authorized by express municipal policy, is so permanent and well-settled that it amounts to a
J
custom with the force of law; or (3) a constitutional injury caused by a person with final

policymaking authority. Baxter by Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 734-35 (7th

Cir.1994). See also Wolf-Lillie v. Sonquist, 699 F.2d 864, 870 (7th Cir. 1983) (“[l]iability may
be predicated ‘pursuant to a governmental custom even though such a custom has not received
formal approval”).

In pleading the above requirements, plaintiffs need only comply with the conventional
standards of notice pleading and are not required to meet any heightened pleading standard.
Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 165
(1993). Plaintiffs need not “allege all, or any of the facts logically entailed by the claim.”
American Nurses Assoc. v. Illinois, 783 F.2d 716, 727 (7th Cir.1986). “[A] complaint does not + -
fail to state a claim merely because it does not set forth a complete and convincing picture of the
alleged wrongdoing.” Id. , _

Plaintiffs, nevertheless, must do more than plead empty allegations of municipal policy to
state a claim. McTigue v. City of Chicago, 60 F3d 38 1, 382 (7th Cir.1995); Taylor v. City of ;
Chicago, 1997 WL 51445, at *2 (N.D. Ill. Feb. 3, 1997). “Boilerplate allegations of a municipal
policy, entirely lacking in any factual support that a city policy does exist, are insufficient.”

Sivard v. Pulaski County, 17 F.3d 185, 188 (7th Cir. 1994). Plaintiffs must plead the operative
facts which form the basis of their claims. MeCormick v. ‘City of Chicago, 230 F.3d 319, 325

(7th Cir. 2000).


an

claim under the Fourth Amendment. Michigan v. DeFillioppo, 443 U.S. 31, 37-38 (1979); Ryan
v. County of DuPage, 45 F.3d 1090, 1094 (7th Cir. 1995). However, in Ryan, 45 F.3d at 1094,
the Seventh Circuit noted that the above rule does not apply where “the invalidity of the rule was
or should have been plain to the arresting officers.”

In setting out the above exception, the Seventh Circuit relied on Buffkins v. City of

Omaha, 922 F.2d 465 (8th Cir. 1991), In Buffkins, the plaintiff brought an action against a city

and two police officers for violating her Fourth Amendment rights after the police arrested the
plaintiff under a city ordinance that was later held unconstitutional. Id. at 466. The claim against
the city alleged that the city’s failure to repeal the ordinance, which the city knew or should have
known was unconstitutional, tesulted in the alleged constitutional deprivation. Id. at 471.

Reversing the district court’s dismissal of the city, the Eighth Circuit noted that, at the .
time of the arrest, the constitutionality of the ordinance at issue had already been questioned by
the state supreme court and that several federal courts had held similar ordinances :
unconstitutional. Id. Therefore, because the officers relied on the patently unconstitutional
ordinance in arresting the plaintiff, the court held that the city “was improperly dismissed.” Id, at
471-72.

Here, similar to Buffinks, as explained above, in Loper, 999 F.2d at 709, the Second
Circuit held that an almost identical panhandling statute, which broadly prohibited all

panhandling on city streets, violated the First Amendment. In Gresham, 225 F.3d at 907, the

Seventh Circuit, in upholding z a much narrower er ordinance, which limited panhandling to certain
{
areas, noted that the ordinance was “far ry from the total citywide ban on panhandling

overtumed by the court in Loper. ” Likewise, a number of other courts have held that ordinances

Qe.


policy must allege some specific facts conceming the alleged policy or custom. Although there :
is language in McTigue supporting the City’s position, the Court believes that the Seventh
Circuit's decision in McCormick v. City of Chicago, 230 F.3d 319 (7th Cir.2000), controls this
case.

In McCormick, the plaintiff brought a section 1983 claim against the City alleging that
the City had “a widespread custom of allowing white police officers in predominately white
districts, to engage in individual acts of discrimination against African-Americans, without fear
of vigorous and effective enforcement of City anti-discrimination policies.” 230 F.3d at 322.
Reversing the district court’s dismissal of the plaintiff's claim, the Seventh Circuit held that this
language was enough to support a section 1983 claim against the City. Id. at 324-25. The court
stressed that the Federal Rules of Civil Procedure only require notice pleading, and that the U.S.
Supreme Court's decision in Leatherman, 507 U.S. at 164-69, which held that the “smattering of
phrases like . . . widespread custom” throughout the complaint is generally enough to state a -
claim for municipal liability, confirmed that there is no heightened standard of pleading.
McCormick, 230 F3d at 323-25. The court also distinguished cases such as McTigue, noting that
in those cases where dismissal was affirmed, “the plaintiffs left out facts necessary to give the
defendants a complete understanding of the claims made against them.” Id, at 325.

Following McCormick, many courts in this district have refused to dismiss claims against
the City stemming from alleged policies and customs of the City which resulted in alleged
constitutional deprivations, where the plaintiffs made similar allegations to those used here by

Plaintiffs. See, e.g., Torres v. City of Chicago, 123 F. Supp. 2d 1130, 1132 (N.D. Ill. 2000)

(denying the City’: 's motion to dismiss, the court held that “[cJonclusory language in the

Ge!


'

Here, Plaintiffs allege that the City has a policy, both written and unwritten custom and
practice, which violated their rights under the First and Fourth Amendments. In Count, «°° - +>
Plaintiffs allege that:

[iJn addition to regulating panhandling activity through Section 8-4-010(f) . . . the
City has a policy, which is executed by the Chicago Police, of verbally harassing
and reprimanding those individuals engaged in peaceable panhandling on the City
sidewalks. Such harassment includes, but is not limited to, telling individuals that
they cannot panhandle in the public forum in which they are currently
panhandling and to move along.
(Second Am. Compl. at 48.) Similarly, Count IV alleges that the City “knew or should have
known that Section 8-4-010(f) . . . violated individuals’ First Amendment rights and was,
therefore, unconstitutional.” (Id. at | 53.) Despite this alleged knowledge, Plaintiffs contend that
the City’s:
policies of failing to repeal the Ordinance and failing to adequately train the
_ Chicago Police [to refrain from making arrests under Section 8-4-010(f)] amount
to deliberate indifference to Plaintiffs Fourth Amendment rights to be free from
unlawful seizure and arrest, search, and detention as those rights are secured by
the Fourth Amendment. east ache veg wl
(Id. at ]56.) Additionally, paragraphs 12-21 detail five specific instances (including dates) when
Plaintiffs were arrested, ticketed, or harassed by the Chicago Police for exercising their First ,
Amendment right to panhandle on City sidewalks. Plaintiffs further allege that, even after the
City allegedly decided not to officially enforce section 8-4-010(f, the City continued to obstruct ~
Plaintiffs’ First Amendment rights by arresting and harassing Plaintiffs for panhandling on public
sidewalks.

The City contends that these allegations are insufficient to state a claim because they are

conclusory and unsupported by facts. The City relies on MTigue v. City of Chicago, 60F.3d. ’

381 (7th Cir.1995), for the proposition that a plaintiff alleging a claim of municipal custom or

! -5«


. J
“ageressive panhandling,” but permitted peaceful panhandling at certain times and in certain

locations. The Seventh Circuit, however, noted that the ordinance was a “far cry from the total. * ~

citywide ban on panhandling overturned by the court in Loper.” Gresham, 225 F.3d at 907.

Here, the City has not at this time challenged Counts I and II, which allege that section 8-
4-010(f)’s broad prohibition on panhandling violated Plaintiffs’ First Amendment rights. On
October 30, 2001, after this suit was filed, the City sent a facsimile to each police district stating
that the police were no longer to enforce the panhandling ordinance. Plaintiffs, however, allege
in Count II that, despite the patently illegal nature of section 8-4-101(f) and the October 30
facsimile, the City, nevertheless, has a policy of harassing and reprimanding persons who
panhandle on public sidewalks in Chicago. Consequently, construing the allegations as true, this
Court finds that Plaintiffs have sufficiently alleged that the City has a custom and practice that
presents a sufficiently objective barrier to Plaintiffs’ First Amendment right to panhandle on
public sidewalks.

Wi. Fourth Amendment Claim “ 7

The City additionally seeks to have this Court dismiss Count IV, which alleges that the
City’s policies of failing to repeal section 4-8-010(B) and to adequately train the police amounted
to deliberate indifference to Plaintiffs’ Fourth Amendment rights. The City contends that .
Plaintiffs have failed to plead a claim under the Fourth Amendment because when the police
arrested or detained Plaintiffs, the Police had a good faith belief in the constitutional validity o of
the ordinance, and therefore, the arrests or detentions w were made with probable cause.

The City is correct in that an arrest which is made with probable cause and with a good

faith belief that the law, under which the arrest is made, is constitutional, does not make out a

J -8-



fMimite Order 4. an (06/97)
~

United States District Court, Northern District of Illinois -'- |

Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge Blanche M. Manning than Assigned Judge
CASE NUMBER 01 C 6916 DATE September 23, 2002
CASE Jessie Thompson, et al. v. City of Chicago
TITLE
Un the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

MOTION: nature of the motion being presented. ]

DOCKET ENTRY:

(1) a Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) oOo Answer brief to motion due. . Reply to answer brief due.

(4) a Ruling/Hearing on set for at

(5) im) Status hearing{held/continued to] [set for/re-set for] on set for at

(6) im Pretrial conference[held/continued to] [set for/re-set for] on set for at

(7) im Trial[set for/re-set for] on at . ney

(8) a [Bench/Jury trial] [Hearing] held/continued to at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) (General Rule21 OO FRCP41(a)(1) 0 FRCP41(a)(2).

(10)  @ [Other docket entry] For the reasons set forth in the attached Memorandum and Order, Defendant City
of Chicago’s Motion to Dismiss Counts III and IV of the Second Amended Complaint [31-1] is
DENIED.

i
(1) Oo [For further detail see order on the reverse side of the original minute order.]
No notices required, advised in open court.
No notices required.
Notices mailed by judge’s staff.
| | Notified counsel by telephone. Lane
Docketing to mail notices.
Mail AO 450 form.
C2
Copy to judge/magistrate judge. ve
courtroom
RTS deputy’s
initials
Date/time received in
central Clerk's Office mailing deputy initials



CONCLUSION OP
For the foregoing reasons, Defendant City of Chicago’s Motion to Dismiss Counts III and

IV of the Second Amended Complaint [31-1] is DENIED. It is so ordered.

Ag
ENTER: by wich Vil Vien,

BLANCHE M. MANNING
U.S. DISTRICT COURT JUDG!

DATE: ] “A3B~-OR

-ll-


POPatn Sto coe : rr

which broadly prohibit panhandling are unconstitutional. See Benefit v. City of Cambridge, 679

N.E.2d 184, 189-90 (Mass. 1997); C.C.B. v. State of Florida, 458 So.2d 47 (Fla. App. Ct. 1984).

Accordingly, given Plaintiffs’ allegations that the City “knew or should have known” that

the ordinance violated the First Amendment but nevertheless failed to repeal it, this Court finds
that Plaintiffs have sufficiently pled a claim under the Fourth Amendment. This conclusion is
also supported by Plaintiffs’ contention that the City never prosecuted any alleged violations of
section 4-8-010(£) and the October 30 facsimile ordering the police not to enforce the ordinance.
See Czerniak y. City of Milwaukee, 611 F. Supp. 182, 190 (E.D. Wis. 1985) (holding that the
police officers’ knowledge that the city had a practice of not prosecuting persons arrested under
the contested ordinance was relevant in determining reasonableness of the police officers’

conduct).

-10-


complaint was sufficient to put the City on notice of the claims even though it did not plead
facts”); Hamp ton v. City of Chicago, 1997 WL 790590, at *4 (N.D. Ill. Dec. 17, 1997) (denying
City’s motion to dismiss, the court held that the plaintiff “was not under any obligation to plead
specific facts concerning the City’s alleged practices or policies”), ,

Consequently, although Plaintiffs’ allegations of the City’s policies and procedures are
not stated with particular clarity, this Court finds that the allegations sufficiently state a
municipal liability claim under McCormick.

I. Right to Panhandle Under the First Amendment

The City further contends that this Court should dismiss Count III because Plaintiffs have
failed to sufficiently plead a claim under the First Amendment.

To plead a claim for a violation of the First Amendment against a municipality, plaintiffs
must alleged that they sustained or are immediately in danger of sustaining a specific, direct
injury from a government policy that chills the exercise of their First Amendment rights. Laird v.
Tatum, 408 U.S. 1, 13 (1972); Carroll v. City of Chicago, 1997 WL 189299, at *8 (N.D. Ill.
April 15, 1997). The government policy, however, must present an objective harm or threat to
the plaintiffs; allegations of a subjective “chill” are not sufficient. Id.

Here, section 8-4-010(f) prohibits panhandling on any of the City’s “public ways.”

Although neither the Supreme Court nor the Seventh Cireuit have addressed the issue, in Loper
v.. New York Police Departmen t, 999 F.2d 699, 709 (2 Qd Cit 1993), ‘the Second Circuit held | that a -
similar panhandling statute, which broadly prohibited all panhandling on city streets, violated the

First Amendment. In Gresham v. Peterson, 225 F.3d 899 (7th Cir.2000), the Seventh Circuit

rejected a constitutional challenge to an Indianapolis panhandling ordinance that prohibited

Wi BS

-7-


ype

Gibson, 355 U.S. 41, 45-46 (1957); Kunik v. Racine County, Wis., 946 F.2d 1574, 1579 (7th

Cir.1991), citing Hishon vy. King & Spalding, 467 U.S. 69, 73 (1984).

The court will accept all well-pled factual allegations in the complaint as true. Miree v.
DeKalb County, 433 U.S. 25, 27 n. 2 (1977). In addition, the court will construe the complaint
liberally and will view the allegations in the light most favorable to the non-moving party.

Craigs, Inc. v. General Electric Capital Corp., 12 F.3d 686, 688 (7th Cir.1993). However, the

court is neither bound by the plaintiff's legal characterization of the facts, nor required to ignore
facts set forth in the complaint that undermine the plaintiff's claims. Scott v. O'Grady, 975 F.2d
366, 368 (7th Cir.1992).
ANALYSIS

The City contends that this Court should dismiss Counts III and IV because Plaintiffs
have failed to sufficiently plead: (D municipal liability; @ a First Amendment claim; and (3) a.
cause of action under the Fourth Amendment. The Court will discuss each of these contentions
in turn. _

I. Monell Policy Claims

To state a claim for a constitutional deprivation against a municipality, the plaintiff must

allege the existence of a municipal policy or custom which caused the alleged violation. Monell

v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 690-91 (1978). A municipality

faces liability only where its policy is the “moving force” behind the constitutional violation.
Samuel v, City of Chicago, 41 F. Supp. 2d 808, 810 (N.D. III. 1999). To allege that a municipal
policy violated a constitutional right, a plaintiff must allege: (1) an express policy that, when

enforced, causes constitutional deprivation; (2) a widespread practice that, although not

-3-


Named Plaintiffs are homeless persons who panhandle money from pedestrians on the
public sidewalks in the City. Plaintiffs contend that section 8-4-010 and the City’s customs and
practices violated their rights under section 1983 (Counts I and II), the First Amendment (Count
I), and the Fourth Amendment (IV). They seek a declaratory judgment stating that the
panhandling ordinance violates the First and Fourth Amendments, a preliminary and then a
permanent injunction barring the City from enforcing the panhandling ordinance and barring the
City from harassing Plaintiffs from panhandling, money damages to be determined at trial, and
costs and attorneys' fees.

Plaintiffs allege that the City has repeatedly ticketed and arrested them, pursuant to,
section 8-4-010(f), for panhandling on public sidewalks. On October 30, 2001, the City sent a
facsimile to the various police districts instructing the police not to enforce the ordinance.
Despite this alleged change in policy, Plaintiffs contend that the City has maintained a policy of
arresting and harassing them for panhandling on m1 public sidewalks.

In response to the Second Amended Complaint, the City has moved to dismiss Counts III
and IV. _

STANDARD OF REVIEW

In ruling on a motion to dismiss pursuant t to o Federal Rule of Civil Procedure 1206), the '
court must assume the truth of all facts alleged in the complaint, construing the allegations
liberally and viewing them in the light most favorable to the plaintiff. See, e.g., McMath v. City
of Gary, 976 F.2d 1026, 1031 (7th Cir.1992); Gillman v. Burlington N. R.R. Co., 878 F.2d 1020,
1022 (7th Cir.1989). Dismissal is properly granted only i ifi it is clear th that no ‘set of facts which the

plaintiff could prove consistent with the pleadings would entitle the plaintiff to relief. Conley v.

-2-


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
JESSIE THOMPSON, et al., )
)
Plaintiffs, )
) Hon. Blanche M. Manning
ve )
) 01 C 6916
CITY OF CHICAGO, a municipal corporation, )
)
Defendant. )
MEMORANDUM AND ORDER

Plaintiffs Jessie Thompson, Ronald Davis, and Nadine Buchanan, both individually and
on behalf of a proposed class, brought this action against the City of Chicago (“the City”) for
allegedly violating their rights under 42 U.S.C. § 1983, the First Amendment, and the Fourth
Amendment. The instant matter comes before the court on the City’s Motion to Dismiss Counts
TW and IV of the Second Amended Complaint, pursuant to Federal Rule of Civil Procedure
12(b)(6). For the reasons that follow, the motion is DENIED. oi a

BACKGROUND'

This action stems from section 8-4-010(8) of the Chicago Municipal Code, which states
that “[a] person commits disorderly conduct when he knowingly: . . . (f) Goes about begging or
soliciting funds on the public ways, except as provided in Chapter 10-8, Sections 10-8-110 "- ‘°
through 10-8-170. Chapter 10-8 allows individuals to solicit charitable donations provided OCKETED

have apermit. SEP 24 2002

' The facts in the background section are derived from Plaintiffs’ Second le

Complaint.