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JACKSON v. CITY OF MARKHAM

August 21, 1991

GERRI JACKSON, Plaintiff,
v.
THE CITY OF MARKHAM, ILLINOIS; EVANS R. MILLER, Mayor of the City of Markham, in his official and individual capacities; THEODORE CLAYTON, Chief of Police of the City of Markham, in his official and individual capacities; and Markham Police Officers DAVID BRONNELL, I. McDONALD, AND FRANK PENCE, in their individual capacities, Defendants


Ann Claire Williams, United States District Judge.


The opinion of the court was delivered by: WILLIAMS

ANN CLAIRE WILLIAMS, UNITED STATES DISTRICT JUDGE

 Plaintiff Gerri Jackson filed suit against the City of Markham, Illinois, Mayor Evans R. Miller, Chief of Police Theodore Clayton, and Markham police officers David Bronnell, I. McDonald and Frank Pence, alleging that defendants violated her rights under the First, Fourth and Fourteenth Amendments to the Constitution by causing and/or effectuating her arrest when she attempted to walk in front of the Markham Roller Rink with a sign that said "Children are hurt here." On the same day plaintiff filed her complaint, plaintiff filed a separate motion for a preliminary injunction which would bar defendants and their agents from arresting plaintiff while she walked on the sidewalk or the shoulder of Dixie Highway in front of the Markham Roller Rink with her sign. The court referred plaintiff's motion for a preliminary injunction to Magistrate Judge Rosemond for a report and recommendation. The Magistrate Judge recommended granting plaintiff's motion for a preliminary injunction and, for the following reasons, the court agrees with the Magistrate Judge's conclusion.

 Background

 The Markham Roller Rink, located at 16630 South Dixie Highway in Markham, Illinois ("the rink"), is owned by Markham Roller Rink, Inc. Defendant Evans Miller, Mayor of Markham, is the primary shareholder of the corporation which owns the rink. The rink is located on the west side of Dixie Highway. Dixie Highway has two lanes of traffic running in each direction. West of the center line of the highway, in front of the rink, there is a shoulder, a curb and a concrete sidewalk adjacent to the curb. Defendant Miller states that he "built the concrete strip to allow [the rink's] patrons to exit their vehicles on South Dixie Highway and enter [the] rink without having to walk on [the] grass." Affidavit of Evans R. Miller, attached as Ex. A to Defendant Miller's Objections to Magistrate Judge's Report, at para. 3. According to an affidavit submitted by an official for the Illinois Department of Transportation, the sidewalk to which defendant Miller refers is within the highway right of way, which extends 50 feet west of the highway center line. See Affidavit of Joseph J. Kostur, attached as Ex. D to Defendant Miller's Objections to Magistrate Judge's Report, at paras. 4 and 6.

 During the summer of 1989, plaintiff Gerri Jackson became concerned about the treatment of children at the rink after her son was injured by Mayor Miller's son at the rink. *fn1" On August 26, 1989 plaintiff and others walked on the sidewalk in front of the rink. Plaintiff carried a sign which said "Children are hurt here." Defendants Chief of Police Clayton and Mayor Miller told plaintiff she had to move off the Mayor's property. She moved onto the shoulder of Dixie Highway. Chief Clayton then told plaintiff she could not stand on the shoulder, and threatened to arrest her if she did not leave. Plaintiff and her group then walked north on Dixie Highway and stood on the shoulder of the highway in front of the property immediately north of the rink with their signs.

 On September 2, 1989, plaintiff and others walked on the shoulder of Dixie Highway, carrying their signs expressing their concern over the treatment of children at the rink. Plaintiff was approached by defendants Chief Clayton and Mayor Miller and Chief Clayton told plaintiff she could not walk and display her sign on the shoulder of the highway. Chief Clayton then arrested plaintiff and charged her with violating Ill. Rev. Stat. ch. 95 1/2, para. 11-1007(a). This statute provides that "where a sidewalk is provided and its use is practicable, it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway." Plaintiff was tried on this charge on September 26, 1989, without counsel, and she was convicted and fined $ 2.50.

 Between September 30 and October 13, plaintiff did not demonstrate at or near the rink because of her fear of being arrested. See Affidavit of Gerri Jackson, attached as Ex. B to Defendant Miller's Objections to Magistrate Judge's Report, at para. 15. On October 14, 1989, plaintiff returned to walk with her sign on the sidewalk in front of the rink. Defendant police officer McDonald approached her and told her she was on Mayor Miller's property and that she must leave or be arrested. When plaintiff continued to walk on the sidewalk with her sign, she was placed under arrest, and taken to the Markham police station. Mayor Miller signed a complaint charging plaintiff with criminal trespass in violation of Ill. Rev. Stat. ch. 38, para. 21-3(a). The trial date on this charge was continued three times, and each time plaintiff took time off from work to appear, and the arresting officer (McDonald) and defendant Miller failed to appear. Finally, on February 14, 1990, upon motion of the Assistant State's Attorney, the trespass charge was dismissed. Plaintiff asserts that she has not been back to the rink since October 14 because of her fear of being arrested. See Affidavit of Gerri Jackson at para. 21.

 Discussion

 In order to prevail on her motion for a preliminary injunction, plaintiff has the burden of establishing:

 
(1) that [she] has no adequate remedy at law; (2) that [she] will suffer irreparable harm if the preliminary injunction is not issued; (3) that the irreparable harm [she] will suffer if the preliminary injunction is not granted is greater than the irreparable harm the defendants will suffer if the injunction is granted; (4) that [she] has a reasonable likelihood of prevailing on the merits; and (5) that the injunction will not harm the public interest.

 International Kennel Club v. Mighty Star, Inc., 846 F.2d 1079, 1084 (7th Cir. 1988), quoting, Brunswick Corp. v. Jones, 784 F.2d 271, 273-74 (7th Cir. 1986). The Magistrate Judge found that plaintiff had carried her burden on all the aforementioned factors ...


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