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News :: Crime & Police |
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New Police Chief In Champaign -- What's His Record? |
Current rating: 0 |
by Muck Raker
(No verified email address)
Address: Champaign |
07 Oct 2003
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Last night the City of Champaign announced its decision for the City's new police chief. Their choice is R.T. Finney, previously chief of the Carbondale, IL police department.
According to an article in today's News-Gazette, Finney sounds like a golden-boy, without a spot on him. Is that true? |
The News-Gazette's article today on Champaign's new police chief, R.T. Finney,( http://www.newsgazette.com/story.cfm?Number=14672 ) is all congratulations and good feelings. I don't know, but I wonder if the N-G has done any sort of research on this fella, or if they just take the word of Champaign City officials and his old Carbondale bosses.
According to the N-G article:
"Finney, 43, had the right combination of command experience, a stellar police career and the experience of working in a diverse Illinois city that also hosts a major state university, said Champaign City Manager Steve Carter, who hired Finney."
Now, at least with regard to diversity, Carter is pretty much on target, since only 66% of the population is white and 20% is black in Carbondale, compared to 72% white and
16% black in Champaign, according to the 2000 census.
But does that mean everything is hunky dory between the Carbondale police and the black community there?
I pose that as a legitimate question, not a rhetorical one, because it's something we should know about our new police chief, as he moves to a city more than twice the size of Carbondale, and part of an urban area that's more than four times bigger.
According to an April 2, 2001 puff piece in SIU's Daily Egyptian, entitled "Carbondale Police Chief Robert 'R.T.' Finney is a Man of the law" (http://www.dailyegyptian.com/spring01/04-02-01/finney.html), Finney, apparently, can do no wrong. Prior to joing the Carbondale force, Finney worked the gang beat in Quincy, IL, where "We arrested people nightly," he told the paper.
However, at least one group of black students at SIU was less than pleased with the conduct of Carbondale police officers who, in April of 2001, who used tear gas and force in responding to noise complaints at a block party (see AP article below).
Also, one might remember that Carbondale was the scene of "rioting" during Halloween celebrations a number of years back, culminating in 2000, with the police turning out in riot gear and using pepper spray and tear gas on students and residents. (See AP article below).
Now, I wasn't in Carbondale for that Halloween, so it's hard to know how bad things really were or weren't. I do know that I don't remember Champaign police showing up in riot gear or tear gassing students in the last 10 years or so.
Unfortunately, newspaper archive searches are not necessarily the best way to rake the muck on cops and police officials, since local papers tend to be pretty friendly with the local police, especially in smaller towns. Further, so much police misconduct never makes its way into the mainstream press because the victims don't know where to turn and don't have the resources to pursue justice.
Isn't that what Indymedia is for?
Perhaps you or someone you know has been to or lived in Carbondale during R. T. Finney's tenure on the police force. Now is the time to share whatever information you have, good or bad.
Did you or someone you know have run-ins with the Carbondale police? How did it turn out? How was everyone treated?
Post comments to this article with what you know. Don't worry if the incidents or situations were never reported in the mainstream press -- that doesn't make them illegitimate. Indymedia is the place for people to tell their stories and their struggles. Perhaps there's someone out there with similar experiences -- one isolated case can turn into a trend, or a scandal when people come together and can share stories and experiences.
Indymedia allows you to be anonymous, so you don't have to worry about retribution for telling the truth.
Maybe you have something good to say about Finney -- that deserves to come to light, too.
Whatever information people might have to share, it's a tragedy when it stays underground, because it might be a matter of life and death someday.
News Articles:
Black students to protest police action at weekend parties
April 24, 2001, Tuesday, BC cycle
By SUSAN SKILES LUKE, Associated Press Writer
DATELINE: CARBONDALE, Ill.
BODY:
A group of black students at Southern Illinois University is charging racism was behind police breaking up an off-campus party with tear gas.
Some students are planning a demonstration Saturday night in the city's downtown. They want police to apologize and drop charges against Patrick Gant, a 26-year-old elementary education major who was charged with aggravated battery and resisting arrest.
Police were responding to complaints about loud music, said Carbondale Police Chief R.T. Finney, who defended his officers' actions.
Gant, who is from Chicago, was hosting a block party with his neighbors about a half-mile from the SIU campus when a group of officers arrived in their squad cars around 1 a.m. Sunday, said Paul Hardges, 21, of Chicago, who attended the party.
Two officers knocked on Gant's door and asked one of his roommates, John Bratton, to turn down the music, police and Bratton said.
But when police took Bratton's identification card, Gant objected and reached for the card, according to both Gant and Finney.
When the officer tried to arrest Gant, Gant retreated into his bedroom, where witnesses say six or seven police officers ultimately subdued him with tear gas and physical force.
"At one point I was lying on my bed with my covers over my head trying to get away from the Mace," Gant said. "And one of the officers jumped up on the bed and continued to spray me."
Finney said his officers acted properly.
"When a verbal command doesn't work, you have to put your hands on them, and when that doesn't work you have to use other force, like Mace," he said.
Witnesses said police also sprayed tear gas at several people outside Gant's bedroom window, whom they say were trying to help Gant escape.
Hardges said police overreacted because everyone at the party was black.
"It's not that they hate black people, but the way the police acted was racist," he said.
Finney said racism played no part in the incident. "We treat all parties the same," he said.
Police said Gant was arrested and charged with obstructing justice, resisting a police officer and two counts of aggravated battery. He was released on $500 bond.
HEADLINE: Police use tear gas to disperse 2,400 Halloween revelers
November 1, 2000, Wednesday, BC cycle
DATELINE: CARBONDALE, Ill.
BODY:
About 2,400 Halloween revelers mobbed city streets near the Southern Illinois University campus, leaving police still counting the number of arrests Wednesday and shopkeepers again replacing broken windows.
At one point, several hundred people surrounded seven police officers, pelting them with rocks, bottles and cans while the officers fired back with mace, The Southern Illinoisan newspaper reported.
More police soon moved in and fired tear gas to break up the crowd. The officers, who were wearing protective body vests, were not injured.
"This was bad, really bad," Carbondale Police Chief R.T. Finney told the newspaper after the streets were finally cleared at about 4 a.m.
"There wasn't anything we could do for a short time, nothing at all. We used up our mace, and we were taking shots constantly," he said.
Though dozens of people were arrested, police did not immediately know how many.
Five people were treated for minor injuries at Carbondale Memorial Hospital, two for reactions to tear gas, three for minor cuts and bruises, according to a hospital spokeswoman.
Carbondale has a reputation for attracting unruly crowds for Halloween. This year marked the first in five years that downtown bars and restaurants were allowed to stay open over the Halloween weekend.
City leaders had closed the businesses in 1995 over the weekend closest to the holiday in an attempt - largely successful - to avert unruly Halloween crowds.
In March, the City Council narrowly voted to lift the ban, a vote several publicly regretted after more than 100 people were arrested last weekend for the same kind of chaos that erupted early Wednesday.
City Manager Jeff Doherty had said Tuesday that he will ask the council to reinstate the ban.
Some people who were milling about downtown shortly before Wednesday's trouble began predicted what would later happen, saying students wanted to respond to plans to again close the bars.
"People know this could be the last Halloween with the bars open, and they're talking about damage," SIU student Rob Taylor said about an hour before the bars' 2 a.m. closing time.
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See also:
http://www.newsgazette.com/story.cfm?Number=14672
http://www.dailyegyptian.com/spring01/04-02-01/finney.html
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Comments
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That's The Only Kind Of Coverage The News-Gazette Does |
by ML
(No verified email address) |
Current rating: 0
07 Oct 2003
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Muck Raker wrote:
" The News-Gazette's article today on Champaign's new police chief, R.T. Finney, is all congratulations and good feelings. I don't know, but I wonder if the N-G has done any sort of research on this fella, or if they just take the word of Champaign City officials and his old Carbondale bosses."
Based on reading the News-Gazette in the years since the Courier folded, that is the _only_ kind of coverage the News-Gazette is capable of doing, as long as you are white, Republican, or own a business. |
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More Stuff On Finney And Carbondale PD |
by Muck Raker
(No verified email address) |
Current rating: 0
07 Oct 2003
Modified: 03:49:17 PM |
SIU's daily newspaper has a little more data about Finney and the Carbondale police department if you work your searches right.
In Feb. 2002 the Daily Egyptian editoralized against the Carbondale PD's use of a "'nuisance ordinance' to prohibit students from simply standing on the Strip during the early morning hours." The "Strip" is sort of equivalent to Campustown's Green St.
Although aimed at avoiding the kind of troubles the city saw on Halloween, the Daily Egyptian editorial says the cops' use of the ordinance had more severe effects:
"But even students engaging in such mundane activities as waiting for cabs or standing in line at any of the businesses on Illinois Avenue have reportedly been victims of the newly enforced ordinance. They are not allowed to stand in one place, even when they do not appear to be congesting vehicular or pedestrian traffic. Gathering in groups to talk outside bars is strictly prohibited, resulting in downtown business owners shuffling late-night patrons out of back doors and into the alley to avoid confrontations with police."
The full text of the editorial is below.
The enforcement of this "nuisance ordinance" sounds kind of similiar to the treatment the Urbana IMC enjoyed from the Urbana PD last year when they decided to cite the traveling Bookmobile Project for "obstructing the sidewalk." (http://www.ucimc.org/newswire/display_any/6221).
Apparently an activist-minded SIU undergraduate was cited under Carbondale's ordinance in March, 2002.
Here's more on that case from Nightlife, Carbondale's alternative weekly:
"On March 3, Taylor, an SIU student activist, received the encroachment citation for eating a burrito in front of Old Town Liquors. His citation helped fan developing community controversy about the ordinance, which civil-liberties activists and legal experts felt was either unconstitutionally vague or unreasonably enforced.
"Governmental entities drop charges for many reasons. The most obvious is a lack of sufficient evidence.
"Less obvious motives exist, however. Taylor intended to challenge the ordinance’s constitutionality. By dropping the charges, the city can avoid the potential embarrassment of having its ordinance struck down. Dropping the charges leaves the law on the books.
"Taylor was also subpoenaed by the city in a criminal case-- while at work he allegedly witnessed a knife fight. Dropping the charges could be designed to ensure Taylor’s cooperation in a more important case.
"Whatever the rationale, Taylor is out of trouble for encroachment and the law remains on the books."
(http://users.midwestmail.com/nightlife/cdalerocks/nightlife/zzzPermanent/020411Signs.html)
So, it seems like under Finney's leadership, the Carbondale PD wasn't above bruising some civil liberties to keep order.
We have to wonder how he'd have handled last Spring's anti-Iraq war protest that took over the streets of campustown for an afternoon? (http://www.ucimc.org/newswire/display_any/10738) Maybe he'd handle it the same way the Champaign PD did (basically let University PD take the lead and help the protestors keep it peaceful). Maybe he'd handle it with a little more tear gas and mace.
But given how anti-war protesters have been treated by Champaign police up on North Prospect during Prospect for Peace -- http://www.ucimc.org/newswire/display_any/11619 -- one might be concerned that the new chief, who isn't afraid to infringe on civil liberties in the smaller city of Carbondale, may lean towards even more jack-boot tactics.
Obviously, more data is needed if we're going to draw a better picutre -- please pitch in!
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No Tear Gas Recently, But Don't Forget The Tank |
by ML
(No verified email address) |
Current rating: 0
07 Oct 2003
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It occurred to me as I reflected on the talk of tear gas and riot gear that we shouldn't let pass what occurred during the march and protests that happened at the beginning of the on-going Iraq War. While the Champaign Police did not attack the protest, they did have the Champaign "tank" -- really, an armored car -- standing by near the protest at West Side Park. No doubt those inside it were dressed in riot gear or at least had it at hand. It was a little more restraint than was practiced in Carbondale in the incidents mentioned above, but there shouldn't be any doubt that the situation here could have changed quickly. The Champaign cops are known for their aggressive attitudes. Having a police chief who has let the tear gas fly before is probably something they look forward to. |
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The Daily Egyptian Editorial |
by Muck
(No verified email address) |
Current rating: 0
07 Oct 2003
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Sorry -- forgot to put it in my last comment. Here it is:
February 26, 2002
HEADLINE: Police enforcing encroachment law unlawfully
BYLINE: Staff Editorial, Daily Egyptian
DATELINE: Carbondale, Ill.
Carbondale, Ill., has no law on the books that would make standing in one place a criminal activity. Police have been using Carbondale's
"nuisance ordinance" to prohibit students from simply standing on the Strip during the early morning hours.
Signs erected on Illinois Avenue in fall 2000 read, "It is unlawful to obstruct, encroach or block the flow of pedestrian traffic on sidewalks or vehicular traffic on streets." This is formally known as city code 17-1-4, or the nuisance code, a part of Carbondale's encroachment laws.
The law was enacted in 1993, but wasn't "enforced" on the Strip until after the riotous Halloween 2000, said Carbondale Police Chief R.T. Finney. By using the law to keep students mobile on Illinois Avenue after bars close at 2 a.m., the thoroughfare does not become congested, Finney said. Police are then able to quash any inklings of the traditional "taking of the Strip."
But even students engaging in such mundane activities as waiting for cabs or standing in line at any of the businesses on Illinois Avenue have reportedly been victims of the newly enforced ordinance. They are not allowed to stand in one place, even when they do not appear to be congesting vehicular or pedestrian traffic. Gathering in groups to talk outside bars is strictly prohibited, resulting in downtown business owners shuffling late-night patrons out of back doors and into the alley to avoid confrontations with police.
Downtown businesses such as Jimmy John's Gourmet Sub Shop are not only feeling the pinch of decreased sales, but owners are disgusted with the "out the back" policy they must assert on early morning patrons. Eric Stinson, Jimmy John's manager, has seen vehicles located in the back of his store vandalized, including the theft of signs on his delivery cars.
Students believe their constitutional right to peaceably assemble has been compromised in the name of order, and the Daily Egyptian agrees. We wholeheartedly support efforts by the city and the police to maintain peace and ensure that the ghosts of Halloween past do not return.
However, using the nuisance ordinance as a blanket law to prohibit merely standing is hurting local businesses as well as "encroaching" on students' rights.
We encourage police officers to use the law as it was written, only forcing those that obstruct vehicular and pedestrian traffic to move along. Students should not believe that standing in line on the Strip to get a gyro is illegal.
(C) 2002 Daily Egyptian via U-WIRE |
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More Background On Robert "R.T." Finney -- He's A "graduate Of The FBI" |
by Muck Raker
(No verified email address) |
Current rating: 0
07 Oct 2003
Modified: 04:16:44 PM |
Again, according to SIU's Daily Egyptian:
"Finney is a West Frankfort native with an associate of arts degree in police administration from Murray State University, a bachelor of arts degree in social justice from the University of Illinois at Springfield and a master of public administration degree from Western Illinois University." (3/10/99 - http://www.dailyegyptian.com/spring99/3-10-99/chief.html)
And here's a little tidbit that is conveniently left out of most press accounts on our new Chief:
"Finney is a graduate of the FBI ..."
(Fall '03 Edition - http://newshound.de.siu.edu/fall03/stories/storyReader$362)
Gruber's mark also remains in Quincy, Ill., where at 28 years old, he began shaking tradition in his first job as chief.
From a January 1, 1999 Chicago Daily Herald (puff piece) article about then-retiring Elgin Police Chief Charles Gruber, who had previously commanded the Quincy police department while Finney was there:
"In one decade there, Gruber changed the police uniforms to traditional blues, put officers in schools and targeted strip clubs, which gave the city a sordid image.
"'To this day there are no strip clubs in Quincy,' said Deputy Chief R.T. Finney, who worked under Gruber. 'In regards to quality of life here, it's excellent and I think he was a definite part of that.'"
I can see how that would make Champaign City officials twitter with glee, since they tripped over themselves to pass all sorts of anti-nudity ordincances several years ago when the former Mabel's made some rumblings about turning into a strip club.
The cops and firemen who love to hang out at the Silver Bullet must be thanking their lucky stars that Finney's not Urbana's new chief.
What? Free Speech?
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Re: New Police Chief In Champaign -- What's His Record? |
by Interested Citizen
(No verified email address) |
Current rating: 0
09 Oct 2003
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Here's another story of police macing street revelers -- the main question in my mind is how does the extremely heavy police presence affect crowd behavior?
FROM: http://www.edc.org/hec/news/hecnews/events/001103b.html
HEC News: Southern Illinois University Halloween Party Becomes Horror Story
Chicago Sun-Times 10/30/00
SIU Halloween party becomes horror story
by Kate McCann
CARBONDALE--Onlookers screamed in half-delight, half-fear, as Michael Ryan Baran launched a flaming sock into the 2,000-plus crowd gathered on Carbondale's "Strip" before dawn Sunday.
"I love SIU," Baran cheered over the deafening roar of SIU students and out-of-town revelers gathered to celebrate Halloween weekend.
But after two days of revelry, 78 people had been arrested and at least five businesses were damaged.
A long history of Halloween weekend violence had SIU holding its breath after the Carbondale City Council voted in March to permit beer and liquor sales in restaurants and stores. The decision marked the first time since 1995 that kegs and liquor were sold in the three-block radius around the SIU campus.
The community's fears were realized when the opening of bars along Illinois Avenue, coupled with a five-day recess from classes, resulted in violence. Authorities said there were "a couple of hours each night" when Illinois Avenue was taken over by revelers. No injuries were reported.
Most of the 78 arrested face charges of public possession of alcohol and underage drinking. A few face charges of property damage, reckless conduct and, in two cases, public indecency. Most of those arrested were released on bond.
Former congressman Glenn Poshard, now an SIU administrator, had stood with a small campus peacekee ping force in a guarded area on the Strip Saturday night.
"Our only purpose is to keep people from getting hurt," Poshard said before violence broke out.
A few hours later, he voiced his disappointment as he watched hordes of weaving students flee police, some wiping eyes burning with mace.
Carbondale police interfered little for the first hour after bars closed and students spilled onto the street, openly smoking marijuana, breaking into fights and throwing glass bottles. As many as 80 officers were dispatched, some in riot gear.
It wasn't until students lit a small tree on fire and began pelting officers with half-empty beer glasses that officers ordered students to disperse.
"We gave them several warnings," Carbondale Police Chief R.T. Finney said.
"When they didn't adhere to them, the [mace] was necessary."
City councilman Brad Cole said it is to the police officers' credit that they initially stood back, waiting for the crowd to break up on its own.
"You can't send two officers into a crowd of 2,000," he said. "It is unsafe."
Cole said the police department's confrontational approach toward Halloween rioters four years ago only fueled the already explosive situation.
The 1996 riots caused $10,000 in property damage to 12 businesses. Two years earlier, 129 arrests were made Halloween weekend, including 10 felony charges of mob action.
Jimmy John's sandwich shop was the hardest hit of five businesses damaged in this weekend's riots: A $2,000 sign was smashed by rocks weighing as much as three pounds.
Employees were forced to take cover in the back of Jimmy John's early Sunday morning as lights flickered inside and fireworks exploded outside. Police escorted the workers out nearly an hour after the attack on the storefront began.
Becky Butler, who is married to the shop owner, said Sunday as she swept up fragments of broken glass and jagged rock it was the police who failed her.
"Nobody stopped [the rioters]," said Butler, who wore a shirt emblazoned with "Peaceful Halloween 2000" to work Saturday night, hoping the weekend would pass uneventfully.
Source: http://www.suntimes.com:80/output/news/siu30.html
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Questions About The Constitutionality Of The Laws Finny Defends: |
by Interested Citizen
(No verified email address) |
Current rating: 0
09 Oct 2003
|
From:
http://users.midwestmail.com/nightlife/cdalerocks/nightlife/zzzPermanent/020411Signs.html
Expecially interesting is that Finny himself signed one of the tickets against one of the SIU students who was somehow encroaching an empty sidewalk.
from Nightlife 04/11/02
Sign, Sign, Everywhere a Sign:
Carbondale’s Encroachment Ordinance
The city of Carbondale insists that its encroachment ordinance, implemented to stop late-night partiers from blocking the Strip, is constitutional. Critics call it a vague, overbroad restriction on the First Amendment freedom to peaceably assembly. SIU alum and Chicago attorney Gary L. Goldblatt takes a look at the ordinance and a small sample of potentially pertinent case law, with a little help from Chris Wissmann.
When Laws Collide
Under the law, a city has the power to enact laws (called "ordinances") to regulate conduct of persons within the city limits. But the power to enact and enforce these ordinances is limited by other laws.
The United States Constitution and Illinois Constitution are laws that limit the powers of governments. Some Illinois laws also limit cities’ powers.
When laws conflict, which ones win? Most people know that the U.S. Constitution, as interpreted by the United States Supreme Court, is the most powerful. But even the Illinois Supreme Court and Illinois Constitution must be considered more powerful, in most areas, than any municipal ordinance.
What happens when a city passes an ordinance that is clearly in violation of the U.S. Constitution and U.S. Supreme Court decisions? Nothing... until that ordinance is challenged.
Case in Point
A potential case in point might just be the encroachment ordinance under attack in Carbondale. Since the publication of a February 6 Carbondale Times story, questions about the ordinance’s enforcement have sparked widespread community debate .
The ordinance, City Code 17-1-4, declares that "No person or group of persons shall obstruct, encroach upon, or unreasonably block the flow of pedestrian or vehicular traffic upon any public highway, street, sidewalk, alley, or publicly-owned common area, or any part thereof, by any means whatsoever."
But according to the U.S. Supreme Court, the U.S. Constitution prohibits criminal laws that are so vague that ordinary people cannot understand what conduct is prohibited. Nor does the Constitution allow criminal laws that are so vague that they would allow police to make arrests in an arbitrary or discriminatory fashion. These rules are sometimes referred to as the "void-for-vagueness" doctrine. A crude example might be a law making it a criminal offense to "do things not normally done." It would be difficult to determine what the law allows and what it makes a crime. Such a law could allow police to potentially arrest anyone at any time, for any reason.
Another rule that has been used by the Supreme Court is the "overbreadth" rule. If a law’s objective is permissible, but also inhibits First Amendment (freedom of expression, assembly, movement) rights, then the law can be invalidated as "overly broad." A crude example might be a law promoting peace and tranquility and limiting noise pollution... that makes speaking aloud in public a criminal offense. This law could make it a crime to express one’s political opinions in public.
Because these doctrines and rules are general, and the application to laws under attack can be subjective, past Supreme Court cases serve as precedents; that is, official interpretations and refinements of these doctrines that are supposed to provide guidance and examples for future lawmaking and disputes.
Constitutional law is complicated, with a significant political element. It is also highly conceptual. There is often heated debate from many corners on issues of constitutional law, and there are lots of opinions. Just as in politics, almost everyone has an opinion, but few are acknowledged experts.
Your writer is not an expert in constitutional law. Even the experts often disagree. In many of the cases of this nature that come before the U.S. Supreme Court, experts on both sides disagree with each other. Often the dispute is resolved only after a ruling by a court. How do cases like this get started?
SIU Undergraduate Student Government
senator Rob Taylor displays the citation
for encroachment given to him for an
act of civil disobedience March 3.
On March 3, SIU student activist Rob Taylor was cited for encroachment while eating a burrito in front of Old Town Liquors. He intends to challenge the ordinance on constitutional grounds. Some U.S. Supreme Court cases seem to favor his position. But "Upon review of pertinent case law [including the cases cited later in this article], it is the city's opinion that the ordinance is constitutional," writes City Attorney Paige Reed in an email to Nightlife.
Learning More
There are probably dozens if not hundreds of cases that at least touch on the issues presented by a constitutional attack on Carbondale’s encroachment ordinance. Space prevents an exhaustive review of all or even a majority of such cases. To provide Nightlife readers with some excerpts from U.S. Supreme Court decisions in this area, however, here are summaries and quotes from four major Supreme Court opinions from the 1960s to the 1990s. Keep in mind that, in each of these cases, there was a city (or state) on one side whose position was that the application of the law in question was constitutional, and the Supreme Court decided otherwise (although, in many cases, some justices dissented).
Nightlife encourages readers to look up and read these cases and the others cited in those opinions. Many libraries, and all law libraries, have Supreme Court decisions. A citation "461 U.S. 352 (1982)" means volume 461, page 352 of the U.S. Supreme Court Reports. "352" would be the starting page of that case. "1982" is the year the case was decided.
In addition, readers can learn more at a Southern Illinois American Civil Liberties Union forum on this issue Monday, April 15 at 7:30 p.m. in the SIU Museum Auditorium on the north end of Faner Hall. "The purpose of the forum is to gauge community experience with use of the ordinance and explore ways that enforcement guidelines or the statute itself might be modified to preserve civil order while having the least impact on appropriate use and enjoyment of sidewalks by the public," reads an SI-ACLU press release. Carbondale Police Chief R.T. Finney, City Attorney Paige Reed, Undergraduate Student Government President Michael Perry, and SIU Crime Studies Center professor emeritus Cyril Robinson will participate. "The forum is designed to advance ongoing conversations between residents and city officials about the enforcement of the code and allow for maximum community input in the process," states the press release.
"The forum is design to solicit community opinion before [the next city council meeting]," writes SI-ACLU president Mark Schneider in an email to Nightlife. "While much has been written about the topic, few people other than Rob Taylor have complained about enforcement of the ordinance in public." Schneider hopes the meeting will not only prove educational, but will offer opportunities for the public to discuss any objections with the ordinance or the way it’s been enforced, and "to discuss alternative ordinances or guidelines that could accomplish the reasonable objective of preventing the Strip from being taken without making the Strip a wasteland between 1:30 a.m. and 2:30 a.m."
Finally, interested parties may wish to attend Taylor’s trial, scheduled for Monday, May 13 at 1 p.m. at the Carbondale Civic Center. Those who attend, however, must respect the court, its proceedings, and its decision, whatever it may be, or face arrest and charges that will only hurt Taylor and his cause. That means keeping absolutely silent while court is in session.
The Precedents
In 1962, the city of Birmingham, Alabama, enforced an ordinance that made it an offense to "so stand, loiter, or walk on any street or sidewalk... so as to obstruct free passage over, on or along said street or sidewalk." The ordinance also made it "unlawful for any person to stand or loiter upon any street or sidewalk... after having been requested by any police officer to move on."
Mr. Shuttlesworth was standing on the sidewalk in Birmingham in front of a store. A policeman told him he was obstructing the sidewalk. Shuttlesworth asked, "You mean to say we can’t stand here on the sidewalk?" He was ordered to move again. He said, "You mean to tell me we can’t stand here in front of this store?" Then he walked into the store. He was arrested in the store. He was convicted and sentenced to 180 days of hard labor.
After three years of appeals, the U.S. Supreme Court in 1965 reversed Shuttlesworth’s conviction in Shuttlesworth v. Birmingham. The court’s opinion, written by Potter Stewart, reads in part:
"Literally read... the second part of this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city. The constitutional vice of so broad a provision needs no demonstration.... It does not provide for a government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat.... Instinct with its ever present potential for arbitrarily suppressing First Amendment liberties, that kind of law bears the hallmark of a police state."
The case is Shuttlesworth v. Birmingham, 382 U.S. 87 (1965), and the above quote was found at pages 90 and 91. Based on constitutional violations, Shuttlesworth’s conviction was set aside.
In a similar U.S. Supreme Court case, Papachristou v. City of Jacksonville, 405 U.S. 156 (1972), a Florida city’s vagrancy law was declared unconstitutional. The ordinance prohibited, among other things, "Common night walkers... persons wandering or strolling from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business...."
In the opinion of the court, Justice William O. Douglas quoted an article from the Yale Law Journal where the author stated, "If I chose to take an evening walk to see if Andromeda has come up on schedule, I think I am entitled to look for the distant light of Almach and Mirach without finding myself staring into a blinding beam of a police flashlight."
The opinion went on to quote longstanding legal doctrines:
"This ordinance is void for vagueness, both in the sense that it ‘fails to give a person of ordinary intelligence that his contemplated conduct is prohibited by the statute,’ [as per] United States v. Harris, 347 U.S. 612, 617, and because it encourages arbitrary and erratic arrests and convictions [as per] Thornhill v. Alabama, 310 U.S. 88 [and] Herndon v. Lowry, 301 U.S. 242.
"Living under a rule of law entails various suppositions, one of which is that ‘[all persons] are entitled to be informed as to what the State commands or forbids’ [as per] Lanzetta v. New Jersey, 306 U.S. 451, 453. Lanzetta is one of a well-recognized group of cases insisting that the law give fair notice of the offending conduct. See Connally v. General Construction Company, 269 U.S. 385, 391; Cline v. Frink Dairy Company, 274 U.S. 445; United States v. Cohen Grocery Company, 255 U.S. 81."
In 1983 the U.S. Supreme Court struck down yet another law that restricted freedom of movement. In Kolender, Chief of Police of San Diego v. Lawson, 461 U.S. 352 (1983), Justice Sandra Day O’Connor wrote the opinion in a seven-to-two decision. California had passed a law designating a person to be a criminal if he or she "loiters or wanders on streets from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer to do so, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification." If so, a person was required to provide "credible and reliable" identification, according to the California courts. This included "assurances that the identification is authentic and providing a means for later getting in touch with the person." Failure to provide "credible and reliable" identification was grounds for arrest.
Justice O’Connor stated, "[This law] contains no standard for determining what a suspect has to do in order to satisfy the requirement to provide a ‘credible and reliable’ identification. As such, the statute vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute and must be permitted to go on his way in the absence of probable cause to arrest. An individual, whom police may think is suspicious, but do not have probable cause to believe he has committed a crime, is entitled to continue to walk the public streets ‘only at the whim of any police officer’ who happens to stop that individual under [the California law, citing] Shuttlesworth v. Birmingham, 461 U.S. 352 at 358."
On page 361 of the Kolender opinion, Justice O’Connor continued, "Appellants (the State of California) stress the need for strengthened law enforcement tools to combat the epidemic of crime that plagues our Nation. The concern of citizens with curbing criminal activity is certainly a matter requiring the attention of all branches of government. As weighty as this concern is, however, it cannot justify legislation that would fail to meet constitutional standards for definiteness and clarity. See Lanzetta v. New Jersey, 306 U.S. 451 (1939)....
"We conclude this [California law] is unconstitutionally vague on its face because it encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute."
In a more recent case, the U.S. Supreme Court struck down yet another anti-loitering law as too vague and giving too much discretion to police. In 1992, the city of Chicago enacted the so-called Gang Congregation Ordinance, which made it a crime for a person to "remain in one place with no apparent purpose" and whom a policeman "reasonably believes to be a criminal street gang member" who fails to obey a police order to disperse. Penalties included jail time, fines, and community service. In three years, police issued more than eighty-nine-thousand orders for people to disperse. More than forty-two-thousand persons were arrested.
Trial courts found the ordinance unconstitutionally vague and refused to enforce it. The Illinois Appellate Court agreed. The city appealed to the Illinois Supreme Court, which agreed that the ordinance was defective. The city stubbornly appealed again to the U.S. Supreme Court, which took the case.
In delivering the opinion of the court, Justice John Paul Stevens stated, "The broad sweep of the ordinance also violates the ‘requirement that the legislature establish minimal guidelines to govern law enforcement’ [citing Kolender v. Lawson]. There are no such guidelines in [the city of Chicago’s] ordinance. In any public place in the city of Chicago, persons who stand or sit in the company of gang members may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to catch a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may-- indeed, she ‘shall’-- order them to disperse....
"As we discussed in the context of fair notice, the principal source of the vast discretion conferred on the police in this case is the definition of loitering as ‘to remain in any one place with no apparent purpose.’ As interpreted by the Illinois Supreme Court, it ‘provides absolute discretion to police officers to decide what activities constitute loitering.’"
The case is City of Chicago v. Morales, 527 U.S. 41 at 60-1 (1999).
According to Jennifer Hoyle, the City of Chicago Department of Law’s Public Information Officer, the city of Chicago had to revise its gang-loitering ordinance to clarify terms like "loitering" and "disperse" in order for it to pass constitutional muster. Chicago police officers also received special training in the enforcement of the new gang-loitering law.
Both Sides Now:
Carbondale’s Encroachment Ordinance
Carbondale City Attorney Paige Reed.
Paige Reed believes that the above cases support the constitutionality of Carbondale’s law.
"The opinion that the Carbondale ordinance is unconstitutional has continually failed to be supported by any state or federal case law," writes Reed in an email to Nightlife. "In fact, the cases [summarized and quoted above] seem to clearly hold that as long as there is proof of ‘obstruction or blocking of pedestrian flow of traffic on the sidewalk,’ then the city's ordinance is clearly constitutional as written and enforced.
"As you know, the city's policy of enforcing this ordinance includes evidence of ‘obstructing or blocking.’ Therefore, any allegation that the city of Carbondale's ordinance is unconstitutional is unsubstantiated."
Reed says a state court in Jackson County ruled the ordinance constitutional in City of Carbondale v. Anthony Post, 2000-OV-1589.
It is not clear from a review of the case file, however, that constitutional issues ever arose in Carbondale v. Post; Associate Judge Kimberly L. Dahlen, who ruled on the case, does not even acknowledge a constitutionality argument in her court order, filed on January 26, 2001.
Court documents show that Post was arrested November 4, 2000 at about 2:18 a.m., the weekend after Halloween 2000 and the first weekend in which the Carbondale Police Department began zero-tolerance enforcement of the encroachment ordinance. Carbondale Police Chief R.T. Finney signed Post’s ticket.
In a phone interview with Nightlife, Post, who no longer lives in Southern Illinois, said at the time he had just received his bachelor degree in zoology. Post was not a lawyer, nor did he retain a lawyer to represent him. Instead, Post and some friends did their own legal research and he defended himself in court.
Post said he filed no legal briefs challenging the ordinance’s constitutionality; none are in the court file.
Post said he tried to argue the facts of the case-- that there was no traffic to block, he said, and therefore he couldn’t have been guilty of encroachment. Part of Post’s defense hinged on the definition of encroachment-- Post said his legal research revealed that encroachment did not apply to people, but to the placement of personal property on sidewalks. Under the definition of encroachment, he argued, people could not encroach. Moreover, Carbondale’s ordinance, he said, appeared to be enacted to regulate sidewalk sales and pushcart vendors. Post tried to argue that the city council didn’t intend for the ordinance to be used to regulate foot traffic.
Post’s arguments did not prevail. He was found guilty and fined $75 plus court costs, for a total of $139.
The case file contains copies of two U.S. Supreme Court decisions, Chicago v. Morales and Coates et al. v. Cincinnati 402 U.S. 611 (1971), and an Illinois appellate-court decision, Chicago v. Youkahana 213 Ill.Dec 777, 660 N.E. 2d34 (Ill.App.1 Dist.1995), but these cases are not addressed in any of the documents in the Carbondale v. Post case file. The motion for reconsideration filed on Post’s behalf by attorney Betsy Streeter, which was denied, mentioned Post’s "Constitutional right to peaceably assemble," but did so in passing; instead of mounting a constitutional challenge, the motion for reconsideration primarily reiterated the arguments Post made at trial. Post did not appeal.
In 2001, Post was again busted for encroachment, and he told Nightlife that this time he intended to challenge the ordinance’s constitutionality. While he hired an attorney to help him prepare paperwork (including a motion to dismiss, declaring the ordinance "unreasonably vague"), Post again intended to represent himself in the case, City of Carbondale v. Anthony Post, 2001-OV-419. Post, however, never argued the case. He told Nightlife that the notice of his status hearing was postmarked August 28, the Friday before Labor Day. Post’s status hearing was Tuesday, September 4, the day after Labor Day-- the day he said his notice to appear arrived in the mail. Post says the letter arrived while he was at work. He came home to discover he’d missed his court date. He was found guilty ex parte and fined $250 plus court costs, for a total of $336. Again, Post did not appeal.
The court files in the Circuit Clerk’s office at the Jackson County Courthouse may not be complete, however. For example, the first Post case file does not contain Judge Dahlen’s response to the motion for reconsideration filed by Betsy Streeter.
Meanwhile, Paige Reed wrote that there were other cases in which the city successfully defended constitutional challenges. Reed, however, could not produce the case names or their case numbers from memory.
The Southern Illinois ACLU’s Mark Schneider wrote in an email to Nightlife that "running the original Carbondale Times story [about the encroachment ordinance] by the Illinois ACLU did not cause [the ACLU] to leap into action. The attorney I talked with suggested that no ‘protected activity’ was involved and so the situation fell outside ACLU concerns. Yet some members of the local ACLU see the matter [differently]."
William A. Schroeder, a professor at the SIU School of Law and a former prosecutor who teaches criminal procedure and evidence, weighed in against the ordinance. "It seems to me that the Carbondale ordinance is even worse than the one in Shuttlesworth," declared Schroeder in an interview with Nightlife. "At least in Shuttelsworth a person could avoid arrest if he or she obeyed an officer's order to move on. In Carbondale one is subject to arrest without warning simply because one is perceived to be ‘unreasonably blocking’ the way. How can anyone know when someone else will perceive their actions as unreasonable?"
Most people know they can’t lay down in the streets or sidewalk and block traffic. The city ought to be able to bust the people who do, right? "Yes," said Schroeder. But isn’t that all the ordinance provides for? "No, and that’s the problem," said Schroeder. "As far as the obstructing and encroachment part, ‘encroachment’ is defined as advancing by gradual steps or stealth onto the rights of others or advancing beyond usual or proper limits. What are the usual and proper limits on sidewalk use?
"‘Obstruction’ means to block or hinder passage. Passage of what? Pedestrians? Vehicles? The ordinance refers to those things but only in the context of unreasonably blocking them." As written, he says, someone who fell down on the street, broke a leg, and couldn’t move would be encroaching.
"I do not see how those words are any clearer than the words the Supreme Court has declared unconstitutional in other cases," said Schroeder. "Like the language the court has struck down, Carbondale's ordinance does not provide fair notice of what is prohibited and what is permitted. And it encourages arbitrary enforcement as illustrated by the fact that [it] is only enforced at certain times in certain places."
But do they have to spell it out? Does Carbondale have to give warnings before citing people for blocking traffic? "Without a warning, that makes [the vagueness issue] that much worse," said Schroeder.
Does the city even need an encroachment ordinance? Why not just use the disorderly conduct ordinance?
"The problem they’re trying to address, I would concede, is legitimate, and they may need a special way to address it," he said. "I do think that the city could pass an ordinance that imposed reasonable limits on the number of people who could stand on the sidewalk and limits on the time they could stand there, but the ordinance could not use the word ‘reasonable.’ Instead it would have to say something like ‘no more than three people for no more than three minutes.’ And I think it could (and should) be limited to certain areas where there have been problems....
"The fact remains they could have written a better ordinance, and they didn’t do that."
It would help a lot, said Schroeder, if Carbondale did what the Chicago City Council did in its gang-loitering ordinance and added clear definitions to the encroachment ordinance-- in Carbondale’s case, definitions for terms like "block" and "encroach."
Potential Consequences
It appears there is, at least, a substantial question whether the Carbondale ordinance is constitutional. An ordinance of questionable validity may invite attack. Such an attack, even if unsuccessful, either as a defense or at trial, or in a civil case seeking a declaration of invalidity, may require significant city funds and resources in what could turn out to be a losing cause.
That’s what happened to the city of Chicago in Morales. Jennifer Hoyle said that taking the case to the United States Supreme Court "no doubt required an extensive use of resources... but I can’t put a dollar figure on it" because the case was entirely handled in-house by salaried city attorneys, including a staff constitutional-law scholar. Chicago did not require expert witnesses or outside legal council charging hourly rates in order to defend its gang-loitering ordinance. Smaller municipalities might have, and the costs could have proven enormous.
When asked about the cost of defending an ordinance at appeal, William Schroeder agrees with Hoyle. "That’s hard to calculate," he said. "In a sense, it costs nothing, because [a city is] doing it with salaried employees. In another, it requires hundreds of hours. Hiring outside counsel at $75 an hour [to take a case to a state appellate court], which is obscenely cheap? Five to ten grand, maybe fifteen grand." Taking it to the state supreme court would require another $5,000 to $15,000, said Schroeder. As for the United States Supreme Court, "That’s very unlikely. That’s not going to happen. The chances of that happening, I would have to say, are about a likely as us getting hit by a meteor before this conversation ends. But it would be very, very costly-- another ten to twenty grand."
Closing Arguments
As the United States Supreme Court has stated, there are a number of reasons why overly broad and vague laws are not permitted in our legal system. Why a city might choose not to follow these rulings is speculative. In the case of the Chicago ordinance in Morales, the city council made a number of findings: that gang activity was responsible for a rising murder rate and escalation of other crimes, that gang members commit crimes when police are not present, and that gang activity creates fear in law-abiding citizens. Probably, none of us would argue with the proposition that "something should be done" in response to fear-inducing, violent activity. Yet Chicago chose to enact a defective law. In Morales, Justice O’Connor suggested that the city had many legal options to combat gang activity (such as enforcement of existing criminal and other laws), but it chose an illegal option.
Will Rob Taylor or others challenge the Carbondale encroachment ordinance as constitutionally defective? Will Taylor or others succeed? How much money and resources will the city spend on the ordinance’s defense? Will the city continue to arrest and prosecute citizens for violation of this ordinance? Stay tuned.
Editor’s note: Gary L. Goldblatt, while an attorney, is not a constitutional law expert. This article is not a legal opinion or legal advice. It is definitely not a complete or exhaustive review of the issues in this legal area. It is intended as a journalistic overview of some historical and practical considerations relating to these legal issues. If you would like to learn more, please read the cases cited in this article as well as the references mentioned in the test of the cases cited in this article.
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from Nightlife 06/13/02
Epilogue: Juris-prudence
Last week, the city of Carbondale dropped encroachment charges against Rob Taylor.
The ordinance under which Taylor was cited, City Code 17-1-4, declares that "No person or group of persons shall obstruct, encroach upon, or unreasonably block the flow of pedestrian or vehicular traffic upon any public highway, street, sidewalk, alley, or publicly-owned common area, or any part thereof, by any means whatsoever."
Laughing at the city's expense:
Dumpster Diver Productions merchandise
mocks the city's encroachment ordinance.
On March 3, Taylor, an SIU student activist, received the encroachment citation for eating a burrito in front of Old Town Liquors. His citation helped fan developing community controversy about the ordinance, which civil-liberties activists and legal experts felt was either unconstitutionally vague or unreasonably enforced.
Governmental entities drop charges for many reasons. The most obvious is a lack of sufficient evidence.
Less obvious motives exist, however. Taylor intended to challenge the ordinance’s constitutionality. By dropping the charges, the city can avoid the potential embarrassment of having its ordinance struck down. Dropping the charges leaves the law on the books.
Taylor was also subpoenaed by the city in a criminal case-- while at work he allegedly witnessed a knife fight. Dropping the charges could be designed to ensure Taylor’s cooperation in a more important case.
Whatever the rationale, Taylor is out of trouble for encroachment and the law remains on the books.
Meanwhile, a new fabric-art/silkscreening company, Dumpster Diver Productions, released a T-shirt at MakandaFest lampooning the city’s encroachment ordinance. Dumpster Diver’s fine apparel has a graphic of the city’s encroachment-warning signs on the front, with text reading "Big brother is watching you" on the back-- and the word "arresting" is superimposed over "watching."
The company is offering a free T-shirt to anyone who brings in an encroachment ticket. For more information, email <woodboxgang (at) yahoo.com>.
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Re: New Police Chief In Champaign -- What's His Record? |
by Paul Mueth
paulmueth (nospam) yahoo.com (unverified) |
Current rating: 0
16 Oct 2003
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I'm late in adding this comment, I was asking around to see if I could find out who Muck was .. .
The Public I is interested in an article on this issue, particularly if it calls for police review board .. .
It can be anonymous!, drop disk in manila envelope.
if it's a letter we wouldn't edit it ..
I guess this goes to any one inspired by Muck's work. . .
cheers |
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Re: New Police Chief In Champaign -- What's His Record? |
by Muck Raker
(No verified email address) |
Current rating: 0
24 Oct 2003
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My intent is to raise questions and get people investigating. I'm not interested in writing an article myself, but I'd be glad if the public used any and all of the data we've drudged up. |
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