City of Chicago v. Greene
| Decision Date | 17 November 1970 |
| Docket Number | No. 42768,42768 |
| Parties | The CITY OF CHICAGO, Appellee, v. Kenneth GREENE, Appellant. |
| Court | Illinois Supreme Court |
Thomas J. Grippando, Chicago, Michael Weisz and Richard Weisz, for appellant.
Richard L. Curry, Corp. Counsel, Chicago (Marvin E. Aspen and Daniel Pascale, Asst. Corp. Counsels, of counsel), for appellee.
A fine of one hundred dollars was imposed after the defendant, Kenneth Greene, was found guilty of disorderly conduct in violation of section 193(d) of the Municipal Code of the City of Chicago, following a bench trial in the circuit court of Cook County. Raising constitutional questions he has appealed directly to this court.
On the evening of August 25, 1968, a large crowd had gathered in an area of Lincoln Park in Chicago. A Chicago Police Department 'incident team,' composed of a sergeant and ten patrolmen, was stationed at the park fieldhouse to protect it from damage. At about 8:45 P.M. a crowd of approximately 500 encircled the building and the officers. Sergeant Thomas Kelley, who was in command, testified that several members of the crowd began throwing objects, such as half-bricks, flash bulbs, rocks and lighted cigarettes at the police. When another team reinforced his unit, Sgt. Kelley testified that he told the crowd that it was disorderly and ordered it to disperse. When the crowd ignored this and a second order to disperse, he said that he directed his officers to move against the crowd. The officers did so and forced it back to a position approximately 75 feet from the fieldhouse.
Officer John Elliott, the arresting officer, testified that at 8:45 P.M. he was at the south end of the line of officers stationed along the fieldhouse. He said the defendant was facing the police line and standing behind the first row of the crowd. When the crowd began its retreat in response to the movement of the officers the defendant was requested to move by several officers, including Officer Elliott, but he refused. Elliott then told the defendant 'to leave or he would be arrested.' He again refused and was placed under arrest. At the time the officer placed the defendant under arrest about 10 or 15 persons in the immediate vicinity who had been throwing objects at the police were arrested by other officers.
The defendant, Kenneth Greene, testified that he had entered the park with his girl friend to meet some friends. He said that while walking toward the area where he was to meet his friends he noticed policemen at the fieldhouse with a group of people around them. He was, he testified, about 100 to 150 feet from this group when it suddenly began moving to the west toward him with the police in pursuit. He said he continued to walk in the direction of a nearby water fountain. At the fountain a police officer directed him to leave the park. He said that he took his girl friend by the hand and began to walk from the officer. He was again ordered to 'move' and when he apparently did not move quickly enough, he said he was struck and later knocked to the ground. He was then arrested.
The defendant argues that section 193--1(d) of the Municipal Code of the City of Chicago is unconstitutional on its face, and as applied, because it is vague and overly broad. He says, too, that his right to due process was infringed, since there was no evidence that the defendant violated the ordinance, that is, that he failed to disperse at a time when 'three or more persons (were) committing acts of disorderly conduct in the immediate vicinity * * *.' He also maintains that even if this court should find that the ordinance was constitutional and that his constitutional rights were not violated, the trial court committed reversible error by having him brought to trial more than 120 days after his demand for trial and in allowing the City of Chicago to amend its complaint at trial after testimony had been given.
Initially, we must observe that we do not find merit in the City's contention that the appeal should be dismissed for failure to file a timely notice of appeal. The appellee argues that the post-trial motion of the defendant was not filed within the required 30 days and, therefore, the requirement to file a notice of appeal within 30 days to preserve questions for appeal was not tolled. However, while the post-trial motion was filed 31 days after judgment, the 30th day was a Sunday and, hence, the filing of the motion on Monday was timely. (See Pettigrove v. Parro Construction Corp., 44 Ill.App.2d 421, 194 N.E.2d 521 and Ill.Rev.Stat.1969, ch. 131, par. 1.11.) The issues not raised in the defendant's original post-trial motion but raised by the subsequent post-trial motions of the defendant could have been regarded as a supplement or amendment to his original post-trial motion and it was properly within the discretion of the trial court to have allowed the defendant leave to file such subsequent motions. See Kagan v. Kitchens of Sara Lee, Inc., 20 Ill.App.2d 303, 155 N.E.2d 832 and Thomas v. Rossetter, 339 Ill.App. 647, 91 N.E.2d 155.
The part of section 193--1 with which we are concerned provides: 'A person commits disorderly conduct when he knowingly: * * * (d) Fails to obey a lawful order of dispersal by a person known by him to be a peace officer under circumstances where three or more persons are committing acts of disorderly conduct in the immediate vicinity, which acts are likely to cause substantial harm or serious inconvenience, annoyance or alarm; * * *.'
This court in City of Chicago v. Fort, 46 Ill.2d 12, 262 N.E.2d 473, recently upheld the constitutionality of this section of the ordinance. The defendant seeks to avoid the force of that decision by arguing that in Fort the defendants were engaged in unlawful activities at the time they were ordered to disperse, whereas here the defendant at the time of the dispersal order was engaging in lawful activity. The conclusion we are asked to draw is that the ordinance was unconstitutional as applied to the defendant.
However, in...
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