                              In the

United States Court of Appeals
               For the Seventh Circuit

Nos. 09-3335 & 09-4079

M ICHAEL M ARCAVAGE, et al.,
                                                Plaintiffs-Appellants,
                                  v.

C ITY OF C HICAGO, et al.,
                                               Defendants-Appellees.


            Appeals from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 1:06-cv-03858—Milton I. Shadur, Judge.



    A RGUED N OVEMBER 4, 2010—D ECIDED O CTOBER 4, 2011




  Before B AUER, M ANION and H AMILTON, Circuit Judges.
   B AUER, Circuit Judge. The appeal before us arises from
events held in connection with the seventh annual Gay
Games (the “Games”), a series of athletic and cultural
gatherings with the stated mission “to foster and augment
the self-respect of gay men and women throughout the
world and to engender respect and understanding from
the non-gay world.” The events took place in Chicago,
Illinois during July 2006. The plaintiffs are volunteers
2                                  Nos. 09-3335 & 09-4079

with the organization Repent America, a ministry of
Christians whose self-described goal is “to proclaim the
Gospel of Jesus Christ in the public square.” In an effort
to foster their mission, the plaintiffs traveled to Chicago
and appeared at the Games to share their message with
attendees and supporters of the Games. At three different
locations during the Games, Chicago police officers
ordered the plaintiffs to change the location of their
outreach activities. Failure to comply resulted in the
arrests of plaintiffs James Deferio and Michael Marcavage.
  The plaintiffs filed a complaint in the Northern
District of Illinois against the City of Chicago and indi-
vidual officers of the Chicago Police Department (col-
lectively the “City Defendants”), and against the Metro-
politan Pier and Exposition Authority (the “MPEA”), a
municipal corporation which owns and manages Navy
Pier and Gateway Park. The complaint alleged (1) denial
of their First Amendment rights to free speech and
exercise of religion; (2) denial of their Fourteenth Amend-
ment right to equal protection; and (3) denial of their
rights under the Illinois Religious Freedom Restoration
Act (the “IRFRA”). They later amended their complaint
to add claims against the City for (1) denial of equal
protection; (2) denial of their Fourth Amendment rights;
(3) state-law conversion; and (4) spoilation.
  Cross motions for summary judgment were filed by
the City Defendants and the plaintiffs. The district court
denied the plaintiffs’ motion and granted the City De-
fendants’, finding that (1) the orders issued by the police
during the events at the Games were content-neutral
Nos. 09-3335 & 09-4079                                      3

regulations narrowly tailored to serve the legitimate
purpose of maintaining an orderly and effective flow of
traffic and therefore did not violate the First Amend-
ment; (2) the plaintiffs’ Equal Protection claim failed
because they could not identify any similarly-situated
individuals at the Games who received more favorable
treatment from the officers than they did; and (3) the
plaintiffs’ Fourth Amendment claims failed because their
arrests were supported by probable cause. The court
refused to exercise supplemental jurisdiction over the
state-law claims and later granted a motion for judgment
on the pleadings in favor of the MPEA, finding that the
issues raised in the MPEA claims were precluded by
the grant of summary judgment in favor of the City
Defendants.
  The plaintiffs have appealed and we affirm in part
and reverse in part.


                    I. BACKGROUND
  The events giving rise to the plaintiffs’ claims occurred
at Soldier Field on July 15, 2006, Navy Pier on July 16, 2006,
and Wrigley Field on July 22, 2006. A summary of the
events that transpired at each location is set forth below.


  A. Soldier Field
  July 15, 2006 marked the opening ceremonies of the
Games. The plaintiffs spent approximately two hours
that day demonstrating around the stadium. A large
4                                   Nos. 09-3335 & 09-4079

concentration of people traveled along a broad sidewalk
bordering McFetridge Drive. At one point, Deputy Chief
Daniel Dugan advised the plaintiffs they were blocking the
sidewalk and directed them to a gravel area adjacent to
it. According to deposition testimony from the plain-
tiffs, during their time at Soldier Field, they preached,
displayed signs and banners, and distributed Gospel
tracts. However, they testified that Dugan’s prohibition
against standing on the sidewalk prevented them from
engaging attendees in a “one-on-one presentation of the
Gospel of Jesus.” In the district court, the plaintiffs also
contended that they experienced difficulty handing out
Gospel tracts from their position on the gravel.


    B. Navy Pier and Gateway Park
  The following afternoon, the plaintiffs arrived at Navy
Pier to engage in similar activity. After exiting the
parking garage, the plaintiffs walked west along the
north side of the pier, where they encountered security
personnel. The security officers told them they could not
demonstrate on the pier without an MPEA permit autho-
rizing it; the plaintiffs did not have such a permit, nor
had they applied for one. Accordingly, the officers
escorted them toward Gateway Park. When directed to
cross the street toward the park, the plaintiffs refused
and proceeded to walk along the sidewalk fronting
the main entrance to the pier. After being warned to
cross the street or face arrest, the plaintiffs were
driven further and further from the pier, since Chicago
Police Officer Adam Andrews, who responded to the
Nos. 09-3335 & 09-4079                                   5

disturbance, was under the correct impression that the
MPEA’s Policy for Public Expression at Navy Pier and
the Headlands (the “Policy”) also required a permit
in order to demonstrate in Gateway Park. Marcavage
argued with Officer Andrews and called 911 in an effort
to reach a supervising officer. He was then handcuffed
and forced to sit down; James Deferio, who was carrying
a video camera, and another member of the plaintiffs’
group, Ryan Murphy, were both arrested and taken to
the 18th precinct. Following their arrest, the remaining
plaintiffs, Marcavage and Faith Deferio, along with
another member of their group, Craig Scarberry, were
ordered to leave Gateway Park under the threat of arrest.
They complied.


 C. Wrigley Field
  The closing ceremonies of the Games were held on
July 22, 2006 at Wrigley Field. At approximately 1:00 p.m.,
the plaintiffs arrived. Marcavage proceeded to the south-
west corner of the stadium. While walking east along
the sidewalk on the north side of Addison Street, he held
a sign in one hand and a video camera in the other. When
he reached the southeast corner, he proceeded to pace
back and forth along the sidewalk. At one point, he
stood at the intersection of Addison and Sheffield
Streets, a main thoroughfare for attendees entering the
stadium. An officer told Marcavage to “keep walking,” but
Marcavage insisted he had a right to stand there. The
officer repeated his order to cross the street many times,
but Marcavage refused. He was ultimately arrested and
charged with disorderly conduct.
6                                         Nos. 09-3335 & 09-4079

                        II. DISCUSSION
  We have reviewed the district court’s grant of summary
judgment de novo 1 and conclude that summary judg-
ment was appropriately entered in favor of the City
Defendants with respect to the claims involving Soldier
Field and Wrigley Field. However, with respect to the
First Amendment claim involving Navy Pier and Gate-
way Park, we remand the case to the district court with
instructions to evaluate the constitutionality of the
MPEA’s Policy in accordance with this opinion.


    A. Constitutional Claims Involving Soldier Field and
       Wrigley Field
  We begin with the district court’s treatment of the
claims involving Soldier Field and Wrigley Field. The
plaintiffs challenge the findings below on First Amend-
ment, Equal Protection, Fourth Amendment, and qualified
immunity grounds. We do not find their arguments
persuasive.
  We start with the First Amendment and Equal Protec-
tion claims. The plaintiffs’ primary complaint is that
they were not permitted to use the main pedestrian
thoroughfares at each of the venues for their outreach
activities during the Games. They claim they were
entitled to do so under the First Amendment and that
because others were using the sidewalks during the



1
    See Scott v. Edinburg, 346 F.3d 752, 755 (7th Cir. 2003).
Nos. 09-3335 & 09-4079                                   7

Games, their right to equal protection under the law was
violated. Both arguments are without merit.
  It is true that sidewalks like the ones outside Soldier
Field and Wrigley Field are traditional public forums
where the exercise of First Amendment rights is often
most vibrant. As the Supreme Court has described the
rationale for promoting broad access to public forums,
“streets, sidewalks, parks and other similar public places
are so historically associated with the exercise of First
Amendment rights that access to them for the purpose
of exercising such rights cannot constitutionally be
denied broadly and absolutely.” Carey v. Brown, 447
U.S. 455, 460 (1980).
  However, the fact that such rights cannot be denied
“broadly and absolutely” does not mean they cannot be
curtailed at all. On the contrary, the time, place, and
manner of a speaker’s activities can be regulated
without violating the First Amendment so long as the
restrictions are (1) content-neutral, (2) narrowly tailored
to serve a significant government interest, and (3) leave
open ample alternative channels for communication.
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.
37, 45 (1983).
  The orders given by the officers at both locations
met each of these criteria. At both locations, officers
instructed the plaintiffs to “keep moving” to avoid inter-
8                                  Nos. 09-3335 & 09-4079

ference with pedestrian traffic at the Games.2 When
they refused, they were asked to move to alternate loca-
tions. (At Soldier Field, the officer suggested they move
to a gravel area immediately adjacent to the sidewalk.
At Wrigley Field, they were asked to cross the street.) At
oral argument, the plaintiffs were asked to provide what-
ever evidence they had of the officers’ hostility toward
their message; none was offered. Their inability to cite
to any such evidence is consistent with the record,
which invariably shows that the directives given by the
officers were based on the plaintiffs’ offensive conduct
(blocking the main thoroughfares of the Games), not
their message. This shows that the restrictions were
content-neutral. Since the plaintiffs do not dispute that
the government maintains a significant interest in con-
trolling pedestrian traffic, 3 their only remaining chal-
lenge is to the adequacy of the alternative venues pre-
sented for their speech. The plaintiffs argue the restric-
tions were overly broad; we disagree.
  Though the plaintiffs do not feel the gravel area at
Soldier Field and the southern side of Addison Street
opposite Wrigley Field were adequate places to conduct
their activities, the fact that the permissible locations
were not the plaintiffs’ preferred venues does not render



2
  Though the plaintiffs argue they were not blocking the
sidewalks, their own video recordings taken at the events
plainly show pedestrians walking around them while they
remain stationary.
3
    See App. Br. at 32.
Nos. 09-3335 & 09-4079                                               9

them inadequate. After all, the First Amendment “does
not guarantee the right to communicate one’s views at all
times and places or in any manner that may be desired.”
Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452
U.S. 640, 647 (1981). Rather, it protects the right of every
citizen to “reach the minds of willing listeners . . . [and]
to do so, there must be opportunity to win their atten-
tion.” Hill v. Colorado, 530 U.S. 703, 728 (2000). The
alternate locations were within view and earshot of those
traveling to the Games. We harbor no doubt that from
these locations, the plaintiffs had ample opportunity
to capture the attention of the Games attendees and sup-
porters; they were only limited by their own stubborn
refusal to move there. As to the plaintiffs’ challenge
that the restrictions were overly broad, though a regula-
tion need not be the least restrictive means available,4
we cannot think of a narrower way of dealing with dem-
onstrators blocking a pedestrian walkway than to
request that they continue moving or change their loca-
tion to a place very nearby.
  Having found that the officers’ directives to keep
moving or relocate were (1) content-neutral, (2) sufficiently
narrowly tailored to the significant goal of avoiding
congestion and maintaining an orderly flow of traffic at
the Games, and (3) accommodating of the need to
provide an alternative channel for the plaintiffs’ speech,
we find that such restrictions were compatible with the



4
  See, e.g., Bl(a)ck Tea Society v. City of Boston, 378 F.3d 8, 12 (1st
Cir. 2004).
10                                  Nos. 09-3335 & 09-4079

First Amendment and that the district court did not err
in granting summary judgment in favor of the City De-
fendants on these claims.
   With respect to the argument that the restrictions
violated their right to Equal Protection, the plaintiffs
have not identified similarly-situated individuals who
received preferential treatment at the Games. Whether
persons are similarly-situated is a question of fact that
is appropriately resolved on summary judgment when
no reasonable fact-finder could determine that the plain-
tiffs have met their burden on the issue. Srail v. Village of
Lisle, Illinois, 588 F.3d 940, 945 (7th Cir. 2009). To be
similarly-situated, persons must be alike “in all relevant
respects.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). Al-
though the plaintiffs argue to the contrary, the attendees,
supporters, and vendors allowed on the sidewalk were
not similarly-situated to the plaintiffs. Games organizers
contracted to hold the 2006 events in Chicago, including
an opening ceremony at Soldier Field and a closing cere-
mony at Wrigley Field. In so doing, the events brought
thousands of people to the city and the chosen venues,
much like a concert or political convention would. Atten-
dees and supporters of the Games were allowed on the
sidewalks because they had a particular purpose being
there, namely, to access the venues reserved for their
activities and to sell souvenirs. These purposes are
entirely distinguishable from the plaintiffs’ efforts to
disrupt the events by protesting along the main thorough-
fares of the Games. We hold that a reasonable factfinder
could not in good conscience find that the plaintiffs were
similarly-situated to other users of the sidewalks. Since
Nos. 09-3335 & 09-4079                                 11

there is no reliable evidence that there were other pro-
testors who were treated differently, the district court
appropriately granted summary judgment on the
Equal Protection claims.
  The plaintiffs’ argument that Marcavage’s Fourth
Amendment rights were violated when he was ar-
rested for disorderly conduct at Wrigley Field is equally
unavailing. The plaintiffs argue that the officers at
Wrigley Field lacked probable cause to arrest Marcavage,
making his arrest without a warrant unreasonable and
unconstitutional. Police have probable cause to arrest
an individual without a warrant when “the facts and
circumstances within their knowledge and of which
they have reasonably trustworthy information” would
make a prudent person believe the individual “had com-
mitted or was committing” an offense. Kelley v. Myler,
149 F.3d 641, 646 (7th Cir. 1998). Under Illinois law, a
person commits disorderly conduct when he knowingly
does any act in such an unreasonable manner as to
alarm or disturb another and to provoke a breach of
the peace. 720 ILCS 5/26-1(a)(1). The district court
found that Marcavage’s obstruction of the walkway,
argumentative tone toward law enforcement, and refusal
to obey the lawful instructions of a police officer all
gave rise to probable cause for his arrest for disorderly
conduct. Since the act of blocking the free flow of pedes-
trian traffic alone is sufficient to support a conviction
12                                        Nos. 09-3335 & 09-4079

for the offense of disorderly conduct under Illinois law,5
we need not spend much time on this issue. The facts
are clear that Marcavage stubbornly refused to move
from his position on a crowded street corner during a
heavily populated event, insisting that he had a right
to demonstrate there. These findings are sufficient to
support probable cause for his arrest, so we affirm the
district court’s grant of summary judgment on the
Fourth Amendment claim. Since the arrest was objec-
tively supported by probable cause and there was no
Fourth Amendment violation at Wrigley Field, we need
not discuss the doctrine of qualified immunity.


    B. Constitutional Claims Involving Navy Pier and
       Gateway Park
   Navy Pier and Gateway Park differ from the other
two venues in that the exercise of expressive activity at
these venues is governed by a written policy for public
expression. The Policy requires permits for expressive
activity on and around the pier and the MPEA is charged
with collecting and administering the permits. Although
we agree with the district court’s treatment of the
claims dealing with Soldier Field and Wrigley Field,
we believe that the Policy applied to exclude the plain-
tiffs from Navy Pier and Gateway Park merits further
review.
  This court has considered the exercise of free speech
at Navy Pier and Gateway Park before. See Chicago Acorn


5
    See Jones v. Watson, 106 F.3d 774, 779 (7th Cir. 1997).
Nos. 09-3335 & 09-4079                                   13

v. Metro. Pier & Exposition Auth., 150 F.3d 695 (7th Cir.
1998). In Chicago Acorn, we drew a distinction between
the constitutional protections required at various venues.
In particular, we held that while Navy Pier is a
nonpublic forum, Gateway Park is a traditional public
forum subject to heightened First Amendment protec-
tion. Id. at 700-04.
  We are not troubled by the Policy’s restrictions on
speech at Navy Pier. The pier’s designation as a
nonpublic forum appropriately reflects its commercial
nature. Though it is a recreational area open to the public,
the pier itself primarily consists of event spaces, stores,
restaurants, theaters, and an amusement park. Its nature
is one of private enterprise with tangential public
benefit; while the public can enjoy firework displays,
free concerts, and views of Lake Michigan from the
many benches along the pier, the revenue-generating
outlets that support the pier fuel tourism and make
these public benefits possible. Since the pier is a
nonpublic forum, the MPEA and the City may restrict
activity on the pier so long as the restrictions are rea-
sonable and viewpoint neutral.6 The Policy states that
permits are granted on a first-come, first-served basis
“without reference to the content of the message to be
expressed” and may be denied for enumerated reasons,




6
  See Cornelius v. NAACP Legal Defense and Educational Fund,
Inc., 473 U.S. 788, 800 (1985).
14                                     Nos. 09-3335 & 09-4079

all of which we find to be reasonable.7 The plaintiffs
have not presented evidence that the officials at Navy
Pier and Gateway Park expressed hostility toward their
message. And, since they never applied for a permit to
engage in their outreach activities at Navy Pier, it cannot
be said that they were denied a permit because of their
beliefs. Accordingly, we hold that the Policy’s regula-
tions dealing with expressive activity on Navy Pier are
constitutional.
  The analysis for Gateway Park is not as straightforward.
Though the same corporation manages Navy Pier and
Gateway Park and the same Policy governs both proper-
ties, greater opportunities for public expression must
be made available to the public in the park than on
the pier, since the park is a traditional public forum
historically associated with such activity. As noted in
the previous section, any policy restricting expressive
activity in a traditional public forum such as Gateway
Park must be content-neutral, narrowly tailored, and
provide ample alternative channels of communication to
those seeking to express their views. See Perry, 460 U.S.
at 45. This is a more stringent standard than the “reason-
able and viewpoint neutral” one that governs Navy Pier.


7
  Stated reasons for denying a permit application include that
the proposed number of participants would cause (a) a risk of
injury or damage to the pier’s resources; (b) traffic congestion;
(c) interference with activities for which the MPEA has
granted a lease or license; (d) impairment of the operation of
the pier’s facilities; or (e) unreasonable danger to the health
or safety of the public or the pier’s visitors.
Nos. 09-3335 & 09-4079                                 15

Though the extensive permitting scheme in place for
the two venues seems appropriate for Navy Pier,
whether the Policy is appropriate for Gateway Park is not
as clear-cut.
  The plaintiffs, who arrived at Navy Pier and Gateway
Park in a group of five, challenge the Policy as overly
broad. They dispute the Policy’s requirements that
(1) a group as small as five must apply for a permit to
engage in expressive activity at Gateway Park at least
seven days in advance; (2) persons less than five (which
would apparently include an individual) must still
apply for a permit, although without the advance notice
requirement; and (3) individuals and groups are limited
in the frequency with which they are allowed to
submit applications for permits to engage in expressive
activity at Gateway Park.
  District Judge Shadur dismissed the plaintiffs’ argu-
ments that the Policy is overly broad by citing to Thomas
v. Chicago Park Dist., 534 U.S. 316 (2002). In Thomas, the
Supreme Court upheld this court’s finding that an ordi-
nance requiring a permit for events of more than fifty
people is facially constitutional. Though Judge Shadur
is correct that permit requirements for the use of public
parks for expressive uses are “routinely imposed,” our
case differs from Thomas in two important respects.
First, it involves a group one-tenth the size of the
number that would trigger a permit requirement under
Thomas. Second, although our plaintiffs arrived in a
group of five, the Policy we are asked to review would
arguably require a permit for the expressive activity of
just one person.
16                                  Nos. 09-3335 & 09-4079

  The plaintiffs cite a Ninth Circuit case for the proposi-
tion that a permit requirement for expressive activity by
a group as small as theirs is insufficiently narrowly
tailored to withstand constitutional scrutiny when the
venue is a traditional public forum:
     In public open spaces, unlike on streets and sidewalks,
     permit requirements serve not to promote traffic flow
     but only to regulate competing uses and provide
     notice to the municipality of the need for additional
     public safety and other services. Only for quite large
     groups are these interests implicated, so imposing
     permitting requirements is permissible only as to
     those groups.
Santa Monica Food Not Bombs v. City of Santa Monica,
450 F.3d 1022, 1042 (9th Cir. 2006). While it may be true
that most permit requirements for expressive activity
in parks are not enacted to promote efficient traffic
flow, the same cannot be said of the Policy at issue here.
As this court noted in its detailed look at the premises
of Navy Pier and Gateway Park in the Chicago Acorn
case, Gateway Park is a “narrow bottleneck” leading to a
crowded commercial pier surrounded by water on three
sides. Chicago Acorn, 150 F.3d at 703. The Policy states
that as many as 85,000 people visit Navy Pier on a
crowded day. This amount of foot traffic undoubtedly
presents unique challenges at the pier’s point of ingress
and egress: Gateway Park. While the area devoted to
public parks in the Santa Monica case amounted to
Nos. 09-3335 & 09-4079                                         17

245 acres,8 Gateway Park measures only 19 acres. The
two venues are hardly comparable.
  Though we are dubious of the Ninth Circuit’s blanket
presumption that the sole reason permit requirements
are enacted for public open spaces is to regulate
competing uses, it is worth noting that many other
circuits have looked unfavorably on permit require-
ments for groups as small as the plaintiffs’ group of five.
In addition to the Ninth Circuit, the Fourth, Fifth, Sixth,
and Eighth Circuits have all found permit requirements
for groups of ten and under to be either unconstitutional
or constitutionally suspect.9 Such a powerful consensus
cannot be ignored. Though we are inclined to agree
with our sister circuits that a permit requirement is less



8
  Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d
1022, 1026 (9th Cir. 2006).
9
   See Knowles v. City of Waco, 462 F.3d 430, 436 (5th Cir. 2006)
(striking down a parade ordinance which could be interpreted
to require a permit for the activity of as few as two people); Cox
v. City of Charleston, 416 F.3d 281, 285 (4th Cir. 2005) (holding
that “the unflinching application of [a local parade ordinance]
to groups as small as two or three renders it constitutionally
infirm”); American-Arab Anti-Discrimination Comm. v. City of
Dearborn, 418 F.3d 600, 608 (6th Cir. 2005) (holding that a parade
ordinance that would require a permit “for almost any imagin-
able procession” on the streets of Dearborn, Michigan was
“hopelessly overbroad”); Douglas v. Brownell, 88 F.3d 1511, 1524
(8th Cir. 1996) (expressing doubt that applying a parade
ordinance to a group as small as ten would be sufficiently
narrowly tailored).
18                                    Nos. 09-3335 & 09-4079

likely to be content-neutral and narrowly tailored when
it is intended to apply even to small groups, we decline
to hold that permit requirements for groups of any speci-
fied number are per se unconstitutional.
  Only after viewing the Policy in light of the concerns
that are unique to the venue in question do we believe
a court can appropriately assess the constitutionality of
the regulation. This is a factually driven inquiry. On the
one hand, Gateway Park’s location immediately adjacent
to the heavily trafficked Navy Pier poses unique logistical
concerns that may make the regulations necessary. On
the other hand, the park’s proximity to the pier makes
it a natural alternative venue for the type of expres-
sion that the pier itself cannot support. Absent a greater
understanding of the rationale behind the MPEA’s Policy,
we are left with the impression that the imposition of
burdensome restrictions for small groups at Gateway
Park might be overreaching.1 0 Accordingly, we remand



10
  In Hotel Employees & Rest. Employees Union, Local 100 v. City
of New York Dep’t of Parks & Recreation (H.E.R.E. v. City of
New York), 311 F.3d 534 (2d Cir. 2002), the Second Circuit
dealt with a First Amendment challenge to restrictions on
organized public expression at New York’s Lincoln Center,
a city-owned plaza at the center of several well-known per-
forming arts venues. Although the court upheld restrictions on
such expressive activity in the central plaza of the Lincoln
Center complex, it noted that, in denying permit applications
for those who wished to leaflet or demonstrate on the plaza,
applicants were encouraged to use a public park to the south
                                                 (continued...)
Nos. 09-3335 & 09-4079                                       19

the case to the district court where the MPEA can be
given an opportunity to defend its Policy.
   The plaintiffs’ Equal Protection and Fourth Amendment
claims dealing with Navy Pier and Gateway Park require
little discussion. With respect to their Equal Protection
claim, the plaintiffs argue that they were treated differ-
ently than attendees of the Games; however, the
attendees had a permit to use the premises and the plain-
tiffs did not. As to their Fourth Amendment claim, the
district court appropriately found that the responding
officer had probable cause to arrest Deferio and detain
Marcavage, since the two unlawfully remained on the
premises after being repeatedly told to leave or obtain a
permit. Although the constitutionality of the Policy
remains in question, the arresting officer’s objectively
reasonable reliance on the permit requirement in effect
at the time of the arrest is sufficient to shield him
from liability under the doctrine of qualified immunity.


     C. Supplemental Claims
  The plaintiffs’ final argument is that the district court
erred in declining to exercise supplemental jurisdiction


10
  (...continued)
of the complex for their activities. This area, called Damrosch
Park, was part of the original site plan for Lincoln Center. The
use of the adjacent park at Lincoln Center as an alternate
location for expressive activity is an interesting counterpoint
to Gateway Park, an area which could serve as an alternate
location for public expression at Navy Pier, but is instead
heavily regulated under the existing Policy.
20                                  Nos. 09-3335 & 09-4079

over various state-law claims. A district court’s refusal to
exercise supplemental jurisdiction is reviewed for abuse
of discretion. In re Repository Technologies, Inc., 601 F.3d
710, 724 (7th Cir. 2010). Under this standard, we will
reverse a district court’s decision to relinquish jurisdic-
tion over such claims only in “extraordinary circum-
stances.” Id. at 725. Since no such circumstances are
present in this case, the district judge did not abuse his
discretion and we affirm.


                   III. CONCLUSION
  For the reasons set forth above, summary judgment in
favor of the City Defendants is A FFIRMED, except with
respect to the First Amendment claim dealing with Gate-
way Park. This claim is R EMANDED to the district court,
where the constitutionality of the Policy shall be adjudi-
cated with the participation of all the parties. The
district court’s grant of the MPEA’s motion for judgment
on the pleadings is hereby R EVERSED, since the holding
previously given preclusive effect is to be reconsidered
on remand.
Nos. 09-3335 & 09-4079                                      21

  H AMILTON, Circuit Judge, dissenting in part. I agree
with my colleagues that plaintiffs failed to prove viola-
tions of their constitutional rights outside Soldier Field
and Wrigley Field, and on Navy Pier. I respectfully dis-
agree with the portion of the decision that remands to the
district court plaintiffs’ claim that their rights were vio-
lated in Gateway Park, immediately west of Navy Pier,
on July 16, 2006.
  The point of my disagreement may be identified by
asking what error the district court made, based on the
record before it. The majority opinion does not answer
that question. Instead, it expresses an impression that
the application of the MPEA’s permit requirements to
small groups at Gateway Park “might be overreaching,”
but instructs the district court first to develop a record
so that “the MPEA can be given an opportunity to
defend its Policy.” Ante at 18-19. The reason no such
record exists yet is that the plaintiffs did not make this
argument to the district court in a timely way, when
the city defendants moved for summary judgment. This
claim, whatever its merits, was therefore waived. See, e.g.,
Fednav Int’l Ltd. v. Continental Ins. Co., 624 F.3d 834, 841
(7th Cir. 2010); Domka v. Portage County, 523 F.3d 776,
783 (7th Cir. 2008); Lac du Flambeau Band of Lake Superior
Chippewa Indians v. Stop Treaty Abuse-Wisconsin, Inc.,
991 F.2d 1249, 1258 (7th Cir. 1993).1



1
  At an early point in the litigation, plaintiffs advanced a
related point—that distinguishing between groups of five or
                                                 (continued...)
22                                      Nos. 09-3335 & 09-4079

  In the abstract, there might well be problems with
applying the MPEA’s permit requirement for demon-
strations in Gateway Park. Navy Pier is not a public
forum, but Gateway Park is. The constitutional rules
are different. See Chicago Acorn v. Metropolitan Pier & Ex-
position Auth., 150 F.3d 695, 700-04 (7th Cir. 1998) (dis-
cussing these sites and noting MPEA’s concession that
Gateway Park is a traditional public forum). In a tradi-
tional public forum, a permit requirement applied to
demonstrations by very small groups may run afoul of the
Constitution. See Boardley v. U.S. Dep’t of Interior, 615 F.3d
508, 524 (D.C. Cir. 2010) (striking down regulations re-
quiring permits to engage in expressive activities in
national parks as “overbroad and not narrowly tailored”
because they imposed “substantial burdens on individuals
and small groups—burdens which the government has
failed to justify”); Knowles v. City of Waco, 462 F.3d 430, 436
(5th Cir. 2006) (“Other circuits have held, and we concur,


1
  (...continued)
more and four or fewer is “arbitrary and irrational.” Dkt. No. 34,
at 4-6. Because plaintiffs presented no more than a passing
glimpse of their current theory to the district court, they failed
to preserve it for appeal. A “skeletal” argument does not
preserve a claim for appeal, “[e]specially not when” the party
“presents a passel of other arguments.” United States v. Dunkel,
927 F.2d 955, 956 (7th Cir. 1991). As Fednav, Domka, and Lac du
Flambeau Band show, among many other cases, we should
not encourage a litigation strategy of throwing every con-
ceivable idea against a wall to see what might stick. We also
should not encourage parties to overhaul and transform
unsuccessful cases when they present them on appeal.
Nos. 09-3335 & 09-4079                                     23

that ordinances requiring a permit for demonstrations
by a handful of people are not narrowly tailored to serve
a significant government interest.”); Santa Monica Food
Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1039
(9th Cir. 2006) (“Without a provision limiting the permit-
ting requirements to larger groups, or some other provi-
sion tailoring the regulation to events that realistically
present serious traffic, safety, and competing use con-
cerns . . ., a permitting ordinance is insufficiently nar-
rowly tailored to withstand time, place, and manner
scrutiny.”); American-Arab Anti-Discrimination Comm. v.
City of Dearborn, 418 F.3d 600, 608 (6th Cir. 2005)
(“Permit schemes and advance notice requirements that
potentially apply to small groups are nearly always
overly broad and lack narrow tailoring.”); Cox v. City of
Charleston, 416 F.3d 281, 283, 285-86 (4th Cir. 2005) (invali-
dating ordinance barring “any person” from participating
in “any parade, meeting, exhibition, assembly or proces-
sion . . . on the streets or sidewalks of the city” without a
permit because the city failed to “establish[ ] why bur-
dening such expression is necessary to facilitate its
interest in keeping its streets and sidewalks safe,
orderly, and accessible”).
  I also agree with my colleagues that we should avoid
picking a number for the size of groups that cannot be
required to obtain a permit. The configuration of Gateway
Park as a “narrow bottleneck,” see Chicago Acorn, 150 F.3d
at 703, may enable even a very small group to block or
reduce the flow of pedestrians to and from Navy Pier.
That configuration may distinguish this location from
those in Santa Monica Food Not Bombs, 450 F.3d at 1042, and
24                                   Nos. 09-3335 & 09-4079

similar cases rejecting permit requirements for small
groups.
  The problem, as I see it, is that the constitutional
question is before us not in the abstract but on a specific
record of the evidence and arguments that plaintiffs
chose to present in the district court. When the permit
policy question arose in the district court, plaintiffs failed
to make the arguments they make on appeal. In both their
own motion for partial summary judgment and their
memorandum opposing the city defendants’ motion for
summary judgment, plaintiffs chose not to challenge
the constitutionality of the MPEA permit policy on the
grounds they raise here. On the contrary, in opposing
summary judgment for the city defendants and in an
apparent attempt to bolster their contention that their
arrests at Gateway Park were illegal, plaintiffs asserted:
“As a matter of practice, the MPEA does not require a
permit for persons wishing to engage in free speech
activity in Gateway Park.” Dkt. No. 152 at 21. What-
ever the reasons for plaintiffs’ tactical choice, the city
defendants’ motion for summary judgment put the con-
stitutionality of the permit policy at issue. See Dkt.
No. 140 at 7-10.
  That defensive use of the policy was sufficient to require
the plaintiffs to respond with any attack they wished to
make upon the policy. E.g., Domka, 523 F.3d at 783 (appel-
lant’s failure to make argument in opposing summary
judgment waived theory for appeal). As best the district
court could tell, plaintiffs’ only attack on the policy was
the broad and untenable theory that “any system that
Nos. 09-3335 & 09-4079                                    25

requires a permit for public demonstrations and expres-
sions of speech is per se violative of the First Amendment.”
Marcavage v. City of Chicago, 635 F. Supp. 2d 829, 840 (N.D.
Ill. 2009) (describing plaintiffs’ position in Dkt. No. 152).
At no point in the district court’s summary judgment
proceedings did plaintiffs articulate a viable challenge to
the permit policy. They certainly did not make the nar-
rower and perhaps more meritorious arguments they
make on appeal.
   Only after they had lost on the city defendants’ motion
for summary judgment did plaintiffs attack the MPEA’s
permit policy. Judge Shadur understandably concluded
that he had already decided the issue against them. In
other words, a busy district court reasonably decided
that plaintiffs were not entitled to what golfers would
call a Mulligan. The court applied the doctrine of issue
preclusion based on its earlier decisions in the case.
Whether viewed in terms of issue preclusion, the law of
the case, or waiver, I see no error in the court’s handling
of the issue. The district court’s earlier decision is not
binding on this court, but the course of proceedings in
the district court shows that plaintiffs waived their chal-
lenge to the permit policy by failing to respond on that
point when the city defendants moved for summary
judgment. Based on the arguments and evidence pre-
sented, the district court did not err in rejecting plain-
tiffs’ claims arising from the Gateway Park/Navy Pier
events.
 Even in these two separately-briefed appeals, plaintiffs’
muddled approach continues. Plaintiffs have failed to
26                                 Nos. 09-3335 & 09-4079

challenge the constitutionality of the permit policy in
No. 09-3335, their appeal from summary judgment for
the city and its officers. That was the decision in
which the district court actually considered the merits
of the permit policy. One would think that plaintiffs’
opening brief in that appeal would have been the place
both to raise the Santa Monica Food Not Bombs argument
and to explain their apparent failure to do so before the
district court. Instead, plaintiffs focused on whether
someone with authority told them on the spot that they
did not need a permit, a dispute that does not affect the
constitutionality of the policy. Only in their second
appeal have plaintiffs presented the permit policy issue
in a comprehensible form, raising at long last an argu-
ment they should have made years earlier. I would hold
the plaintiffs responsible for their own tactical decisions
and affirm the district court’s judgments in all respects.
  By ordering a partial remand, my colleagues have
taken a different approach regarding the MPEA’s permit
policy. There are attractive reasons for doing so. That
approach gives the plaintiffs a second chance to get it
right. Depending on what the evidence shows, that
second chance might result in more robust protection
of First Amendment rights for plaintiffs and others. The
better approach, though, would be to adhere to a
more orderly litigation process. Plaintiffs had their op-
portunity to present their claim. They failed. In the
absence of clear error (indeed, any error) by the district
court, we should respect that process and its results.
We should do so by making clear that the district
court’s decision and our affirmance of it do not amount
Nos. 09-3335 & 09-4079                                     27

to a definitive constitutional blessing of the permit policy
in Gateway Park, but are based instead on the confusing
and contradictory path plaintiffs pursued in the district
court. That approach would leave the door open for
another party to bring a new and stronger challenge to
the policy. It would also protect the district court and
the defendants from the prejudice caused by plaintiffs’
shifting and inconsistent prosecution of their case.
I would affirm the district court’s judgments in their
entirety, and I respectfully dissent from the portion of
the majority decision remanding the Gateway Park
portion of the case.2




2
  To the extent that this Mulligan might enable plaintiffs to
succeed to some degree on the Gateway Park issues and to seek
a reasonable attorney fee under 42 U.S.C. § 1988, the district
court can and should take into account the unusual procedural
course of the case in determining what a reasonable fee
would be.


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