A judge on Sept. 27 tossed out charges against 92 Occupy protesters arrested in a Chicago park last October, severely criticizing what the city had proudly held up as a better way for dealing with demonstrations.
Cook County Associate Judge Thomas Donnelly ruled that the city’s curfew law was unconstitutional and that the city selectively enforced it. He noted police had cracked down on the protesters’ tent camp when the park closed at 11 p.m., but had not moved against others who stayed in the same park past that hour at other times – including those who had come to see Barack Obama after he won the presidency three years earlier.
“The city arrested no one at the Obama 2008 presidential election victory rally, even though the Obama rally was equally in violation of the curfew,” Donnelly wrote.
Roderick Drew, spokesman for Chicago's Law Department, said the city will appeal the ruling. He said officials believe the curfew is “an important part of the city’s efforts to maintain and protect public health and safety,” and they would continue to enforce it.
“The city is disappointed with the decision,” Drew said.
The protesters and their lawyers said the ruling was a slap to claims by Mayor Rahm Emanuel and the city’s top leadership that they were upholding First Amendment rights in their handling of the protests.
“It demonstrates beyond any reasonable doubt just what a flagrant violation of people’s rights these arrests were,” said Andy Thayer, an anti-war and gay rights activist who was among those arrested. “The city was busy patting itself on the back about how they had handled the Occupy protests, and it puts the lie to their claims ... about respecting people's rights.”
The protests were an offshoot of the Occupy Wall Street movement and a demonstration against corporate greed. Several thousand protesters gathered in Grant Park on two consecutive Saturdays last October. Each night, in the hours leading up to 11 p.m., police repeatedly warned the protesters they would be arrested after the park closed. Some left, and police gave others an additional two hours to leave.
A total of 173 people were arrested the first Saturday, and 130 the next week. Only 92 of them still were fighting the charges in court.
Chicago officials contrasted the police warnings and calm handling of the arrests with previous problems the city had with demonstrations, all the way back to the 1968 Democratic National Convention, when officers clashed violently with protesters.
Earlier this year, the city settled a lawsuit for $6.2 million in connection with the arrest of 700 people during a 2003 Iraq war demonstration. The settlement came after a federal judge called the department's handling of the protests “idiotic.”
In interviews leading up to this spring’s NATO Summit, Chicago Police Supt. Garry McCarthy had boasted about the way his department handled the Occupy demonstrators. McCarthy praised his department for treating the protesters as individuals and his officers for keeping their cool.
In his 37-page ruling on Sept. 27, the judge ruled that city’s 11 p.m. to 6 a.m. curfew violates both the U.S. and Illinois constitutions’ right to free assembly. He rejected the city’s claim that it needs to shut the park for safety and maintenance because it routinely closes the park for fewer than seven hours a night.
He noted Grant Park's long history as a gathering spot for protests and other assemblies. “It constitutes the quintessential public forum,” he wrote, adding that the city curfew failed to allow other opportunities for late night assemblies.
Donnelly also criticized the city for subjecting the protesters to “constantly changing rules and regulations that ended in a directive that they had to be constantly moving in order to protest.” He said that implied the city was attempting to discourage the protest.
Sarah Gelsomino, a People’s Law Office attorney representing the protesters, said the activists were legally participating in free speech.
“Hopefully this sends a clear message to the city that they must better respect the First Amendment rights of protesters no matter what their message might be,” Gelsomino said.