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Goldhamer v. Nagode

August 4, 2008

DON GOLDHAMER AND ROBIN SCHIRMER, PLAINTIFFS,
v.
LT. NAGODE, CMDR. KEATING, OFFICER POHL, UNKNOWN POLICE OFFICERS AND EMPLOYEES OF THE CITY OF CHICAGO, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, AND THE CITY OF CHICAGO, DEFENDANTS.



The opinion of the court was delivered by: John F. Grady, United States District Judge

MEMORANDUM OPINION

Before the court is defendants' motion to dismiss certain counts of the complaint. For the reasons explained below, the motion is denied in part and granted in part.

BACKGROUND

The plaintiffs' allegations, which are taken as true and viewed in a light most favorable to plaintiffs for the purposes of this motion, are as follows.

This case arises out of an occurrence at the Taste of Chicago in Grant Park on July 2, 2006, when approximately a dozen individuals near a United States Armed Services recruitment booth were handing out flyers and speaking to people about the role of the military and alternatives to military service. Plaintiffs Don Goldhamer and Robin Schirmer were among those individuals.

Schmirmer stood near the recruitment booth and held a sign that read "Chicago Is A Free Speech Zone." Goldhamer was present as an observer on behalf of the National Lawyers Guild "because of problems in the past of Chicago police violating the rights of those exercising their First Amendment rights." (Compl. ¶ 8.) He wore a red National Lawyers Guild cap.

After the demonstrators had been peacefully leafleting for about an hour on the public sidewalk ten to fifteen feet from the booth, two Chicago police officers arrived and, without elaboration, told them to "move away." The officers refused to identify their supervisor(s). Soon thereafter, a number of police officers, including defendant Lieutenant Nagode, arrived. Nagode ordered the officers to form a line in front of the recruitment booth. He also told Schirmer and others to put their signs away, that they could not protest there, and that they had to go to a "free speech zone." None of the demonstrators were aware of a "free speech zone" at the Taste of Chicago.

Schirmer folded her sign, put it in her purse, and began leafleting. Goldhamer asked Nagode why they could not display signs; Nagode replied, "Because I'm telling you." Goldhamer then asked Nagode what law he was enforcing; Nagode replied, "Just follow my order." Nagode then walked behind the recruitment booth and used his cell phone to call a supervisor.

One demonstrator, Melissa Woo (who is not a party to this action), was warned to go to the "free speech zone." When she did not comply with a second request to leave, she was arrested.

Nagode then threatened to issue an order to disperse. He also announced that the "festival area" was not "public" and that those assembled could not hand out leaflets or walk around with t-shirts bearing slogans. At this point, Schirmer moved to stand by people who were waiting in line to shoot baskets at the booth, and he spoke with them about military service.

Defendants Commander Keating and Officer Pohl arrived along with various police lieutenants. An assistant corporation counsel for the City (who refused to identify himself) was also present at this point. Nagode then gave a general order to the demonstrators to disperse. Each lieutenant appeared to choose someone to arrest, and Keating gave an order to arrest several of the demonstrators.

When told to disperse, Goldhamer did not leave; he assumed that the order did not apply to him because "he was not engaged in any protest." (Compl. ¶ 20.) He and Schirmer, along with four others, were arrested. None of the arresting officers provided a reason for the arrests. Plaintiffs and the other arrestees were taken to a tent in Grant Park that was adjacent to a temporary police headquarters and from there to the 1st District police station.

Plaintiffs were charged with disorderly conduct in violation of Chicago Municipal Code § 8-4-010(d) ("subsection(d)" or the "ordinance"), the text of which is discussed infra. They appeared in court four times on the charges; the police officers did not appear at those hearings. At the fourth court appearance, the City sought another continuance, but the court denied the motion and dismissed the charges against plaintiffs and the other four individuals.

The complaint in this action contains nine counts. In Count I, plaintiffs seek a declaration that the disorderly conduct ordinance is unconstitutional as well as an injunction prohibiting its enforcement. Plaintiffs also bring § 1983 claims for First Amendment retaliation (Count II); conspiracy (Count III); violation of due process in that the ordinance is impermissibly vague (Count IV); and false arrest (Count V). In Count VI, plaintiffs seek to hold the City liable for damages pursuant to Monell v. Department of Social Services, 436 U.S. 658 ...


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