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November 12, 1980


The opinion of the court was delivered by: Aspen, District Judge:


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 ...

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