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Judge says curfew arrest of Occupy Chicago protesters were unconstitutional

By David Heinzmann, Chicago Tribune –

CHICAGO — The mass arrests of Occupy Chicago demonstrators that city leaders praised as a model for respecting protesters’ rights were ruled unconstitutional Thursday by a Cook County, Ill., judge who also said the city’s overnight park curfew violates the First Amendment.

The city singled out the Occupy demonstrators for violating the park’s 11 p.m. curfew on two consecutive weekends in October 2011, arresting hundreds of people, while no one was arrested when 500,000 people stayed past the curfew at the 2008 Election Night rally for President Barack Obama “that electrified the world,” Associate Judge Thomas M. Donnelly wrote.

That selective enforcement of the curfew, combined with the Chicago Police Department’s treatment of the protesters in the days before the arrests, “support a finding that the City intended to discriminate against Defendants based on their views,” Donnelly wrote.

The immediate impact was to throw out the arrests of 92 Occupy protesters on charges related to violating the curfew. But the judge went beyond that in ruling that the city is violating the public’s right to free assembly under the state and U.S. constitutions by restricting late-night access to Chicago’s most famous lakefront park, which he called “the quintessential public forum.”

Noting the park’s long history of political rallies going back to Abraham Lincoln, the judge quoted early city leaders who resolved in 1835 that the land that would become Grant Park “should be reserved for all time to come for a public square, accessible at all times to the people.” Because parks are a critical forum for free speech and free assembly, local ordinances restricting access to them must be “narrowly tailored” to serve a specific “government interest,” such as park maintenance, Donnelly wrote.

“We’re incredibly pleased by Judge Donnelly’s ruling. This is a significant First Amendment ruling for the Occupy protesters, and all Chicagoans,” said lawyer Thomas A. Durkin, who represented 12 University of Chicago students who were among the 92 arrested.

City lawyers plan to appeal and do not think the judge’s ruling affects the 11 p.m. to 6 a.m. curfew in Grant Park or other city parks, said Law Department spokesman Roderick Drew.

“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,” Drew wrote in an email. “We believe the ordinance is valid and we will therefore continue to enforce it.”

Donnelly used much of his ruling to challenge the notion that the city should have wide leeway in closing the park when it sees fit. Donnelly wrote that the city does not need to close the parks for six hours every night for maintenance and other government needs, and acknowledges that fact in part by making exceptions for rallies it approves. So that reason is not sufficient for keeping people out when they are trying to exercise their First Amendment rights, he wrote.

He likewise dismissed the city’s point that it granted a permit for the Obama rally, saying such a permit does not pre-empt the curfew. The different treatment “violates Defendants’ right to equal protection because it treats similarly situated citizens differently,” Donnelly wrote.

But the judge went further, ruling that Chicago police engaged in a pattern of harassment that drove Occupy Chicago protesters from their original protest site near the Federal Reserve Bank in the Loop to Grant Park, and then took the park away from them.

“The Occupy Chicago demonstrators were subject to constantly changing rules and regulations that ended in a directive that they had to be constantly moving in order to protest,” Donnelly wrote.

The judge’s opinion ran counter to the position of Mayor Rahm Emanuel’s administration, which in the months leading up to this spring’s NATO conference in Chicago had repeatedly pointed to the handling of the Occupy arrests by his police superintendent, Garry McCarthy, as a new model for respecting protesters’ rights. During the 2011 demonstrations, on two consecutive Saturdays in October, police issued a clear order for protesters to leave Grant Park, and then gave people ample time to disperse, arresting only those who chose to stay.

More than 300 people were arrested in the Grant Park demonstrations early in the morning on Oct. 16 and Oct. 23, 2011, for violating the curfew.

The handling of the demonstrations stood in sharp contrast to a 2003 Iraq War demonstration during the tenure of former Mayor Richard Daley, in which more than 500 people were arrested after police refused to allow them to leave the intersection of Michigan and Chicago avenues.

Durkin and lawyers from the National Lawyers Guild, which also represented Grant Park defendants, said it was unclear whether the ruling would affect the cases of the more than 200 arrestees who had earlier taken court-supervision offers from the city to avoid having a conviction on their records.

But for the 92 who fought the charges, Thursday was a triumph, Durkin said. “We got everything we wanted. This is a huge win.”

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