Since Arrest by Chicago Cops was "Clear Misuse" of Law, Court Couldn't Decide Constitutionality

Federal case law summary: Free Speech, heckler's veto.

Goldhamer v. Nagode. 7th Circuit, First Amendment standing

Plaintiffs were protesting near a military recruiting booth at the Taste of Chicago festival. Police officers formed a line between the protesters and the booth, and ordered the plaintiffs to disperse, pursuant to city ordinance, "under circumstances where three or more persons are committing acts of disorderly conduct in the immediate vicinity...." Plaintiffs refused, and were arrested.

Plaintiffs appeared in state court on these charges, and prosecution requested a continuance. This request was denied, and the state court instead dismissed the charges. The Court of Appeals noted that the grounds for the arrest were apparently specious, since there was no evidence that three or more persons were committing acts of disorderly conduct.

Plaintiffs then commenced this action in U.S. District Court, seeking injunction against enforcement of ordinance, since it amounted to an impermissible "heckler's veto" of free speech. The District Court agreed, and enjoined enforcement of the ordinance.

The Court of Appeals reversed, holding that the plaintiffs lacked standing. "Such a clear misuse of a law [arrest despite the fact that no persons in the vicinity were acting disorderly] does not provide a basis for a federal court to explore the law's facial constitutionality."

In a footnote, the Court noted that its opinion "should not be understood to extend to a situation in which police misuse of the failure to disperse law has become so common as to amount to a municipal policy or custom that would subject the city to direct liability under section 1983.

No. 09-2332 (7th Cir. Sept. 2, 2010).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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