The opinion of the court was delivered by: Baker, District Judge.
This class action alleges violation of the plaintiffs' civil
rights. The action arises out of a demonstration marking the
one year anniversary of a lock-out at the Staley Manufacturing
Plant in Decatur, Illinois. At the demonstration, police
sprayed pepper spray into the crowd of demonstrators. Count I
of the amended complaint alleges violation of the Fourth
Amendment as prohibited by 42 U.S.C. § 1983. Count II alleges a
conspiracy to violate the constitution and § 1983. Counts
III-VI allege state law violations. The defendants have moved
for summary judgment as to Counts I and II, the federal law
claims. The court now denies summary judgment.
Summary judgment "shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Covalt v.
Carey Canada, Inc., 950 F.2d 481 (7th Cir. 1991). On review,
the district court views "all evidence in the light most
favorable to the party opposing summary judgment." Wilson v.
Williams, 997 F.2d 348 (7th Cir. 1993). However, Rule 56(c)
"mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex, 477 U.S. at
322, 106 S.Ct. at 2552. "Where the record taken as a whole
could not lead a rational trier of fact to find for the
nonmoving party there is no `genuine' issue for trial."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
In this civil rights case, labor demonstrators seek damages
from police officers for excessive use of force in violation of
their rights under the Fourth Amendment. This is not the type
of Fourth Amendment case that involves the use of force by law
enforcement personnel against a fleeing felon or a rebellious
prisoner in custody. This case entails the rights of citizens
exercising their First Amendment rights of speech and assembly.
Where activities protected under the First Amendment are
involved, "the requirements of the Fourth Amendment must be
applied with scrupulous exactitude." Zurcher v. Stanford Daily,
436 U.S. 547, 564, 98 S.Ct. 1970, 1981, 56 L.Ed.2d 525 (1978)
(quoting Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506,
511, 13 L.Ed.2d 431 (1965)).
The defendants have raised the defense of qualified immunity.
Government officials such as the Decatur police officers in
this case, "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." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). "The issue of
qualified immunity is a legal question for the trial court, not
the jury." Maltby v. Winston, 36 F.3d 548, 554 (7th Cir. 1994)
cert. denied, ___ U.S. ___, 115 S.Ct. 2576, 132 L.Ed.2d 827
(1995). "It is the plaintiff who bears the burden of
establishing the existence of the allegedly clearly established
constitutional right." Rice v. Burks, 999 F.2d 1172, 1174 (7th
Cir. 1993). Plaintiffs can satisfy that burden in either of two
ways: (1) pointing to a closely analogous case that established
a right to be free from the type of force the police officers
used, or (2) showing that the force was so plainly excessive
that, as an objective matter, the police officers would have
been on notice that they were violating the Fourth Amendment.
Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996).
The unique circumstances in this case clearly do not fit a
pattern laid out in a closely analogous case. Both parties
agree that the A.E. Staley demonstration and the police
spraying of pepper gas, is a unique factual situation that has
not been specifically ruled on in the Seventh Circuit or any
other federal circuit. But the plaintiffs argue that they carry
their burden, and avoid qualified immunity, by showing that the
force was plainly excessive so that police officers should have
known they were violating the Fourth Amendment. The plaintiffs
rely on the uniqueness of their factual situation in that the
allegedly excessive use of force was not against a fleeing
criminal or an inmate, but instead was against a group of
peaceful demonstrators exercising their First Amendment rights
to speech and assembly.
"Although the qualified immunity determination is a legal
question it is not answered in the abstract but in reference to
the particular facts of the case." Maltby, 36 F.3d at 554
(quoting Rakovich v. Wade, 850 F.2d 1180, 1202 (7th Cir.) cert.
denied 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 534 (1988)).
The particular facts of this case, that make qualified immunity
inappropriate, are as follows. The class plaintiffs had met
with the Decatur prior to their demonstration, and had
discussed the upcoming demonstration. The class plaintiffs had
gathered to exercise their rights of speech and association
under the First Amendment. The police sprayed pepper spray into
the crowd of demonstrators on two separate occasions. The
spraying was in response to some type of surge against the
The Decatur police do not qualify for immunity. Although
there are no cases specifically stating that pepper spraying
demonstrators violates the Fourth Amendment, there is enough of
a widespread Constitutional and judicial protection of First
Amendment demonstrators to put the police on notice that
unnecessary force is prohibited. The demonstration outside A.E.
Staley's was "an aspect of a basic constitutional right under
the First and Fourteenth Amendments guaranteeing freedom of
speech and of assembly." Brown v. Louisiana, 383 U.S. 131, 141,
86 S.Ct. 719, 724, 15 L.Ed.2d 637 (1966). Furthermore, the
alleged excitability of the crowd of Staley demonstrators does
not in any way undermine their First Amendment status. "A
function of free speech under our system of government is to
invite dispute. It may indeed best serve its high purpose when
it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger. Speech
is often provocative and challenging." Edwards v. South
Carolina, 372 U.S. 229, 237, 83 S.Ct. 680, 684, 9 L.Ed.2d 697
The fact that this is a Fourth Amendment case and not a First
Amendment case does not diminish the First Amendment
protections available to the plaintiffs. What value would the
First Amendment carry if its demonstrators could be dispersed
or intimidated by police brutality or unnecessary force?
Qualified immunity is not widely available in an "area so
closely touching our most precious freedoms." Edenfield v.
Fane, 507 U.S. 761, 777, 113 S.Ct. 1792, 1804, 123
L.Ed.2d 543 (1993) (quoting NAACP v. Button, 371 U.S. 415, 435,
83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963)).
The defendants argue that the grant of qualified immunity in
Kernats v. O'Sullivan controls the instant case. 35 F.3d 1171
(7th Cir. 1994). However, Kernats is inapposite. Kernats dealt
with police improperly coercing an eviction from rental
property. A local police officer with no actual eviction
jurisdiction threatened the Kernats plaintiffs in a "Wyatt
Earp-like fashion," telling them to leave by sundown or the
whole family would be arrested. 35 F.3d at 1174. The court sees
no similarities between the Kernats housing eviction and the
instant labor demonstration. Kernats did not involve First
Amendment protestors, nor did it involve the use of pepper
spray or chemical spray.
Since the Decatur police officer defendants are not entitled
to qualified immunity, the next issue is whether they are
entitled to summary judgment on the issue of excessive force.
They are only entitled to such summary judgment if no possible
interpretation of the facts could support a finding of
excessive force. The basic claim in this case is that the
police officer defendants used excessive force against the
class plaintiff demonstrators by spraying pepper spray into the
crowd. The Supreme Court has held "that all claims that law
enforcement officers have used excessive force — deadly or not
— in the course of an arrest, investigatory stop, or other
seizure of a free citizen should be analyzed under the Fourth
Amendment and its reasonableness standard." Graham v. Connor,
490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443
(1989). "Claims of excessive force in the case of a seizure are
analyzed under the objectively reasonable standard of the
Fourth Amendment." Soller v. Moore, 84 F.3d 964, 968 (7th Cir.
1996) (citing Connor, 490 U.S. at 396, 109 S.Ct. at 1872).
"Determining whether the amount of force used to effectuate
a particular seizure is reasonable under the Fourth Amendment
requires a careful balancing of "the nature and quality of the
intrusion on the individual's Fourth Amendment interests
against the countervailing governmental interests." Graham v.
Connor, 490 U.S. at 396, 109 S.Ct. at 1871. Courts struggling
with this issue are to pay "careful attention to the facts and
circumstances of each particular case, including the severity
of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he
is actively resisting arrest." Id. at 396, 109 S.Ct. at 1872.
In the instant case the Connor factors help the plaintiffs.
The severity of the crime at issue is negligible, being at most
trespass. The plaintiffs did not pose an immediate threat to
the safety of the officers or others. They were unarmed
protestors exercising their First Amendment rights. Under any
version of the facts the demonstrators were not actively
resisting arrest; they were marching, chanting and protesting.
The police arrested only one demonstrator, and that was after
he had been sprayed with pepper spray. The Connor factors
highlight the uniqueness of the factual context of the instant
case. This is not a typical excessive force case where ...