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City Officials Face Claims of Snuffing Free Speech

CHICAGO (CN) - Two Waukegan city officials must face civil rights claims over their treatment of residents protesting a new towing law, the 7th Circuit ruled Thursday.

Located near the Wisconsin border, the city of Waukegan, Ill., passed a towing ordinance in 2002 that allowed police to seize and impound vehicles and impose a $500 fine on persons driving without a valid license or proof of insurance. Protesters claimed the ordinance applied more harshly against minorities.

Three residents sued the city, its mayor and the police chief alleging First Amendment violations over their actions surrounding three protests in early- and mid-2004.

At a large rally on Jan. 18 in Belvidere Mall, the city's community liaison officer, Susana Figueroa, told Mayor Richard Hyde that she felt threatened after an interaction with protester Jose Surita.

During the City Council's next meeting, Hyde chastised Surita, threatening to have him arrested and calling him "lower than a rat," when he tried to speak during designated "audience time." Surita was told that he could not speak until he apologized to Figueroa.

In the suit, Surita argued that audience time was a designated public forum and that Hyde's refusal to allow him to speak was a content-based restriction not narrowly tailored to a compelling government interest.

Hyde conceded that audience time is a designated public forum, but argued that his restriction on Surita was reasonable because he had allegedly threatened Figueroa and because others could speak out against the towing ordinance.

The 7th Circuit disagreed Thursday, however, affirming the decision of a federal judge who found that Hyde did not have qualified immunity.

"Whether Surita wished to speak in protest against the towing ordinance, to congratulate the mayor on a job well done, or to contend that Waukegan should collect garbage differently does not alter the analysis," wrote Chief U.S. District Judge Charles Clevert Jr., sitting on a three-judge panel by designation from Milwaukee. "When Hyde intentionally barred Surita from speaking he barred the content of Surita's speech, regardless of whether he agreed or disagreed with the viewpoint Surita was going to expound."

"Moreover, even if Hyde's restriction were content neutral, no reasonable jury would find a total bar on Surita's speech to have been a valid time, place, or manner restriction," Clevert added. "Surita's possible disorderly conduct two days earlier cannot justify a restriction at the city council meeting."

The judges made the same finding on the First Amendment allegations against Police Chief William Biang. Co-plaintiffs Margaret Carrasco and Chris Blanks claimed Bian had selectively applied the Waukegan Assembly Ordinance, which requires applicants seeking a permit for outdoor events to submit written application 20 days in advance. Police may also require a cash deposit as a condition of issuance under the policy.

Out of the 530 event permits issued by the city, police required a permit fee from just two - both protests against the towing ordinance.

After Carrasco participated in a march against the towing ordinance on June 28, Biang sent a uniformed officer to Carrasco's home to request a meeting about an upcoming rally.

At the meeting, Carrasco received a copy of the assembly ordinance and was told that the 20-day advance requirement would be waived. She canceled the event, however, when Biang determined organizers would have to pay a $1,500 permit fee, based on the wages of extra police offices needed for the rally.

A similar incident caused Blanks to cancel a Sep. 4 rally he had planned to hold in Bedrosian Park. Though the Waukegan Park District had its own rules, City Attorney Gretchen Neddenriep sent a letter advising Blanks that he was violating the assembly ordinance because he had not obtained a permit in advance.

Drawing on Supreme Court doctrine, the 7th Circuit ruled the assembly ordinance had been applied unconstitutionally since the fee requirement requires content-based judgment by a city administrator.

"The ordinance requires the fee to be content based," Clevert wrote. "To calculate the cost of maintaining public order, the administrator had to examine the content of the applicant's speech, forecast the response of others to the content, and gauge the number of police officers needed for the event. The government cannot impose financial burdens on speakers based on the content of their speech."

"Biang maintains that he did not consider Carrasco's particular viewpoint. However, because he expected protestors to be angry he concluded that a hostile protest would require more officers. But deciding whether a person is speaking in protest or support of a law always involves consideration of viewpoint, and viewpoint discrimination is 'an egregious form of content discrimination.'"

Though Biang does not have qualified immunity against Carrasco's claims, the court tossed Blanks claims because the city attorney, who is not named in the sui, mailed Blanks the assembly ordinance letter.

Judge Daniel Manion partly dissented from the appellate panel, saying that the record evidence does not support the conclusion that Biang was personally involved in the application of the assembly ordinance against Carrasco.

"The court concludes that Biang caused a violation of Carrasco's constitutional rights by organizing a meeting with city attorney Gretchen Neddenriep, by sending a deputy to Carrasco's house to ask her to attend that meeting, and by calculating the number of officers that would be needed to patrol Carrasco's planned protest," Manion wrote. "This limited recitation of the facts leads the court to an erroneous conclusion."

Manion explained that Biang had sent a uniformed officer to Carrasco's home only after a phone call had gone unanswered, and that he called the meeting to establish ground rules about where protesters could demonstrate. City Attorney Neddenriep did most of the talking and covered the legal issues which sparked the suit.

"Biang's unopposed testimony shows that he had no idea that Neddenriep would seek to impose the assembly ordinance's requirements on Carrasco," Manion concluded. "Because no reasonable fact finder could conclude that Biang did anything that he knew or should have known would result in a violation of Carrasco's constitutional rights, I would reverse the district court and hold that qualified immunity applies to Carrasco's claims against Biang. Accordingly, I dissent."

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