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.

Filed Under: annoyance, chicago, disorderly conduct, free speech, police


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  1. icon
    gorehound (profile), 14 Sep 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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