Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 C 7005-Amy J. St. Eve, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
Before KANNE, WILLIAMS, and SYKES, Circuit Judges.
This free-speech lawsuit requires us to determine the present scope of the "fighting-words" doctrine. The setting is a neighborhood feud. The case features an unsightly, 38-foot recreational vehicle stored on a residential driveway in suburban Chicago, a neighborhood petition drive to force its removal, and a derogatory Halloween yard display erected in retaliation against the neighbors who led the petition drive. An unlucky police officer dispatched to mediate the dispute was sued for his efforts, accused of violating the First and Fourth Amendments.
The plaintiffs claimed their Halloween display-wooden tombstones with epitaphs describing, in unflattering terms, the demise of their neighbors-was constitutionally protected speech. They alleged their rights under the First and Fourth Amendments were violated when the officer ordered them to remove the display on pain of arrest. The district court granted summary judgment for the officer on the Fourth Amendment claim but permitted the free-speech claim to proceed to trial. A sensible but probably misinstructed jury returned a verdict for the police officer.
We affirm. Summary judgment on the Fourth Amendment claim was properly granted. At the moment of arrest, the neighbor-combatants were engaged in a noisy argument over the tombstones, culminating in a "chest-butt." This provided probable cause to arrest for disorderly conduct. The First Amendment claim need not have been tried. The tombstone inscriptions, although insulting, cannot be considered fighting words as that doctrine is presently understood. The display was, accordingly, protected speech. But the officer's mistake about the scope of the plaintiffs' constitutional right to ridicule their neighbors was one a reasonable officer might make in this situation. He was therefore entitled to qualified immunity.
Jeffrey and Vicki Purtell owned a large recreational vehicle-38 feet long and 12 feet high-and for a while stored it at a rental-storage facility. In 2001, however, they fell on hard financial times and parked it on the driveway of their home in the Village of Bloomingdale, Illinois. There it sat for more than a year. Here is a picture:
The Purtells' neighbors were unhappy but tolerated the presence of this eyesore, at least initially. Their patience eventually wore thin, however, and they complained to the Village of Bloomingdale. There was little the Village could do because the Purtells were not violating any existing laws.
Several of the neighbors then took matters into their own hands and started a petition drive urging the Village to adopt an ordinance banning homeowners from storing RVs on their property. This effort was ultimately successful. In late November 2002, the Village Board enacted an ordinance prohibiting the storage of RVs on residential property.
The Purtells eventually complied with the ordinance and moved their RV, but not before making a crude retaliatory statement to their complaining neighbors. While the RV ordinance was still under consideration by the Village Board, the Purtells erected six wooden tombstones on their front lawn. It was mid-October and Halloween was coming, but the tombstones were not mere seasonal decorations; they carried a message for the neighbors who had pressed for the RV ordinance. Five of the six tombstones referred to a specific complaining neighbor followed by a short inscription describing the neigh-bor's death.
To be more specific, each tombstone was about three feet tall, and they were placed about five feet from the sidewalk, facing the street. Here is a picture of the display:
The tombstones were inscribed with epitaphs, in doggerel verse, directed at the neighbors who had petitioned for the RV ordinance. All but one referred to particular neighbors by name and specified a year of death corresponding to the neighbor's street address, plus one additional number. For example, a tombstone referring to John Berka, who resides at 188 Jackson Lane, was inscribed as follows:
Said he didn't give a care
So They buried him a live up to his hair.
So now we're relieved of That Nasty old Jerk!
The remaining tombstones read as follows:
Dyean was Known for Lying
Now underneath these daisies is where she ...