Andy Thayer v. Ralph Chiczewski
2012 U.S. App. LEXIS 26899
| 7th Cir. | 2012Background
- Thayer and CCAWR sought permits for a March 19, 2005 antiwar march at Oak and Michigan; permit was denied and alternative site offered at Federal Plaza.
- Thayer and CCAWR publicized Oak and Michigan as assembly point despite no permit and warned of possible arrests for unlawful assembly.
- On March 19, officers announced dispersal at Oak and Michigan; crowd size ranged from 50 to 200 with about 200 officers present; Thayer was arrested while speaking after a dispersal mandate.
- Lyttle approached the Oak & Michigan corner, attempted to walk down Michigan, and was arrested for disobeying dispersal orders; Massey and Jakes were not arrested.
- Plaintiffs alleged First Amendment retaliation, false arrest, class-of-one equal protection, and state-law malicious prosecution; Lyttle challenged the ordinance subsection (d) as overbroad/vague.
- District court granted summary judgment; on appeal, court affirmed on qualified-immunity grounds and mootness for facial challenge to subsection (d).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause/false arrest standard | Lyttle claims arrest lacked probable cause under subsection (d). | Arrest supported by arguable probable cause given disruption and dispersal orders. | Qualified immunity applies; arguable probable cause supports dismissal. |
| First Amendment retaliation | Arrests served to punish protected speech; causation shown. | Arrests justified by dispersal need and probable cause; motive not proven. | Qualified immunity; no clearly established right violated at time. |
| Class-of-one equal protection | Thayer treated differently due to activism; irrational/deliberate discrimination. | Discretion and contextual factors allow differential treatment; no improper motive required. | Qualified immunity; no clearly established violation given discretion. |
| Facial validity of subsection (d) | Subsection (d) overbroad/vague; seeks injunctive relief. | Subsection (d) provides discretion to dispersal in potentially dangerous crowded settings. | Lyttle's mootness; Bell v. Keating partially invalidated (d) removal; claim moot. |
Key Cases Cited
- Reichle v. Howards, 132 S. Ct. 2088 (U.S. 2012) (qualified immunity after probable cause questions in retaliatory arrest context)
- Hartman v. Moore, 547 U.S. 250 (U.S. 2006) (retaliation requires showing causal link; probable cause bar considerations)
- DeFillippo, 443 U.S. 31 (U.S. 1979) (arrest valid under good-faith reliance on statute despite later invalidation)
- Whren v. United States, 517 U.S. 806 (U.S. 1996) (probable cause standard is objective and not about officer’s subjective intent)
- Engquist v. Oregon Dep't of Agric., 553 U.S. 587 (U.S. 2008) (discretion in governmental decisionmaking limits equal-protection concerns in some contexts)
- Weiss, 281 N.E.2d 310 (Ill. 1972) (narrowing construction of dispersal to protect public order)
- Fort, 262 N.E.2d 473 (Ill. 1970) (disorderly-conduct standards and public nuisance considerations)
- Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887 (7th Cir. 2012) (conflicts over standard for class-of-one equal protection; qualified immunity applied)
- Geinosky v. City of Chicago, 675 F.3d 743 (7th Cir. 2012) (class-of-one equal protection context; requires improper motive and irrational treatment)
- Vodak v. City of Chicago, 639 F.3d 738 (7th Cir. 2011) (fact question on probable cause for mass arrests during protests)
- Sroga v. Weiglen, 649 F.3d 604 (7th Cir. 2011) (Restatement-based definition of disorderly conduct guidance)