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Stephen Johnson v. the City of Rock Island

September 28, 2012

STEPHEN JOHNSON, PLAINTIFF,
v.
THE CITY OF ROCK ISLAND, ILLINOIS, A MUNICIPAL CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Sara Darrow Sara Darrow United States District Judge

E-FILED

Friday, 28 September, 2012 04:11:02 PM

Clerk, U.S. District Court, ILCD

ORDER

Plaintiff Stephen Johnson brings this action against the City of Rock Island in response to what he claims were violations of his First Amendment rights by Rock Island police officers. Johnson alleges that he was threatened with arrest for disorderly conduct in order to unconstitutionally chill his protected speech. Johnson twice moved for a preliminary injunction, based on incidents arising on June 11, 2011, and April 26, 2012. (See ECF Nos. 12, 19.) In these motions, Johnson challenges local Rock Island Ordinance No. 10-21 as facially unconstitutional and argues that the alleged application of Ordinance No. 10-21 and/or Illinois Disorderly Conduct statute (720 ILCS 5/26-1(a)(1)) against his activities of "preaching" and "distributing literature" was unconstitutional.

The Court held a hearing on the motion regarding the June 11, 2011, incident. Having considered the motions, the evidence filed with the Court, and the testimony of witnesses, the Court finds that Johnson lacks standing to challenge the constitutionality of the local ordinance and that he lacks standing to seek an injunction regarding his literature distribution activity. Accordingly, the Court DENIES Johnson's Second Amended Motion for a Preliminary Injunction (ECF No. 12) and those aspects of Johnson's Motion for a Temporary Restraining Order (ECF No. 19) that challenge the local ordinance or seek an injunction regarding literature distribution and DISMISSES those claims from this case.*fn1 The Court DEFERS RULING on Johnson's allegation that Defendant's alleged application of the Illinois Disorderly Conduct statute against him was unconstitutional until after the hearing currently scheduled for November 8, 2012.

I.BACKGROUND

On the afternoon of June 11, 2011, Johnson went to downtown Rock Island, Illinois and "handed out Gospel tracts and began to preach the Gospel." (Compl. ¶¶ 6-10.) Johnson preached for approximately 45 minutes on a street corner near the entrance to a summer festival that was scheduled to start later that afternoon. (Hr'g Tr. 50:6-8, ECF No. 21.) Johnson testified that he preached with a "raised voice" that he projected loudly in order to get people's attention, but did not use any amplification. (Hr'g Tr. 16:9-11, 47:1-4.) He said that while he was preaching he was approached by some private citizens that told him that he should stop. (Hr'g Tr. 14:25-15:5, 50:14-51:6.)

After he finished preaching, Johnson was approached by two Rock Island police officers. (Compl. ¶¶ 10-11; Hr'g Tr. 20:9-21:4.) The officers were dispatched to Johnson's location after the police department received a telephone call of a disturbance in the area. (Hr'g Tr. 94:4-6, 100:4-8.) Johnson and one of the officers, Officer Jonathan Cary, engaged in a conversation. Officer Cary informed Johnson that they were investigating a disturbance and asked Johnson what he was doing. (Hr'g Tr. 93:25-94:6, 102:25-103:8.) Johnson told Cary that he was there "to preach the Gospel" and to hand out literature. (Hr'g Tr. 27:14-16, 94:7-18.)

After the initial exchange, Johnson and Officer Cary's testimony regarding the remainder of their conversation is somewhat divergent. However, it is clear that Officer Cary never saw Johnson preaching and never affirmatively stopped him from doing so. (Hr'g Tr. 20:10-14, 50:2-51:9, 93:12-24.) Indeed, Johnson admitted that he had already finished preaching at the time they had their conversation. (Hr'g Tr. 20:10-14, 50:2-51:9.) Also, there is no dispute that Johnson quizzed Officer Cary on what Johnson could and could not do in connection with his preaching activities. (See, e.g., Hr'g Tr. 31:10 ("and I kept pressing him what that means").) In response, Officer Cary informed Johnson that he was entitled to engage in his preaching activities so long as he did not do so in a manner that would amount to disorderly conduct.

A. Facts Related to Distributing Literature

Officer Cary never saw Johnson distributing religious literature, though Johnson informed Officer Cary that he had previously done so. (Hr'g Tr. 16:12-21, 41:21-25; 94:7-15.) Both Officer Cary and Johnson agree that Officer Cary conveyed to Johnson that it was okay for Johnson to distribute literature. (Hr'g Tr. 30:20-23, 96:17-24.)

B. Facts Related to Rock Island Ordinance No. 10-21

Officer Cary engaged in a hypothetical conversation with Johnson related to the metes-and-bounds of acceptable conduct. The discrepancies between Johnson's and Officer Cary's testimony that are material to this Order relate to the actual law that Officer Cary was relying on when he was answering Johnson's questions about what he could and could not do. For his part, Johnson contends that Officer Cary told him that he could not "raise his voice," "offend anyone," or "disturb anybody." (Hr'g Tr. 29:14-20.) Johnson testified that the last thing Officer Cary said "over and over and over again is I could not disturb-say anything that would disturb anybody in any way." (Hr'g Tr. 29:18-20.) Johnson then contends that Officer Cary informed him that he was relying on a "city ordinance" that prohibits disturbing the peace, but that Officer Cary refused to identify the ordinance with any specificity. (Hr'g Tr. 29:23-30:1.) When Johnson asked Officer Cary ...


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