Robert C. Braun v. Leverett Baldwin

POSNER, Circuit Judge.

September 5 is “Jury Rights Day” in Milwaukee. On that day in 2000, Robert Braun, the plaintiff in this civil rights suit under 42 U.S.C. § 1983, and his companion-in-arms William “Whistleblower” Currier, as was their custom on Jury Rights Day entered the Milwaukee County Courthouse for the purpose of advocating jury nullification, that is, that jurors should feel free to disregard the instructions on the law that judges give them. They stationed themselves in the lobby of the courthouse. Currier was dressed in a judicial robe and carried a sign that said, ‘Why do judges hide the truth?” — the “truth” referred to apparently being that juries can acquit in criminal cases lawlessly. He handed persons entering the lobby, who may have included witnesses and even jurors, pamphlets advocating jury nullification. Braun stood by, holding a camera, apparently to enable him to obtain evidence, which might provide a basis for litigation, of any attempt by courthouse personnel to expel the judge-impersonating “Whistleblower.” Braun and Currier are serial protesters and arrestees; they appear to be “dedicated to the propagation of litigation.” Currier v. Baldridge, 914 F.2d 993, 994 (7th Cir.1990).

A sheriffs 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 Franckow-iak, 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 *763filed; nor was Braun jailed — he was merely expelled from the courthouse, though later permitted to return. But the arrest precipitated this civil rights suit for infringement of freedom of speech and for false arrest — Braun’s threat to sue had not been an idle one. Braun also claims to have been subjected to excessive force in the course of his arrest, mainly because the handcuffs were fastened too tightly, Herzog v. Village of Winnetka, 309 F.3d 1041, 1043-44 (7th Cir.2002), but as there is no indication that his arrest was effected in an unusual or improper manner, the excessive-force claim has no possible merit. The district court granted summary judgment for the defendants on all counts.

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 pamphleting 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 *764displays in courtrooms and adjacent corridors may be limited to the icons of government, such as seals and flags, and that judges may insist that all those present behave in a dignified manner. Why should this be less true of the lobby? Newspapers and the streets outside are open to scathing criticism of what happens within the courthouse. But the halls of justice may be kept hushed.”

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 (1885); 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 instruc tions. Or to impersonate a judge; cf. Ryan v. County of DuPage, supra, 45 F.3d at 1092, upholding against First Amendment challenge a rale 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.” Milwaukee County Code § 63.01(1). (The state’s disorderly-conduct statute is almost identical. Wis. Stat. § 947.01(1).) Although Franckowiak testified at his deposition that Braun was abusive, boisterous, and unreasonably loud, this testimony is disputed by other witnesses, including Braun, and so cannot be taken as true in the current posture of the case. And it is not contended that Braun was violent, indecent, or profane. But that leaves the catchall “or otherwise disorderly.” We must consider whether his conduct in refusing to explain to the officer why he was taking a picture of him, and instead threatening to sue him, and then refusing to step aside to continue his argument with the officer when ordered to do so, created probable cause, in a courthouse seething with rumor of disturbance, to believe that he was being disorderly in circumstances in which his behavior could provoke or exacerbate 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 *765have had business in the courthouse and who, for all that Franckowiak could have known, might have been witnesses or jurors. These persons would have observed the strange spectacle — rendered stranger by Currier’s antics — of Braun’s photographing a police officer, refusing to explain why, threatening to sue him, and refusing his order to step outside the lobby. This conduct disturbed the sedate, irenic, dignified, solemn, and even hieratic (“temple of justice”) ambiance that courthouses seek to preserve.

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 *766a case that his lawyer, with an insouciance characteristic of his representation of his client in this court, has not bothered to cite — is State v. Werstein, supra. The Supreme Court of Wisconsin held in that case that it was not disorderly conduct for four draft protesters during the Vietnam War to refuse a police officer’s order to leave a military induction center. Although we have called them “protesters,” it appears from the stipulation of facts on which the court based its decision that they were just sitting quietly in the induction center, being there to lend moral support to an inductee who was planning to refuse induction. Id. at 488. The center was a public place and they had a right to remain in it as long as they were not interfering with the induction process; and so far as appears they were sitting as quietly as mice. The Milwaukee County courthouse is public too, but of a special sensitivity as we have seen and here was Braun arguing with a police officer, taking photographs of the officer, refusing to explain what he was doing — and this against the background of Currier’s disruptive, or at least distracting, impersonation of a judge and the rumor of a disturbance. In these unusual circumstances, we think the officer was within his rights to order Braun to step aside.

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.