BY DAN MIHALOPOULOS
They were handcuffed, hauled out of Grant Park and stuck in jail for up to 24 hours — even though the maximum penalty for a curfew violation includes no jail time.
But now, a judge said the city infringed on the First Amendment rights of hundreds of Occupy Chicago protesters who were arrested last October when they refused to leave Grant Park at its 11 p.m. closing time.
Cook County Associate Judge Thomas More Donnelly threw out the charges against 92 of the demonstrators, saying the curfew law used against them was unconstitutional and violated their right of free assembly.
In his 38-page ruling, Donnelly said the city treated the Occupy Chicago rally differently than the Obama 2008 presidential election victory celebration in Grant Park. The judge noted that the Obama rally also violated the curfew, but no one was arrested at that event.
Donnelly also alleged that police subjected Occupy Chicago demonstrators to “constantly changing rules and regulations” as the protests shuttled last year between downtown locations.
Officials with Mayor Rahm Emanuel’s administration immediately said they planned to appeal.
“We are disappointed with the decision,” city Law Department spokesman Roderick Drew said.
He later sent a written statement saying the ruling would not change closing times in the city’s 580 parks.
“The curfew is an important part of the city’s efforts to maintain and protect public health and safety, and we cannot allow all city parks to remain open 24 hours a day — nor would other major cities,” Drew wrote. “We believe the ordinance is valid and we will therefore continue to enforce it.”
But Neil Landers, 31, a University of Chicago grad student from Northern California who was arrested during the protest, said the ruling is “really important because Chicago has a long history of not protecting free speech and constitutional liberties, but rather restricting them, and it’s nice to see that begin to turn around.”
He added: “In the city of Chicago, free speech no longer has a curfew.”
Thomas Anthony Durkin, the lawyer for Landers and 11 other U. of C. students, hailed the ruling as a “stinging rebuke to Mayor Rahm Emanuel’s and [Chicago Police Supt.] Garry McCarthy’s repeated claims that the City of Chicago respects and protects the First Amendment.”
“This is a tremendous First Amendment victory for both Occupy and all Chicagoans,” Durkin added. “The fact of the matter is the city, and this administration in particular, respect the property rights of business owners more than the First Amendment.”
On Oct. 16 and Oct. 23 of last year, police made 303 arrests of protesters who did not heed police warnings to leave Grant Park after they were told that the curfew would be enforced.
In all, 92 people chose to fight the charges and were affected by Wednesday’s ruling. The others who were arrested accepted a deal with the city under which they received court supervision and community service, Durkin said.
The protesters refused to leave Grant Park following a march to draw attention to corporate abuse and to express solidarity with the Occupy Wall Street movement. The city charged them with violating a park district curfew that closes Grant Park between 11 p.m. and 6 a.m.
But Donnelly, the judge, said the curfew violates rights enshrined in the U.S. and Illinois Constitutions.
The ruling went on at length on Grant Park’s history as “the quintessential public forum.”
No event in that long history merited more of the judge’s interest than the November 2008 Obama rally, which drew hundreds of thousands of people to the park. Citing media reports, Donnelly said Obama appeared on stage at the park at 10:57 p.m. and spoke to the crowd until almost 11:20, exiting the stage at about 11:23.
Although nobody at the Obama rally was arrested, every Occupy activist who stayed in the park after curfew in the October 2011 protests were detained and charged, according to the ruling.
Donnelly rejected the city’s arguments that the Obama rally participants did not represent a valid comparison to the Occupy Chicago demonstrators. Emanuel administration lawyers had argued that the Occupy protesters were different because the Obama supporters never “stated that they were going to remain there or that they had no intention of leaving.”
Donnelly also criticized the police for their actions in the days and weeks prior to the arrests in Grant Park. The ruling described the wrangling between Occupy Chicago and police as protesters gradually migrated from their original location at the Federal Reserve Bank to the Bank of America building and Millennium Park before they were at last told to move to Grant Park.
“The police would promulgate a rule; when the protesters would comply, the police would change the rule,” the judge wrote. The city’s actions suggested officials “intended to discriminate against defendants based on their views,” Donnelly said.
The protesters were charged under a park district ordinance, but they had complained that police treated them more roughly than the alleged infraction merited, handcuffing them and holding them at police stations before releasing them on bond.
Sarah Gelsomino, a National Lawyers Guild attorney who represented many of the protesters, said many of the protesters had tears in their eyes after the ruling was handed down.
Donnelly’s ruling “sends a very strong message from the courts to the city that the First Amendment belongs to all citizens equally, regardless of their message,” she said.
“ The reality of what happened to these 92 people is that they were scooped up and treated liked criminals,” Gelsomino added. “They were put in the back of police wagons, taken to the police station, held in custody while they were processed, then sent to courthouses where they faced charges. So these individuals felt the consequences of this arrest, and they have been feeling the consequences of having it hanging over their head for over a year. What is so significant about this is that the ordinance violation they were arrested for, a curfew violation, carries a maximum penalty of $500, and no jail time. Yet some of these people spent up to 24 hours in jail. That certainly has had a chilling effect.”
Protester Andy Manos, 33, of Humboldt Park, had harsher words for the mayor: “When the judge announced his ruling, I loved it. I felt a big feeling of relief, but that relief was also tied to a kind of, ‘F— you, Rahm,’ which is how the teachers must have felt recently.”
And the city’s plan to appeal the ruling, the U. of C.’s Landers said, made him “wonder if Rahm Emanuel hates free speech in Chicago.”
In February, the city reached a $6.2 million settlement in a class-action lawsuit stemming from mass arrests by Chicago police at a 2003 anti-war demonstration. The settlement followed a federal appeals court ruling that the arrests of about 850 protesters were not justified.
At that time of the settlement, McCarthy held up the police response to last year’s Occupy protests as proof the city had learned its lesson.
“We’ve certainly learned the lessons of the past as far as moving forward and what it is we need to do,” McCarthy said then.
Contributing: Lisa Donovan, Mitch Dudek and Maudlyne Ihejirika