Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 03 C 2463, 04 C 2039-Virginia M. Kendall, Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
Before POSNER and WOOD, Circuit Judges, and ADELMAN, District Judge.*fn1
On March 20, 2003, the day after the second war between the United States and Iraq began, a large demonstration was held in Chicago by opponents of the U.S. invasion. The demonstration resulted in some 900 arrests, which in turn produced two lawsuits, one a class action suit on behalf of 887 persons-Vodak v. City of Chicago-and the other a suit by 16 individuals-Beal v. City of Chicago. The suits, which were brought under 42 U.S.C. § 1983, and which were consolidated in the district court and can for the most part be discussed together, charged the City and a number of police officers with violations of the First and Fourth Amendments, together with a long list of violations of state law. See 28 U.S.C. § 1367. Our focus, for reasons that will become apparent, is on the Fourth Amendment claims. The district judge dismissed both suits on summary judgment, reasoning that the officers were immune from being sued for damages because the illegality of their action had not been clearly established when they acted, 624 F. Supp. 2d 933, 955-59 (N.D. Ill. 2009), and that the City was not liable because no official authorized to make policy for the City had been responsible for any of the alleged illegalities.
We'll state the facts as favorably to the plaintiffs as the record permits, as we must given the procedural posture. The statements of facts in the defendants' briefs present the evidence they'd like a jury to accept, rather than just the evidence that, being unrefuted or irrefutable, provides a permissible basis for a grant of summary judgment. Such a mode of presentation is unhelpful to the court.
The organizers of the demonstration wanted it to coincide with the start of the war. They knew war was imminent but did not know exactly when it would start. Under the Chicago ordinances governing demonstrations, a permit is required for a "parade," Chi. Munic. Code § 10-8-330(b), defined as "any march, procession or other similar activity consisting of persons, animals, vehicles or things, or combination thereof, upon any public street, sidewalk, alley or other public place, which requires a street closing or otherwise requires police officers to stop or reroute vehicular traffic because the marchers will not comply with normal and usual traffic regulations or controls." § 10-8-330(a)(1). The demonstration in this case consisted mainly of a march, and we'll generally use that word in preference to parade or demonstration.
The Code requires that the application for the permit specify the date and route of the march, and gives the City five days to act on the application "except that where the purpose of [the demonstration] is a spontaneous response to a current event, or where other good and compelling cause is shown, the [City] shall act within two business days." §§ 10-8-330(f)(4), (7), (j). But when a march is planned for the unknown date of some triggering event, so that even two days' notice is infeasible, the police, as a matter of uncodified practice, will sometimes waive the requirement of a permit. The City's brief acknowledges the existence of a "standard route for un-permitted marches." Apparently these "un-permitted marches" are sufficiently frequent that the police have adopted a practice of "permitting" them to use a specific corridor of city streets. This waiver of the permit requirement is informal; it seems to consist just in not telling the demonstrators that they need a permit.
In discussions with the organizers of the contemplated demonstration, the police made no objections even though they were unable to work out an agreement with the organizers on the route that the march phase of the demonstration would take. The demonstrators didn't want to stay in one place; they wanted to march; but it was unclear where they wanted to march. They were being cagey; and the police, we can assume without having to decide, could have forbidden the march unless the organizers would commit to a specific route that would not cause commuting chaos or other undue disruption of the normal life of the city. But they did not insist on such a commitment. It seems to have been agreed that the march would start in the Federal Plaza on Dearborn Street, but where it would go from there was left open.
The day came, the demonstration began, and here is a map of the area in which it took place (image derived from map © 2011 Google):
[Editor's Note: Image unavailable]
X marks the beginning of the march, the lines indicate the path of the march, and Y is the area, on Chicago Avenue, where the arrests that precipitated the litigation occurred.
The demonstration began with a rally at Federal Plaza (X on the map) that turned into a march. The marchers turned east (right on the map as you face it) on Adams Street and Jackson Boulevard, which intersect Dearborn Street near the Federal Plaza, and marched all the way to Lake Shore Drive, a multilane commuting thorough-fare, where they turned north. The police tried without conspicuous success to confine the marchers to the north-bound lanes of Lake Shore Drive in order to minimize blockage of traffic. As the march proceeded, the police learned from the organizers that the intended route of the march was north on Lake Shore Drive for more than two miles to North Avenue, a major east-west artery, where the marchers would turn west, leaving Lake Shore Drive, and disperse.
But when the marchers arrived, well short of North Avenue, at the intersection of Lake Shore Drive with Oak Street, which runs west and after a few blocks intersects Michigan Avenue, most of them-perhaps as many as 8,000-turned left on Oak Street and marched to its intersection with Michigan Avenue. But we need to explain the sense in which Lake Shore Drive and Oak Street "intersect." For part of its distance Lake Shore Drive actually consists of two separate roads-the "outer drive," a limited-access highway on which the demonstrators were marching north, and the "inner drive," a local street immediately to the west of the outer drive. The inner drive connects with Oak Street; the outer drive does not. But the outer drive is just feet away from the inner drive at the inner drive's intersection with Oak. So it was easy for the demonstrators to cross from the outer drive to Oak and proceed west. For all we know, they, or many of them anyway, simply decided that it was too long a walk to North Avenue, so rather than going west on North Avenue and dispersing they decided to go west on Oak Street and disperse.
The police, however, who were out in force because of the size of the march, did not want the march to spill over into Michigan Avenue, a major north-south artery; a crowd on or crossing Michigan Avenue would add to the blockage of north-south traffic that the closure of the northbound lanes of Lake Shore Drive, with impedance of southbound traffic as well, was causing. It was still rush hour, and according to the City some marchers were becoming rowdy. It is undisputed that there had been rowdiness on Lake Shore Drive earlier, with some of the marchers rushing into the southbound lanes of Lake Shore Drive (where they weren't supposed to ...