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 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
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
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
"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 ...