Panel upholds curfew law in case over arrests of Occupy protesters

By Jonathan Bilyk | Jan 5, 2015

The City of Chicago did not violate the constitutional rights of Occupy protesters three years ago, when police arrested hundreds who refused an order to leave Grant Park after it closed at 11 p.m., a state appeals court ruled late last month.

A panel of the First District Appellate Court struck down a ruling from Cook County Circuit Court Judge Thomas More Donnelly, who held Chicago Park District ordinances forbidding overnight gatherings in the prominent park violated the free speech rights of demonstrators.

The appellate justices, however, determined city ordinances, while perhaps inconveniencing the protesters, did not trample on their rights by compelling them to relocate their demonstration from Grant Park to a public sidewalk across Michigan Avenue when the park closed to the public.

“Although not their first choice, we are confident defendants' confederates reached the same audience and suffered no impediment communicating their message from a location that was within 100 feet from the excluded area,” the justices held.

The decision, delivered Dec. 23, was authored by Justice Daniel J. Pierce, with justices Laura C. Liu and Sheldon A. Harris concurring.

The case centered on the decision by the Chicago Police Department --enforcing Park District ordinances governing operating hours at Grant Park-- to arrest more than 300 protesters, collectively, around 1 a.m. on both Oct. 15-16 and Oct. 22-23, 2011, when protesters associated with the Occupy movement refused to obey repeated police orders or heed multiple warnings to leave the park hours after it had closed.

In the late summer of 2011, protests sprang up in cities across the U.S. in support of a New York gathering identifying itself as Occupy Wall Street. The protesters made various demands, centered on addressing perceived income and wealth inequality in the U.S.

The groups’ primary tactic involved setting up semi-permanent encampments on city streets and public parks in urban centers, particularly near financial and business districts in large cities, purportedly to disrupt the daily lives of the elite so-called top “1 percent” in America and draw attention to what they believe to be the problems at the heart of the country’s economic and political systems.

By October 2011, protests in Chicago had swelled to several thousand daily, with a sustained presence 24 hours a day on downtown city streets. On Oct. 15, protesters took their demonstration into Grant Park and indicated, via chant, they intended to “occupy” Grant Park.

In response, city police warned them the park, by ordinance, closes from 11 p.m. to 6 a.m. each night, ostensibly to allow Chicago Park District workers to keep the park in good repair and to allow police to prevent the park from becoming a target for criminals.

While an estimated 3,000 protesters entered the park on Oct. 15, only about 173 remained to be arrested by police at 1 a.m. on Oct. 16. Many of the rest had relocated their demonstration across Michigan Avenue to a public sidewalk and were not arrested.

Protesters returned Oct. 22, and again, 130 were arrested in the park at 1 a.m. on Oct. 23.

Following their arrest, lawyers for the protesters asked the Cook County Circuit Court to dismiss the charges. Among other arguments, they compared their protests to the November 2008 election night gathering in Grant Park to celebrate the election of President Barack Obama.

They noted that celebration went well into the night, with many revelers remaining in the park beyond 11 p.m.

Judge Donnelly agreed, dismissing the protestors' charges, which he said had been based on an ordinance that was unconstitutional as it violated the protesters’ rights guaranteed by the U.S. Constitution’s First and Fourteenth Amendments and associated sections of the state Constitution.

The city appealed the decision, however, saying the ordinance in no way impeded the ability of the Occupy protesters to state their message, or to gather, noting long established principles allowing governments to regulate the locations and times at which citizens and groups can speak, as well as their methods for doing so.

And since the ordinance did not explicitly target the Occupy protesters distinct from any other groups, the city argued that the ordinance ordering Grant Park to close at 11 p.m. is constitutional.

The appellate court agreed with the city, saying the ordinance in no way prevented the protesters from continuing their demonstration elsewhere in the city. The panel upheld the constitutionality of the ordinance, which effectively reinstated the protestors' arrests.

“The ordinance does not prohibit anyone from conducting their expressive activities on public sidewalks or in other public space adjacent to park property if they wish to do so,” Pierce wrote for the panel. “This is evident by the easy transition of the Occupy protestors from the east side to the west side of Michigan Avenue.”

The justices also said the protesters’ comparison to the Obama victory rally failed, as well, because they could not offer any proof “as to what time the Obama spectators left, whether or to what extent they were asked to leave, whether any of the spectators chanted their intent to remain or ‘occupy’ the park or whether they erected tents.”

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