No Relief to Man Arrested Under Law Now Voided

     CHICAGO (CN) – A prominent Chicago activist cannot challenge his arrest under an ordinance that was partially struck down last week, the 7th Circuit ruled.
     Andy Thayer co-founded the Gay Liberation Network and heads the Chicago Coalition Against War and Racism. He says his activism makes him pretty recognizable to police.
     In 2005, Thayer applied for a permit to lead an anti-war march of 2,000 to 4,000 people in downtown Chicago. The city denied his request, however, after finding that his planned route would unduly disrupt traffic and business along the “Magnificent Mile” of Chicago, a hub of upscale shopping and tourism.
     Thayer objected to the city’s proposed alternate location, and announced his intent to hold a press conference at the original assembly location. He testified that the press conference was intended to communicate the coalition’s view that the city wrongly denied it a permit to rally downtown.
     Thayer and fellow protester Brandon Lyttle were arrested at this location after refusing to obey police orders to disperse. Officers charged them with disorderly conduct under a law that criminalizes a person’s refusal to obey police instructions to leave the scene when other individuals are engaging in disorderly conduct.
     The 7th Circuit partially struck down this ordinance last week, finding that it “substantially inhibits protected speech and is not amenable to clear and uniform enforcement.”
     Nevertheless, the circuit court affirmed dismissal of Thayer’s First Amendment claims, finding that the officers are entitled to qualified immunity.
     “The parties dispute the extent of disruption caused by the protestors at the time Officer [John] Killackey gave the dispersal orders,” Judge John Tinder wrote for a three-judge panel. “No threats of violence or civil unrest occurred. No one was attempting to engage in an unpermitted march or parade, no one was inciting the crowd, and by all accounts the demonstration on the public sidewalk was peaceful. On the other hand, the videos submitted by the parties show that the crowd was hindering the flow of pedestrian traffic. … Our review of the video leads us to conclude that an officer could have reasonably (even if mistakenly) perceived the situation as creating a disturbance within the confines of the ordinance.” (Parentheses in original.)
     As such, the officers had probable cause to arrest Thayer, “provid[ing] strong evidence that he would have been arrested regardless of any illegitimate animus,” the decision states.
     “We further find that although it is questionable whether officers had probable cause to arrest Lyttle, they are nonetheless entitled to qualified immunity,” Tinder wrote. “Officers could reasonably (again, even if mistakenly) believe that based on their announcements and conduct in forming a line to advance the crowd west that protestors were prohibited from breaking through the police line.” (Parentheses in original.)
     The court also found that the officers did not violate Thayer’s right to equal protection by arresting him only as “the perceived ‘chief’ of the group,” leaving other protesters at the press conference unmolested.

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