Ruling on 4th Amendment reads like free-assembly victory

Wednesday, March 23, 2011

Technically, Judge Richard Posner is correct when he says his decision in a political-protest case, Vodak v. City of Chicago, is based on the Fourth Amendment and that “the First Amendment plays only a background role.” On the other hand, his decision surely reads like a significant victory for the First Amendment’s right of assembly.

Posner’s March 17 opinion, which was joined by 7th U.S. Circuit Court of Appeals Judge Diane Wood and U.S. District Judge Lynn Adelman (joining the court temporarily by designation), reversed a trial court ruling granting summary judgment to the City of Chicago and several police officers in two class-action lawsuits brought by protesters arrested during a 2003 demonstration against the second Iraq war. In it, Posner held that officers could not constitutionally arrest protesters who did not know they were violating a police order.

Posner, an unabashed believer in rules and procedures, was mystified by what he called “the basic idiocy” of Chicago’s system of permitting demonstrations and parades. On paper, the system requires a group seeking a permit to specify the date and place of the demonstration and, if a parade or march is desired, the route requested. In practice, however, Chicago often waives the requirement that a permit be obtained and that a parade route be designated. In these instances, police want marchers to stay within a specific north-south corridor of city streets.

In this case, because the demonstration was designed to be at least somewhat spontaneous, police officials did not require a permit. Instead, in Posner’s words, “It seems to have been agreed that the march would start in the Federal Plaza on Dearborn Street, but where it would go from there was left open.”

What followed, unsurprisingly, was somewhat chaotic. Neither organizers nor followers seemed certain of the march’s route, and about 8,000 demonstrators turned to return to Federal Plaza well short of where police expected. Fearful that the marchers were headed toward well-traveled Michigan Avenue, police blocked that route and directed organizers either to lead the group back to Federal Plaza or disperse.

The marchers then headed to Federal Plaza, but after a few blocks about 1,000 of them veered back toward Michigan Avenue. Rather than telling these protesters to return to Federal Plaza, police formed a second blocking line that confined the marchers in a two-block area. Then, in Posner’s words, the police “began culling the trapped herd, arresting marchers along with people who weren’t part of the march but were just trying to get home and to do so needed to cross Michigan Avenue.”

These arrests potentially violated the Fourth Amendment, Posner held, because the marchers did not know where they were prohibited from entering.

“[B]efore the police could start arresting peaceable demonstrators for defying their orders they had to communicate the orders to the demonstrators,” Posner wrote. “[E]ven if dispersal orders were given, there would have to be evidence that the police reasonably believed that the protesters who were arrested, or at least most of them, had heard the orders.

“The police could have ordered the demonstrators to go back to the inner drive, could probably have herded them back there, and having done so herded them (along with lesser crowds at other side streets) the rest of the way back to Federal Plaza,” Posner continued.
“What they could not lawfully do, in circumstances that were not threatening to the safety of the police or other people, was arrest people who the police had no good reason to believe knew they were violating a police order.”

Opining that the protesters’ First Amendment claims were “largely duplicative” of their claims that the arrests violated the Fourth Amendment’s protections against unlawful searches and seizures, Posner focused on the Fourth Amendment and concluded the demonstrators could prevail at trial.

“[P]olice must give notice of revocation of permission to demonstrate before they can begin arresting demonstrators,” Posner wrote, citing U.S. Supreme Court and other precedents. “No precedent should be necessary, moreover, to establish that the Fourth Amendment does not permit the police to say to a person go ahead and march and then, five minutes later, having revoked the permission for the march without notice to anyone, arrest the person for having marched without police permission.”

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