Seventh Circuit

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7th Circuit Strikes Down Disorderly Conduct Statute

September 10, 2012 in Due Process, First Amendment, Fourteenth Amendment, Seventh Circuit by Adele Nicholas | No comments

The Seventh Circuit struck down a portion of the City of Chicago’s municipal disorderly conduct statute today. Specifically, the Court found that Subsection D of the law, which criminalizes an individual’s behavior when he “knowingly . . . 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” was unconstitutional.

The court found that this Subsection was unconstitutionally overbroad under the First Amendment and unconstitutionally vague under the 14th Amendment. Judge Flaum wrote for a unanimous panel: “Subsection D may still implicate protected expression because, once triggered, it may be applied to disperse people engaged in peaceful speech or expressive conduct, including on topics of public concern. … Accordingly, to the extent that Subsection D authorizes dispersal when an assembly creates or is threatened by “substantial harm,” it does not improperly infringe upon protected speech. We cannot say the same, however, for authorizing dispersal on the basis of “serious inconvenience, annoyance or alarm.””

The full text of the opinion is available here.

“Eavesdropping” Update

September 28, 2011 in ACLU, Eavesdropping, First Circuit, Internal Investigations, Seventh Circuit by Adele Nicholas | No comments

Illinois has a quirky “eavesdropping” statute, 720 ILCS 5/14-1, which makes it criminal to make an audio recording without all recorded parties’ consent. Most states require the consent of only one participant. The statute has been used by Chicago police in several instances to prosecute citizens who’ve used cell phones to record police misconduct. There have been several recent developments that call into question this outdated statute.

In one recent case, a Cook County jury found 20-year-old Tiawanda Moore not guilty of violating the statute. She was charged with two felonies for secretly recording her interview with two police officers from the Chicago Police Department’s internal affairs division. She caught the officers on tape trying to talk her into dropping her sexual harassment claim against an officer who responded to a domestic disturbance at her house. The officer allegedly groped Moore and gave her his phone number. When the internal affairs officers tried to pressure her into dropping the complaint, Moore took out her Blackberry and started recording. Moore faced a possible jail term of 15 years. On August 24, 2011, the jury returned a “not guilty” verdict in less than an hour.

Meanwhile, the American Civil Liberties Union is challenging the eavesdropping statute in federal court in the case ACLU v. Alvarez, 11-1286. The lawsuit argues that the statute is unconstitutional because it makes it a felony for ACLU employees to record police activities at demonstrations, protests and other public events in which citizens are exercising their First Amendment rights. The Seventh Circuit heard oral argument in the case on September 13. Judges Posner, Sykes and Hamilton were on the panel that heard the case. Judge Posner was vocally hostile to the ACLU challenge, peppering attorney Richard O’Brien (a Sidley Austin partner who appeared on behalf of the ACLU) with hypothetical scenarios in which the eavesdropping statute would protect innocent citizens from dissemination of private conversations. O’Brien argued that it is unconstitutional for a statute to criminalize the activity of a citizen who records a public employee performing public duties in a public place. He also points out that citizens are not prohibited from photographing or video-recording police officers; the outdated eavesdropping law reaches audio recordings only. Judges Sykes and Hamilton seemed more sympathetic to the ACLU’s challenge.

Audio of the oral argument in the case (recorded with the knowledge and implied consent of all involved!) is available here.

The First U.S. Circuit Court of Appeals (which encompasses Boston) ruled August 26 in Glick v. City of Boston, 10-1764, that Boston police violated the constitutional rights of Simon Glick when they arrested him for using his cell phone to film police officers making an arrest on the Boston Common. Glik was charged with violation of Massachusetts’s wiretap statute. The Court wrote:

We conclude, based on the facts alleged, that Glik was exercising clearly-established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause.

The full text of the decision is available here. Hopefully, Illinois courts move in the same logical direction.

Seventh Circuit: Fear of Heights May Be a Disability

May 11, 2011 in Americans with Disabilities Act, Employment Discrimination, Seventh Circuit by Adele Nicholas | 1 comment

Darrell Lynn Miller worked for the Illinois Department of Transportation from 2002 to 2007. Miller was assigned to a six-member bridge-maintenance crew that worked out of Dongola, Illinois, at the southern tip of the state.

From the beginning of his employment, Miller was fearful of heights and had trouble performing certain tasks, such as walking on bridge beams. However, Miller was still able to perform many duties, including snow removal and grounds-keeping, repairing and maintaining equipment, spreading gravel and asphalt, directing traffic, and even performing work in a hydraulically lifted “snooper bucket” at heights of up to 80 feet. For most of Miller’s employment, his team accommodated his fear by simply switch tasks with him so he wouldn’t need to perform those duties that triggered his acrophobia. Likewise, other employees accommodated each others’ limitations. For instance, one person with allergies was not required to mow grass or spray bridges.

However, in March 2006, Miller was assigned two tasks that triggered his fear. On March 10, 2006, Miller was directed to nail plywood sheets to the underside of a bridge, a task that required him to go up in a snooper bucket and then unhook his lifeline. Miller completed the job, but filed a grievance claiming that the task was unsafe. Then, on March 23, 2006, Miller was assigned to change light bulbs on a bridge over the Mississippi River, a task which required Miller to climb over the edge of the bridge above the water. Miller had a panic attack and was hospitalized.

IDOT placed Miller on sick leave and ordered him to submit to a fitness-for-duty examination. IDOT’s doctor determined Miller was unfit for duty. Miller filed a grievance and a request for accommodation, which he supported with another evaluation from an independent doctor who found he could perform most of the job’s duties. IDOT denied the request in January 2007, but nonetheless, Miller was ordered back to work in May 2007. On his first day back, he had a dispute with a co-worker. In June, he was terminated for allegedly threatening her.

Miller sued, alleging disability discrimination and retaliation. The U.S. District Court for the Southern District of Illinois (Stiehl, J.) entered summary judgment for IDOT, finding that Miller’s requested accommodation (shuffling work duties among team members) was unreasonable, that he was incapable of performing the essential functions of his job, and that Miller had not shown that IDOT’s reason for terminating him was a pretext for discrimination.

On May 10, 2011, the Seventh Circuit reversed that decision, finding that Miller had presented sufficient evidence that IDOT regarded him as disabled, that he was able to perform the essential functions of his job, his accommodation request was reasonable, and there were fact disputes about the termination.

“After … Miller was formally diagnosed with acrophobia, IDOT immediately precluded him from performing any task required of the bridge crew, even tasks that could be performed from the ground,” the court wrote. “IDOT forced him on non-occupational disability leave and exaggerated the relatively modest effects of the acrophobia. Even after two psychiatrists cleared him for work without any significant restrictions, IDOT continued to preclude Miller from returning to any and all tasks performed by the bridge crew.” The Seventh Circuit reversed and remanded.

The case is: Darrell Lynn Miller v. Illinois Department of Transportation, 09-3143.

Seventh Circuit Judge David F. Hamilton authored the opinion. Judges Posner, Hamilton and Rovner were on the panel. The decision reverses the ruling of Judge William D. Stiehl of the U.S. District Court for the Southern District of Illinois.