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Thayer v. Chiczewski

March 31, 2010

ANDY THAYER, PLAINTIFF,
v.
RALPH CHICZEWSKI, ET AL., DEFENDANTS. AND BRADFORD LYTTLE, PLAINTIFF,
v.
JOHN KILLACKEY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge John W. Darrah

MEMORANDUM OPINION AND ORDER

Plaintiffs Andy Thayer and Bradford Lyttle filed separate lawsuits against the City of Chicago and various officers of the Chicago Police Department ("CPD") following their arrests at a March 19, 2006, anti-Iraq war event. Before the Court is Defendants' motion for summary judgment on both complaints.

UNDISPUTED FACTS

Thayer is a well-known Chicago activist who has had a leading role in organizing anti-Iraq war protests since 2003. (Pls.' 56.1(b)(3) at ¶ 1.) Thayer is a leader of the Chicago Coalition Against War and Racism ("CCAWR"). (Id. ¶ 2.) Lyttle is an 81-year-old Chicago resident who has been active in anti-Iraq war protests. (Id. ¶ 8; Defs.' 56.1(a)(3) at ¶ 3.)

Defendants Ralph Chiczewski, John Killackey, Jessica Jones and Eugene Shields were officers of the CPD. (Defs.' 56.1(a)(3) at ¶¶ 2, 4.) On March 15, 2005, Chiczewski and Killackey were Deputy Chiefs of the Central Control Group and Area 1 Patrol, respectively. Jones and Shields were assigned to a tactical team in District 23. (Id. at ¶¶ 2, 4.)

On January 3, 2005, Thayer, on behalf of CCAWR, applied for a permit for 2,000 to 4,000 people to assemble on Saturday, March 19, 2005, at the corner of Oak Street and Michigan Avenue in Chicago and to parade down Michigan Avenue and then on other streets to reach Federal Plaza in downtown Chicago. (Id. at ¶ 29.) On January 7, 2005, the City of Chicago ("the City") denied Thayer's application but offered an alternative assembly point at Washington Square Park and a march down Clark Street to Federal Plaza. (Id. ¶¶ 30, 31). This assembly point was three blocks west and one block south of Thayer's desired starting point at Oak and Michigan. (Id. ¶ 31.) Thayer and CCAWR appealed the denial of the application to the Mayor's License Commission, which, after a two-day hearing, affirmed the denial on February 4, 2005. (Id. ¶¶ 32, 33.) Thayer and CCAWR filed suit in federal court on February 22, 2005, seeking a preliminary injunction to allow the March 19, 2005 parade. (Id. ¶ 34.) The presiding judge, Judge Hibbler, held a preliminary injunction hearing on March 9 and 11, 2005 and, at the conclusion of Plaintiff's evidence on March 11, 2005, granted the City's Rule 52(c) motion for judgment on partial findings, finding, inter alia, that the City did not violate the plaintiffs' first amendment rights. (Id. ¶¶ 35, 36.)

After Judge Hibbler denied the motion for a preliminary injunction, the City renewed its offer of an alternative assembly point. (Id. ¶ 44.) On March 14, 2005, the CPD sent a letter to Thayer, stating that while Thayer had not accepted the City's offer of an alternative parade route, the City wished to accommodate marches by allowing assembly at Washington Square Park and a parade on Clark Street to Federal Plaza. (Id. ¶ 44.) In the week prior to March 19, 2005, the City posted a notice on the CPD's website stating that no permit had been granted for assembly at Oak and Michigan or for the march down Michigan Avenue. (Id. ¶ 45.) The posting contained the offering of the alternative assembly point at Washington Square Park. (Id. ¶ 45.)

Up to Friday, March 18, 2005, Thayer and CCAWR, in internet postings and fliers, called for assembly at Oak and Michigan on March 19, 2005. (Id. ¶ 45.) CCAWR distributed a flyer headlined "Please circulate widely" and an email captioned "Please Forward Widely," both stating "Lack of Permit Won't Stop Anti-War Protest." (Id. ¶ 47.) CCAWR's website continued to list Oak and Michigan for the assembly point of the march. (Id. ¶ 47.) The materials noted that arrests were possible since a permit had not been obtained. (Id. ¶ 47.) A media alert prepared in part by Thayer in the week before March 19, 2005, called the assembly at Oak and Michigan "an informational rally" and a "press conference." (Id. ¶ 48.)

On the morning of March 19, 2005, Thayer attended a related event in front of the Cardinal's Mansion. (Id. ¶ 50.) Chiczewski, who was also present at the event and who knows Thayer from other demonstrations, told Thayer and the assembled protesters that Washington Square Park could be used as an assembly point for the planned anti-war parade. (Id. ¶ 50.) Chiczewski also warned Thayer about going through with the planned gathering at Oak and Michigan.*fn1 (Id. ¶ 50; Pls.' 56.1(b)(3) at ¶ 22.)

Killackey, who was in overall command of the officers at Oak and Michigan on March 19, 2005, had about 200 officers under his command. (Pls.' 56.1(b)(3) at ¶ 20.) As protesters assembled at Oak and Michigan on the morning of March 19, 2005, Killackey approached them and explained there was a place set aside for them at Washington Square Park. (Defs.' 56.1(a)(3) at ¶ 51.) The CPD posted signs at Oak and Michigan explaining the lack of a permit for an assembly and march from Oak and Michigan and noting the alternative assembly point at Washington Square Park. (Id. ¶ 52.) The CPD also handed out fliers to the crowd gathering at Oak and Michigan containing the same information and also warning of the possibility of arrest. (Id. ¶ 53.)

By noon, the crowd at Oak and Michigan had grown.*fn2 (Id. ¶ 57.) At 11:55 a.m., 11:58 a.m. and 12:02 p.m., Killackey read a "dispersal order"*fn3 to the crowd over a bullhorn. (Id. ¶ 62.) Killackey gave other warnings and instructions to disperse over the bullhorn, such as, "If you do not leave now, you will be arrested," "Alright, let's move out," "Let's go" and "Time to move; time to move." (Id. ¶ 63.)

Thayer arrived at the corner of Oak and Michigan by cab at noon on March 19, 2005. (Id. ¶ 64.) Thayer was on the corner of Oak and Michigan when Killackey read the dispersal order for the third time and when Killackey gave his subsequent warnings and instructions. (Id. ¶ 65.) After Killackey read the dispersal order for the third time, Bill Massey spoke over a loudspeaker that Thayer was holding. (Id. ¶ 66.) During Massey's speech, the crowd that had gathered at Oak and Michigan began to move west on Oak Street towards Washington Square Park. (Id. ¶ 66.) Killackey, on his bullhorn, told the crowd, "Time to move; time to move." (Id. ¶ 66.)

After Massey spoke, Thayer began addressing the crowd over the loudspeaker. (Id. ¶ 67.) As Thayer was speaking, the crowd continued to move west, and a line of police officers behind the crowd approached the area where Thayer was standing. (Id. ¶ 67.) Chiczewski saw Thayer addressing the crowd on the loudspeaker and moved toward him through the crowd. (Id. ¶ 68.) When Chiczewski reached Thayer, he placed Thayer under arrest. (Id. ¶ 70.)

After Thayer was arrested, the Reverend Paul Jakes took the loudspeaker Thayer had been holding and addressed the crowd. (Id. ¶ 73.) A police officer asked which direction Jakes intended to go, and Jakes indicated that he would go west on Oak Street. (Id. ¶ 73.) The crowd then began to disperse. (Id. ¶ 74.)

Lyttle arrived at the corner of Oak and Michigan around 11:30 a.m. on March 19, 2005. (Id. ¶ 77.) After Killackey read the dispersal order for the third time, Lyttle remained standing within a few feet of Thayer, holding a sign on a stick while Thayer spoke. (Id. ¶ 79.) As Thayer was arrested and led to a police vehicle parked on Michigan Avenue, Lyttle also moved towards Michigan Avenue until he was stopped by a line of police. (Id. ¶ 80.) Killackey, after clearing the crowd west on Oak Street, returned to the police line along Michigan Avenue. (Id. ¶ 81.) Killackey ordered the officers to move the crowd west, telling them, "If they don't move, arrest them." (Id. ¶ 81.) The crowd slowly moved west, but Lyttle remained standing in place until he was eventually surrounded by the police as the police moved west with the crowd. (Id. ¶ 82.) Killackey ordered Shields to arrest Lyttle. (Id. ¶ 84.) At the time of his arrest, Lyttle was the only person standing among the police officers near Michigan Avenue and was attempting to march down Michigan Avenue. (Id. ¶ 85.) Other protesters had moved west towards Washington Square Park. (Id. ¶ 85.)

Shields did not encounter Lyttle until Killackey ordered Shields to arrest him. (Id. ¶ 88.) Lyttle was placed in custody by Shields alone. (Id. ¶ 89.) Jones did not see Lyttle until he was in the custody of Shields and being led to a police vehicle. (Id. ¶ 89.) Jones did not make any arrests, witness any arrests or assist with any arrests on March 19, 2005.*fn4 (Id. ¶ 89.)

Thayer was charged with disorderly conduct and resisting arrest and was issued a civil citation for conducting a parade without a permit. (Id. ¶ 72.) A jury trial was held, and Thayer was found guilty of disorderly conduct and resisting arrest. (Id. ¶ 94.) Thayer's post-trial motion for verdict JNOV, arguing that there was no probable cause for his arrest, was denied by the court. (Id. ...


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