Both the Chicago Sun-Times and the Chicago Tribune are reporting that a Cook County Circuit Court Judge in Chicago has ruled the city’s 11 p.m. curfew for its parks to be unconstitutional. The 38-page decision arises from the arrest of hundreds of Occupy Chicago/Wall Street protesters and supporters last October in Chicago’s famed Grant Park. The protesters were handcuffed and hauled off to jail, charged with violation of Chicago Park District’s 11 p.m. curfew for all its 580 parks.
But Cook County Associate Judge Thomas More Donnelly dismissed all charges against 92 of the demonstrators. He wrote that the curfew itself was violative of the Constitution’s “free assembly” clause. Judge Donnelly drew a direct comparison between the Occupy Wall Street/Occupy Chicago protests and the Obama 2008 election victory rally and celebration in that same Grant Park.
The police arrested no one – not a single person -- at the Obama rally even though it lasted well passed the curfew. The Occupy demonstrators, however, were given and subjected to, in Judge Donnelly’s words, “constantly changing rules and regulations.” Indeed, the protesters and demonstraters were literally herded to several different locations in downtown Chicago before finally being told by the police to go to Grant Park.
Naturally, freshman Mayor Rahm Emanuel’s administration is appealing the judge’s decision. “We are disappointed with the decision,” city Law Department spokesman Roderick Drew said.
He has also released a letter explaining the city’s position:
“The curfew is an important part of the city’s efforts to maintain and protect public health and safety, and we cannot allow all city parks to remain open 24 hours a day — nor would other major cities. We believe the ordinance is valid and we will therefore continue to enforce it.”
Thomas Anthony Durkin, the lawyer for twelve University of Chicago students who were among the arrested called the judge’s ruling a “stinging rebuke to Mayor Rahm Emanuel’s and [Chicago Police Supt.] Garry McCarthy’s repeated claims that the City of Chicago respects and protects the First Amendment.”
“This is a tremendous First Amendment victory for both Occupy and all Chicagoans,” Durkin added. “The fact of the matter is the city, and this administration in particular, respect the property rights of business owners more than the First Amendment.”
On October 16 and October 23, 2011 Chicago’s finest arrested 303 protesters who refused to leave Grant Park after 11:00 p.m.
Only ninety-two of them chose to fight the charges. The others have already accepted plea deals including court supervision and community service.
But, again, Judge Donnelly said the curfew violates both the U.S. and Illinois Constitutions.
Judge Donnelly referred to Grant Park as “the quintessential public forum” of Chicago, citing the Vietnam War-era protests, various labor rallies and demonstrations, and topping everything off, of course, with President Obama’s national and international victory rally in November of 2008.
Judge Donnelly dismissed the city’s claims that the 2008 Obama rally was not a valid analogy to the Occupy protesters. City lawyers urged the judge to view the Obama rally as “different” because those people never “stated that they were going to remain there or that they had no intention of leaving.”
“The police would promulgate a rule; when the protesters would comply, the police would change the rule,” the judge wrote. The city’s actions suggested officials “intended to discriminate against defendants based on their views,” Donnelly said.
Sarah Gelsomino, a National Lawyers Guild attorney, said that Donnelly’s ruling “sends a very strong message from the courts to the city that the First Amendment belongs to all citizens equally, regardless of their message.” Gelsomino went on:
“ ... The reality of what happened to these 92 people is that they were scooped up and treated liked criminals. They were put in the back of police wagons, taken to the police station, held in custody while they were processed, then sent to courthouses where they faced charges. So these individuals felt the consequences of this arrest, and they have been feeling the consequences of having it hanging over their head for over a year. What is so significant about this is that the ordinance violation they were arrested for, a curfew violation, carries a maximum penalty of $500, and no jail time. Yet some of these people spent up to 24 hours in jail. That certainly has had a chilling effect.”
Protester Andy Manos, 33, of Humboldt Park (a Chicago neighborhood), was not quite as diplomatic: “When the judge announced his ruling, I loved it. I felt a big feeling of relief, but that relief was also tied to a kind of, ‘F--- you, Rahm,’ which is how the teachers must have felt recently.”
Even though the city says it will continue to enforce the 11 p.m. curfew while the case is on appeal, attorney Burt Odelson, who has many surrounding suburbs as clients, does not think the city of Chicago can legally shut the parks at 11. “It’s (the curfew) gone, unless the city appeals it and wins,” Odelson told the Sun-Times. He argues further that the city parks are now wide open all day and all night. “Bring your friends and a band and a barbecue and you’re good to go,” Odelson said.
Personally, I applaud the judge’s ruling. Chicago has just suffered one of its hottest summers on record – strike that – the hottest summer on record. If only this ruling had come in June rather than September….
(Incidentally, with all these lawyers involved, how long do you think it will take before the first civil suit against the city is filed?)