good morning justice is my name is steven distance and then along with wayne creole we represent the metropolitan water reclamation district of greater chicago and in the strictest sense and you'll be the only one making an argument that that's correct for terror good morning  riter this is david gusman and with me is my partner joel andersen and we represent the n m project company or their project company as referred to in this case and i will be the only one giving an argument for you each side is fifteen minutes but we don't look at our watches in this division and if things are moving on to try to repeat yourself we have read the briefs we've seen the video which is thank you very much for putting it in there but we do appreciate if your strongest point first any time your a court it's number eleven zero seven eight zero that appeal was filed recently in connection with the order from judge panteley awarding attorneys fees and costs to what we call the project company which reclamation district of greater chicago which i refer to as the district did not violate either of the prior orders that i have the subject of the emergency verified petition for contempt the first orders a preliminary injunction order that was entered on august fourteenth two thousand and eight the second order is the order on the merits with the exception of damage claims that was entered on may nineteenth two thousand and nine the district violated no provision of those orders he orders in essence set forth particular conduct that the district was not to undertake to as the project company claimed interfere with the project company's ability to develop these three parcels at six explore six six six in six seventy north michigan avenue in the course of the preliminary injunction hearing and the testimony from that hearing the evidence from that hearing has been incorporated into all of the subsequent hearings in the course of bed sharing that circuit court made a specific finding in its aug fourteenth order that the district has legitimate security concerns that relate to how that private alley between the district property at one of the one one hundred eighty stary and the three parcels to the east how the private alley is managed in controlled those securities relate to the fact that this particular building which the district calls its main office building or m o b is the building that houses the districts publicly le commissioners the public hearing room in which the commissioners conduct the regular meetings in special meetings the building also houses what's called the districts waterways control room which is the control room from which all of the waterways throughout the chicago metropolitan area i regulate it in control by the water reclamation district in this price the alley which is eighteen feet wide and ninety five feet long dead ending into the sick seventy parcel for the north and open to erie street on the south this private alley has three access points to the district's main office building one of those is an open entrance to a parking garage on the first floor a part of the first floor of the district's building the second one is a brilliant way that accesses the district's basement and then food in the final access point is the emergency exit from the district's public hearing room that goes directly into the alley and that's because directly on the other side of that brick wall is the public hearing room where the district conducts all of its public meetings the court found that the district has legitimate security concerns controlling access to that private alley in fact the court said in its order it's on page eight ten of the appendix that the crew it raly orders the gate that was presently directed to be removed the court has no with some gate that doesn't interfere with the full width of the alley some gate in the court said due to the district's can security concerns the court when further the quote expressively recognize that the district has a right the court said right to determine if an unidentified person that is found in the alley belongs in that alley and what the court found and i quote i think the district does have a right to know who that everybody is authorized to be there meaning to be in the alley the priorities that were entered both the august two thousand and eight order and the may two thousand and nine order say nothing whatsoever as to any limitation on the district's ability to secure they all those who are saying nothing best how the district is to determine who has a right to be in the alley and who doesn't have a right or stated differently who is authorized to be there there is no printed edition in that ward of the or either of those orders telling the district it can't make sure as the court said in its finding that everybody who's in the alley is authorized to be there the occasion that's the subject of the contemporary seeding which occurred on october thirteenth two thousand and nine is just such a situation there was an unidentified man who entered into the alley we had a police officer the district had a police officer after one hundred east erie building at the security desk monitoring video cameras that show who is and who may be coming into the alley are noticed that someone came in the alley did not recognize that person the person didn't look like someone who's typically in the alley the construction workers who work and wet is what was the and is now an active construction site so the officer was concerned that this person may not be authorized to be in the alley and of sorrow that person may be trespassing does the metropolitan scien district heavy police force or in the security of it has a police force judge that is recognized as such by statute it is it's a state sponsored police force a state certified police force its officers go through the normal state certification process they take an examination they have firearms training they have use of force training they go through all the requirements of any other police officer that certified by the state of illinois your honour's all the district was doing and i told her thirteenth two thousand and nine was monitoring who was in the alley when it found somebody when officer phillips when he said phillips who was the the officer on duty at the desk saw this person he didn't know who he was she went out to investigate whether there were a trespass occurring and that's all she did and that's perfectly consistent with what judge panteley the trial court ordered in both august of two thousand and eight district has a security interest that needs to be protected i judged it recognized that the district has a right to know that someone in that alley is authorized to be there and i might add it's in the best interests of the clans a company as their principal testified they only allow authorized people to be in that alley it's in the best interests of the parties on both sides of that alley to make sure that the people in the alley are authorized to be there at worst at worst it's an ambiguous or an ordered an ambiguous order or no order that needs clarification under either circumstance the district didn't violate either of those two workers in order to be the subject of a contempt seating have to be clear explicit unambiguous in this case for the reasons that i described we don't have such an order as to several of the other arguments that the private company has raised and that the circuit court relied on again the district violated no provision of the order of interest or cause it required in order to circulate in either order to circulate those orders to all of its employees or all of its police it would be unexpected for the district to have to do that we have a shooting page order from august of two thousand and eight which is an order for a lot of legal analysis we have a twenty seven page order from a of two thousand and nine which is full of legal analysis it's really practical to issue those two orders to the district police force and expect the police force to understand those orders instead with the district  is its chief of police notify all of its police officers during the normal roll call process then the district is to ensure that the private company and its contractors is in no way extracted or impeded from may be referring to but in this case the district has not been looted just in the sense of in any way abusing any process before the circuit court or before this court where the whole building is that you had to remove a gate and put in a different four north michigan avenue it's called the firewall building it's a landmark building the private company intended to use dad building to locate parking on deck footprint to access that cutting through the district's alley into a parking garage the private company intended to use that process with access to the district's alley to access a loading dock to access exit points and entrance points to that parcel the trial judge ruled that the project company was not  entitled to do that justice quinn i respectfully submit to the court that the district hasn't been litigious in this case what the district has attempted to do is to protect the rights it believes it has in the l a the ease been my point is it has been in front of us and just we don't see many as many cases people neighbors going along trying to get one move on yes yes i would only conclude my remarks on that subject by stating that the district was the one that filed the declaratory judgment action to determine what the rights of the properties were and the court did find that certain aspects of the project companies intended use of the easement went beyond easements and were in permissible this is what the district did was not only not prohibited by either of the orders in this case but the districts conduct itself was reasonable and cannot be the basis for finding that the district interfered with the project company's right i'll be brief because i'm running out of time but in this case what happened is contrary to any suggestion of interference the district for the fourteen month period after the preliminary injunction order was entered had no incident whatsoever with anyone trying to access that alley either by the project company or by any of its contractors fourteen months went by with no incident and since the act tobar thirteen two thousand and nine incident there has been no further incident that's not that does not demonstrate the district's contempt of the court's previous orders rather then in or for the district did was cry operative as you point out justice when the district  cooperate not only with the project company's use of the alley but this very police officer who was involved in this incident in october of two thousand and nine she allowed people from the construction site to come into the district's building which is a secure building at one hundred he stared she allowed them to use the district's restroom she allowed them to come in for drinks this officer a after she completes her duty at the desk she directs traffic in the afternoon right outside that alley because the project company is there with its construction rather than trying to interfere the evidence demonstrates that the district for operating been assisted by helping the private companies contractors with access to and from that site and it usually street during the rush hour period there is no evidence here that the district in any way interfered more more is there any type of motive or indication that it's  any desire or interest of the district to interfere this police officer when she noticed this me and walk into the alley this police officer didn't just go out and kick the man out of the alley the officer first went out flatterer who was in front of the alley who works for the construction contractor at the site and the officer first asked the flag do you know who that man is in the flag or looked right down the alley she had a clear line of view of the man walk right by the flag and she said i don't know who it is if the flag had said they had someone with the project company that would have been the end of the investigation but since the fagor didn't know who it was the officer continue to investigate when the officer a difference in testimony between bruce shoals the man who ultimately was identified as being in the alley and the officer as to what the officer initially said does not defeat the district's appeal here because testimony on that subject is against the manifest weight of the evidence it's against the manifest weight of the evidence because the one individual who was there of the three people there who was as independent as possible under the circumstances was tracy smith the flagger and tracy smith who was standing sixteen feet away from officer phillips when she went to the corner of the alley said there is no doubt in her mind that what officer philip said was hey what do you doing down there as opposed to get out of the alley immediately which is what mr schultz testified to the significance of that is miss smith is an independent witness miss smith isn't even completely independent be pushing at the time of her deposition and at the time the trial was represented by the project company attorneys and the project company was paying for her legal fees but she was the the closest to an independent witness we have in the trial court ignored her testimony completely did not consider her testimony whatsoever we read the briefs and  course the purpose of civil contempt this is not so criminal contempt this is civil contempt and the remedies are now to be punitive to be such a dead they are intended to compel compliance is there any won the six remedies is impossible to comply with i wouldn't say that any of them are impossible to comply with but three of them constitute brand new injunctions that the court has issued prohibiting the district's police department from enforcing the law usurping basically the statutory police powers that the state of illinois has vested in the police telling the police but they can and cannot do but more importantly preventing the police from protecting the main office building of the district putting severe limitations on what the police can do unless it first calls the chicago police department and has a chicago police department act and that's not what the statute requires the court's order doesn't accomplish coercing compliance with a priority as it punishes the district in its strips the district's police department judgement of the what the district suggested in the contemporary seating for the reasons that the district believe that the court orders didn't prevent it but in fact recognized the district's right to enforce its security interests in the alley was that the court clarify its order that the court provide a method for the district to identify who  in the alley whether that whopper rise to be there and i can't stress enough that for fourteen months there was never an issue it was something these officers were able to do without any problem this one individual could not be identified the district reviewed the facts that are violated in a clearly violated it didn't take the trial court very long to come to that conclusion the district was enjoined from interfering with the use of the alley by the project company as a private alley for all lawful the alley now counsel suggests that it's ambiguous but you have to put this in the context in which we we are here and where that word was entered the district has a long history of inner touring with the project companies use of the alley that history was a subject of a policeman or a injunction hearing where the court made it very clear that the district was not allowed to interfere with the project company's use of that alec's it district and would include any the police officers had been a costing the project company and it was a very type of behavior you know august two thousand a plumeria injunction hearing that she found violated the easements and that's one of the so it's the district should be show id or they won't let me in right there's nothing that well there's a couple of us from that building in the alley first of all that alley is open there's no sign that says no trespassing anyone mr cole says he familiar with that the only purpose was that he was next door the metropolitan  district and her policemen hang around there but he was familiar with the alley rather of course iraq's he his office was kitty corner from my projects and he walked into the alley as you've seen on the video and two to view was construction site actually oh your honor the evidence is that very close to what you just said he when he when he walked into the alley as a video will show he he heard the police officer at the front of the aisle is disputed as to whether she told him to get out of the alley but he heard her in the court found credible he heard her say get out of the alley he started walking towards the entrance of the alley to leave she approached him he said my name is bruce schultz i am the owner or part owner of the property and pointed to the property and thereby identified himself she which she came up to him and said in effect that's not enough i want to see an id right there's nothing in the laws that requires anyone to carry an id with them in this country there's nothing in the law that requires you to read driver's license when you're walking on the streets but how does that impair his access to reach into his pocket and plot his identification it at that moment it didn't pose access you ambiguous because it says they can't impair his ability to come in and out of the alley to use the alley how do they know he was well it there's a there's a variety of ways they could have known your honor mr shit  well no i mean is it because you as a quote found he could have been a variety of people he could have been a union representative he could have been a construction representative people from the project company becoming you know the alley for the last year and a half unimpeded the fact that mr schultz walked into the alley with a business suit on in broad daylight what does not give her reasonable suspicion which is the test that he's committing a crime just as if you or i were walking into the alley there's no reason to be right in this case had no bag with him he had no guns with him he had numbers in the alley he sometime before he officer approached he was in there he walked into the alley before the officer approached him and he was walking out of the alley when the officer  stopped him and refused to let him leave the alley at the moment that she said i'm not satisfied with the identification you've given me and therefore i demand more and i think the case law is very clear that that's not sufficient you have to stop someone to seize them under the fourth amendment you have to have some reasonable suspicion that they're committing a crime what crime could he have been committing he couldn't have been committing a crime a criminal officers in the building well it in and when good anthony this make you commit a crime i think the alley but i'm not exactly sure why there's no history of criminal conduct but it goes to the fact that if you're not in a high crime she looked at the camera because she didn't think he belonged that was her testimony and based on that alone she detained him there was no other reasonable basis to detain him your honor it is reasonable that the law on i off michigan avenue any series of busy street at this time of day it was broad daylight this construction workers i mean it's not the kind of place at that time anyone would suspect anyone of committing a crime in the only crime the officer suggest but yeah alaric i don't think the case is about whether or not they can ask someone in the alley who they are the question is whether or not they violated the injunction would you t four and five below that among other things the project companies has free access to the alley consistent with the terms of the easement now there are some differences also i would submit your honour's about the sal the salary is already been before this court on appeal this court's already found that in almost the same words that the that the project company has the right to free  project company is the dominant easement holder of the alley and mr schultz is the principal of the project company he's even referred to in the order of may sixth of may of two thousand and nine and so with respect to the questions on violating the order i don't i think it's very clear that they violate specific provisions of an order they also these paragraphs say they're not entitled that ask who's in the alley but they are in touch they are not entitled to in stop the project company so when the project company walks in the alley and they say i'm the project company without more they're not allowed to interfere with that project company's entrance this case originally started with the gate you'll recall from the prior people they blocked the alleys use of the gate in the north so in the plymouth or injunction hearing you can't use a gate to block it she said you can't use police officers to block it they have an equal right to be in this alley now their defense is there's a fence is besides the fact that they claim it's not clear they have another defense your hon regime comment dealt with the issue that in this country you can't people are not required to walk around with identification that issues come up recently in arizona you're not in touch you're not required to walk around that ind unless you have reasonable suspicion as a police officer that someone is committing a crime you can't detain them they detained mr sholes in the alley repeatedly detained him in  without reasonable cause or suspicion that he was committing a crime detain someone just because they won't give you a driver's license should be insufficient under is insufficient under the law well it may be inefficient insufficient  is it safe to say it would be reasonable to believe that when she said show me your identification he produces driver's license she was said thank you or nothing and walked away it's unclear what's what would have happened at that point in time he had he had he done what she asked i can't make anybody special features i think if you look at the one of the videos you'll see a shot of her as she's approaching mr shoals and you can see your face as is fairly angry in any event the court found her to be angry and not mr sholes and that or where we're simply asking we ask the trial court and we're asking this court to affirm a finding that they can't do that they can't engage in this type of conduct in the alley with people from the project company but  you've conceded incorrectly so that it is not on reasonable for metropolitan century police officers to ask anybody for identification in any alley and that's what they did here so that's not unreasonable and here i maybe we're playing with a word i don't police force about judge families order that should have been enough for her to understand he says he's with the project company without more there is no basis to detain him but to interfere with you are and then i will not interfere well that would that would go to suggesting that you'd have to have a badge or identification every time you walk in your alley if it's limited to and they're allowed to you are required to use but badges on everyone because of the buildings now are your honor people are going to live in that building should not be required to put identification on you no order to go in and out or the valet of the alley that may be ninety and that's why this is a this injunction is a good injunction your honor because it prohibits the district from going out into the alley if they think there's a crime being committed they have to go intitled under their view of their powers to use those powers now we also take the position in our papers and as an alternative way of affirming this that they don't actually have police power and that we're direct address it in the briefs but i think your honor one of the reasons just family has lived with this case for four years entered this injunction is she didn't want this conduct to occur or conduct like this to occur in the future this is a shared alley it's an add a shared property time there's a new resident it comes in it district must inform how does it district would you're going to set up a system where he district knows a simple look at the property or if she signs a lease well or i think the point here your honor is there the police are entitled to patrol the alley look around do the things the police officers or always do but they're not entitled to a cost people interfere with their use of the alley unless they have a reasonable basis to believe they're committing a crime you're saying basically ingestion could one or i think that that's actually a point i did want to address it there are ways that you know junctions are tailored and i think this junction is carefully tailored this i think that was a reason to talk about the fourth and then i think again that many of them even read the fourth and then well we know that nobody got the order from the district in the police department nor seated before it was after was before when she first met the flagger who started on the job the day before she had an altercation with the flagger and that's what the player testified to this it's in the it's in our it's in our brief she had it she said she was described by the flavor as angry combat at least angry and she's used a couple of other words this and that touches another point she says and the district says they were to be rely on the flag or by saying she didn't know who bushels was she knew the flavor had just been hired she was an entry level flavor on a production site it's not reasonable to be relying on a phleger of that type to say whether or not she knew the boss the owner of the of the of the whole facility  yeah i will i'm going to i'm going to dress the the remedies around her and i'm also going to approach it well i will i will address this i think the remedies are carefully tailored they're fairly simple to comply with and as far as we know the district hasn't yet done it the keys are in their hands to comply with it if it to show that they've educated their police force the remedies that are directed apps at the district your honor i think that all they are saying is you say you cannot patrol the alley and you cannot ask for identification she just says you can't seize them which is of critical critical distinction under the law there's a difference between asking questions and se set of laws and people don't are entitle to be seized in this country and shouldn't be seized just because a police officer thinks they don't belong that's not the law and i hope that's not the law that assessing the credibility of these witnesses she spent nine i think it was nine trial days sifting through all the evidence reading the evidence and looking at the video and i think it's her opinion is should be affirmed not only because it's not against the manifest where the evidence but it's clearly supported by the evidence and the like you go briefly the three distance and only in reply justice is a recurring theme both in the trial court and now before your honor's is that the just requested people in the alley the sole basis for that conclusion is that lisa philips a police officer was wearing a forty caliber glock with her uniform on the day that she had this incident with drew scholz that is the sole evidence that the district in any way quote across did anyone from the project company testified based on their training and in fact in closing argument before the circuit court the circuit court said everybody knows that when a police officer is confronted the police officer steps back to protect her weapon there was no on having previously noted in her preliminary injunction ruling that the district police so called across did people from the project company so as panteley based for contempt or order and something that happened before she even issued her preliminary injunction order in august of two thousand and eight and again there was no evidence what happened in two thousand and eight before the contempt hearing the private company claimed there was somebody  them i had a witness in the courtroom prepared to testify that they simply asked the person why they were there and once they said we're with the project company don't let them in the alley again a police officer wearing a service weapon is not a costing anybody second thing i'd like to address is the question of reasonable suspicion the question of whether officer phillips acted appropriately is something that has to be considered under all the circumstances before the court and what she saw is a man walk into an alley that had no access to anything except for the district building you can see in the video there's a construction fence that seals off the there's no access to the project site this me and when officer phillips got out to the alley he was not in plain view he was standing behind several trash dumpsters she didn't know what he was doing therefore she asked him what he was doing and that's when he became confrontational and that's when officer phillips had implemented an investigatory stop and asked the man for his identification they ass reasonable under the circumstances but challenge can't leave with the circuit court did hear that's a rony this is the court applying an improper standard using the courts that wayne wage if somebody gets to walk around with a loaded glock and has all sorts of power that person is subject to real strict scrutiny the court held that the court should dissect what prophecies do because we give them guns the court held if they're not up to standards then they shouldn't be police officers instead of provide instead of applying the standard required under the law that says there must be a minimal level of objective justification a minimum level saw me and she didn't know what he was doing he didn't look like he belongs the case lightly instructs us that it's exactly what the police officers to consider the police officers from the with the location she's supposed to take into account what what the characteristics of the location were again no access to the project company only x x to the district's property and the man wasn't trest as though he were a construction worker well was he doing and another point that this is that going to get through this gate the district only put up this big because tara the owner of those three persons prior to april thirtieth two thousand and eight requested the gate and it request of the gate i believe it was just a screen who asked the question about nine till the request of the gate because mayor daley's wife who was on the board of the tierra foundation was leading upward meeting one evening and she was conclude with this problem with the circuit court's order the court recognized that the district has a right to know that everybody is authorized to be in the alley the court said that that's one of the findings she made that it's in the record invite me team it paid six fifty five how does one reconcile that with telling the district it cannot approach people to find out why they're in the alley how can a police officer be prevented from finding that out that is abit happened here the only reason the incident escalated from there on is because mr sholes who we found out is the person rather than corroborate he came a was yelling was waving his hand in the officer felt it was reasonable to take further steps and under the circumstances the district admits that that was a reasonable thank you justices will be taking under advisement this will be a g