Appeals panel takes second look at Chicago parks curfew, says ordinance still constitutional

By Jonathan Bilyk | Dec 24, 2015

After taking a second look, a state appeals panel has again upheld as constitutional a Chicago ordinance prohibiting anyone, even protesters, from remaining overnight in Grant Park without special permission.

On Dec. 22, a three-justice panel of the Illinois First District Appellate Court ruled the city of Chicago and Chicago Park District did not march on the First Amendment rights of Occupy Chicago protesters when police, claiming to enforce the parks ordinance, ordered protesters to leave Grant Park and arrested those who remained on a series of nights in October 2011.

“Defendants are not picnickers or stargazers or soccer players. They are members of a group assembled to make an important point,” the justices wrote. “Their assembly rights were apparently accommodated through the night of their arrest in Grant Park. The ordinance did not restrict their assembly, it restricted their stated purpose to ‘occupy’ and indefinitely remain in a public area to the detriment of the park district's ability to perform its legitimate functions. Free assembly … is not without its limits.”

The ruling comes almost a year to the day since the appellate panel first overturned a ruling by Cook County Judge Thomas More Donnelly, who had found the city’s ordinance barring use of the park between 11 p.m. and 6 a.m. was an unconstitutional infringement on citizen’s First Amendment rights and particularly those of the Occupy protesters, who wished to use the park to assemble for their protests against what they believed to be injustices within the U.S. economic and political systems.

Following the appellate decision on Dec. 23, 2014, the Illinois Supreme Court had ordered the appellate court to vacate its decision, and reevaluate the case in light of the First Amendment concerns raised by the arrested protesters.

However, in its new decision, the appeals panel reached very similar conclusions to those that underlay its ruling a year earlier.

Justice Daniel J. Pierce again authored the opinion, with justices Sheldon A. Harris and Laura C. Liu again concurring, as they had in December 2014.

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 protesters' 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.

After taking up the matter for the second time, justices again backed the city, saying the time and place restrictions placed on the demonstrators by the ordinance were not unconstitutional, either on their face or as applied.

Particularly, the justices noted the ordinance’s purpose – to simultaneously preserve the park’s condition and promote public safety - falls within the scope of a compelling government interest. They said the ordinance also does not unfairly target only demonstrators because it bars all from using the park at that time of night, whether they wish to make a political point or merely engage in recreational activity, such as picnicking, jogging or stargazing, among others.

Further, the justices again noted the city provides ample opportunities for protesters to take their demonstrations elsewhere, including city sidewalks and other public areas not managed by the Park District.

On the matter of comparing the Occupy protesters to those gathered in 2008 for the Obama Election Night victory rally, justices said the nature of the gatherings provides the difference in their treatment:

While the Obama gathering was a one-time historic event, the Occupy protesters “intended to remain in the park for an unspecified period of time indicating a 24-hour, uninterrupted presence for days, weeks or months without end,” justices said. “Surely this would adversely impact the maintenance and public safety responsibilities of the park district and would result in the total substitution of the purported goals of these defendants, regardless of the righteousness of their movement, with the needs of the public at large.”

The case was remanded to the circuit court for further proceedings.

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