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02/07/89 the People of the State of v. Linda Montgomery

February 7, 1989





534 N.E.2d 651, 179 Ill. App. 3d 330, 128 Ill. Dec. 469 1989.IL.142

Appeal from the Circuit Court of Cook County; the Hon. John J. McDonnell, Judge, presiding.


JUSTICE SCARIANO delivered the opinion of the court. EGAN, P.J., and HARTMAN, J., concur.


Following a bench trial, defendant was convicted of mob action and sentenced to one year's conditional discharge, $100 fine and $30 in court costs. She appeals, arguing that her conduct is not punishable by the mob action statute.

At trial, the State presented two witnesses. Chicago police officer Dennis Palasz testified that on April 27, 1986, as he and his partner were driving an unmarked car west on Armitage Avenue, they were flagged down by a man standing at the corner of Armitage and Milwaukee Avenues near a White Castle restaurant. The man, Mr. Toledo, informed Officer Palasz and his partner that he had been in a fight with Daniel Pacheco. As another patrol car arrived, Toledo began hyperventilating and the recently arrived officers went to his assistance, while Palasz placed Pacheco under arrest, handcuffed him and placed him in the patrol car. Meanwhile, approximately 20 to 25 people had gathered, prompting Palasz to call for an assistance car. He radioed the dispatcher and reported "there is nothing wrong," although he heard a woman screaming "fucking police, you fucking assholes, you're a bunch of drunks, what the fuck are you doing, you fucking junkies." At trial, Palasz identified defendant as the person shouting these epithets. As Palasz turned toward the restaurant he saw Lieutenant Kijowski and defendant screaming at each other, after which defendant struck Kijowski on the chest with her hand. Palasz went to assist Kijowski, who directed him to place defendant under arrest. He testified that he did not see defendant's companion, Gail Scanlon, do anything, nor did he hear her say anything. On cross-examination, Palasz stated that the crowd was merely watching what was going on and that "nobody walked toward us." He also acknowledged that he did not include in his police report the fact that defendant had struck Kijowski.

Kijowski testified that as he approached Toledo in order to calm him down, defendant and Scanlon ran out of the White Castle shouting "in essence . . . that all policemen are junkies, drunks and all policemen are no fucking good and they beat up people, and don't let him/them take that man away." Approximately 15 to 20 people exited the restaurant and joined defendant in shouting at the police. Kijowski testified that he approached defendant and said "[Go] back in the restaurant, you don't know what's happening." Defendant refused to leave, and when Toledo's mother began screaming in Spanish, Kijowski told defendant "to cease . . . making statements" to Ms. Toledo. Defendant responded "[Fuck] you, I ain't doing nothing, I have freedom of speech, I can do what I want." When Kijowski threatened to arrest defendant "if she didn't shut up," defendant "smacked" him in the chest. Defendant was thereupon arrested. Kijowski claimed that defendant interfered with his investigation and arrests, as well as his efforts to clear a back up of approximately 50 to 60 cars on the street.

The trial court denied defendant's motion to dismiss, made at the close of the State's case, in support of which she argued that the State had not proved that she interfered with an arrest or that she had the requisite intent for the offense of mob action. In ruling, the trial court stated that "arrest means manual capture and transportation." Defendant then testified as follows: while waiting for their food in the White Castle, Gail Scanlon saw the police beating a man. Defendant told Scanlon that this was police business and not to get involved. After getting their food, defendant and Scanlon walked to their car and, defendant testified, she was not watching the police nor did she observe a crowd. When defendant got out of the car to throw away her trash, she saw the police forcing Toledo's head down "on the car" and she heard a woman, later identified as Toledo's mother, screaming in Spanish. At this point defendant said, in a louder than normal speaking voice, "[The] police were wrong, that's police brutality." As she turned to return to her car, Kijowski ran up behind her, grabbed her hair, pulled her backwards and called her "a fucking nigger bitch." She was then arrested and brought to the police station. While there she accused Kijowski of being drunk and she told Palasz that Kijowski "must be having family problems because he's drunk," to which Palasz responded "[Yes], he is."

Gail Scanlon also testified that she made the observation to defendant that the police should not beat Toledo, and that defendant answered "that she didn't care if they beat him up or nothing because she didn't particularly care for Mexicans and she liked policemen.", Defendant was charged as follows:

"[Defendant] committed the offense of mob action in that she did interfere with the arrest of another by shouting accusations and threats at Police Officers, and did actively encourage others near her to participate in this interference, causing a large group of persons to assemble around the Officers and hinder their lawful efforts. Ms. Montgomery did also refuse to withdraw from this action upon the lawful command of the complainant, a Lieutenant of the Chicago Police Department."

In finding defendant guilty the trial court stated:

"[It] all comes down to basically whether or not I believe the police [officers] or whether or not I don't believe the police officers; and whether or not I believe the defendant and her witness, and I don't.

The record will reflect the fact that the Court is quite satisfied with the testimony of the police officers. There will be a finding of guilty and a judgment on the finding. I do ...

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