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LANDRY v. DALEY

August 5, 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 and would exercise its equitable powers only in those pending cases in which there was no such probable cause.

The instant petition for injunctive relief is the second such ad hoc determination we have faced. On March 27, 1968, we denied the petitions of Esse Wells and Donald Weatherall for injunctive relief. In the instant case, petitioner, Richard Lawrence, is currently a defendant in the state court facing prosecution on alleged violations of the disorderly conduct and resisting arrest ordinances which we have held to be unconstitutional.

Petitioner is an ordained Methodist minister who, in addition to membership in various other civic organizations, acts as Chairman of the Citizens Urban Renewal Committee, an informal aggregation of various civil rights activists. This organization avowedly opposes the present urban renewal policies of the City of Chicago.

On June 9, 1967, in furtherance of this opposition, Reverend Lawrence went to the City Hall to join other members of the group in viewing action by the City Council on a petition which the group had presented. Upon his arrival there at approximately 9:15 a.m., he went to the second floor entrance to the council chambers to investigate the availability of seating in the spectator section of the chambers. Fellow members of his group who had arrived earlier informed him that the chamber doors were locked and that all the seats were occupied.

The group left the second floor and went out to La Salle Street. They were there joined by others whose addition increased the size of the group to 40 or 50 persons. Reverend Lawrence then led this group up to the second floor where they were met by Commander James Riordan of the Chicago Police Department, the Commander of the police district in which the City Hall is located and one of the department's most experienced officers. Lawrence asked Riordan about seating in the spectator section on the second floor. Riordan replied that no seats were open in the second floor section but that seats were available in the balcony on the third floor. He further informed the group that access lanes on the stairways and in the halls must be kept open.

With that remonstrance from Riordan, Lawrence's group left the building and set up a picket line on Clark Street. After picketing for a short time, Lawrence led the group back into City Hall and up the stairway to the second floor. Commander Riordan met the group at the head of the stairs. Lawrence stated that the group intended to sit in the third floor balcony. Riordan said that a fireman would first have to check the seating capacity of the balcony. Lawrence then turned the group around and they marched down the stairs.

The group did not leave the building, however, but proceeded to march along a first floor corridor chanting "Stop urban renewal." Riordan received a telephone complaint from the City Collector's office about the noise and walked downstairs to confront the group. He told the group that they were making too much noise and that if they continued they would be arrested for breach of the peace. The group then left the building.

Once outside, Lawrence and the others decided that they would attempt to gain access to the council chambers by approaching the chambers singly and waiting for a vacant seat. Lawrence was the first to go upstairs and he was met by Commander Riordan at the stairs leading to and just outside the council chambers. Lawrence demanded to be let into the spectator section of the chambers. Riordan told him that other people were waiting and that he would be admitted when seats were available. Lawrence replied, "I don't believe that room is filled." Immediately after this remark the council's sergeant at arms, Mr. William F. Harrah (now deceased), stepped out of the council chambers and said, "What is going on now?". Riordan asked him if there were seats available and he said "No." Riordan then asked Lawrence to leave.*fn1

Lawrence replied, "I am not going to leave. You can't move me out of here. I want to go in there and I am going to go in." Riordan said, "You are going to force me to place you under arrest." Lawrence retorted, "I am not going to move from here." With that statement, Riordan told Lawrence that he was under arrest. Riordan took him by the arm and Lawrence pulled his arm away, saying, "You are not going to move me from here." However, Lawrence made no physical resistance when Riordan and a patrolman led him away from the steps.

The City of Chicago, respondent in the instant action and complainant in the prosecution in the state court, does not contest the fact that Reverend Lawrence was engaged in activities normally protected by the First Amendment, i.e., voicing protest over existing social conditions. Such protest is not protected where it creates a clear and present danger that it will bring about substantive evils which the government has a legitimate interest in preventing. Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919). Such legitimate interest is found in the classic Holmes hypothetical in the Schenck opinion that the state can prevent a man from shouting "Fire" in a crowded theatre.

In the instant case the city had three possible reasons for objecting to Reverend Lawrence's conduct at the time of his arrest. First, the city may have wished to protect the citizens present in the second floor hallway outside the council chambers from being annoyed. Second, the city had an obligation to protect its citizens from fire hazards by keeping access lanes open to the chambers. Finally, the city had a legitimate interest in protecting the deliberations of the City Council from outside disturbances.

The evidence presented at the hearing on the instant petition fails to disclose that Lawrence's action had any disturbing effect on the citizens present in the second floor hallway outside the council chambers. Consequently, Mr. Lawrence's conduct cannot be said to have constituted a breach of the peace as far as they were concerned and it is well established that disturbing policemen is not disorderly conduct. The Illinois Appellate Court in Oratowski v. Civil Service Commission of City of Chicago, 3 Ill. App.2d 551, 123 N.E.2d 146 (1st Dist. 1954), stated the applicable proposition as follows:

    "It is apparent from this statement of the law that
  words addressed to an officer in an insolent manner
  do not without any other overt act tend to breach the
  peace because it is the sworn duty and obligation of
  the officer not to breach the peace and ...

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