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Vergara v. City of Waukegan

December 22, 2008


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


Plaintiffs, opponents of the towing ordinance adopted by the City of Waukegan ("Waukegan"), have brought this action against Waukegan and two of its officials: Mayor Richard Hyde ("Hyde") and Police Chief William Biang ("Biang").*fn1 Plaintiffs assert that defendants violated their rights under the First Amendment*fn2 and the Fourteenth Amendment's Equal Protection Clause by denying certain plaintiffs entry to Waukegan's monthly city council meeting, by taking action against certain plaintiffs as retaliation for their protest activities and by applying Waukegan's assembly ordinance against certain plaintiffs in an unconstitutional manner.

Plaintiffs have now brought a motion for partial summary judgment under Fed. R. Civ. P.("Rule") 56, and defendants have cross-moved for summary judgment on all counts.*fn3 For the reasons stated below, each side's motion is granted in part and denied in part.

Summary Judgment Standard

Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts consider evidentiary records in the light most favorable to nonmovants and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But to avoid summary judgment a non-movant "must produce more than a scintilla of evidence to support his position" that a genuine issue of material fact exists (Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001)) and "must set forth specific facts that demonstrate a genuine issue of triable fact" (id.).

Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the non-movant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

One more complexity is added where, as here, cross-motions for summary judgment are involved. Those same principles require the adoption of a dual perspective that this Court has sometimes referred to as Janus-like: As to each motion the non-movant's version of any disputed facts must be credited.*fn4 What follows, then, is a summary of the undisputed facts.*fn5


In 2002 Waukegan amended its towing ordinance to authorize the police department to seize and impound vehicles and impose a $500 fine on persons driving without a valid driver's license or proof of insurance (P. Add. St. ¶84). Plaintiffs are nine individuals who have opposed the towing ordinance (D. St. ¶¶11, 13-14; P. St. ¶119; P. Add. St. ¶¶152, 156-57).*fn6 Hyde has been Waukegan's Mayor since 2002 and Biang has been its Police Chief since 2003 (P. St. ¶¶2-3; D. St. ¶¶1,3).

At the time of the events at issue in this action, Waukegan's municipal code contained provisions (collectively the "Outdoor Assembly Ordinance") establishing procedures for applying for and receiving permits for certain outdoor events (P. St. ¶56).*fn7 Under the Outdoor Assembly Ordinance a written application for a required permit had to be made to the city clerk at least 20 days before the event for which the permit was requested (P. Ex. 4). Waukegan had the discretion to require the organizer of covered events to pay a cash deposit in advance of an event as a condition of issuing a permit for the event (P. St. ¶58). Waukegan's police department was responsible for conducting an investigation and making a report and recommendation to the city clerk in connection with events covered by the Outdoor Assembly Ordinance (P. St. ¶60).

Plaintiffs' contentions here stem from several events related to their protest against the towing ordinance and to defendants' application of the Outdoor Assembly Ordinance. This opinion turns to a description of those events.

Belvidere Mall Rally

On January 18, 2004 Carrasco organized an event at the Belvidere Mall in Waukegan to protest the towing ordinance (P. St. ¶13; D. St. ¶21). Zurita, Biang and Susana Figueroa ("Figueroa") attended the event (P. St. ¶¶12, 14, 16; D. St. ¶¶24-25). Figueroa is Waukegan's community liaison officer whose responsibilities include informing and educating the community about city issues, regulations and ordinances, coordinating community meetings and working with churches and education institutions (D. St. ¶22).

During the Belvidere Mall event Zurita had an encounter with Figueroa. Although many aspects of that encounter are in dispute, the parties agree that Zurita criticized Figueroa by telling her that "she should do more to help her people" (P. St. ¶15; D. St. ¶26). Zurita was not arrested or charged with any offense in connection with the encounter (P. St. ¶17).

After the event Figueroa reported to Hyde that Zurita had been very angry, had "got in her face" and "was chastising her because she was a city employee and going along with city policies" (P. St. ¶18; D. St. ¶28). Figueroa also told Hyde that she had been scared that Zurita was going to attack her physically (D. St. ¶28).

January 20, 2004 City Council Meeting

Waukegan's city council, comprising nine aldermen and the mayor, is Waukegan's legislative body and holds regular bimonthly meetings (P. St. ¶6). Those meetings are held in the City Hall chambers and start at about 8 p.m., with various committee meetings beginning earlier at about 6:30 p.m. (P. Add. St. ¶76). Subject to space constraints, regular city council meetings are open to members of the public (P. St. ¶7). During the "audience time" portion of the meetings, any member of the public may address the city council for up to three minutes, expressing his or her opinion on a subject (P. St. ¶8; D. St. ¶158). As presiding officer and chair of the city council meetings, Hyde is responsible for preserving order and decorum

(P. St. ¶10).

Two days after the Belvidere Mall event Zurita attended the January 20, 2004 regular city council meeting (P. St. ¶21). During the "audience time" portion of the meeting individuals addressed the council on various topics, including the towing ordinance, and Zurita approached the microphone to speak (P. St. ¶¶22-23). Before he could do so Hyde chastised him for his earlier comments to Figueroa and told Zurita that he would not permit him to speak until he apologized to Figueroa (P. St. ¶24- 25; D. St. ¶29).*fn8

Waukegan Municipal Code ("Code") §2-64(f) provides that any member of the city council may appeal from a ruling of the council chair, and the ruling will be overruled if a majority of council members present vote against it (P. St. ¶30). Any decision by the mayor to prohibit someone from speaking during the "audience time" portion of meetings is a "ruling" within the meaning of that provision (P. St. ¶31). Code §2-65 establishes a particularized procedure for restricting a person from addressing the council (P. St. ¶32). Under its terms, if a council member objects to a person speaking at the meeting, that person will not be permitted to speak until two-thirds of all council members present at the meeting consent (id.).*fn9

None of the aldermen present at the meeting voiced an objection to Hyde's decision or took any steps to overrule it, and Zurita did not request a vote from the aldermen (P. St. ¶¶34-35; D. St. ¶32). Zurita did not address the council during the January 20, 2004 meeting and has not spoken at any city council meeting since (P. Add. St. ¶259).

Application of Outdoor Assembly Ordinance to Carrasco

On June 28, 2004 Carrasco and others participated in a march to protest Waukegan's towing ordinance (P. Add. St. ¶119; D. St. ¶34). Sometime after that protest Biang learned that Carrasco would be conducting a rally to coincide with the upcoming July 6 city council meeting (P. Add. St. ¶120; D. St. ¶38).*fn10 On July 1 a police officer went to Carrasco's home to inform her that Biang wished to speak with her that day (D. St. ¶41; P. St. ¶62). Carrasco went to the police station that afternoon, where she met with Biang, three other police officers and city attorney Gretchen Neddenriep ("Neddenriep")(P. St. ¶63; D. St. ¶43).

Exactly what was discussed at the meeting is in dispute. According to Biang, Carrasco said there was going to be a large protest at the upcoming July 6 meeting and estimated that close to 1,000 people would be in attendance (D. Ex. 3). Carrasco, on the other hand, maintains that she denied any involvement in a planned protest event for July 6 and said that she was aware only that residents who had attended the June 28 march were invited to attend the city council meeting (P. Ex. 61). Nevertheless the parties agree that Carrasco said that she and other residents would be attending the meeting and that Biang agreed to reserve seats for Carrasco and her group (P. Add. St. ¶¶130-31; D. St. ¶52). It was Biang's and Neddenriep's belief that Carrasco would be attending the July 6 meeting to address the city council and protest (P. Add. St. ¶132).

During the July 1 meeting Neddenriep gave Carrasco a copy of the Outdoor Assembly Ordinance and asked her to comply with its provisions (P. Add. St. ¶127). Carrasco agreed to do so regarding future events (D. St. ¶55). On July 2 Neddenriep sent Carrasco a letter purporting to confirm an agreement reached the day before as to the "proposed assembly" on July 6 (P. Ex. 39). That letter stated that Waukegan agreed to waive the Outdoor Assembly Ordinance's 20-day-in-advance application requirement to seek a permit and told Carrasco that a cash deposit amount of $1500 and a written commitment for insurance would be required (id.). That $1,500 deposit amount was based on Biang's determination, in consultation with other police officers, that an additional ten officers would be needed for the July 6 event (P. St. ¶72).*fn11 One of Biang's considerations for making that recommendation was the fact that the event was a protest (P. St. ¶¶73-74). Neddenriep's letter also notified Carrasco that Waukegan would not waive the 20-day advance notice requirement in the future (P. Ex. 39).

On July 6 Carrasco sent a letter to Biang and Neddenriep to confirm that "there will be NO EVENT taking place on Tuesday, July 6, 2004" (P. Add. St. ¶137; D. St. ¶57). Carrasco's letter went on to state (P. Ex. 80):

Based on several past meetings where attendance at the City Council meeting has overflowed, I am unaware of any City ordinance or law requiring attendees to pay for police wages, to place a cash deposit, nor to provide liability insurance in order to attend a City Council meeting.

July 6, 2004 City Council Meeting

Waukegan's Code provides that the Chief of Police or a uniformed officer must be present at every city council meeting to preserve order (P. St. ¶47). Starting in May 2004, members of the public seeking admission to meetings have been required to pass through a metal detector, operated by a uniformed police officer, before being permitted entry (P. St. ¶49). Waukegan has no written policy, rule, regulation or ordinance governing the admission of members of the public to city council meetings (P. St. ¶¶39-46; D. St. ¶160).

Biang and Neddenriep expected a large number of people who were opposed to Waukegan's towing ordinance to come to the July 6 regular city council meeting, intending to protest outside City Hall (P. St. ¶¶52-53). On the night of July 6 between 75 and 400 people assembled outside City Hall during the council meeting (D. St. ¶73). At least seven police officers were present in or around City Hall, with an additional 15 to 25 members of Waukegan's rapid response police force staged at a nearby area for support (P. Add. St. ¶¶143-44). At some point before the start of the meeting a fire department official determined that the City Hall attendance limit had been reached, and people were no longer permitted entry into the meeting (D. St. ¶¶72, 74, 83; P. Resp. Mem. ¶¶72, 74). People waiting in line to attend the meeting were told they would have to wait until someone left the meeting before they could be admitted (D. St. ¶78).

Carrasco and Blanks attended the meeting and occupied two of the eight seats that had been reserved for Carrasco (D. St. ¶101). Adan, Norman, Guadalupe and Graciela Lara, and Jose and Victor De Leon (collectively "Vergara Plaintiffs"*fn12 ) also tried to enter the meeting but were denied entry by police officers (P. St. ¶38). During the "audience time" portion of the meeting at least two individuals made comments that several people opposed to the towing ordinance had not been permitted to enter City Hall chambers to attend the meeting (P. Add. St. ¶¶180-81; D. St. ¶108).*fn13

Application of the Outdoor Assembly Ordinance to Blanks

Blanks has been an outspoken critic of Waukegan's towing ordinance since it was adopted (P. Add. St. ¶¶121, 214). In August 2004 he placed an advertisement in a local community newspaper for a mass rally to be held on September 4 to garner support and collect signatures for a 100-page petition in protest of the towing ordinance (P. Ex. 102). Blanks' advertisement stated the event would be held from noon until 6 p.m. at Bedrosian Park in Waukegan and contained telephone numbers for readers seeking additional information (id.).

As of September 2004 Bedrosian Park was owned and operated by the Waukegan Park District (P. Add. St. ¶202; D. St. ¶122). Approximately one half acre in size, the park is bordered by public streets on two of its sides and by private property on the others (D. St. ¶123).

Waukegan's Outdoor Assembly Ordinance did not apply to events held on Park District property (P. Add. St. ¶212). Instead the Park District has its own ordinance governing the public use of park properties, including rules about applying for and obtaining a Park District permit (P. Add. St. ¶203). There is no specified lead time for submission of a permit application, and the Park District has the discretion to determine whether to require a cash deposit or a certificate of insurance for events (P. Add. St. ¶¶207, 209). As the Park District's Superintendent of Parks, Michael Trigg is responsible for issuing park use permits (P. Add. St. ¶208).

After learning of Blanks' advertisement for the September 4 event, Biang instructed Deputy Chief Artis Yancey ("Yancey") to ask the Park District whether Blanks had received a permit for the rally and to handle the matter (P. Add. St. ¶217; D. St. ¶126). Yancey learned that Blanks had not obtained a permit from the Park District and relayed that fact, together with a copy of Blanks' advertisement, to Neddenriep (P. Add. St. ¶218; D. St. ¶¶127-28).

On September 2 a uniformed police officer delivered to Blanks a letter written by Neddenriep on behalf of Waukegan (P. Add. St. ¶¶220-21). That letter advised Blanks that "you are in violation of Section 15-186 of the Municipal Code of the City of Waukegan as you failed to obtain a permit from the City Clerk for [the September 4, 2004] assembly at least 20 days in advance of the assembly" (P. Ex. 105). It instructed Blanks to comply immediately with the provisions of the Outdoor Assembly Ordinance and warned that failure to do so would result in a violation of that ordinance (id.).

Nowhere in Neddenriep's letter did she advise Blanks that the Park District, not Waukegan, owned Bedrosian Park or that he needed to obtain a permit from the Park District (P. Add. St. ¶225). Copies of the letter were sent to Waukegan's city clerk, to Biang, to several other members of the police department and to Waukegan's city prosecutor (P. Ex. 105). Upon receiving the letter from Neddenriep, Blanks contacted people by telephone and informed them that the September 4 event was cancelled (P. Add. St. ¶227).

Blanks is the only person ever to be advised in writing and in advance of an event that he was in violation of the Outdoor Assembly Ordinance (P. Add. St. ¶231). Indeed, Neddenriep's letter to Blanks was only the second time that she enforced the Outdoor Assembly Ordinance, the first instance having been the already-described episode involving Carrasco a few months earlier (P. Add. St. ¶242; D. St. ¶132).

Zurita's Claim

Zurita has brought this action against Hyde and Waukegan, claiming that his First Amendment rights were violated when Hyde and the city council refused to permit him to speak at the January 20, 2004 city council meeting. Zurita and defendants have cross-moved for summary judgment on that claim. For the reasons stated below, summary judgment is granted in favor of Zurita.

Zurita advances his First Amendment claim under two separate theories. First he argues that the "audience time" portion of city council meetings creates a designated public forum and that the prohibition against his speaking was a content-based restriction that was not narrowly tailored to a compelling government interest. In addition he argues that the actions of Hyde and the city council constituted unlawful retaliation against him for the exercise of his protected speech at the Belvidere Mall rally. Because the first of those contentions is sound, the second need not be addressed.

Whether and to what extent the First Amendment permits a state to regulate the use of and access to government property is a function of the nature of that property. Under the now familiar "forum analysis," government property is classified in terms of three categories: the traditional public forum, the designated public forum and the nonpublic forum (Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800 (1985)). Traditional public forums are places that have long been devoted to assembly and debate, such as streets and parks (Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983)). Public property that the state intentionally chooses to open up for use by the public as a place for expressive activity is considered a designated public forum (id.). And as the name suggests, a nonpublic forum is public property that is not by tradition or designation a forum for public communication (id. at 46).

In both traditional and designated public forums, the government's ability to regulate expressive activity is limited. Any content-based exclusion is subject to strict scrutiny--that is, the government must show that "its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end" (id. at 45). Reasonable time, place and manner regulations that are content-neutral are permissible, so long as they are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication (id.).

Here it is obvious (and indeed defendants do not dispute) that the "audience time" portion of Waukegan's city council meetings renders that situs a designated public forum.*fn14 Instead defendants argue that any restriction on Zurita's speech was not based on his viewpoint but on his threatening conduct toward Figueroa, making it a permissible content-neutral regulation (D. Resp. Mem. 4).*fn15

It is well settled that in public forums the "government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction" (Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)). City of Madison, 429 U.S. at 176 has explained that the government also may not discriminate among speakers based on their employment status. Underlying these constitutional principles is the notion that "[l]aws designed or intended to suppress or restrict the expression of specific speakers contradict basic First Amendment principles" (United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 812 (2000)).

Defendants seek to evade those constraints by characterizing Hyde's action as a content-neutral time-manner-place regulation.*fn16 But that argument begs the question of just what manner of speech defendants sought to regulate. Nowhere do defendants assert that Zurita was planning to address the city council on January 20 in an aggressive or inappropriate fashion, so as to justify a manner-based regulation (or more accurately, complete exclusion). And it cannot logically be said that the exclusion of Zurita's speech at the city council meeting was aimed at regulating the manner of his speech to Figueroa two days earlier. Hyde's decision to exclude Zurita's speech at the January 20 meeting was rather based on his conduct at the Belvidere Mall rally (either what he said to Figueroa or how he said it). Hyde's "regulation" was intended to restrict speech by Zurita--and only Zurita. It was therefore impermissibly aimed at suppressing the speech of a specific speaker, and as such it is subject to strict scrutiny.*fn17

In those terms defendants plainly lose. To begin, nowhere in any of their three submissions addressing Zurita's claim do defendants offer any government interest, let alone a compelling one, to justify Hyde's prohibition of Zurita's speech. Instead that prohibition equates to an effort to sanction Zurita for his conduct toward Figueroa and deter him from engaging in similar conduct in the future. Not only does that flunk the compelling-state-interest test, but an absolute prohibition on Zurita's right to speak at the city council meeting cannot conceivably be found to be narrowly tailored to that purpose. As stated earlier, Zurita is entitled to prevail on his First Amendment claim.

Defendants' Liability

Zurita argues that he is entitled to summary judgment against both Hyde and Waukegan for that violation of his First Amendment rights. Defendants respond (1) that Hyde is entitled to qualified immunity for his actions at the January 20 city council meeting and (2) ...

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