Gayle Schor v. Richard Daley ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2837
G AYLE S CHOR, K RISTINE M ULCAHY, and A NGELA S HUE,
Plaintiffs-Appellants,
v.
C ITY OF C HICAGO, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 7119—Ruben Castillo, Judge.
A RGUED A PRIL 9, 2009—D ECIDED A UGUST 13, 2009
Before M ANION, R OVNER, and W OOD , Circuit Judges.
W OOD , Circuit Judge. Gayle Schor, Kristine Mulcahy,
and Angela Shue (collectively, the “plaintiffs”) brought
this suit in the district court as a class action, challenging
the constitutionality of a Chicago municipal ordinance
that prohibits the use of wireless telephones without a
“hands-free” device while driving a motor vehicle. See
M UNICIPAL C ODE OF C HICAGO, ILL. § 9-76-230 (the “Ordi-
2 No. 08-2837
nance”). The case was nipped in the bud by the district
court with a dismissal for failure to state a claim upon
which relief can be granted. See F ED. R. C IV. P. 12(b)(6). The
district court also denied the plaintiffs’ request for leave
to amend their complaint on the basis that any amend-
ment would be frivolous. See F ED. R. C IV. P. 15(a). The
district court was right: this case has no legs whatever.
We therefore affirm the judgment.
I
On July 8, 2005, the Ordinance went into effect, 30 days
after its passage and publication. (The Ordinance
was originally codified at M UNICIPAL C ODE OF C HICAGO,
ILL. § 9-40-260. On November 5, 2008, after the plaintiffs
filed their brief in this court but before oral argument,
the Ordinance was recodified as we refer to it above.
The recodification makes clear that a violation of the
Ordinance is an “equipment violation,” and not a “moving
violation.”) The Ordinance stipulates that no person is to
drive a vehicle while using a mobile, cellular, analog
wireless or digital telephone, with four exceptions:
(1) when the person is an on-duty law enforcement officer
or operator of an emergency vehicle, (2) when the person
uses a “hands-free” device, (3) in the event of an emer-
gency, or (4) when the motor vehicle is in a stationary
position and not in gear. Amendments to the Ordinance
in November 2008 clarify that the “use” of a mobile
device includes: “(1) talking or listening to another person
on the telephone; (2) text messaging; (3) sending, reading
or listening to an electronic message; or (4) browsing the
No. 08-2837 3
internet . . . .” M UNICIPAL C ODE OF C HICAGO , I LL . § 9-76-
230(a).
Schor, Mulcahy, and Shue were all ticketed by Chicago
police officers for violating the Ordinance—Schor on
March 4, 2006, Mulcahy on November 25, 2007, and Shue
in November 2007. Both Schor and Shue appeared in
person to contest their citations, and in both instances
the citation was dismissed. Mulcahy paid the $75 fine. On
December 19, 2007, the plaintiffs filed this action on
behalf of themselves and others similarly situated. They
allege that they were subjected to an arrest in violation
of the Fourth Amendment to the Constitution and in
violation of Illinois law, that enforcement of the Ordinance
violates the Equal Protection Clause of the Fourteenth
Amendment, that Mayor Richard Daley of Chicago per-
sonally violated their rights when he allowed the City
to maintain a policy of false arrest, that the City of
Chicago maintained policies or customs that violated
their constitutional rights, that the City is liable for viola-
tions committed by the defendant officers and Mayor
Richard Daley under common law and state law respondeat
superior theories, and that City officials are liable to them
under state-law theories of false arrest and malicious
prosecution. The plaintiffs also ask for declaratory and
injunctive relief under federal and state law.
The district court dismissed all of the plaintiffs’ claims
and rejected their motion to amend their first amended
complaint to add two additional challenges to the con-
stitutionality of the Ordinance (that the Ordinance was
inconsistent with their constitutional right to travel and
that it was void for vagueness). We affirm.
4 No. 08-2837
II
We note at the outset that the City defendants have not
raised the defense of claim preclusion. They might have
done so, since it seems that the plaintiffs had an opportu-
nity to present their arguments in the administrative
process (including an appeal to the state court). See Idris
v. City of Chicago, 552 F.3d 564, 565 (7th Cir. 2009). But
this defense can be forfeited, and was so here. We thus
turn directly to the plaintiffs’ claims on appeal. The
plaintiffs make two arguments: first, that the district
court erred in holding that their complaint failed to state
a claim; and second, that the district court erred by not
permitting them to amend their complaint.
A. Dismissal of Plaintiffs’ Complaint
We review a district court’s dismissal of a complaint for
failure to state a claim under Rule 12(b)(6) de novo, accept-
ing as true all of the factual allegations contained in the
complaint. Segal v. Geisha NYC LLC, 517 F.3d 501, 504
(7th Cir. 2008). We address the plaintiffs’ particular
arguments in turn.
1. Fourth Amendment Claim: The plaintiffs first assert
that their Fourth Amendment right to be free from an
unreasonable seizure was violated when they were “pulled
over by a police officer pursuant to a traffic stop [and]
seized . . . .” In their view, the police officers lacked
probable cause to stop them because “the cell phone
ordinance is not, and never was, effective under Illinois
law.” Their analysis is flawed. As they recognize
No. 08-2837 5
implicitly, the Fourth Amendment is not violated if a
police officer has probable cause for a traffic stop. See,
e.g., Williams v. Rodriguez, 509 F.3d 392, 398-400 (7th Cir.
2007). If the police officer has an objectively reasonable
basis to believe that a traffic law has been violated, then
he or she has probable cause to make a traffic stop.
United States v. Hernandez-Rivas, 513 F.3d 753, 758-59
(7th Cir. 2008). Here, the record indicates that the police
officers observed the plaintiffs violating the Ordinance by
using their mobile phones without a hands-free device.
This violation of a valid traffic law provided probable
cause for the officers to stop them. The plaintiffs have not
explained why the City of Chicago had no authority to
enact legislation designed to protect the safety of its
roads in this way, nor can we think of any restriction on
its powers under either federal or state law that is so
obvious we would need to take note of it here. The dis-
trict court correctly dismissed the plaintiffs’ Fourth
Amendment claim.
2. Equal Protection Claim: The plaintiffs also argue that the
City defendants violated their Fourteenth Amendment
right to equal protection of the law. The plaintiffs base
this claim on the so-called “class of one” equal protection
theory. As they see it, when they were pulled over by
Chicago police officers, they were treated differently
(that is, they were ticketed) from others similarly
situated (that is, others who engaged in unspecified legal
acts while driving).
To allege a “class of one” claim, the plaintiffs need to
show (1) that they were intentionally treated differently
6 No. 08-2837
from others similarly situated, and (2) that there was
no rational basis for that differential treatment, or that
the differential treatment was the result of an illegitimate
animus toward the plaintiffs by the defendants. Village
of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); McDonald
v. Village of Winnetka, 371 F.3d 992, 1001-02 (7th Cir. 2004);
see also Engquist v. Oregon Dept. of Agric., 128 S. Ct. 2146
(2008) (holding that class-of-one theory does not apply
to public employment cases). Here, while it is clear that
the plaintiffs were treated differently from other
motorists, it is equally clear that the plaintiffs were dif-
ferently situated given that they were violating a
valid ordinance. The enforcing officers did not need an
ex ante constitutional ruling on the Ordinance before they
were entitled to enforce it. The distinction between the
plaintiffs and those who were not ticketed was rational,
and so the district court did not err in dismissing the
plaintiffs’ equal protection claim.
3. City Liability for Constitutional Violations: Next, the
plaintiffs allege that the City’s policies or customs violated
their constitutional rights. See Monell v. New York City
Department of Social Services, 436 U.S. 658, 690-91 (1978).
Though Monell held that respondeat superior is not a
ground for municipal liability under § 1983, it recognized
the possibility of a direct claim against a municipality,
based on a policy or custom of the municipality that
violates the plaintiff’s constitutional rights. In order to
support such a claim, however, the plaintiff must begin
by showing an underlying constitutional violation, in
order to move forward with her claim against the munici-
pality. Because we have concluded that these plaintiffs
No. 08-2837 7
have not alleged any plausible constitutional violation
committed by Mayor Daley or the officers, it follows
that there is no wrongful conduct that might become
the basis for holding the City liable. See City of
Los Angeles v. Heller, 475 U.S. 796, 799 (1986); Proffitt v.
Ridgway, 279 F.3d 503, 507 (7th Cir. 2002).
4. Illinois Vehicle Code: The plaintiffs finally contend that
Chapter 11 of the Illinois Vehicle Code requires a munici-
pality to post signs notifying drivers about ordinances
such as Chicago’s cell-phone Ordinance that apply only
within a particular municipality. The merits of this
claim are not properly before this court. A district court
may decline to exercise supplemental jurisdiction over
a state-law claim when it has dismissed all federal
claims before trial. See 28 U.S.C. § 1367(c)(3); Wright v.
Associated Ins. Cos., Inc., 29 F.3d 1244, 1251 (7th Cir. 1994).
This is precisely what happened in this case. Indeed,
plaintiffs do not allege that the district court abused
its discretion by refusing to exercise supplemental juris-
diction over this claim, nor do we detect any such
abuse. See Williams Electronics Games, Inc. v. Garrity,
479 F.3d 904, 906 (7th Cir. 2007).
B. Denial of Leave to Amend
The plaintiffs also argue that the district court erred in
denying them leave to amend their complaint to add two
additional theories showing why (in their view) the
Ordinance is unconstitutional. F ED. R. C IV. P. 15(a). We
review a district court’s denial of leave to amend for
abuse of discretion and reverse only if no reasonable
8 No. 08-2837
person could agree with that decision. Lyerla v. AMCO Ins.
Co., 536 F.3d 684, 694 (7th Cir. 2008). The first theory
was that the Ordinance violated their constitutional
right to travel; the second was that it is void for vague-
ness. In denying leave to amend, the district court relied
on both the untimeliness of the motion and the futility
of any amendment. Neither of those rulings was an
abuse of discretion, as we explain briefly.
1. Fundamental Right to Travel: The plaintiffs assert that
the Ordinance “unduly burdens” their right to travel by
subjecting them to “seizures and fines without proper
notice” and by using allegedly conflicting signage
with respect to cell phone usage. The constitutional right
to travel has been understood as one of the rights
implicit in the Due Process Clauses of the Fifth and Four-
teenth Amendments. The Supreme Court has expressly
left open the question whether intrastate travel is pro-
tected. Memorial Hospital v. Maricopa County, 415
U.S. 250, 255-56 (1974). While other courts of appeals
have held that there exists a fundamental right to both
inter- and intra-state travel, this court has yet to decide
this question. See Doe v. City of Lafayette, 377 F.3d 757, 770
(7th Cir. 2004) (en banc); see also Johnson v. City of
Cincinnati, 310 F.3d 484, 498 (6th Cir. 2002) (holding that
the Constitution protects a right to intrastate travel); Ramos
v. Town of Vernon, 353 F.3d 171, 176 (2d Cir. 2003) (recogniz-
ing a right to intrastate travel). This is not the case
where we must confront that question, however, because
the plaintiffs have not demonstrated why the Ordinance
infringes any such right.
No. 08-2837 9
The plaintiffs say that the Ordinance infringes their
right to travel because it requires motorists to be “aware
of a local ordinance inconsistent with ordinances of
neighboring municipalities,” and because roadside signs
directing motorists to dial *999 in emergencies “induce
motorists driving in Chicago to believe that they may
use their mobile telephones while driving.” What this
has to do with anyone’s right to travel escapes us. Dif-
ferent jurisdictions often proscribe different types of
conduct, and persons entering any specific place do so
at their peril—or, to put it more mildly, do so knowing
that they are obliged to inform themselves about any
relevant rules of the road. The Chicago Ordinance
does not ban anyone’s travel. It simply regulates the act
of driving a motor vehicle, in the same way that a
licensing system or vehicle registration system does, to
name two examples. Indeed, if the plaintiffs want or
need to travel while using their cell phone, alternate
travel options exist, such as a bus or a taxi. Given that
the plaintiffs have not demonstrated how the Ordinance
could plausibly infringe any right to travel, the district
court did not abuse its discretion in denying them leave
to amend their complaint to add this claim.
2. Vagueness: The plaintiffs also claim that the district
court abused its discretion by denying them leave to
amend their complaint to add a claim that the
Ordinance is void for vagueness. The plaintiffs maintain
that there are too many possible meanings of the terms
“use” and “hands-free” in the Ordinance for an ordinary
person to understand what is required of them. But in
order to state a vagueness claim, the plaintiffs must show
10 No. 08-2837
that the rule is unconstitutional in all its applications.
Koutnik v. Brown, 456 F.3d 777, 783 (7th Cir. 2006). “A
plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law
as applied to the conduct of others.” Fuller ex. rel. Fuller
v. Decatur Public Sch. Bd. of Educ. Sch. Dist. 61, 251 F.3d
662, 667 (7th Cir. 2001) (internal quotation marks omitted).
The plaintiffs admit to “using” a cell phone without a
“hands-free” device; they further admit that the
Ordinance applies to such conduct. In today’s world, it is
impossible to take seriously the argument that Chicago’s
Ordinance is so vague that no ordinary person could
understand it; the plaintiffs themselves understood that
they were engaged in conduct proscribed by the Ordi-
nance. Thus, the district court deprived the plaintiffs of
nothing valuable when it refused to permit this amend-
ment.
* * *
The judgment of the district court is A FFIRMED.
8-13-09