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Vodak v. City of Chicago

February 27, 2009

KEVIN VODAK ET AL, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
CITY OF CHICAGO, FORMER SUPERINTENDENT TERRY G. HILLARD; CHIEF PHILIP CLINE; CHIEF JERRY ROBINSON, DEPUTY CHIEF TOM BYRNE, DEPUTY CHIEF RALPH CHICZEWSKI, COMMANDER JOHN KILLACKY, COMMANDER SAM CHRISTIAN, COMMANDER DAVID DOHERTY, COMMANDER MARIANNE PERRY, COMMANDER JOHN R. RISLEY, COMMANDER JOSEPH GRIFFIN, COMMANDER DANIEL DUGAN, COMMANDER CHARLES WILLIAMS, LIEUTENANT KEVIN RYAN, LIEUTENANT NEIL SULLIVAN, LIEUTENANT DAVE SOBSCYZK, ASSISTANT DEPUTY FRANK LIMON; FORMER ASSISTANT DEPUTY SUPERINTENDENT RON HUBERMAN, COUNSEL KAREN ROWAN, COUNSEL THOMAS EPACH, JR., OFFICER BARKER, OFFICER BILYJ, OFFICER M. BLACK, LIEUTENANT CARSON EARNEST, OFFICER L COLEMAN, OFFICER E. CORTEZ, OFFICER W. CLUCAS, OFFICER A. DAKURAS, OFFICER C. DECICCO, OFFICER G. GAMBOA, OFFICER E. GEDREKIS, OFFICER R. HAGEN, OFFICER L. HEISE, OFFICER D. HERRERA, OFFICER R. HUGHES, OFFICER HUNT, OFFICER K. JAROS, OFFICER JOHNSON, OFFICER A. KIZZIAH, OFFICER D. KOONIG, OFFICER T. LIEBER, OFFICER T. LOCONTE AND OFFICER K. MCCLEARN, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

On March 20, 2003, a large group of protestors gathered in Chicago's federal plaza to demonstrate their disapproval of the United States' military action in Iraq. The original group, numbered between five thousand and ten thousand, left the Federal Plaza and began to march northward. The protestors did not have a permit to assemble or to march. As the march proceeded, thousands more individuals joined the original group. Although the march proceeded on various streets at different times throughout the evening, the primary march proceeded north on Lake Shore Drive and approximately one to two thousand marchers eventually converged in the area of Chicago Avenue and Mies Van der Rohe Way. At some point, approximately 313 individuals were arrested within this area. They were charged with reckless conduct and transported to area police stations. Approximately 800 were detained in the area for a few hours. All of the cases were eventually dismissed.

As a result, two federal cases were filed against the Chicago Police Department and individual officers: one involving individual plaintiffs (Beal v. City of Chicago, 04 C 2039) and a class action (Vodak v. City of Chicago, 03 C 2463). Both cases were subsequently transferred to this Court's docket. On March 30, 2007, this Court granted in part and denied in part motions for summary judgment in Beal. On January 5, 2009, this Court consolidated the two cases for trial due to the similarity of the issues, facts and law and for the efficient adjudication of the matters. The Vodak Plaintiffs and the City Defendants cross-moved for summary judgment.

The Parties

The Class is represented by the following Plaintiffs: Sarah Bergstrand ("Bergstrand"), Prudence Browne ("Browne"), Robert Castillo ("Castillo"), Patrick Donnell ("Donnell"), Matthew Gaines ("Gaines"), Angela Garcia ("Garcia"), Kathleen Gruber ("Gruber"), Steven Hudosh ("Hudosh") Elizabeth Johnson ("Johnson"), Sophia Sieczowski ("Sieczowski") and Kevin Vodak ("Vodak"). Pl. 56.1 at ¶ 1.*fn1 These Plaintiffs represent a Class of people that was surrounded by Chicago Police Department Officers on March 20, 2003 on Chicago Avenue east of Michigan Avenue and west of Mies Van Der Rohe Way. Pl. 56.1 at ¶ 2. The class is divided into three subclasses. Id. at ¶ 3. Subclass A-1 (represented by Browne, Gaines, Garcia, Johnson and Sieczowski) consists of persons detained in the bounded area but not taken into custody. Id. Subclass A-2 (represented by Bergstrand, Castillo, Donnell and Vodak) consists of persons who were taken into police custody but released without charges. Id. Subclass A-3 (represented by Gruber and Hudosh) consists of persons taken into custody and charged with a criminal offense. Id. The Vodak action also includes Individual Plaintiffs who have elected not to join the class: Sharon Ambielli ("Ambielli"), John Pennycuff ("Pennycuff"), Daniel Pineda ("Pineda"), Aaron Robin ("Robin") and Brad Thomson ("Thomson"). Pl. 56.1 at ¶ 4. In addition to other claims, these individual Plaintiffs bring claims of violations of their Fourth Amendment rights subject to the same analysis as those of the class members.

Defendants are the City of Chicago and several Chicago Police Department members, including both command personnel and officers: Former Superintendent Terry G. Hillard ("Superintendent Hillard"); Former Police Chief Philip Cline ("Cline"); Chief Jerry Robinson ("Chief Robinson"), Deputy Chief Tom Byrne ("Deputy Chief Byrne"), Deputy Chief Ralph Chiczewski ("Deputy Chief Chiczewski"), Commander John Killacky ("Commander Killacky"), Commander Sam Christian ("Commander Christian"), Commander David Dougherty ("Commander Dougherty"), Commander Marienne Perry ("Commander Perry"), Commander John R. Risley ("Commander Risley")*fn2 , Commander Joseph Griffin ("Commander Griffin"), Commander Daniel Dugan ("Commander Dugan"), Commander Charles Williams ("Commander Williams"), Lieutenant Kevin Ryan ("Lieutenant Ryan"), Lieutenant Neil Sullivan ("Lieutenant Sullivan"), Lieutenant Dave Sobscyzk ("Lieutenant Sobscyzk"), Assistant Deputy Frank Limon ("Assistant Deputy Limon"), former Assistant Deputy Superintendent Ron Huberman ("Assistant Deputy Superintendent Huberman"), counsel Karen Rowan ("counsel Rowan"), counsel Thomas Epach, Jr. ("counsel Epach"), Officer Barker, Officer Bilyj, Officer M. Black ("Officer Black"), Lieutenant Carson Earnest ("Lieutenant Earnest"), Officer L. Coleman ("Officer Coleman"), Officer E. Cortez ("Officer Cortez"), Officer W. Clucas ("Officer Clucas"), Officer A. Dakuras ("Officer Dakuras"), Officer C. Decicco ("Officer Decicco"), Officer G. Gamboa ("Officer Gamboa"), Officer E. Gedrekis ("Officer Gedrekis"), Officer R. Hagen ("Officer Hagen"), Officer L. Heise ("Officer Heise"), Officer D. Herrera ("Officer Herrera"), Officer R. Hughes ("Officer Hughes"), Officer Hunt, Officer K. Jaros ("Officer Jaros"), Officer Johnson, Officer A. Kizziah ("Officer Kizziah"), Officer D. Koonig ("Officer Koonig"), Officer T. Lieber ("Officer Lieber"), Officer T. Loconte ("Officer Loconte"), and Officer K. McClearn ("Officer McClearn") (collectively the "Officer Defendants"). The Parties subsequently agreed to dismiss Officers Robinson, Christian, Dougherty, Sullivan, Limon, Perry and Hunt.

The Plaintiffs claim that they were falsely arrested and imprisoned in violation of the Federal Constitution (Count I) and Illinois Constitution (Count VII) as well as Illinois state law (Count VIII), that they were maliciously prosecuted (Count X), that the officers violated their First Amendment Rights (Count II), and that the officers conspired together to violate their rights (Count XI). The Individual Plaintiffs bring claims of Excessive Force (Count III), deliberate indifference to medical needs (Count IV), deprivation of property (Count V) and assault and battery (Count IX). In addition, Plaintiffs seek to hold the City liable under theories of municipal liability (Count VI) and respondeat superior (Counts XII-XIII). The City brings a Counterclaim against the Plaintiffs seeking damages for the additional costs of providing government services incurred as a result of Plaintiffs' violations of several municipal ordinances.

The parties now bring four Motions for Summary Judgment. The Defendant Chicago Police Department members bring a Motion for Summary Judgment on all of Class Plaintiffs' claims alleging that they are entitled to qualified immunity and therefore are entitled to summary judgment on Plaintiff's Fourth and First Amendment claims and also that Plaintiffs cannot set forth evidence to support their claims of civil conspiracy, false arrest, and malicious prosecution. Defendant City of Chicago brings a Motion for Summary Judgment on Plaintiffs' claims of municipal liability, claiming that any unlawful arrests are not pursuant to a municipal policy or custom and were not a result of decisions made by a policymaker. Plaintiffs bring a Motion for Summary Judgment on their Fourth Amendment claims, claiming that they have established as a matter of law that the Defendant Officers arrested them without probable cause, and a Motion for Summary Judgment on the City's Counterclaim, claiming that there is no evidence that the Plaintiffs violated or intentionally violated any law and that they did not proximately cause any damages the City may have suffered. For the reasons stated below, Defendant Chicago Police Department Officers' Motion for Summary Judgment is granted, Plaintiffs Motion for Summary Judgment on their Fourth Amendment claims is denied, the City's Motion for Summary Judgment is granted, and Plaintiffs' Motion for Summary Judgment on the City's Counterclaim is granted.

Plaintiffs' Motion to Strike

As an initial matter, Plaintiffs bring a Motion to Strike Defendant Officers' Rule 56.1 Statement of Facts in support of their Motion for Summary Judgment, to strike several statements of fact therein discussing civil disobedience training that took place prior to the demonstration at issue and to strike three exhibits submitted in the record: 1) a flyer proposing "Chez Daley's Direct Action Against the War;" 2) a transcript of Chicago Police Department radio transmissions; and 3) an account of the protest distributed on Chicago Indymedia - Webcast News. The Motion to Strike is granted in part and denied in part.

Plaintiffs argue that the Defendant Officers' Statement of Facts should be stricken because it violates Local Rule 56. Specifically, many supposed "statements" are lengthy paragraphs actually containing several statements of fact. Although this Court declines to strike the Officers' Statement of Facts as a whole, where more than one discrete issue was included within a paragraph, the Court strikes the surplus statements. See Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809-10 (7th Cir. 2005) ("a district court does not abuse its discretion when, in imposing a penalty for a litigant's non-compliance with Local Rule 56.1, the court chooses to ignore and not consider the additional facts that a litigant has proposed"); Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004) ("a district court is entitled to expect strict compliance with Rule 56.1").

Plaintiffs next argue that this Court should not consider various statements addressing training in or a history of practice of civil disobedience on the part of the Plaintiffs or organizations involved in the demonstration. To the extent that any one of the Officers knew or was aware of the Plaintiffs' prior practice of civil disruption or violence and it was taken into account when determining a course of action on the night of the march it is relevant and is considered by the Court.

Plaintiffs move to strike Defendant Officers' Exhibit 23, a flyer entitled "Chez Daley's Direct Action Against the War," arguing that Defendants cannot attribute the production of the leaflet to any Plaintiff or Class Member. Defendant Officers put forth, however, factual statements establishing that the leaflet was distributed both at meetings of organizations involved in the protest and at the rally in the Plaza. As such, the Court will consider the flyer as evidence of the tenor of the demonstration, which is relevant to the Court's consideration of the reasonableness of the officer's actions.

Plaintiffs move to strike Defendant Officers Exhibit 38, a transcript of Chicago Police Department radio transmissions made during the protest, arguing that the transcript does not adequately identify the speakers and that the communications made therein were not under oath. Defendant Officers provided a list of radio identification codes that allows identification of the speakers on the transcript and note that this list, along with the actual recordings, were produced to Plaintiffs. In addition, Defendants submit Commander Griffin's affidavit attesting to the accuracy of the recordings and the transcript. The Court finds that the Officers' submission provides adequate authentication of the transcript and thus denies Plaintiffs' Motion to Strike.

Lastly, Plaintiffs move to strike an account of the protest distributed on Chicago Indymedia Webcast News. The parties agree that no author of the posting has been identified. The Motion to Strike is granted as to this posting because the unidentified individual's account of the march is hearsay and irrelevant.

STATEMENT OF FACTS

Chicago's Ordinances Regulating Public Demonstrations

Chicago Municipal Code § 10-8-330 requires demonstrators to obtain a permit if they wish to march in the street. Off. 56.1 at ¶ 7. Chief Maurer assumes that a public demonstration will result in a march. Id. at ¶ 18. On occasion, Chicago Police Department command personnel have allowed demonstrators to march in the street without a permit. Pl. 56.1 at ¶¶ 16-17. In the past, when the Chicago Police Department has permitted marchers to march without a permit, they have used the "standard" route of Dearborn Street. Off. 56.1 at ¶ 31. According to Chief Cline, a person who marches where he is ordered to do so by police is not committing a crime. Pl. 56.1 at ¶ 21.

Regardless, both permitted and non-permitted marches cause inconvenience and obstruct traffic. Id. at ¶ 20. The City, for example, seeks to hold Plaintiffs liable for: 1) failure to obtain a permit to march in violation of Section 10-8-330(b) of the municipal code; 2) committing disorderly conduct by acting in an unreasonable manner such as to alarm or disturb another and promote a breach of the peace or as to provoke or aid in making a breach of the peace; 3) hindering or disrupting traffic on the streets of downtown Chicago in violation of Section 9-80-180 of the municipal code; 4) committing state public nuisance violations by obstructing or encroaching on public highways, private ways, streets and alleys in violation of 720 ILCS 5/47-5(5); 5) committing reckless conduct by obstructing public streets and highways in a reckless manner and by endangering the bodily safety of motorists and pedestrians in violation of 720 ILCS 5/12-5(a); 7) crossing roadways at points other than those within marked crosswalks in violation of Section 9-60-050 of the municipal code; 7) failing to yield to vehicles in roadways when crossing outside of the marked crosswalks in violation of Section 9-60-050(a) of the Municipal Code; and 8) obstructing the passage of vehicles crossing the Chicago River on Lake Shore Drive in violation of Municipal Ordinance 10-40-55. City Resp. 56.1 at ¶ 2.

The Plaintiffs/Counterdefendants admit that no person obtained a permit to assemble or to march on March 20, 2003, and likewise, no person obtained a permit to authorize closure of Lake Shore Drive. Id. at ¶¶ 4-5.

Preparation for the Demonstration

The Chicago Coalition Against War and Racism ("CCAWR") planned the demonstration against the war in Iraq that took place in Chicago on March 20, 2003. Off. 56.1 at ¶ 3. CCAWR planned the demonstration several months in advance and wanted it to begin in the Federal Plaza ("Plaza") the day following the start of U.S. bombing in Iraq. Id. at ¶¶ 4-5. The organizers discussed obtaining a permit and Organizer Romero believed that Organizer Andy Thayer ("Thayer") looked into getting a permit but could not get one because they did not know the specific date for which they would need the permit. Id. at ¶¶ 7-8.

Prior to the march, CCAWR held planning meetings during which protesters Beckstrom and Nicotera provided civil disobedience training. Id. at ¶ 19, 21. An undercover Chicago Police Department officer present at these meetings heard some organizers discussing a plan to be disruptive on Michigan Avenue and for groups to break off from the main group in order to divert police. Id. at ¶ 11. In addition, he heard CCAWR members discuss various property crimes, obstructive conduct and outrageous conduct such as breaking windows. Id. at ¶ 23.

A flyer entitled Welcome to Chez Daley's Direct Action Against the War was distributed at a coalition meeting prior to the march and to marchers on the Federal Plaza on the day of the march. Id. at 17. The flyer targeted Lake Shore Drive, Michigan Avenue, Chicago Avenue, Oak Street and several businesses and foreign consulates on Michigan Avenue. Id. at ¶ 17. In addition, it encouraged "screwing up traffic" and "turning off their profit spigots." Id. at 33. The Chicago Police Department was aware of the flyer prior to the demonstration. Id. at ¶ 32. In addition, a leaflet advertising the demonstration and encouraging civil disobedience was distributed to some members of the demonstration. Id. at ¶ 20.

Chicago Police Department Command Personnel planned and were prepared for the march on the day after the United States began to bomb Iraq, which turned out to be March 20, 2003. Pl. 56.1 at ¶¶ 23-24. They anticipated that there would be in excess of 5000 demonstrators. Id. at ¶ 24. Command Personnel did not discuss whether the group had a permit to march or whether they should order them to disperse from the Federal Plaza because they did not have a permit to gather. Id. at ¶ 28.

Then-Superintendent Hillard directed the police planning for the demonstration. Off. 56.1 at ¶ 29. Commander Radke, the Deputy Chief of Special Functions at the time, met with command staff to determine the number of officers needed to respond to potential problems. Id. at ¶ 30. According to Commander Radke and Lieutenant Neil Sullivan's plan, First District Police were assigned to the Plaza, while Gang and Tactical units were on standby. Id. at ¶ 31- 32. The Chicago Police Department was prepared for the possibility of multiple arrests. Id. at ¶ 34.

The Demonstration Begins in the Federal Plaza

The Federal Plaza filled with somewhere between 5,000 and 10,000 demonstrators by 5 p.m. on March 20, 2003. Pl. 56.1 at ¶¶ 26-27. Superintendent Hillard warned the demonstrators before the rally that they would be prosecuted for any property damage. Id. at ¶ 31. At the Plaza, the protest leaders used a public address system to address the crowd, but they did not announce a march route. Off. 56.1 at ¶ 35. Although Deputy Chief Byrne knew that the organizers had not obtained a permit, he was prepared to facilitate a march. Id. at ¶ 37. The demonstrators and police did not discuss the lack of a permit or an order to disperse at this time. Pl. 56.1 at ¶ 28.

As the rally continued, Commander Risley spoke with Thayer, a march leader, and others about a potential march route, but they did not provide him with details. Off. 56.1 at ¶¶ 36, 38. As a result, Commander Risley decided to shut down traffic. Id. at ¶ 40. Deputy Chief Byrne similarly attempted to clear squad cars from State Street so that a march could proceed. Pl. 56.1 at ¶ 30. Command Personnel believed that the organizers had planned a march route in advance and were attempting to evade police. Thayer knew he wanted to march on Lake Shore Drive but not how he wanted to get there. Off. 56.1 at ¶ 43 He stated that "our goal all along was to take Lake Shore Drive." Id.

At approximately 5:30 p.m., Deputy Chief Byrne told Commander Griffin to take his officers to the Leo Burnett Building, located at Dearborn Street and Wacker Drive, because "it looked like this group was going to march down Dearborn." Id. at ¶ 41. Past demonstrations had marched north on Dearborn to Wacker and then west on Wacker. Id. Before the marchers stepped off the Plaza, however, Thayer told Commander Risley that they wanted to go east on Adams. Id. at ¶ 42; Pl. 56.1 at ¶ 29. As such, Lieutenant Oliver positioned a mounted unit north of Adams on Dearborn to prevent the marchers from going north. Off. 56.1 at ¶ 42. Commander Risley ordered that traffic be stopped at Adams so that marchers could go east. Id. at ¶ 45. Chicago Police Department officers did not order the marchers to leave the area nor did they prevent them from leaving the Plaza. Pl. 56.1 at ¶¶ 29, 31-33.

The March Leaves the Plaza

The marchers proceeded from the Federal Plaza in two groups - one proceeding east on Jackson and the other east on Adams. Id. at ¶ 34. Assistant Deputy Superintendent Huberman heard radio communications reflecting surprise that the marchers had left the Plaza in two groups. Off. 56.1 at ¶ 46. Thayer later boasted that "The police were caught flatfooted" by the two groups of marchers. Id. at ¶ 47. Throughout the march, the organizers communicated with each other by radio. Id. at ¶ 47.

Lieutenant Oliver set up a mounted unit to block marchers from proceeding east on Adams. Id. at ¶ 52. As a result, the marchers then turned north on State Street, and Lieutenant Oliver positioned his unit at Monroe and State in order to stop their progress north. Id. at ¶ 52; Pl. 56.1 at ¶ 40. The marchers stopped at State and Monroe became unruly and began screaming, hitting windows with sticks and chanting "Lake Shore Drive!" Off. 56.1 at ¶ 55. The horses in the line became jittery and two were eventually removed from duty due to the actions of the surging protesters. Id. As a large crowd built at State and Monroe, Commander Radke gestured for Lieutenant Oliver's mounted unit to move aside. Id. at ¶ 54-55; Pl. 56.1 at ¶ 41. Eventually, the portion of the marchers proceeding on Jackson met with a police line and turned north on Michigan until they met up with the Adams Street demonstrators. Off. 56.1 at ¶ 49.

Chicago Police Department officers followed alongside the marchers, walked in front of the crowd and monitored the march. Pl. 56.1 at ¶ 35. They proceeded in a single-file line on the side of the march as it proceeded through the streets in order to prevent marchers from walking on the sidewalk. Id. at ¶ 37. The police directed traffic and helped the demonstrators move in an orderly fashion. Id. at ¶¶ 230-31.

The March Enters Lake Shore Drive

Commander Risley eventually allowed the marchers to proceed northbound onto Lake Shore Drive and therefore made arrangements to stop traffic on Lake Shore Drive. Off. 56.1 at ¶ 57. He specifically directed a number of marchers to march onto Lake Shore Drive. Pl. 56.1 at ¶¶ 42-43. Similarly, Commander Griffin told an unknown individual on Lake Shore Drive who identified himself as the demonstrators' leader that the demonstrators should be told that they could march on Lake Shore Drive. Id. at ¶ 52. Command Personnel stood at the intersection of Monroe and Lake Shore Drive as the demonstrators passed. Id. at ¶¶ 47-48. The police eventually closed northbound Lake Shore Drive entirely. Id. at ¶ 54. As the march proceeded north, southbound traffic on Lake Shore Drive was crawling while northbound traffic was completely stopped. Off. 56.1 at ¶ 64. Commander Dougherty and counsel Rowan directed and rerouted traffic on lower Wacker Drive due to safety concerns arising from the protestors' presence on Lake Shore Drive. Id. at ¶ 67.

While on Lake Shore Drive, some protestors stood on the fronts or backs of cars, banged on cars and yelled at occupants. Id. at ¶ 70. Other protestors did not engage in disruptive conduct. Id. at ¶ 61. Many protestors crossed the cement median to enter the Southbound lanes. Id. at ¶ 63. The protestors that crossed onto southbound Lake Shore Drive pounded on cars, yelled and frightened a motorist and engaged in disruptive behavior including banging on doors and windows of cars and breaking off antennae. Id. at ¶ 65-66. Twenty or thirty protestors shook or jumped on cars and at least one verbal confrontation occurred between a protester and a motorist. Id. at ¶¶ 67-69.

Commander Griffin periodically slowed down the demonstration as it proceeded north on Lake Shore Drive in order to keep the marchers together. Pl. 56.1 at ¶ 51. He instructed Lieutenant Ryan to move the demonstrators who began marching in the southbound lanes back to the northbound lanes. Some complied with Lieutenant Ryan's request while others refused and ran around the police. Off. 56.1 at ¶ 72. The police stopped the crowd and formed a skirmish line around Grand Avenue, where it would be difficult for protesters to cross into the southbound Lanes. Id. at 72-73. Some protestors attempted to push past the officers; some screamed and threw bottles and rocks at police. Id. Commander Griffin asked an unidentified individual who identified himself as a march leader to help calm the crowd. Id. at ¶ 74.

The March Approaches Oak Street

As the march proceeded north on Lake Shore Drive, Commander Griffin had a conversation with a self-identified (but unidentified) march leader wherein the leader said that he wanted to exit Lake Shore Drive at North Avenue and that he would help get all the protestors to North Avenue. Protestors Thayer and Beckstom stated that they did not have such a conversation. Id. at ¶¶ 76-79.

As the crowd approached Oak Street, the self-identified leader who had spoken with Commander Griffin disappeared back into the crowd. Commander Griffin got the impression that something was wrong and radioed for support at Oak and Michigan. Id. at ¶ 80. Thayer told the people in front of the march that they could exit Lake Shore Drive at Oak Street and told the other organizers via two-way radio to exit Lake Shore Drive at Oak Street. Id. at ¶¶ 81-82. Leaders then told their followers: "Let's go down Michigan Avenue." Id. The marchers did not tell police that they would turn onto Oak Street. Id. at ¶ 82.

Police tried to stop the marchers by instructing them to go to North Avenue. Off. 56.1 at ¶ 84. Some complied; most did not. Id. Police officers ran to the intersection of Oak and Michigan and formed a skirmish line. Id. at ¶¶ 85-86. Some of the protestors were "very confrontational" with the skirmish line and threatened to "storm" Michigan Avenue. Id. at ¶¶ 87-88. Protestors jumped up and down on a squad car, tried to set it on fire and wrote on its windows with markers. Id. at ¶ 90. Deputy Chief Byrne told marcher Romero to disperse and told him that the police would not let the protestors onto Michigan. Id. at ¶ 91.

Some protestors believed that the police had guided them onto Oak. Vodak observed a line of police officers blocking progress on Lake Shore Drive at Oak Street as the marchers turned down Oak Street. Pl. 56.1 at ¶ 272. Hudosh saw police direct marchers west on Oak. Id. at ¶ 303. Ambielli, similarly, simply followed all the marchers turning onto Oak from Lake Shore Drive. Id. at ¶ 318. Thompson could not see the front of the march as it exited at Oak and thus just followed the crowd. Id. at ¶ 366.

Command Personnel met at Oak and Michigan and discussed where the marchers should be allowed to proceed from there. Id. at ¶ 59. They decided to speak to the leaders to see what the demonstrators wanted. Off. 56.1 at ¶ 92. Commanders Griffin and Risley met with Thayer and others, and Thayer told the them that the protesters wanted to march down Michigan. Id. Risley told Thayer that they could not march down Michigan Avenue, but rather they needed to go back down Lake Shore Drive, disperse or be arrested. Id. at ¶¶ 93, 96. Thayer then yelled to the crowd to "turn around and go that way. They won't let us go down Michigan." Id. at ¶ 98. In addition, Chief Maurer heard organizers announce to "go back the way you came" through voice amplification devices and thought the message was passed backwards through the crowd. Id. Protesters Garcia and Galvin heard others in the crowd saying to go back on Lake Shore Drive. Id. at ¶ 100. Protester Newberger heard other protesters announcing to go back the way they came on bullhorns. Id. at ¶¶ 99, 101. Eventually Protester Wolf made an announcement on a PA system to go back down Inner Lake Shore Drive. Id. Pineda heard an announcement that if he remained at Oak and Michigan he would be arrested. Id. at ¶ 103.

Although Plaintiffs concede that Command Personnel's decision that they should return to the Plaza the way they came was communicated, they claim it was communicated in a conversational tone to five or six individuals and that any directions were not heard by the entire crowd. Pl. 56.1 at ¶¶ 63, 65. One protester heard a "rumor through the crowd" that the police wanted them to go back to the Federal Plaza via Inner Lake Shore Drive. Off. 56.1 at ¶ 100. In addition, the demonstrators were not told a specific route to take to leave the area. Pl. 56.1 at ¶ 64. Many of the Plaintiffs did not hear any directions and simply followed the crowd when it turned to go south on Inner Lake Shore Drive. Id. at ¶¶ 163 198-99, 235, 245, 274-76, 304, 319-20, 356-57, 368.

The March Returns Down Inner Lake Shore Drive

Rather than return down Inner Lake Shore Drive, some of the protesters left through the nearby underground pedestrian tunnel. Off. 56.1 at ¶104. Some people were allowed to leave in very small groups down Michigan Avenue. Id. The rest of the marchers headed east down Inner Lake Shore Drive where Chief Cline told mounted officers to flank the crowd. Pl. 56.1 at ¶ 68.

As the march proceeded south on Inner Lake Shore Drive, Commander Griffin asked the mounted unit to prevent marchers from going west on the side streets off of the Inner Drive such as Walton, Pearson, Delaware and Chestnut. Off. 56.1 at ¶ 106; Pl. 56.1 at ¶ 71. Commander Dugan's unit followed the march down Inner Lake Shore Drive at a considerable distance. Off. 56.1 at ¶ 117. He was told they had agreed to go down Inner Lake Shore Drive and was "following up" to make sure they did so. Id.

Some groups of protesters attempted to turn west from Inner Lake Shore Drive in order to proceed westbound on those streets. See, e.g., Id. at ¶ 106, 111, 113. Commander Griffin led officers east on Walton Street to stop at least one such group of about 50 males in their late teens to early twenties and returned to Inner Lake Shore Drive to find a group of about 150 that he also thought was attempting to "break out." Id. at ¶ 107. Another group tried to run down Delaware, and in response, Commander Griffin again told the marchers that they could not go to Michigan Avenue but rather had to march down Lake Shore Drive or be arrested. Id. at ¶ 110.

The March Reaches Chicago Avenue

The Defendant Officers attempted to block protesters at each successive side street when the march got ahead of them and broke westbound on Chicago Avenue toward Michigan Avenue. See Id. at ¶ 124. Commander Griffin yelled at the marchers not to go that way and eventually ran toward Michigan Avenue. Pl. 56.1 at ¶ 72. Lieutenant Ryan and other officers tried to stop the marchers on Chicago Avenue but were ignored. Off. 56.1 at ¶¶ 126-127.

While some protestors broke from the main group and turned west down Chicago Avenue, many continued to proceed down Inner Lake Shore Drive. Id. at ¶¶ 118-119. One protestor estimates that while there were eight to ten thousand protesters at Oak Street and Michigan Avenue, there were only about one to two thousand at Chicago Avenue and Michigan Avenue. Id. at ¶ 121.

Some demonstrators thought that the police had led them onto Chicago Avenue and some just followed the crowd without knowledge of where the police directed them. Bergstrand simply followed the crowd as did Pennycuff. Pl. 56.1 at ¶¶ 236, 337. Vodak saw police on horses leading the crowd down Chicago Avenue. Id. at ¶¶ 277-78. Gruber also thought the police were directing the crowd westbound on Chicago Avenue because of the position of the horses at the intersection of Chicago and Lake Shore Drive. Id. at ¶¶ 287, 289. Pineda thought police were blocking Lake Shore Drive and directing people onto Chicago Avenue. Id. at ¶ 368. Thomson said that the police did not indicate to demonstrators what they should or should not be doing. Id. at ¶ 371. Johnson saw mounted police at the intersection with Chicago Avenue who looked like they were guiding the march onto Chicago; so Johnson proceeded onto Chicago. Id. at ¶¶ 201-02.

The Chicago Police Department does not allow large marches on Michigan Avenue from the Chicago River to Oak Street because of the disruption that results. Id at ¶ 97. Chief Cline ordered officers to form a line at Chicago and Michigan to prevent marchers from going West of Chicago or north or south on Michigan. Id. at ¶ 75. Police set up a skirmish line across Chicago Avenue that stopped the marchers east of Michigan Avenue. Id. at ¶¶ 76-78. Commander Griffin ordered Commander Williams, an off-duty officer who came to the scene with others to help, to also block the ...


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