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Marcavage v. City of Chicago

December 14, 2006

MICHAEL MARCAVAGE, ET AL., PLAINTIFFS,
v.
CITY OF CHICAGO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

Numerous plaintiffs--Michael Marcavage ("Marcavage"), James Deferio ("Deferio"), Faith Deferio, Craig Scarberry and Ryan Murphy ("Murphy")--have filed a First Amended Complaint ("FAC") against the City of Chicago ("Chicago"), the Metropolitan Pier and Exposition Authority ("Authority") and several Chicago Police Officers in their official and individual capacities, charging each with violations of plaintiffs' constitutionally or statutorily protected civil rights. For its part, Chicago has moved under Fed. R. Civ. P. ("Rules") 12(b)(1) and 12(b)(6) to be dismissed as to the potential theories for recovery set out in FAC Counts IV-VIII. For the reasons stated in this memorandum opinion and order, Chicago's motion is denied in its entirety.

Motion To Dismiss Standards

When considering the sufficiency of a complaint under either Rule 12(b)(6) or Rule 12(b)(1), a court must accept all of the complaint's well-pleaded factual allegations as true and draw all reasonable inferences in plaintiff's favor (McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006) (Rule 12(b)(6); Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698, 701 (7th Cir. 2003)(Rule 12(b)(1)). While a Rule 12(b)(1) inquiry tests the sufficiency of the allegations to establish subject matter jurisdiction, a Rule 12(b)(6) review measures whether the complaint states a claim for which relief could be granted. Under Rule 12(b)(6) no complaint will be dismissed unless "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations" (Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). What follows, then, is a summary of the allegations set forth in the FAC that, for now, must be accepted as true.

FAC

Plaintiffs are all volunteers for Repent America, a Christian ministry based in Philadelphia with some 10,000 other volunteers across the country (FAC ¶5). One significant tenet of their beliefs is that plaintiffs "are obligated to tell as many other people as they can about what they believe is their individual need to be 'born again,' that is, to be reconciled to God" (FAC ¶7). That mandate is chiefly furthered through the distribution of religious literature and "one-on-one discussion in the public square," which may take the form of leafleting passers-by on public sidewalks (FAC ¶¶8-9). That practice brought plaintiffs to Chicago in July 2006 (FAC ¶16).

At that time Chicago was hosting the "Gay Games," a major civic event at venues across the city, including Navy Pier, Soldier Field and Wrigley Field (FAC ¶¶20, 21, 37). In the words of Chicago's Mayor Daley, the city viewed that event as a "showcase" for the city in its pending bid for the Olympics (FAC ¶20). In an effort to burnish the city's reputation, Chicago "sought to promote the Gay Games and to discourage protest or disagreement with the viewpoints and activities expressed and endorsed by the Gay Games." (id.) Part of that policy was to set up designated "free speech zones" near the events (FAC ¶¶16, 28).

For their part, plaintiffs apparently also saw that event as a useful opportunity for their ministry. On multiple occasions during the Gay Games they attempted to leaflet and otherwise engage the public with their "Gospel" message on public sidewalks and parks adjacent to Gay Games events (FAC ¶¶9, 16, 21, 31). Their efforts, however, were summarily thwarted by officers of the Chicago Police Department. First, while they were distributing their literature on a sidewalk just below Soldier Field on July 15, 2006, a police officer ordered them to leave or be arrested (FAC ¶16). At some point another officer explained that they had to stand in one of the "free speech zones" (id.).

On the following day, just as plaintiffs were arriving at Navy Pier, a group of security officers of the Authority (the state unit that owns Navy Pier and the adjacent Gateway Park) ordered plaintiffs out of Navy Pier to Gateway Park (FAC ¶21). Chicago police arrived momentarily and roughly escorted plaintiffs across the street into the park (id.). Once there, two of the officers (among the defendants in this case) warned plaintiffs that the park was also off limits to them (FAC ¶22).

After Marcavage attempted to dial 911 to speak with a police supervisor, one of the officers took the phone away from him, handcuffed him and forced him to the ground (FAC ¶23). Deferio, one of Marcavage's associates attempting to videotape the incident, was also handcuffed and ordered to the ground (his camera was confiscated and later returned without the tape)(id.). Another officer brought down Murphy in a headlock (FAC ¶¶23-24). When a female officer arrived on the scene, she ordered that Marcavage be released but that Murphy and Deferio be taken into custody (they were accused of criminal trespass, but were released several hours later when the Authority did not press charges)(FAC ¶¶24-27).

Not yet deterred, Marcavage and other plaintiffs stood on a public sidewalk outside of Wrigley Field the following Saturday (July 22) holding a sign that read "that his sincerely-held religious belief [was] that marriage is between one man and one woman" (FAC ¶31). Also working the sidewalks outside the Friendly Confines that day, in plain view of the police and security personnel on the scene, were other persons expressing their own views: a man leafleting about a documentary, a person waving a "homosexual pride flag" and another with a sign speaking out against President Bush (FAC ¶32).

As before, Marcavage and his associates were approached by a police officer (another defendant) who informed them that the sidewalk "was not open to the public or free speech" and that they had to cross to the other side of the street (FAC ¶33). Marcavage attempted to educate the officer about his right to the use of the sidewalk, but the officer would have none of it and arrested him (id.). After being taken to the station house, Marcavage was charged on a trumped-up accusation of disorderly conduct (FAC ¶36).

While Marcavage was being processed, another officer (also a defendant) queried whether he had ever heard of Deputy Chief Daniel Dugan ("Dugan")(FAC ¶37). Marcavage had in fact had a run-in with Dugan at the opening ceremony of the Gay Games at Soldier Field (id.). According to the officer, Dugan thought that Marcavage was "bad news" and Dugan was responsible for Marcavage's arrest (id.). That officer also informed Marcavage that Dugan "was working under the direction and implementing the policies of the Police Superintendent and the Mayor, having been assigned to handle all the affairs of the 'Gay Games'" (id.). Marcavage was not released until 9:35 p.m. that night (FAC ¶40).

As plaintiffs see it, Chicago has trammeled their constitutional or statutory rights of freedom of speech, religious exercise, equal protection and freedom from unreasonable search and seizure through the repeated discriminatory enforcement of Chicago's "content-based policy favorable to the views of the Gay Games" (FAC ¶20). They claim that Chicago policy has prevented them from engaging in their ministry and communicating with the intended audience for their Gospel, and they fear the same response upon their return trips to the city (FAC ¶¶11, 40).

Monell, Leatherman and McCormick

Chicago predictably offers an initial blanket argument that plaintiffs have not sufficiently charged it with any constitutional violation that can survive Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658 (1978). For plaintiffs to recover for their alleged constitutional injuries, their Complaint must state a claim for relief under 42 U.S.C. §1983 ("Section 1983"). And Monell, 436 U.S. at 690-91 held that a municipality is liable under Section 1983 only if it caused a constitutional tort through "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers" or "for constitutional deprivations visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." Monell rejected respondeat superior liability and concluded that municipalities could be held liable only when an injury was inflicted by a government's "lawmakers or by those whose edicts or acts may fairly be said to represent official policy" (id. at 694).

Those principles have been summarized in the now familiar three-branch formulation repeated in Roach v. City of Evansville, 111 F.3d 544, 548 (7th Cir. 1997)(internal quotation marks omitted) and a host of other cases:

Before the City can be liable under Section 1983, the plaintiff must show either (1) an express policy that, when enforced, causes a constitutional deprivation; (2) 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) an allegation that the constitutional injury was caused by a person with final policymaking authority.

Chicago argues that the FAC has alleged none of those things--not a "policy" nor a "custom" nor a decision by an individual with final policymaking authority that could have caused their constitutional injury.

So far, so good. City's argument goes astray, however, with this statement (at its Mem. 5)--a statement predicated on some now-discredited cases in a line emanating from Strauss v. City ...


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