By Sam Singer
One can be excused for assuming – given the historically embittered relationship between the Chicago Police Department and public protesters – that the city’s municipal code would reflect a hard-earned awareness for the free assembly rights of its residents. At the very least, the code, particularly those sections regulating conduct in the public domain, should be lawful, right? Not if you believe the Northern District of Illinois, which recently held the city’s disorderly conduct ordinance to be an unconstitutional restriction on speech and assembly. In doing so, the court brought shame upon City Hall, which has for decades relied on this clumsy ordinance to guide the police department’s treatment of public protests. Here, in relevant part, is what the city was working with:
A person commits disorderly conduct when he knowingly:
. . .
Fails to obey a lawful order of dispersal by a person known by him to be a peace officer under circumstances where three or more persons are committing acts of disorderly conduct in the immediate vicinity, which acts are likely to cause substantial harm or serious inconvenience, annoyance or alarm[.]
The provision’s language suffers from a number of infirmities. For starters, the ordinance is hopelessly vague, a product in part of its drafters’ decision to leave the term “disorderly conduct” to define itself. Then there is its troubling premise, which invites the arrest of a bystander for the conduct of someone in his “immediate vicinity.” As to the bystander’s conduct, or as to whether he was associated with the disorderly party, the law does not inquire. This becomes all the more objectionable when one considers the modes of conduct that may trigger an “order of dispersal.” Here the code reads a bit like the discipline handbook they passed out in junior high. Under the ordinance, you can be held accountable for the behavior of my friends and I provided we’re in your immediate vicinity and a police officer, having found our conduct “annoying” or “inconvenient,” issues an order of dispersal.
In the case before the Court, the arresting officers found it annoying (or was it inconvenient?) that a group of peaceful protesters at the Taste of Chicago refused to relocate to a designated “protest zone.” In dismissing the charges, the court held the City failed to show the disorderly conduct ordinance was “narrowly tailored” to serve its interests, in this case maintaining the public order. Put differently, the city should have crafted a less restrictive way to control public disturbances.
If the case law is any indication, a corrective statute will require that a person being charged with disorderly conduct have either willfully or intentionally caused the disturbance. This would prevent officers from imputing a disorderly person’s unlawful intent to someone nearby who fails to take notice of an order to disperse. It also would bring the municipal code in compliance with the First Amendment, which typically won’t permit the state to punish a speaker – or, in this case, the peaceful assembler – for the disorderly conduct of onlookers. Even in Chicago.
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Sam Singer is the Beachwood’s legal correspondent. You can reach him here.
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Previously by Sam Singer:
* Is TARP Legal? Court to decide on laugh test.
* Taking Government Out of the Marriage Business. Separating church and state.
Posted on March 25, 2009