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Chicago Protest Ordinance is Facially Invalid

By Robyn Hagan Cain on September 12, 2012 4:06 PM

When the Chicago Teachers Union strike started Monday, teachers no longer had to worry about getting arrested for lingering in areas where "disorderly conduct" was occurring.

That’s because the Seventh Circuit Court of Appeals had just enjoined a Chicago ordinance which criminalized a person's refusal to leave a scene of disorderly conduct when asked by a police officer.

In 2008, Plaintiff Buddy Bell protested Operation Iraqi Freedom on the corner of Dearborn Street and Jackson Boulevard in downtown Chicago. He, along with other protesters, held a banner that said, "End the war and occupation TROOPS HOME NOW."

At the time, President Bush was at a luncheon at the nearby Union League Club.

One protester, Andy Thayer, entered the street carrying a large banner and, according to Chicago police, advanced on an officer who was monitoring the area on a Segway. Thayer was arrested, handcuffed, and placed in a squadrol.

Bell and two other protesters, their own banner in hand, began approaching the squadrol, also walking into the street. The police ordered the three men to get back on the sidewalk several times. They refused and began chanting, "Hell no, we won't go. Set him free." After a second warning, Chicago police arrested them for disorderly conduct.

In particular, police arrested Bell pursuant to Subsection D, which criminalizes an individual's behavior when he "knowingly ... fails to obey a lawful order of dispersal by a person known by him to be a peace officer under circumstances where three or more persons are committing acts of disorderly conduct in the immediate vicinity, which acts are likely to cause substantial harm or serious inconvenience, annoyance or alarm."

Bell sued various members of Chicago law enforcement and the City of Chicago in federal court for violating his First, Fourth, and Fourteenth Amendment rights, as well as for malicious prosecution and indemnification. He claimed that the ordinance was facially invalid, unconstitutionally overbroad, and vague. The district court dismissed the First and Fourteenth Amendment challenges, but the Seventh Circuit Court of Appeals reversed that decision.

Judge Joel Flaum wrote in his opinion for the panel, "The ordinance lacks the necessary specificity and tailoring to pass constitutional muster, and we must conclude that the ordinance substantially impacts speech."

Facial invalidation typically requires that "no set of circumstances exists under which the [law] would be valid," thus necessitating injunctive and declaratory relief. Bell's success in this appeal is a big deal. In the present context, it means that even if a crowd becomes unruly this week, any striking or protesting teachers will not be required to scatter at a cop's request.

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