Kevin Sroga v. Timothy Weiglen

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2164
KEVIN SROGA,
Plaintiff-Appellant,
v.
TIMOTHY WEIGLEN, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 1789—Ronald A. Guzmán, Judge.
SUBMITTED JULY 20, 2011—DECIDED AUGUST 18, 2011
Before POSNER, KANNE, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. Kevin Sroga has sued Chicago
police officers under 42 U.S.C. § 1983, complaining of
three arrests that he contends violated his constitu-
tional right to be free from unreasonable seizure of his
person. The district court granted the defendants’ motion
for summary judgment, and so we are obliged to con-
strue the facts as favorably to the appellant as the
record permits.

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2 No. 10-2164
The first arrest was for disorderly conduct. Sroga tried
to dissuade an employee of the City of Chicago from
towing his car, which was parked on a street near his
home and which the City had designated as hazardous
because a dolly (a platform on wheels for moving
heavy objects) attached to the rear of the vehicle had no
license plate. A crowd gathered to watch their alterca-
tion. A police officer appeared and told Sroga to calm
down and let the driver of the tow truck do his job.
Instead Sroga leapt onto the moving car as it was being
towed away. At that point he was arrested.
The second arrest, months later, was for theft of lost
or mislaid property after Sroga got into another spat with
a City employee, who was trying to tow not one but
several of Sroga’s vehicles. They were parked in a vacant
lot, which apparently he owned, and we have no idea
why the City wanted them towed. And in fact the driver
of the tow truck decided not to tow them. But then
he noticed a car parked on the street in front of Sroga’s
house and decided to tow that vehicle. Later Sroga was
told the vehicle was hazardous, though we don’t know
what the hazard was. To prevent the car from being
towed, Sroga got into it as the driver was hooking it
up to the tow truck, and despite repeated demands
by police that he get out of the car he refused to budge
until a sergeant showed up and ordered him to get out.
Meanwhile a different police officer had spotted a
Chicago Police Department ticket book on the dash-
board of yet another of Sroga’s vehicles, this one also
parked on the street in front of the lot. The police

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No. 10-2164 3
arrested him, not for disorderly conduct but on suspicion
that he had stolen the ticket book.
The third arrest, made more than a year later, was
for criminal trespass to “state-supported” land, and
occurred shortly after he left a police station upon
being released from police custody following still
another arrest but not one challenged in this case. (He
keeps the Chicago police busy. See Chicago Police De-
partment, “Criminal History Report for Kevin Robert
Sroga,” May 29, 2008, listing 13 arrests between
November 2003 and January 2008. He is also a prolific
civil litigant. See, e.g., Sroga v. Personnel Board, 833 N.E.2d
1001 (Ill. App. 2005); Sroga v. Chicago Public Schools,
No. 11 C 2124, 2011 WL 1364036 (N.D. Ill. Apr. 11, 2011);
Sroga v. Decero, No. 09 C 3286, 2010 WL 4705161 (N.D. Ill.
Nov. 9, 2010).) He left by the front door of the police
station and walked past a sign that reads “No Loitering
No Trespassing” into a parking lot marked with signs
that said “Parking Police Personnel Only.” A police
officer noticed him walking between the rows of police
cars peering inside each car. Realizing that he was
being observed, Sroga struck up a conversation with an
officer who was sitting in one of the cars. He claims
she was an old friend, but she offered her handcuffs
to another officer to fasten on Sroga.
Surprisingly, none of the three arrests resulted in a
prosecution. The issue is their legality under the Fourth
Amendment.
The offense of disorderly conduct—the ground of the
first arrest—has been around for a very long time. But

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4 No. 10-2164
like many criminal offenses it is not well defined (pre-
sumably for fear that if well defined it would spring loop-
holes). Illinois law defines disorderly conduct as an
act or acts done “in such unreasonable manner as to
alarm or disturb another and to provoke a breach of the
peace.” 720 ILCS 5/26-1(a)(1). Sroga probably enter-
tained rather than alarmed the onlookers of his contre-
temps with the driver of the tow truck, but may have
alarmed and doubtless distracted the driver. But was
his conduct likely to provoke a “breach of the peace”?
That depends on what the term means.
We tried to define it decades ago, and our definition
has been favorably received by the Illinois courts:
The term “breach of the peace” has never had a
precise meaning in relation to specific conduct. Yet
from its early common law origin to the present it
has received a fairly well defined gloss. “The offense
known as breach of the peace embraces a great
variety of conduct destroying or menacing public
order and tranquility. It includes not only violent
acts but acts and words likely to produce violence
in others.” Cantwell v. Connecticut, 310 U.S. 296, 308
(1940). The term connotes conduct that creates con-
sternation and alarm. It is an indecorum that incites
public turbulence; yet violent conduct is not a neces-
sary element. The proscribed conduct must be volun-
tary, unnecessary, and contrary to ordinary human
conduct. On the other hand, the commonly held
understanding of a breach of the peace has always
exempted eccentric or unconventional conduct, no

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No. 10-2164 5
matter how irritable to others. It seems unnecessary
to add that whether a given act provokes a breach of
the peace depends upon the accompanying circum-
stances, that is, it is essential that the setting be con-
sidered in deciding whether the act offends the
mores of the community.
United States v. Woodard, 376 F.2d 136, 141 (7th Cir.
1967); see, e.g., People v. Allen, 680 N.E.2d 795, 798-99
(Ill. App. 1997); People v. Stevens, 352 N.E.2d 352, 356 (Ill.
App. 1976).
The quoted passage starts out well, with the quotation
from the Cantwell case: a breach of the peace is a violent
act or an act likely to provoke violence. It would be a
stretch to describe Sroga’s jumping on his car as it was
being towed in those terms, but the passage from the
Woodard opinion continues: breach of the peace also
includes acts that cause “consternation”; it is an “indeco-
rum,” which is to say an indecorous act. Speaking with
one’s mouth full is indecorous; is it a breach of the
peace? Could Sroga really have been thought to have
caused “public turbulence”? And after quoting Cantwell,
which defines a breach of the peace as an act that is
violent or causes violence, our opinion states that
“violent conduct is not a necessary element.”
Much better, and briefer—thus illustrating the limita-
tions of definitional elaboration—is the definition of
breach of the peace in the Restatement (Second) of Torts § 116
(1965): “a public offense done by violence, or one
causing or likely to cause an immediate disturbance

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6 No. 10-2164
of public order.” “Disturbance of public order” seems an
apt description of Sroga’s jumping on his car as it was
being towed, after he had tried to dissuade the driver
of the tow truck from towing it. And Sroga doesn’t
argue that the Illinois law of disorderly conduct is uncon-
stitutionally vague (Woodard held it was not).
Sroga cites “Legal Bulletin No. 2001-01,” an internal
Chicago police memorandum that he claims forbade
the police to arrest him for disorderly conduct. The
bulletin advises officers that the Illinois courts tend to
throw out disorderly-conduct charges when the only
complaining witness is a police officer, and therefore
“it is important to have a civilian complainant, or at the
very least, for the officer to include in the complaint
civilian witnesses that could provide corroborative evi-
dence of the offender’s conduct.” Sroga overreads the
bulletin. It doesn’t forbid arrest for disorderly conduct
without a complaint or evidence from witnesses, and
anyway the facts of the incident for which he was
arrested are undisputed.
Even if the bulletin were a statute that forbade arrest
for disorderly conduct in any circumstances, this would
not help Sroga, as we know from Virginia v. Moore, 553
U.S. 164 (2008), anticipated in Gordon v. Degelmann, 29
F.3d 295, 301 (7th Cir. 1994). The defendant in Moore
had been arrested for driving with a suspended license.
State law made this not an “arrestable offense,” but the
Supreme Court held that the arrest, although it violated
Virginia law, did not violate the Fourth Amendment.
The police had probable cause to believe that Moore

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No. 10-2164 7
had committed the crime of driving with a suspended
license—and it was a crime, though not a crime for which
the offender could be arrested rather than just given a
summons. The Court explained that the Fourth Amend-
ment requires only that an arrest be reasonable and
that “warrantless arrests for crimes committed in the
presence of an arresting officer are reasonable under the
Constitution,” id. at l76, even if a state or municipality
“chooses to protect privacy beyond the level that the
Fourth Amendment requires.” Id. at 171. As we explained
in the Gordon case, because the arresting officer in that
case “followed the procedures the Constitution pre-
scribes for making arrests, his failure to afford Gordon
additional procedures established by state law does not
matter—not, at least, to a claim under the fourth amend-
ment.” 29 F.3d at 301; see also Thomas v. City of Peoria,
580 F.3d 633, 637 (7th Cir. 2009); Edgerly v. City & County
of San Francisco, 599 F.3d 946, 956 (9th Cir. 2010).
We move on to the arrest for theft of lost or mislaid
property, a crime committed by a person who has ob-
tained control over property and knows or should
know to whom it belongs, but fails to take reasonable
measures to restore it to its owner because he’s decided
to keep it. 720 ILCS 5/16-2. Sroga certainly knew who
owned the Chicago Police Department’s ticket book, and
he had not tried to return it to the department and
seemed intent on keeping it, since it was lying on the
dashboard of his vehicle.
Sroga argues that the police should have known there
was an innocent explanation for the presence of the

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8 No. 10-2164
ticket book on his dashboard—he shares the vehicle
with his brother, a former police officer. But he has pre-
sented no evidence that this is true, much less that the
officers were aware of it before they arrested him.
See Jackson v. Parker, 627 F.3d 634, 638 (7th Cir. 2010).
(And what is a former police officer doing with the
police department’s ticket book? Still writing tickets?)
Anyway “a person’s ability to explain away seemingly
damning facts does not negate the existence of probable
cause, even though it might provide a good defense
should the case go to trial.” Deng v. Sears, Roebuck & Co.,
552 F.3d 574, 577 (7th Cir. 2009).
As if all this were not enough, in the incidents that
resulted in Sroga’s first two arrests the police had
probable cause to arrest him for an additional crime:
“knowingly resist[ing] or obstruct[ing] the performance
by one known to the person to be a peace officer . . .
of any authorized act within his official capacity.” 720
ILCS 5/31-1(a). The existence of probable cause to
arrest a suspect for any offense, even one that was not
identified by the officers on the scene or in the charging
documents, will defeat a Fourth Amendment false-
arrest claim. Devenpeck v. Alford, 543 U.S. 146, 153-54
(2004); Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 762 (7th
Cir. 2006); Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir.
2007). In both incidents Sroga disobeyed police officers’
lawful orders that he not impede the towing of his car. E.g.,
People v. Sorrels, 906 N.E.2d 788, 792 (Ill. App. 2009); In re
Jerome S., 867 N.E.2d 1206, 1212 (Ill. App. 2007); People v.
Synnott, 811 N.E.2d 236, 241 (Ill. App. 2004). Although

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No. 10-2164 9
merely arguing with a police officer does not violate the
statute, People v. Weathington, 411 N.E.2d 862, 863-64 (Ill.
1980); People v. Martinez, 717 N.E.2d 535, 538-39 (Ill. App.
1999). Sroga both times went beyond argument by re-
fusing to desist from behavior that was obstructing the
efforts of the police to enable his car to be towed. E.g.,
City of Chicago v. Meyer, 253 N.E.2d 400, 402-03 (Ill.
1969); People v. Gordon, 948 N.E.2d 282, 287-88 (Ill. App.
2011); People v. Ostrowski, 914 N.E.2d 558, 571-72 (Ill.
App. 2009).
Sroga’s third arrest, for criminal trespass to “state-
supported” land, is the only one whose conformity to the
Fourth Amendment might be questioned. Illinois law,
so far as concerns that arrest, forbids anyone to
enter land “supported in whole or in part with State
funds” and “thereby [to] interfere[] with another
person’s lawful use or enjoyment” of the land, 720 ILCS
5/21-5(a), provided that he has been warned off by
“a printed or written notice forbidding such entry . . .
[that] has been conspicuously posted or exhibited at
the main entrance to such land or the forbidden part
thereof.” Id., § 5/21-5(b).

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10 No. 10-2164
This aerial photo shows the scene:
Sroga explains that he walked through the police parking
lot because it was the quickest way for him to get from
the police station, which is at the southeast corner of
Grand Avenue and Central Avenue (at the top of the
photo), to a nearby train station to catch a ride home.
The parking lot is immediately behind the police station
and is accessible by a public sidewalk that runs along
the police station’s east side (on the right, as one faces
the photo). South of its intersection with Grand Avenue,
Central Avenue crosses the railroad tracks on a bridge,

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No. 10-2164 11
and an exit from the police parking lot at the lot’s south-
west corner, underneath the Central Avenue overpass
just before the tracks, brings one to Armitage Avenue;
and just to the west, on Armitage, is the train station that
Sroga says he was trying to get to. He could have
gotten from the police station to the train station by
walking west on Grand Avenue after leaving the police
station, turning south on Central Avenue, and then
taking stairs down to Armitage, without going through
the police parking lot, but the route he took was a little
shorter and didn’t involve stairs.
The mere fact that a piece of land is “supported” by the
government doesn’t make a person who enters it a tres-
passer. Otherwise one couldn’t use streets or sidewalks.
There has to be something in its appearance or layout
(a fence for example), or informative signs, to indicate
that the public is barred. All that the signs indicated
was that only police cars could park in the lot.
So the police didn’t have probable cause to arrest Sroga
simply because he took a shortcut through their parking
lot. It was Sroga’s shenanigans in the lot—his peering
into the police cars and his pestering the officer whom
he found sitting in her police car—that gave the police
probable cause to believe that he was interfering with
the lawful use of the land.
True, notice that entry is forbidden is also an element
of the offense, and the notice was insufficient. So he
could not have been convicted of violating the statute.
But the issue is probable cause to arrest rather than
proof of guilt. And “to form a belief of probable cause, an

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12 No. 10-2164
arresting officer is not required . . . to act as a judge or
jury to determine whether a person’s conduct satisfies
all of the essential elements of a particular statute.” Stokes
v. Board of Education, 599 F.3d 617, 622-23 (7th Cir. 2010);
see also Gramenos v. Jewel Cos., 797 F.2d 432, 438-42 (7th
Cir. 1986); Williams v. Town of Greenburgh, 535 F.3d 71, 79
(2d Cir. 2008). One of the arresting officers said he
thought the sign posted in the parking lot said “Police
Parking Only and Police Personnel Only.” Another inter-
preted the actual sign to mean that only police could enter
the lot, whether “on foot, on a bike, rollerblades, skate
board.” These misunderstandings are not so egregious
that we can say that the police were unreasonable to
think they had probable cause to arrest Sroga. Blankenhorn
v. City of Orange, 485 F.3d 463, 475 (9th Cir. 2007).
Summary judgment was rightly granted on all three
of Sroga’s claims—but we have to say that Chicago law
enforcement does not emerge from its struggles with
Sroga with its escutcheon untarnished.
AFFIRMED.
8-18-11

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