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Price v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

January 4, 2017

VERONICA PRICE, et al. Plaintiffs,
v.
THE CITY OF CHICAGO, et. al. Defendants.

          MEMORANDUM OPINION AND ORDER

          AMY J. ST. EVE, District Court Judge:

         Defendants the City of Chicago (the “City”), Rahm Emmanuel in his official capacity as the Mayor of the City of Chicago, Rebekah Scheinfeld in her official capacity as Commissioner of Transportation for the City of Chicago, and Eddie T. Johnson in his official capacity as the Superintendent of the Chicago Police Department (collectively, “Defendants”) move to dismiss Plaintiffs Veronica Price, David Bergquist, Ana Scheidler, Anna Marie Scinto Mesia, the Pro-Life Action League, and The Live Pro-Life Group's (collectively, “Plaintiffs”) complaint under Federal Rule of Civil Procedure 12(b)(6). (R. 16.) For the following reasons, the Court grants in part and denies in part Defendants' motion.

         BACKGROUND[1]

         I. Factual Allegations

         This case centers on the City of Chicago's Disorderly Conduct Ordinance (the “Ordinance”), which was enacted in October 2009 and provides that a person commits disorderly conduct when he:

knowingly approaches another person within eight feet of such person, unless such other person consents, for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person in the public way within a radius of 50 feet from any entrance door to a hospital, medical clinic or healthcare facility.

         Municipal Code of Chicago (“MCC”) § 8-4-010(j)(1); 2 Journal of the Proceedings of the City Council of the City of Chicago, Illinois, Oct. 7, 2009, 72711-12. The Ordinance is modeled on and nearly identical to a Colorado law upheld as constitutional in Hill v. Colorado, 530 U.S. 703 (2000). The only material difference between the two laws is the size of the area within which the eight-foot “bubble zone” applies: the Ordinance's restrictions apply inside of a 50-foot radius, while the Colorado statute's restrictions applied within a 100-foot radius. Compare MCC § 8-4-010(j)(1), with Hill, 530 U.S. at 707 n.1 (quoting Colo. Rev. Stat. § 18-9-122(3)).

         Plaintiffs are citizens and organizations “who peacefully exercise their First Amendment rights on the public ways near abortion clinics in the City of Chicago by reaching out to women who are approaching the clinics for the purpose of securing abortion in order to share alternatives and inform the women of the dangers inherent in abortion.” (R. 1, Compl., at ¶ 4.) They “counsel, pray, display signs, [and] distribute literature . . . on the public sidewalks and rights of way outside abortion clinics and elsewhere on the public ways in the City of Chicago.” (Id. at ¶ 19.) Particularly relevant to this case is the practice of “sidewalk counsel[ing], ” in which Plaintiffs “attempt to engage women approaching the abortion clinics in a one-on-one conversation in a calm, intimate manner in order to offer information about the dangers involved in abortion and to offer alternatives to abortion and help in pursuing those alternatives.” (Id. at ¶ 20.) Plaintiffs allege that their communication is most effective when coming into close contact with women, which allows Plaintiffs to hand out literature and avoid shouting. (Id. at ¶¶ 21-25.)

         Plaintiffs allege that officers from the Chicago Police Department (“CPD”) have enforced the Ordinance against Plaintiffs when it does not apply, preventing the exercise of their First Amendment rights. (Id. at ¶ 31.) Plaintiffs detail the following incidents in their complaint:

• On November 19, 2009, near the Family Planning Associates abortion clinic known as the Albany Medical Center (“Albany”)-which according to Plaintiffs is now closed-CPD Officer Erbacci told Ana Scheidler that the Ordinance “imposed an absolute buffer zone prohibiting any pro-life counselor from coming within 50 feet of a clinic entrance door.” (Id. at ¶¶ 5, 31 (emphasis in original).) He threatened to cite anyone who came within fifty feet of the clinic door. (Id. at ¶ 32.) Additionally, he said that sidewalk counselors could not approach within eight feet of a person walking to the clinic even more than fifty feet away from the door. (Id. at ¶ 31.) Erbacci's understanding of the Ordinance was incorrect, as the Ordinance prevents individuals from approaching within eight feet of another person within fifty feet of a clinic door. Outside of the fifty-foot zone, the Ordinance does not apply, and, within the fifty-foot zone, the Ordinance does not apply to conduct that does not involve “approaching” within eight feet of another person.
• On November 21, 2009, at Planned Parenthood's Near North Center location (the “Near North clinic”), CPD Sergeant Tietz told Pro-Life Action League counselors that the Ordinance prohibited “approaching or even standing within eight feet of anyone approaching the facility entrance door.” (Id. at ¶ 33 (emphasis in original).) When the pro-life advocates “respectfully challenged the officer's interpretation, he told them that if he had to go get the Ordinance from the station he would come back and arrest them.” (Id. at ¶ 34.) He then told a pro-life group to remove their signs from within fifty feet of the clinic door. (Id.)
• On January 9, 2010, CPD Officer Hagan told pro-life counselors at the Near North clinic that they could not come within 150 feet of the clinic. (Id. at ¶ 36.) She then changed her instruction to the following: “You guys cannot come within eight feet of this doorway. If you come within 50 feet of the doorway, and within eight feet of the doorway, and start giving them things, chanting prayers, when someone is coming down, you will be written an NOV. You cannot do any abortion [inaudible], counseling, or anything like that. . . . It's a law in the City of Chicago. They made it and I'm here to enforce it.” (Id. (emphasis in original).) Plaintiffs also allege that they and other pro-life counselors were prohibited by the police officer from speaking to people going to the clinic, even if the counselors were stationary. (Id. at ¶ 37.)
• On January 10, 2010, a CPD officer told a pro-life advocate named David Avignone that he could not stand within eight feet of a clinic entrance. (Id. at ¶ 38.) He refused, and the officer called for backup. (Id.) Eventually, the sergeants who arrived as backup concluded that Avignone was correct. (Id. at ¶ 39.)
• On February 13, 2010, at the Near North clinic, Officer Hagan told pro-life counselors that they could not approach within ten feet of the clinic entrance door. (Id. at ¶ 40.) The distance of ten feet is not mentioned in the Ordinance.
• On July 3, 2010, pro-life advocate Joseph Holland was praying in a stationary position on a wall a “few feet away from the entrance door to the clinic.” (Id. at ¶ 42.) He was eventually arrested for “standing within 8 feet of the clinic entrance door.” (Id. at ¶ 47.) The arresting officer later indicated that he interpreted the Ordinance to prohibit any kind of verbal expression within a 50-foot buffer zone. (Id. at ¶ 49.)
• On several occasions, CPD officers have ordered Plaintiffs and other pro-life advocates to stay outside of a 50-foot buffer zone around clinic entrances. (Id. at ¶ 53.) The Plaintiffs give examples from October 6, 2012 at Albany involving Sergeant Whitney; February 26, 2013 at Albany involving Officer Haran; March 9, 2013 involving Officer Whitney; June 6, 2015 at Albany; and August 27, 2015 at Albany.[2] (Id. at ¶¶ 53-57.)
• On October 11, 2014, at Albany, Sergeant Olszewski of the CPD ordered pro-life advocates to remain at least 50 feet away from the parking lot. (Id. at ¶ 79.)
• On November 21, 2015, a CPD officer told a pro-life counselor at a Family Planning Associates clinic (the “Washington clinic”) that he could not come within ten feet of the clinic entrance. (Id. at ¶¶ 5, 58.)
• On April 2, 2016, at the Near North clinic, Sergeant Murphy of the CPD told pro-life counselors to move 100 feet from the door. (Id. at ¶ 60.) After conferring with another officer, he said they “need only move 50 feet away from any entrance to the clinic, and for anyone entering the clinic, the pro-life advocates had to ‘give them an eight-foot buffer zone.'” (Id.) During this interaction, Sergeant Murphy also said that counselors could not engage with women verbally and mentioned that his understanding of the Ordinance had been informed by what his “higher ups” explained to him. (Id. at ¶ 65.)

         Plaintiffs also allege that the Ordinance is selectively applied to pro-life advocates but not pro-choice advocates, who, according to Plaintiffs, violate the Ordinance. (Id. at ¶ 67.) They detail the following examples in support of their claim[3]:

• On September 27, 2014, Officer Grantz responded to a call from clinic escorts at the Washington clinic. (Id. at ¶ 70.) Plaintiffs and other pro-life advocates were ordered to stay at least fifty feet away from the clinic entrance while pro-choice clinic escorts[4] “were allowed free rein within the buffer zone.” (Id.)
• On October 4, 2014, Officer Grantz ordered Plaintiffs to remain 10-15 feet away from the Washington clinic entrance, but he did not order the pro-choice escorts to do the same. (Id. at ¶¶ 72-73.) Officer Grantz told Plaintiffs that the Ordinance did not apply to the escorts because “are invited by the clinic and have ‘authorized entry into the building.'” (Id. at ¶ 74.) During the same day at the same clinic, CPD Officer Schipplick told pro-life advocates that they must remain at least eight feet from the clinic door, but the officer also told the pro-life advocates that the pro-choice escorts did not have to be at least eight feet away. (Id. at ¶¶ 77-78.)
• On October 29, 2014, plaintiff David Bergquist stood near the Washington clinic door with a sign expressing his pro-life views. (Id. at ¶ 85.) An employee of Pro-Life Action League eventually took his place, and Bergquist moved about four feet from the entrance. (Id. at ¶ 86.) CPD officers arrived and told the pro-life counselors that they should move back because they were obstructing the entrance, which Plaintiffs say was not true. (Id. at ¶ 87.) Later, after a clinic escort complained, one of the officers “immediately took” the escort's side, telling the Pro-Life Action League employee to move eight feet away from the door. (Id. at ¶ 88.)
• On April 4, 2015, responding to complaints by pro-choice escorts, the police told pro-life counselors to move seven or eight feet away from the door based on the Ordinance. (Id. at ¶¶ 91-94.) “While Plaintiffs and their colleagues were prohibited even from stationing themselves within eight feet of the clinic entrance, ...

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