Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00C5768--Suzanne B. Conlon, Judge.
Before Coffey, Easterbrook, and Diane P. Wood,
The opinion of the court was delivered by: Coffey, Circuit Judge.
Martin Abrams ("Abrams") is an attorney in Illinois who alleges that his civil rights were violated when he was arrested by Illinois State Trooper Kent Walker ("Walker") when Walker was conducting a traffic stop in the fall of 1998. The district court granted Walker's motion for summary judgment, and Abrams appeals. We affirm.
While many factual issues are disputed in this case, the record is clear on several basic points. On the evening of October 13, 1998, Abrams left the Boone County Courthouse with Trent Forte ("Forte"), his client. Abrams, having some concerns about potential police misconduct, told Forte that Abrams would follow him on the road back to Chicago. Shortly after entering the Northwest Tollway, Forte was stopped by Trooper Walker. Walker, in full uniform, exited his marked squad car and approached Forte's car.
Noticing that Forte had been stopped, Abrams pulled his car onto the highway shoulder, backed up, parked in front of Forte, exited his car, and approached Walker. Abrams identified himself as Forte's attorney and questioned Walker's decision to pull Forte over. Turning his attention from Forte's vehicle, Walker explained that he was going to issue tickets to Forte for following too closely, having an obstructed windshield, and not wearing a seatbelt. Walker then instructed Abrams to return to his vehicle and warned him that his failure to comply would result in Walker issuing tickets to Abrams.
Abrams admits that he refused to obey Walker's order, even though he was aware it was being issued by a uniformed officer of the peace engaged in the performance of his duties, and even after that order was repeated. Walker then informed Abrams that he was being issued tickets, whereupon Abrams both announced and manifested his intent to flee in his vehicle. While trying to stop him from leaving, Walker found a knife in Abrams' car, which he then put on the roof of Abrams' car. Abrams subsequently retrieved the knife once Walker had returned to his squad car to call for backup. Though Abrams disputes Walker's assertion that Walker warned Abrams not to touch the weapon, Abrams admits that he retrieved the weapon moments after Walker had removed it from his reach and informed him that he was going to be arrested for the unlawful use of a weapon. In all, Abrams' actions had the effect of interrupting and delaying Walker's traffic stop of Forte.
Abrams was then taken into custody. Though the parties dispute the extent of Abrams' cooperation with Walker as the latter was placing the former in handcuffs, Abrams was eventually charged with obstructing a police officer and resisting arrest under 720 ILCS 5/31-1(a)(2000). Abrams was also charged with two minor traffic offenses (i.e., improper parking and improper backing). (Abrams was not charged with the felony, as the state attorney's office did not approve the charges.) Abrams appeared as a defendant in a state court criminal bench trial on these charges in February 2000, and, represented by counsel, testified in his own defense, and was found not guilty.
On September 19, 2000, Abrams filed a federal complaint against Walker in his individual capacity under both federal and state law, alleging that Walker had engaged in malicious prosecution and that Walker had retaliated against him for exercising his First Amendment rights. *fn1 On November 28, 2000, Abrams filed an amended complaint in which he dropped the state law claim, reasserted the malicious prosecution claim under 42 U.S.C. § 1983, and raised claims for violations of his First and Sixth Amendment rights also pursuant to § 1983. *fn2
On February 23, 2001, Walker filed a motion for summary judgment. In his answer to Walker's summary judgment motion, Abrams abandoned his Sixth Amendment claim. On April 9, 2001, the district court granted summary judgment in Walker's favor. The district court granted Walker's summary judgment motion on both counts, holding (1) that Walker had probable cause to arrest Abrams for obstructing a police officer and thus Abrams could not support a malicious prosecution claim; and (2) that Abrams never engaged in any protected First Amendment speech.
On April 18, 2001, Abrams filed a motion to reconsider or to alter or amend judgment, which the district court denied on May 23, 2001. Abrams timely filed a notice of appeal on June 6, 2001.
Appellant asks this Court to reverse the district court's grant of summary judgment solely with respect to his First Amendment retaliation claim. Appellant objects to the district court's determination of facts in rejecting the retaliation claim.
A. Basis for Summary Judgment
A summary judgment motion must be granted if there is "no genuine issue as to any material fact," Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), not, as Appellant states, "if there are any genuine issues of fact." "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering the motion for summary judgment, the district court properly relied on the state trial transcript and not solely on Walker's Rule 56 pleadings. See Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991) (holding that the entire record may be examined when considering a summary judgment motion); Fed. R. Civ. P. 56(c). We review a grant of summary judgment de novo, viewing all the facts and drawing all reasonable inferences therefrom in favor of the nonmoving party. See Butera v. Cottey, 285 F.3d 601, 605 (7th Cir. 2002).
It is well established that "[a]n act taken in retaliation for the exercise of a constitutionally protected right violates the Constitution." DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000). A public employee who retaliates against someone for engaging in protected speech may violate the First Amendment, which, of course, has been held applicable to state action under the Fourteenth Amendment. See Martinez v. Hooper, 148 F.3d 856, 858 (7th Cir. 1998); Ryan v. County of DuPage, 45 F.3d 1090, 1091 (7th Cir. 1995). In order to establish a prima facie case of First Amendment retaliation, a plaintiff must demonstrate that (1) his conduct was constitutionally protected; and (2) his conduct was a "substantial factor" or "motivating factor" in the defendant's challenged actions. See Thomsen v. Romeis, 198 F.3d 1022, 1027 (7th Cir. 2000) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). This court has held that even if a defendant was "brimming over with unconstitutional wrath" against a § 1983 plaintiff, that plaintiff cannot prevail unless he or she establishes that the challenged action would not have occurred "but for" the constitutionally protected conduct. Button v. Harden, 814 F.2d 382, 383 (7th Cir. 1987). If this burden is met, the burden shifts to the defendant, who must show by a preponderance of the evidence that he would have taken the same actions even in the absence of the protected conduct. See Thomsen, 198 F.3d at 1027.
Our Constitution permits citizens to criticize police officers, within reason, both verbally and non-verbally. See, e.g., Duran v. City of Douglas, 904 F.2d 1372 (9th Cir. 1990) (making an obscene hand gesture and yelling expletives); City of Houston v. Hill, 482 U.S. 451 (1987) (shouting at police); Terminiello v. Chicago, 337 U.S. 1 (1949) (giving a speech). Not all conduct is so protected, however. See, e.g., Ryan v. County of DuPage, 45 F.3d 1090 (7th Cir. 1995) (refusing to remove a mask); People v. Crawford, 505 N.E.2d 394 (Ill. App. Ct. 1987) (interfering with an arrest); People v. Finley, 363 N.E.2d 871 (Ill. App. Ct. 1977) (refusing to "clear the area"). Appellant would have us believe that once he began conduct protected by the First Amendment, he became insulated from the consequences of any further actions. We disagree, for it is entirely possible to conceive of conduct that is involved with free expression but nevertheless illegal, see, e.g., United States v. Douglass, 579 F.2d 545, 548-49 (9th Cir. 1978), just as it is possible for conduct that begins under the mantle of constitutional protection (e.g., questioning an officer) to end outside of such protection (e.g., obstructing an officer). See ...