In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-4112

KEITH GOWER,

Plaintiff-Appellant,

v.

JEFFREY VERCLER and RYAN GARRETT, 

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 01-2030—Michael P. McCuskey, Judge.

____________

ARGUED MAY 20, 2003—DECIDED JULY 23, 2004

____________

Before COFFEY, KANNE, and DIANE P. WOOD, Circuit

Judges.

COFFEY, Circuit Judge. On February 12, 2001, the

Plaintiff-Appellant, Keith Gower, filed suit in federal court

against two Champaign County, Illinois, sheriff’s deputies

seeking redress for the alleged violation of his Fourth

Amendment rights, pursuant to 42 U.S.C. §§ 1983 and

1985, and malicious prosecution, pursuant to Illinois law.

Gower’s claim was based on his assertion that on February

12, 2000, Deputies Jeffrey Vercler and Ryan Garrett illegally entered his home and arrested him for violation of
2 No. 02-4112

720 Ill. Comp. Stat. 5/26-1(a)(1), Illinois’ disorderly conduct

statute. The case was tried before a jury and after all the

evidence had been submitted, Gower moved for a directed

verdict under Rule of Civil Procedure 50(a). After hearing

arguments, the trial judge denied Gower’s motion, and the

jury proceeded to find in favor of the Defendants on each of

the claims, the § 1983 and Illinois tort claims. Gower

appeals, urging us to hold that the district court erred in denying his motion for a directed verdict and, in the alternative,

that the jury’s verdict was unsupported by the evidence

and, thus, was unreasonable. We affirm.

I. BACKGROUND

In 1999, Keith Gower (“Gower”) lived in a rural area of

Champaign County, Illinois, with his wife, Tina, and with

his two children, Kassandra and Preston. The Gowers were

geographically close neighbors of Tina’s mother and stepfather, Thomas and Diana Taylor. Indeed, the homes of the

two families were located approximately 70 yards apart

from each other. In spite of their proximity, however, the

Gowers and Taylors have a documented history of animosity towards each other, which has occasionally necessitated

the involvement of law enforcement officers. For example,

on October 31, 1999, Deputy William Oliger, who is not a

party to this suit, and Defendant Deputy Jeffrey Vercler of

the Champaign County Sheriff’s Department responded

to an emergency call alleging a domestic disturbance at the

Gower residence. Diana Taylor had placed the call, requesting assistance and stating that her husband and Keith

Gower were exchanging verbal insults across their respective property lines. After the deputies had investigated the

matter, Gower told them that he was going to stay somewhere else for the remainder of the night so that he could

“cool off.” Having diffused the situation and assured the
No. 02-4112 3

1 During previous day’s trip to the hospital, Preston had been

prescribed steroid medication for his asthma flare-up, signifying

his condition was worsening.

2 According to Keith Gower, he never revealed his possession of

the knife.

safety of the parties, the deputies refrained from issuing

any citations nor did they make any arrests.

A few months later, on the evening of February 11, 2000,

the two families again engaged in a dispute, this time due

to the Gowers’ refusal to allow their son Preston to visit the

Taylors’ home. When they returned home that evening,

Diana Taylor told the Gowers that she was going to take

Preston with her. However, the Gowers refused to allow

Preston to go because they were concerned that Diana’s

smoking would aggravate his asthmatic condition.1

 This

sparked an argument, which resulted in Thomas Taylor,

who was nearby, getting involved. Thomas allegedly charged

up the driveway of the Gower home and simultaneously

appeared to be reaching for a buck knife that he commonly

carried in his back pants pocket; however, neither party

alleges a weapon was ever brandished. In response to this

perceived threat, Gower stated that he went back to the

kitchen and grabbed a six-inch chef’s knife and held the

weapon out of view while he returned to the front door

where his wife Tina was trying to reason with her stepfather.2

 According to the Gowers, the Taylors continued to

demand that Preston remain with them and repeatedly

asked the Taylors to leave. However, Thomas Taylor claims

that Keith Gower also waived the knife he was holding at

him and threatened that “he [was] going to urinate on

[Thomas’s] grave when [he was] dead.” (Tr. 141.) In any

event, Thomas retreated before the argument escalated into

physical violence and Diana called the police. Once again

Deputy Oliger was one of the officers who responded to the

call, but for a second time, he refrained from issuing any
4 No. 02-4112

3 While Deputy Vercler testified at trial that Mrs. Taylor would

not divulge any more information to him regarding precisely what

Gower had been yelling at the Taylors that morning, during her

own testimony, Mrs. Taylor stated that “I was being called a psycho b-i-t-c-h. My husband was called a big fat a-s-s MF’er and

threatening our lives.” (Tr. 153. (emphasis added)).

citation or making any arrests. Instead he suggested to the

parties that they apply for orders of protection against each

other, if they should be so inclined.

The next morning, February 12, 2000, Champaign County

deputies responded to yet another heated confrontation

between the Gowers and Taylors, which is the subject of

this action. Just before 6:00 a.m., Diana Taylor placed a 911

call alleging that a domestic disturbance had once again

occurred involving Keith Gower and her husband. Deputy

Vercler was the first to respond to the dispatch and, while

en route to the scene, he was informed by the sheriff’s

department dispatcher that deputies had been called to the

scene the night before to respond to a domestic disturbance

call. Vercler was the first to arrive at the Taylor residence

and he proceeded to interview Diana Taylor about the

alleged incident. During their conversation, the deputy

noted that Mrs. Taylor was “very upset” and observed her

“visibly shaking” and “crying.” (Tr. 160.) Diana informed

Vercler that while her husband, Thomas, was leaving for

work that morning, Keith Gower shouted several obscenities from his residence directed at her and her husband,

although she refused to repeat the exact language used by

Gower, stating only that “[i]t’s too horrible.”3

 (Tr. 160.)

Continuing his investigation, Deputy Vercler telephoned

Thomas Taylor on his mobile phone and talked to him while

he was en route to work. Thomas informed Vercler that, as

he was walking to his garage to leave for work, Gower

shouted “fuck you” three or four times, called him “a fat

son-of-a-bitch,” and made noises that sounded like a
No. 02-4112 5

4 As a seven-year-old with a mental capacity of about a four or

five year-old, it is highly doubtful that Preston possessed any authority, either actual or apparent, to consent to the officers’ entry

into the Gower home. In any event, the Defendants do not contend

that Preston had authority to consent to their entry of the home,

and the issue is not before this Court.

clucking chicken. (Tr. 176.) Deputy Vercler testified at trial

that, during his investigation, he also learned from Diana

(and perhaps from the emergency police dispatch call,

although he could not remember for certain) that during the

altercation the previous evening Gower had brandished a

butcher knife.

After Vercler had completed his investigation with the

Taylors, Defendant Sheriff’s Deputy Ryan Garrett arrived

on the scene, and the two deputies proceeded to the Gower

residence. At trial, the parties gave conflicting accounts of

the incident that followed. Gower testified that he never

gave the deputies permission to enter into his house.

Rather, he stated that, after getting up to call the family, he

went back to sleep and later awoke to a loud knock on the

door. He thought the noise was made by his seven-year-old

son, Preston, who, according to the Gower, would on

occasion jokingly make “fake knock[ing]” sounds. (Tr. 62.)

When Preston yelled to his father that people were at the

front door, Gower testified that he responded with “Ha, ha.

Very funny, Preston. Ha, ha.” Id. Gower stated that when

he heard adult voices in the living room shortly thereafter,

he called out to Preston and inquired as to whom he had let

into the house,4

 at which time he heard someone say,

“Keith, can you come out in the living room, please.” (Tr.

63.) Gower testified that, while still in his bedroom, he

asked for the visitors to identify themselves and was told

that they were sheriff’s deputies. According to Gower, he

then awoke his wife and they proceeded to the living room

to speak with the deputies.
6 No. 02-4112

5 The record on appeal fails to explain the State’s reason for dismissing the charges.

In contrast to Gower’s testimony, Deputy Vercler testified

that when he knocked on the door, Preston Gower answered. Vercler stated that he (Vercler) then yelled “Keith,”

to which he heard a reply of “yeah” from down a hallway.

Vercler claims that he promptly announced that he was

with the Sheriff’s Department and asked, “Can we come

in?”, to which the Gower again responded “yeah” at this

time. The deputies entered the house and Gower appeared

in a bathrobe. The officers stated that they proceeded to

question Gower about the alleged insults that he had

directed at the Taylors earlier that morning. Vercler and

Garrett further testified that Gower initially told them that

he had not been out of bed yet that day but eventually

reversed his story and said that, at 6:00 a.m., he had arisen to

call the cat in from outdoors and then returned to bed.

Gower denied ever making the statements that the Taylors

alleged he had made that morning.

After interviewing Gower, the deputies arrested him for

disorderly conduct, (a class C misdemeanor in Illinois, see

720 Ill. Comp. Stat. 5/26-1(a)(1)), based upon his alleged

profane and combative statements to the Taylors—to wit,

“fuck you, fuck you, fuck you, fat son-of-a-bitch.” Later that

day, the Champaign County State’s Attorney formally

charged Gower with disorderly conduct, to which later

Gower pled not guilty and requested a jury trial. Thereafter, on the first day of his jury trial, the State voluntarily

dismissed the disorderly conduct charges against Gower.5

Gower subsequently filed suit against the deputies under

42 U.S.C. § 1983, alleging that Vercler and Garrett violated

his Fourth and Fourteenth Amendment rights by, first,

entering his home without his consent or a warrant and,

second, by arresting him without probable cause. In
No. 02-4112 7

addition, Gower also brought an Illinois common law claim

against the officers, under the district court’s pendant

jurisdiction, for the intentional infliction of emotional distress. A two-day jury trial ensued on Gower’s claims against

the deputies, at which all of the principals to the events

underlying his arrest for disorderly conduct testified. At the

close of the evidence, Gower requested a directed verdict,

arguing that, as a matter of law, the Defendants lacked

probable cause to arrest him for disorderly conduct based

merely upon the alleged words that he spoke to the Taylors.

The district judge denied the motion, and the jury found in

favor of the defendant officers on both counts.

II. Analysis

Gower appeals, presenting the following issues: (1)

whether the Defendants’ warrantless entry into his residence violated the Fourth Amendment; and (2) whether the

district court erred in denying his motion for directed

verdict because the deputies lacked, as a matter of law,

probable cause to arrest him for disorderly conduct.

We review a trial court’s denial of a directed verdict de

novo, viewing all the evidence in the light most favorable to

the non-movant. Byrne v. Bd. of Educ., Sch. of West Allis,

979 F.2d 560, 564 (7th Cir. 1992). Furthermore, where, as

here, a jury subsequently returned a verdict, “[t]his Court

is limited to deciding only whether the evidence presented

at trial, with all the reasonable inferences drawn [therefrom], ‘is sufficient to support the verdict when viewed in

the light most favorable to the [prevailing party].’ ” Hasham

v. Cal. State Bd. of Equalization, 200 F.3d 1035, 1043 (7th

Cir. 2000) (quoting Collins v. Kibort, 143 F.3d 331, 335 (7th

Cir. 1998)); see also Newsome v. McCabe, 319 F.3d 301, 303

(7th Cir. 2003); Albrechtsen v. Bd. of Regents of the Univ. of

Wis. Sys., 309 F.3d 433, 435 (7th Cir. 2002). When reviewing a jury verdict, we are not allowed to reweigh the
8 No. 02-4112

evidence or substitute our own credibility determinations for

that of the jury because “[q]uestions of ‘credibility and

weight of the evidence [are] within the purview of the jury,

whose verdict cannot be lightly set aside so long as it has a

reasonable basis in the record.’ ” Gentry v. Export Packaging

Co., 238 F.3d 842, 847 (7th Cir. 2001) (quoting Lippo v.

Mobil Oil Corp., 776 F.2d 706, 716 (7th Cir. 1985)); see also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)

(“Credibility determinations, the weighing of the evidence,

and the drawing of legitimate inferences from the facts are

jury functions, not those of a judge . . . . The evidence of the

non-movant [to a directed verdict motion] is to be believed,

and all justifiable inferences are to be drawn in his favor.”);

Tullis v. Townley Eng’g & Mfg. Co., 243 F.3d 1058, 1062

(7th Cir. 2001). Thus, in order to prevail, Gower must

establish that “ ‘no rational jury could have brought in a

verdict against [him].’ ” Sheehan v. Donlen Corp., 173 F.3d

1039, 1043 (7th Cir. 1999) (quoting EEOC v. G-K-G, Inc., 39

F.3d 740, 745 (7th Cir. 1994)). With this degree of deference

toward the jury’s verdict in mind, we address each of

Gower’s Fourth Amendment claims.

Initially, we address Gower’s assertion that the

Defendants’ warrantless entry into his residence violated

his constitutional rights under the Fourth Amendment. It is

well-settled that “[p]olice generally need a warrant to enter

a home,” United States v. Jenkins, 329 F.3d 579, 581 (7th

Cir. 2003), and that “[w]arrantless searches are per se

unreasonable under the Fourth Amendment.” United States

v. Hughes, 993 F.2d 1313, 1315 (7th Cir. 1993); see also

United States v. Walls, 225 F.3d 858, 862 (7th Cir. 2000) (“A

warrantless entry into a residence to effect an arrest is

presumptively unreasonable under the Fourth Amendment.”) (citing Payton v. New York, 445 U.S. 573, 586

(1980)). However, it is recognized that if “someone with

authority to do so consents to the entry, the entry is

reasonable and the Fourth Amendment is not violated.”
No. 02-4112 9

Walls, 225 F.3d at 862; accord United States v. Durades,

929 F.2d 1160, 1163 (7th Cir. 1991). The existence of

voluntary consent to a warrantless entry of a residence “is

a question of fact to be determined by the totality of the

circumstances,” United States v. Marshall, 157 F.3d 477,

483 (7th Cir. 1998), and a determination that consent to

enter existed will only be reversed if it is clearly erroneous,

Walls, 225 F.3d at 863 (citing United States v. Durades, 929

F.2d 1160, 1163 (7th Cir. 1991)).

A. Voluntary Consent

In the instant case, the issue of whether Gower voluntarily consented to the warrantless entry of his home

clearly amounted to a credibility determination for the jury

to resolve. Deputies Vercler and Garrett testified at trial

that Gower voluntarily gave his consent to the deputies to

enter. In particular, Vercler testified that once Gower’s son

answered the door, he and Garrett, while still standing

outside the front door, yelled into the house, calling aloud

“Keith.” (Tr. 162-63.) Vercler testified that Keith replied,

“yeah,” after which Vercler identified himself as with the

Sheriff’s Department and asked in a loud voice, “Can we

come in?” According to Vercler, Gower again replied “yeah,”

and, after this statement, the deputies crossed the threshold and entered into the house. During his testimony,

Deputy Garrett corroborated Vercler’s account of their entry

into the Gower home, stating that “[Gower] invited us in

the residence.” (Tr. 213.) The plaintiff disagreed, testifying

that he never consented to the officers’ entry. In particular,

Gower claimed that it was not until he heard adult voices

in the living room that he called out to his son and asked

whom he had let into the house, only to hear a man identifying himself as from the Sheriff’s Department ask Keith to

come out to the living room.
10 No. 02-4112

6 We also note that the officers initially entered Gower’s home

only to investigate the Taylors’ claim and not to arrest Gower. It

(continued...)

Because the jury found in favor of the Defendants, it is

clear that they accepted the deputies’ version of the facts to

being more credible than Gower’s; a conclusion we refuse to

disturb:

We will not second-guess a jury on credibility issues.

While this court’s review is confined to the “cold pages”

of an appellate transcript, the jury had an opportunity

to observe the verbal and non-verbal behavior of the

witnesses, including the subject’s reactions and responses to the interrogatories, their facial expressions,

attitudes, tone of voice, eye contact, posture and body

movements . . . . [I]t is not the task of this appellate

court to reconsider the evidence or assess the credibility

of the witnesses.

Kossman v. Northeast Ill. Reg’l Commuter R.R., 211 F.3d

1031, 1037-38 (7th Cir. 2000) (citations omitted); see also

United States v. Bogan, 267 F.3d 614, 623 (7th Cir. 2001)

(“[A] credibility determination . . . is solely within the

province of the jury”); Goodwin v. MTD Prods., Inc., 232

F.3d 600, 606-07 (7th Cir. 2000). After weighing the officers’

testimony against that of the Plaintiff-Appellant’s testimony, a rational jury could have properly determined that

Gower voluntarily gave the Defendants his verbal consent

to enter the house subsequent to the Defendants identifying

themselves (before crossing the threshold of the Gower

home and making entry) and asking permission to enter.

Accordingly, the jury’s finding that the deputies’

warrantless entry into Gower’s residence did not violate his

Fourth Amendment rights was entirely reasonable. We

reject Gower’s assertion that he was entitled to judgment as

a matter of law as to this Fourth Amendment claim based

on the deputies’ alleged warrantless entry into his home.6
No. 02-4112 11

6 (...continued)

is clear from the trial testimony that Officer Vercler made his

probable cause conclusion only after he had communicated with

the Gower regarding the alleged incident and had concluded that

Gower’s chronicle was unworthy of belief.

7 Gower also asserts that a warrantless arrest inside a suspect’s

home, even with probable cause, is lawful only if the suspect is

arrested for a felony, but this argument is wholly without merit:

“[Illinois law] allows a full custodial arrest for any crime on

probable cause,” Gramenos v. Jewel Cos., Inc., 797 F.2d 432, 441

(7th Cir. 1986) (emphasis added) (discussing Illinois law allowing

a custodial arrest for a misdemeanor), and a misdemeanor offense

is a crime.

B. Probable Cause

Gower next argues that the Defendants lacked, as a

matter of law, probable cause to arrest him for disorderly

conduct and that the district court should have granted his

motion for a directed verdict.7

 Probable cause exists to arrest a suspect “if at the time of arrest the facts and circumstances within the arresting officer’s knowledge and of

which [he] has reasonably trustworthy information would

warrant a prudent person in believing that the suspect had

committed or was committing an offense.” Spiegel v.

Cortese, 196 F.3d 717, 723 (7th Cir. 1999) (citations and

internal quotations omitted); see also United States v.

Mounts, 248 F.3d 712, 715 (7th Cir. 2001). Probable cause

is a “commonsense determination, measured under a reasonableness standard.” Spiegel, 196 F.3d at 723 (citations

and internal quotations omitted). Furthermore, “[t]he existence of probable cause turns on the information known to

the officers at the moment the arrest is made, not on

subsequently-received information.” Id. It is largely irrelevant—for purposes of determining an arresting officer’s

liability—whether the person arrested is later found to be

innocent. Id.; see also Michigan v. DeFillippo, 443 U.S. 31,
12 No. 02-4112

36 (1979) (“The validity of the arrest does not depend on

whether the suspect actually committed a crime; the mere

fact that the suspect is later acquitted of the offense for

which he is arrested is irrelevant to the validity of the arrest.”). Instead, “[s]o long as a reasonably credible witness

or victim informs the police that someone has committed, or

is committing, a crime, the officers have probable cause to

place the alleged culprit under arrest.” Jenkins v. Keating,

147 F.3d 577, 585 (7th Cir. 1998). 

The Illinois statute proscribing disorderly conduct reads:

“A person commits disorderly conduct when he knowingly

does any act in such unreasonable manner as to alarm or

disturb another and to provoke a breach of the peace.” 720

Ill. Comp. Stat. 5/26-1(a)(1). In applying this provision,

Illinois courts have recognized that “the types of conduct

intended to be included under this section almost defy

definition.” People v. Davis, 413 N.E.2d 413, 415 (Ill. 1980)

(internal quotation omitted). We have also previously noted

that, under Illinois law, the determination of whether particular conduct is disorderly depends on how unreasonable

it is in relation to the surrounding circumstances. See

Biddle v. Martin, 992 F.2d 673, 677 (7th Cir. 1993).

When viewed in the context of the family conflict that

plagued the Gowers and the Taylors, cf. Humphrey v.

Staszak, 148 F.3d 719, 727 (7th Cir. 1998) (stating that a

jury must analyze an arrestee’s words in relation to the

surrounding circumstances), we are confident (as was the

jury) that the deputies had probable cause to conclude that

Gower’s conduct directed at the Taylors in the early morning of February 12, 2000, rose to the level of disorderly

conduct under Illinois law. At trial, evidence was presented

by the Defendants—which, given that they prevailed before

the jury, we must believe for the sake of this challenge,

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986)—showing that, at time of arrest, the arresting

deputies were personally well aware of the history of
No. 02-4112 13

tension between Gower and his in-laws (Taylors). Testimonial evidence was also presented explaining that, when the

deputies arrested Gower, they had knowledge of the fact

that he had brandished a butcher knife in the presence of

the Taylors the night before as well as knowledge of his

obscene and overly aggressive language used the following

morning. Specifically, this conduct consisted of the Gower

shouting personally abusive obscenities directed at the

Taylors and of his attempting to provoke a violent reaction

by figuratively insulting Mr. Taylor’s courage (by mocking

him as a “chicken”). Additionally, Deputy Vercler observed

that Diana Taylor was “quite upset,” crying and visibly

shaking as a result of her encounter with Gower. This

observation further supports the conclusion that the vulgar

insults leveled at the Taylors would naturally incite trouble

among reasonable people and were intended to be abusive.

In light of these circumstances, a rational jury certainly

could have found that the deputies reasonably believed that

Gower knowingly “act[ed] in such unreasonable manner as

to alarm or disturb” the Taylors, thus “provok[ing] a breach

of the peace.” 720 Ill. Comp. Stat. 5/26-1(a)(1). In fact, the

type of behavior that Gower is alleged to have displayed

seems to be exactly the type that the Illinois disorderly

conduct statute is designed to address. Thus, it was more

than just “fairly possible” that the jury would conclude, as

it did in its verdict, that the Defendants possessed probable

cause to arrest Gower for the crime of disorderly conduct.

See Anderson, 477 U.S. at 254.

The gravamen of Gower’s directed verdict motion, however, was that his arrest under the Illinois disorderly conduct statute would in this case violate his First Amendment

right to free speech. That is, he is arguing that an arrest

which is premised merely on the words he yelled at the

Taylors (i.e., shouting “fuck you” a number of times, calling

Thomas Taylor a “big fat son-of-a-bitch” and “clucking” like

a chicken) on the morning of February 12, 2000, would
14 No. 02-4112

improperly punish constitutionally protected speech. Illinois

courts have previously addressed how constitutional

requirements essentially provide an additional element for

the disorderly conduct statute in the context where words

alone are deemed to be disorderly. Freedom of speech is one

of our most precious guarantees under the constitution; “it

is a fundamental right protected from invasion by the state

by the fourteenth amendment.” See People v. Redwood, 780

N.E.2d 760, 762 ( Ill. App. Ct. 2002). However, “[t]here are

certain well-defined and narrowly limited classes of speech,

the prevention and punishment of which have never been

thought to raise any [c]onstitutional problem. These include

. . . the insulting or ‘fighting’ words . . . .” Id. at 763 (quoting

Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72

(1942)). By their very nature “fighting words . . . provoke a

breach of the peace, such that they satisfy a necessary

element of disorderly conduct.” People v. Allen, 680 N.E.2d

795, 799 (Ill. App. Ct. 1997). Also, as this Court has noted

and reiterated a number of times “the emphasis of the

statute is upon the tendency of the conduct to disturb

others and to provoke disruptions of public order and upon

the unreasonableness of the activity when viewed in the

context of the surrounding circumstances.” Terket v. Lund,

623 F.2d 29, 31 (7th Cir. 1980) (quoting United States v.

Woodard, 376 F.2d 136, 139 (7th Cir. 1967)). Therefore, when

viewed in context of the totality of the circumstances, “[i]t

is clear that the right to knowingly commit an act in such

an unreasonable manner as to provoke, make or aid in

making a breach of the peace does not come within the

protections of the first amendment.” City of Chicago v.

Morris, 264 N.E.2d 1, 3 (Ill. 1970). Gower opines that his

alleged statements did not constitute “fighting words” as a

matter of law and, thus, his speech was constitutionally

protected and the Defendant deputies lacked probable cause

to arrest him for disorderly conduct.

We reject Gower’s assertion because we have little difficulty concluding, as a matter of law, that Deputies Vercler
No. 02-4112 15

and Garrett had probable cause to believe that Gower’s

reported verbal assaults, directed at the Taylors, consisted

of “fighting words” that “by their very utterance inflict

injury or tend to incite an immediate breach of the peace,”

Chaplinsky, 315 U.S. at 572, and “the prevention and

punishment of which has never been thought to raise any

Constitutional problem.” Id. at 571-72. Gower’s repeated

remarks to the Taylors of “fuck you,” his calling of his fatherin-law a “fat son-of-a-bitch,” and his attempt to humiliate

his father-in-law by essentially calling him a coward (i.e.,

clucking like a chicken), together plainly represent fighting

words, because they are “personally abusive epithets which,

when addressed to the ordinary citizen, are, as a matter of

common knowledge, inherently likely to provoke violent

reaction.” Cohen v. California, 403 U.S. 15, 20 (1971).

Moreover, when these invectives come from a man who, the

night before, had brandished a large knife at the

Taylors—the intended audience of his abusive words on the

morning of February 12, 2000—the likelihood of a violent,

immediate reaction is only magnified. See Terket, 623 F.2d

at 31. That Mr. Taylor properly exercised restraint by

refraining from retaliating in a violent manner to the

insults (probably so that he would not be tardy for work)

does not alter the fact that Gower’s words were those which

“[a] reasonable onlooker would have regarded . . . as a direct

personal insult or an invitation to exchange fisticuffs.”

Texas v. Johnson, 491 U.S. 397, 409 (1989), and which

breached the peace. Cf. Allen, 680 N.E.2d at 799 (explaining

that under Illinois law the term “breach of the peace”

describes “conduct that creates consternation and alarm. It

is an indecorum that incites public turbulence; yet violent

conduct is not a necessary element.”).

In all, Gower’s inflammatory, implicitly threatening, and

personally abusive language, which was uttered after

Gower had brandished a butcher knife at the Taylors the

night before, is not the type of speech which is protected by
16 No. 02-4112

8 Because we hold that Gower’s arrest did not abridge any of his

constitutional rights, we need not discuss whether, if his constitutional rights had been violated, Gower would have been entitled

to physically resist arrest or whether 720 ILCS 5/7-7 is unconstitutional as overly broad. See 720 Ill. Comp. Stat. 5/7-7 (“A person

is not authorized to use force to resist an arrest which he knows

is being made either by a peace officer or by a private person

summoned and directed by a peace officer to make the arrest, even

if he believes that the arrest is unlawful and the arrest in fact is

unlawful.”). Regardless, Gower concedes that he did not in fact

resist arrest and, therefore, he would not have standing to challenge the statute in the first instance. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992) (holding that a plaintiff must

suffer an “injury in fact” which would be redressed by a favorable

judgment in order to have standing).

the First Amendment and, therefore, the Illinois disorderly

conduct statue was not applied unconstitutionally against

Gower based on the facts of this case. Thus, the jury was

properly allowed to rule in favor of the Defendants on

Gower’s claim that Deputies Vercler and Garrett lacked

probable cause to arrest him for disorderly conduct. The

trial court’s denial of Gower’s motion for a directed verdict

was correct.8

III. Conclusion 

For the reasons stated herein, the judgment of the district

court is

AFFIRMED.
No. 02-4112 17

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-23-04