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City of Chicago v. Lowy

OPINION FILED JULY 26, 1976.

THE CITY OF CHICAGO, PLAINTIFF-APPELLEE,

v.

LOUIS LOWY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE A. HIGGINS, Judge, presiding.

MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:

After a bench trial, Louis Lowy was found guilty of disorderly conduct under section 193-1(b) of the Municipal Code of Chicago and fined $10. On appeal defendant contends that the evidence presented was insufficient to prove his guilt within the meaning of the ordinance, and that the trial court erred in refusing to admit certain testimony into evidence. Only the complaining witness, Cecil Young, and defendant testified at trial. The facts are in dispute.

Cecil Young, a Chicago police officer who was not on official duty at the time of the incident in question, owns an apartment building at 1824 East 79th Street. Young maintains a rental office on the ground floor of the building. On January 17, 1974, at approximately 5 p.m., Young, from the opposite side of the street, saw Lowy walking his dog on the sidewalk in front of Young's apartment building. The record indicates that the streets were crowded with heavy automobile traffic. The dog was attached to a chain held by Lowy, but Young testified that the dog was not wearing a choker collar. Young estimated that Lowy's dog, a Dalmatian, weighed approximately 75 pounds. Young testified that Lowy permitted his dog to pass through the front gate of the property. The dog allegedly urinated on the front door of the building and then squatted to defecate. Young stated that Lowy had brought the dog to the front yard of Young's building the previous day. At that time, Young warned Lowy about permitting the dog to defecate and urinate inside the gate. Young crossed the street and demanded the Lowy removed the dog. Lowy refused and told Young to "f____ yourself." Lowy then issued the command "sic him" to his dog. The dog lunged towards Young but did not touch him because Lowy held his grip on the chain. Young fell backwards and pulled his service revolver for the purpose of protecting himself from the dog. Upon the warnings of Young, Lowy held the dog by the chain while it stood on its hind legs. The force of the dog pulling forward caused Lowy to slip and fall on the ice and snow covering the ground. Young testified that he assisted Lowy to his feet after the fall. Young did not sustain any injury as a result of the incident. Young denied that he ever physically grabbed Lowy or that he swore at Lowy in profane language.

Louis Lowy's version of the incident contradicts Young's testimony in almost every respect. Lowy is the proprietor of a paint and wallpaper store at 1884 East 79th Street, located near Young's apartment building. Lowy's Dalmatian is a pet, not a "watch-dog." At approximately 5 p.m., Lowy closed his store and walked with his dog towards his automobile which was parked on the street near the front of Young's apartment building. Lowy testified that it was impossible for the dog to enter Young's property because the front gate was locked and barred with steel grills. Young stopped Lowy by shouting at him from across the street, "Hey, you son of a bitch, get that f____ dog off the sidewalk." Lowy responded, "Who the hell are you? Since when do you own the city sidewalks?" An argument ensued resulting in physical contact. Young allegedly pushed and shoved Lowy, despite Lowy's pleas for Young to desist. Young pulled his service revolver, pointed it at Lowy and said, "You son of a bitch, I'll kill you." Young then struck Lowy across the face causing Lowy to fall backwards. Lowy testified that his Dalmatian never lunged towards Young; that the dog never at any prior time urinated or defecated on the street or on Young's property; and that the dog doesn't understand the term "sic him." Although the Dalmatian will wander from the confines of Lowy's store, the dog never crosses the street in order to walk to a point as far as Young's property. At approximately 4 p.m., one hour before the incident occurred, Lowy walked his dog to an open field enabling the dog to relieve himself. Lowy denied that he ever swore at Young in profane language.

Both men claimed to have called the police. Once the police arrived, no arrest was made of either Young or Lowy. The police have never impounded Lowy's Dalmatian. On January 18, 1974, one day following the altercation, a complaint was filed against Lowy charging him with disorderly conduct in violation of section 193-1(b) of the Municipal Code of Chicago, which provides:

"193-1. A person commits disorderly conduct when he knowingly:

(a) Does any act in such unreasonable manner as to provoke, make or aid in making a breach of peace; or

(b) Does or makes any unreasonable or offensive act, utterance, gesture or display which, under the circumstances, creates a clear and present danger of a breach of peace or imminent threat of violence; or * * *."

Lowy initially contends that his behavior was not public in nature and therefore outside the scope of the ordinance. Lowy relies on City of Chicago v. Blakemore, 15 Ill. App.3d 994, 305 N.E.2d 687. In Blakemore, this court reversed a disorderly conduct conviction under section 193-1(b) that was based upon the defendant's use of profane language in a dispute with a police officer in the presence of a gathered crowd. The court in Blakemore found that defendant's use of profane language did not have an effect on the bystanders to the extent of causing an imminent threat of violence or breach of the peace. The court in Blakemore further noted that the use of offensive language in a dispute with a police officer is not per se disorderly conduct or breach of the peace. Landry v. Daley (N.D. Ill. 1968) 288 F. Supp. 183, 187.

Lowy's conduct in the present case is distinguishable from the behavior of the defendant found in Blakemore. Lowy incited his dog to lunge towards Young thereby threatening Young with a violent attack. In Blakemore, the defendant did not make a menacing gesture which indicated a threat of violence. The defendant in Blakemore conducted himself passively; the use of profane language being his only vice. Here, Lowy's conduct went beyond the use of words and culminated in an active threat of violence which was unreasonable under the circumstances. Lowy's threat of violence falls within the definition of disorderly conduct as prescribed by section 193-1(b). City of Chicago v. Ikin, 12 Ill. App.3d 489, 299 N.E.2d 513.

• 1, 2 We find that Lowy's conduct was sufficiently public in nature. The altercation occurred in the yard of a building near a public street crowded with heavy automobile traffic. The record indicates that Young and Lowy were practically strangers to each other. Moreover, section 193-1(b) does not require that more than one person be threatened with violence. The ordinance clearly contemplates situations in which only one member of the public is threatened with violence. (City of Chicago v. Ikin, 12 Ill. App.3d 489, 299 N.E.2d 513; City of Bismark v. Travis (N.D. 1967), 154 N.W.2d 918.) Consistent with our interpretation of section 193-1(b) is the comparable definition of disorderly conduct established by the Illinois Criminal Code:

"(a) A person commits disorderly conduct when he knowingly:

(1) Does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace; * * *" (Emphasis added.) Ill. Rev. Stat. 1975, ch. 38, par. 26-1(a)(1); see Ill. Ann. Stat., ch. 38, par. 26-1, Committee Comments (Smith-Hurd 1970).

The record reflects that sufficient evidence was introduced by the city to sustain Lowy's conviction under section 193-1(b). It has been consistently held that the credibility of witnesses and the weight to be afforded their testimony are matters for resolution by the trier ...


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