Chicago May Be Liable for Busting Anti-War Rally

CHICAGO (CN) - More than 900 people who were arrested by Chicago police during a 2003 protest of the Iraq War can sue the city, the 7th Circuit ruled.

As the United States prepared to invade Iraq eight years ago, a group of war opponents planned to march through downtown Chicago in protest.

Although protest organizers had no formal time or agreed-upon route, the police did not object to the demonstration.

After a rally at the Federal Plaza on March 20, the marchers made their way onto Lake Shore Drive, an important multilane commuting thoroughfare.

Police tried to keep the march on the northbound side of the street, but rowdy activists spilled onto the southbound lanes where they banged on the hoods and windows of cars. Shouts of "Take Michigan!" had been heard, possibly referencing Michigan Avenue.

About 8,000 of the marchers turned west toward the major downtown vein. It was rush hour and the closing of Michigan Avenue, in addition to Lake Shore Drive, would effectively halt north-south traffic in the area.

Police officers formed a line to prevent a major disturbance and warned that they would arrest marchers who tried to enter Michigan Avenue.

While police were justified in that step, they then proceeded to form a second blocking line behind the marchers to prevent more from heading west. The group became surrounded.

"The police then began culling the trapped herd, arresting marchers along with people who weren't part of the march but were just trying to get home," Judge Richard Posner summarized in the 7th Circuit's ruling.

Some arrestees were jailed overnight and charged with reckless conduct. All charges were later dropped.

The arrests prompted two lawsuits, consolidated together, alleging a long list of constitutional, state-law, and local ordinance violations, including violations of the Fourth Amendment.

U.S. District Judge Virginia Kendall dismissed the case, finding that the city and arresting police officers had qualified immunity that merited summary judgment. The 7th Circuit reversed on March 17.

"What [police] could not lawfully do, in circumstances that were not threatening to the safety of the police or other people, was arrest people who the police had no good reason to believe knew they were violating a police order," Posner wrote for the three-judge panel.

While the police say they told marchers to disperse using bullhorns, the plaintiffs have submitted more than 250 affidavits to the contrary.

The 7th Circuit also found the city could be liable for the arrests because it delegated police power to the superintendent of police.

"The city makes the extravagant claim that the only officials whose tortious conduct can ever impose liability on it are the members of the city council acting through their ordinances," Posner wrote "Not even acts of the mayor are acts of the city, it contends; they are merely acts of an errant employee."

In the appellate court's decision to remand the case for trial, Posner suggested that plaintiffs "streamline" the case by confining their claims to the Fourth Amendment.

"The underlying problem is the basic idiocy of a permit system that does not allow a permit for a march to be granted if the date of the march can't be fixed in advance, but does allow the police to waive the permit requirement just by not prohibiting the demonstration," Posner wrote.

Because organizers wanted the demonstration to coincide with the start of the war, they could not complete the city's permit application for parades, which requires a minimum of two day's notice for demonstrations meant as "a spontaneous response to a current event."

The Chicago Police Department will sometimes waive the permit requirement when a march is planned for the unknown date of some triggering event.

"Apparently these 'unpermitted marches' are sufficiently frequent that the police have adopted a practice of 'permitting' them to use a specific corridor of city streets," Posner explained. "This waiver of the permit requirement is informal; it seems to consist of just in not telling the demonstrators that they need a permit."

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