Vodak v. City of Chicago

In the

United States Court of Appeals
For the Seventh Circuit

Nos. 09-2768, 09-2843, 09-2901

KEVIN VODAK, et al., individually
and on behalf of all others
similarly situated, and
BRUCE BEAL, et al.,
Plaintiffs-Appellants,
v.

CITY OF CHICAGO, et al.,
Defendants-Appellees.

Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 03 C 2463, 04 C 2039—Virginia M. Kendall, Judge.

ARGUED OCTOBER 18, 2010—DECIDED MARCH 17, 2011

Before POSNER and WOOD , Circuit Judges, and ADELMAN,
District Judge.Œ

Œ
Hon. Lynn S. Adelman, of the Eastern District of Wisconsin,
sitting by designation.
2 Nos. 09-2768, 09-2843, 09-2901

POSNER, Circuit Judge. On March 20, 2003, the day after
the second war between the United States and Iraq
began, a large demonstration was held in Chicago by
opponents of the U.S. invasion. The demonstration
resulted in some 900 arrests, which in turn produced
two lawsuits, one a class action suit on behalf of
887 persons—Vodak v. City of Chicago—and the other a
suit by 16 individuals—Beal v. City of Chicago. The suits,
which were brought under 42 U.S.C. § 1983, and which
were consolidated in the district court and can for the
most part be discussed together, charged the City and a
number of police officers with violations of the First
and Fourth Amendments, together with a long list of
violations of state law. See 28 U.S.C. § 1367. Our focus, for
reasons that will become apparent, is on the Fourth
Amendment claims. The district judge dismissed both
suits on summary judgment, reasoning that the officers
were immune from being sued for damages because
the illegality of their action had not been clearly estab-
lished when they acted, 624 F. Supp. 2d 933, 955-59
(N.D. Ill. 2009), and that the City was not liable because
no official authorized to make policy for the City had
been responsible for any of the alleged illegalities.
We’ll state the facts as favorably to the plaintiffs as
the record permits, as we must given the procedural
posture. The statements of facts in the defendants’ briefs
present the evidence they’d like a jury to accept, rather
than just the evidence that, being unrefuted or irrefutable,
provides a permissible basis for a grant of summary
judgment. Such a mode of presentation is unhelpful to
the court.
Nos. 09-2768, 09-2843, 09-2901 3

The organizers of the demonstration wanted it to coin-
cide with the start of the war. They knew war was im-
minent but did not know exactly when it would start.
Under the Chicago ordinances governing demonstra-
tions, a permit is required for a “parade,” Chi. Munic.
Code § 10-8-330(b), defined as “any march, procession or
other similar activity consisting of persons, animals,
vehicles or things, or combination thereof, upon any
public street, sidewalk, alley or other public place, which
requires a street closing or otherwise requires police
officers to stop or reroute vehicular traffic because the
marchers will not comply with normal and usual traffic
regulations or controls.” § 10-8-330(a)(1). The demonstra-
tion in this case consisted mainly of a march, and
we’ll generally use that word in preference to parade or
demonstration.
The Code requires that the application for the permit
specify the date and route of the march, and gives the
City five days to act on the application “except that
where the purpose of [the demonstration] is a
spontaneous response to a current event, or where other
good and compelling cause is shown, the [City] shall act
within two business days.” §§ 10-8-330(f)(4), (7), (j). But
when a march is planned for the unknown date of
some triggering event, so that even two days’ notice is
infeasible, the police, as a matter of uncodified practice,
will sometimes waive the requirement of a permit. The
City’s brief acknowledges the existence of a “standard
route for un-permitted marches.” Apparently these “un-
permitted marches” are sufficiently frequent that the
4 Nos. 09-2768, 09-2843, 09-2901

police have adopted a practice of “permitting” them to
use a specific corridor of city streets. This waiver of
the permit requirement is informal; it seems to consist
just in not telling the demonstrators that they need a
permit.
In discussions with the organizers of the contemplated
demonstration, the police made no objections even
though they were unable to work out an agreement
with the organizers on the route that the march phase
of the demonstration would take. The demonstrators
didn’t want to stay in one place; they wanted to march;
but it was unclear where they wanted to march. They
were being cagey; and the police, we can assume
without having to decide, could have forbidden the
march unless the organizers would commit to a specific
route that would not cause commuting chaos or other
undue disruption of the normal life of the city. But they
did not insist on such a commitment. It seems to have
been agreed that the march would start in the Federal
Plaza on Dearborn Street, but where it would go from
there was left open.
The day came, the demonstration began, and here is a
map of the area in which it took place (image derived
from map © 2011 Google):
Nos. 09-2768, 09-2843, 09-2901 5

X marks the beginning of the march, the lines indicate the
path of the march, and Y is the area, on Chicago Avenue,
where the arrests that precipitated the litigation occurred.
The demonstration began with a rally at Federal Plaza
(X on the map) that turned into a march. The marchers
turned east (right on the map as you face it) on Adams
Street and Jackson Boulevard, which intersect Dearborn
Street near the Federal Plaza, and marched all the way
6 Nos. 09-2768, 09-2843, 09-2901

to Lake Shore Drive, a multilane commuting thorough-
fare, where they turned north. The police tried without
conspicuous success to confine the marchers to the north-
bound lanes of Lake Shore Drive in order to minimize
blockage of traffic. As the march proceeded, the police
learned from the organizers that the intended route of
the march was north on Lake Shore Drive for more than
two miles to North Avenue, a major east-west artery,
where the marchers would turn west, leaving Lake
Shore Drive, and disperse.
But when the marchers arrived, well short of North
Avenue, at the intersection of Lake Shore Drive with
Oak Street, which runs west and after a few blocks inter-
sects Michigan Avenue, most of them—perhaps as many
as 8,000—turned left on Oak Street and marched to its
intersection with Michigan Avenue. But we need to ex-
plain the sense in which Lake Shore Drive and Oak
Street “intersect.” For part of its distance Lake Shore
Drive actually consists of two separate roads—the “outer
drive,” a limited-access highway on which the demon-
strators were marching north, and the “inner drive,” a
local street immediately to the west of the outer drive.
The inner drive connects with Oak Street; the outer
drive does not. But the outer drive is just feet away
from the inner drive at the inner drive’s intersection
with Oak. So it was easy for the demonstrators to
cross from the outer drive to Oak and proceed west.
For all we know, they, or many of them anyway,
simply decided that it was too long a walk to North
Avenue, so rather than going west on North Avenue and
Nos. 09-2768, 09-2843, 09-2901 7

dispersing they decided to go west on Oak Street and
disperse.
The police, however, who were out in force because
of the size of the march, did not want the march to
spill over into Michigan Avenue, a major north-south
artery; a crowd on or crossing Michigan Avenue would
add to the blockage of north-south traffic that the
closure of the northbound lanes of Lake Shore
Drive, with impedance of southbound traffic as well, was
causing. It was still rush hour, and according to the
City some marchers were becoming rowdy. It is undis-
puted that there had been rowdiness on Lake Shore
Drive earlier, with some of the marchers rushing into
the southbound lanes of Lake Shore Drive (where they
weren’t supposed to be) and banging on the hoods and
windows of cars. Shouts of “Take Michigan!” had been
heard, a possible reference to the opulent stores that
line Michigan Avenue.
The police, alarmed, formed a line across Oak Street at
the Michigan Avenue intersection, blocking the
marchers, and told the organizers to direct their flock
either to go east on Oak Street to the inner drive and
return to Federal Plaza, or to disperse, and warned
them that marchers who tried to enter Michigan Avenue
would be arrested. The police claim that they shouted
this warning through bullhorns.
In the confused and alarming circumstances that we’ve
described, the authority of the police to order the crowd
to disperse and return to its starting point cannot be
questioned, Cox v. Louisiana, 379 U.S. 536, 554-55 (1965);
Cox v. Louisiana, 379 U.S. 559, 573-74 (1965); Cantwell v.
8 Nos. 09-2768, 09-2843, 09-2901

Connecticut, 310 U.S. 296, 308 (1940); MacDonald v. City of
Chicago, 243 F.3d 1021, 1025-26 (7th Cir. 2001); Papineau v.
Parmley, 465 F.3d 46, 56-57 (2d Cir. 2006), and is not.
The marchers had made their point; the march was now
getting out of hand; traffic was being impeded.
The marchers began reversing course, marching east
on Oak Street and then south on the inner drive. Chicago
Avenue is an east-west street five blocks to the south
of Oak Street, and thus parallel to it and also inter-
secting Michigan Avenue after a few blocks. More than
a thousand marchers, when they reached the intersection
of Chicago Avenue and the inner drive, turned right
(west—for remember that they were marching south on
the inner drive) and marched down Chicago Avenue
to its intersection with Michigan Avenue, where again
the police formed a blocking line.
The marchers chose Chicago Avenue rather than one
of the other streets that connect the inner drive to
Michigan Avenue and points west because the police
had set up lines of mounted officers at each intersection
with the inner drive between Oak and Chicago, making
it impossible to move west on those streets. What hap-
pened on Chicago Avenue is disputed. The police say
they were directing the marchers to continue south
but lacked enough man- and horse-power to block all
the intersections. But there is evidence that no police
orders were given at the intersection of Chicago Avenue
with the inner drive, although two mounted officers
were on either side of Chicago Avenue at the intersec-
tion—yet their presence, not blocking the avenue,
Nos. 09-2768, 09-2843, 09-2901 9

might have made the marchers think it a permitted
route west for them. There is also evidence that
some of the marchers thought the police were directing
them onto Chicago Avenue rather than to continue
south on the inner drive. In any event more than a thou-
sand people ended up streaming west on Chicago.
Rather than telling them to turn back and return to
Federal Plaza via the inner drive, the police formed a
second blocking line (the first being at the intersection
of Chicago Avenue with Michigan Avenue), behind the
marchers, at the intersection of Chicago Avenue with
a north-south street called Mies Van Der Rohe Way.
Marchers proceeding down Chicago Avenue to its inter-
section with Michigan Avenue thus became penned
between the two X’s marked on the next map (also
from Google) because there is no north-south street
between Mies Van Der Rohe Way and Michigan Avenue,
and they could not escape north on Mies Van Der Rohe
Way itself because the police line behind the marchers
was west of the intersection between that street and
Chicago Avenue.
10 Nos. 09-2768, 09-2843, 09-2901

The police then began culling the trapped herd, arresting
marchers along with people who weren’t part of the
march but were just trying to get home and to do so
needed to cross Michigan Avenue. The police seem to
have considered the marchers’ presence on Chicago
Avenue illegal because they’d been ordered when they
had been on Oak Street to return to Federal Plaza via
the inner drive, or disperse, yet instead they were trying
to reach (and perhaps “take”) Michigan Avenue by a
parallel route to Oak.
Some of the persons trapped between the police lines
on Chicago Avenue were arrested but released after an
hour or two without being charged or jailed; some were
jailed but released the next morning without being
charged; and some were jailed and charged with
reckless conduct. But all charges were dropped. There is
considerable evidence of unprofessional behavior by
police in arresting and jailing the people trapped between
Michigan Avenue and Mies Van Der Rohe Way, but no
Nos. 09-2768, 09-2843, 09-2901 11

need to discuss that behavior in this opinion; for we
would have to reverse even if the police had behaved
like perfect gentlemen. For the same reason, the fact that
some of the marchers were rowdy and may have com-
mitted criminal acts consisting of minor property
damage and defiance of lawful police orders that some
marchers may have heard, mainly the orders given (if
they were given) on Oak Street or Michigan Avenue that
the demonstrators were not to try to reach Michigan
Avenue by an alternative route, need not be discussed
in detail; demonstrators’ misconduct cannot on the
present record be thought to have justified the mass
arrests of persons trapped by the police on Chicago
Avenue.
In part because there was no permit, which would
have specified the route of the march, the marchers, or
at least many of them, didn’t know they were supposed
to continue north on Lake Shore Drive to North Avenue
and were not instead to turn left on Oak Street and
proceed to Michigan Avenue. That didn’t mean the
police had to let them enter Michigan Avenue. They
had adequate reasons not to let them do so, and could
in the circumstances—a large protest march that was
getting out of hand—order them to return to the place
where the demonstration had begun, and by a route
prescribed by the police, or to disperse, but in any
event not try to reach Michigan Avenue by any route.
But before the police could start arresting peaceable
demonstrators for defying their orders they had to com-
municate the orders to the demonstrators. They had to
tell them not only that they couldn’t enter Michigan
12 Nos. 09-2768, 09-2843, 09-2901

Avenue at Oak but also that they had to return to Federal
Plaza via the inner drive, or disperse (exactly what
“disperse” means in this setting is unclear, but we’ll
assume it means go anywhere except to Michigan Ave-
nue). The plaintiffs have submitted some 250 affidavits
attesting that they did not hear or otherwise learn of
any command to disperse, and anyway could not
disperse once they reached a point on Chicago Avenue
near its intersection with Michigan Avenue because
they were trapped there between the police lines.
The defendants claim that such orders were given,
either directly through bullhorns or indirectly through
the organizers, but this is disputed. And even if dispersal
orders were given, there would have to be evidence
that the police reasonably believed that the protesters
who were arrested, or at least most of them, had heard
the orders. For this could not be assumed. Bullhorns
will not carry from Michigan Avenue to the inner drive,
and the organizers could not relay the police order to
8,000 demonstrators even if they tried, which they
may not have, since according to the defendants the
organizers were trying to foment a riot. (The police are
thus arguing that the organizers were trying both to
help and to hinder them.) Maybe the marchers who
left Oak Street without having learned of the order to
return to Federal Plaza or disperse, turned right on Chi-
cago Avenue, and marched back to Michigan Avenue
should have guessed that it was a forbidden route as
well, and no doubt some did, but others may simply
have been following the crowd, thinking that it either
was a proper route for the march or a way out. In fact
Nos. 09-2768, 09-2843, 09-2901 13

Michigan Avenue would be a more direct route back to
the Federal Plaza than the inner drive.
All this would be of no consequence had the police
had a reason for arresting the crowd on Chicago Avenue
other than that anyone in that crowd could be assumed
to have willfully violated the return-or-disperse order
issued at Michigan and Oak. But they had no other
reason. The crowd wasn’t trying to break through the
police barrier at the intersection of Chicago Avenue
with Michigan Avenue. The police were numerous, in riot
gear, and formidable. The crowd was just milling about,
predominantly peaceably (the defendants do not agree
that the crowd was peaceable, but this is a disputable
and disputed contention; it cannot be confirmed without
a trial). The police could have ordered the demonstrators
to go back to the inner drive, could probably have
herded them back there, and having done so herded them
(along with lesser crowds at other side streets) the rest of
the way back to Federal Plaza. What they could not
lawfully do, in circumstances that were not threatening
to the safety of the police or other people, was arrest
people who the police had no good reason to believe
knew they were violating a police order. Barham v. Ramsey,
434 F.3d 565, 573 (D.C. Cir. 2006); Papineau v. Parmley,
supra, 465 F.3d at 59-60; Fogarty v. Gallegos, 523 F.3d 1147,
1158-59 (10th Cir. 2008); cf. Gonzales v. City of Elgin, 578
F.3d 526, 537-38 (7th Cir. 2009).
The qualification “reason to believe” is essential. The
police need only probable cause to make an arrest that
complies with the Fourth Amendment. The defendants
14 Nos. 09-2768, 09-2843, 09-2901

argue that a reasonable police officer would think that
anyone found on Chicago Avenue after the return-or-
disperse order issued at Oak and Michigan was willfully
violating that order. But that would not be a reasonable
belief. As there was no permit, there was no prescribed
march route, and there was no mechanism (at least
no mechanism that was employed) for conveying a com-
mand to thousands of people stretched out on Oak
Street between the inner drive and Michigan Avenue.
How could the police at the intersection of Chicago and
Michigan even know that the crowd on Chicago con-
sisted of persons returning from Oak Street, rather than
persons who marching north on Lake Shore Drive had
turned left at Chicago rather than continuing on to Oak
or North?
The underlying problem is the basic idiocy of a permit
system that does not allow a permit for a march to be
granted if the date of the march can’t be fixed
in advance, but does allow the police to waive
the permit requirement just by not prohibiting the dem-
onstration. See generally Tabatha Abu El-Haj, “The Ne-
glected Right of Assembly,” 56 UCLA L. Rev. 543, 548-52
(2009); Vince Blasi, “Prior Restraints on Demonstra-
tions,” 68 Mich. L. Rev. 1481, 1524-27 and n. 170 (1970). The
defendants’ lawyer at oral argument was unable to
come up with a reason for such a rule. As a result not of
the rule itself but of the failure to plug the hole in it, the
police did not know what the route of the march would
be and, reacting ad hoc and perhaps in some panic, re-
sorted to mass arrests without justification. Or so at least
a trier of fact could find on the record compiled to date.
Nos. 09-2768, 09-2843, 09-2901 15

The district judge ruled that it was not clearly estab-
lished law on March 20, 2003, that police cannot upon
revocation of a permit arrest any demonstrator who does
not immediately cease demonstrating and leave the
scene. If this is right, then the judge’s ruling that the
police are protected by the doctrine of qualified
immunity from liability in damages to any demonstrator
or suspected demonstrator who was arrested is also
right. But the premise is wrong. The Supreme Court
had held decades earlier that police must give notice of
revocation of permission to demonstrate before they can
begin arresting demonstrators. Cox v. Louisiana, supra, 379
U.S. at 571-73; see also Buck v. City of Albuquerque, 549
F.3d 1269, 1283-84 (10th Cir. 2008); Dellums v. Powell, 566
F.2d 167, 182-83 (D.C. Cir. 1977).
No precedent should be necessary, moreover, to
establish that the Fourth Amendment does not permit
the police to say to a person go ahead and march and
then, five minutes later, having revoked the permission
for the march without notice to anyone, arrest the person
for having marched without police permission. This
would be “an indefensible sort of entrapment by the
State—convicting a citizen for exercising a privilege
which the State had clearly told him was available to
him.” Cox v. Louisiana, supra, 379 U.S. at 571, quoting
Raley v. Ohio, 360 U.S. 423, 426 (1959). So this is one of
those cases in which a defense of immunity would fail
even in the absence of a precedent that had established
the illegality of the defendants’ conduct. United States v.
Lanier, 520 U.S. 259, 269-70 (1997); Northen v. City of Chicago,
126 F.3d 1024, 1028 (7th Cir. 1997). The absence of
16 Nos. 09-2768, 09-2843, 09-2901

a reported case with similar facts may demonstrate
nothing more than widespread compliance with well-
recognized constitutional principles. Eberhardt v. O’Malley,
17 F.3d 1023, 1028 (7th Cir. 1994); see also K.H. ex rel.
Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990).
The district court dismissed the City of Chicago as a
defendant on the ground that it did not participate in
the unlawful arrests. For reasons based on what
scholars agree are historical misreadings (which are not
uncommon when judges play historian), see, e.g., David
Jacks Achtenberg, “Taking History Seriously: Municipal
Liability Under 42 U.S.C. § 1983 and the Debate Over
Respondeat Superior,” 73 Fordham L. Rev. 2183, 2204-12
(2005); Jack M. Beermann, “Municipal Responsibility
for Constitutional Torts,” 48 DePaul L. Rev. 627, 629-35
(1999); Larry Kramer & Alan O. Sykes, “Municipal
Liability Under § 1983: A Legal and Economic Analysis,”
1987 Sup. Ct. Rev. 249, 257-61; Peter H. Schuck, “Municipal
Liability Under Section 1983: Some Lessons From Tort
Law and Organization Theory,” 77 Geo. L.J. 1753, 1755 n. 13
(1989); see also Board of County Commissioners v. Brown,
520 U.S. 397, 431-33 (1997) (dissenting opinion), the Su-
preme Court has held that municipalities are not
liable for the torts of their employees under the strict-
liability doctrine of respondeat superior, as private em-
ployers are. Monell v. Dep’t of Social Services, 436 U.S. 658,
691 (1978). A person who wants to impose liability on
a municipality for a constitutional tort must show that
the tort was committed (that is, authorized or directed)
at the policymaking level of government—by the city
council, for example, rather than by the police officer
Nos. 09-2768, 09-2843, 09-2901 17

who made an illegal arrest. Board of County Commissioners
v. Brown, supra, 520 U.S. at 402-04; Jett v. Dallas Independent
School District, 491 U.S. 701, 736-38 (1989). “Liability for
unauthorized acts is personal; to hold the municipality
liable, Monell tells us, the agent’s action must implement
rather than frustrate the government’s policy.” Auriemma
v. Rice, 957 F.2d 397, 400 (7th Cir. 1992).
The City makes the extravagant claim that the only
officials whose tortious conduct can ever impose liability
on it are the members of the City Council acting through
their ordinances. The City denies that the Council has
delegated authority to make policy to any official of the
City’s government. Not even acts of the Mayor are acts
of the City, it contends; they are merely acts of an
errant employee. However that may be, the only rule
governing policies and procedures regarding mass
arrests is Chicago Police Department General Order 02-
11 (Nov. 1, 2002), issued in the name of the City’s Superin-
tendent of Police pursuant to a provision of the Chi-
cago Municipal Code stating that “the superintendent
shall be responsible for the general management and
control of the police department and shall have full and
complete authority to administer the department in a
manner consistent with the ordinances of the city, the
laws of the state, and the rules and regulations of the
police board.” § 2-84-040. The City Council can enact
ordinances that constrain the Superintendent’s authority
to make mass arrests in demonstration situations, but
it hasn’t done so, and thus it has allowed him to be
sole policymaker in relation to the events at issue in
this case. He alone makes policy for demonstrations that
18 Nos. 09-2768, 09-2843, 09-2901

get out of hand. His possession of this policymaking
authority is consistent with Illinois state law as well as
with the City’s ordinances. Fabiano v. City of Palos Hills,
784 N.E.2d 258, 278 (Ill. App. 2002).
We said in Valentino v. Village of South Chicago Heights,
575 F.3d 664, 676 (7th Cir. 2009), that “helpful in deter-
mining whether an official is a final decisionmaker is an
inquiry into: (1) whether the official is constrained by
policies of other officials or legislative bodies; (2) whether
the official’s decision on the issue in question is subject
to meaningful review; and (3) ‘whether the policy
decision purportedly made by the official is within the
realm of the official’s grant of authority.’ Randle v. City
of Aurora, 69 F.3d 441, 448 (10th Cir. 1995).” The answers
in this case are no, no, and yes. Or, as we said in
Gernetzke v. Kenosha Unified School District No. 1, 274 F.3d
464, 468-69 (7th Cir. 2001)—but it could have been said
with this case in mind—“it doesn’t matter what form the
action of the responsible authority that injures the
plaintiff takes. It might be an ordinance, a regulation, an
executive policy, or an executive act (such as firing the
plaintiff). The question is whether the promulgator, or
the actor, as the case may be—in other words, the
decisionmaker—was at the apex of authority for the
action in question” (emphasis in original).
The qualification “for the action in question” is vital. We
don’t know the full scope of the police superintendent’s
authority. But one can be an official policymaker in one
domain but not in another. McMillian v. Monroe County,
520 U.S. 781, 785 (1997) (“our cases on the liability of local
Nos. 09-2768, 09-2843, 09-2901 19

governments under § 1983 instruct us to ask whether
governmental officials are final policymakers for the
local government in a particular area, or on a particular
issue”); Valentino v. Village of South Chicago Heights, supra,
575 F.3d at 677-78; Kujawski v. Board of Commissioners,
183 F.3d 734, 738 (7th Cir. 1999). All that matters in this
case is that Chicago’s police superintendent has sole
responsibility to make policy regarding control of demon-
strations. He was in his headquarters throughout the
March 20, 2003, demonstration, not only monitoring it
but also approving the decisions of his subordinates,
specifically their decisions to shield Michigan Avenue
from the marchers and to make the mass arrests of the
people trapped on Chicago Avenue. The superintendent
was the City, so far as the demonstration and arrests were
concerned. (For similar cases, see, besides Valentino, Jett
v. Dallas Independent School District, supra, 491 U.S.
at 737; Kujawski v. Board of Commissioners, supra, 183 F.3d
739-40; Eversole v. Steele, 59 F.3d 710, 716 (7th Cir. 1995);
Jeffes v. Barnes, 208 F.3d 49, 59-61 (2d Cir. 2000).)
The City argues, on the authority of our decision in
Auriemma v. Rice, supra, that the police superintendent
doesn’t have authority to make policy for dealing with
demonstrations and mass arrests because he is required
to act in conformity with the ordinances enacted by the
City Council. But no ordinance constrained him. In
Auriemma, the City Council had by ordinance limited
the police superintendent’s discretion with respect to
employment decisions. There was no similar limit in
this case. There is, it is true, an ordinance in the pic-
ture—the ordinance quoted at the beginning of this
20 Nos. 09-2768, 09-2843, 09-2901

opinion that forbids the grant of a permit that does not
specify a date and route for the permitted activity. The
ordinance complicates the task of the police of keeping
demonstrations from turning into riots. But there is a
difference between a law that complicates an ultimate
policymaker’s authority and a law that removes or
curtails that authority. The City Council determines the
police department’s budget. The smaller the budget, the
fewer police officers there are, and perhaps the less well
trained they are, and both budgetary consequences will
make it harder to control demonstrations. But they
do not affect the police superintendent’s nonfiscal author-
ity. Authority and the tools for exercising it are distinct.
A city couldn’t without violating freedom of speech
and assembly flatly ban groups of people from spontane-
ously gathering on sidewalks or in public parks in
response to a dramatic news event. But it can require a
permit for a planned event on public property, especially
a large-scale demonstration or march, provided it
does not use the requirement to stifle demonstrations
by imposing unreasonable conditions, such as having to
apply for a permit 45 days in advance, a requirement
that we invalidated in Church of American Knights of Ku
Klux Klan v. City of Gary, 334 F.3d 676, 682-83 (7th Cir.
2003); see also Douglas v. Brownell, 88 F.3d 1511, 1523-24
(8th Cir. 1996); NAACP v. City of Richmond, 743 F.2d
1346, 1355-57 (9th Cir. 1984); Shuttlesworth v. City of Bir-
mingham, 394 U.S. 147, 162-63 (1969) (concurring opinion).
“[S]imple delay may permanently vitiate the expres-
sive content of a demonstration. A spontaneous parade
expressing a viewpoint on a topical issue will almost
Nos. 09-2768, 09-2843, 09-2901 21

inevitably attract more participants and more press
attention, and generate more emotion, than the ‘same’
parade 20 days later. The later parade can never be
the same. Where spontaneity is part of the message,
dissemination delayed is dissemination denied.” NAACP
v. City of Richmond, supra, 743 F.2d at 1356.
We said in Church of American Knights that “the length
of the required period of advance notice is critical to its
reasonableness; and given that the time required to con-
sider an application will generally be shorter the
smaller the planned demonstration and that political
demonstrations are often engendered by topical events, a
very long period of advance notice with no exception
for spontaneous demonstrations unreasonably limits
free speech. A group that had wanted to hold a rally to
protest the U.S. invasion of Iraq and had applied for a
permit from the City of Gary on the first day of the war
would have found that the [invasion] had ended before
the demonstration was authorized. The City does have
an unwritten policy of waiving the permit requirement
for a ‘spontaneous’ demonstration, but only if the dem-
onstration is ‘not planned.’ The scope of the dispensa-
tion is thus opaque. Courts more skeptical than ours
about the validity of advance-notice requirements point
out that requiring even a short period of advance notice
prevents spontaneous demonstrations.” 334 F.3d at 682
(citations omitted).
The Chicago police likewise have an unwritten policy
of waiving the permit requirement for a spontaneous
demonstration, including (so far as we can determine) a
22 Nos. 09-2768, 09-2843, 09-2901

“planned spontaneous” demonstration (oxymoron that
it is), such as the one in the present case. There is no
contention that the police superintendent lacked
authority to waive the permit requirement for such a
demonstration. Anyway it’s not the waiver that the
plaintiffs are complaining about. It did them no harm.
They are complaining about the decision to arrest them
en masse. That was the decision of the superintendent,
who is the policymaker regarding mass arrests. All the
culpable conduct took place when the plaintiffs were
present on Chicago Avenue, reasonably believing that
they had permission to be there. The decision to waive
the permit requirement did not subject the City to
liability—if anything, it shielded the City from liability
for curtailing freedom of speech and assembly.
Nothing in either the First Amendment or local law
would have forbidden the Chicago police to require of
the organizers, as a condition of waiving the permit
requirement in order to allow a demonstration on a date
as yet uncertain, a clear idea of the intended march
route, to hold them to it, and to prepare in advance rea-
sonable measures for preventing the demonstration
from spilling over the boundaries of the authorized
march. The indifference of the superintendent and his
subordinates to the danger to public safety and conve-
nience of a mass antiwar demonstration cannot be at-
tributed to the ordinance, defective as it undoubtedly is.
The grant of summary judgment to the defendants
was erroneous and must therefore be reversed. What
next? The class in the class action suit (Vodak v. City of
Nos. 09-2768, 09-2843, 09-2901 23

Chicago) was certified and the certification is not chal-
lenged. This means that the issues common to the entire
class will be resolved as a package, and issues common
to the three subclasses as further packages. The issues
common to the entire class are whether the police
waived the permit requirement, whether they tried to
notify the demonstrators (at Michigan and Oak, and
Michigan and Chicago) that permission to demonstrate
had been revoked and the demonstrators must
disperse, and whether the notice if given was sufficient
to justify the arrest of all those persons in the Chicago
Avenue crowd who were arrested. If those issues are
resolved by the trier of fact in favor of the class, any
issues common to each of the three subclasses will be
resolved by the same trier of fact. After all common
issues have been resolved, if they have been resolved
in favor of the class members (or some of them),
separate hearings will doubtless be necessary to deter-
mine the damages to which each class member is entitled.
The sixteen plaintiffs in Beal v. City of Chicago are
other persons arrested on Chicago Avenue, some of
whom claim not to have been demonstrators but instead
to have been complete innocents caught in the cross-fire,
as it were. Nothing is more common than for mass
arrests in riots or demonstrations to net a sizable per-
centage of innocents. Persons knowingly involved in a
disturbance are quicker to size up the situation and flee
when the police close in on them; innocents often freeze
in puzzlement, becoming sitting ducks easily swept up
in the police charge. It would make sense to fold the
Beal plaintiffs into the class action as a fourth subclass,
24 Nos. 09-2768, 09-2843, 09-2901

since their claims overlap those of the class members;
we hope that will be done on remand.
It would also streamline these suits if the plaintiffs
would confine their claims to the Fourth Amendment,
forgoing their largely duplicative appeals to the First
Amendment, civil conspiracy, malicious prosecution,
assault, battery, the Illinois constitution, false arrest, false
imprisonment, deprivation of property, and deliberate
indifference to medical needs (the last two being
charged under the due process clause of the Fourteenth
Amendment). All the relief they seek and are con-
ceivably entitled to is available to them under the Fourth
Amendment; the First Amendment plays only a back-
ground role and the other grounds are redundant.
The judgments are reversed and the cases remanded
to the district court for further proceedings consistent
with this opinion. We note that the case is already more
than seven years old and we urge its expeditious resolu-
tion. The further conduct of this litigation requires, and
we are confident will receive, a firm hand on the tiller
by the able district judge.
REVERSED AND REMANDED.

3-17-11