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VOL. 48: 43 CONTENTS MAY 2012 VOLUME 48 _______________________________________________________________ Editor ARTICLE OF THE MONTH NANCY ALBERT-GOLDBERG Officer-Citizen Confrontations Page 44 Adjunct Professor of Law Public Protests: 1st and 4th Amendment Concerns Page 44 Illinois Law Interpreting Relevant Statutes Page 45 Conclusion Page 47 Business Manager _____________________________________________________ RECENT CASES JEFF WEINGARD High Court Walks Fine Line in Strip Search Case Page 47 Managing Editor Detainee's Jailhouse Statements to Snitch Are Admissible Page 48 RENEE WEINGARD ________________________________________________________________________________ MISCELLANEOUS MATTERS Hearsay Statements by Drew's Wives Are Admissible Page 51 Bulletin Checkpoints Page 48 Page 51 ________________________________________________________________ Copyright 2012, Illinois Law Enforcement Officers Law Bulletin _______________________________________________________ REPRODUCTION OR RETRANSMISSION OF MATERIALS IS PROHIBITED. 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VOL. 48: 44 ARTICLE OF THE MONTH Officer-Citizen Confrontations: Disorderly Conduct, Resisting Arrest, and Obstruction of Justice The Illinois Supreme Court's recent decision on Judge Richard Posner, writing on behalf of the Seventh obstruction of justice, along with the expected rash of Circuit, lambasted "the basic idiocy of a permit system police-citizen confrontations during the forthcoming that does not allow a permit for a march to be fixed in NATO summit in Chicago, make this an opportune time advance, but does allow the police to waive the permit to examine the law on officer-citizen confrontations. The requirement just by not prohibiting the demonstration." Illinois high court's latest opinion interpreting the state He referred to some 8,000 demonstrators and an statute on obstruction, People v. Baskerville, is discussed assortment of accidental bystanders as a "trapped herd" later in this article. due to the fact that mounted police had blocked off key intersections. And he termed police behavior in Vodak A. Public Protests: First and Fourth Amendment "unprofessional" because officers made mass arrests of Concerns marchers who had not heard the order to disperse and who had no means of exiting the blocked-off streets. Cox v. Louisiana and Vodak v. Chicago. Bulletin readers may recall the case of Vodak v. City of Chicago, The Vodak court found that police are prohibited under ___F.3d___ (7th Cir. 2011), Bulletin 47: 33-34. The case the Fourth Amendment from arresting protesters unless came about when anti-war protesters sued the City of the officers have probable cause to believe that the Chicago under the Civil Rights Act, 42 U.S.C. sec. 1983, protesters know they are violating a police order. Because alleging violations of their First and Fourth Amendment police had failed to communicate their orders to the rights during March 2003 demonstrations against starting crowd, and the marchers and bystanders had no way to a second war in Iraq. know that they were breaking the law, the arrests were unauthorized, the court said. The ironic fact in Vodak was that, since protestors had no "parade" permit from the City, there was no prescribed Moreover, the fact that neither the Mayor nor the City march route for their anti-war demonstration. In practice, Council had authorized mass arrests did not absolve the police sometimes informally waived the permit City of liability, the court concluded. The fact that the requirement by simply failing to tell demonstrators that City had a written policy giving the police superintendent they needed a permit. complete authority to administer the department meant that the City remained liable, the Vodak court found. On the date of the demonstration, things got out of hand. Due to the size of the demonstration, traffic on the City's Nagode. In another federal appeals court case, Goldhamer main thoroughfare quickly became disrupted. Police v. Nagode, ___F.3d___ (7th Cir. 2010), two protesters attempted to order the crowd to disperse, but they had no were arrested by Chicago police after handing out flyers effective mechanism to use in conveying commands to to people near a military recruiting booth at the city's thousands of people stretched out over a large landscape. annual Taste of Chicago Festival. When they failed to Police began arresting large numbers of people, whether heed an officer's order to disperse, the protesters were they were peaceful or not, whether they had heard the arrested and charged with disorderly conduct for violating order to disperse or not, and whether they were part of the a municipal ordinance that criminalizes failure to obey a demonstration or were simply bystanders. lawful order of dispersal by a peace officer. The Seventh U.S. Circuit Court of Appeals found that the The Seventh U.S. Circuit of Appeals in Vodak was arrests violated the United States Supreme Court's time- reluctant to strike down the City's municipal ordinance as honored decision in Cox v. Louisiana, 379 U.S. 536 unconstitutional under the First Amendment. Rather, the (1965). The high court in Cox held that the Constitution court decided that, while a city could not, without prohibits police from enforcing a law that sweeps so violating freedom of speech and assembly, flatly ban broadly that it prohibits freedom of speech and assembly. groups of people from spontaneously gathering on The Cox court ruled that, while laws may limit the time, sidewalks or in public parks, the ordinance was not place, duration or manner of using the streets for public intended to prohibit peaceful protests of the sort engaged assemblies, it is unconstitutional to accord unbridled in by the arrestees. discretion to local officials. The Vodak court interpreted Cox to mean that police must notify demonstrators that The Nagode court concluded that it was the arrest itself, their permission to demonstrate is revoked before officers rather than the ordinance, that violated the arrestees' right can begin arresting them. to freedom of expression under the First Amendment. The VOL. 48: 45 court noted that the City of Chicago had already entered Gonzalez v. Elgin. In Gonzalez v. City of Elgin, 578 F.3d into an out-of-court settlement whereby the City agreed to 526 (7th Cir. 2009), Bulletin 45:108-109, a group of pay monetary damages to the arrestees. individuals were arrested on charges of resisting or obstructing a peace officer after they attempted to ask the Houston v. Hill. The decision in Nagode stopped short of officers what was going on and why they were being imposing a "death sentence" on the municipal ordinance. arrested. Citing Payne v. Pauley, 337 F.3d 767 (7th Cir. However, the United States Supreme Court did just that in 2003), the Gonzalez court noted: "It is well settled under City of Houston, Texas v. Hill, 482 U.S. 451 (1987). The Illinois law ... that the resistance must be physical; mere Houston ordinance under examination in that case made it argument will not suffice." unlawful to "interrupt any policeman in the execution of his duty". Citing the Illinois Appellate Court's decision in People v. Long, 316 Ill.App.3d 919 (2000), the Gonzalez court In Houston v. Hill, a political activist shouted at a police concluded: "Merely arguing with a police officer -- even officer in an admitted attempt to divert the officer's using abusive language -- does not constitute resisting a attention from a friend who was disrupting traffic. The peace officer." Accordingly, the Seventh U.S. Circuit high court held that the ordinance was overbroad because Court of Appeals found there was no probable cause to it "deals not with core criminal conduct, but with speech." assume that the individuals were guilty of resisting or obstructing a peace officer. "[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers", People v. Raby. In the 1960's, a well-known African- the Court said. The Court added: "Today's decision American activist named Al Raby led a march around reflects the constitutional requirement that, in the face of Chicago's City Hall to protest racial segregation in the verbal challenges to police action, officers and public schools. After making a brief speech, he and about municipalities must respond with restraint." Accordingly, 65 others sat or lay down at a busy downtown the high court held that the ordinance was invalid on its intersection, completely blocking traffic. They were face under the First Amendment to the United States arrested for refusing to abide by a police order to leave Constitution. the intersection. When police attempted to arrest Raby, he "went limp," and had to be carried to a police van. B. Resisting or Obstructing a Peace Officer, Obstructing Justice, and Disorderly Conduct under Raby was arrested on two charges:

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