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NATIONAL PAINT & COATINGS ASSN. v. CITY OF CHICAGO

September 29, 1993

NATIONAL PAINT & COATINGS ASSOCIATION; RUST-OLEUM CORPORATION, an Illinois corporation; THE SHERWIN-WILLIAMS COMPANY, an Ohio corporation; ACE HARDWARE CORPORATION, a Delaware corporation; TRU-TEST MANUFACTURING COMPANY, a Delaware corporation; FMA INC., d/b/a JIM'S ACE HARDWARE, an Illinois corporation; W.C. SCHAUER HARDWARE CENTER, INC., an Illinois corporation; SMILEY ACE HARDWARE, INC., an Illinois corporation, Plaintiffs,
v.
CITY OF CHICAGO, an Illinois municipal corporation, Defendant.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 In response to the growing problem of graffiti in Chicago, on May 20, 1992, the City Counsel of the City of Chicago enacted four ordinances, Municipal Code §§ 4-132-150, 8-4-130, 8-16-095 and 8-16-096, regulating the sale and possession of paint in spray cans ("spray paint") and markers containing a non-water soluble fluid and having a writing surface of 3/8 of an inch or greater ("large markers"). Plaintiffs, *fn1" seeking declaratory and injunctive relief, challenge the constitutionality of §§ 4-132-150 and 8-4-130(a). *fn2"

 In a memorandum opinion and order dated July 31, 1992, we narrowed plaintiffs' challenge to the following issues: (1) whether §§ 4-132-150 and 8-4-130(a) impose an impermissible burden on interstate commerce; (2) whether §§ 4-132-150 and 8-4-130(a) violate plaintiffs' right to substantive due process as guaranteed under the United States Constitution; and (3) whether §§ 4-132-150 and 8-4-130(a) constitute an illegitimate exercise of the police power afforded the City of Chicago under the Illinois Constitution. National Paint & Coatings Ass'n v. City of Chicago, 803 F. Supp. 135, 149 (N.D. Ill. 1992). In conjunction with the above listed issues, the court conducted a bench trial, which began on July 15, 1993 and, after six days of testimony, concluded on August 2, 1993. After a careful review of the evidence presented at trial, both oral and written, the various trial exhibits, all relevant pleadings and memoranda of law, we issue the following findings of fact and conclusions of law.

 I. FINDINGS OF FACT

 A. The Challenged Ordinances

 1. Section 4-132-150 of the Municipal Code, as amended on May 20, 1992, prohibits the retail sale of spray paint and large markers in the City of Chicago. That provision provides:

 
It shall be unlawful for any person holding a retail business license to sell paint in spray cans to any person or to sell any marker containing a fluid which is not water soluble and has a point, brush, applicator or other writing surface of three-eights of an inch or greater to any person.

 Municipal Code of Chicago, § 4-132-150. "Any person found in violation of Section 4-132-150 shall be fined not less than nor more than $ 100.00 and/or required to perform reasonable public service for each separate offense." Id. § 4-132-170.

 2. Section 8-4-130(a) prohibits the possession of spray paint and large markers in Chicago's public buildings, public facilities or on the property of another:

 
(a) It shall be unlawful for any person to possess a spray paint container, liquid paint or any marker containing a fluid which is not water soluble and has a point, brush, applicator or other writing surface of three-eighths of an inch or greater, on the property of another or in any public building or upon any public facility. It shall be a defense to an action for violation of this subsection that the owner, manager or other person having control of the property, building or facility consented to the presence of the paint or marker.

 Municipal Code of Chicago, § 8-4-130(a). Notably, if enforced as written, the ordinance will result in the arrest and prosecution of adults who possess spray paint, liquid paint or any large marker on the property of another, in any public building or upon any public facility regardless of the individual's intent to commit graffiti vandalism. Although some of these adults may eventually prevail under the defense provided for those with the consent of the owner, manager or other person controlling the property, such defense does not guarantee that these individuals will not be arrested and prosecuted in the first instance. The penalty for violating this provision is a fine not to exceed $ 200. Id. § 8-4-360.

 B. Defining "Graffiti Vandalism"

 3. Although listed as a contested issue in this case, the parties have agreed upon the following broad definition of "graffiti vandalism": "marks placed on property without the owner's consent." Final Pretrial Order, Exhibit L-1 P 51 & Exhibit L-2 P 51. Despite the City's acquiescence to plaintiffs' proffered definition, however, it is evident that such a definition is far too overinclusive to be helpful to the present inquiry. Consider, for instance, the following scenario. Upon completion of a stressful work day, a co-worker invites you to join her for dinner and, so as not to offend her, you accept. As your co-worker's apartment is only four blocks from the office, you decide to get a little exercise and walk. Unfortunately, on the way over it begins to rain and, being completely unprepared, you become wet and muddy. As you arrive at your co-worker's apartment, you are so eager to enter a warm and dry room that you forget to take off your shoes and, hence, leave a muddy footprint on your co-worker's new carpet without permission. Fairly, such an incident cannot even be labelled vandalism, yet under the above definition, the footprint left on the carpet would be considered "graffiti." To further the point, consider a tire mark left by a person who purposefully drives over another's lawn without permission. While certainly an act of vandalism, all parties can agree that such conduct is not "graffiti" as it concerns this case.

 C. The Magnitude of the Graffiti Problem in Chicago

 5. At the outset, we note that plaintiffs do not dispute that graffiti is a serious problem. It is present on property in all 50 wards in Chicago. Final Pretrial Order, Exhibit A PP 6-7. Further, no type of property has been spared. Upon walking through the streets in Chicago, one can find graffiti on homes, garages, roof tops, mailboxes, libraries, churches and synagogues, public sculptures, park benches, buses, trains, tree trunks, sidewalks and virtually any other type of property present in the City. See Plaintiffs' Trial Exhibits 38-46, 85, 95; Defendant's Trial Exhibits 8, 19, 26, 70, 72, 74, 76, 79, 84, 86, 88. Indeed, according to one of plaintiffs' expert witnesses, Jay Beswick, over 5,000,000 square feet in Chicago is covered with graffiti. R445.

 6. The costs associated with graffiti vandalism are substantial to both public and private sectors. The City, along with various public agencies, including the Chicago Transit Authority ("CTA"), the Chicago Board of Education, the Chicago Park District and the Chicago Housing Authority, has been forced to allocate scarce resources, to the tune of millions of dollars, in order to effect graffiti removal. See Defendant's Trial Exhibits 1, 10-15, 20, 72, 81-82, 88. Additionally, community groups have devoted significant time and energy to removing graffiti from private homes, garages, fences, roof tops, stores and other property. See Defendant's Trial Exhibits 25-26, 79, 84-85. Less quantifiable, but just as important as the cost of removal, are the long-term effects of graffiti on the various neighborhoods of Chicago. For instance, a tolerance for graffiti could result in physical deterioration and, thus, lower property values. R446-47 (testimony of Jay Beswick); R554-55, 565-66 (testimony of Professor Wesley Skogan); Defendant's Trial Exhibit 51. Some also contend that graffiti out-of-control demoralizes a community and makes it ripe for increased criminal activity.

 7. The evidence introduced regarding the magnitude of the problem certainly renders the City's effort to combat graffiti laudable. We observe, however, that the magnitude of the problem is not the primary issue before this court. Rather, as we have previously held, the court's focus remains with the costs and benefits of the measures adopted to eliminate the graffiti problem. National Paint & Coatings Ass'n, 803 F. Supp. at 143-44, 146-47.

 D. Expected Efficacy of the Challenged Ordinances

 (i) Graffiti Perpetrators and Their Motivations

 8. In order to demonstrate that the means employed under the challenged ordinances will neither achieve nor move the City closer to achieving the stated local objectives of decreasing the incidents of graffiti in Chicago, plaintiffs have devoted a substantial portion of time presenting evidence regarding who creates graffiti and why. The rationale is apparent, as a comprehensive understanding as to the motivations driving the perpetrators informs the issue of whether the measures in question will serve to deter such conduct. See R649-50 (testimony of Dr. Charles J. Cicchetti). In this case, the answer to who creates graffiti and why leads to the conclusion that the challenged ordinances will sadly have no deterrent effect whatsoever.

 10. Plaintiffs' expert witness respecting graffiti committed by taggers was Devon Brewer. In connection with his studies of taggers and the hip-hop culture with which they are affiliated, Brewer has developed personal relationships with and interviewed hundreds of taggers, or graffiti writers as they are often referred. R214, 294. According to Brewer, hip-hop graffiti began in the late 1960s in New York and Philadelphia, and gradually spread to other cities in the United States and across the world in the early to mid-1980s. R211. Brewer has studied the culture since 1987 in various cities, including Seattle, Vancouver, British Columbia, Portland, San Francisco, Los Angeles, Chicago, New York City, Amsterdam and Munich. R212-13.

 11. There are three types of hip-hop graffiti: tags, throw-ups and pieces. R215. Tags are stylized signatures of a writer's chosen street name. R215; see, e.g., Plaintiffs' Trial Exhibit 85A-B. Throw-ups are larger names written in bubble letters with an outline a different color than the interior of the letters. R218; see, e.g., Plaintiffs' Trial Exhibit 85C-D. The most-elaborate type of hip-hop graffiti are pieces, which are elaborate, multi-colored murals. R219-25; see, e.g., Plaintiffs' Trial Exhibit 85E-P.

 12. The social organization in the hip-hop graffiti culture revolves around four confederations: classes, crews, networks and the mentor-protege relationships. R246. First, classes refer to the two loosely identifiable groups of hip-hop graffiti writers. Writers begin as taggers, concentrating on the writing of tags and throw-ups. R246-47. After paying their dues and developing skill, writers will move on to pieces, and those few writers who achieve significant fame become known as elite writers. R246. Second, crews are loose configurations of friends who write graffiti together. R247. Membership in one crew does not preclude membership in another and, unlike rival street gangs, there is no animosity between crews manifesting itself in physical confrontation. R247-48. Crews range in size from 2-12 members or more. R247. Within a crew, writers share materials and skills. R248. The third social organization in hip-hop graffiti culture is the social network between writers in different crews. R250. At the top echelon, writers are networked by telephone, written letter and personal visits. R250. At the center of this network is New York City, considered by graffiti writers as "the graffiti Mecca." R250. Finally, mentor relationships are an important part of hip-hop graffiti culture. They are mutually beneficial in that the mentor often imparts knowledge in exchange for materials. R250.

 13. Hip-hop graffiti writers are overwhelmingly male. R228. They tend to be teenagers, ranging in age from 12-20, although some writers begin earlier and some continue through their 20s and even 30s. R228; see also Defendant's Trial Exhibit 70, P 10 (affidavit of Constance Mortell) ("In general, the taggers I have met are males ranging in age from fourteen to twenty-two years old."). Those in their 20s and 30s, however, tend to be involved in larger and legal projects. R266-67. Writers come from all racial, ethnic and social backgrounds. R228; Final Pretrial Order, Exhibit A P 8. They are highly mobile, "children of the transit system." R228, 232. Writers travel throughout the city and suburbs via automobile, public transportation and foot to obtain materials and write graffiti. R232-33, 261-62. For ...


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