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Wills v. O'grady

OPINION FILED JULY 24, 1980.

JAMES WILLS, PLAINTIFF-APPELLANT,

v.

JAMES O'GRADY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding.

MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Plaintiff James Wills appeals from the dismissal of his first amended complaint in which he sought a declaratory judgment that certain State statutes and Chicago municipal ordinances would be unconstitutional if applied to his intended conduct of sunbathing nude at public beaches in Chicago and elsewhere in Illinois.

We affirm the judgment of the trial court.

In his amended complaint plaintiff alleges the following. He desires to sit in the nude at the public beaches of Chicago, Illinois Beach State Park in Lake County, and elsewhere in Illinois. In August 1973 and July 1974 he was arrested and prosecuted on charges of disorderly conduct (Ill. Rev. Stat. 1973, ch. 38, par. 26-1(a)(1)) for appearing in the nude in his own backyard in Hanover Park, Illinois. Plaintiff was found not guilty in the first instance and the second case was "SOL'ed." On August 5, 1978 (plaintiff's original complaint was filed in April 1978) he went to Illinois Beach State Park, removed his clothing at a beach, and sat in the nude. Two hours later 10 officers from the Illinois Department of Conservation appeared and told him he would be arrested and charged with disorderly conduct if he did not put his clothes on within five minutes. The complaint is silent as to what then occurred. Plaintiff further alleges that he faces the danger of arrest and conviction for the exercise of his constitutionally protected right to sit in the nude. Specifically, plaintiff alleges:

"Plaintiff intends to arrive at a public beach in the City of Chicago and public beaches in the State of Illinois. There he intends to take off all his clothes and sit on a beach towel and read a book. He may on occasion lie down or stand up. He does not intend to fondle himself or cause a display of his penis or of any other part of his body other than might be caused by normal shifting of position. This conduct is not done with the intent to arouse or satisfy his sexual desires."

Plaintiff contends that the following statutes and ordinances will be applied to this behavior, resulting in his arrest and prosecution:

"(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; * * *." Ill. Rev. Stat. 1977, ch. 38, par. 26-1(a)(1).

"(a) Any person of the age of 17 years and upwards who performs any of the following acts in a public place commits a public indecency:

(3) A lewd exposure of the body done with intent to arouse or to satisfy the sexual desire of the person; * * *." Ill. Rev. Stat. 1977, ch. 38, par. 11-9(a)(3).

Section 193-1(a) and section 193-1(b) of the Municipal Code of the City of Chicago:

"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 ...


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