In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-2447

MARTIN ABRAMS,

Plaintiff-Appellant,

v.

KENT WALKER,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00C5768—Suzanne B. Conlon, Judge.

____________

 ARGUED FEBRUARY 19, 2002—DECIDED OCTOBER 10, 2002

____________

Before COFFEY, EASTERBROOK, and DIANE P. WOOD,

Circuit Judges.

COFFEY, Circuit Judge. Martin Abrams (“Abrams”) is

an attorney in Illinois who alleges that his civil rights

were violated when he was arrested by Illinois State

Trooper Kent Walker (“Walker”) when Walker was conducting a traffic stop in the fall of 1998. The district court

granted Walker’s motion for summary judgment, and

Abrams appeals. We affirm.

I. FACTUAL BACKGROUND

While many factual issues are disputed in this case, the

record is clear on several basic points. On the evening
2 No. 01-2447

of October 13, 1998, Abrams left the Boone County Courthouse with Trent Forte (“Forte”), his client. Abrams, having some concerns about potential police misconduct, told

Forte that Abrams would follow him on the road back to

Chicago. Shortly after entering the Northwest Tollway,

Forte was stopped by Trooper Walker. Walker, in full

uniform, exited his marked squad car and approached

Forte’s car.

Noticing that Forte had been stopped, Abrams pulled

his car onto the highway shoulder, backed up, parked

in front of Forte, exited his car, and approached Walker.

Abrams identified himself as Forte’s attorney and questioned Walker’s decision to pull Forte over. Turning his

attention from Forte’s vehicle, Walker explained that he

was going to issue tickets to Forte for following too closely, having an obstructed windshield, and not wearing a

seatbelt. Walker then instructed Abrams to return to his

vehicle and warned him that his failure to comply would

result in Walker issuing tickets to Abrams.

Abrams admits that he refused to obey Walker’s order,

even though he was aware it was being issued by a uniformed officer of the peace engaged in the performance

of his duties, and even after that order was repeated.

Walker then informed Abrams that he was being issued

tickets, whereupon Abrams both announced and manifested his intent to flee in his vehicle. While trying to stop

him from leaving, Walker found a knife in Abrams’ car,

which he then put on the roof of Abrams’ car. Abrams

subsequently retrieved the knife once Walker had returned

to his squad car to call for backup. Though Abrams disputes Walker’s assertion that Walker warned Abrams not

to touch the weapon, Abrams admits that he retrieved the

weapon moments after Walker had removed it from his

reach and informed him that he was going to be arrested

for the unlawful use of a weapon. In all, Abrams’ actions
No. 01-2447 3

1 Abrams had also named another trooper who assisted Walker,

Thé Tran, as a defendant, but voluntarily dismissed him and Tran

is not a party to this appeal.

2 The district court had jurisdiction under 28 U.S.C. § 1331 and

§ 1343(a)(3). However, contrary to Appellant’s Brief, the district

court did not have supplemental jurisdiction under 28 U.S.C.

(continued...)

had the effect of interrupting and delaying Walker’s traffic

stop of Forte.

Abrams was then taken into custody. Though the parties

dispute the extent of Abrams’ cooperation with Walker

as the latter was placing the former in handcuffs, Abrams

was eventually charged with obstructing a police officer and resisting arrest under 720 ILCS 5/31-1(a)(2000).

Abrams was also charged with two minor traffic offenses

(i.e., improper parking and improper backing). (Abrams was

not charged with the felony, as the state attorney’s office

did not approve the charges.) Abrams appeared as a defendant in a state court criminal bench trial on these

charges in February 2000, and, represented by counsel, testified in his own defense, and was found not guilty.

II. PROCEDURAL POSTURE

On September 19, 2000, Abrams filed a federal complaint

against Walker in his individual capacity under both

federal and state law, alleging that Walker had engaged

in malicious prosecution and that Walker had retaliated

against him for exercising his First Amendment rights.1

On November 28, 2000, Abrams filed an amended complaint in which he dropped the state law claim, reasserted

the malicious prosecution claim under 42 U.S.C. § 1983,

and raised claims for violations of his First and Sixth

Amendment rights also pursuant to § 1983.2
4 No. 01-2447

2 (...continued)

§ 1367(a), as Abrams had dropped the state law claim in his

amended complaint.

On February 23, 2001, Walker filed a motion for summary judgment. In his answer to Walker’s summary

judgment motion, Abrams abandoned his Sixth Amendment

claim. On April 9, 2001, the district court granted summary

judgment in Walker’s favor. The district court granted

Walker’s summary judgment motion on both counts, holding (1) that Walker had probable cause to arrest Abrams

for obstructing a police officer and thus Abrams could

not support a malicious prosecution claim; and (2) that

Abrams never engaged in any protected First Amendment

speech.

On April 18, 2001, Abrams filed a motion to reconsider

or to alter or amend judgment, which the district court

denied on May 23, 2001. Abrams timely filed a notice of

appeal on June 6, 2001.

III. DISCUSSION

Appellant asks this Court to reverse the district

court’s grant of summary judgment solely with respect to

his First Amendment retaliation claim. Appellant objects to the district court’s determination of facts in rejecting the retaliation claim.

A. Basis for Summary Judgment

A summary judgment motion must be granted if there

is “no genuine issue as to any material fact,” Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986), not, as Appellant

states, “if there are any genuine issues of fact.” “Only disputes over facts that might affect the outcome of the suit
No. 01-2447 5

under the governing law will properly preclude the entry

of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering the motion for summary judgment, the district court

properly relied on the state trial transcript and not

solely on Walker’s Rule 56 pleadings. See Covalt v. Carey

Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991) (holding

that the entire record may be examined when considering a summary judgment motion); Fed. R. Civ. P. 56(c).

We review a grant of summary judgment de novo, viewing

all the facts and drawing all reasonable inferences therefrom in favor of the nonmoving party. See Butera v. Cottey,

285 F.3d 601, 605 (7th Cir. 2002).

B. Retaliatory Claim

It is well established that “[a]n act taken in retaliation

for the exercise of a constitutionally protected right violates the Constitution.” DeWalt v. Carter, 224 F.3d 607, 618

(7th Cir. 2000). A public employee who retaliates against

someone for engaging in protected speech may violate

the First Amendment, which, of course, has been held

applicable to state action under the Fourteenth Amendment. See Martinez v. Hooper, 148 F.3d 856, 858 (7th Cir.

1998); Ryan v. County of DuPage, 45 F.3d 1090, 1091 (7th

Cir. 1995). In order to establish a prima facie case of First

Amendment retaliation, a plaintiff must demonstrate that

(1) his conduct was constitutionally protected; and (2) his

conduct was a “substantial factor” or “motivating factor”

in the defendant’s challenged actions. See Thomsen v.

Romeis, 198 F.3d 1022, 1027 (7th Cir. 2000) (citing Mt.

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,

287 (1977)). This court has held that even if a defendant

was “brimming over with unconstitutional wrath” against

a § 1983 plaintiff, that plaintiff cannot prevail unless he

or she establishes that the challenged action would not
6 No. 01-2447

have occurred “but for” the constitutionally protected conduct. Button v. Harden, 814 F.2d 382, 383 (7th Cir. 1987).

If this burden is met, the burden shifts to the defendant,

who must show by a preponderance of the evidence that

he would have taken the same actions even in the absence

of the protected conduct. See Thomsen, 198 F.3d at 1027.

Our Constitution permits citizens to criticize police officers, within reason, both verbally and nonverbally. See, e.g.,

Duran v. City of Douglas, 904 F.2d 1372 (9th Cir. 1990)

(making an obscene hand gesture and yelling expletives);

City of Houston v. Hill, 482 U.S. 451 (1987) (shouting at

police); Terminiello v. Chicago, 337 U.S. 1 (1949) (giving

a speech). Not all conduct is so protected, however. See,

e.g., Ryan v. County of DuPage, 45 F.3d 1090 (7th Cir.

1995) (refusing to remove a mask); People v. Crawford, 505

N.E.2d 394 (Ill. App. Ct. 1987) (interfering with an arrest);

People v. Finley, 363 N.E.2d 871 (Ill. App. Ct. 1977) (refusing to “clear the area”). Appellant would have us believe

that once he began conduct protected by the First Amendment, he became insulated from the consequences of any

further actions. We disagree, for it is entirely possible to

conceive of conduct that is involved with free expression

but nevertheless illegal, see, e.g., United States v. Douglass,

579 F.2d 545, 548-49 (9th Cir. 1978), just as it is possible for conduct that begins under the mantle of constitutional protection (e.g., questioning an officer) to end outside of such protection (e.g., obstructing an officer). See

Crawford, 505 N.E.2d at 396 (“A person may not use force

to resist an arrest by one whom he knows to be an officer

of the law, even if the arrest is unlawful. . . . He may

inquire as to its reason; he may point out the officer’s

mistake; he may protest and argue; but he may not impede the arrest by physical action.”)

Here, Abrams failed to demonstrate that his conduct

was constitutionally protected. While he may have been

entitled to his initial questioning of the officer, he had

no constitutional right to engage in conduct that he ad-
No. 01-2447 7

mits was both disobedient and dilatory. Abrams admits

that he repeatedly disobeyed the lawful order of a uniformed state trooper engaged in the performance of an

inherently risky duty—i.e., a traffic stop on the side of

a busy interstate highway. Abrams furthermore admits

that he attempted to flee the scene once the officer informed Abrams that he was being issued tickets. Abrams

also admits he retrieved the knife Walker had taken

from Abrams’ car once Walker had returned to his squad

car to call for backup. Abrams even admits that his actions had the effect of interrupting and delaying Walker’s

traffic stop of Forte.

The dissent lists four “facts” that “seem” to have been

“fairly disputed on the summary judgment record.” Post

at 13. To make clear our conclusion that there were

no “genuine issue[s] of material fact” with respect to these

matters, we quote at length Abrams’ own statements made

while under oath at trial:

Q: [W]as there any additional conversation between

yourself and the trooper after he told you why he was

ticketing your client and you told him who you were?

A: He said to me get in your car. I said well, I’d like to

talk to my client.

Q: Did he respond?

A: He said get in your car or you’re getting tickets.

Q: What if anything did you say or do at that time?

A: I said what for. He said tinted windows, parking

on the tollway, and backing up on the tollway.

Q: After he said that to you, what if anything did you

do?

A: I laughed because I said that’s a factory Corvette.

Those are not tinted windows.

Q: What happened then?
8 No. 01-2447

A: He said now you’re getting tickets. I said you know

what. I’m going to get in my car and leave. And I went

to my car.

Q: So you went to your car to leave before he told you

to go to your car, even?

A: No. He had told me from the very beginning get

in your car or you’re going to get tickets.

Q: Okay.

A: Then when he said to me now you’re getting tickets,

then I went and got in my car.

Q: What happened then?

A: Well, I told him I was going to leave so he came

running up to my car and he reached into my car and

he tried to grab my keys.

(Tr. at 120-21) (emphasis added). Upon cross-examination,

Abrams again admitted that he attempted to flee the scene:

Q: Do you believe our traffic laws apply to you?

A: Sure.

Q: Yet when the officer told you that you were going

to receive a traffic ticket, you took it upon yourself to

get in the car and attempt to leave. True?

A: No. I said I was going to leave. I never made—I was

going to leave. I would have.

. . . 

Q: . . . Is the reason you were going to leave because you were terrified of this officer or because you

felt he had no right to give you a ticket?

A: I felt he had no right to give me a ticket.

(Tr. at 135-36.) Abrams also admitted to retrieving the

knife that Trooper Walker had removed from Abrams’
No. 01-2447 9

3 “Fleeing” does not imply “rac[ing] off through the fields,” as

the dissent states. Post at 15. The first two definitions given for

the intransitive verb “flee” in Merriam-Webster’s Collegiate

Dictionary are “to run away, often from danger or evil,” and “to

(continued...)

car and placed outside of Abrams’ reach (on the top of

Abrams’ car):

Q: At what point do you start getting scared of

Trooper Walker?

A: When he says you’re under arrest for a UUW [unlawful use of a weapon] felony.

Q: And he said that when he found the knife in the

back of your car?

A: He says you’re under arrest for UUW felony.

Q: You were so scared of him that at that point

you proceeded to remove the knife that he had placed

on the roof of your car and boldly take it back inside.

Is that true?

A: I took the knife off the top of my car so it wouldn’t

scratch my car and put it back in the car. Yes, I did.

(Tr. at 139) (emphasis added). After his exchange with

Walker over the tickets and the knife, Abrams sat in his

car while Walker returned to his car to call for backup.

When asked to give an approximation of the time it took

for Trooper Walker’s call for backup to be responded to,

Abrams said “twenty minutes.” (Tr. at 124.)

These extended excerpts from Abrams’ state trial transcript show quite clearly, pace the dissent, that there was

no “genuine issue” over whether Abrams (1) failed to comply with the repeated lawful order of Trooper Walker

to return to his car (in the midst of a traffic stop on a busy

interstate highway); (2) that Abrams attempted to flee3
10 No. 01-2447

3 (...continued)

hurry toward a place of security.” It is clear from Abrams’ own

testimony that he attempted to leave the scene in his car once

Trooper Walker informed him that Abrams would be issued

tickets. The majority believes it is eminently fair to characterize

as “fleeing” an attempt to leave the scene of a traffic stop in one’s

vehicle after a uniformed police officer communicates his intent

to issue tickets.

4 We are required, upon review of a summary judgment grant,

to draw all “reasonable inferences” in favor of the non-moving

party. Butera, 285 F.3d at 605. To assume, as the dissent does,

that there was not “something wrong” with Abrams’ retrieval

of the knife (for which he was being arrested) is not a reasonable

inference.

once Walker told him he would be ticketed; (3) that

Abrams contravened Walker’s implicit order not to retrieve

the weapon;4

 and (4) that Abrams’ actions delayed Walker’s traffic stop of Forte. A person who believes that he

has a defense to a charge must make that defense in court;

he cannot flee the scene in an effort to avert the issuance

of a citation. The potential recipient of a traffic citation

just can’t have the privilege of saying: “Since in my own

eyes I have not committed any infraction, I can leave the

scene immediately despite the officer’s contrary instructions.”

Appellant cites City of Houston v. Hill, 482 U.S. 451

(1987), for the proposition that verbal criticism of police officers is an important characteristic of a free nation

and cannot be punished. This is true. But Mr. Abrams

could have been reciting the Magna Carta and still been

properly apprehended by Trooper Walker. His interference with a traffic stop on the side of a busy interstate

was not the proper time, place, or manner for an officer

of the court to register his disagreement with the traffic
No. 01-2447 11

stop. Moreover, Abrams’ attempt to leave the scene after

Walker informed him he was going to be issued tickets

was criminal.

Even if Abrams’ conduct was constitutionally protected, he still failed to satisfy the second Mt. Healthy requirement, for Abrams failed to demonstrate that his

conduct was a “substantial factor” or “motivating factor”

in the defendant’s challenged actions. See Thomsen, 198

F.3d at 1027. While it may be true that Walker was in

fact “brimming over with unconstitutional wrath” against

Abrams, Appellant cannot prevail unless he establishes

that the challenged action would not have occurred “but

for” the constitutionally protected conduct. Button, 814 F.2d

at 383. To this end, Abrams offers a truncated chronology

of the events as evidence that Abrams’ protected conduct

was a “substantial factor” or “motivating factor” in Walker’s

allegedly retaliatory actions. Abrams argues that a reasonable jury could infer, as a result of this chronology, that

he was “falsely arrested” and that he was arrested “because

of what [he] said.” Abrams then opines that “the arrest

was for an illegal purpose” and finally that “[a]nger often

leads to unthinking retaliation.” After reviewing the record and the standards presented in our line of cases,

we agree with the district court’s finding that this chronology is unconvincing, as it fails to present “definite, competent evidence to rebut the motion,” Michael v. St. Joseph

County, 259 F.3d 842, 845 (7th Cir. 2001), contains mere

speculation, and demands the making of unreasonable

inferences in support of Abrams’ arguments. See Gorbitz v.

Corvilla, Inc., 196 F.3d 879, 882 (7th Cir. 1999). Abrams

admitted under oath at his state trial that he (1) repeatedly

disobeyed Walker; (2) attempted to flee the scene once

Walker informed him that he was going to be cited; (3) retrieved the knife Walker had taken from Abrams’ car; and

(4) interrupted and delayed Walker’s traffic stop of Forte.

The undisputed facts and reasonable inferences therefrom
12 No. 01-2447

plausibly drawn from the entire record serve to establish

that Walker arrested Abrams for his conduct, not for his

speech.

Appellee Walker asks this Court to rule that the existence of probable cause is a complete defense to a First

Amendment retaliation claim in the context of an arrest.

See Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir.

2001) (holding that the existence of probable cause vitiated

the need for an inquiry into an underlying motive for

the arrest); Redd v. City of Enterprise, 140 F.3d 1378, 1383-

84 (11th Cir. 1998) (holding that the existence of probable cause for an arrest is a complete defense to a First

Amendment retaliation claim under the doctrine of qualified immunity). We recognize that such a step would not

be incongruent with our recent decision in Williams v.

Jaglowski, 269 F.3d 778, 781 (7th Cir. 2001), in which

we held that probable cause is a complete defense to

false arrest claims brought under the Fourth Amendment. Nevertheless, whereas the Appellant in this case

has not established that the defendant officer had, in fact,

a retaliatory motive, we decline to rule on this issue.

IV. CONCLUSION

The decision of the district court to grant the defendant’s

motion for summary judgment was proper.

AFFIRMED.
No. 01-2447 13

DIANE P. WOOD, Circuit Judge, dissenting. If this appeal had come to us after a full trial had taken place,

I would probably not be dissenting. But the procedural

posture of a case on appeal has a critical bearing on the

way in which this court must consider the facts. With

respect, I cannot agree with my colleagues that the facts

before us here, taken in the light most favorable to plaintiff Martin Abrams, require the conclusion that defendant Kent Walker is entitled to judgment as a matter of

law. To the contrary, the record here shows that there

are disputed issues of material fact that make summary

judgment inappropriate. I therefore dissent.

Without repeating the facts that the majority has set

forth, I wish to highlight those that seem to me fairly

disputed on the summary judgment record. There are

four alleged admissions from Abrams that are central to

the majority’s analysis. It claims that Abrams admitted

that (1) he repeatedly disobeyed Walker’s order to return

to his car, (2) he attempted to flee the scene once Walker

informed him that he would be ticketed, (3) he retrieved

the knife that Walker had taken from his car once Walker returned to his squad car to call for backup, and (4)

his actions had the effect of interrupting and delaying

Walker’s traffic stop of Trent Forte (Abrams’s client). If

there were indeed no material issues of fact about these

points and Abrams had really made such admissions, then

I would agree that the district court properly entered

summary judgment for Walker. No malicious prosecution action could lie, because Walker would have had

probable cause to arrest Abrams for obstructing a police officer, and no trier of fact or court could find that

Abrams had engaged in speech protected by the First

Amendment, which is the predicate for Abrams’s retaliation claim.

A closer look at these four admissions, however, shows

that they are not what they appear to be. The first one—
14 No. 01-2447

that Abrams allegedly repeatedly disobeyed Walker’s

order to return to the car—is contested. According to

Abrams’s version of the facts, when Walker ordered him

to return to his car, Abrams simply asked why. Walker

told him that Walker could give him tickets for having

tinted windows and for backing up on the highway.

Abrams laughed, and said that the windows were not

tinted. Walker then responded (without any further

requests about returning to the car) that Abrams was going to get ticketed. Abrams then indicated that he was

going to comply with Walker’s request that he return to

the car (and note that Walker did not testify that he had

at that point also ordered Abrams to remain on the

scene—it was only later that he ran over and grabbed

Abrams’s keys), and said, “You know what, I’m going

to get in my car and leave.” Obviously, this is not Walker’s version of the events, but we cannot resolve disputed

facts like who said what to whom, at what time, and

who walked where, on summary judgment, when we are

looking at the accounts of two eyewitnesses or participants. Indeed, the majority explicitly agrees with the

proposition that mere argument about the validity of an

arrest is not enough to show probable cause, because it

cites the Illinois case so holding, People v. Finley, 363

N.E.2d 871, 873 (Ill. App. Ct. 1977) (obstruction statute

proscribes only some physical act that imposes an obstacle

to the officer’s performance of his duties, not mere argument), ante at 6. Similarly, the majority also acknowledges the holding of People v. Crawford, 505 N.E.2d 394,

396 (Ill. App. Ct. 1987) (resistance statute proscribes the

use of physical force, not mere argument), ante at 6. The

facts as Abrams portrayed them show nothing more than

argument or disagreement, and they show that Abrams

eventually proposed doing exactly what Walker was asking him to do: returning to his car.

The second alleged admission relates to Abrams’s supposed attempt to flee the scene. The use of the word “flee”
No. 01-2447 15

here is problematic. It makes it sound as if Abrams raced

off through the fields in an attempt to avoid Walker, or

leapt into his car and gunned the accelerator. In fact,

Abrams, in keeping with Walker’s direction to return to his

car, said that he was going to leave the area, and he said

this only after Walker suggested a trumped-up charge

about tinted windows (recalling that for present purposes we must assume that the windows were in fact not

tinted). After Abrams voluntarily offered to leave, Walker grabbed his keys, looked in his car, and retrieved a

small hunting knife from the back. The knife was not

an unlawful weapon or implement, and Walker was so

unconcerned about it that he simply tossed it onto the

roof of Abrams’s car. Walker’s actions do not imply that

he was trying somehow to secure the knife. Instead,

Walker just walked away while Abrams remained unrestrained in his car and made several telephone calls. If

believed by a trier of fact, this sequence would refute

any claim that Abrams was trying to flee the scene. According to Abrams, after he finished his telephone calls,

Walker returned, ordered him out of the car, and Abrams

obeyed. Walker then handcuffed Abrams and told him

that he was under arrest for possessing the hunting knife.

Abrams did not resist the handcuffing, but Walker put

the cuffs on so roughly that he broke Abrams’s watch

in the process. At that point, Walker did not mention

charges of obstructing a police officer or resisting arrest.

That arose only later at the police station, when Walker

realized that he could not charge Abrams with anything

based on the small knife.

This shows that the claim about the knife is also disputed. According to Walker, Abrams retrieved the knife

without permission after Walker left the car. Abrams disputes the critical assertion here, which is whether Walker verbally or otherwise instructed him to leave the knife

on the roof of the car. Either version of the events is
16 No. 01-2447

possible; this is a quintessential example of something that

cannot be resolved on summary judgment.

Finally, with respect to the fourth alleged admission,

Abrams took the position in the district court and in his

affidavit that he was cooperative, courteous, and did nothing to impede Walker’s traffic stop of Forte.

This leaves us with an arrest based solely on the words

Abrams spoke to Walker, questioning the validity of the

stop and inquiring what basis for an arrest existed. Walker

had no right to retaliate against Abrams by arresting

him just because Walker was offended by Abrams’s words.

Finley and Crawford make this clear as a matter of Illinois law, and the First Amendment does not permit state

actors to impose punishment because of the communicative content of words. See Houston v. Hill, 482 U.S. 451,

461 (“[T]he First Amendment protects a significant amount

of verbal criticism and challenge directed at police officers.”). Nothing in the lengthy quotes from Abrams’s

testimony that the majority has furnished refutes these

points as a matter of law.

I would reverse the district court’s judgment in favor of

Walker and remand this case for a trial on the merits, so

that these factual disputes can be resolved properly. I

therefore dissent.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-10-02