                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-2741

F RANK T EESDALE, et al.,
                                                 Plaintiffs-Appellees,
                                  v.

C ITY OF C HICAGO, an Illinois
municipal corporation,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 09 CV 4046—William T. Hart, Judge.



     A RGUED M ARCH 28, 2012—D ECIDED A UGUST 10, 2012




  Before M ANION, SYKES, and H AMILTON, Circuit Judges.
  M ANION, Circuit Judge.


                                   I.
 Every July, St. Symphorosa Catholic Church in
Chicago holds a summer festival for several consecutive
days. The festival is open to the general public and no
2                                             No. 11-2741

admission fee is charged. To conduct the festival, the
parish obtains a special event permit from the Mayor’s
Office of Special Events, pursuant to Municipal Code
of Chicago, Illinois § 10-8-335 (2011). This permit allows
the parish to close portions of two public streets adja-
cent to the church. The streets are closed to vehicular
traffic, but are open to pedestrians. The festival is not
sponsored by the City of Chicago—it is organized solely
by St. Symphorosa.
  For the 2008 festival, St. Symphorosa obtained a City
permit running from July 6 through July 14. The parish
provided a team of security personnel for the festival,
which consisted of paid private security guards and
volunteer off-duty Chicago police officers who were
also St. Symphorosa parishioners. The head of St.
Symphorosa’s security team, Ray Kolasinski, was a pa-
rishioner and a member of the parish’s festival com-
mittee. Kolasinski was also a Chicago police officer,
but at the festival, he worked as one of the off-duty vol-
unteers. His encounter with some unexpected visitors
resulted in a lawsuit and ultimately this appeal.
  Located a few blocks away from St. Symphorosa is
Garfield Ridge Baptist Church, led by Pastor Frank Tees-
dale. Members of Garfield Church regularly travel to
various events and locations throughout Chicago to
engage in street ministry, which involves preaching to
members of the public and handing out gospel tracts.
In 2008, Garfield Church decided to attend the St.
Symphorosa festival to engage in this street ministry.
  On July 12, 2008, Pastor Teesdale and several members
of his church entered the east end of the festival and
No. 11-2741                                             3

began walking down one of the blocked-off streets. Tees-
dale carried a bullhorn, while the other Garfield Church
members carried signs and a banner with Scripture
verses. The group engaged festival patrons in conversa-
tion and handed out gospel tracts.
  Kolasinski was wearing a t-shirt that read “St.
Symphorosa Police” and was armed with his gun and
handcuffs. He approached Teesdale and told him that
although he could preach at the festival, he could not
use a bullhorn. Kolasinski also said that the group
could not distribute literature without St. Symphorosa’s
permission. Teesdale then attempted to speak through
the bullhorn. Kolasinski responded by taking Teesdale’s
arms, handcuffing them behind his back, and telling
Teesdale that he was under arrest. Kolasinski walked
Teesdale to the south entrance of the festival, followed
by the other Garfield Church members. St. Symphorosa
security called the police and asserted that they were
holding an offender for criminal trespass. Teesdale was
detained for approximately 30 minutes until two uni-
formed Chicago police officers arrived in a patrol car.
   The officers were told by either Kolasinski or the St.
Symphorosa business manager, Joseph Dillon, that Tees-
dale had been using a bullhorn and disturbing festival
visitors, and that he had refused to leave when asked
by security. At Kolasinski’s direction, Dillon then signed
a criminal complaint against Teesdale for trespass. Be-
lieving that the festival was a private event because the
streets had been blocked off, the officers arrested
Teesdale for trespass and brought him to the police
4                                               No. 11-2741

station. Teesdale was released on bond later that night.
His trespass charge was eventually dismissed.
  Nearly a year later, on July 6, 2009, the Garfield Church,
Pastor Teesdale, and four other church members filed
the current lawsuit against the City of Chicago, the two
Chicago police officers who arrested Teesdale, and ten
other “John Doe” defendants. In their suit, the plaintiffs
alleged that the 2008 arrest violated their First Amend-
ment rights and Pastor Teesdale’s Fourth Amendment
rights. The plaintiffs also argued that they were entitled
to a declaratory judgment that would enjoin the City
from preventing their attendance at future festivals.
This lawsuit was filed just three days before the start of
the 2009 festival.
   The following day, the plaintiffs filed a motion for a
temporary restraining order (TRO) and a preliminary
injunction, requesting an order from the court safeguard-
ing their right to attend the 2009 festival. The City
hastily filed its response the next day on July 8, 2009. In
its response, the City argued that the plaintiffs did not
have an unlimited First Amendment right to preach at
the festival, that St. Symphorosa could exclude the plain-
tiffs, and that the City had a “significant interest” in
preserving St. Symphorosa’s right to have its message
heard instead of the plaintiffs’. In support of this legal
argument, the City cited the United States Supreme
Court decision of Hurley v. Irish-American Gay, Lesbian
and Bisexual Group of Boston, 515 U.S. 557 (1995). The
City’s legal argument on Hurley was incorrect, and ulti-
mately, in hindsight, the City acknowledged that it was a
No. 11-2741                                              5

mistake. At that time, however, the district court did not
rule on the plaintiffs’ motion because of the imminence
of the 2009 festival. Instead, the district court urged the
parties to come to a temporary agreement allowing the
plaintiffs to enter the festival on terms acceptable to
both sides. The parties thus prepared a standby order,
which the district court entered. This order permitted
Pastor Teesdale and up to nine other Garfield Church
members to enter the festival during specific hours
with some limitations on the size of their signs
and a prohibition on using a bullhorn or other sound-
enhancing device. The parties abided by the standby
order, and the 2009 festival passed without incident.
  The case proceeded before the district court, and in
March 2010, the district court dismissed some of the
plaintiffs’ claims, including their claim that the City
had violated the plaintiffs’ First Amendment rights
during the incident at the 2008 festival. Notably, the
district court ruled that at the time of the 2008 incident
there was no evidence that the City had an official
policy that violated the plaintiffs’ rights. The case con-
tinued to discovery, however, on the claims that
Pastor Teesdale’s Fourth Amendment rights were
violated by the 2008 arrest and that the plaintiffs’ First
Amendment rights at future festivals were being threat-
ened.
  In July 2010, the parties again prepared a standby order
for St. Symphorosa’s 2010 festival that was essentially
identical to the standby order from the previous year.
The district court entered the order, and the 2010
festival also passed without incident.
6                                              No. 11-2741

   In January 2011, at the close of discovery, the parties
filed cross-motions for summary judgment. On May 26,
2011, the district court issued its opinion, ruling for the
City in part: The district court held that the 2008 arrest
did not violate Pastor Teesdale’s Fourth Amendment
rights because the officers had probable cause to arrest
Teesdale for disorderly conduct and were entitled to
qualified immunity. This decision was not appealed.
But the district court ruled against the City on the last
remaining issue in the case, finding that the plaintiffs’
First Amendment rights at future festivals were threat-
ened by an official City policy. It is this latter ruling
with which we are concerned.
   The district court’s decision was based on the City
counsel’s misguided legal argument in its July 2009
response to the plaintiffs’ motion for a TRO. Relying on
the United States Supreme Court decision in Hurley v.
Irish-American Gay, Lesbian and Bisexual Group of Boston,
515 U.S. 557 (1995), the City then argued that the plain-
tiffs did not have an unlimited First Amendment right
to preach at the festival and that St. Symphorosa could
exclude the plaintiffs in order to preserve its message.
The district court found that this legal position (which
turned out to be inaccurate) constituted an official City
policy that portended future violations of the plaintiffs’
First Amendment rights. In support of this ruling, the
district court noted that the City had not altered or
amended its position articulated in its TRO response.
As a result, it had failed to expressly state that it
would not interfere with the plaintiffs’ First Amendment
rights. Moreover, the district court found that the only
No. 11-2741                                              7

reasonable inference from the City’s willingness to
enter into the 2009 and 2010 standby orders permitting
the plaintiffs to attend the festival was that the City
had not changed its position from July 2009, asserting
that “[t]he clear implication of entering into standby
orders only is that the City continues to contend it can
lawfully stop plaintiffs’ proposed expression.” Conse-
quently, the district court concluded that there was a
“credible threat” that the City would enforce its stated
policy and interfere with the plaintiffs’ First Amend-
ment rights. The district court thus entered a declara-
tory judgment against the City, ordering it to permit
the Garfield Church members to enter any future St.
Symphorosa festival. The district court’s final judg-
ment essentially adopted the terms of the two previous
standby orders, authorizing the Garfield Church
members to attend any future festival, with the same
limitations as before: no bullhorn or other sound-enhanc-
ing device, a banner no larger than four feet by three
feet, and non-pole signs no larger than three feet by
two feet. The City then filed a motion for reconsidera-
tion, which the district court denied. The City appealed.
  We heard the parties’ oral argument on March 28,
2012. During the oral argument, counsel for the City
made clear that the City does not take issue with the
specific terms of the declaratory judgment. Rather, the
City is concerned that its errant litigation position
misled the district court when it held that the language
in the City’s pleading opposing the motion for a TRO
recited an official policy for the City of Chicago. Counsel
for the City also conceded during the oral argument that
8                                              No. 11-2741

the legal rationale of Hurley did not apply to the facts of
this case and that the plaintiffs have a First Amendment
right to attend festivals open to the public like that of
St. Symphorosa.
   Following the oral argument, the plaintiffs filed a
motion to dismiss the appeal, arguing that the position
taken by counsel for the City during the oral argument
mooted the City’s appeal. The plaintiffs argued that this
case was only alive because of the City’s previous litiga-
tion position—the litigation position based on Hurley
that allegedly threatened the plaintiffs’ First Amend-
ment rights—and because the City had retracted this
litigation position, the appeal was moot.
  To some extent the plaintiffs are correct—there is no
question that the City cannot prevent the plaintiffs from
exercising their First Amendment rights at upcoming
festivals. But what remains to be determined is the issue
of whether the litigation position the City argued in its
pleadings can constitute an official policy that gives rise
to liability against the City under 42 U.S.C. § 1983.
The district court concluded that the litigation position
was the official policy of the City. If that was actually
a City policy, then the plaintiffs arguably had a rea-
sonable fear of future prosecution for engaging in pro-
tected speech and the district court properly entered a
declaratory judgment against the City on that basis. But
we must consider the merits of this reasoning, upon
which the plaintiffs’ standing depends.
No. 11-2741                                                9

                             II.
  Despite the complicated factual and procedural back-
ground, the issue before us on appeal is simple: Does
the City’s legal argument made in its July 2009 TRO
response constitute an official policy under Monell
that gives rise to § 1983 municipal liability? We hold
that it does not. A mere legal position, without any-
thing more, is insufficient to constitute an official policy.
  A plaintiff, like Garfield Church and its members,
alleging a deprivation of his or her constitutional rights
by a municipality, may bring an action against the munici-
pality for declaratory or injunctive relief under 42 U.S.C.
§ 1983. Monell v. Dep’t of Social Servs., 436 U.S. 658, 690
(1978). To establish municipal liability, a plaintiff must
show the existence of an “official policy” or other gov-
ernmental custom that not only causes but is the “moving
force” behind the deprivation of constitutional rights.
Estate of Sims v. Cnty. of Bureau, 506 F.3d 509, 514 (7th
Cir. 2007) (quoting City of Canton v. Harris, 489 U.S. 378,
389 (1989)); see Monell, 436 U.S. at 694. A plaintiff can
establish an official policy through “(1) an express policy
that causes a constitutional deprivation when enforced;
(2) a widespread practice that is so permanent and
well-settled that it constitutes a custom or practice; or
(3) an allegation that the constitutional injury was
caused by a person with final policymaking authority.”
Estate of Sims, 506 F.3d at 515 (citing Lewis v. City of
Chicago, 496 F.3d 645, 656 (7th Cir. 2007)).
  In this case, the plaintiffs’ claims are not based on the
latter two possibilities: There are no allegations of other
10                                              No. 11-2741

arrests or a widespread City practice of violating First
Amendment rights, and the plaintiffs are not alleging
that the City’s counsel were persons with final policy-
making authority who caused a constitutional injury.
Instead, the plaintiffs contend, and the district court
agreed, that the legal argument made by the City in 2009
in its response to the plaintiffs’ motion for a TRO con-
stitutes an official policy under Monell.
   As discussed above, the City’s regrettable legal argu-
ment was based on the Supreme Court decision in
Hurley v. Irish-American Gay, Lesbian and Bisexual Group
of Boston, 515 U.S. 557 (1995), and stated that the plain-
tiffs did not have an unlimited First Amendment right
to engage in street preaching at the festival and that
St. Symphorosa could exclude the plaintiffs in order to
preserve its message. Given the facts of this case, this
legal argument is misguided. In Hurley, the Supreme
Court ruled that a parade permitted on public streets was
a First Amendment form of expression, and that parade
organizers had the right to choose the content of the
parade and to exclude conflicting messages. Hurley,
515 U.S. at 572-74. The St. Symphorosa festival is readily
distinguishable from Hurley because it is not a parade or
other form of First Amendment expression—it is a public
festival, held on public city streets, free and open to
all members of the general public. See Startzell v. City of
Philadelphia, 533 F.3d 183, 194 (3d Cir. 2008) (finding that
Hurley does not control “a private-sponsored event in a
public forum that was free and open to the general pub-
lic”). The city streets are a traditional public forum, and
their character as a public forum is retained even though
No. 11-2741                                                      11

they are used for a public festival sponsored by a
private entity. Several of our sister circuits have clearly
explained the non-applicability of Hurley in circum-
stances similar to those before us.1
  Of course, a municipality is able to impose reasonable
content-neutral time, place and manner restrictions on
any traditional public forum.2 Such restrictions would
include, for example, prohibiting someone from using a


1
  See Startzell v. City of Philadelphia, 533 F.3d 183, 195 (3d Cir.
2008) (“There is no basis to read Hurley as circumscribing the
long line of authority upholding free access by the general
public to street festivals and other events held in traditional
public fora.”); Parks v. City of Columbus, 395 F.3d 643, 651-52 (6th
Cir. 2005) (distinguishing Hurley and holding that “[t]he City
cannot . . . claim that one’s constitutionally protected rights
disappear because a private party is hosting an event that
remained free and open to the public”); Gathright v. City of
Portland, 439 F.3d 573, 577 (9th Cir. 2006) (“We hold, however,
that the policy of allowing permittees unfettered discretion
to exclude private citizens on any (or no) basis is not
narrowly tailored to the City’s legitimate interest in pro-
tecting its permittees’ right under Hurley.”).
2
   See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)
(stating that in a traditional public forum, “the government
may impose reasonable restrictions on the time, place, or
manner of protected speech, provided the restrictions are
justified without reference to the content of the regulated
speech, that they are narrowly tailored to serve a sig-
nificant governmental interest, and that they leave open
ample alternative channels for communication of the infor-
mation.” (internal quotation omitted)).
12                                              No. 11-2741

bullhorn during a public festival. Even without a bull-
horn, a person is still able to express his message. But
this minor restriction is far different from the categorical
exclusion of a person engaged in street preaching based
on the content of his speech. Such an exclusion would
undoubtedly be unconstitutional. Accordingly, there
can be no doubt that the City’s counsel made an in-
correct legal argument in its July 2009 response
to the plaintiff’s motion for a TRO and preliminary in-
junction.
  The plaintiffs argue that a legal argument or a litiga-
tion position taken by a municipality can, by itself, con-
stitute an official policy. But there is little case law in
support of this position. At oral argument, the plaintiffs’
counsel suggested that the most relevant case was
Pembaur v. City of Cincinnati, 475 U.S. 469 (1986). In that
case, the Supreme Court held that “municipal liability
under § 1983 attaches where—and only where—a deliber-
ate choice to follow a course of action is made from
among various alternatives by the official or officials
responsible for establishing final policy with respect to
the subject matter in question.” Id. at 483-84. The
Supreme Court then applied that rule to the facts of the
case, finding that there was municipal liability because
a final decisionmaker with the authority to establish
county policy (the County Prosecutor) chose a course of
action and directed law enforcement to follow that
course of action (to forcibly enter the petitioner’s clinic,
a violation of the petitioner’s Fourth Amendment rights).
Id. at 484-85.
No. 11-2741                                                    13

  But Pembaur is easily distinguishable from our case. In
Pembaur, the Supreme Court deferred to a previous de-
termination that the final decisionmaker, the County
Prosecutor, had the authority to establish county policy.
Id. at 484 n.13. Here, there is no indication that the
City’s attorneys who argued before the district court are
final decisionmakers on behalf of the City. Certainly,
the City’s attorneys have the authority to represent the
City in court and to make arguments on behalf of the
City as its legal counsel, but that is not the same as
being “responsible for establishing final policy with
respect to the subject matter in question.” Pembaur, 475
U.S. at 483-84.
  In addition, in Pembaur, the final decisionmaker made
a definite choice to pursue a course of action, and in
doing so, violated the petitioner’s constitutional rights.
In the case before us, the City’s counsel made an
incorrect legal argument in a responsive brief. This ar-
gument was made one day after the motion for a TRO
was filed, and two days after the plaintiffs filed their
case against the City. Giving the City the benefit of the
doubt, perhaps this litigation position was taken
quickly, without adequate preparation, and without a
full understanding of the facts and circumstances of the
case.3 When the City filed its response, there was


3
  It is evident that the nature of case was also not fully under-
stood by the plaintiffs at the time they filed their case, as they
did not name St. Symphorosa Catholic Church as a defendant,
                                                    (continued...)
14                                              No. 11-2741

no evidence that the City had ever arrested anyone or
otherwise acted according to this purported policy. And
as the district court held, the City did not have an uncon-
stitutional official policy during Pastor Teesdale’s arrest
in 2008. But based on the language recited in the City’s
2009 response to the plaintiffs’ motion for a TRO, the
district court concluded that, as of 2009, there was an
official policy of the City that threatened the plaintiffs’
future First Amendment rights. We can understand
how the district court was misled by the City’s persistence
in maintaining its errant position, but it was a mistake
for the district court to assume that the City’s legal argu-
ment was a statement of official City policy that would
be applied in the future. Unlike the facts of Pembaur, the
City did not deliberately choose “a course of action . . .
from among various alternatives,” Pembaur, 475 U.S. at
483, and then pursue it. Instead, the City’s counsel
made a legal argument in opposition to the plaintiffs’
assertions that the City was liable under § 1983. Admit-
tedly, this legal argument was deficient and counsel
overstated the City’s case. But even so, based on
Pembaur, we hold that the City’s improper legal argu-
ment is insufficient to constitute an official City policy
that establishes municipal liability under § 1983.
  In making its determination that the plaintiffs were
entitled to a declaratory judgment, the district court also


3
  (...continued)
but sued the City and various individuals as City employees,
incorrectly assuming that the City and City employees were
responsible for the festival’s security.
No. 11-2741                                             15

pointed to the City’s failure to explicitly revoke and take
a position contrary to its original Hurley argument as
evidence that the City held an official policy that threat-
ened the plaintiffs’ First Amendment rights. Further-
more, the district court interpreted the City’s willingness
to enter into the 2009 and 2010 standby orders as evi-
dence that the City intended to pursue its unconstitu-
tional policy against the plaintiffs’ First Amendment
rights in the future. But we find that these two infer-
ences fall well short of what is needed to determine
that the City had an official policy. There are many
excuses for why an advocate might not disavow an
earlier litigation position until he or she is pressed to
do so (as occurred during the parties’ oral argument
before this court). And in this case, it would not be ap-
propriate to infer an official policy from a munici-
pality’s willingness to reach a temporary resolution of
a dispute.
  Besides the City’s misguided litigation position, there
exists no law, ordinance, code provision, or permitting
requirement or regulation that the plaintiffs can identify
that they might be found in violation of, and there are
no previous instances of arrests or some other customary
City practice that portends the future violation of the
plaintiffs’ rights. There is only the legal argument made
by the City, which the City explicitly renounced during
the oral argument. The plaintiffs took this renunciation
as a reason to argue that the case was moot—but in
actuality, it demonstrates the weakness of the plaintiffs’
position and the fact that a mere legal argument is
16                                              No. 11-2741

too insubstantial to form the basis of municipal liability.
Recall that under Pembaur, an official municipal policy is
a deliberate choice to follow a course of action
from among various alternatives made by officials
with final policymaking authority and possibly giving
rise to liability. It would be very unusual for an official
municipal policy to be quickly changed by a lawyer
who concedes during the course of litigation that the
legal argument he is presenting is without merit when,
for example, he is challenged on it by a judge.
   Under Article III of the United States Constitution,
federal jurisdiction is limited to actual cases and con-
troversies. Goldhamer v. Nagode, 621 F.3d 581, 584 (7th Cir.
2010); see also Lujan v. Defenders of Wildlife, 504 U.S. 555,
559-60 (1992). To establish standing in a case where the
plaintiffs are bringing a pre-enforcement challenge to
an alleged policy and are seeking prospective relief, “the
plaintiffs must show that: (1) they are under threat of an
actual and imminent injury in fact; (2) there is a causal
relation between that injury and the conduct to be en-
joined; and (3) it is likely, rather than speculative or
hypothetical, that a favorable judicial decision will
prevent or redress that injury.” Goldhamer, 621 F.3d at 585.
As we have said above, besides the City’s misguided
litigation position—which we hold is insufficient to
constitute an official City policy—the plaintiffs cannot
point to any ordinance, regulation, or policy that threatens
their First Amendment rights. The threat of arrests is
therefore speculative, and the facts are inadequate for
the plaintiffs to establish standing. See Goldhamer, 621
No. 11-2741                                                     17

F.3d at 586 (“[T]o present a justiciable controversy, the
person must assert more than a wholly speculative pos-
sibility of criminal consequences.”).4
   We acknowledge the great importance that our
society accords to freedom of speech and the free
exercise of religion, and that the plaintiffs’ legitimate
rights to such freedoms are to be respected. Like any
other member of the public, the plaintiffs can exercise
their rights at future public festivals, subject to
reasonable time, place, and manner restrictions. But
under the particular facts of this case, there is
no evidence of an official City policy that threatens
the plaintiffs’ First Amendment rights, giving rise
to municipal liability and entitling the plaintiffs to a
declaratory judgment. A mere legal pleading or a
litigating position, with nothing more, is insufficient to
constitute an official policy under Monell. Without
such an official policy, these plaintiffs do not have


4
  In its opinion, the district court cited Holder v. Humanitarian
Law Project, 130 S. Ct. 2705 (U.S. 2010), for the proposition that,
because the City has not stated that the plaintiffs will not be
prosecuted, a credible threat to the plaintiffs remains. See id. at
2717. But Holder is easily distinguishable from the facts before
us: In Holder, there was an actual statute that the government
had used as a basis to charge 150 persons. Id. In our case, there
is no previous history of arrests and there is no ordinance,
regulation, or other official municipal policy that the City might
use as a basis for prosecuting the plaintiffs.
18                                          No. 11-2741

standing to obtain the declaratory judgment. The plain-
tiffs’ motion to dismiss the appeal as moot is D ENIED,
the judgment of the district court is V ACATED , and the
case is R EMANDED for dismissal on jurisdictional
grounds based on lack of standing.




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