City of Chi. v. Alexander

46 N.E.3d 1207

The CITY OF CHICAGO, a Municipal Corporation, Plaintiff–Appellant

v.Tieg E. ALEXANDER¹ et al., Defendants–Appellees.

No. 1–12–2858.

Appellate Court of Illinois, First District, Second Division.

Dec. 22, 2015.

Stephen R. Patton, Corporation Counsel, Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Kerrie Maloney Laytin, Assistant Corporation Counsel, of counsel), for appellant.

People's Law Office (Sarah Gelsomino, John L. Stainthorp, and Janine Hoft, of counsel), Law Office of Molly Armour (Molly Armour, of counsel), and Durkin & Roberts (Thomas Anthony Durkin, Janis D. Roberts, and Joshua G. Herman, of counsel), Chicago, and Law Office of John D. Cline, San Francisco, California (John D. Cline, of counsel), for appellees.

OPINION

Presiding Justice PIERCE delivered the judgment of the court, with opinion.

¶ 1 Chapter VII, section B.2, of the Chicago Park District Code (Code) prohibits persons from remaining in Chicago parks from 11 p.m. to 6 a.m. Chicago Park District Code, ch. VII, § B.2 (amended July 28, 1992); see also Chicago Municipal Code § 10–36–185 (added Apr. 21, 1999). According to an official with the Chicago park district, the purpose of the ordinance is “to keep parks safe, clean, attractive and in good condition” by allowing “park employees to collect trash, make repairs to park facilities, and maintain the landscaping.” Defendants were arrested when they failed to vacate Grant Park after being advised of the terms of the ordinance and after numerous warnings that they were in violation of the ordinance. The circuit court dismissed the charges, finding the ordinance was facially unconstitutional and unconstitutional as applied to defendants as it violated principals of equal protection. Plaintiff City of Chicago (City) argues on appeal that the circuit court erred in granting defendants' motions to dismiss because the ordinance is constitutional on its face and constitutional as applied to these defendants. We agreed with the City that the circuit court erred in granting defendants' motion to dismiss because the ordinance was not unconstitutional and reversed its decision. In a supervisory order, our supreme court instructed us to vacate our order and to review the circuit court's judgment that the ordinance violates the right to free assembly under both the first amendment to the United States Constitution (U.S. Const., amend. I ) and article I, section 5 of the Illinois Constitution (Ill. Const. 1970, art. I, § 5 ). Accordingly, we have vacated our original opinion and enter this opinion in its stead.

¶ 2 BACKGROUND

¶ 3 Defendants² were protestors affiliated with Occupy Chicago, a grass roots political movement challenging wealth inequality. The Occupy movement is a branch of the Occupy Wall Street movement that protests against social and economic inequality with its primary goal focused on economic and political relations and wealth inequality. According to defendants, the Occupy movement “communicates this message through continuous occupation of a physical location” and this “non-violent occupation is the movement's chosen form of expression.” “The expression of occupation highlights occupiers' willingness to contribute their bodies to the cause and undergo physical discomfort in order to bring attention to the desperate economic situation.”

¶ 4 On September 22, 2011, Occupy Chicago protestors began demonstrating on the sidewalks in Chicago's financial district. Specifically, the protestors demonstrated in front of the Federal Reserve building, the Chicago Board of Trade and the Bank of America building in the vicinity of Jackson and LaSalle Streets. The Chicago police department (CPD) permitted protestors to remain on the sidewalks in that area for up to 24 hours per day but did not allow the protestors to store provisions, erect structures or block traffic.

¶ 5 From its beginning, Occupy Chicago began to receive large quantities of supplies from supporters at Jackson and LaSalle. When the Federal Reserve police informed protestors that they could not store their supplies along side of the bank, Occupy Chicago reached an agreement with the CPD to store these supplies on the edge of the sidewalk. On September 29, 2011, CPD issued Occupy Chicago a “move it or throw it away” ultimatum, contrary to their prior agreement about storage of supplies. Occupy Chicago secured an off-site storage location and moved most of their supplies off the sidewalk. More supplies and donations arrived and the Chicago police informed Occupy Chicago members that their efforts in removing their belongings were insufficient and anything still on site at 9 a.m. the next morning would be confiscated by the CPD. Protestors then moved across LaSalle Street to the Bank of America building. At this location, CPD informed protestors that they needed to keep their belongings moving at all times otherwise they would be disposed of.

¶ 6 On October 15, 2011, Occupy Chicago conducted a rally near the intersection of Jackson and LaSalle Streets. Protestors then marched around downtown Chicago for approximately one hour and entered Grant Park at the northeast corner of Michigan Avenue and Congress Parkway, commonly known as Congress Plaza.

¶ 7 Grant Park is often referred to as “Chicago's front yard.” Generally located between Randolph Street on the north, Roosevelt Road on the south, Lake Michigan on the east and Michigan Avenue on the west, this public park contains entertainment venues, gardens, art work, sporting and harbor facilities within its 319 acres. http://en.wikipedia.org/wiki/Grant_Park_(Chicago) (last visited Dec. 15, 2015). Congress Plaza is the ceremonial entrance on the park's center west side at the foot of Congress Parkway. Congress Plaza consists of two semicircular plazas located on each side of the heavily travelled Congress Parkway thoroughfare. Each plaza contains gardens, fountains, and artwork, including a pair of large bronze warrior statues, The Bowman and the Spearman, that are positioned like gatekeepers to the park. http://www.chicagoparkdistrict.com/parks/grant-park/ (last visited Dec. 15, 2015).

¶ 8 According to defendants, they were directed to this area by the Chicago police. The protestors made speeches over a public announcement (PA) system and erected 30 tents in this area of Grant Park and chanted that they would not leave the park.

¶ 9 Throughout the evening, CPD command personnel communicated with protestors and attorneys from the National Lawyers Guild (NLG) and informed the protestors that they would not be allowed to remain in Grant Park after it closed at 11 p.m. Attorneys from the NLG informed the protestors that they would have to vacate Grant Park by 11 p.m., as required by park district ordinance and that if they remained in the park, they would be arrested. CPD estimated that there were approximately 3,000 protestors in Grant Park at around 7:15 p.m., with that number declining to about 700 around 8 p.m.

¶ 10 Prior to 11 p.m., using a PA system, the CPD read the park district ordinance to the protestors who remained in Congress Plaza and informed them that if they remained in Grant Park past 11 p.m., they would be arrested. Some protestors relocated across the street to the sidewalk on the west side of Michigan Avenue in front of Roosevelt University. Approximately 300 protestors remained in Grant Park after the 11 p.m. curfew.

¶ 11 At approximately 1 a.m. on October 16, 2011, CPD used the PA system again to warn protestors that the park was closed. CPD then asked each protestor individually whether he or she wanted to leave the park or be arrested. CPD then arrested the 173 protestors who refused to leave after these warnings and charged them with violating chapter VII, section B.2, of the Code.³

¶ 12 On October 22, 2011, Occupy Chicago protestors staged another rally in the vicinity of Jackson and LaSalle Streets. There were approximately 1,500 protestors at 7 p.m. when the group left the financial district marching again to Congress Plaza. CPD heard protestors chanting, “[t]he Occupation is not leaving!” Again, CPD command personnel informed Occupy Chicago members and NLG attorneys that protestors would not be allowed to remain in Grant Park after it closed. Prior to 11 p.m., CPD informed the protestors that that park closed at 11 p.m., and anyone who remained after 11 p.m. would be subject to arrest. After 11 p.m., CPD again announced that the park was closed and that those who remained would be subject to arrest. Many protestors left the park and relocated across the street to the west side of Michigan Avenue in front of Roosevelt University. CPD approached each protestor who remained in Grant Park and again asked if he or she wanted to leave the park or be arrested. After these warnings, CPD arrested the 130 protestors and cited them for violating chapter VII, section B.2, of the Code.⁴

¶ 13 All protestors arrested after 11 p.m. on both October 16th and October 22nd were given court dates in various criminal courthouses located throughout the city. Numerous pro bono attorneys appeared for defendants, including attorneys affiliated with the NLG and the law firm Durkin & Roberts. Some defendants entered pleas of guilty. Ninety-two defendants, all parties to this appeal, represented by Durkin & Roberts and NLG moved to dismiss the charges on the grounds that “their conduct as part of the Occupy Chicago protest at Grant Park on the night in question constituted expressive conduct or symbolic speech” that was protected by the first amendment. They further alleged that the charges violated their rights under the first amendment and the fourteenth amendment equal protection clause of the United States Constitution. Specifically, the Durkin defendants argued that the ordinance and the City's selective enforcement of the ordinance violated their first amendment rights on the grounds that: (1) the ordinance is not narrowly tailored to serve significant government...