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City files notice to appeal Occupy Chicago ruling

Occupy Chicago protesters defy police order leave Grant Park Oct. 22.  |  Paul Beaty~AP

Occupy Chicago protesters defy police order to leave Grant Park on Oct. 22. | Paul Beaty~AP

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Updated: October 30, 2012 6:07AM

Chicago’s 11 p.m. park curfew strikes a balance between public safety and First Amendment rights, Mayor Rahm Emanuel argued Friday, before the city filed a notice that it would appeal a court ruling overturning the arrest of 92 Occupy Chicago protesters and the curfew they were accused of violating.

“We’re not the only city. New York, L.A. — every major city has a curfew associated with parks,” Emanuel said.

“I don’t think this is the last word. 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.”

The mayor added, “There will be another judge who will also be given a chance to weigh in. It doesn’t mean it’s the final word. ... We believe — 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.”

Circuit Court Judge Thomas More Donnelly ruled this week that the city infringed on the First Amendment rights of hundreds of Occupy Chicago protesters who were arrested last October when they refused to leave Grant Park at its 11 p.m. closing time.

Donnelly threw out the charges against 92 of the demonstrators, saying the curfew law used against them was unconstitutional and violated their right of free assembly.

On Friday, Emanuel complained that the judge had compared “apples and oranges” when he accused the city of creating a double-standard: one for Occupy Chicago the other for then-President-elect Barack Obama’s November 2008 victory rally in Grant Park.

Both groups violated the 11 p.m. curfew in Chicago parks, but only Occupy Chicago protesters were arrested. Obama supporters were not, the judge said.

Asked Friday why the two groups received such different treatment, Emanuel said the Obama supporters “got a permit” for a “single night” and, “They weren’t planning on sleeping overnight. Those are kind of fundamental differences. ... They’re, in my view, comparing apples and oranges.”

Later Friday, city Corporation Counsel Steve Patton sent a written statement saying the city had filed a Notice to Appeal the decision.

“Park regulations such as closing hours are important to protect public health and safety,” he wrote.

“...Any suggestion that the defendants here were arrested because of their message, or to prevent them from exercising their First Amendment rights, is refuted by what actually occurred, as widely reported at the time. The defendants were arrested for their conduct — remaining in the park after being repeatedly warned to leave or face arrest.

“...The comparison between the Occupy Chicago event last fall and the November 2008 Obama election night speech is not a fair one. Police in 2008 were not confronted with individuals who intended to spend the night in Grant Park, let alone establish residency there for some prolonged period.”

In the run-up to the NATO Summit, Emanuel and Police Supt. Garry McCarthy presented the city’s treatment of Occupy Chicago protesters as a “model” for dealing with protesters going forward.

They also presented it as a sharp contrast to the 900 Iraq War protesters arrested or detained after a 2003 demonstration that shut down Lake Shore Drive and triggered a $12 million settlement, including legal fees. Donnelly called a stunning halt to that argument, handing the mayor, yet another defeat on the First Amendment front.

Emanuel also squared off against protesters before the NATO Summit. He tried to impose strict rules and fines governing public protests before softening those rules under pressure from Chicago aldermen.

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