Michael Marcavage v. City of Chicag ( 2011 )

  •                               In the
    United States Court of Appeals
                   For the Seventh Circuit
    Nos. 09-3335 & 09-4079
    M ICHAEL M ARCAVAGE, et al.,
    C ITY OF C HICAGO, et al.,
                Appeals from the United States District Court
            for the Northern District of Illinois, Eastern Division.
                 No. 1:06-cv-03858—Milton I. Shadur, Judge.
        A RGUED N OVEMBER 4, 2010—D ECIDED O CTOBER 4, 2011
      Before B AUER, M ANION and H AMILTON, Circuit Judges.
       B AUER, Circuit Judge. The appeal before us arises from
    events held in connection with the seventh annual Gay
    Games (the “Games”), a series of athletic and cultural
    gatherings with the stated mission “to foster and augment
    the self-respect of gay men and women throughout the
    world and to engender respect and understanding from
    the non-gay world.” The events took place in Chicago,
    Illinois during July 2006. The plaintiffs are volunteers
    2                                  Nos. 09-3335 & 09-4079
    with the organization Repent America, a ministry of
    Christians whose self-described goal is “to proclaim the
    Gospel of Jesus Christ in the public square.” In an effort
    to foster their mission, the plaintiffs traveled to Chicago
    and appeared at the Games to share their message with
    attendees and supporters of the Games. At three different
    locations during the Games, Chicago police officers
    ordered the plaintiffs to change the location of their
    outreach activities. Failure to comply resulted in the
    arrests of plaintiffs James Deferio and Michael Marcavage.
      The plaintiffs filed a complaint in the Northern
    District of Illinois against the City of Chicago and indi-
    vidual officers of the Chicago Police Department (col-
    lectively the “City Defendants”), and against the Metro-
    politan Pier and Exposition Authority (the “MPEA”), a
    municipal corporation which owns and manages Navy
    Pier and Gateway Park. The complaint alleged (1) denial
    of their First Amendment rights to free speech and
    exercise of religion; (2) denial of their Fourteenth Amend-
    ment right to equal protection; and (3) denial of their
    rights under the Illinois Religious Freedom Restoration
    Act (the “IRFRA”). They later amended their complaint
    to add claims against the City for (1) denial of equal
    protection; (2) denial of their Fourth Amendment rights;
    (3) state-law conversion; and (4) spoilation.
      Cross motions for summary judgment were filed by
    the City Defendants and the plaintiffs. The district court
    denied the plaintiffs’ motion and granted the City De-
    fendants’, finding that (1) the orders issued by the police
    during the events at the Games were content-neutral
    Nos. 09-3335 & 09-4079                                      3
    regulations narrowly tailored to serve the legitimate
    purpose of maintaining an orderly and effective flow of
    traffic and therefore did not violate the First Amend-
    ment; (2) the plaintiffs’ Equal Protection claim failed
    because they could not identify any similarly-situated
    individuals at the Games who received more favorable
    treatment from the officers than they did; and (3) the
    plaintiffs’ Fourth Amendment claims failed because their
    arrests were supported by probable cause. The court
    refused to exercise supplemental jurisdiction over the
    state-law claims and later granted a motion for judgment
    on the pleadings in favor of the MPEA, finding that the
    issues raised in the MPEA claims were precluded by
    the grant of summary judgment in favor of the City
      The plaintiffs have appealed and we affirm in part
    and reverse in part.
                        I. BACKGROUND
      The events giving rise to the plaintiffs’ claims occurred
    at Soldier Field on July 15, 2006, Navy Pier on July 16, 2006,
    and Wrigley Field on July 22, 2006. A summary of the
    events that transpired at each location is set forth below.
      A. Soldier Field
      July 15, 2006 marked the opening ceremonies of the
    Games. The plaintiffs spent approximately two hours
    that day demonstrating around the stadium. A large
    4                                   Nos. 09-3335 & 09-4079
    concentration of people traveled along a broad sidewalk
    bordering McFetridge Drive. At one point, Deputy Chief
    Daniel Dugan advised the plaintiffs they were blocking the
    sidewalk and directed them to a gravel area adjacent to
    it. According to deposition testimony from the plain-
    tiffs, during their time at Soldier Field, they preached,
    displayed signs and banners, and distributed Gospel
    tracts. However, they testified that Dugan’s prohibition
    against standing on the sidewalk prevented them from
    engaging attendees in a “one-on-one presentation of the
    Gospel of Jesus.” In the district court, the plaintiffs also
    contended that they experienced difficulty handing out
    Gospel tracts from their position on the gravel.
        B. Navy Pier and Gateway Park
      The following afternoon, the plaintiffs arrived at Navy
    Pier to engage in similar activity. After exiting the
    parking garage, the plaintiffs walked west along the
    north side of the pier, where they encountered security
    personnel. The security officers told them they could not
    demonstrate on the pier without an MPEA permit autho-
    rizing it; the plaintiffs did not have such a permit, nor
    had they applied for one. Accordingly, the officers
    escorted them toward Gateway Park. When directed to
    cross the street toward the park, the plaintiffs refused
    and proceeded to walk along the sidewalk fronting
    the main entrance to the pier. After being warned to
    cross the street or face arrest, the plaintiffs were
    driven further and further from the pier, since Chicago
    Police Officer Adam Andrews, who responded to the
    Nos. 09-3335 & 09-4079                                   5
    disturbance, was under the correct impression that the
    MPEA’s Policy for Public Expression at Navy Pier and
    the Headlands (the “Policy”) also required a permit
    in order to demonstrate in Gateway Park. Marcavage
    argued with Officer Andrews and called 911 in an effort
    to reach a supervising officer. He was then handcuffed
    and forced to sit down; James Deferio, who was carrying
    a video camera, and another member of the plaintiffs’
    group, Ryan Murphy, were both arrested and taken to
    the 18th precinct. Following their arrest, the remaining
    plaintiffs, Marcavage and Faith Deferio, along with
    another member of their group, Craig Scarberry, were
    ordered to leave Gateway Park under the threat of arrest.
    They complied.
     C. Wrigley Field
      The closing ceremonies of the Games were held on
    July 22, 2006 at Wrigley Field. At approximately 1:00 p.m.,
    the plaintiffs arrived. Marcavage proceeded to the south-
    west corner of the stadium. While walking east along
    the sidewalk on the north side of Addison Street, he held
    a sign in one hand and a video camera in the other. When
    he reached the southeast corner, he proceeded to pace
    back and forth along the sidewalk. At one point, he
    stood at the intersection of Addison and Sheffield
    Streets, a main thoroughfare for attendees entering the
    stadium. An officer told Marcavage to “keep walking,” but
    Marcavage insisted he had a right to stand there. The
    officer repeated his order to cross the street many times,
    but Marcavage refused. He was ultimately arrested and
    charged with disorderly conduct.
    6                                         Nos. 09-3335 & 09-4079
                            II. DISCUSSION
      We have reviewed the district court’s grant of summary
    judgment de novo 1 and conclude that summary judg-
    ment was appropriately entered in favor of the City
    Defendants with respect to the claims involving Soldier
    Field and Wrigley Field. However, with respect to the
    First Amendment claim involving Navy Pier and Gate-
    way Park, we remand the case to the district court with
    instructions to evaluate the constitutionality of the
    MPEA’s Policy in accordance with this opinion.
        A. Constitutional Claims Involving Soldier Field and
           Wrigley Field
      We begin with the district court’s treatment of the
    claims involving Soldier Field and Wrigley Field. The
    plaintiffs challenge the findings below on First Amend-
    ment, Equal Protection, Fourth Amendment, and qualified
    immunity grounds. We do not find their arguments
      We start with the First Amendment and Equal Protec-
    tion claims. The plaintiffs’ primary complaint is that
    they were not permitted to use the main pedestrian
    thoroughfares at each of the venues for their outreach
    activities during the Games. They claim they were
    entitled to do so under the First Amendment and that
    because others were using the sidewalks during the
        See Scott v. Edinburg, 
    346 F.3d 752
    , 755 (7th Cir. 2003).
    Nos. 09-3335 & 09-4079                                   7
    Games, their right to equal protection under the law was
    violated. Both arguments are without merit.
      It is true that sidewalks like the ones outside Soldier
    Field and Wrigley Field are traditional public forums
    where the exercise of First Amendment rights is often
    most vibrant. As the Supreme Court has described the
    rationale for promoting broad access to public forums,
    “streets, sidewalks, parks and other similar public places
    are so historically associated with the exercise of First
    Amendment rights that access to them for the purpose
    of exercising such rights cannot constitutionally be
    denied broadly and absolutely.” Carey v. Brown, 
    447 U.S. 455
    , 460 (1980).
      However, the fact that such rights cannot be denied
    “broadly and absolutely” does not mean they cannot be
    curtailed at all. On the contrary, the time, place, and
    manner of a speaker’s activities can be regulated
    without violating the First Amendment so long as the
    restrictions are (1) content-neutral, (2) narrowly tailored
    to serve a significant government interest, and (3) leave
    open ample alternative channels for communication.
    Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 
    460 U.S. 37
    , 45 (1983).
      The orders given by the officers at both locations
    met each of these criteria. At both locations, officers
    instructed the plaintiffs to “keep moving” to avoid inter-
    8                                  Nos. 09-3335 & 09-4079
    ference with pedestrian traffic at the Games.2 When
    they refused, they were asked to move to alternate loca-
    tions. (At Soldier Field, the officer suggested they move
    to a gravel area immediately adjacent to the sidewalk.
    At Wrigley Field, they were asked to cross the street.) At
    oral argument, the plaintiffs were asked to provide what-
    ever evidence they had of the officers’ hostility toward
    their message; none was offered. Their inability to cite
    to any such evidence is consistent with the record,
    which invariably shows that the directives given by the
    officers were based on the plaintiffs’ offensive conduct
    (blocking the main thoroughfares of the Games), not
    their message. This shows that the restrictions were
    content-neutral. Since the plaintiffs do not dispute that
    the government maintains a significant interest in con-
    trolling pedestrian traffic, 3 their only remaining chal-
    lenge is to the adequacy of the alternative venues pre-
    sented for their speech. The plaintiffs argue the restric-
    tions were overly broad; we disagree.
      Though the plaintiffs do not feel the gravel area at
    Soldier Field and the southern side of Addison Street
    opposite Wrigley Field were adequate places to conduct
    their activities, the fact that the permissible locations
    were not the plaintiffs’ preferred venues does not render
      Though the plaintiffs argue they were not blocking the
    sidewalks, their own video recordings taken at the events
    plainly show pedestrians walking around them while they
    remain stationary.
        See App. Br. at 32.
    Nos. 09-3335 & 09-4079                                               9
    them inadequate. After all, the First Amendment “does
    not guarantee the right to communicate one’s views at all
    times and places or in any manner that may be desired.”
    Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 
    452 U.S. 640
    , 647 (1981). Rather, it protects the right of every
    citizen to “reach the minds of willing listeners . . . [and]
    to do so, there must be opportunity to win their atten-
    tion.” Hill v. Colorado, 
    530 U.S. 703
    , 728 (2000). The
    alternate locations were within view and earshot of those
    traveling to the Games. We harbor no doubt that from
    these locations, the plaintiffs had ample opportunity
    to capture the attention of the Games attendees and sup-
    porters; they were only limited by their own stubborn
    refusal to move there. As to the plaintiffs’ challenge
    that the restrictions were overly broad, though a regula-
    tion need not be the least restrictive means available,4
    we cannot think of a narrower way of dealing with dem-
    onstrators blocking a pedestrian walkway than to
    request that they continue moving or change their loca-
    tion to a place very nearby.
      Having found that the officers’ directives to keep
    moving or relocate were (1) content-neutral, (2) sufficiently
    narrowly tailored to the significant goal of avoiding
    congestion and maintaining an orderly flow of traffic at
    the Games, and (3) accommodating of the need to
    provide an alternative channel for the plaintiffs’ speech,
    we find that such restrictions were compatible with the
      See, e.g., Bl(a)ck Tea Society v. City of Boston, 
    378 F.3d 8
    , 12 (1st
    Cir. 2004).
    10                                  Nos. 09-3335 & 09-4079
    First Amendment and that the district court did not err
    in granting summary judgment in favor of the City De-
    fendants on these claims.
       With respect to the argument that the restrictions
    violated their right to Equal Protection, the plaintiffs
    have not identified similarly-situated individuals who
    received preferential treatment at the Games. Whether
    persons are similarly-situated is a question of fact that
    is appropriately resolved on summary judgment when
    no reasonable fact-finder could determine that the plain-
    tiffs have met their burden on the issue. Srail v. Village of
    Lisle, Illinois, 
    588 F.3d 940
    , 945 (7th Cir. 2009). To be
    similarly-situated, persons must be alike “in all relevant
    respects.” Nordlinger v. Hahn, 
    505 U.S. 1
    , 10 (1992). Al-
    though the plaintiffs argue to the contrary, the attendees,
    supporters, and vendors allowed on the sidewalk were
    not similarly-situated to the plaintiffs. Games organizers
    contracted to hold the 2006 events in Chicago, including
    an opening ceremony at Soldier Field and a closing cere-
    mony at Wrigley Field. In so doing, the events brought
    thousands of people to the city and the chosen venues,
    much like a concert or political convention would. Atten-
    dees and supporters of the Games were allowed on the
    sidewalks because they had a particular purpose being
    there, namely, to access the venues reserved for their
    activities and to sell souvenirs. These purposes are
    entirely distinguishable from the plaintiffs’ efforts to
    disrupt the events by protesting along the main thorough-
    fares of the Games. We hold that a reasonable factfinder
    could not in good conscience find that the plaintiffs were
    similarly-situated to other users of the sidewalks. Since
    Nos. 09-3335 & 09-4079                                 11
    there is no reliable evidence that there were other pro-
    testors who were treated differently, the district court
    appropriately granted summary judgment on the
    Equal Protection claims.
      The plaintiffs’ argument that Marcavage’s Fourth
    Amendment rights were violated when he was ar-
    rested for disorderly conduct at Wrigley Field is equally
    unavailing. The plaintiffs argue that the officers at
    Wrigley Field lacked probable cause to arrest Marcavage,
    making his arrest without a warrant unreasonable and
    unconstitutional. Police have probable cause to arrest
    an individual without a warrant when “the facts and
    circumstances within their knowledge and of which
    they have reasonably trustworthy information” would
    make a prudent person believe the individual “had com-
    mitted or was committing” an offense. Kelley v. Myler,
    149 F.3d 641
    , 646 (7th Cir. 1998). Under Illinois law, a
    person commits disorderly conduct when he knowingly
    does any act in such an unreasonable manner as to
    alarm or disturb another and to provoke a breach of
    the peace. 720 ILCS 5/26-1(a)(1). The district court
    found that Marcavage’s obstruction of the walkway,
    argumentative tone toward law enforcement, and refusal
    to obey the lawful instructions of a police officer all
    gave rise to probable cause for his arrest for disorderly
    conduct. Since the act of blocking the free flow of pedes-
    trian traffic alone is sufficient to support a conviction
    12                                        Nos. 09-3335 & 09-4079
    for the offense of disorderly conduct under Illinois law,5
    we need not spend much time on this issue. The facts
    are clear that Marcavage stubbornly refused to move
    from his position on a crowded street corner during a
    heavily populated event, insisting that he had a right
    to demonstrate there. These findings are sufficient to
    support probable cause for his arrest, so we affirm the
    district court’s grant of summary judgment on the
    Fourth Amendment claim. Since the arrest was objec-
    tively supported by probable cause and there was no
    Fourth Amendment violation at Wrigley Field, we need
    not discuss the doctrine of qualified immunity.
        B. Constitutional Claims Involving Navy Pier and
           Gateway Park
       Navy Pier and Gateway Park differ from the other
    two venues in that the exercise of expressive activity at
    these venues is governed by a written policy for public
    expression. The Policy requires permits for expressive
    activity on and around the pier and the MPEA is charged
    with collecting and administering the permits. Although
    we agree with the district court’s treatment of the
    claims dealing with Soldier Field and Wrigley Field,
    we believe that the Policy applied to exclude the plain-
    tiffs from Navy Pier and Gateway Park merits further
      This court has considered the exercise of free speech
    at Navy Pier and Gateway Park before. See Chicago Acorn
        See Jones v. Watson, 
    106 F.3d 774
    , 779 (7th Cir. 1997).
    Nos. 09-3335 & 09-4079                                   13
    v. Metro. Pier & Exposition Auth., 
    150 F.3d 695
     (7th Cir.
    1998). In Chicago Acorn, we drew a distinction between
    the constitutional protections required at various venues.
    In particular, we held that while Navy Pier is a
    nonpublic forum, Gateway Park is a traditional public
    forum subject to heightened First Amendment protec-
    tion. Id. at 700-04.
      We are not troubled by the Policy’s restrictions on
    speech at Navy Pier. The pier’s designation as a
    nonpublic forum appropriately reflects its commercial
    nature. Though it is a recreational area open to the public,
    the pier itself primarily consists of event spaces, stores,
    restaurants, theaters, and an amusement park. Its nature
    is one of private enterprise with tangential public
    benefit; while the public can enjoy firework displays,
    free concerts, and views of Lake Michigan from the
    many benches along the pier, the revenue-generating
    outlets that support the pier fuel tourism and make
    these public benefits possible. Since the pier is a
    nonpublic forum, the MPEA and the City may restrict
    activity on the pier so long as the restrictions are rea-
    sonable and viewpoint neutral.6 The Policy states that
    permits are granted on a first-come, first-served basis
    “without reference to the content of the message to be
    expressed” and may be denied for enumerated reasons,
      See Cornelius v. NAACP Legal Defense and Educational Fund,
    473 U.S. 788
    , 800 (1985).
    14                                     Nos. 09-3335 & 09-4079
    all of which we find to be reasonable.7 The plaintiffs
    have not presented evidence that the officials at Navy
    Pier and Gateway Park expressed hostility toward their
    message. And, since they never applied for a permit to
    engage in their outreach activities at Navy Pier, it cannot
    be said that they were denied a permit because of their
    beliefs. Accordingly, we hold that the Policy’s regula-
    tions dealing with expressive activity on Navy Pier are
      The analysis for Gateway Park is not as straightforward.
    Though the same corporation manages Navy Pier and
    Gateway Park and the same Policy governs both proper-
    ties, greater opportunities for public expression must
    be made available to the public in the park than on
    the pier, since the park is a traditional public forum
    historically associated with such activity. As noted in
    the previous section, any policy restricting expressive
    activity in a traditional public forum such as Gateway
    Park must be content-neutral, narrowly tailored, and
    provide ample alternative channels of communication to
    those seeking to express their views. See Perry, 460 U.S.
    at 45. This is a more stringent standard than the “reason-
    able and viewpoint neutral” one that governs Navy Pier.
      Stated reasons for denying a permit application include that
    the proposed number of participants would cause (a) a risk of
    injury or damage to the pier’s resources; (b) traffic congestion;
    (c) interference with activities for which the MPEA has
    granted a lease or license; (d) impairment of the operation of
    the pier’s facilities; or (e) unreasonable danger to the health
    or safety of the public or the pier’s visitors.
    Nos. 09-3335 & 09-4079                                 15
    Though the extensive permitting scheme in place for
    the two venues seems appropriate for Navy Pier,
    whether the Policy is appropriate for Gateway Park is not
    as clear-cut.
      The plaintiffs, who arrived at Navy Pier and Gateway
    Park in a group of five, challenge the Policy as overly
    broad. They dispute the Policy’s requirements that
    (1) a group as small as five must apply for a permit to
    engage in expressive activity at Gateway Park at least
    seven days in advance; (2) persons less than five (which
    would apparently include an individual) must still
    apply for a permit, although without the advance notice
    requirement; and (3) individuals and groups are limited
    in the frequency with which they are allowed to
    submit applications for permits to engage in expressive
    activity at Gateway Park.
      District Judge Shadur dismissed the plaintiffs’ argu-
    ments that the Policy is overly broad by citing to Thomas
    v. Chicago Park Dist., 
    534 U.S. 316
     (2002). In Thomas, the
    Supreme Court upheld this court’s finding that an ordi-
    nance requiring a permit for events of more than fifty
    people is facially constitutional. Though Judge Shadur
    is correct that permit requirements for the use of public
    parks for expressive uses are “routinely imposed,” our
    case differs from Thomas in two important respects.
    First, it involves a group one-tenth the size of the
    number that would trigger a permit requirement under
    Thomas. Second, although our plaintiffs arrived in a
    group of five, the Policy we are asked to review would
    arguably require a permit for the expressive activity of
    just one person.
    16                                  Nos. 09-3335 & 09-4079
      The plaintiffs cite a Ninth Circuit case for the proposi-
    tion that a permit requirement for expressive activity by
    a group as small as theirs is insufficiently narrowly
    tailored to withstand constitutional scrutiny when the
    venue is a traditional public forum:
         In public open spaces, unlike on streets and sidewalks,
         permit requirements serve not to promote traffic flow
         but only to regulate competing uses and provide
         notice to the municipality of the need for additional
         public safety and other services. Only for quite large
         groups are these interests implicated, so imposing
         permitting requirements is permissible only as to
         those groups.
    Santa Monica Food Not Bombs v. City of Santa Monica,
    450 F.3d 1022
    , 1042 (9th Cir. 2006). While it may be true
    that most permit requirements for expressive activity
    in parks are not enacted to promote efficient traffic
    flow, the same cannot be said of the Policy at issue here.
    As this court noted in its detailed look at the premises
    of Navy Pier and Gateway Park in the Chicago Acorn
    case, Gateway Park is a “narrow bottleneck” leading to a
    crowded commercial pier surrounded by water on three
    sides. Chicago Acorn, 150 F.3d at 703. The Policy states
    that as many as 85,000 people visit Navy Pier on a
    crowded day. This amount of foot traffic undoubtedly
    presents unique challenges at the pier’s point of ingress
    and egress: Gateway Park. While the area devoted to
    public parks in the Santa Monica case amounted to
    Nos. 09-3335 & 09-4079                                         17
    245 acres,8 Gateway Park measures only 19 acres. The
    two venues are hardly comparable.
      Though we are dubious of the Ninth Circuit’s blanket
    presumption that the sole reason permit requirements
    are enacted for public open spaces is to regulate
    competing uses, it is worth noting that many other
    circuits have looked unfavorably on permit require-
    ments for groups as small as the plaintiffs’ group of five.
    In addition to the Ninth Circuit, the Fourth, Fifth, Sixth,
    and Eighth Circuits have all found permit requirements
    for groups of ten and under to be either unconstitutional
    or constitutionally suspect.9 Such a powerful consensus
    cannot be ignored. Though we are inclined to agree
    with our sister circuits that a permit requirement is less
      Santa Monica Food Not Bombs v. City of Santa Monica, 
    450 F.3d 1022
    , 1026 (9th Cir. 2006).
       See Knowles v. City of Waco, 
    462 F.3d 430
    , 436 (5th Cir. 2006)
    (striking down a parade ordinance which could be interpreted
    to require a permit for the activity of as few as two people); Cox
    v. City of Charleston, 
    416 F.3d 281
    , 285 (4th Cir. 2005) (holding
    that “the unflinching application of [a local parade ordinance]
    to groups as small as two or three renders it constitutionally
    infirm”); American-Arab Anti-Discrimination Comm. v. City of
    418 F.3d 600
    , 608 (6th Cir. 2005) (holding that a parade
    ordinance that would require a permit “for almost any imagin-
    able procession” on the streets of Dearborn, Michigan was
    “hopelessly overbroad”); Douglas v. Brownell, 
    88 F.3d 1511
    , 1524
    (8th Cir. 1996) (expressing doubt that applying a parade
    ordinance to a group as small as ten would be sufficiently
    narrowly tailored).
    18                                    Nos. 09-3335 & 09-4079
    likely to be content-neutral and narrowly tailored when
    it is intended to apply even to small groups, we decline
    to hold that permit requirements for groups of any speci-
    fied number are per se unconstitutional.
      Only after viewing the Policy in light of the concerns
    that are unique to the venue in question do we believe
    a court can appropriately assess the constitutionality of
    the regulation. This is a factually driven inquiry. On the
    one hand, Gateway Park’s location immediately adjacent
    to the heavily trafficked Navy Pier poses unique logistical
    concerns that may make the regulations necessary. On
    the other hand, the park’s proximity to the pier makes
    it a natural alternative venue for the type of expres-
    sion that the pier itself cannot support. Absent a greater
    understanding of the rationale behind the MPEA’s Policy,
    we are left with the impression that the imposition of
    burdensome restrictions for small groups at Gateway
    Park might be overreaching.1 0 Accordingly, we remand
      In Hotel Employees & Rest. Employees Union, Local 100 v. City
    of New York Dep’t of Parks & Recreation (H.E.R.E. v. City of
    New York), 
    311 F.3d 534
     (2d Cir. 2002), the Second Circuit
    dealt with a First Amendment challenge to restrictions on
    organized public expression at New York’s Lincoln Center,
    a city-owned plaza at the center of several well-known per-
    forming arts venues. Although the court upheld restrictions on
    such expressive activity in the central plaza of the Lincoln
    Center complex, it noted that, in denying permit applications
    for those who wished to leaflet or demonstrate on the plaza,
    applicants were encouraged to use a public park to the south
    Nos. 09-3335 & 09-4079                                       19
    the case to the district court where the MPEA can be
    given an opportunity to defend its Policy.
       The plaintiffs’ Equal Protection and Fourth Amendment
    claims dealing with Navy Pier and Gateway Park require
    little discussion. With respect to their Equal Protection
    claim, the plaintiffs argue that they were treated differ-
    ently than attendees of the Games; however, the
    attendees had a permit to use the premises and the plain-
    tiffs did not. As to their Fourth Amendment claim, the
    district court appropriately found that the responding
    officer had probable cause to arrest Deferio and detain
    Marcavage, since the two unlawfully remained on the
    premises after being repeatedly told to leave or obtain a
    permit. Although the constitutionality of the Policy
    remains in question, the arresting officer’s objectively
    reasonable reliance on the permit requirement in effect
    at the time of the arrest is sufficient to shield him
    from liability under the doctrine of qualified immunity.
         C. Supplemental Claims
      The plaintiffs’ final argument is that the district court
    erred in declining to exercise supplemental jurisdiction
    of the complex for their activities. This area, called Damrosch
    Park, was part of the original site plan for Lincoln Center. The
    use of the adjacent park at Lincoln Center as an alternate
    location for expressive activity is an interesting counterpoint
    to Gateway Park, an area which could serve as an alternate
    location for public expression at Navy Pier, but is instead
    heavily regulated under the existing Policy.
    20                                  Nos. 09-3335 & 09-4079
    over various state-law claims. A district court’s refusal to
    exercise supplemental jurisdiction is reviewed for abuse
    of discretion. In re Repository Technologies, Inc., 
    601 F.3d 710
    , 724 (7th Cir. 2010). Under this standard, we will
    reverse a district court’s decision to relinquish jurisdic-
    tion over such claims only in “extraordinary circum-
    stances.” Id. at 725. Since no such circumstances are
    present in this case, the district judge did not abuse his
    discretion and we affirm.
                       III. CONCLUSION
      For the reasons set forth above, summary judgment in
    favor of the City Defendants is A FFIRMED, except with
    respect to the First Amendment claim dealing with Gate-
    way Park. This claim is R EMANDED to the district court,
    where the constitutionality of the Policy shall be adjudi-
    cated with the participation of all the parties. The
    district court’s grant of the MPEA’s motion for judgment
    on the pleadings is hereby R EVERSED, since the holding
    previously given preclusive effect is to be reconsidered
    on remand.
    Nos. 09-3335 & 09-4079                                      21
      H AMILTON, Circuit Judge, dissenting in part. I agree
    with my colleagues that plaintiffs failed to prove viola-
    tions of their constitutional rights outside Soldier Field
    and Wrigley Field, and on Navy Pier. I respectfully dis-
    agree with the portion of the decision that remands to the
    district court plaintiffs’ claim that their rights were vio-
    lated in Gateway Park, immediately west of Navy Pier,
    on July 16, 2006.
      The point of my disagreement may be identified by
    asking what error the district court made, based on the
    record before it. The majority opinion does not answer
    that question. Instead, it expresses an impression that
    the application of the MPEA’s permit requirements to
    small groups at Gateway Park “might be overreaching,”
    but instructs the district court first to develop a record
    so that “the MPEA can be given an opportunity to
    defend its Policy.” Ante at 18-19. The reason no such
    record exists yet is that the plaintiffs did not make this
    argument to the district court in a timely way, when
    the city defendants moved for summary judgment. This
    claim, whatever its merits, was therefore waived. See, e.g.,
    Fednav Int’l Ltd. v. Continental Ins. Co., 
    624 F.3d 834
    , 841
    (7th Cir. 2010); Domka v. Portage County, 
    523 F.3d 776
    783 (7th Cir. 2008); Lac du Flambeau Band of Lake Superior
    Chippewa Indians v. Stop Treaty Abuse-Wisconsin, Inc.,
    991 F.2d 1249
    , 1258 (7th Cir. 1993).1
      At an early point in the litigation, plaintiffs advanced a
    related point—that distinguishing between groups of five or
    22                                      Nos. 09-3335 & 09-4079
      In the abstract, there might well be problems with
    applying the MPEA’s permit requirement for demon-
    strations in Gateway Park. Navy Pier is not a public
    forum, but Gateway Park is. The constitutional rules
    are different. See Chicago Acorn v. Metropolitan Pier & Ex-
    position Auth., 
    150 F.3d 695
    , 700-04 (7th Cir. 1998) (dis-
    cussing these sites and noting MPEA’s concession that
    Gateway Park is a traditional public forum). In a tradi-
    tional public forum, a permit requirement applied to
    demonstrations by very small groups may run afoul of the
    Constitution. See Boardley v. U.S. Dep’t of Interior, 
    615 F.3d 508
    , 524 (D.C. Cir. 2010) (striking down regulations re-
    quiring permits to engage in expressive activities in
    national parks as “overbroad and not narrowly tailored”
    because they imposed “substantial burdens on individuals
    and small groups—burdens which the government has
    failed to justify”); Knowles v. City of Waco, 
    462 F.3d 430
    , 436
    (5th Cir. 2006) (“Other circuits have held, and we concur,
    more and four or fewer is “arbitrary and irrational.” Dkt. No. 34,
    at 4-6. Because plaintiffs presented no more than a passing
    glimpse of their current theory to the district court, they failed
    to preserve it for appeal. A “skeletal” argument does not
    preserve a claim for appeal, “[e]specially not when” the party
    “presents a passel of other arguments.” United States v. Dunkel,
    927 F.2d 955
    , 956 (7th Cir. 1991). As Fednav, Domka, and Lac du
    Flambeau Band show, among many other cases, we should
    not encourage a litigation strategy of throwing every con-
    ceivable idea against a wall to see what might stick. We also
    should not encourage parties to overhaul and transform
    unsuccessful cases when they present them on appeal.
    Nos. 09-3335 & 09-4079                                     23
    that ordinances requiring a permit for demonstrations
    by a handful of people are not narrowly tailored to serve
    a significant government interest.”); Santa Monica Food
    Not Bombs v. City of Santa Monica, 
    450 F.3d 1022
    , 1039
    (9th Cir. 2006) (“Without a provision limiting the permit-
    ting requirements to larger groups, or some other provi-
    sion tailoring the regulation to events that realistically
    present serious traffic, safety, and competing use con-
    cerns . . ., a permitting ordinance is insufficiently nar-
    rowly tailored to withstand time, place, and manner
    scrutiny.”); American-Arab Anti-Discrimination Comm. v.
    City of Dearborn, 
    418 F.3d 600
    , 608 (6th Cir. 2005)
    (“Permit schemes and advance notice requirements that
    potentially apply to small groups are nearly always
    overly broad and lack narrow tailoring.”); Cox v. City of
    416 F.3d 281
    , 283, 285-86 (4th Cir. 2005) (invali-
    dating ordinance barring “any person” from participating
    in “any parade, meeting, exhibition, assembly or proces-
    sion . . . on the streets or sidewalks of the city” without a
    permit because the city failed to “establish[ ] why bur-
    dening such expression is necessary to facilitate its
    interest in keeping its streets and sidewalks safe,
    orderly, and accessible”).
      I also agree with my colleagues that we should avoid
    picking a number for the size of groups that cannot be
    required to obtain a permit. The configuration of Gateway
    Park as a “narrow bottleneck,” see Chicago Acorn, 150 F.3d
    at 703, may enable even a very small group to block or
    reduce the flow of pedestrians to and from Navy Pier.
    That configuration may distinguish this location from
    those in Santa Monica Food Not Bombs, 450 F.3d at 1042, and
    24                                   Nos. 09-3335 & 09-4079
    similar cases rejecting permit requirements for small
      The problem, as I see it, is that the constitutional
    question is before us not in the abstract but on a specific
    record of the evidence and arguments that plaintiffs
    chose to present in the district court. When the permit
    policy question arose in the district court, plaintiffs failed
    to make the arguments they make on appeal. In both their
    own motion for partial summary judgment and their
    memorandum opposing the city defendants’ motion for
    summary judgment, plaintiffs chose not to challenge
    the constitutionality of the MPEA permit policy on the
    grounds they raise here. On the contrary, in opposing
    summary judgment for the city defendants and in an
    apparent attempt to bolster their contention that their
    arrests at Gateway Park were illegal, plaintiffs asserted:
    “As a matter of practice, the MPEA does not require a
    permit for persons wishing to engage in free speech
    activity in Gateway Park.” Dkt. No. 152 at 21. What-
    ever the reasons for plaintiffs’ tactical choice, the city
    defendants’ motion for summary judgment put the con-
    stitutionality of the permit policy at issue. See Dkt.
    No. 140 at 7-10.
      That defensive use of the policy was sufficient to require
    the plaintiffs to respond with any attack they wished to
    make upon the policy. E.g., Domka, 523 F.3d at 783 (appel-
    lant’s failure to make argument in opposing summary
    judgment waived theory for appeal). As best the district
    court could tell, plaintiffs’ only attack on the policy was
    the broad and untenable theory that “any system that
    Nos. 09-3335 & 09-4079                                    25
    requires a permit for public demonstrations and expres-
    sions of speech is per se violative of the First Amendment.”
    Marcavage v. City of Chicago, 
    635 F. Supp. 2d 829
    , 840 (N.D.
    Ill. 2009) (describing plaintiffs’ position in Dkt. No. 152).
    At no point in the district court’s summary judgment
    proceedings did plaintiffs articulate a viable challenge to
    the permit policy. They certainly did not make the nar-
    rower and perhaps more meritorious arguments they
    make on appeal.
       Only after they had lost on the city defendants’ motion
    for summary judgment did plaintiffs attack the MPEA’s
    permit policy. Judge Shadur understandably concluded
    that he had already decided the issue against them. In
    other words, a busy district court reasonably decided
    that plaintiffs were not entitled to what golfers would
    call a Mulligan. The court applied the doctrine of issue
    preclusion based on its earlier decisions in the case.
    Whether viewed in terms of issue preclusion, the law of
    the case, or waiver, I see no error in the court’s handling
    of the issue. The district court’s earlier decision is not
    binding on this court, but the course of proceedings in
    the district court shows that plaintiffs waived their chal-
    lenge to the permit policy by failing to respond on that
    point when the city defendants moved for summary
    judgment. Based on the arguments and evidence pre-
    sented, the district court did not err in rejecting plain-
    tiffs’ claims arising from the Gateway Park/Navy Pier
     Even in these two separately-briefed appeals, plaintiffs’
    muddled approach continues. Plaintiffs have failed to
    26                                 Nos. 09-3335 & 09-4079
    challenge the constitutionality of the permit policy in
    No. 09-3335, their appeal from summary judgment for
    the city and its officers. That was the decision in
    which the district court actually considered the merits
    of the permit policy. One would think that plaintiffs’
    opening brief in that appeal would have been the place
    both to raise the Santa Monica Food Not Bombs argument
    and to explain their apparent failure to do so before the
    district court. Instead, plaintiffs focused on whether
    someone with authority told them on the spot that they
    did not need a permit, a dispute that does not affect the
    constitutionality of the policy. Only in their second
    appeal have plaintiffs presented the permit policy issue
    in a comprehensible form, raising at long last an argu-
    ment they should have made years earlier. I would hold
    the plaintiffs responsible for their own tactical decisions
    and affirm the district court’s judgments in all respects.
      By ordering a partial remand, my colleagues have
    taken a different approach regarding the MPEA’s permit
    policy. There are attractive reasons for doing so. That
    approach gives the plaintiffs a second chance to get it
    right. Depending on what the evidence shows, that
    second chance might result in more robust protection
    of First Amendment rights for plaintiffs and others. The
    better approach, though, would be to adhere to a
    more orderly litigation process. Plaintiffs had their op-
    portunity to present their claim. They failed. In the
    absence of clear error (indeed, any error) by the district
    court, we should respect that process and its results.
    We should do so by making clear that the district
    court’s decision and our affirmance of it do not amount
    Nos. 09-3335 & 09-4079                                     27
    to a definitive constitutional blessing of the permit policy
    in Gateway Park, but are based instead on the confusing
    and contradictory path plaintiffs pursued in the district
    court. That approach would leave the door open for
    another party to bring a new and stronger challenge to
    the policy. It would also protect the district court and
    the defendants from the prejudice caused by plaintiffs’
    shifting and inconsistent prosecution of their case.
    I would affirm the district court’s judgments in their
    entirety, and I respectfully dissent from the portion of
    the majority decision remanding the Gateway Park
    portion of the case.2
      To the extent that this Mulligan might enable plaintiffs to
    succeed to some degree on the Gateway Park issues and to seek
    a reasonable attorney fee under 42 U.S.C. § 1988, the district
    court can and should take into account the unusual procedural
    course of the case in determining what a reasonable fee
    would be.

Document Info

DocketNumber: 09-3335

Filed Date: 10/4/2011

Precedential Status: Precedential

Modified Date: 12/22/2014

Authorities (25)

Knowles v. City of Waco Texas , 462 F.3d 430 ( 2006 )

Carey v. Brown , 447 U.S. 455 ( 1980 )

Heffron v. International Soc. for Krishna Consciousness, ... , 452 U.S. 640 ( 1981 )

Perry Ed. Assn. v. Perry Local Educators' Assn. , 460 U.S. 37 ( 1983 )

Cornelius v. NAACP Legal Defense & Ed. Fund, Inc. , 473 U.S. 788 ( 1985 )

Nordlinger v. Hahn , 505 U.S. 1 ( 1992 )

Hill v. Colorado , 530 U.S. 703 ( 2000 )

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

Boardley v. US Dept. of Interior , 615 F.3d 508 ( 2010 )

Bl(a)ck Tea Society v. City of Boston , 378 F.3d 8 ( 2004 )

United States v. James C. Dunkel , 927 F.2d 955 ( 1991 )

lac-du-flambeau-band-of-lake-superior-chippewa-indians-michael-allen , 991 F.2d 1249 ( 1993 )

carol-douglas-michael-allen-henry-deena-shelton-v-robert-brownell-in-his , 88 F.3d 1511 ( 1996 )

Virgil Jones v. Ronald Watson, J. Volland, and W. Stec , 106 F.3d 774 ( 1997 )

Peggy Kelley v. Mark Myler, Gene Patrick, Ralph Bell and ... , 149 F.3d 641 ( 1998 )

Chicago Acorn, Seiu Local No. 880, and Ted Thomas v. ... , 150 F.3d 695 ( 1998 )

hotel-employees-restaurant-employees-union-local-100-of-new-york-ny , 311 F.3d 534 ( 2002 )

Perry L. Scott, Sr., Michelle M. Scott, Phillip H. Scott, ... , 346 F.3d 752 ( 2003 )

timothy-cox-and-cathy-rider-v-city-of-charleston-south-carolina-rueben , 416 F.3d 281 ( 2005 )

American-Arab Anti-Discrimination Committee, a Non-Profit ... , 418 F.3d 600 ( 2005 )

View All Authorities »