Landry v. Daley

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Citation280 F. Supp. 968
Docket NumberNo. 67 C 1863.,67 C 1863.
PartiesLawrence LANDRY et al., Plaintiffs, v. Richard J. DALEY, Mayor of the City of Chicago, Cook County, Illinois, et al., Defendants.
Decision Date04 March 1968

Robert L. Tucker, R. Eugene Pincham, Kermit Coleman, Jean F. Williams, Ellis E. Reid, Lawrence E. Kennon, Leonard Karlin, Norman E. Lapping, Irving Birnbaum, Leo E. Halt, Cecil C. Butler, Edward Thomson, Chicago, Ill., Dennis J. Roberts, Newark, N. J., William M. Kunstler and Arthur Kinoy, New York City, for plaintiffs.

John J. Stamas, State's Atty. of Cook County, Edward J. Hladis, Chief of Civil Division, Ronald Butler, Asst. State's Atty., for State officials.

Raymond F. Simon, Corp. Counsel of Chicago, Richard J. Elrod, Asst. Corp. Counsel, Kenneth W. Sain, Asst. Corp. Counsel, for city officials.

Robert Plotkin, Philip W. Moore, Michael L. Shakman, Neil Komesar, Robert Howard, Chicago, Ill., amicus curiae.

OPINION

WILL, District Judge.

Plaintiffs in this action have challenged the constitutionality of three state statutes and two ordinances of the City of Chicago, as well as the alleged unconstitutional application by defendants of these statutes and ordinances to plaintiffs and other members of the class they purport to represent. In a separate opinion, a three-judge District Court has dealt with the question of the constitutionality of the challenged state statutes. We deal here with the constitutionality of the two ordinances of the City of Chicago.

All of the opinion of the three-judge court relating to the allegations of the complaint, the jurisdiction of the Court, the question of federal forbearance or abstention, and the constitutional principles involved, is equally applicable here. Rather than repeat those observations, we incorporate them by reference herein and proceed to a consideration of the challenged ordinances.

The Disorderly Conduct Ordinance

Chapter 193, Section 1 of the Municipal Code of Chicago, which is labeled "Disorderly Conduct," provides as follows:

"All persons who shall make, aid, countenance or assist in making any improper noise, riot, disturbance, breach of the peace or diversion tending to a breach of the peace, within the limits of the city; all persons who shall collect in bodies or crowds for unlawful purposes, or for any purpose, to the annoyance or disturbance of other persons; all persons who are idle or dissolute and go about begging; all persons who use or exercise any juggling or other unlawful games or plays; all persons who are found in houses of ill-fame or gaming houses; all persons lodging in or found at any time in sheds, barns, stables, or unoccupied buildings, or lodging in the open air and not giving a good account of themselves; all persons who shall wilfully assault another in the city, or be engaged in, aid, or abet in any fight, quarrel, or other disturbance in the city; all persons who stand, loiter, or stroll about in any place in the city, waiting or seeking to obtain money or other valuable things from others by trick or fraud, or to aid or assist therein; all persons that shall engage in any fraudulent scheme, device or trick to obtain money or other valuable thing in any place in the city, or who shall aid, abet, or in any manner be concerned therein; all touts, ropers, steerers, or cappers, so called, for any gambling room or house who shall ply or attempt to ply their calling on any public way in the city; all persons found loitering about any hotel, block barroom, dramshop, gambling house, or disorderly house, or wandering about the streets either by night or day without any known lawful means of support, or without being able to give a satisfactory account of themselves; all persons who shall have or carry any pistol, knife, dirk, knuckles, slungshot, or other dangerous weapon cancealed on or about their persons; and all persons who are known to be narcotic addicts, thieves, burglars, pickpockets, robbers or confidence men, either by their own confession or otherwise, or by having been convicted of larceny, burglary, or other crime against the laws of the state, who are found lounging in, prowling, or loitering around any steamboat landing, railroad depot, banking institution, place of public amusement, auction room, hotel, store, shop, public way, public conveyance, public gathering, public assembly, court room, public building, private dwelling house, house of ill-fame, gambling house, or any public place, and who are unable to give a reasonable excuse for being so found, shall be deemed guilty of disorderly conduct, and upon conviction thereof, shall be severally fined not less than one dollar nor more than two hundred dollars for each offense."

This ordinance has to be one of the most charming grabbags of criminal prohibitions ever assembled. Some of its provisions are nostalgic though obviously obsolete. Jugglers or touts, ropers, steerers or cappers for gambling houses are today as rare as buggy whips. Obsolescence, however, does not connote unconstitutionality.

Others of the provisions are clearly of current concern. Prohibition against engaging in any fraudulent scheme, device or trick to obtain money or other valuable thing or the obtaining of money or other valuable things by trick or fraud is certainly a proper exercise of the city's police power though it is not generally considered "disorderly conduct." Similarly, the city has a legitimate concern and duty to preserve the peace from forceful or violent breaches thereof whether by individuals or mobs.

It is equally obvious that other portions of the ordinance are both vague, indefinite and overbroad and therefore unconstitutional. Unfortunately, they are so inextricably intertwined with the valid segments that it is impossible to sever them and thereby preserve the latter.

For example, the opening language, "All persons who shall make, aid, countenance, or assist in making any improper noise, riot, disturbance, breach of the peace or diversion tending to a breach of the peace" contains prohibitions which are clearly vague and indefinite, as well as overbroad. What is an "improper noise?" The dictionary defines "improper" in part as "not in accordance with fact, truth or right procedure," and "not in accord with propriety, modesty, good taste or good manners."1 The definition of "noise" includes "loud, confused or senseless shouting," "sound or a sound that lacks agreeable musical quality or is noticeably loud, harsh or discordant," "any sound that is undesired or that interferes with something to which one is listening," or even alternatively "sound or a sound that is not regarded as unpleasing or that has a pleasing melodious quality" as, for example, "the noise of heavenly choirs."2

The number of sounds which are constitutionally permitted and protected and which would fall within the proscription of "improper noise" is infinite. Political campaigns, athletic events, public meetings and a host of other activities produce loud, confused or senseless shouting not in accord with fact, truth or right procedure to say nothing of not in accord with propriety, modesty, good taste or good manners. The happy cacophony of democracy would be stilled if all "improper noises" in the normal meaning of the term were suppressed.

The Supreme Court has held on several occasions that statutes or ordinances prohibiting "noise" are valid only to the extent that they are necessary to the protection of other important public interests, e. g., the prohibition of horn blowing or other noise in a hospital zone. Prohibition of "noise" per se is unconstitutional.3 And the addition of the vague and indefinite adjective "improper" does not cure the defect.

Not only is making, aiding or assisting in the making of an improper noise a crime, but it is likewise a crime to "countenance" the making of such a noise by a third party. The literal language would apparently create a duty on all persons in the vicinity of one making an improper noise at least to attempt to effect a termination thereof. If the citizenry took this duty seriously, it staggers the imagination to contemplate the result. There would be more action in the stands than on the field at any athletic event as spectators sought to protect themselves from violating the law against countenancing the improper noises being made by others about them.

Also proscribed is making, aiding, countenancing or assisting in the making of a "disturbance" which Webster defines in part as "an interruption of a state of peace or quiet," or "an interference with a planned, ordered or regular procedure, state or habit."4 Again, this is both too vague and indefinite as well as overbroad. The legitimate exercise of freedom of speech, press or expression frequently interrupts a state of peace or quiet or interferes with a planned, ordered or regular procedure, state or habit. New ideas more often than not create disturbances, yet the very purpose of the First Amendment is to stimulate the creation and dissemination of new concepts. The prohibition against making or countenancing a disburbance would literally make it a crime to deliver an unpopular speech which results in a "disturbance" or to stand by while someone else makes such a speech. This is clearly an invalid restriction of protected rights.

The distinction between "disturbance" and "riot" is, of course, very relevant. Webster defines the latter as "an assemblage of three or more persons in a public place for the purpose of accomplishment by concerted action and in a turbulent and disorderly manner a common purpose irrespective of the lawfulness of the purpose."5 Nothing said here is intended to hold or imply that making or aiding or assisting to cause a riot may not be proscribed even though the actions taken consist merely in the exercise of First Amendment freedoms if the words spoken or written or the actions taken under the circumstances constitute a "clear...

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    ...the public schools affected by its holding in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. In Landry v. Daley, D.C., 280 F.Supp. 968, the plaintiffs attacked the constitutionality of a Chicago ordinance reading in part as follows: 'All persons who shall make, aid, ......
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