In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2180
R ONALD D. R EHER,
Plaintiff-Appellant,
v.
F RANK V IVO , et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-cv-02801—Suzanne B. Conlon, Judge.
A RGUED M ARCH 29, 2011—D ECIDED S EPTEMBER 7, 2011
Before R OVNER, W ILLIAMS, and H AMILTON, Circuit Judges.
W ILLIAMS, Circuit Judge. An angry crowd accused
Ronald D. Reher of videotaping their children in a public
park. Police officers Marilyn Gabinski and Frank Vivo
arrested Reher for disorderly conduct. The charges were
eventually dropped and Reher sued the officers,
claiming they arrested him without probable cause in
violation of his Fourth Amendment rights. The district
court entered summary judgment in favor of the offi-
cers. Reher now appeals.
2 No. 10-2180
We find that Gabinski had probable cause to arrest
Reher because she was aware of suspicious circum-
stances surrounding Reher’s conduct and his presence
at the park that would justify an arrest for disorderly
conduct. Whether Vivo had probable cause is a closer
question because all Vivo knew at the time of the arrest
was that the crowd was upset and that Reher had been
accused of frequenting the park to film and look at the
children. While we find that the information possessed
by Vivo was too vague to give rise to probable cause
to arrest Reher for disorderly conduct, we conclude
that Vivo is entitled to qualified immunity because an
officer in his position could have reasonably but mistak-
enly believed that there was probable cause. We affirm.
I. BACKGROUND
Because we are reviewing the district court’s entry of
summary judgment against Reher, we recount the facts
in the light most favorable to him. See Grieveson v.
Anderson, 538 F.3d 763, 767 (7th Cir. 2008). On May 7, 2007,
after a morning of fishing, hiking, and videotaping wild-
life, Ronald Reher rode his bicycle to Edson Park in
Lombard, Illinois. Edson Park is a small neighborhood
park with a playground located behind two apartment
buildings, one of them located at 1155 South Finley. In
addition to his bicycle, Reher carried with him a bait
bucket, a fishing pole, a video camera, a pair of binoculars,
and a folding knife.
When Reher arrived at the park, there were about 15
to 20 people using it, including seven or eight children.
No. 10-2180 3
Reher sat on a bench and propped up his bicycle nearby. A
few of the adults, including Reher’s estranged seven-
teen-year-old daughter Ashley, started giving Reher
strange looks. Reher claims that he did not recognize his
daughter because he had not seen her in eight years.
After sitting in the park for about 30 minutes, Reher
was approached by Ezeldra Outlaw. Outlaw is Ashley’s
mother. Outlaw and Reher were in a romantic relation-
ship in 1990 and had lived together for a short time at
1155 South Finley. The relationship ended soon after
Ashley was born. By May 2007, it had been four years
since Reher had last seen Outlaw.
As Reher saw Outlaw approach, he claims that he
pulled out his video camera and turned it on to film the
encounter. Reher later stated in his deposition that he
did so because, “I was pretty much just going to cover
myself to make sure . . . if she said I threatened her,
I have to have proof that I didn’t.”
According to Reher, Outlaw started yelling at him that
he was “not supposed to be there.” She then snatched
the camera from his hands, threw it on the ground
several times (breaking it), and ran off across the
parking lot.
At this point, a “bunch of little kids” led by two
women, later identified as Crichandra Llorens and Cathy
Spitcock, started wheeling away Reher’s bicycle. The
neighbors had called the police and were allegedly trying
to prevent Reher from leaving before the police arrived.
Reher went over and said, “Let go of it. Don’t steal my
bike,” to which the women responded by accusing
4 No. 10-2180
Reher of “filming the kids here.” Reher denied that he
had been videotaping the children and said that he had
just been minding his own business. He then tried to
wrest the bike away from the crowd, but eventually let
it go out of concern for the children’s fingers.
Within a few minutes, five Lombard police offi-
cers—Officers Terry Evoy, Joseph Statkus, Paula
Krupiczowicz, and defendants Frank Vivo and Marilyn
Gabinski—arrived at the scene. Officer Vivo noticed that
there was a group of 20 to 25 visibly upset residents
near Officer Evoy, who was in the north end of the park.
Some of them were screaming that a suspect was video-
taping their children. The officers heard angry comments
about “kids being photographed” and sex offenders.
Llorens, also visibly upset and shaken, told the officers
that she had seen Reher sitting in the park a couple of
times before and that he was “probably, like, a perve
or something out there looking at the children.” Llorens
at the time did not realize that Reher was Ashley’s father.
According to Reher’s deposition testimony, Sergeant
Gabinski spoke to Outlaw, who claimed that Reher had
been videotaping their daughter Ashley and the other
children. Vivo, Gabinski, and another officer then ques-
tioned Reher. They asked him what he was doing in the
park. Reher told the officers that he was an amateur
videographer and liked to tape nature scenes. He com-
plained that the neighbors had taken his bike and
broken his camera.
Gabinski, however, was not buying Reher’s story. She
remembered previous allegations Outlaw had lodged
No. 10-2180 5
against Reher, including that he kept her under surveil-
lance. Gabinski knew that there was a history of domestic
disputes and violations of orders of protection between
Reher and Outlaw, and that Outlaw in the past had
accused Reher of harassing her by telephone, throwing
a rock through her window, and distributing nude photo-
graphs of her in the courtyard of her building. With-
out mincing words, Gabinski told Reher that she
thought his story was “bullshit.”
Upset at Gabinski’s tone, Reher claims that he replied,
“I don’t want to talk to that bitch,” referring to Gabinski.
Vivo, who was present and heard the exchange be-
tween Reher and Gabinski, handcuffed Reher and
placed him in a squad car. Reher claims that the moment
he made the statement about Gabinski, Vivo looked at
him and said, “That’s it. You’re under arrest. You can’t
swear at the boss and get away with it.” (Vivo claimed
in his deposition that Reher called Gabinski a “fucking
bitch,” raised his hand, and took a step toward her.) On
the way to the station, Vivo told Reher that he was
under arrest for disorderly conduct. The case against
Reher was later dismissed.
Reher subsequently brought a § 1983 lawsuit against
Vivo and Gabinski, claiming that he was arrested with-
out probable cause. The officers moved for summary
judgment. The district court granted the motion, finding
that the officers had probable cause to arrest Reher, and
that even if they did not, they were entitled to qualified
immunity. Reher appeals.
6 No. 10-2180
II. ANALYSIS
An officer’s right to qualified immunity turns on:
(1) whether the facts presented, taken in the light most
favorable to the plaintiff, describe a violation of a con-
stitutional right; and (2) whether the federal right at
issue was clearly established at the time that the alleged
violation occurred. Jones v. Clark, 630 F.3d 677, 682 (7th
Cir. 2011). We may consider these questions in any
order. See Pearson v. Callahan, 555 U.S. 223, 241 (2009). The
relevant inquiry in determining whether a right is
clearly established is whether it would have been clear
to a reasonable officer that his conduct was unlawful in
the situation the officer confronted. Id. at 231-32. Where
the law is open to interpretation, qualified immunity
protects police officers who reasonably interpret an
unclear statute. See Northen v. City of Chicago, 126 F.3d
1024, 1027-28 (7th Cir. 1997).
Under Illinois law, “[a] person commits disorderly
conduct when he knowingly . . . [d]oes any act in such
unreasonable manner as to alarm or disturb another to
provoke a breach of the peace.” 720 ILCS 5/26-1(a)(1). To
commit the offense of disorderly conduct, a person must
engage in conduct that: (1) is unreasonable; (2) alarms
or disturbs another; and (3) threatens to provoke or
provokes a breach of the peace. Id.; see also Biddle v. Martin,
992 F.2d 673, 677 (7th Cir. 1993). Reher concedes that
the police reasonably believed that the neighbors in the
park were disturbed and that the police had sufficient
information to indicate that a breach of the peace was
threatened. Reher contends, however, that the police
No. 10-2180 7
lacked probable cause to arrest him because his conduct
was not unreasonable.
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 informa-
tion are sufficient to warrant a prudent person in
believing that the suspect has committed an offense.
United States v. Mounts, 248 F.3d 712, 715 (7th Cir. 2001).
The test is a purely objective one, meaning that an
officer’s subjective motivations have no bearing on the
inquiry. Payne v. Pauley, 337 F.3d 767, 776 (7th Cir. 2003);
Harrell v. Cook, 169 F.3d 428, 431 (7th Cir. 1999) (noting
that “qualified immunity depends on the objective
legal reasonableness of the defendants’ actions, not on
their subjective motivations”). In considering whether
the officers here had probable cause, we draw all reason-
able inferences and view the facts in the light most favor-
able to Reher. See Grieveson, 538 F.3d at 767.
Videotaping other people in public, while potentially
intrusive, is not illegal in Illinois. See Jones v. Kaminski, 630
F.3d 677, 683 (7th Cir. 2011) (although neighborhood
residents were concerned that plaintiff was taking
pictures of their houses, “it is not a crime to take pictures
on the street”); Graham v. Village of Niles, No. 02 C 4405,
2003 WL 22995159, at *6 (N.D. Ill. 2003) (videotaping
in public in and of itself may not give police probable
cause to arrest a person for disorderly conduct although
videotaping accompanied by other suspicious conduct
may) (citing Illinois cases); cf. People v. Raibley, 788 N.E.2d
1221, 1229 (Ill. App. Ct. 2003) (“A person’s possession of
8 No. 10-2180
nonpornographic images of children does not create
probable cause to seize that person’s [videotapes] in the
belief that it might contain child pornography.”); 720 ILCS
5/26-4 (making it unlawful to film a person’s undergar-
ments through their clothes and to engage in other
similar conduct without that person’s consent).
But videotaping other people, when accompanied by
other suspicious circumstances, may constitute disorderly
conduct. Graham, 2003 WL 22995159, at *6 (citing Illinois
cases and finding that probable cause existed when
suspect surreptitiously videotaped women in parking lot
and videotape contained images zooming in on women’s
breasts).
The difficulty, and the reason the officers in this case
are entitled to qualified immunity, is that, given the lack
of case law on point, a reasonable officer would not
necessarily have known whether Reher’s alleged video-
taping of the children was suspicious enough to cross
the line between “mere videotaping” and videotaping
plus whatever else is necessary to give rise to dis-
orderly conduct in Illinois. Certain things, however,
should have been clear to the officers. It should have
been clear that refusing to talk to and calling Gabinski
a pejorative name was not enough to arrest Reher for
disorderly conduct. See Payne, 337 F.3d at 777 (“Illinois
courts have time and again held that arguing with a
police officer, even if done loudly, or with profane or
offensive language, will not in and of itself constitute
disorderly conduct.”). It also should have been clear that
the neighbors’ agitation, alone, did not give the officers
No. 10-2180 9
probable cause to arrest—especially since Reher claims to
have told the officers that he remained calm when the
neighbors accosted him and took his bicycle. 720 ILCS
5/26-1(a)(1) (requiring unreasonable conduct to commit
disorderly conduct); cf. Payne, 337 F.3d at 777 (“Arguing
with a police officer does not evolve into disorderly
conduct merely because a crowd gathers to watch the
argument.”).
But here there was more. Gabinski, at least, was aware
that there was a long history of domestic disputes between
Reher and Outlaw. While the last such dispute had oc-
curred several years before, the incidents Gabinski was
aware of were fairly serious, and included distributing
nude pictures of Outlaw in the apartment complex,
throwing a rock through Outlaw’s window, and violating
orders of protection. At the scene, Outlaw accused
Reher of harassing her and her daughter, and at least one
neighbor told the police that she had seen Reher in the
park before.
An arrest for disorderly conduct is justified when the
defendant directly harasses or threatens other people.
See In re D.W., 502 N.E.2d 419, 420-21 (Ill. App. Ct. 1986)
(defendant’s threat to “kick [the complainant’s] ass”
supported arrest for disorderly conduct). And Illinois
courts have found that behavior similar to stalking can
form the basis of a disorderly conduct charge. See
People v. Hinton, 360 N.E.2d 451, 453 (Ill. App. Ct. 1977)
(probable cause existed to arrest suspect for disorderly
conduct when suspect was peering inside windows of
apartment complex); see also People v. Rizzo, 842 N.E.2d
10 No. 10-2180
727, 732 (Ill. App. Ct. 2005) (sufficient evidence existed
to convict defendant discovered surreptitiously looking
into woman’s house under “window peeping” provision
of disorderly conduct statute, 720 ILCS 5/26-1(a)(5)).
We find that, in light of Outlaw’s accusations at the
scene, it would have been reasonable for an officer with
Gabinski’s knowledge of Reher and Outlaw’s turbulent
history to conclude that Reher was harassing Outlaw
and Ashley. Gabinski therefore had probable cause to
arrest Reher for disorderly conduct. Even assuming
otherwise, Gabinski would be entitled to qualified im-
munity. Bevier v. Hucal, 806 F.2d 123, 126 (7th Cir. 1986)
(“Police officers are allowed to make [reasonable mis-
takes.]”).
Whether Vivo is entitled to immunity is a closer ques-
tion. He was not aware of Outlaw’s allegations
against Reher. “Under the collective knowledge doc-
trine, the knowledge of one police officer is imputed
to other officers when they are in communication re-
garding a suspect.” United States v. Ellis, 499 F.3d 686, 690-
92 (7th Cir. 2007). But the district court found that
the doctrine did not apply in this case because the extent
of the communication between the officers was not clear,
and we will not disturb that conclusion. See id. (police
officer at side door did not have probable cause based
on conversation between officers and suspect at front
door because there was no evidence of communication
between the officers at the scene and no evidence that
the officer near the side door heard the conversation
between suspect and officers at front door).
No. 10-2180 11
However, Vivo was aware that one of the women had
accused Reher of videotaping the children. The same
woman also told the officers that she was suspicious
because she had seen Reher in the park several times
before watching the children. Vivo would also have
heard that Llorens, another neighbor, was worried that
Reher was a sex offender or a peeping Tom. And while
Reher counters that he did not start filming until
Outlaw came up to him, police officers are, with some
qualifications, entitled to rely on allegations by credible
eyewitnesses when these supply probable cause. See
Askew v. City of Chicago, 440 F.3d 894, 895 (7th Cir. 2006).
In this case, the neighbors’ allegations were probably
a bit too vague to support an arrest for disorderly con-
duct. Although there are no closely analogous cases,
Reher’s conduct does not strike us as being quite as
invasive as the conduct that Illinois courts have
previously found to support an arrest for disorderly
conduct. The neighbors did not allege, for example,
that Reher was getting close to the children, or that he
was attempting to videotape their private parts. Cf.
Hinton, 360 N.E.2d at 453; Graham, 2003 WL 22995159, at
*6. However, the protection of qualified immunity ap-
plies to reasonable mistakes “based on mixed questions
of law and fact.” Pearson, 555 U.S. at 231. And an officer
faced with the circumstances present here could have
reasonably, but mistakenly, believed that Reher was
in fact harassing the children and alarming their parents,
giving rise to probable cause to arrest. See People v.
Davis, 413 N.E.2d 413, 415 (Ill. 1980) (disorderly conduct
is “intended to guard against an invasion of the right of
12 No. 10-2180
others not to be molested or harassed, either mentally
or physically, without justification”); People v. Blair, 748
N.E.2d 318, 322 (Ill. App. Ct. 2001) (noting that police
arrested defendant for disorderly conduct because he
was videotaping children in a public zoo but not dis-
cussing whether the defendant’s arrest was supported
by probable cause); People v. Allen, 680 N.E.2d 795, 800
(Ill. App. Ct. 1997) (lewd remarks and conduct may
constitute disorderly conduct when directed at chil-
dren); see also Humphrey v. Staszak, 148 F.3d 719, 725
(7th Cir. 1998) (officers may not have had probable cause
to arrest but were entitled to qualified immunity
because it was unclear under then-current Illinois law
what circumstances, in addition to arguing with a
police officer, justified an arrest for disorderly conduct).
Therefore, Vivo is entitled to qualified immunity.
III. CONCLUSION
The judgment of the district court is A FFIRMED.
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