Friday, September 28, 2012

Judge throws out mass Occupy Chicago arrests as unconstitutional

The mass arrests of Occupy Chicago demonstrators that city leaders praised as a model for respecting protesters' rights were ruled unconstitutional Thursday by a Cook County judge who also declared that the city's overnight park curfew violates the First Amendment.

The city singled out the Occupy demonstrators for violating the park's 11 p.m. curfew on two consecutive weekends in October 2011, arresting hundreds of people, but made no arrests when 500,000 people stayed past the curfew at the 2008 election night rally for President Barack Obama "that electrified the world," Associate Judge Thomas M. Donnelly wrote.

That selective enforcement of the curfew, combined with the Chicago Police Department's harassment of the protesters in the days leading up to the arrests, supports "a finding that the city intended to discriminate against defendants based on their views," Donnelly wrote.

The immediate impact was to throw out the arrests of 92 Occupy protesters on charges related to violating the curfew. But the judge went beyond that in staking out his opinion that the city is violating the public's right to free assembly under the state and U.S. constitutions by restricting late-night access to Chicago's most famous lakefront park, which he called "the quintessential public forum."

Noting the park's long history of political rallies going back to Abraham Lincoln, the judge quoted early city leaders who resolved in 1835 that the land that would become Grant Park "should be reserved for all time to come for a public square, accessible at all times to the people." Because parks are a critical forum for free speech and free assembly, local ordinances restricting access to them must be "narrowly tailored" to serve a specific "government interest," such as park maintenance, Donnelly wrote.

"We're incredibly pleased by Judge Donnelly's ruling. This is a significant First Amendment ruling for the Occupy protesters, and all Chicagoans," said lawyer Thomas A. Durkin, who represented 12 University of Chicago students who were among the 92 arrested.

City lawyers plan to appeal and do not think the judge's ruling affects the 11 p.m.-to-6 a.m. curfew in Grant Park or other city parks, said Law Department spokesman Roderick Drew. More