Vergara, et al v. City of Waukegan, et al

Filing 252

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 12/22/2008:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MIGUEL VERGARA, et al., Plaintiffs, v. CITY OF WAUKEGAN, et al., Defendants. ) ) ) ) ) ) ) ) )

No.

04 C 6586

MEMORANDUM OPINION AND ORDER Plaintiffs, opponents of the towing ordinance adopted by the City of Waukegan ("Waukegan"), have brought this action against Waukegan and two of its officials: Mayor Richard Hyde ("Hyde") and Police Chief William Biang ("Biang").1 Plaintiffs assert

that defendants violated their rights under the First Amendment2 and the Fourteenth Amendment's Equal Protection Clause by denying certain plaintiffs entry to Waukegan's monthly city council meeting, by taking action against certain plaintiffs as retaliation for their protest activities and by applying Waukegan's assembly ordinance against certain plaintiffs in an unconstitutional manner. Plaintiffs have now brought a motion for partial summary

Although plaintiffs had also named Waukegan City Clerk Wayne Motley as a defendant, they later dismissed all of their claims against him. This opinion follows the near-universal usage of speaking of the First Amendment rather than the Fourteenth Amendment, even though it is the latter that applies to state actors and has been read to embody various Bill of Rights guaranties.
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judgment under Fed. R. Civ. P.("Rule") 56, and defendants have cross-moved for summary judgment on all counts.3 For the reasons

stated below, each side's motion is granted in part and denied in part. Summary Judgment Standard Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts

consider evidentiary records in the light most favorable to nonmovants and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But to avoid summary judgment a nonmovant "must produce

more than a scintilla of evidence to support his position" that a genuine issue of material fact exists (Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001)) and "must set forth specific facts that demonstrate a genuine issue of triable fact" (id.).

This opinion has framed the parties' contentions in the same fashion that counsel have employed--as seeking "summary judgment." But that is simply wrong--despite its common usage by judges as well as litigants--when all that is at issue is the viability or nonviability of a theory of recovery. Success or failure in that respect does not produce a judgment (or even a partial judgment) unless the result controls the disposition of the entire case, or perhaps a discrete "claim" in the federal sense (in that respect, see the too-little-understood teaching in NAACP v. Am. Family Mut. Ins. Co., 978 F.2d 287, 291-93 (7th Cir. 1992)). Hence the actual rulings in this opinion are framed in terms of their real-world impact. 2

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Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the nonmovant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). One more complexity is added where, as here, cross-motions for summary judgment are involved. Those same principles require

the adoption of a dual perspective that this Court has sometimes referred to as Janus-like: As to each motion the nonmovant's What follows,

version of any disputed facts must be credited.4 then, is a summary of the undisputed facts.5 Facts

In 2002 Waukegan amended its towing ordinance to authorize the police department to seize and impound vehicles and impose a $500 fine on persons driving without a valid driver's license or proof of insurance (P. Add. St. ¶84). Plaintiffs are nine

individuals who have opposed the towing ordinance (D. St. ¶¶11,

This District Court's LR 56.1 implements Rule 56 by requiring each party to submit evidentiary statements and responses to such statements to highlight which facts are disputed and which are agreed upon. This opinion identifies plaintiffs' and defendants' respective submissions as "P." and "D.," followed by appropriate designations: LR 56.1 statements as "St. ¶--," responsive statements as "Resp. St. ¶--," additional statements of fact as "Add. St. ¶--," exhibits as "Ex.--" and memoranda as "Mem.--," "Resp. Mem.--" and "Reply Mem.--." Although the parties submitted a combined total of 444 statements of supposedly material facts in support of their motions, many of those statements were in reality neither material nor undisputed. Hence the summary that follows reflects only a fraction of the assertions contained in the parties' submissions. 3
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13-14; P. St. ¶119; P. Add. St. ¶¶152, 156-57).6

Hyde has been

Waukegan's Mayor since 2002 and Biang has been its Police Chief since 2003 (P. St. ¶¶2-3; D. St. ¶¶1,3). At the time of the events at issue in this action, Waukegan's municipal code contained provisions (collectively the "Outdoor Assembly Ordinance") establishing procedures for applying for and receiving permits for certain outdoor events (P. St. ¶56).7 Under the Outdoor Assembly Ordinance a written

application for a required permit had to be made to the city clerk at least 20 days before the event for which the permit was requested (P. Ex. 4). Waukegan had the discretion to require the

organizer of covered events to pay a cash deposit in advance of an event as a condition of issuing a permit for the event (P. St. ¶58). Waukegan's police department was responsible for

conducting an investigation and making a report and recommendation to the city clerk in connection with events covered by the Outdoor Assembly Ordinance (P. St. ¶60). Plaintiffs' contentions here stem from several events related to their protest against the towing ordinance and to

Virginia Adan, Graciela Lara, Deborah Norman, Jose De Leon, Victor De Leon, Margaret Carrasco, Chris Blanks and Jose Zurita are Waukegan residents (P. St. ¶36). Guadalupe Lara is a resident of Gurnee, Illinois and works in Waukegan (P. St. ¶37). All plaintiffs other than the De Leons and the Laras are hereafter referred to only by their last names. Effective May 1, 2006 Waukegan repealed and replaced those provisions (D. Resp. St. ¶56). 4
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defendants' application of the Outdoor Assembly Ordinance. opinion turns to a description of those events. Belvidere Mall Rally On January 18, 2004 Carrasco organized an event at the

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Belvidere Mall in Waukegan to protest the towing ordinance (P. St. ¶13; D. St. ¶21). Zurita, Biang and Susana Figueroa

("Figueroa") attended the event (P. St. ¶¶12, 14, 16; D. St. ¶¶24-25). Figueroa is Waukegan's community liaison officer whose

responsibilities include informing and educating the community about city issues, regulations and ordinances, coordinating community meetings and working with churches and education institutions (D. St. ¶22). During the Belvidere Mall event Zurita had an encounter with Figueroa. Although many aspects of that encounter are in

dispute, the parties agree that Zurita criticized Figueroa by telling her that "she should do more to help her people" (P. St. ¶15; D. St. ¶26). Zurita was not arrested or charged with any

offense in connection with the encounter (P. St. ¶17). After the event Figueroa reported to Hyde that Zurita had been very angry, had "got in her face" and "was chastising her because she was a city employee and going along with city policies" (P. St. ¶18; D. St. ¶28). Figueroa also told Hyde that

she had been scared that Zurita was going to attack her physically (D. St. ¶28).

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January 20, 2004 City Council Meeting Waukegan's city council, comprising nine aldermen and the mayor, is Waukegan's legislative body and holds regular bimonthly meetings (P. St. ¶6). Those meetings are held in the

City Hall chambers and start at about 8 p.m., with various committee meetings beginning earlier at about 6:30 p.m. (P. Add. St. ¶76). Subject to space constraints, regular city council During

meetings are open to members of the public (P. St. ¶7).

the "audience time" portion of the meetings, any member of the public may address the city council for up to three minutes, expressing his or her opinion on a subject (P. St. ¶8; D. St. ¶158). As presiding officer and chair of the city council

meetings, Hyde is responsible for preserving order and decorum (P. St. ¶10). Two days after the Belvidere Mall event Zurita attended the January 20, 2004 regular city council meeting (P. St. ¶21). During the "audience time" portion of the meeting individuals addressed the council on various topics, including the towing ordinance, and Zurita approached the microphone to speak (P. St. ¶¶22-23). Before he could do so Hyde chastised him for his

earlier comments to Figueroa and told Zurita that he would not permit him to speak until he apologized to Figueroa (P. St. ¶24-

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25; D. St. ¶29).8 Waukegan Municipal Code ("Code") §2-64(f) provides that any member of the city council may appeal from a ruling of the

Although the parties vigorously contest the nature of and motivation for Hyde's reprimand of Zurita, here is Hyde's actual statement as recorded by videotape (P. St. ¶¶24-25; D. Resp. St. ¶¶24-25): All right. Now I want to make one thing clear here. And I was going to talk to this gentleman. At your meeting, and I want you to pay attention to this too, please. The City employees do what they are asked by the City ordinances. We have a community liaison officer. We don't have an Afro American. We got a Hispanic. She works for the City of Waukegan. Now Sunday she was severely confronted with language right in her face by a male. And now any man that does that to a woman is lower than a rat. So before I will hear any person of that speaking, you will come to see me after the council meeting, and you will go to that lady and you will apologize because you severely hurt her personality and her feelings. Now that was against a City employee who answers to the City and obeys the City rules and laws. So she - she , nobody else, she is our representative, our community liaison officer for the City of Waukegan. And whether you like it or not she does one tremendous job. She is always in meeting with Hispanic areas, community routes. Sometimes the Afro American people won't even go to see her because she is not Afro American. But she does a tremendous job for the City. And if that person does not apologize to her in person to her face, the next time that happens I will have that person arrested and booked on intimidation. And that is legal. That is very legal. I want to make that known right now because I don't think our employees should have to put up with anything from anybody because they are City employees. They are doing what they are told to do. And this Hispanic lady was confronted with a Hispanic man. And how any man could talk to a woman like that, I don't know. If he was talked to another man like that he'd be decked. Right there. So that's all I have to say about that. Okay. No. I'm not going to listen to you until you get up and you go to ­ I'm talking to you. Until you go to Susan Figueroa and you apologize to her. Thank you. Okay. Alderman's time. 7

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council chair, and the ruling will be overruled if a majority of council members present vote against it (P. St. ¶30). Any

decision by the mayor to prohibit someone from speaking during the "audience time" portion of meetings is a "ruling" within the meaning of that provision (P. St. ¶31). Code §2-65 establishes a

particularized procedure for restricting a person from addressing the council (P. St. ¶32). Under its terms, if a council member

objects to a person speaking at the meeting, that person will not be permitted to speak until two-thirds of all council members present at the meeting consent (id.).9 None of the aldermen present at the meeting voiced an objection to Hyde's decision or took any steps to overrule it, and Zurita did not request a vote from the aldermen (P. St. ¶¶3435; D. St. ¶32). Zurita did not address the council during the

January 20, 2004 meeting and has not spoken at any city council meeting since (P. Add. St. ¶259). Application of Outdoor Assembly Ordinance to Carrasco On June 28, 2004 Carrasco and others participated in a march to protest Waukegan's towing ordinance (P. Add. St. ¶119; D. St. ¶34). Sometime after that protest Biang learned that Carrasco

Although the parties suggest that both Code provisions apply to Hyde's decision to prohibit Zurita from speaking during "audience time," the two sections appear to establish inconsistent procedures. Regardless of which applies, though, the material fact is that city council members retain veto power over such decisions by the mayor as council chair. 8

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would be conducting a rally to coincide with the upcoming July 6 city council meeting (P. Add. St. ¶120; D. St. ¶38).10 On July 1

a police officer went to Carrasco's home to inform her that Biang wished to speak with her that day (D. St. ¶41; P. St. ¶62). Carrasco went to the police station that afternoon, where she met with Biang, three other police officers and city attorney Gretchen Neddenriep ("Neddenriep")(P. St. ¶63; D. St. ¶43). Exactly what was discussed at the meeting is in dispute. According to Biang, Carrasco said there was going to be a large protest at the upcoming July 6 meeting and estimated that close to 1,000 people would be in attendance (D. Ex. 3). Carrasco, on

the other hand, maintains that she denied any involvement in a planned protest event for July 6 and said that she was aware only that residents who had attended the June 28 march were invited to attend the city council meeting (P. Ex. 61). Nevertheless the

parties agree that Carrasco said that she and other residents would be attending the meeting and that Biang agreed to reserve seats for Carrasco and her group (P. Add. St. ¶¶130-31; D. St. ¶52). It was Biang's and Neddenriep's belief that Carrasco would

be attending the July 6 meeting to address the city council and protest (P. Add. St. ¶132).

Plaintiffs dispute that Carrasco was in fact organizing a rally at the July 6 city council meeting, but they acknowledge that Biang has testified he was informed of Carrasco's alleged plans (P. Resp. St. ¶38). 9

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During the July 1 meeting Neddenriep gave Carrasco a copy of the Outdoor Assembly Ordinance and asked her to comply with its provisions (P. Add. St. ¶127). Carrasco agreed to do so On July 2 Neddenriep sent

regarding future events (D. St. ¶55).

Carrasco a letter purporting to confirm an agreement reached the day before as to the "proposed assembly" on July 6 (P. Ex. 39). That letter stated that Waukegan agreed to waive the Outdoor Assembly Ordinance's 20-day-in-advance application requirement to seek a permit and told Carrasco that a cash deposit amount of $1500 and a written commitment for insurance would be required (id.). That $1,500 deposit amount was based on Biang's

determination, in consultation with other police officers, that an additional ten officers would be needed for the July 6 event (P. St. ¶72).11 One of Biang's considerations for making that

recommendation was the fact that the event was a protest (P. St. ¶¶73-74). Neddenriep's letter also notified Carrasco that

Waukegan would not waive the 20-day advance notice requirement in the future (P. Ex. 39). On July 6 Carrasco sent a letter to Biang and Neddenriep to confirm that "there will be NO EVENT taking place on Tuesday, July 6, 2004" (P. Add. St. ¶137; D. St. ¶57). went on to state (P. Ex. 80): Carrasco's letter

Neddenriep then calculated the cash deposit amount in terms of the ten additional officers serving for three hours at $50 per hour (P. St. ¶75). 10

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Based on several past meetings where attendance at the City Council meeting has overflowed, I am unaware of any City ordinance or law requiring attendees to pay for police wages, to place a cash deposit, nor to provide liability insurance in order to attend a City Council meeting. July 6, 2004 City Council Meeting Waukegan's Code provides that the Chief of Police or a uniformed officer must be present at every city council meeting to preserve order (P. St. ¶47). Starting in May 2004, members of

the public seeking admission to meetings have been required to pass through a metal detector, operated by a uniformed police officer, before being permitted entry (P. St. ¶49). Waukegan has

no written policy, rule, regulation or ordinance governing the admission of members of the public to city council meetings (P. St. ¶¶39-46; D. St. ¶160). Biang and Neddenriep expected a large number of people who were opposed to Waukegan's towing ordinance to come to the July 6 regular city council meeting, intending to protest outside City Hall (P. St. ¶¶52-53). On the night of July 6 between 75 and

400 people assembled outside City Hall during the council meeting (D. St. ¶73). At least seven police officers were present in or

around City Hall, with an additional 15 to 25 members of Waukegan's rapid response police force staged at a nearby area for support (P. Add. St. ¶¶143-44). At some point before the

start of the meeting a fire department official determined that the City Hall attendance limit had been reached, and people were 11

no longer permitted entry into the meeting (D. St. ¶¶72, 74, 83; P. Resp. Mem. ¶¶72, 74). People waiting in line to attend the

meeting were told they would have to wait until someone left the meeting before they could be admitted (D. St. ¶78). Carrasco and Blanks attended the meeting and occupied two of the eight seats that had been reserved for Carrasco (D. St. ¶101). Adan, Norman, Guadalupe and Graciela Lara, and Jose and

Victor De Leon (collectively "Vergara Plaintiffs"12) also tried to enter the meeting but were denied entry by police officers (P. St. ¶38). During the "audience time" portion of the meeting at

least two individuals made comments that several people opposed to the towing ordinance had not been permitted to enter City Hall chambers to attend the meeting (P. Add. St. ¶¶180-81; D. St. ¶108).13

Although Michael Vergara (the first-named plaintiff in the case caption) is no longer a party, both sides refer to "Vergara Plaintiffs" throughout their submissions. Accordingly this opinion will employ the same usage.
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One of those persons, Luis Lopez, addressed Hyde:

The question is I have seen this place full of people when the Whites come over to complain. Now when the minorities come to complain to you, now there is a limitation as to the number of people that can allow within the premises. What...what is the difference? Hyde responded, "None." to Hyde: Later in the exchange Lopez again said

The question is, the question is still, I want you to answer how come when the minorities come to complain there is a limitation as to the number of people that 12

Application of the Outdoor Assembly Ordinance to Blanks Blanks has been an outspoken critic of Waukegan's towing ordinance since it was adopted (P. Add. St. ¶¶121, 214). In

August 2004 he placed an advertisement in a local community newspaper for a mass rally to be held on September 4 to garner support and collect signatures for a 100-page petition in protest of the towing ordinance (P. Ex. 102). Blanks' advertisement

stated the event would be held from noon until 6 p.m. at Bedrosian Park in Waukegan and contained telephone numbers for readers seeking additional information (id.). As of September 2004 Bedrosian Park was owned and operated by the Waukegan Park District (P. Add. St. ¶202; D. St. ¶122). Approximately one half acre in size, the park is bordered by public streets on two of its sides and by private property on the others (D. St. ¶123). Waukegan's Outdoor Assembly Ordinance did not apply to events held on Park District property (P. Add. St. ¶212). Instead the Park District has its own ordinance governing the public use of park properties, including rules about applying for

are allowed to this building? And when the whites complain the room is completely full. What is the difference? Hyde again responded, "There is none" and also said, "There shouldn't be any" (Pl. St. ¶180). When Blanks, the second individual, addressed the city council, he said he was speaking on behalf of himself and the "150 you have outside on your front door" (Pl. St. ¶181). 13

and obtaining a Park District permit (P. Add. St. ¶203).

There

is no specified lead time for submission of a permit application, and the Park District has the discretion to determine whether to require a cash deposit or a certificate of insurance for events (P. Add. St. ¶¶207, 209). As the Park District's Superintendent

of Parks, Michael Trigg is responsible for issuing park use permits (P. Add. St. ¶208). After learning of Blanks' advertisement for the September 4 event, Biang instructed Deputy Chief Artis Yancey ("Yancey") to ask the Park District whether Blanks had received a permit for the rally and to handle the matter (P. Add. St. ¶217; D. St. ¶126). Yancey learned that Blanks had not obtained a permit from

the Park District and relayed that fact, together with a copy of Blanks' advertisement, to Neddenriep (P. Add. St. ¶218; D. St. ¶¶127-28). On September 2 a uniformed police officer delivered to Blanks a letter written by Neddenriep on behalf of Waukegan (P. Add. St. ¶¶220-21). That letter advised Blanks that "you are in

violation of Section 15-186 of the Municipal Code of the City of Waukegan as you failed to obtain a permit from the City Clerk for [the September 4, 2004] assembly at least 20 days in advance of the assembly" (P. Ex. 105). It instructed Blanks to comply

immediately with the provisions of the Outdoor Assembly Ordinance and warned that failure to do so would result in a violation of

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that ordinance (id.). Nowhere in Neddenriep's letter did she advise Blanks that the Park District, not Waukegan, owned Bedrosian Park or that he needed to obtain a permit from the Park District (P. Add. St. ¶225). Copies of the letter were sent to Waukegan's city clerk,

to Biang, to several other members of the police department and to Waukegan's city prosecutor (P. Ex. 105). Upon receiving the

letter from Neddenriep, Blanks contacted people by telephone and informed them that the September 4 event was cancelled (P. Add. St. ¶227). Blanks is the only person ever to be advised in writing and in advance of an event that he was in violation of the Outdoor Assembly Ordinance (P. Add. St. ¶231). Indeed, Neddenriep's

letter to Blanks was only the second time that she enforced the Outdoor Assembly Ordinance, the first instance having been the already-described episode involving Carrasco a few months earlier (P. Add. St. ¶242; D. St. ¶132). Zurita's Claim Zurita has brought this action against Hyde and Waukegan, claiming that his First Amendment rights were violated when Hyde and the city council refused to permit him to speak at the January 20, 2004 city council meeting. Zurita and defendants For the

have cross-moved for summary judgment on that claim.

reasons stated below, summary judgment is granted in favor of 15

Zurita. Zurita advances his First Amendment claim under two separate theories. First he argues that the "audience time" portion of

city council meetings creates a designated public forum and that the prohibition against his speaking was a content-based restriction that was not narrowly tailored to a compelling government interest. In addition he argues that the actions of

Hyde and the city council constituted unlawful retaliation against him for the exercise of his protected speech at the Belvidere Mall rally. Because the first of those contentions is

sound, the second need not be addressed. Whether and to what extent the First Amendment permits a state to regulate the use of and access to government property is a function of the nature of that property. Under the now

familiar "forum analysis," government property is classified in terms of three categories: the traditional public forum, the

designated public forum and the nonpublic forum (Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800 (1985)). Traditional public forums are places that have long

been devoted to assembly and debate, such as streets and parks (Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983)). Public property that the state intentionally chooses

to open up for use by the public as a place for expressive activity is considered a designated public forum (id.). And as

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the name suggests, a nonpublic forum is public property that is not by tradition or designation a forum for public communication (id. at 46). In both traditional and designated public forums, the government's ability to regulate expressive activity is limited. Any content-based exclusion is subject to strict scrutiny--that is, the government must show that "its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end" (id. at 45). Reasonable time, place and

manner regulations that are content-neutral are permissible, so long as they are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication (id.). Here it is obvious (and indeed defendants do not dispute) that the "audience time" portion of Waukegan's city council meetings renders that situs a designated public forum.14 Instead

defendants argue that any restriction on Zurita's speech was not based on his viewpoint but on his threatening conduct toward Figueroa, making it a permissible content-neutral regulation (D.

Any possible doubt in that regard is further dispelled by the same conclusion reached by many courts that have confronted that precise question (see, e.g., City of Madison, Joint Sch. Dist. No. 8 v. Wis. Employment Relations Comm'n, 429 U.S. 167, 175-76 (1976); Mesa v. White, 197 F.3d 1041 (10th Cir. 1999); White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990); Jones v. Heyman, 888 F.2d 1328, 1331 (11th Cir. 1989)). 17

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Resp. Mem. 4).15 It is well settled that in public forums the "government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction" (Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)). City of Madison, 429

U.S. at 176 has explained that the government also may not discriminate among speakers based on their employment status. Underlying these constitutional principles is the notion that "[l]aws designed or intended to suppress or restrict the expression of specific speakers contradict basic First Amendment principles" (United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 812 (2000)). Defendants seek to evade those constraints by characterizing

Defendants also attempt to defeat Zurita's claim through other assertions requiring minimal discussion. First, they seek to sidestep the issue entirely by arguing that the First Amendment claim as pleaded in the Complaint is based only on alleged retaliation, not on the imposition of an improper time, place and manner restriction (D. Resp. Mem. 4). But our Court of Appeals has long taught not only that it is unnecessary for federal plaintiffs to specify legal theories in a complaint, but also that even the identification of an incorrect legal theory is not fatal (see, e.g., Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992), an authority often cited in later cases for the same proposition). D. Mem. 26 also argues that Hyde did not prohibit Zurita from addressing the council, because he had no right to do so without the prior consent of two-thirds of its members. That contention is negated by the parties' agreement--and by this Court's determination that the "audience time" portion of the meeting created a designated public forum. 18

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Hyde's action as a content-neutral time-manner-place regulation.16 But that argument begs the question of just what Nowhere do

manner of speech defendants sought to regulate.

defendants assert that Zurita was planning to address the city council on January 20 in an aggressive or inappropriate fashion, so as to justify a manner-based regulation (or more accurately, complete exclusion). And it cannot logically be said that the

exclusion of Zurita's speech at the city council meeting was aimed at regulating the manner of his speech to Figueroa two days earlier. Hyde's decision to exclude Zurita's speech at the

January 20 meeting was rather based on his conduct at the Belvidere Mall rally (either what he said to Figueroa or how he said it). Hyde's "regulation" was intended to restrict speech by It was therefore impermissibly aimed at

Zurita--and only Zurita.

suppressing the speech of a specific speaker, and as such it is subject to strict scrutiny.17

According to D. Resp. Mem. 4, Hyde refused to permit Zurita to speak at the meeting because of the "threatening manner" in which he had spoken to Figueroa at the Belvidere Mall rally. Whether Zurita's conduct was in fact "threatening" and whether the manner, as opposed to the message, of his speech at the rally was the true motivation for Hyde's refusal are questions of fact that the parties dispute vigorously. To be clear, nothing in this opinion prevents a city from regulating the speech or even removing a speaker who engages in disruptive or inappropriate behavior in addressing a city council. Cases such as White, 900 F.2d 1421 and Jones, 888 F.2d 1328 (11th Cir. 1989) have upheld regulations that restrict or exclude speech by members of the public at city council meetings. But in those cases the speakers were stopped from addressing the 19
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In those terms defendants plainly lose.

To begin, nowhere

in any of their three submissions addressing Zurita's claim do defendants offer any government interest, let alone a compelling one, to justify Hyde's prohibition of Zurita's speech. Instead

that prohibition equates to an effort to sanction Zurita for his conduct toward Figueroa and deter him from engaging in similar conduct in the future. Not only does that flunk the compelling-

state-interest test, but an absolute prohibition on Zurita's right to speak at the city council meeting cannot conceivably be found to be narrowly tailored to that purpose. As stated

earlier, Zurita is entitled to prevail on his First Amendment claim. Defendants' Liability Zurita argues that he is entitled to summary judgment against both Hyde and Waukegan for that violation of his First Amendment rights. Defendants respond (1) that Hyde is entitled

to qualified immunity for his actions at the January 20 city council meeting and (2) that any imposition or that municipal liability on Waukegan is improper. 1. Hyde's Liability

Kentucky v. Graham, 473 U.S. 159, 166 (1985) (emphasis in

councils because their conduct at those meetings violated neutral time-manner-place regulations. That is very different from the factual situation presented here, where the manner of Zurita's proposed speech at the January 20 city council meeting is not at issue. 20

original) teaches that "to establish personal liability in a §1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right." Defendants do not dispute Hyde's liability on that

basis, but instead peg Hyde's defense on an assertion of qualified immunity as to Zurita's claim. On that score the seminal opinion in Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) held that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." (footnote omitted) further instructed: On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to "know" that the law forbade conduct not previously identified as unlawful. More recently Saucier v. Katz, 533 U.S. 194, 201 (2001) has enunciated a two-part test for qualified immunity. First, the Harlow, id.

alleged facts, when considered in the light most favorable to the party asserting an injury, must show that the officer's conduct violated a constitutional right (id.). If so, the second

question is whether the right was then clearly established (id.). Saucier, id. explained that "[t]his inquiry, it is vital to note, 21

must be undertaken in light of the specific context of the case, not as a broad general proposition...." Because Hyde's refusal to permit Zurita to speak at the city council meeting did indeed violate Zurita's constitutional rights, the question remaining is whether those rights were clearly established. In that inquiry "binding precedent is not

necessary to clearly establish a right" (Brokaw v. Mercer County, 235 F.3d 1000, 1022 (7th Cir. 2000)). Rather than having to

point to a closely analogous case, a plaintiff "can establish a clearly established constitutional right by showing that the violation was so obvious that a reasonable person would have known of the unconstitutionality of the conduct at issue" (id.). That is the case here. Courts have long held that city

council meeting sites, during the "audience time" portions of council meetings, and similar venues are designated public forums subject to constitutional limitations on the regulation of speech (see n.14). It has also been well established that governmental

action suppressing the speech of particular individuals "contradict[s] basic First Amendment principles" (Playboy Entm't Group, 529 U.S. at 812). Those solidly established principles

trump any disclaimer by Hyde of knowledge that the law forbade his prohibition of Zurita's speech. insulates him from liability. 2. Waukegan's Liability No qualified immunity

22

Monell v. N.Y. City Dep't of Soc. Servs., 436 U.S. 658 (1978) has long been the leading authority on municipal liability. ways: Such liability can generally be shown in one of three

(1) by "an express policy that, when enforced, causes a

constitutional deprivation," (2) by "a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law" or (3) by a showing that "the constitutional injury was caused by a person with final policymaking authority" (Baskin v. City of Des Plaines, 138 F.3d 701, 704-05 (7th Cir. 1998)). Here Zurita argues that Waukegan

is liable on that last basis because Hyde is a final policymaker and the city council ratified his decision. Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986) explained that under Monell "[m]unicipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered." But Pembaur, id. at 481-82 then cautioned that "[t]he fact that a particular official--even a policymaking official--has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion." Instead "municipal liability under §1983 attaches

where--and only where--a deliberate choice to follow a course of action is made from among various alternatives by the official or

23

officials responsible for establishing final policy with respect to the subject matter in question" (id. at 483). Finally

Pembaur, id. instructed that "[a]uthority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority" as a matter of state law. Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464, 464, 468-70 (7th Cir. 2001) provides further clarity about when an official is a "final policymaker" for purposes of municipal liability. Gernetzke, id. at 469 explains that municipal

liability is limited "to situations in which the official who commits the alleged violation of the plaintiff's rights has authority that is final in the special sense that there is no higher authority." Courts have also recognized that a "municipality may also be liable for the actions of an employee who lacks final policymaking authority if that employee's actions were `ratified' by the municipality" (Killinger v. Johnson, 389 F.3d 765, 772 (7th Cir. 2004)). As City of Louis v. Praprotnik, 485 U.S. 112,

127 (1988)(emphasis in original) explains, "when a subordinate's decision is subject to review by the municipality's authorized policymakers, they have retained the authority to measure the official's conduct for conformance with their policies." Plaintiffs seeking to establish municipal liability based on a

24

ratification theory "must allege that a municipal official with final policymaking authority approved the subordinate's decision and the basis for it" (Baskin, 138 F.3d at 705). P. Mem. 6-7 argues both that Hyde was a final decisionmaker and that the city council ratified his decision. But if the

first of those contentions is correct, review or ratification by the city council would be superfluous at best. Conversely, if

ratification is essential to create municipal liability via the city council's action (or in this case inaction), Hyde would have to be viewed as a subordinate rather than a final policymaker. Although Hyde has authority as city council chair and presiding officer to make rulings about who may or may not speak during the "audience time" portion of meetings, he cannot be labeled the final policymaker because there is "higher authority" that can overrule his decisions: Waukegan's Code establishes

procedures by which city council members could have objected to Hyde's decision and voted to overturn it (P. St. ¶¶30-32). That

power makes the entire city council the truly final policymaker on such issues. That, however, does not carry the day for defendants. Although city council members did not specifically vote on the approval or endorsement of Hyde's ruling as to Zurita, each of them individually--and all of them as a body--had the power to raise an objection but declined to exercise it. Because they

25

witnessed and heard the entire exchange between Hyde and Zurita, including Hyde's purported justification for his action, their letting that action stand without any challenge must be viewed as a ratification of Hyde's decision. And because that ratification

was by Waukegan's final authority, it amounts to municipal policy for which Waukegan is liable. Vergara Plaintiffs' Claim Vergara Plaintiffs have brought a claim based on their being denied admission to the July 6, 2004 city council meeting. they advance a facial constitutional challenge to Waukegan's alleged ad hoc policy as to admitting members of the public to city council meetings. Next they contend that defendants are First

also liable for viewpoint discrimination in connection with their actions at the July 6 meeting. Vergara Plaintiffs have moved for

summary judgment on their facial constitutional challenge alone, while defendants have moved for summary judgment on both contentions. Facial Challenge Waukegan admittedly has no written policies, rules, regulations or ordinances governing the admission of the public to city council meetings (P. St. ¶¶39-46). Vergara Plaintiffs

argue that Waukegan instead "employs various shifting and standardless ad hoc policies that create an unacceptable risk of viewpoint discrimination" (P. Mem. 7). At the core of that

26

argument is the assertion that an unwritten policy confers unbridled discretion on Waukegan officials to permit or deny expressive activity in the form of attendance at public city council meetings (id. at 8-9)). According to Vergara Plaintiffs,

that scheme violates the First Amendment under Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123 (1992). At the threshold, Vergara Plaintiffs must first establish the existence of a municipal policy before they can mount a facial challenge to that policy (Monell, 436 U.S. at 690). many plaintiffs that poses no difficulty, for most facial challenges are brought against state or municipal ordinances or written policies. But that is not so here. Instead Vergara For

Plaintiffs charge Waukegan with employing an unwritten and standardless policy that is therefore unconstitutional. Necessarily the first step in the analysis must be a finding that such a policy exists. Vergara Plaintiffs do little in that respect, relying instead on the fact that there is no written policy governing admission to city council meetings. But it does not

automatically follow that the practice actually followed is in fact ad hoc or standardless. Instead the actual practice must

itself be scrutinized (K.F.P. v. Dane County, 110 F.3d 516, 51920 (7th Cir. 1997)). In that regard D. Resp. Mem. 7 says (and Biang and Hyde

27

testified) that Waukegan admits members of the public to city council meetings on a neutral first-come-first-served basis. Biang also testified that Waukegan's first-come-first-served practice was the standard admission procedure that Waukegan's police officers had followed for 29 years (Biang Dep. 223:11223:14). P. Reply Mem. 9 counters with only two instances in

which the city failed to admit members of the public on a firstcome-first-served basis. Plaintiffs' own Complaint admits that

"[u]ntil the events of the July 6, 2004, meeting seats were filled on a first-come-first-served basis" (D. Ex. 110 ¶32). Just two instances in the long history of Waukegan city council meetings clearly does not suffice--even with the required benefit of favorable inferences--to establish a municipal policy or practice that is subject to constitutional attack (see City of Oklahoma City v. Tuttle, 471 U.S. 808, 821 (1985)).18 Thus Vergara Plaintiffs have no platform from which to launch a facial constitutional attack. On that score defendants

win, and Vergara Plaintiffs' motion is denied.

Vergara Plaintiffs argue that Waukegan's actual practice should not be considered because facial attacks on the basis of overly broad discretion are dependent not on how that discretion is exercised, but rather on whether anything prevents discrimination on the basis of viewpoint (P. Mem. 10-11; P. Reply Mem. 67). But that position skips the first step of the constitutional analysis: determining whether there is any municipal policy that can properly be challenged. And Waukegan's actual practice must necessarily be examined to answer that question. 28

18

Discriminatory Treatment at July 6, 2004 City Council Meeting Vergara Plaintiffs' second contention is that defendants engaged in unconstitutional viewpoint discrimination against them at the July 6 city council meeting (P. Resp. Mem. 15). To that

end they assert that they were treated differently by being excluded (1) from attendance during the entire city council meeting, (2) from entering the meeting room to address the city council during the "audience time" portion of the meeting and (3) from entering City Hall and standing outside the city council chambers to listen to the meeting (id. at 15-16). In those respects Vergara Plaintiffs seek to target Biang and Hyde as subject to individual liability for the claimed offenses. This opinion turns then to that subject before taking

up the issues of disparate treatment and the potential liability of Waukegan itself. For an individual to be held liable in a Section 1983 action, he or she must have caused or participated in the alleged constitutional deprivation (Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)). As Gentry v. Duckworth, 65 F.3d 555,

561 (7th Cir. 1995)(citations and internal quotation marks omitted) explains: An official satisfies the personal responsibility requirement of section 1983...if the conduct causing the constitutional deprivation occurs at [his] direction or with [his] knowledge and consent. That is, he must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye.... In short, some causal connection or 29

affirmative link between the action complained about and the official sued is necessary for §1983 recovery. Even with the evidence viewed in the light most favorable to Vergara Plaintiffs, neither Biang nor Hyde can be said to have participated in or played a causal role in the alleged constitutional deprivations. At most the evidence shows that

Biang or Hyde knew that some members of the public were denied access to the City Hall meeting. There is no evidence, however,

that either Biang or Hyde directed or even knew the officers stationed outside of the meeting were impermissibly restricting access to the City Hall based on Vergara Plaintiffs' viewpoint. As for Biang, the main thrust of Vergara Plaintiffs' argument is that he did not take steps to ensure that protesters were admitted to the July 6 meeting (P. Resp. Mem. 19).19 Nowhere

do they allege that Biang affirmatively engaged in viewpoint discrimination toward members of the public trying to gain admission to the meeting. Biang's testimony is that before the

meeting he went back and forth from the council chambers to the outside to monitor the protest activity (Biang Dep. 239:18-

P. Resp. Mem. 19 also contends that Biang's conduct in connection with the application of the Outdoor Assembly Ordinance to Carrasco in the days before the meeting somehow contributed to the alleged constitutional violation involving the exclusion of the Vergara Plaintiffs from the July 6 meeting. But any misconduct by Biang in connection with Carrasco relates only to Carrasco's claims and is in no way probative of whether Biang engaged in impermissible viewpoint discrimination at the July 6 meeting. 30

19

240:18).

No evidence suggests that he was involved in actually

admitting people to (or excluding people from) the meeting. Indeed, Biang was required to be in the city council chambers during the meeting (id.). Biang further testified that he was not aware that anyone was prevented from entering the meeting until approximately 7:45 p.m., when the fire department official determined that the occupancy limit had been reached (id.). Vergara Plaintiffs offer

no contradictory evidence or anything to show Biang's personal involvement in or knowledge of the constitutional deprivations they allege. Instead their arguments are based in large part on

what he did not do to ensure their admission to the city council meeting. That, however, does not do the job. Individual liability of

officials under Section 1983 must be based on their own unconstitutional behavior, not merely on their negligence in supervising employees (Rascon v. Hardiman, 803 F.2d 269, 273-74 (7th Cir. 1986)). At worst it appears that Biang knew there were But because

protesters who were denied entry to the meeting.

there were many more people at the meeting than could actually be admitted, that fact alone is unremarkable. Because Vergara

Plaintiffs have presented no evidence that Biang either engaged in viewpoint discrimination himself or was aware that other officers did so and either condoned it or ignored it, Biang bears

31

no personal liability. Hyde is free from personal liability for the same reasons. Although Hyde like Biang may have been on notice that certain protesters were not permitted to enter the July 6 meeting, no evidence suggests that he knew it was because of their viewpoint rather than space constraints or occupancy limits. Vergara

Plaintiffs rely on the statements of Lopez and Blanks at the July 6 meeting to show that Hyde knew that more people had been allowed to attend prior city council meetings. But those

comments at most informed Hyde that occupancy limits were being enforced at the July 6 meeting and that more than 100 people were not able to gain admission. Vergara Plaintiffs proffer no

evidence that even implies (let alone showing) that Hyde participated in or knew that admission decisions were being made on an unconstitutional basis. So much then for the absence of liability for Vergara Plaintiffs' individual targets. But what of Waukegan itself?

Although Vergara Plaintiffs' motion has not sought summary judgment on the ground now under consideration, Waukegan has joined Biang and Hyde in seeking exculpation on that score. opinion therefore turns to that subject. In the way that Vergara Plaintiffs have posed the issue of Waukegan's possible liability, they would clearly fail to recover. Because neither Biang's nor Hyde's actions suffice to This

32

establish personal liability, neither can they serve as the basis for municipal liability. And Vergara Plaintiffs' arguments as to

the city council's possible responsibility are exactly the same as those they advanced with respect to Hyde and, for the reasons stated earlier, also cannot tag the city council with liability for the alleged viewpoint discrimination. Hence Vergara

Plaintiffs' stated theories would not save their claim against Waukegan either. But it will be recalled that the assertion of wrong legal theories is not the test for the viability or nonviability of a legal claim (see n. 15). And what is surprising here is that

Vergara Plaintiffs' greatest likelihood of success against Waukegan itself would rest on a legal approach not fully explored by the parties. Because the issue is posed in the context of

Waukegan's effort to prevail as a matter of law, this opinion would be remiss if it did not examine that route to potential liability. Monell's fundamental lesson is that Section 1983 liability cannot be thrust on a municipality via respondeat superior principles (436 U.S. at 694). But the consequent effort to

differentiate final policymakers (whose conduct is directly ascribable to a municipality) from those farther down the food chain (whose conduct is not) is often incapable of bright-line resolution, a point particularly well articulated by Judge Posner

33

in Gernetzke, 274 F.3d at 468-70. In this instance there appears to be a substantial basis for focusing instead on the police officers who perforce made the unreviewed decisions as to admitting persons to, or excluding persons from, the meeting--decisions that by their very nature made those officers the final authority. Gernetzke, id. at 469,

citing to Justice O'Connor's like analysis for the Supreme Court plurality in Praprotnik, 485 U.S. at 126-27, put the matter in a way that would appear directly applicable to this case: Only the delegation ("conferral" would be a better term) of final authority makes the "delegate" the final authority. Because that creates the potential for Waukegan's liability, though no definitive answer is possible on the current state of the record (neither side having focused on the matter from that perspective), it is worth taking a look at the evidence offered to this point as to the existence vel non of viewpoint discrimination. In support of Vergara Plaintiffs' contention

that they were denied admission to the July 6 meeting because of their opposition to and criticism of Waukegan's towing ordinance, they point to their own testimony that other people were admitted to the meeting after they were denied entry (Adan Dep. 70:8-71:7, 79:1-79:7; Guadalupe Lara Dep. 54:7-54:15; Jose De Leon Dep. 4245, Victor De Leon Dep. 29:17-29:24, 33:19-34:15).20 In addition,

Vergara Plaintiffs "are members of a group, mostly African-American and Latino, of Waukegan residents who have 34

20

Dale Doucette testified that when he approached two police officers who appeared to be controlling access to the meeting, one of the officers asked him whether he was with the group of protesters who had assembled nearby. After Doucette responded

that he was not, he was allowed to enter the meeting (Doucette Dep. 54:18-56:1).21 Defendants offer a host of arguments to challenge the contention that Vergara Plaintiffs were excluded from the July 6 meeting because of their viewpoint.22 While those arguments may

perhaps have force with a jury, they do not defeat Vergara Plaintiffs' assertions as a matter of law.

joined together to protest the City of Waukegan's towing ordinance" (D. Ex. 110 ¶5). Vergara Plaintiffs contend that defendants were aware of the viewpoint of the Hispanic and African American comminutes and therefore knew that Vergara Plaintiffs, as members of those communities, were opposed to the towing ordinance. D. Mem. 6-7 contends that Doucette's statement is inadmissible hearsay because Vergara Plaintiffs do not identify the officer to whom Doucette spoke. But that betrays a lack of understanding of the fundamental principle embodied in Fed.R.Evid. 801(d)(2)(D), which expressly labels as nonhearsay any such statement by a party's agent (in this case the police officer). Hence the exchange between Doucette and the officer is admissible evidence and properly considered in ruling on defendants' motion. Defendants first argue that police officers were not aware of Vergara Plaintiffs' viewpoint because they did not specifically ask them about it. They also point to evidence showing that other known protesters were allowed entry to the meeting. And finally, they contend that the occupancy limit was reached at 7:45 p.m., at which time people were legitimately excluded from entering City Hall. 35
22 21

At this point, then, the current motion must be denied. it too early to tell whether a full fleshing out of the issues might call for a different result in the future. Carrasco's Claims Carrasco asserts that Biang and Waukegan violated her

And

constitutional rights by applying the Outdoor Assembly Ordinance to her in an discriminatory manner, engaging in unlawful retaliation for her exercise of First Amendment rights and attempting to chill her future exercise of those rights. Carrasco has moved for summary judgment on her as-applied constitutional challenge to the Outdoor Assembly Ordinance, while defendants have moved for summary judgment on all fronts. As-Applied Challenge Unlike a facial challenge to the constitutionality of a law or ordinance, an as-applied challenge asserts that an enactment is unconstitutional as applied to a plaintiff's specific First Amendment activities even though it is capable of valid application to others (Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 803 & n.22 (1984)). Although the Complaint here originally contained a facial constitutional challenge to the Outdoor Assembly Ordinance as well, that contention was dismissed after Waukegan amended the ordinance in 2006. Carrasco's as-applied challenge to the pre-

amendment version of the Outdoor Assembly Ordinance remains.

36

In that respect Carrasco asserts that the Outdoor Assembly Ordinance was applied to her differently and less favorably than it was to non-protesters. Among other things Carrasco argues

that the amount of the cash deposit required by Biang and Waukegan for her asserted July 6, 2004 plans23 constituted impermissible viewpoint discrimination because it was based on the fact that the supposed event was a protest rally rather than a rally in support of Waukegan's towing ordinance.24 In support of that argument Carrasco relies on Biang's testimony that in determining the number of police officers to assign to the July 6 rally, he considered the fact that the event was a protest--had the rally been in support of the towing ordinance, he would have assigned fewer officers. Because the

cash deposit amount was a direct function of the number of police officers assigned, Carrasco reasons that the deposit amount

To be clear, Carrasco has at all times maintained that there was no rally or event planned for the July 6 city council meeting. But Carrasco has alleged that Biang and Neddenriep believed there was and that they acted under that belief to apply the Outdoor Assembly Ordinance to her in an unconstitutional way. Whether or not Carrasco actually did plan an event is therefore irrelevant to her constitutional claim (see this Court's May 26, 2006 order denying defendants' motion to dismiss Count V of the Third Amended Complaint). Carrasco also contends that the manner in which Waukegan applied the Outdoor Assembly Ordinance to her, both procedurally and substantively, was based on Carrasco's viewpoint and status as a protest organizer. Because Carrasco prevails on the ground just stated in the text, that second contention need not be addressed. 37
24

23

required by Biang and Waukegan was unconstitutionally based on the content of Carrasco's speech. Biang and Waukegan seek to explain Biang's testimony and the decision it reflects by asserting that the decision was not based on the protesters' viewpoint as such but rather on Biang's expectation that the protesters would be angry (D. Resp. Mem. 1213). Under that theory any controversial or potentially hostile

protest would require additional police officers and security precautions, in turn increasing the amount of the cash deposit required by Waukegan, regardless of the message or viewpoint of the protesters. When a law, whether in its application or on its face, regulates or restricts speech based on its content, it runs afoul of the First Amendment. As Police Dep't of City of Chicago v.

Mosley, 408 U.S. 92, 95 (1972) instructs, "above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Forsyth County (mentioned earlier in the section of this opinion captioned Facial Challenge25) involved a facial challenge

Although that section refers to Vergara Plaintiffs' heavy reliance on Forsyth County in support of their facial challenge to Waukegan's admission policy for city council meetings, it is odd that plaintiffs' counsel do not discuss it in relation to Carrasco's claim. Even though there was no asapplied challenge to the ordinance in Forsyth County, that does not render its constitutional analysis irrelevant. On the 38

25

to a county ordinance that permitted the administrator to vary the fee for assembling or parading to reflect the estimated cost of maintaining public order. Forsyth County, 505 U.S. at 132-33

held that the ordinance was unconstitutional on its face because it lacked any "narrowly drawn, reasonable and definite standards" to guide the fee determination. Not only did the ordinance

create the potential for viewpoint censorship, said the Court, but it often required that the fee be content-based (id. at 13334). Because the fee would often be assessed to cover the

security costs of persons participating in and observing activities, it necessarily required that the fee be based on the content of speech and the amount of hostility it was likely to create (id. at 134). Although Forsyth County, id. at 136

recognized that "raising revenue for police services ... undoubtedly is an important government responsibility, it does not justify a content-based permit fee." Forsyth County's theoretical concerns about the possibility of content-based fee determinations became reality for Carrasco in this case. Biang and Waukegan admit that the cash deposit

they required of Carrasco was a function of the number of officers they assigned to the event, based in turn on the fact

contrary, the potential difficulties that Forsyth County found with the ordinance at issue there are the precise problems that Carrasco encountered in the present case. For that reason Forsyth County's analysis is of particular relevance. 39

that the event was to be a protest attended by potentially hostile and angry demonstrators. 35 held: Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend an angry mob.26 D. Resp. Mem. 11-13 responds that the reasons for assigning extra officers to the July 6 rally were content-neutral. But by As Forsyth County, id. at 134-

arguing that a protest on any subject, and not just one that opposes Waukegan's policies, would require additional police costs, Biang and Waukegan confuse content-based discrimination with viewpoint discrimination. it succinctly: Viewpoint discrimination is a form of content discrimination, but not all content-based regulation is viewpoint regulation. In other words, a Waukegan regulation that applied only to protests of its own policies would undoubtedly constitute impermissible viewpoint discrimination. But a regulation based neutral as to As Mesa, 197 F.3d at 1045 n.4 put

upon the nature of an event or speech, even if

viewpoint, is also correctly characterized as content-based (cf. Thomas v. Chicago Park Dist., 227 F.3d 921, 925 (7th Cir.

[Footnote by this Court] That line of analysis echoes the approach taken by the brilliant Professor Harry Kalven, the preeminent First Amendment scholar of an earlier generation, in identifying and decrying what he called the "heckler's veto." Given its origin, it is unsurprising to encounter that label in Judge Posner's opinion in Thomas 227 F.3d at 925, cited in the text below. 40

26

2000)).27 Next D. Resp. Mem. 14-15 invokes Cox v. New Hampshire, 312 U.S. 569 (1941) and similar cases to argue that Waukegan is entitled to collect the costs of its public services provided at the rally. Cox, id. at 577 found that a provision of a state

statute authorizing the imposition of a fee on event organizers was constitutional, even though the municipality determined the fee in relation to the expense incurred in maintaining public safety. But it is noteworthy that the half-century-later opinion

in Forsyth County, 505 U.S. at 136 expressly rejected that County's attempted reliance on Cox (a reliance that the Forsyth County dissenting Justices would have found persuasive). In short, nothing in Cox releases Biang or Waukegan from complying with the constitutional proscription against contentbased discrimination. And because that was not done in this

case, Carrasco prevails on her as-applied challenge to the Outdoor Assembly Ordinance. Unlawful Retaliation Carrasco next charges that Biang's and Neddenriep's decision to apply the Outdoor Assembly Ordinance to her and their

D. Resp. Mem. 13 suggests that for Carrasco to prove content-based discrimination she must somehow show that fewer officers would be required at a protest in support of the towing ordinance where protesters were expected to be upset and angry at Waukegan. For the reasons stated in the text, and because of the impermis-sibility of justifying governmental conduct based on the "heckler's veto," that argument misses the boat. 41

27

resulting conduct were taken in retaliation for her prior protest activities. To prevail on such a retaliation claim Carrasco must

show28 (1) her speech was constitutionally protected, (2) Biang's and Neddenriep's actions were motivated by her constitutionally protected speech and (3) those defendants cannot show they would have taken the same action in the absence of her exercise of First Amendment rights (Vukadinovich v. Bd. of Sch. Trustees of N. Newton Sch. Corp., 278 F.3d 693, 699 (7th Cir. 2002)). If

Carrasco can establish the first two elements, the burden then shifts to those defendants to prove that they would have taken the same actions regardless of Carrasco's protected speech (id.). And if they can meet that burden, Carrasco must then show that the proffered justifications were pretextual (id.). Biang and Neddenriep do not dispute the first element of the Vukadinovich analysis: (D. Mem. 16 n.6). that Carrasco engaged in protected speech

Instead they claim that Carrasco cannot

demonstrate that her speech was a substantial or motivating factor for the alleged retaliatory actions and that the actions would have been taken in any event, even absent Carrasco's speech

As elsewhere in this opinion, this Court has followed the language of the caselaw that speaks of what a plaintiff must "show" or "prove" or "establish" or the like. But in the summary judgment context, of course, the target has the lesser burden of demonstrating the existence of a material (that is, potentially outcome-determinative) issue of fact. This opinion has imposed that lesser burden whenever there is a material factual dispute, despite this Court's having tracked the more demanding language used in most of the cases. 42

28

(D. Mem. 15). As to the issue of retaliatory motive, a defendant's knowledge of protected speech, coupled with close temporal proximity between the speech and the allegedly retaliatory action, is sufficiently probative to withstand summary judgment (cf. such cases, dealing with the concept of liability for retaliatory conduct in the employment context, as McClendon v. Ind. Sugars, Inc., 108 F.3d 789, 796-97 (7th Cir. 1997); Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994); Maestas v. Segura, 416 F.3d 1182, 1189 (10th Cir. 2005); and Miller v. Fairchild Indus. Inc., 797 F.2d 727, 731-32 (9th Cir. 1986)).29 Here the alleged retaliatory action by Biang and

Neddenriep to