Appeal from the Circuit Court of Cook County. Honorable Edwin J. Richardson, Judge Presiding.
Petition for Appeal as a Matter of Right or Leave to Appeal Denied October 6, 1994.
Hartman, McCORMICK, DiVITO
The opinion of the court was delivered by: Hartman
JUSTICE HARTMAN delivered the opinion of the court:
The Village of Riverdale (Riverdale) appeals from the bench trial acquittal of 15-year-old Ahkieya Irwin, who had been charged with violating the Riverdale disorderly conduct ordinance. Riverdale questions the circuit court's finding that it failed to prove all required elements of a violation of its disorderly conduct ordinance. Irwin asserts that if this court disagrees with the circuit court's assessment of the evidence, we should find the disorderly conduct ordinance facially unconstitutional.
The rule against double jeopardy does not bar an appeal by a municipality from a judgment acquitting a defendant in an ordinance violation prosecution such as this. Village of Park Forest v. Bragg (1967), 38 Ill. 2d 225, 230 N.E.2d 868.
At trial, Riverdale Police Officer Sam Rodgers testified that he responded in a marked squad car to a report of a fight in progress at about 137th and Lowe in the village of Riverdale. In the vicinity of the fight, he observed at least 125 people in the street, so many that he was unable to see the opposite end. After additional officers arrived, Rodgers used his public address speaker to request everyone to clear the street. Rodgers was in uniform.
Other Riverdale police officers also used their police public address systems asking citizens to get off the street and back into their homes. Officer Rodgers then got out of his car, sought the source of the problem, and determined that Irwin and another young woman, whom he characterized as "a victim" and "the offender," were involved in a fight. As he did so, several other persons approached and began yelling at him to make some arrests. Rodgers testified that with all the people in the street chaos was developing. At this time he could not yet determine who started the fight, who was right and who was wrong. He testified, "we lust wanted to get the street cleared and that we would contact them and try to find out what was going on." One person in the fight supposedly was sprayed with mace and several others were armed with sticks. Rodgers again requested that all persons present, including Irwin, clear the street. The police were losing control of the situation; in Rodgers' mind, violence was imminent.
Rodgers specifically asked Irwin to leave the scene and go home. She did not do so, remaining in the street, badgering and yelling at Rodgers. She continued arguing with him and the other young woman involved in the fight. Rodgers testified that he asked Irwin to leave the scene at least a dozen times, and that he explained to her why he wanted her to go home. He told Irwin that police wanted the streets cleared "because we did not know exactly what was going on; and by sending her home, that we would be able to talk to her and find out exactly both sides of [contention] * * *." She still refused to comply with his request. Rodgers later determined, and wrote in his report, that Irwin was the victim of a battery. Up to that point he had not asked her where she lived, and he did not know her before the incident. When she refused to go home, Rodgers arrested her and charged her with disorderly conduct.
The Village of Riverdale disorderly conduct ordinance, No. 9.04.010, reads in pertinent part as follows:
"A person commits disorderly conduct when he [or she] knowingly:
C. Refuses or fails to cease and desist any peaceful conduct or activity likely to produce a breach of peace where there is an imminent threat of violence, and where the police have made all reasonable efforts to protect the otherwise peaceful conduct and activity, and have requested that the conduct and activity be stopped, and explained the request if there is time; * * *."
In granting Irwin's motion for a judgment of acquittal atthe close of Riverdale's case, the circuit court explained its reasoning as follows:
"The ordinance, which the young lady is charged with, breaks down into four or five different components. Let's read it together: 'Refuses or fails to cease and desist any peaceful conduct or activity likely to produce a breach ...