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Emanuel Says Judge's Dismissal Of Charges Against Occupy "Not The Final Word"

By aaroncynic in News on Sep 28, 2012 8:40PM

Photo by Ryan Williams (used with permission)

Mayor Rahm Emanuel expressed his disappointment for a judge's ruling yesterday dismissing charges against 92 people arrested at Occupy Chicago protests last year in Grant Park, and he vowed to appeal the decision.

“I don’t think this is the last word," Emanuel told the Sun Times. "We’re gonna appeal the decision because we believe the ordinance is on firm ground as it relates to both public safety and First Amendment rights.”

Emanuel said the city has a case "based on both [U.S.] Supreme Court decisions dating back to 1984 and decisions other cities have made — that this ordinance balances both public safety and public free speech.”

Emanuel said Judge Thomas Donnelly was comparing “apples and oranges” in his ruling, which cited the 2008 election night victory party for President Obama as one of the reasons for dismissal.

In the 37 page ruling, Judge Donnelly wrote that because the city did not enforce the curfew during 2008, “that violates the Defendants’ right to equal protection because it treats similarly situated citizens differently.” Emanuel told the Sun-Times that since protesters “were planning on sleeping overnight…it’s different. In my view they’re comparing apples and oranges.”

However, Judge Donnelly’s ruling addressed that:

“Examining the Curfew, it does not distinguish between those who announce intent to remain and those who do not; on its face, it penalizes all those who remain after 11:00pm. That the protesters indicated intent to remain after having been given notice to depart has no significance vis-à-vis the Curfew…both the Occupy protesters and the Obama rally participants were similarly situated vis-à-vis the Curfew; they were both equally in violation.”


“Although it may be permissible to regulate what protesters do in the park at night, barring them from the park entirely during the night hours presents a different question…While park managers may properly determine camping or certain activities should be forbidden in the park based on park preservation or maintenance concerns, curtailing all access by First Amendment actors to a public forum during a time of day that forms the most appropriate time for many forms of expressive conduct falls beyond their expertise.”

While the City has argued that its rigorous defense of curfew enforcement has to do with park maintenance and public safety, the ruling points out several inconsistencies, including the City’s inability to provide information related to what maintenance activities occur during the seven hours each night that parks are closed. Furthermore, the ruling states that though “the Curfew is content-neutral,” “it is not narrowly-tailored and it fails to leave open ample channels for large late-night assemblies; it does not fit the legitimate government interests.”