Seventh Circuit Court: Chicago Cops Can't Use 'Annoyance' As Reason To Stifle Free Speech

from the 'disorderly'-free-speech? dept

As long as there have been cops, there have been crowds. And as long as there have been crowds, there has been the mantra, "Move along, nothing to see here." Dispersing crowds has always been part of police work. But in recent years, the crowd dispersion process has broadened to include anyone whose presence isn't wanted. This overreach has led to the catchall charge "disorderly conduct" being used to cover all sorts of behavior, much of which isn't so much "disorderly" as it is simply "annoying" to the law enforcement officers in question.

This "stop irritating me" via handcuffs has become so common it has its own term: "contempt of cop." Abusing the intent of the law to shut someone up (or confiscate their recording equipment) has become so common that entire blogs and websites are able to fill page after page with accounts of these actions.

Fortunately, the judicial system has pushed back. A decision handed down recently by the 7th Circuit Court goes even further than simply declaring a certain situation as being unconstitutional. Judge Joel Flaum's decision actually invalidates a section of Chicago's municipal code.

First, the background:
Buddy Bell participated in a January 2008 protest against the Iraq War in downtown Chicago. While President George W. Bush was at a luncheon nearby, Bell held a banner that said: "End the war and occupation TROOPS HOME NOW."

After Chicago police arrested a protester who entered the street carrying a banner, Bell and two other protesters also stepped into the street and approached the police squad car, chanting, "Hell no, we won't go. Set him free." When the activists refused to get back on the sidewalk, the police arrested them for disorderly conduct.
In particular, the police charged Bell under a Chicago municipal code that makes it a crime to disobey a police officer's instruction to leave the scene when other individuals are engaging in nearby acts of disorderly conduct that "are likely to cause substantial harm or serious inconvenience, annoyance or alarm."
Unfortunately, this sort of catch-all charge is far from unusual. Bell's filing of a federal complaint against the city of Chicago isn't that unusual, either. Many cities are finding themselves paying out thousands of dollars to settle lawsuits stemming from abuse of citizens by law enforcement. Bell challenged this particular part of Chicago's municipal code as unconstitutional. District Judge John Darrah originally dismissed Bell's claim for "lack of standing," but the Seventh Circuit Court reversed the dismissal.

Judge Flaum went further, invalidating that particular section of the Chicago Municipal Code after finding that it "substantially inhibits protected speech and is not amenable to clear and uniform enforcement."
"To the extent that [the ordinance] authorizes dispersal when an assembly creates or is threatened by 'substantial harm,' it does not improperly infringe upon protected speech," Judge Joel Flaum wrote for a three-member panel. "We cannot say the same, however, for authorizing dispersal on the basis of 'serious inconvenience, annoyance or alarm.'"

Unlike the code's provision for responding to nuisances, the ordinance "does not specify what inconveniences, if performed by three or more individuals, may trigger an order to disperse," the 35-page decision states.

"Nor does it clarify that, whatever the inconvenience at issue, dispersal must be necessary to confront the violation," Flaum wrote. "To this end, the ordinance lacks the necessary specificity and tailoring to pass constitutional muster, and we must conclude that the ordinance substantially impacts speech."
Flaum does more than shut down a purposely vague ordinance. He also throws in a dig at the circumstances that called this ordinance into question ("if performed by three or more individuals"). He also calls attention to the other terms used to justify charges being brought under this code, noting that "alarm" is still dangerously non-specific, but saves the real criticism for "annoyance."
As for "annoy," Flaum noted that the ordinary meaning, "which is 'to trouble, to vex, to impede, to incommode, to provoke, to harass or to irritate,' compels this reading: not every annoying act gives rise to imminent danger or nuisance."

"Avoiding annoyance is never a proper basis on which to curtail protected speech," he wrote.

"We cannot conceive of an annoying behavior, however annoying it may be, that could constitutionally draw as a remedy dispersing others engaged in protected speech," Flaum added.
Chicago's stance is that this ordinance is in place to ensure "safety." But safety for whom? Certainly not the public. And does law enforcement really need to be kept safe from "inconvenience, annoyance and alarm?" The Seventh Circuit Court says it doesn't, not if the cost of the safety is the Constitutional rights of citizens.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Thomas (profile), Sep 14th, 2012 @ 5:36am

    Typical of cops these days..

    anyone who annoys them in any way is likely to get arrested. Local courts will always side with the cops; your only chance is federal help and above the District Judge level since the district judges are often in cahoots with the locals. Boston even issued an "order" telling the cops not to arrest or confiscate cameras from people merely observing and two days later it happens again. The cities tell the cops "don't do that", but they only do it for publicity purposes and the cops know they can just go ahead and arrest anyone they feel like. Since the arrests often include a beating at the scene plus another at the station plus a criminal record it's a huge deterrent to anyone thinking of photographing the cops.

     

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  2.  
    identicon
    CAPT CANADA, Sep 14th, 2012 @ 5:46am

    G20 canada

    damn disabled old guys cluttering up the street , damn annoyed mister cop is so hes gonna beat him and drag him off.....

    yup who cares right ? WELL just happens one of the top hackers of this glorius planet is disabled physically....a kinda stephen hawkins of the pc realm....remember that mister copper
    because every time you lay a hammer down you give me more power....one day ill have enough stored up to bite back.

     

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  3.  
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    gorehound (profile), Sep 14th, 2012 @ 5:49am

    Re: Typical of cops these days..

    Typical Piggie Behavior.And let me tell you back in Lynn, Mass they would just "take you for a ride" where they picked you up drove a ways to one of the more dark and wooded areas and beat you down.Then they would just throw you out of their car beaten up.One time a Lynn Cop handcuffed me and lifted me up by my handcuffs arms behind my back and started shaking them.Hard to describe the scene but they almost tore out my arms it hurt so bad.
    Lynn and Boston Cops were pretty rough on you.Still remember the Boston Goon Squad in the 70's Circa Vietnam Protest Era........all goosed up in their Riot Gear with their Big Piggie Sticks.
    Got another one for you.
    One time we got those Cops to chase some of us into a wooded area.They ran after the kids while a few of us went to their car and ripped out their whole light assembly.
    We later wired up the lights and would turn them on as a light show when we dropped some Acid in the early 70's.
    Ha Coppers.............always up to no good.

     

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  4.  
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    DUMBASS POLITICIANS, Sep 14th, 2012 @ 5:50am

    @1

    So you still beleive you live in a democracy yet?
    OH wait its a republic ( chuckles ) is what most americans say ...not realizing its just a form of democracy one that if you'd not have so much coruption might not be so bad....

    i'll sit and wait and see how that detroit min wage cop fairs
    haha
    ten bucks says maffia is having a field day paying off cops now that its cheap too...OH WAIT they are a maffia the cops....

     

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  5.  
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    Anonymous Coward, Sep 14th, 2012 @ 6:02am

    This is why I'm not a cop. I recognize that annoying people have the right to be goddamn annoying in public, and the ramifications of abridging those rights are pretty serious.

    But when people with nothing better to do are making fools of themselves trying to push some cause by squatting in public and irritating people who actually have lives, I'm thankful I can walk away from them rather than having my job be to make sure they don't move from annoying to dangerous.

    If I had a baton and some handcuffs and a compliant legal system at my disposal, it certainly would be tempting to use them. I'm not trying to excuse this behavior, I'm just saying I would have a hard time not acting the same way. Which is why I never applied for a cop job.

     

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  6.  
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    Anonymous Coward, Sep 14th, 2012 @ 6:23am

    Re:

    So in essence, what you're saying is that you wouldn't be able to separate how you feel with what is legal and the appropriate thing to do and that you'd use your position of authority to put some in place who you feel should be put in their place, even if what they're doing isn't illegal?

    Well, I guess you can say that makes two of us who are glad you never applied to be a cop.

     

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  7.  
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    Anonymous Coward, Sep 14th, 2012 @ 6:41am

    The problem was the subjective nature of the rule, simply being in public with a bad haircut was enough to trigger this law.

    I expect people to rage aginst contempt of cop after this one going after any law abused by cops. Just wish it did not cost so much to go after bad laws like this one, guess we need a croudsourcing group dedicated to the removal of bad laws.

     

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  8.  
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    Anonymous Coward, Sep 14th, 2012 @ 7:07am

    Re: Re:

    It's not a "put people in their place" thing. I don't care if they have stupid opinions, or good opinions expressed in an irritating fashion; they're allowed to. That's one of the things I like about our country. I'm sure lots of people think my opinions are stupid, too.

    It's more that I have a hard time not responding to open confrontation. The story described above sounds like the protesters were intentionally antagonizing the police hoping to provoke a response. I would have a hard time maintaining protocol in that situation.

     

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  9.  
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    Andrew D. Todd, Sep 14th, 2012 @ 7:20am

    Re: Re: Typical of cops these days.."Nobody Expects the Spanish Inquistiion"

    Gorehound, that business with the handcuffs is what the Spanish Inquisition of the sixteenth century called the "Strapado," only, not being as muscle-bound as modern American cops (they didn't lift weights), they used a winch and a rope to lift the handcuffs.

     

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  10.  
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    Anonymous Coward, Sep 14th, 2012 @ 7:22am

    I'm armed to the teeth. I carry a Taser and Mace on my person at all times. I used to carry a heavy cane, then I got beat up by 3 bums who stole my cane. As a result I now strike first. I will not be a victim. This has to become your mantra "I will NOT be a victim." If a cop harasses me they are in danger. Anyone harasses me is in danger. Watch out who you mess with.
    Of course there is the option to move out of the cities and get away from the cops. Lot's of great spots in the country and no cops. OR go to Oregon who is so poor they are laying off cops. Cool No Cops.

     

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  11.  
    identicon
    Anonymous Coward, Sep 14th, 2012 @ 8:28am

    Re:

    Yeah, that's a great idea. You Taser or Mace a cop, their buddy shoots you in the head. The shooter gets a few weeks of paid vacation ("paid leave of absence") until the investigation determines you assaulted his partner and shooting you dead was not only legal, but also protocol.

    The cop you tasered now has a great story to tell the other cops, and buys the guy who shot you a beer the next time he tells it to his friends.

     

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  12.  
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    Anonymous Coward, Sep 14th, 2012 @ 8:54am

    Re: Re: Re:

    Oh okay. In that case I understand where you're coming from, but as police officers (which you aren't I understand, nor am I), they must be expected to maintain a greater degree of control for any situation they may come across, more so than the average. Basically, regardless of what authority or not that they may wield, for the sake of the public and to preserve respect for the position they're in, they should be held to a higher standard than the average person and should not be taking advantage of laws like the one in the article to give them carte blanche for actions that violate the rights of the people.

     

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  13.  
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    Anonymous Coward, Sep 14th, 2012 @ 9:24am

    Re:

    Great idea. Let me know where to donate.

     

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  14.  
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    Machin Shin (profile), Sep 14th, 2012 @ 9:50am

    Re: Re:

    Oh where is that "sad but true" button when you need it.....

     

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  15.  
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    Machin Shin (profile), Sep 14th, 2012 @ 9:53am

    Kind of funny this law made it anywhere at all. I mean isn't the purpose of protests to annoy someone? Standing around with signs in peoples way and chanting.... Pretty much the entire point is to annoy people and get their attention.

    That being said, this law was pretty much a "It is illegal to protest" law just with them trying not to be so obvious..

     

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  16.  
    identicon
    Anonymous Coward, Sep 14th, 2012 @ 10:15am

    Re: @1

    Democratic republic. I know you might not know the differences, so I'd urge you to educate yourself before further trolling makes you look more idiotic. Good work on the self-congratulatory feel of your post, though. I give you a 3/10.

     

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  17.  
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    william (profile), Sep 14th, 2012 @ 11:12am

    Re: Re: Re: Typical of cops these days.."Nobody Expects the Spanish Inquistiion"

    Modern cops have the miracle supplements to build their muscle to use on the innocent.

    We just had a bunch of Niagara cops accused of importing and using steroid and testosterone up here in Canada.

    And according to local population, the cops were a reign of terror for a long time, presumably high on steroid and testosterone. The cops were very aggressive and abusive to anyone who dare to challenge their authoritah. Many time they would just start beating and asking question later. Or in one accusation, start beating while says, "stop resisting".

    see:
    http://www.cbc.ca/news/canada/story/2012/09/09/niagara-police-steroids-allegati ons.html

     

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  18.  
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    art guerrilla (profile), Sep 14th, 2012 @ 11:14am

    Re: Re: @1

    1. as a pedantic asshole, i take issue with your pedantic assholery: to wit, the tired old 'its a republic, not a democracy' bullshit is all but a distinction without a difference...
    referring to 'our' (sic) gummint genericly as a democracy is as valid as the technical definition of a republic...
    (why is it it is always conservatard/libertarian guys who *insist* on this 'vital' (snicker) difference ? ? ?)
    art guerrilla
    aka ann archy
    eof

     

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  19.  
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    art guerrilla (profile), Sep 14th, 2012 @ 11:41am

    donut eaters are *NOT* 'to protect and serve' us 99%...

    ...they are to 'protect and serve' the dictates of the 1%; they ain't *our* cops, they are *theirs*...
    that they actually help regular citizens on occasion is just a distraction between head-crackings...

    bad cop, no donut story:
    the county just opened a new elementary school on the way of my commute (what used to be 25-30 minutes, is now 45-50 minutes due to a hundred yard stretch now being totally clogged up with cars; won't even get into hundreds of SUV's dropping off their precious snowflakes instead of WALKING to school, what a concept ! lazy pukes)...

    first day the school opened, i am right behind a lady who gives the cop directing traffic some WELL DESERVED grief, the asshole cop kept on yelling at the lady about 'tell me something i don't know lady!', being a real asshole, and finally tells her to pull over (and presumably tickets her) for voicing her opinion of their shitty job...

    here's the thing: in the three weeks the school has been open *EVERY* time the cops are directing traffic, it is a clogged clusterfuck; every time the cops are standing beside the road and we stoopid citizens do our own thing, the traffic flows like water...

    ON OUR OWN, we are fair and polite and let cars in and out as it happens 'naturally'; but when the donut eaters get out there, they fuck it up by giving TOTAL priority to the fat lazy parents in the fat SUV's with their fat precious snowflakes going to school...

    the thing was, it gave me hope that when the revolution happens, we can sweep aside those incompetent boobs in short order...
    art guerrilla
    aka ann archy
    eof

     

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  20.  
    identicon
    Anonymous Coward, Sep 14th, 2012 @ 12:29pm

    Re:

    There are plenty of cops in Oregon and they like to ruff up people too.
    Also we have a lot of stupid people here already, so you may want to try Idaho or Montana.

     

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  21.  
    identicon
    Bios, Sep 14th, 2012 @ 3:02pm

    Re: Re: Re: Re:

    That may be so, but honestly I wonder about the actual situation. I mean, 'protesters' approaching a police vehicle where I've just detained a subject could be a major threat. Perhaps it was, Perhaps not. I can't say I was there to read the mood of the situation.

     

    reply to this | link to this | view in thread ]


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