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WEIGAND v. VILLAGE OF TINLEY PARK

September 21, 2000

KAREN WEIGAND, INDIVIDUALLY AND AS GUARDIAN OF KELLY AND DAVID WEIGAND; BETH WALKER; INDIVIDUALLY AND AS GUARDIAN OF ANDREW, CAROLYN, AND STEPHANIE WALKER, WILLIAM MARTENS, INDIVIDUALLY AND AS GUARDIAN OF ZACHARY AND SAMANTHA MARTENS; MICHAEL AND SUSAN TULLEY, INDIVIDUALLY AND AS GUARDIAN OF ASHLEE, LINDSAY, AND JESSICA TULLEY; MARIAN BEISADECKI, INDIVIDUALLY AND AS GUARDIAN OF AMBER, LAURA, AND JENNY BIESADECKI; ANTHONY AND RITA LOFFREDO, INDIVIDUALLY AND AS GUARDIAN OF ASHLEY, JEFF, KARA, KATIE LOFFREDO; GLENN AND LAURIE HENCHEL, INDIVIDUALLY AND AS GUARDIAN OF JIMMY AND DANA HENCHEL; ROLAND AND YVETTE ROWE, INDIVIDUALLY AND AS GUARDIAN OF RONNY AND RYAN ROWE; DENNIS G. SUPANICH, ROSE AND ROBERT SAKANIS, INDIVIDUALLY AND AS GUARDIAN OF JONATHAN AND DAWN SAKANIS, PLAINTIFFS,
V.
VILLAGE OF TINLEY PARK, A MUNICIPAL CORPORATION AND BODY POLITIC, EDWARD ZOBROCKI, VILLAGE PRESIDENT, PATRICK REA, DAVID SEAMAN, GREGORY HANNON, MICHAEL BETTENHAUSEN, MATHEW HEFFERAN, AND BRIAN MAHER, IN THEIR OFFICIAL CAPACITIES AS CORPORATE TRUSTEES, DEFENDANTS.



The opinion of the court was delivered by: Bucklo, District Judge.

  MEMORANDUM OPINION AND ORDER

The Village of Tinley Park, Illinois, has an ordinance that makes it unlawful "to play any games upon any street, alley, or sidewalk, or other public places except when a block party permit has been issued by the President and the Board of Trustees." Tinley Park Ord.Code § 99.013. Section 10.02 of the Village Ordinances defines "public place" to include "any street, sidewalk, park, cemetery, school yard, or body of water." The ordinance is enforced by issuing tickets charging parents with "parental irresponsibility" for allowing their children to play on the sidewalk and street in front of their home. Some of the plaintiffs have been thus ticketed. Recourse to the state courts for declaratory judgment was unsuccessful. A state court has continued some of the plaintiff's cases until November 13, 2000.

The plaintiffs sued in state court, alleging violations of the due process clause of the 14th Amendment of the United States Constitution and of the Bill of Rights of the Illinois Constitution. They also attacked the ordinance as vague and overbroad; as violative of their right to assemble under the First Amendment of the United States Constitution and of the Illinois Constitution. They requested a TRO, and preliminary and permanent injunctions. The plaintiffs also sued for actual and punitive damages, plus reasonable attorney's fees, under 42 U.S.C. § 1983. Finally, the plaintiffs prayed for a declaration that the ordinance is unconstitutional on its face. The defendants removed to federal court. I grant these motions in part, and issue a preliminary injunction against the enforcement of the ordinance.

I.

Injunctive relief is an extraordinary and drastic remedy that should not be granted unless the movant, by a clear showing, carries the burden of persuasion. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). Five factors figure into the determination of whether a preliminary injunction should be granted. Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 385-88 (7th Cir. 1984). As a threshold matter, the plaintiff must show (1) a likelihood of success on the merits, (2) irreparable harm if the preliminary injunction is denied, and (3) the inadequacy of any remedy at law. Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999). Once this threshold showing is made, I balance (4) the harm to the plaintiff if the preliminary injunction were wrongfully denied against the harm to the defendants if the injunction were wrongfully granted, and (5) the impact on persons not directly concerned in the dispute (the "public interest"). Id.

The plaintiffs have come forward with enough to persuade me by a preponderance of the evidence that they have a likelihood of success on the merits. The ordinance appears to be, at the very least, vague and substantially overbroad. On its face, it would prohibit children from playing tag at recess in the schoolyard without a block party permit from the Village President and the Board of Trustees; likewise it would apparently bar a child from playing with his Gameboy on the sidewalk, or kids from playing in a pool or river — bodies of water — or skating in the park without obtaining a permit, and similar absurdities.

The defendants reply that the ordinance is a valid assertion of the state's police powers. They say, correctly, that unless a fundamental right is implicated, regulation will be upheld if it bears a rational relation to a legitimate state end. They cite a state case for this, but that is also the federal standard. See Gillespie v. City of Indianapolis, 185 F.3d 693, 708-9 (7th Cir. 1999). The defendants argue that there is no fundamental liberty interest in playing games in the street or other public places, and I agree. However, the asserted legitimate state end that this ordinance promotes is too narrow to support the ordinance.

According to the defendants, this state end is to keep alleys and motorways clear for use by vehicles so that individuals playing games will not be run over, and to protect passersby on the sidewalks from being injured by game players. That does not explain the absolute prohibition against games in schoolyards, parks, and pools, not to mention other venues apparently designed for games. Neither does it warrant the prohibition of harmless games in other venues, even on the sidewalks or perhaps the streets. Under the law I cannot play chess on the sidewalk without obtaining a permit, but how might that injure anyone? If bicycle riding is a game, may I not play it in the streets or on the sidewalks of Tinley Park without a permit?

A regulation prohibiting only game-playing in the streets and alleys that put others or self at risk might be constitutional under rational basis review (if "game" could be comprehensibly defined — more on this below). But this ordinance is broader. The statute is not rationally related to its stated end, or the plaintiffs have made a substantial showing to that effect.

II.

Moreover the plaintiffs argue that there is a fundamental right involved, the First Amendment Right to assemble. This would implicate strict scrutiny, not a rational basis review, and so the regulation would be upheld only if it were narrowly tailored to serve a compelling government interest. See Gillespie, 185 F.3d at 708. The ordinance clearly sweeps in much protected conduct. A game might be part of a political protest, to take the clearest case ("Bean the `capitalist' with a cream pie!"). Moreover, expressive game playing need not be political to be protected. If "nude dancing . . . is expressive conduct within the outer perimeters of the First Amendment, though . . . only marginally so," Barnes v. Glen Theatre, 501 U.S. 560, 566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), surely innocent game playing may be protectable expressive conduct as well.

The defendants argue that the ordinance will not interfere with the right to assemble as long as its exercise does not involve game playing on streets, sidewalks, and other public places, which is sort of like saying that an anti-syndicalism statute does not prohibit the exercise of free speech except by anarchists, communists, and other lowlifes. The defendants also argue that they may regulate the use of streets and alleys, prohibiting conduct that has the tendency to endanger persons or property, which is fair enough. However, that is not a compelling state interest. Reasonable time, place, and manner regulation is OK, but an absolute bar against any game playing in the stated venues is not reasonable time, place, and manner regulation. Indeed, the regulation might plausibly be argued to be content-based, not content-neutral, insofar as playing a game could be the content of the expressive activity.

Moreover, even if the asserted interest were compelling, the plaintiffs have made a case that the regulation here is not narrowly tailored; indeed, that it is substantially, even ridiculously, overbroad. See New York v. Ferber, 458 U.S. 747, 767, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (A statute is substantially overbroad if it "reaches a substantial number of impermissible applications."). If so, I could strike down the law on its face, even if the rights of the plaintiffs before the court were not violated. Id. at 769, 102 S.Ct. 3348. If the ordinance fails the weaker rational basis test because it prohibits too much conduct in a way that will not promote the stated end, as I have held above, it will certainly flunk the stronger strict scrutiny tests for narrow tailoring or substantial overbreadth.

Moreover, plaintiffs have made a plausible showing that the statute is impermissibly vague. The term "game" is exceedingly vexed and difficult, as the philosopher Ludwig ...


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