'Unconstitutional' curfew remains in force
City appeals ruling that favors 'Occupy' activists
10/24/2012 10:00 PM
It was a historic day for the Occupy Chicago movement. On September 27, 2012, the Cook County Circuit Court Judge Thomas Donnelly ruled that the Chicago Park District curfew law used to arrest the activists who attempted to camp out at Grant Park was an unconstitutional violation of their right to free speech and free assembly. The very next day, Mayor Rahm Emanuel said that the city would appeal the decision, arguing that the curfew was necessary to protect public safety and that it in no way violated the First Amendment.
But even as the city proceeds with its appeal, the curfew continues to remain in force. While Donnelly’s decision removed the charges against the arrested Occupy members, it didn’t actually require the city to stop enforcing the law. And, depending on the outcome of the appeal, it may never have to.
The nighttime curfew applies to all public parks in the Chicago Park District system. It technically closes all of the city parks between 11 p.m. and 6 a.m. Those caught in a park during curfew could be fined up to $500.
On Oct. 15 of last year, approximately 3,000 Occupy Chicago members made their way to Grant Park and set up tents. The police officers warned them that if they stayed past 11 p.m., they would be arrested in violation of the curfew.
At 1 a.m., the police gave the protestors an ultimatum — they could either leave or stay and be arrested. With that knowledge, 173 protestors chose to remain and were, in fact, arrested.
A week later on Oct. 22, Occupy tried to set up camp again, with similar results. This time, 130 protestors were arrested.
In the arrests’ wake, 92 of the arrested protestors sued the city, arguing that the curfew violated their First Amendment rights of free speech and was used to specifically discriminate against Occupy members. The city, in turn, claimed that the curfew was necessary to protect public safety and conduct routine repairs, and that protestors had other, alternative venues to express their views.
Donnelly ruled in favor of Occupy, finding that the curfew was indeed used selectively, noting that there were several instances when public events were held in Grant Park lasted past 11 p.m. without any legal consequences. Pointing to Grant Park’s long history as a venue for large public assemblies and protests, he argued that no alternative venue could fit all of Occupy Chicago’s members. Donnelly also ruled that the city failed to prove that closing the park protected public safety, or that the park district performed any sort of maintenance or repairs at night. Because the curfew appeared to be selectively enforced and did not serve any public interest, Donnelly found the curfew unconstitutional.
When asked about the Chicago Park District’s position on the issue, park district spokeswoman Michelle Lemons forwarded a city-issued statement that read, in part:
“We are appealing because that ruling is contrary to well-established First Amendment law making clear that [curfew laws] are reasonable restrictions and therefore constitutional. […] The City of Chicago remains committed to protecting free speech. At the same time, we must continue to enforce reasonable restrictions on public spaces that are necessary to protect the public health and safety, and that includes the Park District ordinance involved in this case.”
When asked about how the ruling affected the park district, Lemons said that nothing changed.
“The Chicago Park District continues to enforce the 11 p.m. park closing,” she said.
The district was able to do that because of the way Donnelly’s decision was worded. While it dismissed the charges against the arrested Occupy Chicago members, it didn’t require the city to end the curfew altogether.
“This is a decision on an asserted defense raised in a criminal case,” explained Laurene M. Heybach, the director of The Law Project of the Chicago Coalition for the Homeless. “And it’s on appeal, so it’s not ‘precedent’ or settled law yet. No court has yet issued an injunction stopping the curfew or any arrests for violating the curfew.”
If the city loses the appeal, the curfew may be thrown out. But unless that happens, it will continue to be enforced the same way as before.
Yet, judging by what Chicago Journal observed last Saturday, that enforcement is not entirely consistent. In Millennium Park, the security staff started ushering people out at around 11:07 p.m., telling them that the park was closed for a day. Security continued to patrol the park after everyone left.
But at Grant Park, nothing of the sort happened. While the park was largely empty, some people still used it. Near Buckingham Fountain, a couple in their late teens chatted in full view of street traffic. As they chatted, a slightly older woman and two men passed by them and headed toward Lake Michigan. At the small plaza by the Field Museum’s lakeside entrance, a small group of college students tossed a ball around. Nearby, two women in their 30s chatted amicably as they walked under the Lake Shore Drive underpass.
If they were worried about getting fined or arrested, they didn’t show it. And if there were any police or security officers in the vicinity, they didn’t show themselves, either.
It should be noted that, if the city does lose the appeal, it could still introduce another curfew ordinance. In his ruling, Donnelly specifically stated that the city was well within its rights to institute a curfew so long as it serves legitimate public interests and makes reasonable accommodations for rallies and other expressions of free speech.
Whatever the court may ultimately decide, Occupy Chicago is determined to fight for its right to express its views in a public forum. According to Rachel Unterman, Occupy Chicago’s press liaison, the movement remains skeptical about any curfew ordinance the city may pass.
“We believe that the need for public space to assemble outweighs any need to enforce a park curfew ordinance,” she said. “More importantly, these ordinances are applied unevenly depending on the perceived purpose of an individual or group found in a park after hours. Similarly, the punishment for violating this minor ordinance varies so widely that it is going to be impossible to enforce without discrimination.”