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LANDRY v. DALEY

March 27, 1968

LAWRENCE LANDRY ET AL., PLAINTIFFS,
v.
RICHARD J. DALEY, MAYOR OF THE CITY OF CHICAGO, COOK COUNTY, ILLINOIS; JAMES CONLISK, SUPERINTENDENT OF POLICE OF THE CITY OF CHICAGO, ILLINOIS; JOHN S. BOYLE, CHIEF JUDGE OF THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS; JOHN J. STAMOS, STATE'S ATTORNEY OF COOK COUNTY, ILLINOIS; RAYMOND F. SIMON, CORPORATION COUNSEL OF THE CITY OF CHICAGO, ILLINOIS; JOSEPH I. WOODS, SHERIFF OF COOK COUNTY, ILLINOIS; RICHARD J. ELROD, ASSISTANT CORPORATION COUNSEL, CITY OF CHICAGO, DIVISION OF ORDINANCE ENFORCEMENT; MAURICE W. LEE, MAGISTRATE, CIRCUIT COURT OF COOK COUNTY, ILLINOIS; JOHN S. LIMPERIS, MAGISTRATE, CIRCUIT COURT OF COOK COUNTY, ILLINOIS; JOHN T. BURKE, JOSEPH RATKVICH AND ROBERT KULOVITZ, POLICE OFFICERS OF THE CITY OF CHICAGO, DEFENDANTS.



The opinion of the court was delivered by: Will, District Judge.

MEMORANDUM OPINION

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.

The project first came to the attention of the police when Sergeant Frank O'Connor, on routine squad car patrol, saw the tent in process of erection about 9:30 A.M. He notified his superiors and was told to stand by and await further orders. The Corporation Counsel's office was contacted and additional police were assigned to the scene. At approximately 10:40 A.M., Captain Ronald Nash, the Acting Commanding Officer of the District, after ascertaining that the demonstrators had failed to secure a building permit for the erection of the tent, advised them that they would have to dismantle it within one hour. When those erecting the tent continued to put it up, Captain Nash instructed Sergeant O'Connor to note the individuals disobeying his orders for possible future arrest.

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 Roosevelt.

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." ...


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