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City of Chicago v. Weiss





APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.


Defendants, Peter Weiss, Richard J. Neuhaus, James Murray Kempton, Jane Buchenholz, Patricia Saltonstall, Georgianna Cestro, Andrew Robinson, Davis Borden, Ellen Miller, Ellis Boal, Franklin Miller, Sema Lederman and Rose Brooks, appeal from the judgments of the circuit court of Cook County finding them guilty, following a bench trial, of disorderly conduct in violation of section 193-1 of the Municipal Code of the City of Chicago. Defendants Weiss and Neuhaus were each fined $400; defendant Kempton, $250; and each of the other defendants, $200. Costs were assessed against each defendant.

Section 193-1, in pertinent part, provides: "A person commits disorderly conduct when he knowingly: * * * (d) Fails to obey a lawful order of dispersal by a person known by him to be a peace officer under circumstances where three or more persons are committing acts of disorderly conduct in the immediate vicinity, which acts are likely to cause substantial harm or serious inconvenience, annoyance or alarm * * *."

The Democratic National Convention was held in Chicago during the last week of August, 1968, and the occurrence out of which these cases arose took place on the evening of August 29, 1968.

The leaders of various dissident groups had announced earlier that protesters would disrupt the convention and the city. Leaders of two dissident groups, the Youth International Party (Yippies), and the National Mobilization Committee to end the war in Viet Nam (MOB), met with representatives of the mayor's office concerning the use of public facilities during the week of the convention. It was agreed that the public facilities of the city were to be made available to members of the Yippies and MOB, so long as they were used in a peaceful and orderly manner, but the city refused to approve their plans to sleep in the parks for the reason that park ordinances of long standing prohibited use of the parks after 11:00 P.M. The city also refused to approve their plans for demonstrations in the area immediately adjacent to the International Amphitheatre, the site of the convention, because a mass assembly of people might interfere with the security preparations of both Federal and local authorities.

MOB, Rennie Davis, Tom Hayden, Mark Simons, Mary Lou Nowka, Marie Zelek and Linda Turner filed an action in the United States District Court for the Northern District of Illinois seeking an injunction to prohibit the officials of the city and park district from interfering with the meetings, parades and demonstrations they planned, and from interfering with their members who intended to sleep in the parks. The plaintiffs argued that they had a right to conduct a massive demonstration within "eye-shot" of the Amphitheatre on the evening of the nominations by the Democratic National Convention, and the defendant local authorities contended that the proposed sites could not be made available because of traffic and security considerations in that area. The district court held that alternative routes of march and assembly suggested by the local officials showed that they had acted in a reasonable and nondiscriminatory manner to preserve public safety and convenience at the site of the convention without depriving plaintiffs and other protesters of their rights of free speech and public assembly. The court also held that the plaintiffs did not have a right to sleep in the parks.

There were numerous demonstrations and marches by various groups from Sunday, August 25, through Thursday, August 29. These marches and demonstrations, which took place in and around the downtown area of the city, several miles north and east of the Amphitheatre, produced a number of confrontations with the police. The protesters made several attempts to march to the Amphitheatre, and to sleep in the parks. Violent confrontations were experienced on the evenings of August 25, 26, and 27, when the police cleared Lincoln Park of persons who wanted to sleep there. About 8:00 P.M. on Wednesday, August 28, a violent and much publicized confrontation occurred in front of the Conrad Hilton Hotel. On the night of August 28, 1968, following adjournment of the Democratic Convention until the next day, 5 of the defendants attended a meeting at the Amphitheatre at which the participants agreed to assemble the next evening in front of the Conrad Hilton Hotel to protest occurrences, particularly alleged acts of police brutality, which took place during that day.

About 2:00 P.M. on August 29, a large group began to assemble in Grant Park across from the Hilton Hotel. This group was addressed by a number of speakers, including Senator Eugene McCarthy, Dick Gregory, Reverend Ralph Abernathy, Reverend Andrew Young, and Pierre Salinger. About 4:00 P.M. some 2,000 of the group began to march from Grant Park to the Amphitheatre. About 4:30 P.M. the police stopped the march at 16th Street and Michigan Avenue. Deputy Superintendent of Police James Rochford told the marchers that the Secret Service was seriously concerned about the safety of the candidates and asked the demonstrators to return to the Grant Park area where they could demonstrate "to their heart's content."

Most of the group returned to Grant Park. A small part of the group, approximately 30 in number, proceeded south into a Negro residential neighborhood. Several squad cars accompanied this group. The residents of the area were heckling the group, and at 31st Street the police walked with the marchers. Some of the marchers began to fall out of the march, and when the group reached 41st Street about 6:00 P.M. there was a brief scuffle with some Negro youths. These remaining marchers accepted a police offer of escort out of the area.

In the meantime the main group had returned to, and was still assembled in, Grant Park. At approximately 6:30 P.M., General Richard T. Dunn, the commanding officer of the Illinois National Guard, met with Dick Gregory in front of the Hilton Hotel. He told Gregory that 18th Street had been selected as the point beyond which it was not safe for the demonstrators to proceed and that the demonstrators could march as a group anywhere in the area bounded by 18th Street on the south and State Street on the west. Gregory said he would lead the march south on Michigan Avenue to 18th Street. General Dunn said he would meet with representatives of the city, the Secret Service, and the United States District Attorney's office at 18th Street and Michigan Avenue and decide if the march could proceed further.

At approximately 7:20 P.M., approximately 3,000 marchers started south on Michigan Avenue. They marched 3 and 4 abreast on the east sidewalk. About 450 National Guardsmen walked in the street next to them. The marchers stayed on the sidewalk, and as they proceeded south there was some chanting and a few vulgar remarks but no violence. The group reached the intersection of 18th and Michigan at approximately 8:30 P.M. There Michigan Avenue had been barricaded with jeeps and barbed wire, and there was a line of National Guardsmen, in full battle regalia, positioned diagonally from the northeast corner to the southwest corner of the intersection. Behind the Guardsmen to the south were police, and the testimony shows there were approximately 1,250 National Guardsmen and 120 policemen in the area. North of the intersection was a television van equipped with spotlights. As the march was halted at the intersection, the marchers "bunched up" and filled the street.

The marchers were told that they could turn west on 18th Street or go north, but that they would be arrested if they proceeded south. There was considerable discussion between Guard and police officers and leaders of the march, but a stalemate occurred as the marchers refused to go any direction but south, and the National Guard refused to permit them to go south. This situation continued for about 45 minutes to an hour and tensions began to build. Then the arrests began. Any marchers proceeding south were permitted to go through a corridor in the Guard line where they were arrested by the police and placed in a police van. In a period of approximately one hour, 90 to 100 individuals, including all of the defendants, were arrested. Very shortly thereafter an announcement was made that there would be no further arrests, and the arrest corridor was closed off. About 15 or 20 minutes after the arrests were concluded, the marchers surged forward. The Guard line pushed the demonstrators back and released tear gas. The marchers dispersed and returned to Grant Park.

As grounds for reversal, defendants contend first that section 193-1(d) of the Municipal Code of Chicago is unconstitutionally vague and overbroad on its face. They acknowledge that in City of Chicago v. Fort (1970), 46 Ill.2d 12; City of Chicago v. Jacobs (1970), 46 Ill.2d 214; and City of Chicago v. Greene (1970), 47 Ill.2d 30, cert. denied (1971), 402 U.S. 996, 29 L.Ed.2d 162, 91 S.Ct. 2180, this court considered and rejected the contentions here presented, but argue that Coates v. City of Cincinnati (1971), 402 U.S. 611, 29 L.Ed.2d 214, 91 S.Ct. 1686, decided subsequent to Greene, requires reconsideration and reversal of our prior holdings.

The ordinance in Coates, insofar as here relevant, provides: "It shall be unlawful for three or more persons to assemble, except at a public meeting of citizens, on any of the sidewalks, street corners, vacant lots, or mouths of alleys, and there conduct themselves in a manner annoying to persons passing ...

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