Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 C 1789-Ronald A. Guzman, Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
Before POSNER, KANNE, and HAMILTON, Circuit Judges.
Kevin Sroga has sued Chicago police officers under 42 U.S.C. § 1983, complaining of three arrests that he contends violated his constitutional right to be free from unreasonable seizure of his person. The district court granted the defendants' motion for summary judgment, and so we are obliged to construe the facts as favorably to the appellant as the record permits.
The first arrest was for disorderly conduct. Sroga tried to dissuade an employee of the City of Chicago from towing his car, which was parked on a street near his home and which the City had designated as hazardous because a dolly (a platform on wheels for moving heavy objects) attached to the rear of the vehicle had no license plate. A crowd gathered to watch their altercation. A police officer appeared and told Sroga to calm down and let the driver of the tow truck do his job. Instead Sroga leapt onto the moving car as it was being towed away. At that point he was arrested.
The second arrest, months later, was for theft of lost or mislaid property after Sroga got into another spat with a City employee, who was trying to tow not one but several of Sroga's vehicles. They were parked in a vacant lot, which apparently he owned, and we have no idea why the City wanted them towed. And in fact the driver of the tow truck decided not to tow them. But then he noticed a car parked on the street in front of Sroga's house and decided to tow that vehicle. Later Sroga was told the vehicle was hazardous, though we don't know what the hazard was. To prevent the car from being towed, Sroga got intoit as the driver was hooking it up to the tow truck, and despite repeated demands by police that he get out of the car he refused to budge until a sergeant showed up and ordered him to get out. Meanwhile a different police officer had spotted a Chicago Police Department ticket book on the dashboard of yet another of Sroga's vehicles, this one also parked on the street in front of the lot. The police arrested him, not for disorderly conduct but on suspicion that he had stolen the ticket book.
The third arrest, made more than a year later, was for criminal trespass to "state-supported" land, and occurred shortly after he left a police station upon being released from police custody following still another arrest but not one challenged in this case. (He keeps the Chicago police busy. See Chicago Police Department, "Criminal History Report for Kevin Robert Sroga," May 29, 2008, listing 13 arrests between November 2003 and January 2008. He is also a prolific civil litigant. See, e.g., Sroga v. Personnel Board, 833 N.E.2d 1001 (Ill. App. 2005); Sroga v. Chicago Public Schools, No. 11 C 2124, 2011 WL 1364036 (N.D. Ill. Apr. 11, 2011); Sroga v. Decero, No. 09 C 3286, 2010 WL 4705161 (N.D. Ill. Nov. 9, 2010).) He left by the front door of the police station and walked past a sign that reads "No Loitering No Trespassing" into a parking lot marked with signs that said "Parking Police Personnel Only." A police officer noticed him walking between the rows of police cars peering inside each car. Realizing that he was being observed, Sroga struck up a conversation with an officer who was sitting in one of the cars. He claims she was an old friend, but she offered her handcuffs to another officer to fasten on Sroga.
Surprisingly, none of the three arrests resulted in a prosecution. The issue is their legality under the Fourth Amendment.
The offense of disorderly conduct-the ground of the first arrest-has been around for a very long time. But like many criminal offenses it is not well defined (presumably for fear that if well defined it would spring loop-holes). Illinois law defines disorderly conduct as an act or acts done "in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace." 720 ILCS 5/26-1(a)(1). Sroga probably entertained rather than alarmed the onlookers of his contretemps with the driver of the tow truck, but may have alarmed and doubtless distracted the driver. But was his conduct likely to provoke a "breach of the peace"? That depends on what the term means.
We tried to define it decades ago, and our definition has been favorably received by the Illinois courts:
The term "breach of the peace" has never had a precise meaning in relation to specific conduct. Yet from its early common law origin to the present it has received a fairly well defined gloss. "The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others." Cantwell v. Connecticut, 310 U.S. 296, 308 (1940). The term connotes conduct that creates consternation and alarm. It is an indecorum that incites public turbulence; yet violent conduct is not a necessary element. The proscribed conduct must be voluntary, unnecessary, and contrary to ordinary human conduct. On the other hand, the commonly held understanding of a breach of the peace has always exempted eccentric or unconventional conduct, no matter how irritable to others. It seems unnecessary to add that whether a given act provokes a breach of the peace depends upon the accompanying circumstances, that is, it is essential that the setting be considered in deciding whether the act offends the mores of the community.
United States v. Woodard, 376 F.2d 136, 141 (7th Cir. 1967); see, e.g., People v. Allen, 680 N.E.2d 795, 798-99 (Ill. App. 1997); People v. Stevens, 352 N.E.2d 352, 356 (Ill. App. 1976).
The quoted passage starts out well, with the quotation from the Cantwell case: a breach of the peace is a violent act or an act likely to provoke violence. It would be a stretch to describe Sroga's jumping on his car as it was being towed in those terms, but the passage from the Woodard opinion continues: breach of the peace also includes acts that cause "consternation"; it is an "indecorum," which is to say an indecorous act. Speaking with one's mouth full is indecorous; is it a breach of the peace? Could Sroga really have been thought to have caused "public turbulence"? And after quoting Cantwell, which defines a breach of the peace as an act that is violent or causes violence, our opinion states that "violent conduct is not a necessary element."
Much better, and briefer-thus illustrating the limitations of definitional elaboration-is the definition of breach of the peace in the Restatement (Second) of Torts § 116 (1965): "a public offense done by violence, or one causing or likely to cause an immediate disturbance of public order." "Disturbance of public order" seems an apt description of Sroga's jumping on his car as it was being towed, after he had tried to dissuade the driver of the tow truck from towing it. ...