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11/25/96 CITY CHICAGO v. PETER BURGARD

November 25, 1996

CITY OF CHICAGO, PLAINTIFF-APPELLEE,
v.
PETER BURGARD, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE PAUL M. SHERIDAN, JUDGE PRESIDING.

Released for Publication January 15, 1997.

The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j. and Buckley, J., concur.

The opinion of the court was delivered by: Wolfson

JUSTICE WOLFSON delivered the opinion of the court:

An ordinance of the City of Chicago provides:

"It shall be unlawful for any person to sell, offer or expose for sale, or solicit any other person to purchase tickets for any***place of amusement, upon any public way or other public place within the district bounded on the north by the Chicago River, on the south by the southline of Roosevelt Road, on the east by Lake Michigan, and on the west by the Chicago River." Ch. 10, sec. 8-490, Chicago Municipal Code.

The charge against Peter Burgard was:

"On or about 9 July 1995 at 1102 S. Columbus Drive, Chicago, Cook County, Illinois, committed the offense of selling tickets in Loop in that he offered or exposed for sale tickets for a place of amusement, to-wit the Grateful Dead Concert at Soldier Field in a public place at the above location which is north of Roosevelt Road, south and east of the Chicago River, and west of Lake Michigan."

At trial, a Chicago police officer testified that she saw the defendant speaking to people and showing them tickets. She overheard the defendant speak to one person:

"Q. Could you tell us what if anything the defendant said to this person?

A. Not ver batim, but he said they were good seats, and I would give you a good price."

After the City rested its case, defense counsel moved for a "directed finding." For the first time in the proceeding, as a virtual afterthought, the defense referred to the first amendment to the United States Constitution:

"My point is, your Honor, that offers to commit otherwise legal acts are protected by the first amendment*** You cannot criminalize offers to commit legal acts. I would respectfully submit the ordinance applied is overbroad. Second, that it's unconstitutional as applied under the first amendment****"

The City, although obviously taken by surprise ("Again since this is raised at this point, I really don't have any Illinois case law based on that"), did not object to the first amendment argument being ...


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