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Appeals Court Sides With Police in Occupy Case

CHICAGO (CN) - On remand, an Illinois appeals court reaffirmed its original ruling that Occupy Chicago protesters had no free-assembly right to remain in a downtown park after curfew.

Demonstrators 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 a year ago, finding that the ban is narrowly tailored to allow park employees to clean the park, make repairs, and maintain landscaping.

The Illinois Supreme Court remanded the case, asking the appeals court to consider whether the ordinance violated the Illinois Constitution.

On Tuesday, however, the appeals court affirmed its original decision.

"For defendants to suggest that they are somehow engaging in peaceful assembly comparable to picnickers, stargazers or soccer players and are therefore protected under article I, section 5 is disingenuous at best," Justice Daniel Pierce said, writing for a three-judge panel.

Free assembly under the Illinois Constitution has its limits, the court ruled.

"Defendants are not picnickers or stargazers or soccer players. They are members of a group assembled to make an important point. Their assembly rights were apparently accommodated through the night of their arrests in Grant Park. The ordinance did not restrict their assembly, it restricted their stated purpose to 'occupy' and indefinitely remain in a public area to the detriment of the park district's ability to perform its legitimate functions," Pierce wrote.

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