The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiffs, Eugene Hartnett ("Hartnett") and Don Kozlowski
("Kozlowski"), brought these civil rights actions pursuant to
42 U.S.C. § 1983*fn1 against defendants, Chicago police
officers Michael J. Schmit ("Schmit") and Paul Czernia
("Czernia"), based on the allegedly "unlawful" arrest of
Hartnett and Kozlowski.*fn2
This matter is now before the Court on plaintiffs' motions
for summary judgment pursuant to Rule 56 of the Federal Rules
of Civil Procedure. The following facts are undisputed.
Plaintiffs are members of the Illinois Chapter of the Holy
Spirit Association for the Unification of World Christianity.
On October 6, 1979, at approximately 8:00 p. m., plaintiffs,
on behalf of their religious organization, were soliciting
donations from and distributing literature to motorists at the
intersection of Western and Lawrence Avenues in Chicago. The
only persons present at the scene of plaintiffs' arrest were
the two plaintiffs, defendant police officers and an
undetermined number of persons in automobiles travelling
through the intersection. (Defs. Answers to Interrogatories
Nos. 10-12). Hartnett and Kozlowski were arrested by the
defendants, transported to a police station, placed in a cell,
and charged with the offense of disorderly conduct in
violation of chapter 193, section 193-1(d) of the Municipal
Code of the City of Chicago ("the Code") on a complaint signed
by defendant Schmit.
Section 193-1(d) of the Code provides as follows:
93-1 A person commits disorderly conduct when he
(d) Fails to obey a lawful order of dispersal by
a person known to him to be a peace officer under
circumstances where three or more persons are
committing acts of disorderly conduct in the
immediate vicinity, which acts are likely to
cause substantial harm or serious inconvenience,
annoyance or alarm.
Hartnett and Kozlowski appeared in court on October 19,
1979, to answer and defend against the complaint brought
against them. Although the defendants were employed as Chicago
police officers on October 19, 1979, and were not on furlough
or any other official leave of absence from the Chicago Police
Department, they failed to appear in court on that date to
prosecute the charge against Hartnett and Kozlowski.
Consequently, the City of Chicago was denied leave to file the
charge against plaintiffs.
Plaintiffs allege that they were arrested unlawfully while
exercising first amendment rights and that this unlawful
arrest abridged their rights under the First and Fourteenth
Amendments to the United States Constitution. The only defense
raised by defendants is that of qualified immunity. Thus, the
question of whether first amendments*fn3 and fourteenth
amendment*fn4 rights were violated rests upon a determination
as to whether defendant police officers "lawfully" arrested
Hartnett and Kozlowski-a question inevitably intertwined with
the issue of police immunity.
In Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d
288 (1967), the Supreme Court confronted the question of
whether immunity was available to police officers under § 1983.
The Court noted that the "common law has never granted police
officers an absolute and unqualified immunity," but that "the
prevailing view in this country [is that] a peace officer who
arrests someone with probable cause is not liable for a false
arrest simply because the innocence of the suspect is later
proved." 386 U.S. at 555. The Court went on to hold that in
evaluating police conduct during an arrest, a court must
consider the officer's good faith as well as the existence of
probable cause. Id. at 557; Scheuer v. Rhodes, 416 U.S. 232,
245, 94 S.Ct. 1683, 1691, 40 L.Ed.2d 90 (1974).
The test for good faith was stated by the Seventh Circuit in
Brubaker v. King, 505 F.2d 534, 536-537 (7th Cir. 1974):
The test, thus, under § 1983 is not whether the
arrest was constitutional or unconstitutional or
whether it was made with or without probable cause,
but whether the officer believed in good faith that
the arrest was made with probable cause and whether
that arrest was reasonable.
[T]o prevail the police officer need not allege
and prove probable cause in the constitutional
sense. The standard governing police conduct is
composed of two elements, the first is subjective
and the second is objective. Thus the officer
must allege and prove not only that he believed,
in good faith, that his conduct was lawful, but
also that his belief was reasonable. (Citation
This standard was reaffirmed by the Seventh Circuit in
Boscarino v. Nelson, 518 F.2d 879, 881 (7th Cir. 1975); Foster
v. Zeeko, 540 F.2d 1310, 1313 (7th Cir. 1976); and Whitley v.
Seibel, 613 F.2d 682, 685 (7th Cir. 1980). It is important to
emphasize that the Brubaker court specifically noted its
consistency with the Seventh Circuit decision in Joseph v.
Rowlen, 402 F.2d 367 (7th Cir. 1968). Brubaker, 505 F.2d at 537
n. 1. In Joseph, the plaintiff brought suit under 42 U.S.C. § 1983
against a police officer who had arrested him while he was
approaching pedestrians in an attempt to sell pots and pans.
Plaintiff was arrested for violating a city ordinance
proscribing door-to-door solicitation, although the officer
admitted knowing that "soliciting didn't cover it." 402 F.2d at
368. The Brubaker court opined that in Joseph, "the defendant
had no reasonable belief in the validity of the arrest," and
"[u]nder such circumstances the court correctly held that
inquiry into good faith was unnecessary," because "[w]here one
element of the test is clearly not satisfied, investigation
into the other element need not be pursued." 505 F.2d at 537,
n. 1. In other words, although plaintiff carries the burden of
proof, Whitley v. Seibel, 613 F.2d at 685, if defendant cannot
show that his belief in the validity of the arrest was
reasonable, defendant will be held liable regardless of his
subjective good faith. An important reason for the use of this
standard is the unwillingness of courts to use a purely
subjective good faith test that might foster ignorance of the
law or, at least, encourage feigned ignorance of the law by
allowing a police officer to be exonerated if he merely acts in
good faith. Glasson v. City of Louisville, 518 F.2d 899,
909-910 (6th Cir. 1975), cert. denied, 423 U.S. 930, 96 S.Ct.
280, 46 L.Ed.2d 258 (1976).
Plaintiffs in this case assert that as in Joseph, defendants
cannot, as a matter of law, meet the objective test of
"reasonable belief in the validity of the arrest" required to
support a defense of qualified immunity. In support thereof,
plaintiffs emphasize that the statutory provision under which
they were arrested plainly requires the presence of three or
more persons committing acts of disorderly conduct, likely to
cause substantial or serious inconvenience. Supra at p. 1025 of
this opinion. Yet, defendants have admitted and it is otherwise
undisputed that Kozlowski and Hartnett were the only persons at
or nearhe scene of the arrest, other than the police officers
and passing motorists. Defendants also admit that at the time
of the arrests, there was no threat of immediate violence and
that Chicago Police Department Special Order No. 79-24,
entitled "First Amendment
Rights to Distribute or Sell Printed Material and to Solicit
Financial Contributions on the Public Ways," was announced to
them recently.*fn5 The Court holds that based upon ...