Occupy Protesters Lose Appeal on 2011 Arrests

CHICAGO (CN) - Siding with police, an Illinois appeals court ruled that Occupy Chicago protesters had no free assembly right to remain in a downtown park after curfew.

Defendants attended a protest affiliated with Occupy Chicago in October 2011. They set up tents in Grant Park, a large 319 acre park near municipal and state government buildings, made speeches, and chanted that they would not leave the park.

Throughout the day, the police told protesters that they would not be allowed to stay in the park after it closed at 11 p.m., and National Lawyers Guild attorneys also informed the protesters that the law did not permit them to remain.

At approximately 1 a.m., the police asked each protester whether they wanted to leave the park or be arrested. The police then arrested 173 protesters who refused to leave, and charged them with violating the parks ordinance.

Five days later, Occupy Chicago organized another protest in Grant Park, and police arrested 130 protesters for remaining in the park after curfew.

Ninety-two of these protesters, represented by the lawyers guild and the law firm Durkin & Roberts, moved to dismiss the charges on First Amendment grounds. They claim the City refused to provide protesters with an adequate forum in which to express their political views.

A Cook County judge ruled for the protesters in 2012, ruling that the curfew violates the right to free assembly, especially as it has not been uniformly enforced.

For example, Grant Park was the site of a massive nighttime rally in 2008 when Barack Obama won the presidential election. That evening, Obama gave his victory speech before a crowd of 240,000 people in the Park.

The judge agreed that the state may forbid camping or other activities in order to preserve the park, but may not prohibit access to a public forum based simply on the time of day.

But an Illinois appeals panel reversed the ruling, finding that the ban is narrowly tailored to allow park employees to clean the park, make repairs, and maintain landscaping.

Park district official Alonzo Williams testified that "round-the-clock use of the parks by the general public would not further our mandate" to keep "Chicago's parks beautiful and vibrant for current and future generations."

Justice Daniel Pierce authored the opinion and gave short shrift to the protesters' comparison of themselves to Obama's supporters.

The election celebrators had no intention of "occupying" the park, Pierce said, but were there for the "one-time purpose" of witnessing Obama's speech. In addition, the Occupy protesters were given two hours leeway before the police enforced the ordinance by arresting them.

Furthermore, the protesters were allowed to protest of city streets 24 hours a day, and could have continued their protest on the sidewalk on the west side of Michigan Avenue, a major road running along the park and continuing into Chicago's "Magnificent Mile," the opinion stated.

"Although not their first choice, we are confident defendants' confederates reached the same audience and suffered no impediment communicating their message from a location that was within 100 feet from the excluded area," Pierce said.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit