Robert C. BRAUN, Plaintiff-Appellant, v. Leverett BALDWIN, et al., Defendants-Appellees.
No. 02-4143.
United States Court of Appeals, Seventh Circuit.
Argued May 27, 2003. Decided Oct. 10, 2003.
346 F.3d 761
Conclusion
The judgment of the district court is affirmed.
AFFIRMED
Walter W. Stern (Argued), Union Grove, WI, for Plaintiff-Appellant.
John F. Jorgensen (Argued), Office of the Corporation Counsel, Milwaukee, WI, for Defendants-Appellees.
Before BAUER, POSNER, and COFFEY, Circuit Judges.
September 5 is “Jury Rights Day” in Milwaukee. On that day in 2000, Robert Braun, the plaintiff in this civil rights suit under
A sheriff‘s deputy named Frank Franckowiak, the only defendant who belongs in the case (the other two defendants—the sheriff himself and Milwaukee County—have no possible legal liability for the conduct about which Braun is complaining), observing but doing nothing to impede Currier‘s antics, noticed that Braun, standing at a distance from Currier, was taking pictures of the officer. Franckowiak was on the alert for trouble because someone had phoned the police that there was a “disturbance” taking place in the courthouse and he had been told about the call. He approached Braun and asked him what his business in the courthouse was. Braun refused to answer and instead threatened to sue Franckowiak, who in response asked Braun to “step aside.” (Braun admits this, while also claiming that Franckowiak told him to leave the building altogether.) When Braun refused, Franckowiak arrested him for disorderly conduct. No charges were
We address the free-speech issue first. When Franckowiak arrested Braun, he may not even have known that Braun was present to assist Currier in advocating jury nullification. In that event, even if the arrest had been improper (the second issue that we consider), it could not have been intended to curtail Braun‘s freedom of speech. Rakovich v. Wade, 850 F.2d 1180, 1189-90 (7th Cir.1988) (en banc). For that matter, we don‘t know whether Braun had any intention of speaking or pamphleteering or otherwise exercising a claimed right of free speech, so we don‘t know whether there was even an unintentional interference with his freedom of speech. Currier was not intimidated by Braun‘s arrest and continued handing out his pamphlets in the courthouse lobby without interference.
But there is a deeper problem with Braun‘s free-speech claim. First Amendment rights are not absolute. If they were, it would be unconstitutional for states or the federal government to provide a legal remedy for defamation, to punish the possession and distribution of child pornography, to forbid the publication of military secrets, to ever conduct legal proceedings in camera, or, coming closer to home, to prevent Currier and Braun from handing their pamphlets advocating jury nullification to jurors sitting in the jury box. Although advocacy of jury nullification could no more be flatly forbidden than advocacy of Marxism, nudism, or Satanism, we cannot think of a more reasonable regulation of the time, place, and manner of speech than to forbid its advocacy in a courthouse.
“A State may adopt safeguards necessary and appropriate to assure that the administration of justice at all stages is free from outside control and influence.” Cox v. Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); see also United States v. Grace, 461 U.S. 171, 177-78, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983); Ryan v. County of DuPage, 45 F.3d 1090, 1095 (7th Cir.1995) (distinguishing Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971)); Dorfman v. Meiszner, 430 F.2d 558, 561 (7th Cir.1970) (per curiam); Pouillon v. City of Owosso, 206 F.3d 711, 716 (6th Cir.2000) (dictum). As we explained in Sefick v. Gardner, 164 F.3d 370, 372-73 (7th Cir.1998) (citation omitted), a case that involved a kinetic statue in the lobby of the federal courthouse in Chicago satirizing one of the judges in the building—a kind of robotic version of Whistle-blower Currier—“the lobby of the courthouse is not a traditional public forum or a designated public forum, not a place open to the public for the presentation of views .... Courts seek to induce in the jurors, witnesses, and litigants who pass through the lobby on the way to the courtrooms a serious cast of mind.... The judiciary does not show reruns of the Three Stooges in courthouse lobbies, and from the perspective of promoting the judicial mission a sculpture satirizing judges would be worse than old physical comedies. No one doubts that
The Supreme Court in the passage we quoted from Cox, and our own court in the passage we just quoted from Sefick, might have been speaking of this case. Jurors have the power, but not the right, to ignore the judge‘s instructions. A defendant‘s lawyer isn‘t permitted to argue to the jury that it should disregard the law, Sparf v. United States, 156 U.S. 51, 102, 15 S.Ct. 273, 39 L.Ed. 343 (1895); Gibbs v. VanNatta, 329 F.3d 582, 584 (7th Cir.2003); United States v. Bruce, 109 F.3d 323, 327 (7th Cir.1997); United States v. Manning, 79 F.3d 212, 219 (1st Cir.1996)—a restriction on speech that does not violate the Constitution. Currier and Braun have no greater right than a criminal defendant‘s lawyer to tell jurors in the courthouse to disobey the judge‘s instructions. Or to impersonate a judge; cf. Ryan v. County of DuPage, supra, 45 F.3d at 1092, upholding against First Amendment challenge a rule banning the wearing of masks in court. The biggest surprise in this case is that the Milwaukee justice system tolerates Currier‘s antics, aided and abetted by Braun. If it thinks the First Amendment requires this, it is mistaken. Sefick makes that clear; and see United States v. Ogle, 613 F.2d 233, 242-43 (10th Cir.1979), rejecting a challenge based on the First Amendment to a conviction for obstruction of justice for giving a juror a pamphlet advocating jury nullification. See also Turney v. State, 936 P.2d 533, 541 (Alaska 1997); Zal v. Steppe, 968 F.2d 924, 932-33 (9th Cir.1992) (concurring opinion).
We turn now to the second issue, which is whether Franckowiak had probable cause to arrest Braun. The ordinance under which Braun was arrested provides that “no person shall engage in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to cause or provoke a disturbance.”
Bearing in mind the emphasis that Wisconsin‘s highest court places on the coalescence of conduct with circumstances in deciding whether conduct is disorderly, see, e.g., City of Oak Creek v. King, 148 Wis.2d 532, 436 N.W.2d 285, 289 (1989), we think there was probable cause for Braun‘s arrest. The altercation took place in a courthouse lobby, during working hours. It is conceded that other persons besides Braun, Currier, and the officer were present—other persons who can be assumed to
It is not a case of a person who, accosted on the street by a policeman who has no reason to suspect him of unlawful behavior, refuses to answer the policeman‘s questions, as he is entitled to do. Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (concurring opinion); United States v. Burton, 228 F.3d 524, 527 (4th Cir.2001). Braun‘s arrest occurred after the catastrophic bombing of a federal building in Oklahoma City in 1995 engendered heightened fears for the security of government buildings. Even before then courthouses had been recognized as potentially dangerous places because of the presence of criminal defendants, bitterly divorcing spouses and custody-contesting ex-spouses, and other highly stressed, emotionally excited, and even violence-prone litigants. Because of the character of a courthouse‘s clientele and the importance of preserving a calm atmosphere for the sake particularly of the lay people—witnesses and jurors, outsiders to the legal system—who nevertheless play a vital role in the administration of justice, police and guards are entitled to exercise a degree of control that would be oppressive in a different setting. Currier‘s grotesque display, Braun‘s picture taking and obstinateness, and the telephone warning about a disturbance in the courthouse, taken all together, justified a prudent officer in taking steps to head off possible trouble.
Moreover, as we explained in Ryan v. County of DuPage, supra, 45 F.3d at 1093, defiance of a police officer‘s order to move is itself disorderly conduct if the order is lawful. We were dealing in that case with Illinois law, but Wisconsin law appears to be the same; compare City of Oak Creek v. King, supra, 436 N.W.2d at 289-90, upholding the disorderly-conduct conviction of a person who had refused to obey a lawful police order, with State v. Werstein, 60 Wis.2d 668, 211 N.W.2d 437, 440-41 (1973), reversing the convictions of defendants who had refused to obey an unlawful order. So let us consider, as a possible alternative justification for the arrest of Braun, whether the order that he step aside was lawful. We think it was. His action in refusing to explain why he was photographing a police officer who had done nothing provocative or illegal, occurring as it did in the lobby of a courthouse where a judge impersonator was pamphleting passersby and a report of a disturbance had been received, would have led a reasonable officer to fear that a disturbance of the peace of the courthouse was imminent, making it prudent to remove Braun at least temporarily from the immediate scene. Terry v. Ohio, supra, 392 U.S. at 20-27, 88 S.Ct. 1868, allows police to stop a person and pat him down for weapons upon mere reasonable suspicion. The grounds for suspicion here were insufficient to have justified a typical Terry stop involving a search for weapons, but the intrusion on personal privacy and liberty involved in being asked to step aside is less than that involved in a pat down for weapons, sufficiently less to be reasonable in the circumstances.
The case that provides the strongest support for Braun‘s position—though it is
Probable cause is not proof beyond a reasonable doubt, or even proof by a preponderance of evidence. So although Braun‘s conduct was at the margin of the disorderly-conduct ordinance, there was enough evidence of a violation of that capaciously worded regulation—which is not however challenged in Braun‘s appeal (or challengeable, see City of Oak Creek v. King, supra, 436 N.W.2d at 291) as unreasonably vague or overbroad—to justify the arrest.
AFFIRMED.
COFFEY, Circuit Judge, dissenting.
On September 5, 2000, Robert Braun and his partner, William Currier, were peacefully passing out pamphlets in the lobby of the Milwaukee County courthouse—and were granted express permission from the Milwaukee County Sheriff to do this—when (according to Braun) Deputy Sheriff Frank Franckowiak “accosted [him] first by stating that [he] could not pass out papers or take pictures inside the courthouse.” See Braun‘s Certified Declaration ¶ 5. Braun further alleges that Franckowiak “showed anger toward [him] before [he] had a chance to respond to [Franckowiak‘s] claim that [he] was doing something wrong,” and Franckowiak, when asked by Braun what ordinance prohibited his pamphleting and photography activities, “would not answer.” Id. ¶¶ 5, 7, 9.
According to Braun, Franckowiak then “told [Braun] that [he] must leave the building immediately or face arrest.” Id. ¶ 9. When Braun “said [he] didn‘t intend to leave [the building] unless [Franckowiak] could tell [him] what authority he was relying on to order [him] from the building,” id. ¶ 10—obviously a reasonable response under the circumstances, considering the fact that he had received the Sheriff‘s permission to pass out pamphlets in that very area (the hallway of the courthouse), and had been assured that the County‘s deputy sheriffs would not interfere with such activities—Franckowiak stated, “you‘re coming with me,” and immediately put Braun under arrest for disorderly conduct. See Braun Dep. at 38. The charge against Braun was ultimately dropped, and Braun filed this civil rights claim against Franckowiak under the First and Fourth Amendments. The district court granted summary judgment in favor of Franckowiak on all counts.
The Milwaukee County Courthouse being a nonpublic forum, I concur with the majority that neither Braun nor anyone else had any First Amendment right to pass out jury nullification fliers on “Jury Rights” day (or any other day), and agree with the majority‘s decision to affirm the district court‘s grant of summary judgment against Braun as to his First Amendment claim. I would also add that Milwaukee County officials certainly have the authority, if they so choose, and would indeed be well advised to enact and impose reasonable and viewpoint-neutral restrictions on speech or other activity in the area inside the Milwaukee County Courthouse. See United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (“regulation of speech activity where the Government has not dedicated its property to First Amendment activity is examined only for reasonableness.“).
On the other hand, I wish to make clear that I am forced to dissent from this Court‘s affirmance of the district court‘s grant of summary judgment as to Braun‘s unlawful arrest claim, and would reverse and remand that issue for trial, because based upon all the facts and circumstances, when considered in their totality, as well as the explicit permission Braun had been given by the Milwaukee County Sheriff to pass out pamphlets, I am convinced that Officer Franckowiak did not have probable cause to arrest Braun for disorderly conduct under the Milwaukee County Ordinance.
Deputy Franckowiak admits that Braun was “free to distribute literature” in the courthouse lobby on Jury Rights day (September 5, 2000), so long as his conduct was orderly. See Franckowiak‘s Br. at 3 (emphasis added). And the facts recited in the record, “view[ed] in the light most favorable to [Braun],” Palmer v. Marion County, 327 F.3d 588, 590 (7th Cir.2003), support that Braun‘s leafleting activities were entirely peaceful and did not disrupt the traffic flow in the courthouse lobby. See infra at 17-21. As for the appellant Braun‘s discussion with Officer Franckowiak, Braun claims that he was “n[either] loud, obstructive, [n]or uncooperative.” See Braun‘s Opposition to Summary Judgment at 2; Currier Aff. ¶ 10 (“Braun ... was not loud or boisterous [in] responding to questions from Deputy Franckowiak.“).
The
In granting Officer Franckowiak summary judgment as to Braun‘s Fourth Amendment unlawful arrest claim, the district court stated: “the undisputed facts clearly establish that Franckowiak had probable cause to arrest Braun for disorderly conduct.” Braun v. Baldwin, No. 01-CV-852, at *9 (E.D.Wis., November 14, 2002). Braun in response to this finding argues that the district court failed to view all the facts in the light most favorable to him, and that the undisputed facts and circumstances in the record fall short of supporting a finding of probable cause. The majority has ruled that the district court‘s grant of summary judgment to Officer Franckowiak was proper, but I am convinced that, viewing all the facts in the light most favorable to Braun, as we must, Franckowiak did not have probable cause to arrest Braun under the Milwaukee County disorderly conduct ordinance. I thus disagree with the majority‘s conclusion to the contrary.
It is well-settled that an officer has probable cause to make an arrest only when ” the facts and circumstances within [his] knowledge and of which [he has] reasonably trustworthy information [are] sufficient to warrant a prudent [person] in believing that the [suspect] had committed or is committing an offense.” United States v. Mounts, 248 F.3d 712, 715 (7th Cir.2001) (quoting United States v. Gilbert, 45 F.3d 1163 (7th Cir.1995)). Resolution of the probable cause question “typically falls within the province of the jury....” Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 473 (7th Cir.1997). A conclusion that probable cause exists as a matter of law is only “appropriate when there is no room for a difference of opinion concerning the facts or the reasonable inferences to be drawn from them.” Id. (emphasis added). Thus, for us to affirm the district court‘s finding of probable cause, we must be convinced (and I am not) that the undisputed facts point to only one reasonable conclusion—that probable cause was present.
No person shall engage in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to cause or provoke a disturbance.
The majority notes that “Braun was [not] violent, indecent, or profane,” Opinion at 6; thus, his conduct comes within the ambit of the Ordinance (if at all) only through the “catchall” “otherwise disorderly” phrase, which is further defined and limited in the very language of the Ordinance‘s requirement that the conduct be of the type that, under the circumstances, “tends to cause or provoke a disturbance.” Id. That is, Officer Franckowiak had probable cause to arrest as a matter of law only if the facts were sufficient to warrant a prudent person to believe that Braun engaged in or was engaging in conduct that was both “disorderly” and furthermore would “tend[] to cause or provoke a disturbance” under the circumstances. Id. Viewing the facts in the light most favorable to Braun, as we must at this stage of the litigation, Braun‘s actions did not fulfill the probable cause requirement so vital to his arrest made under the Ordinance.
According to Braun, the facts are as follows: beginning at 8:15 a.m. on September 5, 2000, Braun and his partner, William Currier, were standing in the middle of the first-floor lobby of the Milwaukee County courthouse, located in the City and County of Milwaukee, Wisconsin, and offering and “handing out [jury nullification] fliers” to anyone who would take them. See Braun Dep. at 32. It is accepted by both parties that, prior to that date, the then County Sheriff, Leverett Baldwin, had sent Currier a letter “assur[ing] Currier and [Braun], that Deputy Sheriffs from Milwaukee County would not interfere with peaceful and orderly pamphleting at the courthouse by issuing citations of disorderly conduct or otherwise.”2 See Amended Complaint ¶ 8 (emphasis added); Answer ¶ 8 (“admit[ting] that [such] a letter [of permission] was sent [by the Milwaukee County Sheriff] to Currier as alleged [by Braun] ....“). See also Robinson Dep. at 10 (stating that the men were “allowed” to stay and pamphlet “as long as [they] did not cause a disruption ...“). (Although Franckowiak, Braun and
At approximately 9:20 a.m. on the date of September 5, 2000, Deputy Sheriff Janet Robinson was sent to the ground floor of the Milwaukee County Courthouse to investigate a complaint about a disruption made by an unidentified complainant. Upon arrival, she approached Mr. Currier (she claims initially she did not notice Braun) and remarked that, at that time, “it didn‘t appear that [Currier] was causing a disturbance.” Robinson Dep. at 9. She told Currier to leave (she claims not to have talked to Braun), but Currier refused: “[N]o, I won‘t leave.... I have a right to stay here.” Id. at 10. Currier went on to state to Robinson that he had “sued the county before” and said “that [she] should talk to [her] sergeant” about the issue. Id.
As Robinson moved away from the immediate area to call her sergeant (Jeffrey Bilda), Braun snapped her picture. At this time, she (Robinson) recognized Braun from prior contacts and conversations with him in the courthouse. Id. at 5-6, 11 (“I knew who Mr. Braun was“). Robinson further testified that although she thought Braun‘s picture-taking was “unusual,” nothing Braun had done in her presence was “loud,” “boisterous” or “causing a disturbance.” Id. at 13, 15. According to Robinson, Sergeant Bilda, in his phone conversation with her, thereafter confirmed to her that “as long as there was no disruption, as long as people weren‘t milling around [or] crowding around, [Braun and Currier] [we]re entitled to stay [in the hallway]” passing out pamphlets. Id. at 13. Having observed none of the problems Sergeant Bilda recited, Robinson proceeded to leave the area. Id. at 13.
Meanwhile, Deputy Sheriff Frank Franckowiak arrived on the scene, and recognized Braun, because he had “r[un] across [Braun] a couple times” before when Braun was at the courthouse for other reasons. See Franckowiak Dep. at 3. As Franckowiak approached, Braun admits that he “took a picture [of Franckowiak]” from a distance of about 20 feet away. See Braun‘s Certified Declaration ¶ 3.
Franckowiak, for his part, concedes that “when [he] arrived [at the scene, he] didn‘t see any ... disturbance,” and admits that there was “no[thing] loud” taking place, and absolutely “nothing going on ...” in the area of Braun‘s pamphleting activities.3
Franckowiak, the arresting officer, testified that he did not observe whether any passersby were bothered by (or exhibited any reaction whatsoever) to Braun‘s behavior during the brief 30-second (or less-than-30-second) discussion. Id. But Deputy Sheriff Kimberly Dunigan, who also had responded to the scene along with Franckowiak, was standing nearby and observing the entire incident and noted that Braun was not blocking any doorway, courtroom or jury room, and instead remained “basically in the middle of the hallway.” See Dunigan Dep. at 18 (emphasis added). Further, she recounted that, “[d]uring the 30 seconds to a minute
Deputy Sheriff Keith Kolodzyk came in “[a]t the end” of Braun‘s discussion with Franckowiak, see Kolodzyk Dep. at 10, and watched as Braun was put under arrest. He confirmed that “[no] crowd gather[ed]” at any point, but, as is frequently the case, one witness sees a situation one way while another interprets it a different way, and Kolodzyk remarked (in conflict with Deputy Dunigan‘s testimony) that some passersby did “seem[] upset and ... were moving away” from the area. Id. at 16. Most interestingly, Kolodzyk has never specified much less explained how he came to this conclusion that the alleged passersby seemed “upset,” nor has he given any suggestion as to what was in fact causing the alleged passersby to exhibit a reaction.
At this time, after detaining Braun for “[c]lose to an hour,” see Braun Dep. at 42, Franckowiak finally decided to issue Braun a citation for disorderly conduct—after a nurse intervened after taking Braun‘s blood pressure—and escorted him out the door of the courthouse building. Braun immediately returned to the scene of the activity and joined Currier, and the two men continued to distribute pamphlets within the building for another 30 to 45 minutes, during which time no other officer made contact with them. Nor did Franckowiak ever again order Braun to cease pamphleting or leave the premises. Ultimately, Braun and Currier decided to leave the courthouse of their own accord.
Some months after receiving the citation, Braun appeared in court in response to the disorderly conduct charge issued by Deputy Sheriff Franckowiak. But the charge never went forward, for, at the first in-court hearing in the matter, the district attorney must have agreed with Braun that he could not prove the disorderly conduct charge and moved the court to withdraw the charge. The court acquiesced and dismissed the pending (and indeed most questionable) disorderly conduct charge.
To address the district court‘s and the majority‘s conclusions that Franckowiak had probable cause to arrest Braun for disorderly conduct, I must point out that, contrary to the
The Court‘s majority in this case similarly casts aside conflicting evidence in the record when it recites the “fact” that Braun “[refused an order by Franckowiak] to ‘step aside‘” in support of its conclusion that there was probable cause to arrest. Opinion at 2, 7-9. As an examination of the record reveals, the very person who Dunigan claims gave the “step aside” order—Officer Franckowiak himself—emphatically refuted this allegation at his deposition. Indeed, Franckowiak stated that he only gave Braun one order—to “come with [him]” into custody—an order with which Braun fully complied. See Franckowiak Dep. at 15 (emphasis added). Franckowiak further admitted that he never “instruct[ed] [Braun] to move to a different part of the hallway.” Id. at 14-15 (emphasis added). Moreover, Franckowiak‘s recitation of his reasons for arresting Braun, recorded on the face of the citation itself, made no mention whatsoever of any “step aside” order (nor of Braun‘s alleged refusal to obey such an order) as the reason for the disorderly conduct arrest. See Braun Aff., Exhibit B (noting only that Braun “stated [that] he didn‘t have to listen to [Franckowiak] and that he wanted [Franckowiak‘s] picture to sue [him]” and that Braun “was advised to leave and wouldn‘t [and was thereafter] [p]laced under arrest and served citation.“). It is certainly strange, and I am at a loss to understand how Deputy Dunigan heard Franckowiak give an order that he (Franckowiak) himself claimed he never gave, but one thing is clear: this Court would be foolhardy to accept her word as convincing at this stage, for the very officer (Franckowiak) involved denies and contest Deputy Dunigan‘s assertion.7
After clearing up these misstatements in the record, it is not surprising that the County prosecutor moved to dismiss and the court granted dismissal of the disorderly conduct charge against Braun, for the prosecutor likewise must have been convinced he would not be able to establish probable cause for the arrest based on the totality of the evidence presented by the complexity of all of the litigants and the witnesses. Indeed, the only undisputed facts that Franckowiak relies on to justify his decision to arrest Braun are: (1) Braun‘s snapping a picture of Franckowiak; (2) his refusal to answer Franckowiak‘s inquiry as to why he was in the courthouse; and (3) his statement that he “didn‘t have to listen” to Franckowiak and would sue Franckowiak if he infringed his First Amendment rights. Since when has any one of these acts, or even a combination of some or all of these acts, been the basis for a conviction on a disorderly conduct charge under the Milwaukee County Ordinance?
The taking of the picture of an officer is certainly not adequate to support a disorderly conduct charge, for such activity is not the type that tends to “cause or provoke a disturbance.” Franckowiak failed to supply any case law in support of his theory that the mere taking of a police officer‘s picture has been adjudged an act of disorderly conduct; nor have we, in conducting our research, been able to find any case law in support of his claim. Furthermore, the County did not put forth any ordinance that restricted or prohibited the use of cameras inside courthouse hallways at the time Braun took Franckowiak‘s picture.9 Indeed, the County, at oral argument, expressly admitted that the fact that Braun took a picture inside the courthouse “was not disorderly conduct.”10
The Supreme Court has indeed emphasized that “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” City of Houston v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (emphasis added). As this Court recently asserted, “even profanity-laden speech directed at police officers” qualifies as First Amendment-protected speech. See Payne v. Pauley, 337 F.3d 767, 776 (7th Cir.2003) (emphasis added). Also pertinent to the instant case, we noted that “arguing with a police office[r] does not evolve into disorderly conduct merely because a crowd gathers to watch the argument.” Id. at 777 (emphasis added). Because swearing at and arguing with a police officer do not always rise to the level of disorderly conduct, we noted in Payne that “[p]olice officers must be more thick skinned than the ordinary citizen and must exercise restraint in dealing with the public. They ‘must not conceive that every threatening or insulting word, gesture, or motion amounts to disorderly conduct.’ ” Id.
Here, Braun did not use any profanity; and, although he did question Franckowiak‘s authority to order him from the courthouse, no crowd gathered around him and Franckowiak during this discussion. Indeed, if Braun‘s testimony is accurate, there was no reason for a crowd to gather, for there was nothing “disorderly” taking place: Braun merely informed Deputy Sheriff Franckowiak that (contrary to Franckowiak‘s assertions) he did “ha[ve] permission to be in the hallways handing out fliers,” see Braun Dep. at 40, and that he would sue if he was forced to leave. Indeed, this was a reasonable (though unfortunate) response under the circumstances, considering Braun had been advised by the Milwaukee County Sheriff that he could pass out pamphlets in the courthouse lobby that day (a fact that is not disputed by the County), and thus he was of the belief that he was allowed to participate in what Franckowiak was telling him he could not do (i.e., the distribution of fliers in the hallway).
Though this is the Court‘s first opportunity to address the Milwaukee County disorderly conduct ordinance, it is worth noting that, in other instances, we have required far more egregious conduct than what is at issue here to support a “disorderly conduct” violation. For example, in Lester v. City of Chicago, 830 F.2d 706, 708 (7th Cir.1987), we considered whether evidence that a defendant had—inside a police station lobby—“holler[ed] and scream[ed]” at police officers, “push[ed] people out of her way,” and caused onlookers to “sh[y] away,” was sufficient to support a finding of probable cause under the Illinois disorderly conduct statute. Noting that the defendant in that case had engaged a police officer in a “loud, offensive argument,” and that there was evidence the argument had “disrupted the station‘s normal activities,” id. at 708, 715 (“[no]thing was getting done [in the police station] other than [the] hollering“), we held there was sufficient evidence to support a finding of probable cause to arrest for disorderly conduct—but even in that case, the probable cause question had been left for the jury.
Likewise, in Biddle v. Martin, 992 F.2d 673 (7th Cir.1993), we concluded that probable cause existed to arrest an intoxicated man for disorderly conduct, because the man had engaged a police officer in a “violent argument,” after he was informed by the officer that his car would be towed. Id. at 677. We noted that “when a citizen‘s argument with a police officer is at issue, the key inquiry is [often] whether there is a clear relationship between the citizen‘s conduct and the threat to public order.” Id. (emphasis added). We further reasoned that, because the defendant had “scream[ed] profanities at an officer for ten minutes” (something we deemed an unreasonable response under the circumstances), and because the “screaming [wa]s accompanied by violent arm gestures,” the “relationship between [the defendant‘s] unreasonable conduct and a breach of the peace [wa]s clear enough to satisfy the requirements of probable cause.” Id.
By contrast, in the case before us, Braun claims (and we must accept) that he was “n[ever] loud or boisterous [in] responding to [Franckowiak‘s] questions ....” Currier Aff. ¶ 10 (emphasis added). Further, there is no allegation that Braun punctuated his statements with obscenities, hand gestures, much less hand or arm waves. By Franckowiak‘s own admission, the incident was but a mere 30 seconds long—“[maybe] shorter.” See Franckowiak Dep. at 15. And, as further evidence that Braun‘s statements did not “tend to create or provoke a disturbance,” I note that no one had stopped to listen to Braun, no crowd had gathered around him, and no passersby were “respond[ing] in any way to what [Braun] said to Deputy Franckowiak.” See Dunigan Dep. at 28 (emphasis added). Thus, for all we know from the record before us, people in the hallway in all probability may not even have paid any attention at all to Braun and Franckowiak‘s discussion.12
Additionally, I would note that even the doctrine of qualified immunity (which Defendant pleaded as an affirmative defense but failed to address in his appellate brief) is unavailable (in my view) as a basis for affirming the grant of summary judgment in this case. An officer is shielded from liability under the doctrine of qualified immunity if his conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Sparing v. Village of Olympia Fields, 266 F.3d 684, 687 (7th Cir.2001). To evaluate a claim of qualified immunity, we engage in a two-step analysis, asking: (1) “whether the plaintiff[‘s] claim states a violation of [his] constitutional rights,” and then (2) “whether those rights were clearly established at the time the violation occurred.” Jacobs v. City of Chicago, 215 F.3d 758, 766 (7th Cir.2000). “A clearly established right is one where ‘[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Id.
In Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir.1998), we addressed the issue of probable cause in the context of a
[w]ith an unlawful arrest claim in a § 1983 action when a defense of qualified immunity has been raised, we will review to determine if the officer actually had probable cause or, if there was no probable cause, whether a reasonable officer could have mistakenly believed that probable cause existed. Courts have referred to this second inquiry as asking whether the officer had “arguable” probable cause. Arguable probable cause exists when “a reasonable police officer in the same circumstances and with the same knowledge ... as the officer in question could have reasonably believed that probable cause existed in light of well-established law.
Because I am convinced that material issues of fact remain as to whether Franckowiak had probable cause, qualified immunity must here be based, if at all, on a conclusion that a reasonable officer could have mistakenly believed that probable cause existed. Unfortunately for Franckowiak, the same material issues of fact that preclude a legal determination of probable cause at this stage similarly preclude a determination that a reasonable person in Franckowiak‘s position could have failed to ascertain that what he was doing was illegal. To name a few, there remains a dispute as to: (1) whether Braun was addressing Franckowiak in a loud or boisterous manner; (2) whether Braun disobeyed an alleged “step aside” order given by Franckowiak (which Franckowiak himself denies making); and (3) whether Braun‘s statements to Franckowiak had any negative effect on passersby in the vicinity (Braun says no crowd was gathering, and nobody was bothered, while other evidence suggests passersby were “upset“). Given that these material facts are in dispute, Defendant Franckowiak is not entitled to qualified immunity as a matter of law, for reasonable persons could disagree on whether a reasonable law enforcement officer in the same circumstances and with the same knowledge as Franckowiak could have reasonably believed the arrest was lawful.