The opinion of the court was delivered by: Will, District Judge.
On March 4, 1968, this Court declared two ordinances of the
City of Chicago unconstitutional, D.C., 280 F. Supp. 968, Chapter
193, Section 1 of the Municipal Code entitled "Disorderly
Conduct," and Chapter 11, Section 33 thereof, dealing with
resisting an officer. On March 18, 1968, a prospective injunction
was entered effective March 20, 1968, proscribing any future
enforcement of the ordinances in question or the institution of
any new prosecutions thereunder. At the same time the Court
announced that it would make ad hoc determinations in those
pending cases brought to its attention as to whether there was
probable cause for prosecution of conduct constituting a breach
of the peace or whether they involved solely activities protected
by the First Amendment to the United States Constitution.
The first and only such case currently before the Court
involves two individuals, Esse Wells and Donald Weatherall,
charged under both ordinances because of their conduct on
September 20, 1967 at a so-called "tent-in" held on the northeast
corner of Pulaski and Roosevelt roads on that date. Petitioners
Wells and Weatherall seek to have their prosecutions enjoined on
the ground that the ordinances have been held unconstitutional
and that, in any event, they were merely exercising their rights
to speak, assemble and demonstrate at the time.
As to the first ground, the Court has already indicated that,
with respect to prosecutions pending on March 20, 1968, the
effective date of its injunction, it would not enjoin all further
proceedings therein but only those in which there appeared to be
no probable cause. We turn then briefly to the relevant facts
adduced at the hearing held March 21, 1968, at which a number of
witnesses, including petitioners, other demonstrators and police
officers testified as to their recollection of the events.
Inevitably there is conflict as to what occurred, but for
purposes of this proceedings, we must take the evidence most
favorable to the prosecution since we are not here engaged in
determining the guilt or innocence of the petitioners but merely
whether there is probable cause for their prosecution.
The foregoing point cannot be emphasized too strongly. It is
not this Court's province or prerogative to try the pending state
charges. We are called upon merely to ascertain whether those
prosecutions are solely infringements of constitutionally
guaranteed rights under the First Amendment or whether there is
some evidence of conduct by the petitioners not so protected
which would constitute probable cause for prosecution. Nothing
said herein is intended to or does imply any opinion as to any
issue other than that narrow question.
Generally, and taken most favorably from the point of view of
probable cause for prosecution, the evidence is that on the
morning of September 20, 1967, pursuant to a previously developed
protest plan, a number of residents of the immediate
Pulaski-Roosevelt community proceeded to erect a large canvas
tent on the vacant lot located on the northeast corner of the
intersection. Their purpose was to dramatize the sub-standard
housing in the slum buildings in the area. It was planned that
Mrs. Wells and her six small children would occupy the tent. To
this end some cots, mattresses, and a few other pieces of
furniture were brought to the lot in addition to the tent.
During this period, from 9:30 to 10:40 A.M., the number of
people in the vicinity, some of whom were involved in the
demonstration and others of whom were merely spectators,
increased from 15 or 20 to 50 or 60. By 11:40 A.M., when Captain
Nash's deadline expired, the crowd numbered between 150 and 175.
A number of women and children were inside the tent which was
open from the roof level down. Other demonstrators and spectators
were on the lot and the sidewalks. In addition to Captain Nash
and approximately 15 policemen, Assistant Corporation Counsel
Richard Elrod was also present.
Among the women and children inside the tent was Mrs. Wells and
her six. Mr. Weatherall, who had been at the scene earlier, had
left and did not return until later.
Notwithstanding Captain Nash's ultimatum, the dismantling of
the tent was delayed because the crew from the Sanitation
Department of the City had not yet arrived at 11:40, but appeared
about 15 or 20 minutes later. In the interim, Captain Nash
ordered the arrest of those who had been erecting the tent and
who had continued to do so in the face of his orders to them to
dismantle it. This understandably caused some negative reaction
in the assembled crowd, as the five individuals were placed in
the squadrol parked on the east side of Pulaski north of
About this time the Sanitation Crew arrived and was instructed
to proceed to take down the tent. The women and children in the
tent were asked to leave so as to obviate any possible injury and
all did so. While the tent was in the process of being
dismantled, Mrs. Wells apparently changed her mind, went back
inside and sat down on a cot.
Sergeant O'Connor then asked her to leave and she responded in
a loud voice with an obscenity. Mrs. Wells, it should be noted,
is normally a clearly audible, outspoken woman, and her natural
volume and freedom were apparently alcoholically enhanced on the
occasion. A second request by Sergeant O'Connor that she leave
was met with an embellished version of the original obscenity
whereupon he placed her under arrest. When he attempted to escort
her from the tent to the squadrol, she resisted, and it took
several officers, while she protested loudly, to half-guide,
half-drag her to the police vehicle.*fn1
At about this time Mr. Weatherall returned to find five of the
demonstrators already under arrest, the tent coming down, Mrs.
Wells in the process of being arrested, and a crowd of 150 to 175
people somewhat restive but more or less just observing. He
proceeded to harangue them with exclamations such as "They can't
do this," "Are you going to let them get away with this?" "We
don't have to put up with this," etc.
When Weatherall saw Mrs. Wells being forceably escorted from
the tent by the police, he turned from the crowd towards her and
attempted to reach her but was blocked by a line of policemen
which had formed so as to clear a passage to the squadrol. Their
backs were to Weatherall and when he reached them he turned
towards the tent and shouted at Captain Nash, "Why is she being
arrested?" "You have no right to make any arrests." ...