Andy Thayer v. Ralph Chiczewski

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
November 27, 2012
Before
JOEL M. FLAUM, Circuit Judge
TERENCE T. EVANS, Circuit Judge*
JOHN DANIEL TINDER, Circuit Judge
Nos. 10-1974 & 10-2064
ANDY THAYER, et al.,
Plaintiffs-Appellants,
v.
RALPH CHICZEWSKI, et al.,
Defendants-Appellees.
Appeals from the United States
District Court for the
Northern District of Illinois,
Eastern Division.
Nos. 1:07-cv-01290 & 1:07-cv-1406
John W. Darrah,
Judge.
O R D E R
We issued our decision in this case on September 18, 2012, affirming the district court’s
entry of summary judgment in favor of the defendants on Bradford Lyttle’s false arrest and
malicious prosecution claims, on Lyttle’s and Andy Thayer’s First Amendment retaliation
claims, and on Thayer’s class-of-one equal protection claim. We also dismissed Lyttle’s facial
challenge to subsection (d) of Chicago’s disorderly conduct ordinance, Chicago Municipal
Code, Ill. § 8-4-010(d), holding that the claim was mooted by our recent opinion in Bell v.
Keating, 697 F.3d 445 (7th Cir. 2012), which partially invalidated subsection (d) on overbreadth
Circuit Judge Evans died on August 10, 2011, and did not participate in the*
decision of the Petition for Rehearing, which is being resolved by a quorum of the panel
under 28 U.S.C. § 46(d).

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Nos. 10-1974 & 10-2064 Page 2
and vagueness grounds. See Thayer v. Chiczewski, 697 F.3d 514 (7th Cir. 2012). However, Lyttle
filed a petition for panel rehearing, contending that by affirming the district court’s judgment
in its entirety, we inadvertently disposed of his claim against the City of Chicago for damages
for enforcement of Chicago Municipal Code, Ill. § 8-4-010(d) as an unconstitutional policy. See
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). He asks that we remand to the district
court for entry of judgment in his favor on his Monell claim and a trial limited to damages.
Conceding that municipal corporations, like the City, are not entitled to qualified immunity,
the defendants agree that we should address Lyttle’s Monell claim but they maintain that the
request for a trial on damages is premature. Lyttle has moved for leave to file a reply in
support of his petition for rehearing; that motion is granted.
Bell did not invalidate subsection (d) “to the extent that it legitimizes dispersal when three or
more people are engaged in disorderly conduct likely to cause ‘substantial harm,’” 697 F.3d at
463–64, and we did not decide whether the officers had probable cause to arrest Lyttle, Thayer, 697
F.3d at 527 (finding “arguable probable cause to order dispersal and arrest Lyttle”). Thus, we
overlooked Lyttle’s Monell claim against the City and it will need to be addressed in the first
instance in the district court. However, a trial on damages only would be premature; the question
of liability must be considered and, as the City points out in its response to the petition for
rehearing, if the officers had probable cause to arrest Lyttle for a violation of the valid portion of
subsection (d), Lyttle suffered no constitutional violation. Accordingly, the petition for panel
rehearing is granted and our slip opinion issued September 18, 2012, is amended as follows:
M The second sentence of the first paragraph of the opinion is amended to read: “The
plaintiffs brought claims against both the City under Monell v. Department of Social Services
and the arresting officers under Section 1983 for First Amendment retaliation, Fourth
Amendment false arrest, Fourteenth Amendment class-of-one equal protection, and state
law malicious prosecution.”
M The last sentence of the first paragraph of the opinion is amended to read: “The district
court granted summary judgment and we affirm in part on the basis of qualified
immunity.”
M The fourth sentence of the second paragraph of the opinion is amended to read: “We
affirm the grant of summary judgment in favor of the defendant officers; we do so,
however, on the basis of qualified immunity.”
M The last sentence of the second paragraph of the opinion is omitted and a new sentence
is added in its place, which reads: “However, Lyttle also asserts a claim that the City
violated his constitutional rights by the enforcement of subsection (d), that is, as a
policy. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). A remand will be

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Nos. 10-1974 & 10-2064 Page 3
required for resolution of that claim only.”
M On page 24, the last sentence of the first paragraph is amended to read: “Accordingly,
we affirm the district court’s entry of summary judgment in favor of the defendant
officers on Lyttle’s false arrest and malicious prosecution claims. But Lyttle’s Monell
claim against the City, which is not entitled to qualified immunity, remains. See Owen v.
City of Independence, 445 U.S. 622, 638 (1980).”
M On page 36 immediately preceding the Conclusion section, the following paragraph is
inserted:
But the mootness of the facial challenge to subsection (d) does not dispose of Lyttle’s
Monell claim against the City. Although Bell invalidated a portion of the disorderly
conduct ordinance, it left the rest untouched, and the City asserts that there was
probable cause for the arrest of Lyttle under the valid portion of the ordinance. In
finding the ordinance as a whole to be constitutional, the district court did not need to
reach this question. Therefore, Lyttle’s Monell claim will be remanded for further
proceedings.
M On page 36, the Conclusion section is amended to read:
We AFFIRM the district court’s entry of summary judgment in favor of the defendant
officers on Lyttle’s false arrest and malicious prosecution claims. We AFFIRM the entry
of summary judgment in favor of all defendants on Lyttle’s and Thayer’s First
Amendment retaliation claims and on Thayer’s class-of-one equal protection claim. We
DISMISS Lyttle’s facial challenge to subsection (d) as moot. Lyttle’s Monell claim against
the City is REMANDED to the district court for further proceedings consistent with this
opinion.

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