-

Œ

Circuit Judge Terence T. Evans died on August 10, 2011, and

did not participate in the decision of this case, which is

being resolved by a quorum of the panel under 28 U.S.C. § 46(d).

2 Nos. 10-1974 & 10-2064

ment retaliation, Fourth Amendment false arrest, Four-

teenth Amendment class-of-one equal protection, and state

law malicious prosecution. They also brought facial

challenges against subsection (d) of Chicago’s disorderly

conduct ordinance, Chicago Municipal Code, Ill. § 8-4-

010(d) (“subsection (d)”), as overbroad and unconstitu-

tionally vague.1 (The suits were initially assigned to

separate district judges but were subsequently reassigned

to a single district judge.) The district court granted

summary judgment and we affirm on the basis of

qualified immunity.

The district court dismissed Bradford Lyttle’s facial

challenge for failure to state a claim and ruled that Andy

Thayer’s facial challenge was barred by res judicata.

Thayer doesn’t appeal that ruling. The district court

granted summary judgment on the plaintiffs’ remaining

claims. We affirm the grant of summary judgment in

favor of the defendants; we do so, however, on the basis

of qualified immunity. Lyttle’s facial attack on the ordi-

nance is rendered moot by our recent opinion in Bell v.

Keating, No. 11-2408, 2012 WL 3892506 (7th Cir. Sept. 10,

2012), which partially invalidated subsection (d) on

overbreadth and vagueness grounds. While we are sym-

pathetic that the plaintiffs’ arrests under a now-invalid

ordinance may have affected their free speech rights,

they did not bring an as-applied challenge (for seemingly

cognizable reasons) to redress such an injury.

1

The suits were initially assigned to separate district judges

but were subsequently reassigned to a single district judge.

Nos. 10-1974 & 10-2064 3

I. Background

Andy Thayer is a prominent Chicago activist. He

has played a leading role in organizing antiwar protests

in Chicago since at least 2003 and is well-known to many

Chicago police officials, including Officer Ralph

Chiczewski, Deputy Chief of the Central Control Group for

the Chicago Police Department (CPD), and Officer John

Killackey, Deputy Chief of Area 1 Patrol for CPD. Thayer

is a leader of the Chicago Coalition Against War and

Racism (CCAWR) and on behalf of this group, helped

plan a protest on March 20, 2003, where 5,000 to 10,000

demonstrators gathered at Federal Plaza to protest the

invasion of Iraq and then marched through the city.

This march led to the mass arrests of several hundred

protestors and was the subject of our decision in Vodak

v. City of Chicago, 639 F.3d 738 (7th Cir. 2011), where we

held that a question of fact existed as to whether police

had probable cause to make those mass arrests. Thayer

has had extensive adversarial dealings with the CPD as

a result of his activism. The CPD has covertly infiltrated

Thayer’s anti-war meetings, and in doing so, noted the

group’s anti-war and anti-Chicago police sentiments.

Lyttle is also a long-time activist. Both have been

arrested numerous times for protest activity.

On January 3, 2005, Thayer and CCAWR applied for a

permit to lead an anti-war march on Saturday, March 19.

They sought permission for 2,000 to 4,000 people to

gather at the southwest corner of Oak and Michigan at

noon, then march to Federal Plaza via Michigan Avenue,

Randolph Street, State Street, and Adams Street. In front

4 Nos. 10-1974 & 10-2064

of the building at Oak and Michigan is a small plaza

area and a wide sidewalk. This desired location for the

march is at the heart of an area known as the Magnificent

Mile, containing many of Chicago’s major upscale hotel,

retail, dining, and commercial establishments; in addi-

tion to being the site of a great deal of commercial and

retail activity, it is one of Chicago’s most active tourist

destinations.

The city denied the application and offered an alterna-

tive assembly point at Washington Square Park, which

is three blocks west and one block south of Oak and

Michigan, and a parade route down Clark Street and

Dearborn Street to Federal Plaza. Thayer did not accept

this alternate site. He instead appealed to the Mayor’s

License Commission; after a two-day hearing, his

appeal was denied. The Commission found that Thayer’s

proposed route would unduly disrupt pedestrian and

motor traffic, adversely affect businesses in the area,

impede ambulance traffic and bus routes, and require

an unjustifiable level of law enforcement.

Thayer and CCAWR filed a complaint in federal court

seeking to compel the city to grant the permit; after

another two-day hearing, the district court denied the

motion on March 11. On March 14, the CPD sent Thayer

a letter stating that it wished to accommodate marches

by allowing an assembly and march at the proposed

alternate location. The CCAWR subsequently obtained

a permit for a rally at the Federal Plaza.

In the week before March 19, the city posted a notice

on the CPD’s website directed to demonstration partici-

Nos. 10-1974 & 10-2064 5

pants. The notice informed them that no permit had

been granted for an assembly at Oak and Michigan

and offered the alternative assembly point for the march

and rally at Federal Plaza. The notice warned that any

assembly or march at Oak and Michigan was illegal.

Thayer saw the notice prior to March 19.

Thayer and CCAWR, however, continued to publicize

Oak and Michigan as the assembly point for the March 19

demonstration through its website and flyers. On

March 15, they disseminated flyers and an email

declaring “Lack of Permit Won’t Stop Anti-War Protest,”

urging protesters to assemble at Oak and Michigan.

The flyer stated that “March and Rally for Civil Liberties

at Home and Self-Determination Abroad, on the 2nd

Anniversary of the Iraq War.” It then stated:

Saturday, March 19

Noon: Oak St. & Michigan Ave., Chicago [There is

not a permit for this assembly point and march]

2 PM: Federal Plaza, Adams & Dearborn [There is a

permit for this rally]

....

(Doc. # 176-7) (brackets in original). The flyer informed

protestors that “it IS possible that police will arrest people

assembling at Oak and Michigan if the cops give an

order to disperse and people do not leave.” The flyer

continued, “[f]or those who . . . cannot risk arrest . . .

protest organizers note that the 2 pm rally at Federal Plaza

was granted a permit . . . .” Id. The flyer also stated that

“[t]he police can still change their minds and allow us

to march down Michigan Avenue . . . .” Id.

6 Nos. 10-1974 & 10-2064

At some point in the week, when it became clear that

the CPD wasn’t going to change its mind, the CCAWR

decided to hold a “press conference” on the sidewalk at

noon instead of an assembly. A media alert prepared in

part by Thayer in the week before March 19 called the

gathering at Oak and Michigan “an informational rally”

and a “press conference.” The CCAWR also took other

efforts to publicize its decision to hold a “press confer-

ence;” the city still threatened arrest if protestors came

to Oak and Michigan that day. Thayer wanted to

announce his message that the city was unfairly

opposing his efforts to organize a march and speak out

against the war. He testified that the “press conference”

was called to inform people that the march down

Michigan was canceled, to encourage people to proceed

to the permitted rally at the Federal Plaza, and to com-

municate their view that the city had violated their

First Amendment rights by denying the permit at Oak

and Michigan. However, the CCAWR website as of

Friday, March 18, made no mention of CCAWR’s deci-

sion to instead hold a “press conference” at Oak and

Michigan.

On the morning of March 19, Thayer attended an event

in front of the Cardinal’s Mansion on North Avenue.

Officer Chiczewski was there informing the protestors

of the permitted assembly point at Washington Square

Park. He told Thayer, “if you show up . . . at Oak and

Michigan, you will be arrested if you even appear.”

Thayer told Officer Chiczewski that it was a press con-

ference, not a rally, and that he would be on the

sidewalk, not in the street, but Officer Chiczewski

Nos. 10-1974 & 10-2064 7

insisted that he “would be arrested if [he] so much as

showed up at that corner.” (The content of the conversa-

tion is disputed, but on summary judgment we con-

strue the facts in favor of the non-movant.) Officer

Chiczewski said the CPD was worried about the size

of the crowd assembling at that location and then

walking over to the rally at Washington Square Park.

Such a large mass of people, according to him, could

disrupt pedestrian and vehicular traffic. Officer

Chiczewski testified, however, that depending on the

circumstances, no permit was needed to assemble and

hold a press conference at that location.2

2

Under the Chicago ordinances governing demonstrations, a

permit is required for a “parade,” Chi., Ill., Mun. Code § 10-8-

330(b) (2004), defined as “any march, procession or other

similar activity consisting of persons . . . upon any public street,

sidewalk . . . which requires a street closing or otherwise

requires police officers to stop or reroute vehicular traffic

because the marchers will not comply with normal and usual

traffic regulations or controls.” Id. at § 10-8-330(a)(1). The

ordinance doesn’t require a permit for a “public assembly”

meaning “a company of persons which is reasonably anti-

cipated to obstruct the normal flow of traffic upon the public

way and that is collected together in one place, or . . . any

organized march or procession of persons upon any public

sidewalk that is reasonably anticipated to obstruct the normal

flow of pedestrian traffic on the public way, but which does

not meet the definition of parade . . . .” Id. at § 10-8-330(a)(2).

A person planning a public assembly, however, is required to

notify the commissioner of transportation, at least five business

(continued...)

8 Nos. 10-1974 & 10-2064

Officer Killackey, as the officer in command, arrived at

Oak and Michigan in the morning. Around 10:00 a.m.,

before a crowd had gathered, officers posted signs and

handed out copies of an announcement, much like the

notice on the CPD website, explaining that there was no

permit for an assembly or march at that location

and informing protestors of the alternative site at Wash-

ington Square Park. The announcement concluded:

“Assembly at Oak and Michigan is unlawful, a march

down Michigan Avenue is unlawful. If you violate the

law, you will be arrested . . . .” The CCAWR was

handing out flyers encouraging protestors to join the

march down Adams and Dearborn to Federal Plaza

at 2 p.m.

2

(...continued)

days in advance (or as soon as practicable if the event is of

a spontaneous or urgent nature), to inform the commissioner

of the “date, time, location, route, and estimated number of

persons participating, so that the city can make any preparations

necessary to provide personnel or other city services to mini-

mize the obstruction to pedestrian and other traffic and to

otherwise protect the participants and the public.” Id. at § 10-8-

330(r). A public assembly must be allowed unless the commis-

sioner informs the person within two days (or as soon as

practicable) “that there would be a . . . significant public safety

issue, limited to those set forth for parades . . . .” Id. Defendants

do not rely on this ordinance to assert that the protestors

needed to notify the commissioner of a public assembly, so

we do not need to explore the murky waters of the subtle

distinctions between a parade and assembly.

Nos. 10-1974 & 10-2064 9

Lyttle arrived at Oak and Michigan at 11:30 a.m. and

Thayer arrived by noon. At that time, there were any-

where between fifty and two-hundred protestors and

an estimated two-hundred police officers dressed in riot

gear. Officer Killackey read the announcement over

a bullhorn three times (11:55 a.m., 11:58 a.m., and

12:02 p.m.). Even though Officer Killackey told pro-

testors gathered at Oak and Michigan that it was

unlawful to assemble there, he later testified that he

was aware that no permit was needed to hold an

assembly or press conference on the sidewalk (as opposed

to a “parade” down the street).

Thayer brought a portable amplifier to speak to the

crowd. After their arrival, Officer Killackey read the

announcement (this was the third time) over the

bullhorn and warned the crowd to “start moving,” “let’s

go, gotta move it” or risk arrest. The parties dispute

whether the protestors were blocking the sidewalk or

traffic. The undisputed evidence shows that the police

closed the first lane of traffic on Michigan due to

concerns about the safety of pedestrians. A video of the

“press conference” shows congestion at the corner, some

of which was attributable to police presence, and pedes-

trian traffic being impeded.

After Officer Killackey’s announcement, Bill Massey

began speaking on a microphone as some of the crowd

started dispersing west on Oak Street in the direction

of Washington Square park. Massey stated, “We have

been threatened with arrest if we hold this news confer-

ence. We are holding it. We will stand up for our rights

10 Nos. 10-1974 & 10-2064

if it means—” in the background Officer Killackey

said, “time to move, time to move,” and Massey con-

tinued—“if it means going to jail, we will go to jail.”

Immediately after Massey’s speech, Thayer took the

microphone and said, “We have seen in the past, in past

unjust war, that when the authorities see the tide

turning against them that they respond with attacks on

civil liberties, and that is precisely what we are seeing

here today. The city of Chicago is clamping down on

free speech because people are turning against this

war.” Thayer spoke for less than thirty seconds before

Officer Chiczewski arrested him. Officer Chiczewski

said, “That’s it, Andy. You’re going to jail.” Thayer

went limp as another officer was trying to handcuff

him. As Thayer was being arrested, Detective Madsen

told Massey to “step back,” but Massey refused. Detec-

tive Madsen said, “You are not allowed to be on Oak

and Michigan right now,” and Massey replied, “I am.”

Detective Madsen ordered him to disperse, but Massey

said he would not. Officer Chiczewski also order

Massey to disperse. Massey was not arrested.

The crowd began to disperse. As Thayer was being

taken away, Reverend Paul Jakes grabbed the micro-

phone and said: “This is a peaceful rally, this is a peaceful

rally, we come today calling for justice, calling for an

end to the war. We ask that you do not act violently . . . . ”

He then spoke and prayed about the injustice of the war

for several minutes, undisturbed by the police. Jakes

told a police officer that he intended to move west on

Oak toward Washington Square Park; he was not ar-

rested. The crowd continued to disperse.

Nos. 10-1974 & 10-2064 11

When asked why he did not arrest Massey or Jakes,

Officer Chiczewski had little explanation. As to Massey,

he testified, “I don’t know” and “It was his lucky day.” As

to Jakes, he testified, “You know what, I was a little

busy with Andy at that particular time. I can’t tell you

why anybody was or wasn’t arrested.” Officer Chiczewski

then testified that he arrested Thayer because he was

the organizer of the group and he had previous discus-

sions with Thayer about not assembling at Oak and

Michigan.

Officer Killackey directed officers to form a line along

the sidewalk of Michigan, move the crowd west on

Oak, and not allow protestors to walk southbound on

Michigan. After clearing the crowd west on Oak, Officer

Killackey returned to the police line along Michigan

and ordered the officers to arrest protestors not moving

as the line advanced. Non-protestors were allowed to

walk south down the sidewalk along Michigan. Officer

Chiczewski testified that there was nothing illegal about

people walking down Michigan carrying signs, and

Officer Killackey testified that people dispersing could

leave in any direction, including down Michigan.

By 12:05 to 12:10 p.m., Officer Killackey had cleared

enough room at the corner of Oak and Michigan for

pedestrians to walk through. Lyttle was holding a sign

that said, “End the Occupation of Iraq and Afghanistan.”

At 12:08 p.m., he attempted to walk south down the

Michigan Avenue sidewalk by himself when he came

up to the line of officers and was told he could not con-

tinue. Lyttle responded, “I think I have the right to do

12 Nos. 10-1974 & 10-2064

this, to demonstrate peacefully and walk down

Michigan Avenue, and I’d like to proceed.” Officer

Killackey ordered Officer Shields to arrest him. Lyttle

denies that he pushed any officer or blocked the side-

walk. He was standing alone. Lyttle heard Officer

Killackey’s announcements over the bullhorn but

thought they were recommendations and didn’t hear

anyone say he had to disperse in any particular direction.

Lyttle testified, “I was dispersing from the place where

I was. I was trying to walk south on Michigan Avenue,

which was away from the intersection of Oak and Michi-

gan. So I was dispersing whether . . . I had been

ordered to or not.”

After the arrests of Thayer and Lyttle, the CPD facilitated

the assembly and parade at the alternative location;

thousands of protestors engaged in that anti-war demon-

stration. Thayer and Lyttle were charged with dis-

orderly conduct under subsection (d). Thayer was also

charged with resisting arrest. A jury found Thayer

guilty of both counts. The state court rejected Thayer’s

argument that Officer Chiczewski arrested him without

probable cause. Thayer was also issued a civil citation

for conducting a parade without a permit and at an

administrative hearing, the hearing officer rejected

Thayer’s claim that he was holding a “press conference”

at Oak and Michigan. The hearing officer found that a

rally was taking place and traffic was blocked on one

lane of Oak and one lane of Michigan. He found it to be

a “semantical difference” by calling it a “press confer-

ence” and it seemed “that what was originally intended

way back at the beginning of the permit process that there

Nos. 10-1974 & 10-2064 13

was an effort to get that underway.” The state court

affirmed the administrative decision. Thayer did not

appeal either the convictions or the civil citation. Lyttle

was acquitted because the court found that he did not

have adequate opportunity to disperse.

II. Discussion

We review a district court’s grant of summary judg-

ment de novo, construing all facts and reasonable infer-

ences in the light most favorable to the non-moving

party. Spivey v. Adaptive Mktg. LLC, 622 F.3d 816, 822

(7th Cir. 2010). Summary judgment is appropriate only

if “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judg-

ment as a matter of law.” Fed. R. Civ. P. 56(a).

A. False Arrest and Malicious Prosecution

To prevail on a claim of false arrest, Lyttle must show

there was no probable cause for his arrest. See Williams

v. Rodriguez, 509 F.3d 392, 398 (7th Cir. 2007). “Probable

cause to arrest is an absolute defense to any claim under

Section 1983 against police officers for wrongful arrest.”

Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006).

Thayer doesn’t raise a similar challenge, having been

convicted of this offense, he concedes that he is barred

from arguing that officers lacked probable cause for

his arrest.

Probable cause exists if “at the time of the arrest, the

facts and circumstances within the officer’s knowledge . . .

14 Nos. 10-1974 & 10-2064

are sufficient to warrant a prudent person, or one of

reasonable caution, in believing, in the circumstances

shown, that the suspect has committed, is committing,

or is about to commit an offense.” Gonzalez v. City of

Elgin, 578 F.3d 526, 537 (7th Cir. 2009) (quoting Michigan

v. DeFillippo, 443 U.S. 31, 37 (1979)). It “requires only

that a probability or substantial chance of criminal

activity exists; it does not require the existence of

criminal activity to be more likely true than not true.”

Mucha v. Vill. of Oak Brook, 650 F.3d 1053, 1056-57 (7th

Cir. 2011). Probable cause “is a fluid concept that relies

on the common-sense judgment of the officers based

on the totality of the circumstances.” United States v.

Reed, 443 F.3d 600, 603 (7th Cir. 2006). To make this deter-

mination, we must “step[ ] into the shoes of a reasonable

person in the position of the officer[,]” Wheeler v. Lawson,

539 F.3d 629, 634 (7th Cir. 2008), considering the facts

known to the officer at the time, Carmichael v. Vill. of

Palatine, Ill., 605 F.3d 451, 457 (7th Cir. 2010). This is an

objective inquiry; we do not consider the subjective

motivations of the officer. Whren v. United States, 517

U.S. 806, 810 (1996). Although we have declared subsec-

tion (d) unconstitutional, see Bell, No. 11-2408, 2012 WL

3892506, an arrest made in good-faith reliance on an

ordinance is valid regardless of a subsequent judicial

determination of its unconstitutionality, see DeFillippo,

443 U.S. at 37-40.

Officers are also afforded an extra layer of protection

through the defense of qualified immunity (also

known as arguable probable cause). “Qualified immunity

protects public officials from liability for damages if

their actions did not violate clearly established rights

Nos. 10-1974 & 10-2064 15

of which a reasonable person would have known.”

Fleming v. Livingston Cnty., Ill., 674 F.3d 874, 879 (7th Cir.

2012) (quotations omitted). An officer “is entitled to

qualified immunity in a false-arrest case when, if there

is no probable cause, ‘a reasonable officer could have

mistakenly believed that probable cause existed.’ ” Id. at

880 (quoting Humphrey v. Staszak, 148 F.3d 719, 725 (7th

Cir. 1998)); see also Reher v. Vivo, 656 F.3d 772, 777 (7th Cir.

2011) (granting qualified immunity to officer who

could have reasonably, but mistakenly, believed that

plaintiff had committed disorderly conduct even though

the information available to the officer at the time was

probably too vague to support an arrest). “[Q]ualified

immunity protects police officers who reasonably

interpret an unclear statute.” Mustafa, 442 F.3d at 549.

The defendants raised the issue of arguable probable

cause before the district court and the plaintiffs

addressed it (albeit briefly) in their appellants’ brief. The

defendants, however, didn’t address qualified immunity

on the false arrest claim in their appellees’ brief. Though

not raised on appeal, we can “affirm on any ground

supported in the record, so long as that ground was

adequately addressed in the district court and the

nonmoving party had an opportunity to contest the

issue.” Peretz v. Sims, 662 F.3d 478, 480 (7th Cir. 2011)

(quotations omitted). “[T]he failure of an appellee to have

raised all possible alternative grounds for affirming

the district court’s original decision, unlike an appellant’s

failure to raise all possible grounds for reversal, should not

operate as a waiver.” Transamerica Ins. Co. v. South, 125 F.3d

392, 399 (7th Cir. 1997) (emphasis in original) (quoting

16 Nos. 10-1974 & 10-2064

Schering Corp. v. Ill. Antibiotics Co., 89 F.3d 357, 358 (7th

Cir. 1996)); see also Froebel v. Meyer, 217 F.3d 928, 933

(7th Cir. 2000). We do not find that the plaintiffs will be

prejudiced from our consideration of qualified immunity

because it was properly raised below, is closely related

to the probable cause analysis addressed by both parties

on appeal, and is a pure question of law. See, e.g.,

Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 968

(9th Cir. 2010).

“A police officer’s probable cause determination

depends on the elements of the applicable criminal stat-

ute.” Stokes v. Bd. of Educ. of the City of Chi., 599 F.3d 617,

622 (7th Cir. 2010). Section 8-4-010 states: “A person

commits disorderly conduct when he knowingly: . . . (d)

Fails to obey a lawful order of dispersal by a person

known by him to be a peace officer under circumstances

where three or more persons are committing acts of

disorderly conduct in the immediate vicinity, which

acts are likely to cause substantial harm or serious incon-

venience, annoyance or alarm.” Chi., Ill., Mun. Code § 8-4-

010(d). Section 8-4-010(a) identifies conduct that con-

stitutes disorderly conduct, including an act conducted

“in such unreasonable manner as to provoke, make or

aid in making a breach of peace.” Id. at § 8-4-010(a); see

also City of Chicago v. Fort, 262 N.E.2d 473, 475 (Ill. 1970).

The disorderly conduct must also be “likely to cause

substantial harm or serious inconvenience, annoyance

or alarm.” Fort, 262 N.E.2d at 474. We recently dis-

cussed thoroughly each component of this last phrase in

Bell. See Bell, No. 11-2408, 2012 WL 3892506. For this

appeal, it is sufficient to note that “annoyance” and

Nos. 10-1974 & 10-2064 17

“alarm” do not provide any further limitation on “disor-

derly conduct.” See Bell, 2012 WL 3892506, at *9

(stating that “alarm” is “conjugate with the term ‘dis-

orderly conduct,’ ” and annoyance may even be less

demanding). This vague language therefore provided

officers with discretion to order dispersal when three

or more persons in the immediate vicinity were

acting disorderly.

Illinois courts have looked to cases interpreting the

similar Illinois disorderly conduct statute when con-

struing the Chicago ordinance. Fort, 262 N.E.2d at 476;

Lester v. City of Chicago, 830 F.2d 706, 714 n.9 (7th Cir.

1987) (“Illinois courts have treated the Chicago ordinance

and the Illinois statutes alike.”). The Illinois disorderly

conduct statute states that “[a] person commits dis-

orderly conduct when he knowingly . . . [d]oes any act

in such unreasonable manner as to alarm or disturb

another and to provoke a breach of the peace . . . .” 720

ILCS 5/26-1(a)(1);3 see also Biddle v. Martin, 992 F.2d 673,

677 (7th Cir. 1993). “Illinois courts have recognized that

‘the types of conduct intended to be included under

[the Illinois disorderly conduct statute] almost defy def-

inition,’ ” Gower v. Vercler, 377 F.3d 661, 669 (7th Cir. 2004)

(quoting People v. Davis, 413 N.E.2d 413, 415 (Ill. 1980)); see

also People v. Albert, 611 N.E.2d 567, 569 (Ill. App. Ct. 1993)

(same), but the statute has nonetheless “received a fairly

3

Other aspects of 720 ILCS 5/26-1 and Section 8-4-010 are not

similar. For example, the Illinois statute doesn’t contain a

failure-to-disperse provision similar to subsection (d) of the

Chicago ordinance.

18 Nos. 10-1974 & 10-2064

well defined gloss,” Sroga v. Weiglen, 649 F.3d 604, 606

(7th Cir. 2011) (quoting United States v. Woodard, 376

F.2d 136, 141 (7th Cir. 1967)); see also People v. Allen,

680 N.E.2d 795, 798 (Ill. App. Ct. 1997).

To commit disorderly conduct, “a person must engage

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

disturbs another; and (3) threatens to provoke or

provokes a breach of the peace.” Reher, 656 F.3d at 775

(citing 720 ILCS 5/26-1(a)(1)). Illinois courts look to

the reasonableness of the conduct in relation to the sur-

rounding circumstances to determine whether a viola-

tion of the ordinance has occurred. City of Chicago v.

Mateja, 372 N.E.2d 1060, 1062 (Ill. App. Ct. 1978). We have

recently provided a succinct definition for disorderly

conduct, endorsing the definition in Restatement (Second)

of Torts § 116 (1965): “[A] public offense done by

violence, or one causing or likely to cause an immediate

disturbance of public order.” Sroga, 649 F.3d at 607.

“[S]peech alone cannot form the basis for a disorderly

conduct charge.” People v. Rokicki, 718 N.E.2d 333, 339

(Ill. App. Ct. 1999); see also People v. Raby, 240 N.E.2d 595,

598 (Ill. 1968) (stating that “[u]nder no circumstances

would the statute allow persons to be punished merely

for peacefully expressing unpopular views” (quotations

omitted)); see also People v. Justus, 372 N.E.2d 1115, 1118

(Ill. App. Ct. 1978) (“[A]busive language does not

evolve into a crime simply because persons nearby stop,

look and listen.”). “It remains no crime to express an

unpopular view even if the person expressing those

views draws attention to herself or himself or annoys

Nos. 10-1974 & 10-2064 19

others nearby.” Rokicki, 718 N.E.2d at 339. A similar

limitation has been placed on the dispersal ordinance.

See City of Chicago v. Weiss, 281 N.E.2d 310, 315 (Ill. 1972)

(noting narrowing construction when situation presents

heckler’s veto).

The Illinois Supreme Court has upheld disorderly

conduct convictions under varying circumstances.

For example, in Weiss, the court upheld a conviction

where officers gave a lawful order to disperse based

on their reasonable belief that a group of 3,000 demon-

strators, if permitted to move into a densely populated

area in which violence had recently occurred, presented

a serious threat to the peace and safety of the commu-

nity. Id. at 315. The court explained that “[t]here are cir-

cumstances . . . when the first amendment right to as-

semble and demonstrate in a specific place or area must

yield to the compelling interest of the community to main-

tain peace and order.” Id. Defendant Weiss attempted

to march past the police line despite police orders to

disperse. The court rejected Weiss’s argument that he

was completely disassociated from the other marchers.

Id. at 316. The court then found the other elements of

the ordinance met because at the time the defendants

crossed the police line, three or more people in the im-

mediate vicinity were throwing rocks and firecrackers.

Id. at 316-17.

Illinois courts have similarly upheld convictions

under the ordinance when the defendant was in a crowd

where others were throwing objects at officers, City of

Chicago v. Greene, 264 N.E.2d 163, 166 (Ill. 1970); where

20 Nos. 10-1974 & 10-2064

the defendant and other demonstrators crossed a police

line into a prohibited area (the line had been drawn

to protect caulking repairs recently made to a building)

and the defendant disobeyed the officer’s order to step

back, City of Chicago v. Jacobs, 263 N.E.2d 41, 43 (Ill. 1970);

and where defendants, who were sitting on parked cars

that did not belong to them and blocking the entrances

to private establishments, failed to disperse, Fort, 262

N.E.2d at 474-76. We have also said that “the act of block-

ing the free flow of pedestrian or vehicular traffic on

public ways will support a conviction for the offense of

disorderly conduct.” Jones v. Watson, 106 F.3d 774, 779

(7th Cir. 1997) (Illinois law); see also Marcavage v. City of

Chicago, 659 F.3d 626, 632 (7th Cir. 2011) (finding

probable cause under disorderly conduct statute where

protestor obstructed pedestrian traffic along sidewalk).

Lyttle was acquitted of the offense of disorderly

conduct, but the question is not whether he violated

the ordinance, it’s whether an officer at the time could

reasonably believe he was committing an offense. To

require dispersal under subsection (d), officers had to

reasonably believe that three or more persons in the

immediate vicinity were causing disorderly conduct

likely to cause substantial harm or serious incon-

venience, annoyance or alarm. We don’t have to decide

whether officers had probable cause to arrest, however,

because we find that they had arguable probable cause

to order dispersal and arrest Lyttle for his failure to

comply. See Pearson v. Callahan, 555 U.S. 223, 235-36 (2009)

(holding that we do not need to address whether a con-

stitutional right was violated before addressing whether

the right in question was sufficiently well established).

Nos. 10-1974 & 10-2064 21

The parties dispute the extent of disruption caused

by the protestors at the time Officer Killackey gave the

dispersal orders. No threats of violence or civil unrest

occurred. No one was attempting to engage in an

unpermitted march or parade, no one was inciting the

crowd, and by all accounts the demonstration on the

public sidewalk was peaceful. On the other hand, the

videos submitted by the parties show that the crowd

was hindering the flow of pedestrian traffic. The record

reveals that there were more than fifty protestors on

the plaza and sidewalk area, at a busy intersection in

the heart of downtown Chicago. The officers had

legitimate reasons to be concerned with the blockage of

pedestrian and vehicular traffic and the manner in

which the protestors intended to convey their message.

See Cox v. State of Louisiana, 379 U.S. 536, 554 (1965) (ex-

plaining that free speech rights do not give protestors

the right to “address a group at any public place and at

any time[;] . . . [t]he control of travel on the streets is a

clear example of governmental responsibility to insure

this necessary order. . . .”). Our review of the video leads

us to conclude that an officer could have reasonably

(even if mistakenly) perceived the situation as creating

a disturbance within the confines of the ordinance. See

Humphrey, 148 F.3d at 727 (suggesting that the defense

of qualified immunity should provide broad protection

from suit in the context of an arrest for disorderly conduct).

We further find that although it is questionable

whether officers had probable cause to arrest Lyttle, they

are nonetheless entitled to qualified immunity. Lyttle

denies that he pushed any officer or blocked the side-

22 Nos. 10-1974 & 10-2064

walk and at the time he was arrested, there was no in-

dication that other protestors were attempting to

follow him; in fact, most of the protestors had started

dispersing in the other direction, and the sidewalk was

clearing. No city ordinance requires a permit for an

individual to walk down the sidewalk with a protest

sign. Officer Chiczewski and Officer Killacky even

testified that there was nothing illegal about people

walking down Michigan Avenue carrying signs and that

the protestors could disperse in any direction. Cf. Weiss,

281 N.E.2d at 315 (officers could order defendant to

disperse in certain direction when attempting to block a

group of 3,000 demonstrators from marching into a

densely populated area). The officers, however, did not

violate clearly established rights of which a reasonable

person would have known. Officers could reasonably

(again, even if mistakenly) believe that based on

their announcements and conduct in forming a line to

advance the crowd west that protestors were

prohibited from breaking through the police line. In

fact, most protestors at the time obeyed by heading

west. Lyttle was part of the group of protestors ordered

to disperse and Officer Killackey could reasonably

believe that Lyttle heard the dispersal order. Cf. Vodak,

639 F.3d at 746. When Lyttle attempted to cross the

police line, he was told he could not continue and he

responded that he had the right to proceed. A reasonable

officer under this chaotic and fluid situation could have

believed that Lyttle was failing to follow their orders.

Officers did not have to wait for Lyttle to actually break

through the police line.

Nos. 10-1974 & 10-2064 23

At the time of Lyttle’s arrest, the officers were still

trying to manage the crowd; forming a police line

and ordering dispersal toward the permitted location of

the march was the most logical way to accomplish

this goal. Although certain evidence showed that the

CCAWR intended to simply hold a “press conference” at

the corner of Oak and Michigan, based on some of the

flyers and emails circulating, the CPD could be con-

cerned that the protestors intended to turn the

“press conference” and “informational rally” into an

impermissible march, thus, justifying a directional dis-

persal. After the crowd was dispersed, nothing prevented

Lyttle from returning and peacefully protesting down

Michigan Avenue. (In fact, the record suggests that some

protestors did just that.) At the time Lyttle was trying

to cross the police line, the crowd may have been

clearing, but the video still shows congestion at the

corner. Under these circumstances, we cannot find that

it would have been clear to every reasonable officer that

no probable cause existed to arrest Lyttle for dis-

obeying their order. See Ryan v. Cnty. of DuPage, 45 F.3d

1090, 1093 (7th Cir. 1995) (quoting People v. Yocum, 321

N.E.2d 731, 733 (Ill. App. Ct. 1974)) (“Refusal to obey

the lawful order of police may form the basis of a disor-

derly conduct prosecution.”).4

4

Because the defendants haven’t asserted that there was

another basis to arrest Lyttle (for example, obstructing an

officer in the performance of his duties, 720 ILCS 5/31-1(a)), we

don’t address the reasonableness of his arrest on different

grounds. See Fox v. Hayes, 600 F.3d 819, 837 (7th Cir. 2010).

24 Nos. 10-1974 & 10-2064

The existence of arguable probable cause to arrest

Lyttle is an absolute bar to his § 1983 claim for unlawful

arrest and false imprisonment. See Biddle, 992 F.2d at 678;

see also Stokes, 599 F.3d at 626 (Illinois law). In light of our

findings of qualified immunity and (as explained below)

no retaliatory animus, Lyttle’s state law malicious pros-

ecution claim also fails. See Aleman v. Vill. of Hanover

Park, 662 F.3d 897, 907 (7th Cir. 2011) (Illinois law) (mali-

cious prosecution requires “proof not only of lack of

probable cause but also of ‘malice’ ”). Accordingly, we

affirm the district court’s entry of summary judgment on

Lyttle’s false arrest and malicious prosecution claims.

B. Retaliation under First Amendment

Thayer and Lyttle both assert claims of retaliation for

exercising their First Amendment rights. “The law is

settled that as a general matter the First Amendment

prohibits government officials from subjecting an individ-

ual to retaliatory actions . . . for speaking out.” Hartman v.

Moore, 547 U.S. 250, 256 (2006). To make out a prima

facie case on summary judgment, the plaintiffs must

show that: (1) they engaged in activity protected by the

First Amendment; (2) they suffered a deprivation that

would likely deter First Amendment activity; and (3) the

First Amendment activity was at least a motivating

factor in the police officer’s decision. See Kidwell v.

Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012); see also

Greene v. Doruff, 660 F.3d 975, 977-78 (7th Cir. 2011). The

plaintiffs undisputedly engaged in First Amendment

activity and suffered a deprivation as a result of their

Nos. 10-1974 & 10-2064 25

arrests, so the first two elements are met. We focus on

causation.

We recently set forth the standard for analyzing causa-

tion in Greene: a “plaintiff need only show that a viola-

tion of his First Amendment rights was a ‘motivating

factor’ of the harm he’s complaining of”; once he shows

that “the burden shifts to the defendant to show that

the harm would have occurred anyway.” 660 F.3d at 977

(citing Spiegla v. Hall, 371 F.3d 928, 941-43 (7th Cir. 2004));

see also Brown v. Cnty. of Cook, 661 F.3d 333, 335 (7th

Cir. 2011).

We first discuss Thayer. Assuming he made out a

prima facia case, we must decide if taking all the facts

and reasonable inferences in his favor, there can be no

reasonable dispute that Officer Chiczewski would have

arrested him despite any animus toward his protected

First Amendment activity. Once a defendant produces

evidence that the same decision would have been made

in the absence of the protected speech, the burden shifts

back to the plaintiff to demonstrate that the proffered

reason was pretextual and that the real reason was retalia-

tory animus. See Zellner v. Herrick, 639 F.3d 371, 379 (7th

Cir. 2011). “At the summary judgment stage, this means

a plaintiff must produce evidence upon which a rational

finder of fact could infer that the defendant’s proffered

reason is a lie.” Id; see also Massey v. Johnson, 457 F.3d 711,

720 (7th Cir. 2006) (summary judgment appropriate

where court can say without reservation that a rea-

sonable finder of fact would be compelled to credit the

defendant’s non-retaliatory explanation). If retaliation is

26 Nos. 10-1974 & 10-2064

not the but-for cause of the arrest, “the claim fails for

lack of causal connection between unconstitutional

motive and resulting harm, despite proof of some retalia-

tory animus in the official’s mind.” Hartman, 547 U.S. at

260 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274, 287 (1977)). “It may be dishonorable to act

with an unconstitutional motive . . . but action colored

by some degree of bad motive does not amount to a

constitutional tort if that action would have been

taken anyway.” Id.

Thayer does not dispute that Officer Chiczewski had

probable cause for his arrest. Probable cause, if not a

complete bar to Thayer’s First Amendment retaliatory

arrest claim, provides strong evidence that he would have

been arrested regardless of any illegitimate animus. See

Reichle v. Howards, 132 S. Ct. 2088, 2095-97 (2012); see also

Hernandez v. Cook Cnty. Sheriff’s Office, 634 F.3d 906, 915

(7th Cir. 2011) (“[E]vidence of probable cause may act as

highly valuable circumstantial evidence that the com-

plained-of conduct would have occurred even without a

retaliatory motive.”) (quotations omitted). The record

shows that Thayer’s refusal to disperse, not his speech,

was the “but for” cause of his arrest. But even if the

record permitted a competing inference in favor of

Thayer, Officer Chiczewski is entitled to qualified immu-

nity.

The defendants didn’t argue qualified immunity on

appeal as to the plaintiffs’ First Amendment retaliation

claims, but we find it proper to consider this defense

for the same reasons we addressed arguable probable

Nos. 10-1974 & 10-2064 27

cause above. First, the defendants raised the issue below.

Second, the parties’ underlying arguments on appeal

addressing the unresolved issue of whether probable

cause bars First Amendment retaliatory arrests claims is

in essence the basis of our qualified immunity finding.

Third, the defendants raised their qualified immunity

defense on appeal when discussing plaintiffs’ related class-

of-one equal protection claim. As such, the plaintiffs

were aware of the issue and had the opportunity to

make arguments in response. Further, even if we re-

manded, the plaintiffs don’t suggest that the defendants

are precluded from re-asserting qualified immunity as a

defense, see, e.g., Narducci v. Moore, 572 F.3d 313, 325

(7th Cir. 2009), which they no doubt would do in light

of Reichle.

The case law is unsettled on whether probable cause is

a complete bar to First Amendment retaliatory arrest

claims. The Supreme Court has said that it is a bar to

retaliatory prosecution claims. See Hartman, 547 U.S. at

261. We have not resolved the issue, see Hernandez, 634

F.3d at 915 (citing a 2002 case from this circuit), and

other circuits are split, see, e.g., Skoog v. Cnty. of Clackamas,

469 F.3d 1221, 1232 & n.31 (9th Cir. 2006) (setting forth

circuit split). After briefing in this case, the Supreme

Court granted certiorari on the following two questions:

“whether a First Amendment retaliatory arrest claim

may lie despite the presence of probable cause to

support the arrest, and whether clearly established law

at the time of [the plaintiff’s] arrest so held.” Reichle, 132

S. Ct. at 2093. The Court elected to address only the

second, concluding that at the time of the plaintiff’s

28 Nos. 10-1974 & 10-2064

arrest, “it was not clearly established that an arrest sup-

ported by probable cause could violate the First Amend-

ment.” Id.

Based on the Court’s decision in Reichle,

Officer Chiczewski is entitled to qualified immunity.

“Qualified immunity shields government officials from

civil damages liability unless the official violated a statu-

tory or constitutional right that was clearly established

at the time of the challenged conduct.” Id. A clearly

established right is one that is sufficiently clear such

that “every reasonable official would have understood

that what he is doing violates that right.” Id. (internal

quotations and brackets omitted). As the Supreme Court

held in Reichle, the “clearly established” standard is not

met in this case because neither our circuit nor the Su-

preme Court has “recognized a First Amendment right

to be free from a retaliatory arrest that is supported

by probable cause.” Id.

The Supreme Court in Reichle concluded that “[a]l-

though Hartman involved only a retaliatory prosecution,

reasonable officers could have questioned whether the

rule of Hartman also applied to arrests,” and “could have

interpreted Hartman’s rationale to apply to retaliatory

arrests.” Id. at 2095. “Hartman injected uncertainty into

the law governing retaliatory arrests, particularly in

light of Hartman’s rationale and the close relationship

between retaliatory arrest and prosecution claims.” Id. at

2096-97. Although Hartman was issued in 2006 before

the plaintiffs’ arrest, uncertainty pre-dated Hartman. See,

e.g., Hernandez, 634 F.3d at 915 (citing a 2002 case), see also

Nos. 10-1974 & 10-2064 29

Harman, 547 U.S. at 255-56. Accordingly, we find that

Officer Chiczewski is entitled to qualified immunity

and affirm dismissal of Thayer’s retaliatory arrest claim.

Lyttle similarly argues that Officers Killackey and Shields

arrested him in retaliation for exercising his free speech

rights to march down the sidewalk of Michigan Avenue

with an anti-war sign. We found that the officers had

arguable probable cause to arrest Lyttle under subsection

(d) and we see no reason to distinguish Reichle on that

basis. In any event, the record is void of evidence

showing that the officers acted with retaliatory animus

in arresting him. See Baribeau v. City of Minneapolis, 596

F.3d 465, 481 (8th Cir. 2010) (finding no First Amend-

ment retaliation even though officers arrested protestors

under an unreasonable, yet mistaken, belief that they

were violating Minnesota disorderly conduct statute

because the record revealed no retaliatory animus).

Most protestors complied with the dispersal orders

and were not arrested even though they were engaging

in similar speech. It is true that Lyttle was arrested when

attempting to protest down Michigan Avenue, while

shoppers and other non-protestors were not so prohib-

ited. Lyttle, however, was part of the disorderly group

and thus, subject to the dispersal order. See, e.g., Bernini v.

City of St. Paul, 665 F.3d 997, 1003 (8th Cir. 2012), pet. for

cert. filed, 81 U.S.L.W. 3032 (U.S. June 6, 2012) (No. 11-1490)

(generally stating that officers have grounds to arrest if

they “believe all arrested persons [are] part of the unit

observed violating the law.”) (emphasis in original)

(quotations omitted). It was his failure to comply with that

30 Nos. 10-1974 & 10-2064

order, not retaliatory animus, that motivated his arrest. We

therefore affirm the district court’s dismissal of his re-

taliatory arrest claim.

C. Equal Protection Claim

Thayer has also brought a “class-of-one” equal protection

claim. “We have held that class-of-one claims can be

brought based on allegations of the irrational or malicious

application of law enforcement powers.” Geinosky v. City

of Chicago, 675 F.3d 743, 747 (7th Cir. 2012). Even

though Thayer has asserted a violation of his free speech

rights—a fundamental right—we apply the rational

basis test to his claims. The plaintiffs only mention height-

ened scrutiny review in passing, and otherwise, have

limited their class-of-one argument to rational basis

review.5

5

We note that normally unequal treatment on the basis of a

fundamental right triggers heightened scrutiny. See Martin v.

Shawano-Gresham Sch. Dist., 295 F.3d 701, 712 (7th Cir. 2002); see

also Vision Church v. Vill. of Long Grove, 468 F.3d 975, 1000 (7th

Cir. 2006) (“Heightened scrutiny . . . is appropriate when

government action interferes with a person’s fundamental

rights, such as freedom of speech or religion.”). A true class-of-

one case claim, on the other hand, does not implicate funda-

mental rights. See Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887,

911 (7th Cir. 2012) (en banc) (Wood, J., dissenting). At least one

circuit has concluded that heightened scrutiny is inapplicable

where the conduct doesn’t infringe on a class of people’s

(continued...)

Nos. 10-1974 & 10-2064 31

Unfortunately, the class-of-one standard in this circuit

is in flux. Thayer must show that he was intentionally

treated differently from other similarly situated individu-

als and that there was no rational basis for this difference

in treatment. See Vill. of Willowbrook v. Olech, 528 U.S.

562, 564 (2000); see also Woodruff v. Mason, 542 F.3d 545,

554 (7th Cir. 2008). But some of our cases also require a

showing of improper motive (sometimes referred to as

“illegitimate animus”). See Reget v. City of La Crosse, 595

F.3d 691, 695 (7th Cir. 2010); see also Srail v. Vill. of Lisle,

Ill., 588 F.3d 940, 944 (7th Cir. 2009). Our recent attempt

to clarify the standard in Del Marcelle v. Brown Cnty. Corp.,

680 F.3d 887 (7th Cir. 2012) (en banc) resulted in a tie

vote with no controlling opinion. We therefore remain

divided over the appropriate standard for a class-of-

one equal protection claim against law enforcement

personnel.

The plurality opinion in Del Marcelle (with a vote

from five judges), which happens to be the dissent, pro-

posed the following standard: “(1) plaintiff was the

5

(...continued)

fundamental rights. See Scarbrough v. Morgan Cnty. Bd. of Educ.,

470 F.3d 250, 260-61 (6th Cir. 2007) (emphasis added). In other

words, the Sixth Circuit has “decline[d] to extend the funda-

mental rights analysis to classes of one.” Id. at 261; see also

Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 986 (6th

Cir. 2012). The court in that case explained that “[t]o so extend

the fundamental rights analysis would allow the Equal Protec-

tion Clause to render other constitutional provisions super-

fluous.” Scarbrough, 470 F.3d at 261.

32 Nos. 10-1974 & 10-2064

victim of intentional discrimination, (2) at the hands of

a state actor, (3) the state actor lacked a rational basis

for so signaling out the plaintiff, and (4) the plaintiff

has been injured by the intentionally discriminatory

treatment.” Id. at 913 (Wood, J., dissenting).

The “lead” opinion (with a vote from four judges)

proposed the following standard: “that the plaintiff be

required to show that he was the victim of discrimination

intentionally visited on him by state actors who knew

or should have known that they had no justification,

based on their public duties, for signaling him out for

unfavorable treatment—who acted in other words for

personal reasons, with discriminatory intent and effect.” Id.

at 889 (Posner, J., lead opinion) (emphasis omitted). A

“plaintiff must plead and prove both the absence of a

rational basis for the defendant’s action and some

improper personal motive (which need not be

hostility . . .) for the differential treatment.” Id. (emphasis

in original).

We do not need to decide what standard announced

in Del Marcelle is correct because we find that Officer

Chiczewski is entitled to qualified immunity. As we

have already alluded to, this protection gives officers

“breathing room to make reasonable but mistaken judg-

ments, and protects all but the plainly incompetent

or those who knowingly violate the law.” See Messerschmidt

v. Millender, 132 S. Ct. 1235, 1244 (2012) (quotations omit-

ted). We do not define clearly established rights at a

high level of generality but in a “particularized sense

so that the contours of the right are clear to a reasonable

Nos. 10-1974 & 10-2064 33

official.” Reichle, 132 S. Ct. at 2094 (quotations omitted).

We ask whether every reasonable officer would have

understood that what he was doing violates that right.

See Hernandez v. Foster, 657 F.3d 463, 474 (7th Cir. 2011).

Although it is not necessary for the plaintiff to identify

a case directly on point, “existing precedent must have

placed the statutory or constitutional question beyond

debate.” Id.

We initially note that Thayer’s class-of-one equal pro-

tection claim is seemingly a mere rewording of his First

Amendment retaliation claim. Thayer alleges that he was

treated differently than the other speakers at the “press

conference” because of his political activism. It may be

proper to find that the equal protection and First Amend-

ment claims coalesce; thus, requiring that they fall to-

gether. See Vukadinovich v. Bartels, 853 F.2d 1387, 1391-92

(7th Cir. 1988) (dismissing equal protection claim that

constituted “a mere rewording of plaintiff’s First

Amendment-retaliation claim”). For completeness,

though, we address the class-of-one claim separately.

As stated in Del Marcelle, “[q]ualified immunity will . . .

frequently relieve state actors of the burden of litigation

in this area: if discretion is broad and the rules are vague,

it will be difficult to show both a violation of a constitu-

tional right and the clearly established nature of that

right.” 680 F.3d at 915 (Wood, J., dissenting). This is

especially true in cases where an officer uses his

discretion to choose which, among several violators, to

arrest. As the Supreme Court has said:

There are some forms of state action . . . which by their

nature involve discretionary decisionmaking based

34 Nos. 10-1974 & 10-2064

on a vast array of subjective, individualized assess-

ments. In such cases the rule that people should be

‘treated alike, under like circumstances and condi-

tions’ is not violated when one person is treated

differently from others, because treating like indi-

viduals differently is an accepted consequence of

the discretion granted.

Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 603 (2008).

Although Engquist’s holding was confined to the public-

employment context, its reasoning, to some extent,

applies to discretionary law-enforcement decisions. See

Del Marcelle, 680 F.3d at 897 (Posner, J.) & 912 (Wood, J.,

dissenting).

Officer Chiczewski could not target Thayer because of

his speech, but he could target Thayer for his unprotected

conduct—i.e., his role in organizing an assembly that

turned disorderly and subsequent refusal to disperse

when ordered. Officer Chiczewski testified that due to

concerns about the size of the crowd and blockage of

pedestrian and vehicular traffic, he told Thayer not to

assemble at Oak and Michigan. After officers deter-

mined that three or more people were engaged in acts of

disorderly conduct at the corner, they ordered dispersal.

Thayer does not dispute that the officers had probable

cause to do so. An officer, acting pursuant to his public

duties, is given discretion to determine how best to effectu-

ate a lawful order. Officer Chiczewski had a legitimate

police objective in arresting Thayer to more rapidly and

efficiently disperse the disruptive crowd. After

Thayer’s arrest, the crowd began to disperse and Officer

Nos. 10-1974 & 10-2064 35

Chiczewski’s attention was on Thayer, not the other

speakers.

Even considering all the facts in favor of Thayer, we

cannot conclude that every reasonable officer would

have understood that by arresting Thayer, the perceived

“chief” of the group, and not Massey and Jakes that

Officer Chiczewski was violating Thayer’s right to equal

protection. Cf. Geinosky, 675 F.3d at 745 (plaintiff stated

class-of-one claim where defendants allegedly cited

plaintiff for twenty-four bogus parking tickets) and

Hanes v. Zurich, 578 F.3d 491, 492-96 (7th Cir. 2009) (defen-

dants not entitled to qualified immunity where plaintiff

alleged that defendants arrested him eight times on

charges later dropped for no reason other than malicious

intent). Given the uncertainly in the law and the

unique factual situation at issue here, the constitutional

question was not beyond dispute. See, e.g., Lunini v.

Grayeb, 395 F.3d 761, 772 (7th Cir. 2005) (defendants

entitled to qualified immunity where ordinary police

officer could not have known that failure to arrest council-

man would violate equal protection). Rather, a rea-

sonable officer could have believed that arresting Thayer

was the most effective way to gain compliance with

the dispersal order.

D. Constitutionality of Subsection (d)

Lyttle has mounted an attack on the facial validity of

subsection (d) asserting both an overbreadth and vague-

ness challenge and seeking an injunction against its

prospective enforcement. (The district court held that

36 Nos. 10-1974 & 10-2064

Thayer’s facial challenge was barred by res judicata;

Thayer doesn’t appeal that ruling.). In light of our recent

opinion partially invalidating subsection (d), see Bell,

2012 WL 3892506, Lyttle’s claim seeking a declaration

and an injunction in that respect is moot. See, e.g., Eagle

Books, Inc. v. Difanis, 873 F.2d 1040, 1042 (7th Cir. 1989)

(claim moot where state supreme court declared statute

unconstitutional); see also Miller v. Benson, 68 F.3d 163,

165 (7th Cir. 1995) (amendment of statute mooted claim);

Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d

1248, 1257 (10th Cir. 2004) (claim moot where statute

repealed); Longley v. Holahan, 34 F.3d 1366, 1367 (8th

Cir. 1994) (claim moot where statute declared unconstitu-

tional in companion case).

III. Conclusion

We A FFIRM the district court’s entry of summary judg-

ment in favor of the defendants on Lyttle’s false arrest

and malicious prosecution claims, on Lyttle’s and

Thayer’s First Amendment retaliation claims, and on

Thayer’s class-of-one equal protection claim. We D ISMISS

Lyttle’s facial challenge to subsection (d) as moot.

9-18-12