Case: 1:17-cv-04518 Document #: 1 Filed: 06/15/17 Page 1 of 19 PageID #:1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLIOIS
EASTERN DIVISION

TENT CITY ALTERNATIVE

)

TO LSD VIADUCTS and ANDY THAYER, )

Plaintiffs,

)

)

vs.

)

)

CITY OF CHICAGO DEPARTMENT OF

)

ADMINISTRATIVE HEARINGS and

)

CITY OF CHICAGO DEPARTMENT OF

)

TRANSPORTATION,

)

Defendants.

)

CIVIL ACTION FILE NO:

NOTICE OF REMOVAL

Pursuant to 28 U.S.C. §§ 1331, 1367, 1441 and 1446, the Defendants City of Chicago

Department of Administrative Hearings and the City of Chicago Department of Transportation

("CDOT"} ("City"), by its attorney, Corporation Counsel, Edward N. Siskel, and Senior Counsel,

Kelley A. Gandurski, hereby remove this action from the Circuit Court of Cook County, Illinois,

First Municipal District to the United States District Court for the Northern District of Illinois,

Eastern Division.

Removal is based upon federal question jurisdiction because Plaintiffs' Complaint for

Administrative Review ("Complaint") seeks review of claims arising under the U.S.

Constitution. In support of this Notice, the City states as follows:

I. Background

1. The Complaint was originally filed by Plaintiffs in the Circuit Court of Cook County,

Illinois, First District, on May 17, 2017. In the Complaint, the Plaintiffs allege that a final

administrative decision rendered on April 14, 2017, by the City of Chicago Department of

Administrative Hearings affects the rights of Plaintiffs, and Plaintiffs desire a judicial review of

Case: 1:17-cv-04518 Document #: 1 Filed: 06/15/17 Page 2 of 19 PageID #:2
that decision. Plaintiffs attach and incorporate a copy of the April 14, 2017 City of Chicago Department of Administrative Hearings decision to the Complaint as "Exhibit 1." 1 Contained
within the April14, 2017 Department of Administrative Hearings' decision is a "Summary ofthe
Arguments." In the final administrative order, the Administrative Law Judge held that:
"The Appellant sets forth various Constitutional arguments under the first (sic) and eighth (sic) Amendments to the U.S. Constitution, as well as under Article 1 section 5 of the Illinois Constitution and the Illinois Homeless Bill of Rights. This body does not have jurisdiction to decide Constitutional issues and therefore the Constitutional arguments were permitted to allow the parties to make and preserve the record for possible appeal."
In accordance with 28 U.S.C. §1446(a), a copy of all process, pleadings and orders received by
the City are attached hereto and incorporated herewith as Exhibit A.
2. The Complaint seeks judicial review of the April 14, 2017 final determination, which involved an appeal of a Notification ofPublic Assembly denial by CDOT2• At the request of
Petitioner Andy Thayer, a hearing was held on April 12, 2017, at the City of Chicago
Department of Administrative Hearings, whereby Petitioner Andy Thayer presented testimony
and evidence as to why CDOT's denial should be overturned. The City also presented testimony
and evidence as to the validity of the denial.
3. At the hearing, Petitioner alleged that the City denied the Notification of Public
Assembly in violation of the First Amendment of the U.S. Constitution in that the denial violated
his right to free speech and assembly. Additionally, Petitioner alleged that the City does not
provide alternative means of shelter for the City of Chicago's homeless population, thus
1 Because the final administrative order is incorporated into Plaintiffs' Complaint, it is part of the pleading, and the facts stated in the final administrative order are considered the same as having been alleged in the Complaint. See FRCP 10(c), "(c) ADOPTION BY REFERENCE; EXHIBITS. A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes." See also, Ford v. University ofIllinois Board of Trustees, 55 Il.App.3d 744, 747 (1st Dist. 1977) ("Exhibits attached to the complaint become part ofthe pleadings ... and facts stated in such exhibits are considered the same as having been alleged in the complaint.. .factual matters in such exhibits which conflict with the allegations of a complaint negate such allegations."). 2 The Municipal Code of Chicago §10-8-334 governs Public Assemblies.
2

Case: 1:17-cv-04518 Document #: 1 Filed: 06/15/17 Page 3 of 19 PageID #:3
subjecting the homeless to Eighth Amendment violations prohibiting cruel and unusual punishment. These issues were preserved in the final administrative order, which is attached to the Complaint.
II. This Notice of Removal is Timely Filed 4. This lawsuit is a civil action within the meaning of the Acts of Congress relating to removal of causes. 5. The City of Chicago Department of Administrative Hearings received a copy ofthe initial pleading captioned "Complaint for Illinois Administrative Review" via certified mail on May 23, 2017. The City of Chicago Department of Transportation received a copy of the initial pleading on May 23,2017. 6. The removal ofthis action to this Court is timely under 28 U.S.C. §1446(b) because this Notice of Removal is filed within thirty (30) days after May 23, 2017, which is the date Defendants first received the summons and complaint in this action. 7. The United States District Court for the Northem District of Illinois, Eastern Division is the proper place to file this Notice ofRemoval under 28 U.S.C. §1441(a) because it is the federal district court that embraces the place where such action is pending.
III. This Court has Federal Question Jurisdiction 8. Plaintiffs have requested a review of the administrative decision affirming the denial of the Notification of Public Assembly and have raised First and Eighth Amendment U.S. Constitutional violations at the original hearing. Those matters are preserved for review pursuant to the April 14, 2017 final administrative order. Plaintiffs incorporated the final administrative order as part of their Complaint, which summarizes the U.S. Constitutional issues raised by Plaintiffs. Because both state and federal courts have adopted the rule that exhibits attached to
3

Case: 1:17-cv-04518 Document #: 1 Filed: 06/15/17 Page 4 of 19 PageID #:4
the complaint become part of the pleadings, these U.S. Constitutional issues are now raised as allegations by Petitioner as if they were specifically set forth in the Complaint. Any review of the final administrative order will require a review of those U.S. Constitutional arguments raised by Plaintiffs. Therefore, federal question jurisdiction exists over Plaintiffs' claims under 28 U.S.C. §133 1 because the resolution ofthose claims will require adjudication of those disputed questions involving the U.S. Constitution. 9. To the extent that the Complaint alleges statutory, state, municipal, common law or other non-federal claims, this Court has supplemental jurisdiction over any such claims under 28 U.S.C. §1367 because those claims arise out of the same operative facts as Plaintiffs' U.S. Constitutional claims and "form part ofthe same case or controversy under Article III of the United States Constitution." 28 U.S.C. §1367(a). 10. Because Plaintiffs' First and Eighth Amendment claims are raised, removal of this entire cause of action is therefore appropriate under 28 U.S.C. §1441(a)(c).
IV. Consent of Defendants 11. All named Defendants to this action are actually one Defendant, the City of Chicago, a municipal corporation. Ferguson v. Patton, 2013 IL 112488 (2013) (holding that City departments are organizational divisions of the City and do not enjoy independent legal status). To that end, consent of other defendants is not applicable.
V. Notice of Removal to the Circuit Court of Cook County, Illinois, 'First District 12. Concurrently with this Notice of Removal, the City will file a copy of this Notice with the Clerk of the Circuit Court of Cook County, Illinois, First District. A copy of the written notice of the Notice of Removal to Federal Court is attached hereto and incorporated herewith as
4

Case: 1:17-cv-04518 Document #: 1 Filed: 06/15/17 Page 5 of 19 PageID #:5
Exhibit B. In accordance with 28 U.S.C. §1446(d), the City will give written notice to Plaintiffs by contemporaneously serving this Notice of Removal on Plaintiffs. ·13. If an:y questions arise as to the propriety of this removal action, the City respectfully requests the opportunity to present a brief and oral argument in support of its position that this case is removable. See Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 949 (11th Cir. 2000) (citing general rule that post-removal evidence in assessing removal jurisdiction may be considered by the Court and a district court may elicit or review evidence outside of the removal petition.) See also Harmon v. OKI Sys. 115 F.3d 477 (7th Cir. 1997) (where district court relied upon post-removal answers to interrogatories to determine whether removal jurisdiction was proper).
VI. Conclusion
For the foregoing reasons, the City respectfully requests that this civil action be, and is hereby, removed to the United States District Court for the Northern District of Illinois, Eastern Division, that this Court assume jurisdiction ofthis civil action, and that this Court enter such other and further orders as may be necessary to accomplish the requested removal and promote the ends ofjustice.
June 7, 2017
Is/ Kelley A. Gandurski
Kelley A. Gandurski Senior Counsel Illinois ARDC No. 6282925 City of Chicago, Law Department 30 N. LaSalle St., Ste. 1720 Chicago, IL 60602 312-744-0688 (direct) 312-744-8842 (fax) Kelley. Gandurski2@cityofchicago .org Attorney for Defendants City of Chicago
5

Case: 1:17-cv-04518 Document #: 1 Filed: 06/15/17 Page 6 of 19 PageID #:6

. ~miniruative Review CoYer-Sheet

(5/27/16) CCM 01. 2 •

IN THE CIRCUIT COURT OF COOK COUNfY, ILLINOIS FIRST MUNICIPAL, CIVIL DIVISION

I!!J ,. 1 '1~li.<~ :1r

Tent Cty Alt. to LSD Viaducts, Andy Thayer

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Plaihtlff

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v.
City of Chicago Department of Transportation

No._

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TIME 1 O:;J;~.)

Ordina nce Violatia~

.ADMINISTRATIVE REVIEW COVER SHEET wcAinhhnfeiocAdrh:mdrbmahetcisinotbincsohtxcraaoirtnmaivcfeaterioRnrimezedevsoiehyfweorrhueCcironaavpciestprirofSoonhpr.eraieadttmsehigalllelinsbteteraatfliivlceeadtpe·w1g1lorrrhpyotsahensedcootnhmlyepnalacnhidnetccikanntAhneodtmsubibnecisianttretargtooivdreyucRtehedevriieenwutonadceetvirio,dnejsfn.acpeT.phliePcalebalsee,

Non-Parking Ordinance Violation

0 Animal Care & Control (AC) 0 'Buildings Nuisance (BN)
0 Buildings Standard (BS) 0 Buildings Target (BT) 0 Chicago Police (CP) 0 Consumer Services (CS) 0 Dept. ofHealth (DH) 0 Dept. of Streets & Sanitation CDS) 0 Dept. ofTransportation (DT)

(effect road or sidewalks)
0 Dept. ofEnvironment (E) 0 Gun Registration (GR)

0 Revenue and/or Dept. of Business

Affairs & Licensing (RV)
0 Property Damage (PD) 0 Vehicle Impoundment Dept. of

Streets and Sanitation (VP)
0 Wage Garnishment (WD)

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Atty. £or: Plaintiffs
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EXHIBIT
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Case: 1:17-cv-04518 Document #: 1 Filed: 06/15/17 Page 7 of 19 PageID #:7
Jeffrey Frank Attorney-at-Law 3418 W. Medill Ave. Chiatgo, IL 60.647 312-206-5253 Atty No. 31567 j'hfrank52@ gmail.com
Molly Armour Law Office of Molly Armour 4050 N. Lincoln Avenue Chicago, IL 60618 (773) 746-4849 Atty No.46612 annourdefcnder@ gmail.e<l.m
Alan Mills Uptown Poopie's Law Center ~13 N. Sheridan Chicago, II . 60640 773 -769-1411 Atty No. 70272 Alan@uplcchlcago.org

Case: 1:17-cv-04518 Document #: 1 Filed: 06/15/17 Page 8 of 19 PageID #:8

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Case: 1:17-cv-04518 Document #: 1 Filed: 06/15/17 Page 9 of 19 PageID #:9

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Case: 1:17-cv-04518 Document #: 1 Filed: 06/15/17 Page 10 of 19 PageID #:10

IN THE ClTY OF CHJCAG01 J Ll..IN<liS DEPARTMENT OF ADMINISTRATIVE BEAniNG
MUNICIPAL DIVISION

In re the Denial of the NotificatiQn of Public Assembly of )

)

)

Tent City Alternative to LSD Viaducts

)

Andy Thayer. Public Assembly Orgflnizer

)

)

No. 17 PA 000002

FINDINGS DECESJON AND OJU)ER

This matter comes before this Administrative Law Judge on the Public Assembly Organizer's appeal from the denial or a Notification of Public Assembly submitted on behalf of the Tent City Alternative to LSD Viaducts (hcreinaHcr "Appellant").
BACKGROUND
On March 30, 20 17, at 2:55p.m., a Notification of Public Assembly was submitted by Appellant. Appellant's proposed Assembly \.vas to commence on Friday, April 14, 2017, at l0:00a.m. and end on Wednesday November 22, 2017 at 12:00 noon. The location of the Assembly is described as the "Pedestrhm Mall bel\·VCen N. Kenmore AvchtJe at N. Brdad\..,. ay Avcmie·and N. Kenmore Street \1\'here the pavement begins Y~ block south of W. Wilson Avenuc-4525 N. Kenmore Avenue". The Proposed Route on Sidewalk is stated as "We. will erect tents on the
'
public right of way of the pedestrian mall, but not on the sidewalks, but \VC anticipate brief' obstructions of the public sidewalks as our people congregate and move tents". The Estimated Number of Participants is given as "40".

Case: 1:17-cv-04518 Document #: 1 Filed: 06/15/17 Page 11 of 19 PageID #:11
By Jetter dated April 3, 2017, Mr. Michael Simm1, Assistant Commissioner, Public Way Permit Division, Division of Infrastructure M anagcmcnt, for the City of Chicago's Department of Transportation (CDOT) advised Appellant that the submitted Notification was "Denied". The reason provided stated "You did not provide the required Public Way Usc permits required under M.C.C. Section I0-28-01 O(b)(l 0) with your notification for the erection of tents. Consequently, you notification of a public assembly is denied as the stated purpose of the assembly is expressly for an unlawful purpose prohibited under tl1e Municipal Code of Chkugo". The Jcncr further provided ''As an altcmate to your public assembly, you may engage in a public'assembly at your requested Jocmion at the "Pedestrian mall between N. Kenmore Avenue at N. Broadway Avenue and N. Kenmore Street where the pavement begins Y, block south ofW. Wilson Avenue-·-4525 N. Kenmore Avenue," for your requested date and time, Friday, April 14, 2017 at 10;00 a.m. to Wednesday~ November 22, 2017, at 12;00 p.m. for any lawful purpose subject to reasonable. time, place, and manner restrictions as may be applicahlc.". On April 6, 2017, Appellant fi led a timely notice of appeal of the denial of the Notification of Public Assembly. A hearing was conducted on April 12,2017.
SUMMARY OF THE TESTIMONY
The Appellant requested a continuance for the purpose of preparing a response to the City's Motion to Dismiss that was filed and served upon Appellant on April 11, 2017. Disposition of the Motion \Vas reserved pending brief argument on the City's Motion. The City's Motion to Dismiss was denied and therefore the Appellant's Motion to continue was unnecessary and also denied. The Appellant's Motion to Suhpoena Michael Simon to provide testimony in support of

Case: 1:17-cv-04518 Document #: 1 Filed: 06/15/17 Page 12 of 19 PageID #:12
his Affidavit and to be cross examined was denied as unnecessary to present evidence that is relevant and relates to a contested issue in the c.-1se. The City first called Luis Benitez to testify. Mr. Benitez \Vas questioned as to his employment history, educational background, and prolessionnllicenses and it was stipulated by Appellan t that Mr. Benitez was qualified as an expert witness in the field of structural engineering. After further questioning Mr. Benitez opined that tents are structmcs~ that a permit is required to erect tents on the public way; and that erecting tents on the public way without a Public Way Usc permit poses a danger to public safety. Upon cross examination Mr. Beriitez staled that he k11ows of no homeless individuals that have applied for and received Public Way Use permits, that he is mvarc of tents that have been erected on public property and under certain viaducts, and that he has no knowledge of citations issued by CDOT for problems with tents or ofhann to individuals concerning tents. On redirect Mr. Benitez indicated that he is not involved '"'ith CDOT citations and that citations arc issued by Public Way Inspectors. On re-cross Mr. Benitez stated that he has no knowledge of citations issued for violations for tents erected under the viaducts. The City then rested its case reserving the opportunity to call rebuttal witnesses. City's exhibits A, the resume of Luis Benitez, B, the Notification of Public A~sembly, C, the City's denial letter, and D, the Afl1davit of Michael Simon were marked as City's exhibits and admitted in evidence.
The Appellant first called Andy ·n1ayer to testify. Mr. Thayer \.Vas questioned as to his employment, his current housing status. and his history in submitting Notifications for Public Assemblies. Mr. Thayer stated that he is n member of an organization that advocates for the. rights of the homeless. Mr. Thayer was questioned concerning an incident at the mall in Scpt~mber 2016 and Appellant offered several photos. The City objeetcd based on relevancy and
_' ,

Case: 1:17-cv-04518 Document #: 1 Filed: 06/15/17 Page 13 of 19 PageID #:13
the OQicction was sustained. Further direct examination of Mr. Thayer revealed that he believes that the homeless now living under the viaducts at Wilson and Lake. Shore Drive will be displaced by the reconstruction of the viaducts scheduled for this year and that there is very little space for the homeless to stay. Mr. Thayer staled that he put the erection of tents in the Notification or Public Assembly because he wanted a safe place for the displaced homeless to go and be free from the interference of City workers. Mr. Thayer testified that the language of the ordinance does not make specific reference to any erections on the public assembly or restrictions as to what can be built or maintained as pm; of the public asscmb!y.' His direct examination concluded ''vith his statement that he has not witnessed any danger to public safety at the Stewan School mall, the Wilson viaduct, or the Lawrence area. Upon cross examination, Mr. Thayer states that there is no reference 10 10-28-010 in I0-8-334 but there is reference to other laws, but not any dealing with graffiti , murder, or theft. Mr. Thayer also testified on cross examination that no one f:i'om the City told him that the City was unable or unwilling to house the homeless. Mr. Thayer acknowledged that the purpose of the Notification is because he and others want to erect tents at 4525 N Kenmore for the homeless. He believes that there would be ongoing obstructions of pedestrian traffic around the entrances as people move in and out. Mr. Thayer testified that he has not nor does he know of anyone that has applied for a Publit; Way Use p\-muit at the location. On redirect Mr. Thayer tcsti11cd that he is an advocate for the homeless, that he is known to some City employees, that he has not been contacted by the City, that he has mit been notilied thatlh~ ordinance reyuires a Public Way Use permit, that the wording of the ordinance docs not require it, and that the denial is the only notice he received.

Case: 1:17-cv-04518 Document #: 1 Filed: 06/15/17 Page 14 of 19 PageID #:14
The City next called rcbullal witness Alisa Sanchez-Rodriguez. Ms. Sanchez-Rodriguez was questioned as to her employment history and e~iucational background. Ms. Sanchez-Rodriguez stat~d that she is ctirrcntly employed by the City of Chicago's Department of Family and Support Services (DFSS) as the Deputy Commissioner for Homeless Programs. Under dire:.~ct examination, Ms. Sanchez-Rodriguez testified as tCl the various programs the City has in place and is developing thnt provide support services for the homt:-lcss. Ms. Sanchez-Rodriguez further testified that the main concerns for homeless t~ncampments known as tent cities is sanitation related. Watt'r. toilet faci lities. and the aceumulation of garbage. She indicateel'ihat the City offers shelter to anyone who asks, that she knows of no instances where anyone has been denied shelter, and that if necessary the City will go to outside providers for additional space. City · exhibits E through J were marked and admitted as evidence. On cross examination Ms. Sanche:t.Rodrigucz acknov.rlcdged that diffL~rcnt methodologies are used for counting the number of homeless but that the City uses the one day count which is the inethod approved by HUD. When asked the hypothetical question if the iota! number of known homeless requested housing could the City provide shelter for them the witness answered no. Ms. Sanchc7.-Rodriguez ans\vered further questions on cross concerning various exhibits . Finally. when asked if she knew of any appl ications from the homeless for a Public Way Use permit Ms. Sanchez-Rodriguez answered no. Petitioner's exhibits A through Ci were marked and admitted as evidence. No further witnesses were called.

Case: 1:17-cv-04518 Document #: 1 Filed: 06/15/17 Page 15 of 19 PageID #:15
FlNDI Nc;s OF FACT l. Appellant submitted the Notification of Public Assembly on March 30, 2017 at 2:55p.m. 2. The Municipal Code of Chicago section 10-8-334 governs Public Assemblies and defines
a Public Assembly in subsection (a) in pertinent part as "a company of persons coJJected together in one place on the sidewalk, or any organized march or procession of persons upon the sidewalk, which is reasonably anticipated to interfere with or impede the flow of pedestrian traffic.. ." 3. The Municip::1J Code of Chicago section 9-64-010 defines "sidewalk" ~s· "that portion of a public way hct'vvccn the curb, or the I<Heral lines of the roadway, and the adjacent property lines, intended for the usc of pedestrians" . 4. The Municipal Code of Chicago section 1-.4-090(f) defines public way as" any sidewalk, street, alley, highway or other public thoroughfare". 5. The Assembly was to start on Friday April J4, 2017 at I0:00a.m. and continue through Wednesday November 22, 2017 at 12 noon. 6. The location and address of the Assembly was "th e pedestrian mall between N. Kenmore Avenue at N. Broadway Avenue and N. Kenmore Street where the pavement begins 1/2 block south of W. Wilson Avenue-- 4525 N Kenmore". 7. The proposed route on sidewalks was described as "we will erect tents on the public right of way of the pedestrian mall, but not on the.sidewalks, but we anticipate brief obstructions of the public. sidewalks as our people congregate and move tents". 8. The estim<tted number of participants was "40''. 9. On April 3, 2017, a letter written by Michael Simon. the assistant Commissioner, Public Way Permit Division. Dcpartm~nt of Infrastructure Management was served on

Case: 1:17-cv-04518 Document #: 1 Filed: 06/15/17 Page 16 of 19 PageID #:16
Appellant and advised Appellant that th~ NotiJication of Public Assembly was den ied "as the stated purpose ofthc Assembly is cxpn:ssly for an tmlawful purpose under the Municipal Code of Chicago" because no Public Way Use permits a~ req\lircd undel· M.C.C. ScctiOil-10-28-01 O(b)(J 0) \Vere snbmitted with the Notification. 10. The denial letter dated April 3, 2017 provided that as an nltcrnate Appellant may engage in a Public Assembly ut the exact same requested lo<.·ation and address for the exact same requested date and time for any Jm.vful purpose sul~jcct to reasonable time, place, and J11anner restricti(llis as ma)' be applicable. · 1I. On April 6, 20 17 AppcJlant filed a timely Notice of Appeal with the Department of Administrative Hearing. 12. The Municipal Code of Chic<:1go section I0-8-334(c) provides that "any public assembly organizer ':vho wishes to arpeal the commissioner's decision regarding an altemate date, time, location or route may appeal by notifying the department ofadministn'ltive hearings of tl1e person's intent to appeal ..." 13. I lind that the alternate date, time. Joc.ation or route as given in the denial Jetter from Michael Simon dated April 3, 2017 will to the extent practicable, have comparable public visibility, and a similar route, location, and date to that of the proposed public assembly .
SUMMARY OF TilE ARGUMI~NTS The Appellant contends that the Notification of Public Assembly was wrongly denied because the City is requiring Public Way Use Permits for the erection of tents that is not found in the. ordinance governing Public Assemblies. The Appellant sets forth various Constitutional arguments under the first and eighth Amendments to the U.S. Constitution. ns vvcll as under

Case: 1:17-cv-04518 Document #: 1 Filed: 06/15/17 Page 17 of 19 PageID #:17

Article 1 section 5 of the 1llinois Constitution and the Illinois Homeless B'ill of Rights. This body
1:
does not havcjurisdiction to decide Constitutional issues and therefore the ConstitutionaF
arguments were permitted to allow the parties to make and preserve the record for possible

The City argues that the Appellant cannot usc the guise of a Public Assembly to circumvent ordinances that govern public safety and the usc of the public \.O.'ays concerning the erection of structures such as the tents proposed to be used here. The City also argues that the altemate offered by the City gives the Appellant comparable public visibility, und a sin"ii lar route, locution, and date to that of the proposed public assembly.

CONC:LUSION

Based on the evidence contained in the record of the beari ng conducted on April 12, 201 7 the

decision of the Commissioner is affirmed.

l J: - r-.·~t ~ J ~ .__/~-:;_1_________ ,.

Frank Lombardo, Administrative Law .Judge

Number 49 April 14, 2017

This Orde.r may be appealed to the Cil·cuit Court of Cook Co. (Daley Center 6th Fl.) within 35 dnys by filing a civil law suit and by paying the appropriate State mand~•tcd filing fees.

Case: 1:17-cv-04518 Document #: 1 Filed: 06/15/17 Page 18 of 19 PageID #:18

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS MUNICIPAL DEPARTMENT-FIRST DISTRICT

TENT CITY ALTERNATIVE TO

)

LSD VIADUCTS, and ANDY THAYER,

)

)

Plaintiffs,

)

No: 17 M1450151

)

vs.

)

NOV: 17PA000002

)

CITY OF CHICAGO DEPARTMENT OF

)

ADMINISTRATIVE HEARINGS, and

)

CITY OF CHICAGO DEPARTMENT OF

)

TRANSPORTATION,

)

)

Defendants.

)

NOTICE OF REMOVAL TO FEDERAL COURT

To: See Service List Attached
PLEASE TAKE NOTICE that on or before June 16,2017, I caused the foregoing Notice of Removal to Federal Court to be filed at the Richard J. Daley Center located at 50 W. Washington, Chicago, Illinois 60602 a copy of which has been served upon the individual(s) indicated above.

EDWARDN. SISKEL

afChicago

#90909 City of Chicago Law Department 30 N. La Salle St. - Suite 1720 Chicago, IL 60602 312/ 744-0688 Kelley.Gandurski2@cityofchicago.org

K Senior Counsel

Certificate of Service
Pursuant to the penalties provided for in 5/1-109, I caused the oregoing Motion to be~_s.erved upon the individual(s) indicated above by depositing the same in the dropbox locate at 3 N. LaSalle l, Chicago, Illinois on or before 5:00PM on June 16,2017.
Kelley .
EXHIBIT
tB

Case: 1:17-cv-04518 Document #: 1 Filed: 06/15/17 Page 19 of 19 PageID #:19

Jeffrey Frank 3418 W. Medill Ave. Chicago, IL 60647
Molly Armo).lf Law Office of Molly Armour 4050 N. Lincoln Ave. Chicago, IL 60618
Alan Mills Uptown People's Law Center 4413 N. Sheridan Chicago, IL 60640
Susan Ritacca 601 S. California Ave. Chicago, IL 60612

SERVICE LIST

 
 Case: 1:17-cv-04518 Document #: 23 Filed: 08/01/17 Page 1 of 23 PageID #:472

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

TENT CITY ALTERNATIVE TO LSD )

VIADUCTS and ANDY THAYER,

)

)

Plaintiffs,

)

)

v.

)

)

CITY OF CHICAGO DEPARTMENT )

OF ADMINISTRATIVE HEARINGS, )

CITY OF CHICAGO DEPARTMENT )

OF TRANSPORTATION, CITY OF

)

CHICAGO,

)

)

Defendants.

)

No. 17 CV 4518
Hon. Sidney I. Schenkier, Presiding Magistrate Judge

FIRST AMENDED COMPLAINT

Plaintiffs, TENT CITY ALTERNATIVE TO LSD VIADUCTS and ANDY

THAYER, by their undersigned attorneys, complain against the Defendants, CITY

OF CHICAGO DEPARTMENT OF ADMINISTRATIVE HEARINGS, CITY OF

CHICAGO DEPARTMENT OF TRANSPORTATION, CITY OF CHICAGO, a

municipal corporation, as follows:
Nature of the Case

1.

This lawsuit began as an administrative appeal from a denial of

Plaintiffs’ Notification of Public Assembly pursuant to § 10-8-334 of the Municipal

Code of Chicago (MCC). However, Defendants removed the case to federal court as

raising an issue of federal law. Therefore, the case is now more properly a federal

civil rights claim.

2.

Plaintiffs allege that the City’s refusal to approve Plaintiffs’ permit

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application, in conjunction with the City’s planned removal of the homeless “tent

city” located under the viaducts at Wilson Avenue and Lawrence Avenue under

Lake Shore Drive, violates the First, Fifth, Eighth, and Fourteenth Amendments to

the United States Constitution; Article 1, Section 5 of the Illinois State Constitution

(hereinafter Illinois Article 1); and Illinois Bill of Rights for the Homeless Act, 775

ILCS 45/1 et. seq. (hereinafter Homeless Bill of Rights). Plaintiffs seek declaratory

and injunctive relief, as well as monetary damages and reasonable attorneys fees.
Jurisdiction and Venue

3.

Jurisdiction is proper in this court pursuant to 28 U.S.C. § 1331

because this case alleges violations of Plaintiffs’ rights under federal law and under

42 U.S.C. § 1983. The Court has supplemental jurisdiction over Plaintiffs’ state law

claims pursuant to 13 U.S.C. § 1367. The Court has the authority to grant

declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202.

4.

Venue is proper in this district pursuant to 28 U.S.C. § 1391(b), as all

the events giving rise to the claims asserted herein occurred in Cook County.

5.

The Court has authority to award attorneys’ fees pursuant to 42

U.S.C. §1988.

Factual Allegations Common to All Counts

The Parties

6.

Plaintiff Tent City Alternative to the LSD Viaducts is an

unincorporated association the members of which include individuals currently

2
	  

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residing in tent communities located under the viaducts of Lake Shore Drive at

Lawrence and Wilson Avenues and supportive community members of the Uptown

neighborhood of Chicago. (Uptown).

7.

Plaintiff Andy Thayer is a 30-year resident of Uptown, a community

activist, and a member of Tent City Alternative to LSD.

8.

Defendant Department of Administrative Hearings is a division of the

City of Chicago responsible for appeals from denials of permit applications, MCC §

10-8-334.

9.

Defendant Chicago Department of Transportation (CDOT) is a

department of the City of Chicago responsible for issuing permits for public

assembly pursuant to MCC § 10-8-334 and public use pursuant to MCC § 10-28-010.

10. Defendant City of Chicago (City) is a municipal corporation, duly

incorporated under the laws of the State of Illinois and located in Cook County,

Illinois.

11. Defendant Illinois Department of Transportation (IDOT) is a

department of the State of Illinois responsible, among other things, for maintenance

and repair of the Lake Shore Drive bridges over Lawrence and Wilson Avenues in

Chicago.

Defendants’ History of Harassment of the Homeless

12. Prior to August 17, 2015, homeless people had set up tent

encampments and were sleeping on the sidewalks located under the bridges at

Wilson and Lawrence Avenues in Uptown.

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13. Prior to August 17, 2015, Defendant City of Chicago, acting through various police officers, had periodically threatened to arrest these homeless people for sleeping on the sidewalk, or to confiscate or destroy their tents and other property.
14. On the night of August 17, 2015, an ad hoc group of homeless and housed Uptown residents planned an overnight protest on the edge of the park near the Wilson Avenue Lake Shore Drive bridge viaduct.
15. Members of the Chicago Police Department threatened to arrest everyone—homeless residents and protesters—when the park closed at 11 pm.
16. As the viaducts under Lake Shore Drive began to fill, several homeless people began to sleep in the public mall space in front of the now-shuttered Stewart Elementary School, 4525 N. Kenmore Avenue (Stewart Mall). Stewart Mall is located across the street from Alderman James Cappleman’s office, and is highly visible by the thousands of people who use Uptown’s major commercial street, Broadway, daily. In addition to needing safe shelter, the Plaintiffs sought to erect tents in an area that is highly visible to people frequenting the businesses in the Uptown community to draw attention to the lack of affordable housing options and the lack of services available for people experiencing homelessness.
17. From July to September 2016, 20 to 30 homeless residents erected tents and lived on the Stewart Mall, creating a tent city.
18. On September 26, 2016, Morningside Construction Managers, LLC (MCM)—with heavy police presence in tow and under the guise of a public way
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Case: 1:17-cv-04518 Document #: 23 Filed: 08/01/17 Page 5 of 23 PageID #:476
permit—fenced off the Stewart Mall, effectively evicting the homeless and the rest of the public from the Stewart Mall. No construction occurred at the adjacent school, nor was any equipment staged in the Stewart Mall, during the entire period of the MCM permit. The MCM permit expired on March 18, 2017 and was not renewed.
19. Sometime during the winter of 2016–17, Plaintiffs learned of a plan by IDOT to reconstruct or otherwise perform substantial repair of the Lake Shore Drive viaducts over Wilson and Lawrence Avenues.
20. The City of Chicago stated that this reconstruction would require the homeless people living under those bridges to move.
21. The City of Chicago has stated that it is not required to find alternative housing for those people displaced by IDOT’s project, nor does it intend to do so.
Defendants’ Denial of Plaintiffs’ Permit Application
22. On March 7, 2017, Plaintiff Andy Thayer (Thayer) on behalf of Uptown Tent Community Organizers (UTCO) filed a Notification of Public Assembly pursuant to MCC § 10-8-334 for the Stewart Mall set to begin the day after the MCM permit expired. The purpose of requesting this permit was two-fold: to provide an alternative location to live for the homeless people living under the Wilson and Lawrence bridges; and to erect a tent city in a highly visible location.
23. On March 15, 2017, CDOT denied Thayer’s permit application, citing unspecified “safety” concerns to justify its tardy response to the application. Under MCC § 10-8-334(b)(2), “[s]uch public assemblies shall be allowed unless the
5
	  

Case: 1:17-cv-04518 Document #: 23 Filed: 08/01/17 Page 6 of 23 PageID #:477
commissioner notifies, in writing by mail, fax, or e-mail the person or organization giving the notice, within two business days after receipt of notice of the public assembly.” As permitted under MCC § 10-8-334, Thayer appealed the City’s rejection.
24. On March 22, 2017, two days before the appeals hearing was to take place, Thayer received a call from Kelley A. Gandurski, Senior Assistant Corporation Counsel at the Chicago Law Department. She stated that MCM’s permit was “illegal” and that the City had forced MCM to remove the fencing and “no trespassing” signs blocking the Stewart Mall. On this basis, she requested that that Thayer withdraw his appeal. Upon confirming that the Stewart Mall was indeed reopened, the next day Thayer withdrew the appeal, noting in an email to Ms. Gandurski that any attempt to close off the Stewart Mall again to the public would be taken as a sign of bad faith and possible legal action.
25. Within two hours after Thayer withdrew the appeal, MCM again erected the fences blocking the Stewart Mall. The next day, Thayer sent another email to the Department of Administrative Hearings requesting a new appeals hearing, which was granted and set for March 30, 2017. Prior to the March 30 hearing, the fences around the mall were again taken down. On March 28, 2017, the City filed a Hearing Memorandum outlining the City's posture on the permit request.
26. At the March 30 hearing, the City successfully moved to dismiss the hearing on the grounds of mootness, arguing that because the Stewart Mall was
6
	  

Case: 1:17-cv-04518 Document #: 23 Filed: 08/01/17 Page 7 of 23 PageID #:478
already open and accessible to the public, Thayer’s public assembly permit was unnecessary.
27. With the appeal of the original permit application mooted, that afternoon Plaintiffs filed a more narrowly tailored Notification of Public Assembly. This permit notification was for a period of six months and included the use of tents by those assembled. On April 3, 2017, the City again denied Plaintiffs’ Notification of Public Assembly.
28. Plaintiffs appealed and a full administrative hearing was held on April 12, 2017. On April 11, 2017, less than 24 hours prior to the hearing, the City filed a written motion to dismiss arguing that Plaintiffs’ intention to allow for the erection of tents was an illegal, unpermitted act which should vacate the public assembly permit application without right of appeal. Plaintiffs’ counsel asked for a continuance to file a written response, but both the request for a continuance and to file a written response to the motion to dismiss were denied.
29. At the hearing, Plaintiffs argued that the City’s requirement to obtain a public way use permits pursuant to MCC § 10-28-010 for homeless people to erect tents, which can only be granted by passage of special ordinances by the City Council of Chicago, violated the First and Eighth Amendments to the U.S. Constitution, the broader public assembly protections of Illinois Article 1, the Illinois Homeless Bill of Rights (775 ILCS 45/1), and Chicago’s Public Assembly Ordinance (MCC § 10-8-334).
30. The City argued that a tent is a structure under subsection MCC § 10-
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Case: 1:17-cv-04518 Document #: 23 Filed: 08/01/17 Page 8 of 23 PageID #:479
28-010(b)(10), and therefore, Plaintiffs were required to apply for a public way use permit rather than a public assembly permit. The City argued that the denial letter provided Thayer with an adequate time and place alternative as required under the ordinance.
31. On April 14, 2017, Senior Administrative Law Judge Frank Lombardo issued the “Findings Decision and Order” (sic) affirming the City's denial of the public assembly permit application.
32. MCC § 10-8-334(b)(2) provides that “[s]uch public assemblies shall be allowed unless the commissioner notifies, in writing . . . that there is a significant public safety issue, limited to those set forth for parades in Section 10-8-330(g)(1)– (4).” CDOT’s and the City’s notice of denial only stated there were “significant public safety issues” but did not state what subsection of MCC § 10-8-330(g)(1)–(4) was applicable nor did it specify what constituted the specific public safety issue. CDOT’s and the City’s failure to provide a legal notice of denial and the misapplication of MCC § 10-8-334 to Plaintiffs resulted in a violation of Plaintiffs’ First Amendment and Illinois Article 1 rights. Notably, in denying the second public assembly permit, the City did not cite any safety issues.
33. MCC § 10-8-334(b)(2) further provides that when an assembly permit is denied, the City shall provide “an alternate date, time, location or route. This alternate, to the extent practicable, shall authorize a public assembly that will have comparable public visibility, and a similar route, location and date to that of the proposed public assembly.” The City’s alternative assembly offered the same dates
8
	  

Case: 1:17-cv-04518 Document #: 23 Filed: 08/01/17 Page 9 of 23 PageID #:480
and location, but not the same manner or public visibility of Plaintiffs’ planned public assembly. As applied to Plaintiffs, the City violated the public assembly ordinance in violation of Plaintiffs’ rights under the First Amendment and Illinois Article 1.
34. Nothing in the language of MCC § 10-8-334 prohibits the erection of non-permanent structures as part of a public assembly. On information and belief, significant numbers of public assemblies include the erection of non-permanent structures as part of the assembly that are dismantled at the end of the assembly. Such structures include scaffolding for speakers and elevated stages, all erected on the public way. On information and belief, none of the public assemblies containing such structures obtained public use permits. As applied to Plaintiffs, the City and CDOT’s requirement that Plaintiffs obtain a public use permit violated Plaintiffs’ rights under the First Amendment and Illinois Article 1.
35. MCC § 10-28-015 provides that applications for public use permits are submitted to the commissioner of business affairs and consumer protection. MCC § 10-28-015(c) provides “[i]f the commissioner finds that the applicant meets the applicable requirements, the commissioner shall provide the application to the alderman of the affected ward. Upon passage of an ordinance approving the application, the commissioner shall issue the public way use permit to the applicant. If approval by ordinance is withheld, the commissioner shall deny the application and shall notify the unsuccessful applicant in writing of the denial within ten business days after the denial.”
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36. On information and belief, Alderman James Cappleman, alderman of the 46th Ward in which the Stewart Mall is located, would not submit an ordinance for public use for an assembly of homeless people including tents to the Chicago City Council.
37. The requirement that a public assembly pursuant to MCC § 10-8-334 with certain types of structures obtain a public use permit pursuant to MCC § 1028-330 et. seq. constitutes an express municipal policy of the City. Such policy subjects the homeless to citations for ordinance violations and possible arrest.
38. The City of Chicago, in general, and Uptown in particular, does not have enough shelter beds to house the homeless. Further, upon information and belief, certain populations of homeless people, such as married couples, are not permitted in any existing shelter.
Irreparable Injury to Plaintiffs
39. As a direct and proximate result of Defendants’ unconstitutional application of MCC §§ 10-8-334 and 10-28-010 and violation of the Illinois Homeless Act, the rights of Plaintiffs have been interfered with, and they are in fear of being ticketed, arrested, and deterred from exercising their constitutionally protected First Amendment rights, and their rights to free assembly under Illinois Article 1.
40. As a direct and proximate result of Defendants’ unconstitutional application of MCC §§ 10-8-334 and 10-28-010 and violation of the Illinois Homeless Act, the activities of the Plaintiffs have been criminalized and they are being subjected to cruel and unusual punishment in violation of the Eighth Amendment.
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Case: 1:17-cv-04518 Document #: 23 Filed: 08/01/17 Page 11 of 23 PageID #:482
41. As a direct and proximate consequence of Defendants’ unconstitutional application of MCC §§ 10-8-334 and 10-28-010 and violation of the Illinois Homeless Act, Plaintiffs have suffered monetary damages in fines and court costs and loss of possessions.
42. Plaintiffs have suffered irreparable injury by Defendants’ actions and will continue to suffer irreparable injury in the absence of injunctive relief.
43. Plaintiffs lack any adequate remedy at law. 44. The balance of harms weighs in favor of Plaintiffs and against Defendants, as the issuance of the injunctive relief will not adversely affect the public interest.
Count One
The City’s Denial of Plaintiffs’ Application Was Not Justified by the Law or the Facts
45. Plaintiffs reallege as if they were set forth in full herein all allegations set forth in paragraphs 1–44. Plaintiffs’ set forth the following Specification of Errors committed during Plaintiffs’ Administrative Hearing appealing the denial of Plaintiffs’ notification of public assembly:
46. The failure of the Senior Administrative Law Judge (ALJ) Frank Lombardo to grant Plaintiffs’ motion to issue subpoenas for Michael Simon as a witness in accordance with MCC §§ 2-14-076(f) and 2-14-080. Transcript of the Appeals Hearing, April 12, 2017, Case No. 17 PA 000002, page 11, lines 10-17. (hereafter, T. P__, L__). Defendants submitted an affidavit of Mr. Simon that stated that Plaintiffs had not applied for a public use permit pursuant to MCC § 10-28-010.
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Case: 1:17-cv-04518 Document #: 23 Filed: 08/01/17 Page 12 of 23 PageID #:483
47. Mr. Simon, the Assistant Commissioner in the Public Way Permits Division of Public Way Infrastructure of the Chicago Department of Transportation, is the city official in charge of granting public use permits pursuant to MCC § 10-28010. Plaintiffs sought to examine Mr. Simon under oath as to what constituted the specific “public safety issue” which formed the basis of CDOT’s denial of the Plaintiffs’ public assembly notification. Further, Plaintiffs sought to examine Mr. Simon as to the process of obtaining public use permits that require an ordinance of the City Council of Chicago. Plaintiffs sought to incorporate into the record the near impossibility of obtaining a public use permit for anything other than a sidewalk café that results in the de facto criminalization of the homeless organized in tent encampments. This form of criminalization is at the core of Plaintiffs’ arguments of cruel and unusual punishment under the Eighth Amendment to the United States Constitution.
48. The denial of Plaintiffs’ motion was arbitrary resulting in prejudice to the Plaintiffs and an unfair hearing.
49. ALJ Lombardo’s denial of a motion for continuance by Plaintiffs in order for Plaintiffs to respond in writing to Defendants’ Motion to Dismiss. Defendants filed a Motion to Dismiss on April 11, 2017, less than 24 hours before the administrative hearing. This motion included a 10-page memorandum of law and 10 pages of exhibits. T. P 6, L 10-24. Plaintiffs requested a continuance to respond with a memorandum of law to rebut Defendants’ arguments. T. P 5, L 1124, P 6, L 1-2, P 8, L 12-18. Even though ALJ Lombardo denied the Motion to
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Dismiss (T. P 15, L 13), the denial of Plaintiffs’ motion for a continuance denied Plaintiffs’ the ability to submit a memorandum of law which would be included as part of the record. Once again, this prevented the record from including arguments, reasoning, and legal support for Plaintiffs’ position that the denial of the assembly permit violates the First, Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution and parallel provisions under the Illinois Constitution.
50. The denial of Plaintiffs’ motion was arbitrary resulting in prejudice to the Plaintiffs and an unfair hearing.
51. ALJ Lombardo overruled Plaintiffs’ objection as to Luis Benitez’s qualifications to make a legal interpretation of MCC § 10-28-010(b)(10). Mr. Benitez is the assistant chief engineer and chief bridge engineer for the Chicago Department of Transportation (CDOT) and was qualified as an expert with respect to structural engineering. T. P 25, L 4-18. Mr. Benitez was qualified to testify whether tents are structures. Mr. Benitez was asked by Defendants for an interpretation of whether tents for the proposed homeless encampment are structures for purposes of MCC § 10-28-010(b)(10). T. P 28, L 11-24; P 29, L 12-24. ALJ Lombardo overruled Plaintiffs’ objection that this called for a legal conclusion by Mr. Benitez. T. P 30, L 1-11.
52. This arbitrary overruling of Plaintiffs’ objection resulted in prejudice to the Plaintiffs and an unfair hearing.
53. ALJ Lombardo overruled an objection by Plaintiffs that Mr. Benitez was not qualified to make a legal conclusion that the term “structure” as defined in
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Case: 1:17-cv-04518 Document #: 23 Filed: 08/01/17 Page 14 of 23 PageID #:485
Code Section 13-96-480(a) should apply to the term “structure” in MCC § 10-28010(b)(10). T. 32, L 3-18.
54. This arbitrary overruling of Plaintiffs’ objection resulted in prejudice to the Plaintiffs and an unfair hearing.
55. ALJ Lombardo sustained an objection by Defendants to part of Plaintiffs’ opening statement that provided background information on the history of the public assembly ordinance. T. P 50, L 13-24, P 51, L 1-4. Denial of presenting background information on the public assembly ordinance deprived Plaintiffs of entering such information in the record for purposes of making arguments of violations of the U.S. Constitution in subsequent proceedings.
56. This arbitrary sustaining of Defendants’ objection resulted in prejudice to the Plaintiffs and an unfair hearing.
57. ALJ Lombardo sustained an objection on relevancy grounds regarding the introduction of evidence of prior public assembly notifications for the same location (i.e. the Stewart Mall) as the notification of public assembly under appeal in the hearing. ALJ Lombardo stated, “I’m not going to allow this evidence from a previous hearing. It has no bearing on what the determination will be today.” T. P 53 L 9-24, P 53 L 1-12. The history of prior notifications of public assembly for the Stewart Mall was relevant to establishing Plaintiffs constitutional speech and assembly claims.
58. This arbitrary sustaining of Defendants’ objection resulted in prejudice to the Plaintiffs and an unfair hearing.
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Case: 1:17-cv-04518 Document #: 23 Filed: 08/01/17 Page 15 of 23 PageID #:486
59. ALJ Lombardo sustained an objection to Plaintiffs laying a foundation for the notification of public assembly at issue in the hearing. T. P 69, L 9-18.
60. This arbitrary sustaining of Defendants’ objection resulted in prejudice to the Plaintiffs and an unfair hearing.
61. ALJ Lombardo denied the admission of exhibits presented by Plaintiffs based on Defendants’ objection as to relevancy. T. P 77, L 18. Plaintiffs’ proffered exhibits were photographs of the prior homeless tent encampment at the Stewart Mall. Plaintiffs sought to enter the photographs into evidence for purposes of establishing the public safety and accessibility of the Stewart Mall with a homeless tent encampment. T. P 74, L 5-18. Plaintiffs wanted the photographic evidence and testimony related thereto entered into the record for purposes of appealing the permit denial on constitutional grounds.
62. This arbitrary denial of the admission of Plaintiffs’ exhibits resulted in prejudice to the Plaintiffs and an unfair hearing.
63. ALJ Lombardo denied Plaintiffs’ objection on grounds of relevancy to questions on cross-examination of Plaintiff Thayer whether he had asked Chicago officials, prior to submitting the notification for public assembly, if the City of Chicago was willing to house 40 homeless people. Plaintiffs objected that notification for a public assembly does not require other inquiries of city officials. T. P 97, L 16-24; P 98, L 1-19.
64. This arbitrary overruling of Plaintiffs’ objection resulted in prejudice to the Plaintiffs and an unfair hearing.
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65. ALJ Lombardo overruled Plaintiffs’ objection to the relevancy of Defendants’ questions to Plaintiff Thayer in cross-examination as to the extent of his contact with the homeless. Plaintiffs argued that the notification for public assembly was by an organization of the homeless and Thayer’s contacts with the homeless was irrelevant. ALJ Lombardo overruled the objection based on the Defendants’ argument of developing the record as a defense for constitutional arguments of Plaintiffs on appeal, even though the Plaintiffs were denied the same requests for entering evidence and testimony into the record. See other errors delineated above. T. P 101, L 13-24, P 102, L 1-19.
66. This arbitrary overruling of Plaintiffs’ objection resulted in prejudice to the Plaintiffs and an unfair hearing.
67. ALJ Lombardo overruled Plaintiffs’ objection based on relevancy to questions regarding Plaintiff Thayer’s attitude toward the project to convert the Stewart School into market rate housing. T. P117, L 3-24. ALJ Lombardo also allowed the follow up question to Plaintiff Thayer as to the location of the Stewart School in relation to the Stewart Mall, which left the prejudicial implication that the notification for public assembly was a pretext to stop the Stewart School project. T. P 119, L 2-18.
68. This arbitrary overruling of Plaintiffs’ objection resulted in prejudice to the Plaintiffs and an unfair hearing.
69. ALJ Lombardo permitted extensive testimony by Alisa Rodriquez, Deputy Commissioner for the homeless programs of the City of Chicago Department
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Case: 1:17-cv-04518 Document #: 23 Filed: 08/01/17 Page 17 of 23 PageID #:488
of Family and Support Services, with respect to services and programs provided by the City of Chicago for the homeless population as well as testimony on the number, characteristics and condition of the homeless population in Chicago. T. P 129-161. Prior to cross-examination of Ms. Rodriquez by Plaintiffs, Plaintiffs noted to ALJ Lombardo that Plaintiffs “were not allowed the same scope of questioning [as conducted by Defendants of Ms. Rodriquez] when we were conducting our direct examination of Mr. Thayer.” T. P 162, L 18-20.
70. ALJ Lombardo erred in not permitting the same scope of questioning Mr. Thayer by Plaintiffs on direct examination as he allowed on the direct examination of Ms. Rodriquez by Defendants. This arbitrary error resulted in prejudice to the Plaintiffs and an unfair hearing.
71. ALJ Lombardo’s interpretation of “structure” to include tents is arbitrary and capricious and has no basis in law or fact.
WHEREFORE, Plaintiffs request that this Court: A. Enter an order reversing the decision of ALJ Lombardo, and granting Plaintiffs’ application for an assembly permit for the Stewart Mall for the location and manner as applied therefore, to run for a period of six months from the date of issuance; B. Enter judgment for reasonable attorney’s fees and costs incurred in bringing this action; and C. Grant Plaintiffs any and all other relief as law and justice demand.
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Count Two
Violation of the Eighth Amendment
72. Plaintiffs reallege as if they were set forth in full herein all allegations set forth in paragraphs 1–71.
73. The lack of beds in shelters combined with the application of City ordinances in a manner which prohibits homeless people from legally sleeping on public land, results in the criminalization of homeless people based solely on their status as being homeless. The criminalizing of the status of homelessness, rather than any conduct by the homeless, violates the Eighth Amendment’s prohibition on cruel and unusual punishment.
74. On information and belief, the City of Chicago, acting through the Chicago Police Department has consistently and regularly threatened to arrest the homeless Plaintiffs in this action, or otherwise attempted to force them to move their tents and all other personal possessions, and in some instances have actually confiscated their personal possessions, all without a lawful basis for doing so. Such actions of the police constitute policies of the City.
75. The City’s denial of the permit, coupled with the plan by the City and IDOT to reconstruct the Wilson and Lawrence bridges, without providing alternative housing for the Plaintiffs, who include individuals living under those bridges, violates the Eighth Amendment prohibition against cruel and unusual punishment, by criminalizing the status of homelessness.
WHEREFORE, Plaintiffs request that this Court: A. Grant plaintiffs’ appeal to reverse the Department of Administrative
18
	  

Case: 1:17-cv-04518 Document #: 23 Filed: 08/01/17 Page 19 of 23 PageID #:490
Hearings’ affirmation of the Commissioner of the Chicago Department of Transportation’s denial of plaintiffs’ Notification of Public Assembly and grant said Notification of Public Assembly for the location and manner as applied therefore, to run for a period of six months from the date of issuance;
B. Enter a declaration that MCC §10-8-320 and MCC §10-28-010 as applied to the Plaintiffs violates the Eighth Amendment to the U.S. Constitution;
C. Enter a preliminary and then a permanent injunction barring Defendants from beginning repairs or otherwise taking action to evict the people living under the Lake Shore Drive bridges over Lawrence and Wilson Avenues until alternate living arrangements are made for them; and barring Defendants and their agents, servants, employees and attorneys from applying MCC § 10-8-320 and MCC § 10-28-010 in a manner prohibiting Defendants from erecting tents as applied for in the Notification of Public Assembly;
D. Enter judgment in favor of Plaintiffs and against Defendants for monetary damages to be determined at trial;
E. Enter judgment for reasonable attorney’s fees and costs incurred in bringing this action; and
F. Grant Plaintiffs any and all other relief as law and justice demand.
Count Three
Violation of the First Amendment
76. Plaintiffs reallege as if they were set forth in full herein all allegations set forth in paragraphs 1–75.
77. Chicago Municipal Code sections 10-8-334 and 10-28-010 as applied to 19
	  

Case: 1:17-cv-04518 Document #: 23 Filed: 08/01/17 Page 20 of 23 PageID #:491
Plaintiffs violate the First Amendment and constitute an unconstitutional express municipal policy of the Defendants.
78. As applied, these provisions unconstitutionally abridge the Plaintiffs’ right to free speech and assembly.
79. As applied, these provisions are not narrowly tailored to meet a significant governmental interest.
80. There are no ample alternatives channels for communication of the Plaintiffs message.
WHEREFORE, Plaintiffs request that this Court: A. Grant Defendants’ appeal to reverse the Department of Administrative Hearings’ affirmation of the Commissioner of the Chicago Department of Transportation’s denial of Defendants’ Notification of Public Assembly and grant said Notification of Public Assembly for the dates, location and manner as applied therefore; B. Enter a declaration that MCC § 10-8-320 and MCC § 10-28-010 as applied to the Plaintiffs violate the First Amendment to the U.S. Constitution; C. Enter a preliminary and then a permanent injunction barring Defendants and their agents, servants, employees and attorneys from applying MCC § 10-8-320 and MCC § 10-28-010 in a manner prohibiting Defendants from erecting tents as applied for in the Notification of Public Assembly; D. Enter judgment in favor of Plaintiffs and against Defendants for monetary damages to be determined at trial;
20
	  

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E. Enter judgment for reasonable attorney’s fees and costs incurred in bringing this action; and
F. Grant Plaintiffs any and all other relief as law and justice demand.
Count Four
State Claim: Violation of the Illinois Homeless Act
81. Plaintiffs reallege as if they were set forth in full herein all allegations set forth in paragraphs 1–80.
82. The Illinois Homeless Act states in “Sec. 5. Legislative intent. It is the long-standing policy of this State that no person should suffer unnecessarily from cold or hunger, be deprived of shelter or the basic rights incident to shelter, or be subject to unfair discrimination based on his or her homeless status. At the present time, many persons have been rendered homeless as a result of economic hardship, a severe shortage of safe and affordable housing, and a shrinking social safety net. It is the intent of this Act to lessen the adverse effects and conditions caused by the lack of residence or a home.”
83. The Illinois Homeless Act states that homelessness “means the status of having or not having a fixed or regular residence, including the status of living on the streets, in a shelter, or in a temporary residence.” Illinois Homeless Act Sec. 10(b).
84. The rights of the homeless pursuant to the Illinois Homeless Act include:
Sec. 10(a)(1): the right to use and move freely in public spaces, including but not limited to public sidewalks, public parks, public transportation, and public
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buildings, in the same manner as any other person and without discrimination on the basis of his or her housing status; and
Sec. 10(a)(7): the right to a reasonable expectation of privacy in his or her personal property to the same extent as personal property in a permanent residence
85. The Defendants’ policies impede the ability of homeless Plaintiffs to move freely in public spaces in violation of the Illinois Homeless Act.
86. The Defendants’ policies prohibit use of public spaces and violate the reasonable expectation of privacy of the homeless Plaintiffs in violation of the Illinois Homeless Act.
WHEREFORE, Plaintiffs request that this Court: A. Grant Plaintiffs’ appeal to reverse the Department of Administrative Hearings’ affirmation of the Commissioner of the Chicago Department of Transportation’s denial of Plaintiffs’ Notification of Public Assembly and grant said Notification of Public Assembly for the dates, location and manner as applied therefore; B. Enter a declaration that MCC § 10-8-320 and MCC § 10-28-010 as applied to the Plaintiffs violates the Illinois Homeless Act; C. Enter a preliminary and then a permanent injunction barring Defendants and their agents, servants, employees and attorneys from applying MCC § 10-8-320 and MCC § 10-28-010 in a manner prohibiting Defendants from erecting tents as applied for in the Notification of Public Assembly; D. Enter judgment in favor of Plaintiffs and against Defendants for
22
	  

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monetary damages to be determined at trial; E. Enter judgment for reasonable attorney’s fees and costs incurred in
bringing this action; and F. Grant Plaintiffs any and all other relief as law and justice demand.

Dated:

August 1, 2017

Alan Mills Uptown People’s Law Center 4413 N. Sheridan Chicago, Illinois 60640 773-769-1411 alan@uplcchicago.org
Molly Armour Law Office of Molly Armour 4050 N. Lincoln Chicago, Illinois 60618 773-746-4849 armourdefender@gmail.com
Adele D. Nicholas Law Office of Adele D. Nicholas 5707 W. Goodman Street Chicago, Illinois 60630 847-361-3869 adele@civilrightschicago.com

Respectfully submitted,
/s/ Alan Mills_____________
/s/ Molly Armour_________
/s/ Jeffrey Frank__________
/s/ Adele D. Nicholas_______
/s/ Susan Hathaway Ritacca Counsel for Plaintiffs
Jeffrey Frank 3418 W. Medill Chicago, Illinois 60647 312-206-5253 jhfrank52@gmail.com
Susan Hathaway Ritacca Susan Ritacca Law Office 601 South California Chicago, Illinois 60612 872-222-6960 susan@susanritaccalaw.com

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 Case: 1:17-cv-04518 Document #: 25 Filed: 08/27/17 Page 1 of 33 PageID #:496

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

TENT CITY ALTERNATIVE TO LSD, VIADUCTS and ANDY THAYER,
Plaintiffs, v. CITY OF CHICAGO, et al.
Defendants.

)

)

)

No. 17 CV 4518

)

)

)

)

)

Magistrate Judge

)

Sidney Schenkier, Presiding

)

)

PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION

Plaintiffs, through counsel, respectfully move this Court for entry of a

preliminary injunction preserving the status quo by barring the City of Chicago

from enforcing the 30-day notice to vacate it posted on August 18, 2017, until the

City (1) provides permanent housing for everyone living under the bridges; (2)

grants the permit at issue in this case, or otherwise allows the people living under

the bridges to move to the park area in front of the vacant Stewart School; (3)

provides a similar location, with similar visibility, for the people to temporarily

stay; or (4) this case is resolved on the merits. In support of this motion, Plaintiffs

state as follows:

INTRODUCTION

Plaintiff Tent City Alternative to LSD Viaducts is an association that

represents and advocates for the rights of individuals who live in tent communities

located under the viaducts of Lake Shore Drive at Lawrence and Wilson Avenues.

Case: 1:17-cv-04518 Document #: 25 Filed: 08/27/17 Page 2 of 33 PageID #:497
Plaintiff Andy Thayer is a community activist and member of Tent City Alternative to LSD Viaducts.
On August 18, 2017, officials of the City of Chicago’s Department of Transportation posted a notice on the bridges of Lakeshore Drive over Wilson and Lawrence Avenues. Ex. 1. This notice states that the site will be “closed for construction” on Monday, September 18, 2017, and will remain under construction and thus off limits until March 31, 2018. Id. If this notice is put into effect, the people who are currently living under the viaduct will be displaced. Affiants have noted the mutual protection that living in a tent community currently offers them that is lacking when they are dispersed. They have noted that temporary shelters are not an option for them due to the physical dangers and health risks frequently associated with shelters. Affiants have also noted that no shelters in the City allow for the temporary housing of childless, different-sexed couples. Single Room Occupancy (SRO) housing is the least expensive form of permanent housing, and yet over 2200 units of Single Room Occupancy (SRO) housing on the city’s North Side were lost between 2011 and 2013 alone [cite: http://chicagoreporter.com/shifting-sroscene-when-housing-last-resort-disappears/], forcing up market demand, and hence prices, for remaining housing stock and pricing Affiants out of the market.
Just in the last few weeks, Uptown learned that the last building in the community with units affordable by someone living on social security was being vacated and converted into higher priced housing. Mark Brown, “Sale of cubicle hotel” in Uptown puts residents at risk,” Chicago Sun Times, July 21, 2017
2

Case: 1:17-cv-04518 Document #: 25 Filed: 08/27/17 Page 3 of 33 PageID #:498
(http://chicago.suntimes.com/chicago-politics/brown-sale-of-cubicle-hotel-in-uptownputs-residents-at-risk/, last accessed August 27, 2017). This will displace hundreds of additional people, all of whom will be competing for shelter beds and low cost housing, thus further driving up the price and reducing availability.
In April 2017, the Chicago Coalition for the Homeless has estimated that based on the 2015 U.S. census, 82,212 are homeless in the City of Chicago. The Chicago Public Schools identified that 18,117 of its registered students were homeless during the 2016-17 school year. http://www.chicagohomeless.org/faq-studies/ As Plaintiffs’ second public assembly application noted, “With repairs of the Lake Shore Drive bridge viaducts scheduled…the homeless who currently reside there will need a place to stay, given that the City has proven unable or unwilling to house them.”
The Plaintiffs have identified an alternative location at which they seek to establish a tent community—the publicly owned parkway in front of the nowshuttered Stewart Elementary School, 4525 N. Kenmore Avenue that beginning on September 26, 2016 has been periodically blocked by fencing erected by a private contractor—and have applied for a public assembly permit to do so under §10-8-334 of the Municipal Code of Chicago.1 The City denied this permit, citing unspecified “safety” concerns. Plaintiffs appealed the City’s denial, seeking to use the area. Two days before the appeal hearing, Attorney Kelly Gandursky, representing the City, said the erection of the fencing by the contractor was “illegal” as it was not in the area for which the contractor had a permit. Gandurski said they had forced the
1 Hereinafter cited as “MC §.” 3

Case: 1:17-cv-04518 Document #: 25 Filed: 08/27/17 Page 4 of 33 PageID #:499
contractor to take down the fence and asked Plaintiff to withdraw his appeal. Upon verifying that the fence had been removed, Plaintiffs withdrew their appeal. Within hours, the fence was re-erected. Plaintiffs thus reinstated their appeal. The fence was removed again on the eve of the hearing, and the City successfully moved for the appeal to be denied on the grounds of “mootness.” The same day, Plaintiffs applied for another, very similar public assembly permit for the same location, this time also indicating that Plaintiffs would be erected tents for the homeless. The City denied the permit without citing any safety concerns. This time the City said that while the time and place of the 1st Amendment activity were fine, the manner in the form of erecting tents required an additional public way use permit under MC §10-28-010 and that erecting tents without such a permit was “an illegal act.” Public way use permits require the passage of a special ordinance by the City Council and Mayor for each instance of such use. MC §10-28-015. The City’s own expert witness admitted in his testimony that never in his experience had the City insisted on homeless individuals applying for and receiving a public way use permit in order to erect tents. Plaintiffs’ public assembly permit was nonetheless denied on the grounds that they had not applied for a public way use permit in addition to the public assembly permit. It was this denial that led to the present suit.
Plaintiffs bring this motion to preliminarily preserve the status quo by enjoining the City of Chicago from enforcing the 30-day notice until such time as at least one of the following conditions is met:
4

Case: 1:17-cv-04518 Document #: 25 Filed: 08/27/17 Page 5 of 33 PageID #:500
a. the public assembly permit for Plaintiffs to establish a tent community at the Stewart School site is granted (even if on a temporary basis, pending final resolution of this case);
b. Plaintiffs and others affected by the Order are provided permanent housing; or
c. The parties are able to agree upon an alternative location that both provides a safe place for Plaintiffs and others affected by the removal notice to stay, and has similar visibility to the current viaduct site and/or the Stewart School site.
As set forth below, Plaintiffs meet the criteria for obtaining preliminary injunctive relief to bar the City from enforcing its 30-day notice. First, Plaintiffs show that they have a substantial likelihood of success on the merits of their claims that: (1) the City’s plan to reconstruct the Wilson and Lawrence bridges without providing alternative housing for the Plaintiffs and/or approving their application for a public assembly permit to establish a tent community at the Stewart School site violates the Eighth Amendment by criminalizing the status of homelessness; (2) the City’s planned removal of Plaintiffs from their current location, coupled with their denial of Plaintiffs’ public assembly permit application and failure to provide a similarly visible alternative location in the manner applied for violates Plaintiffs’ rights under the First Amendment of the U.S. Constitution and Article 1, Section 5 of the Illinois Constitution; and (3) the City’s planned removal of Plaintiffs from their current location violates their rights under the Illinois Bill of Rights for the Homeless Act. Second, Plaintiffs show that they lack an adequate remedy at law and will suffer irreparable harm in the absence of injunctive relief. Third, Plaintiffs show that the balance of harms tips in favor of granting the injunctive relief requested.
5

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ARGUMENT I. Preliminary Injunction Standard
In the Seventh Circuit, a party seeking a preliminary injunction must establish four elements: (1) some likelihood of success on the merits; (2) the lack of an adequate remedy at law; (3) a likelihood that they will suffer irreparable harm if the injunction is not granted; and (4) that the balance of hardships tips in the moving party’s favor. Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001). In the analysis below, Plaintiffs shows, first, that there is a substantial likelihood that they will succeed on the merits of their claims. Next, Plaintiffs show that they satisfy the three criteria for obtaining injunctive relief. II. Plaintiffs Have a Likelihood of Success on the Merits of Their Claims
A. The City’s Removal Notice, Along with the Denial of the Public Use Permit, Violates the Eighth Amendment
The “Cruel and Unusual Punishments” Clause of the Eighth Amendment “imposes substantive limits on what can be made criminal and punished as such.” Ingraham v. Wright, 430 U.S. 651, 667-68 (1977). The Supreme Court has explained that laws that criminalize an individual’s status, rather than his conduct, violate the Eighth Amendment’s prohibition of cruel and unusual punishment. Robinson v. California, 370 U.S. 660 (1962). In Robinson, the Court found unconstitutional a state law that made it a criminal offense to be addicted to illegal narcotics. The Court noted that the statute made an addicted person “continuously guilty of this offense, whether or not he had ever used or possessed any narcotics within the State”—and further that addiction is a status “which may be contracted innocently
6

Case: 1:17-cv-04518 Document #: 25 Filed: 08/27/17 Page 7 of 33 PageID #:502
or involuntarily,” given that “a person may even be a narcotics addict from the moment of his birth.” The Court found that the statute impermissibly criminalized the status of addiction and, therefore, constituted cruel and unusual punishment. Id. at 666-67 & n.9.
In Powell v. Texas, 392 U.S. 514 (1968), the Court applied the principles of Robinson to the question of whether conduct that is an unavoidable consequence of one’s status can be criminalized consistent with the Eighth Amendment. In Powell, the Court considered the constitutionality of a law that made “public intoxication” a crime. A four-member plurality interpreted Robinson narrowly as prohibiting only criminalization of status and noted that the public intoxication statute criminalized conduct—being intoxicated in public—rather than the status of being addicted to alcohol. Id. at 534 (plurality opinion). The dissenting justices interpreted Robinson more broadly, concluding that the Eighth Amendment protects against criminalization not solely of one’s status, but also of conduct that a person is “powerless to avoid” due to his status. Id. at 567 (dissenting opinion). Noting that due to his alcohol addiction, Mr. Powell was powerless to avoid public drunkenness, the dissenting justices would have reversed Mr. Powell’s conviction on Eighth Amendment grounds. Id. at 569-70.
Justice White, who concurred in the result, wrote a separate opinion in which he set forth a different interpretation of Robinson. Justice White concluded that the operative question should be the “voluntariness” of the conduct in question. Id. at 548-51 (White, J., concurring). Under this analysis, if sufficient evidence is
7

Case: 1:17-cv-04518 Document #: 25 Filed: 08/27/17 Page 8 of 33 PageID #:503
presented showing that the prohibited conduct was involuntary due to one’s status, criminalization of that conduct would be impermissible under the Eighth Amendment. Id. at 551. In reaching this decision, Justice White specifically contemplated the application of criminal laws to homeless individuals who have no choice but to engage in activities of life in public places. He explained that, “[f]or all practical purposes the public streets may be home for these unfortunates, not because their disease compels them to be there, but because, drunk or sober, they have no place else to go and no place else to be when they are drinking.” Id. Justice White believed some alcoholics who are homeless could show that “resisting drunkenness is impossible and that avoiding public places when intoxicated is also impossible.” Id. For these individuals, the statute “is in effect a law which bans a single act for which they may not be convicted under the Eighth Amendment—the act of getting drunk.” Id.
The Ninth Circuit adopted Justice White’s framework in Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006). In Jones the court found an ordinance that criminalized “sitting, lying, or sleeping on public streets and sidewalks at all times and in all places within Los Angeles's city limits” was unconstitutional as applied to homeless individuals who are “sitting, lying, or sleeping in Los Angeles’s Skid Row because they cannot obtain shelter.” Id. at 1136. See also Johnson v. City of Dallas, 860 F. Supp. 344, 350 (N.D. Tex. 1994), rev’d on other grounds, 61 F.3d 442 (5th Cir. 1995) (finding anti-camping ordinance violated Eighth Amendment because it criminalized sleeping in public when homeless individuals had no other choice but
8

Case: 1:17-cv-04518 Document #: 25 Filed: 08/27/17 Page 9 of 33 PageID #:504
to sleep in public, and therefore criminalized the status of homelessness itself); Pottinger v. City of Miami, 810 F. Supp. 1551, 1563 (S.D. Fla. 1992) (same).2
Pursuant to this case law, Plaintiffs have a substantial likelihood of success on their claim that the MC §10-28-010, as applied to Plaintiffs, violates the Eighth Amendment because it results in criminalization of the status of people who are homeless. Under MC §10-28-010, subsection (b), “Unless otherwise authorized by this code, it shall be unlawful for any person to construct, install or maintain any of the following on, under or above the public way without a public way use permit authorized by ordinance passed by the city council.” [emphasis ours] Moreover, under MC §10-28-010(a)(3), “An application for a public way use permit shall be made to the department and shall include the following: …. proof of the required insurance.
The City makes it illegal to erect a tent on public property (regardless of whether doing so obstructs other users of the public way) without first obtaining a public use permit pursuant to MC §10-28-010. To obtain such a permit, the applicant must first secure passage of a special ordinance by the City Council, such as those used to authorize sidewalk cafes or awnings over the public sidewalk. Then, the applicant has to buy an insurance policy to cover the public way use, or

2

The Department of Justice has consistently taken the position that that

criminalizing sleeping in public when no shelter is available violates the Eighth

Amendment by criminalizing the status of being homeless. See, Statement of Interest, Bell

v. City of Boise, No. 09-cv-540 (D. Idaho, August 6, 2015); Brief for the United States as

Amicus Curiae, Joyce v. City and County of San Francisco, No. 95-16940 (9th Cir. Mar. 29,

1996); Brief for the United States as Amicus Curiae, Tobe v. City of Santa Ana, No. S03850

(Cal. June 9, 1994).

9

Case: 1:17-cv-04518 Document #: 25 Filed: 08/27/17 Page 10 of 33 PageID #:505
add it to an existing policy. These onerous requirements make it virtually impossible for an indigent person to obtain a public use permit for the purpose of erecting a temporary shelter such as a tent.
At the same time, homeless individuals such as Plaintiffs have no option but to live in tent encampments such as those currently located under the viaducts or the proposed Stewart School site. This is so because, through no volitional act of their own, they are unable to obtain housing. Ms. Alisa Rodriquez, Deputy Commissioner for the homeless programs of the City of Chicago Department of Family and Support Services, the City’s witness in the Administrative Hearing3 agreed, under cross-examination, that there were insufficient beds in shelters to house the homeless population of Chicago based on the number of homeless individuals in the report of the Chicago Coalition on the Homeless. Transcript of the Appeals Hearing before Senior Administrative Law Judge Frank Lombardo on April 12, 2017, Case No. 17 PA 000002, page 166 lines 19-24.4 Plaintiffs are thus exposed to potential arrest and/or citation for violation of the municipal code every day for simply carrying out life-sustaining tasks such as sleeping in a temporary shelter such as a tent. See Affidavits of Maria Murray and Joe Murray.
3 Tent City Alternative To LSD Viaducts and Andy S. Thayer v. City of Chicago and City of Chicago Department of Transportation, Docket # 05CP000654A; April 12, 2017. 4 Hereinafter, all references to the Transcript shall be T. P __, L ____.
10

Case: 1:17-cv-04518 Document #: 25 Filed: 08/27/17 Page 11 of 33 PageID #:506
B. The City’s Removal Notice, Along with the Denial of the Public Assembly Permit, Violates the First Amendment of the U.S. Constitution and Article 1, Section 5 of the Illinois Constitution
The existing encampments under the Lake Shore Drive bridges in Uptown not only provide community residents with a safe place to stay out of the weather, but they do so in a location which is highly visible to the thousands of people who use Lincoln Park every week. On March 29, 2016, the City of Chicago held a meeting at Clarendon Park Fieldhouse with members of the tent encampments and other interested parties. The purpose of the meeting was to announce a pilot program to find permanent housing for everyone living in the encampments. During the meeting, the City admitted that the reason it was offering this program to the residents of the Uptown encampments was that they were so visible. That visibility plays an important First Amendment function of dramatizing the dire situation of the tens of thousands of homeless people in Chicago—so that “out of sight” will not mean “out of mind.” The location of the assembly which is the subject of this case is similarly visible—directly across the street from the Alderman’s office, and in front of a closed school which is being converted into expensive residential lofts. The City’s denial of plaintiffs’ permit application thus deprives plaintiffs of their right to speak in an effective manner, a right protected by the First Amendment.
Under established case law, public authorities may limit the application of the public assembly provision of the 1st Amendment of the U.S. Constitution on the grounds of “time” “place” and “manner.” Article 1, Section 5 of the Illinois Constitution, however, limits public authorities’ power to use “manner” restrictions
11

Case: 1:17-cv-04518 Document #: 25 Filed: 08/27/17 Page 12 of 33 PageID #:507
on public assemblies by explicitly adding in protections for what it calls “nonexpressive” assemblies.
Under MC §10-8-334, the City is required to offer an alternative location and time for applications that it rejects. In the case of Plaintiffs’ second application, as part of the City’s rejection, it stated that Plaintiffs would be permitted to assemble in the exact same time and place as requested on their application – but without tents. Hence, only the City’s right to reject public assemblies based upon manner is at issue. As with the City’s specious “public safety” objections to Plaintiffs’ first public assembly application, the City is concocting a manner objection due to the fact that Plaintiffs work with and/or are homeless themselves. Moreover, Plaintiffs’ proposal to erect tents is precisely the kind of “non-expressive” assembly contemplated by Article 1, Section 5 of the Illinois Constitution.
Plaintiffs’ permit application was for a parkway open to the public. Originally, this was a public street; however, the street was closed and converted to a pedestrian mall as part of the expansion of the campus of Stewart Elementary School. When the school was closed in the summer of 2013, the parkway became fully accessible to the public. While the City sold the school building to a private developer, it has admitted (see Statement of Facts) that the developer had no right to use the parkway. It thus remains open to the public. As a public parkway, it is a traditional forum for public speech. As such, restrictions on speech in that forum are subject to strict scrutiny. Choose Life Ill., Inc. v. White, 547 F.3d 853, 864 (7th
12

Case: 1:17-cv-04518 Document #: 25 Filed: 08/27/17 Page 13 of 33 PageID #:508
Cir. 2008), citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983).
Under strict scrutiny analysis, "[t]he government may 'exclude a speaker from a . . . public forum only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.'" Christian Legal Soc'y v. Walker, 453 F.3d 853, 865 (7th Cir. 2006) (internal
quotation marks omitted) (quoting Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 677, 118 S. Ct. 1633, 140 L. Ed. 2d 875 (1998)). Stated differently:
[T]he time, place, and manner of a speaker's activities can be regulated without violating the First Amendment so long as the restrictions are (1) content-neutral, (2) narrowly tailored to serve a significant government interest, and (3) leave open ample alternative channels for communication. Marcavage v. City of Chicago, 659 F.3d 626, 630 (7th Cir. 2011). As noted in the Statement of Facts, the City’s only reason for denying plaintiffs’ permit application was that erecting tents on the parkway would violate
the law barring construction of a “structure” on the public way, in the absence of a City Ordinance (and the required insurance) for doing so. The City’s interpretation of the word “structure” to include a tent is inherently suspicious5. However, the
5 Counsel believes that the City does not require such an ordinance for the hundreds of temporary tents erected at the innumerable street festivals held in Chicago every year (or for that matter, the tents erected every week on the federal plaza across the street from this courthouse or in front of the Daly Center courthouse for “Farmers Markets”. For example, the City’s permit application for ‘Special Events” clearly states, in bold red ink, that a “tent permit” is required only if the tent will be over 400 square feet. None of the tents at issue in this case are that large. City of Chicago Special Events Permit Package, p. 4 (https://www.cityofchicago.org/content/dam/city/depts/dca/Neighborhood%20Festivals/Permi tPacket2016.pdf, last visited August 27, 2017).
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Court need not delve into the issue of statutory construction, because the City admitted (Doc. 9, Admin. Record, p. 36) that no permit had ever been granted to homeless people living in tents. The City further admitted that no tent under the Wilson and Lawrence bridges had ever posed any sort of safety hazard (id, at 41). The City has thus admitted that it has no compelling interest served by denying plaintiffs’ application for a public assembly permit.
C. The City’s Removal Notice Violates The Illinois Bill of Rights for the Homeless Act
The Illinois Bill of Rights for the Homeless Act was passed on August 22, 2013. Illinois is one of only three states, along with Connecticut and Rhode Island, to pass legislation codifying the civil and human rights of homeless people. The statute’s legislative intent states:
It is the long-standing policy of this State that no person should suffer unnecessarily from cold or hunger, be deprived of shelter or the basic rights incident to shelter, or be subject to unfair discrimination based on his or her homeless status. At the present time, many persons have been rendered homeless as a result of economic hardship, a severe shortage of safe and affordable housing, and a shrinking social safety net. It is the intent of this Act to lessen the adverse effects and conditions caused by the lack of residence or a home. The Illinois Bill of Rights for the Homeless defines homelessness as “status of having or not having a fixed or regular residence, including the status of living on the streets, in a shelter, or in a temporary residence.” 775 ILCS 45/10(b). Among the rights that homeless people are entitled to in Illinois are “the right to use and move freely in public spaces, including but not limited to public sidewalks, public parks, public transportation, and public buildings, in the same manner as any other
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person and without discrimination on the basis of his or her housing status,” and “the right to a reasonable expectation of privacy in his or her personal property to the same extent as personal property in a permanent residence.” 775 ILCS 45/10(a)(1), (7).
These two provisions stand for the proposition that homeless individuals should not be (a) forced to obtain a tent permit that burdens them on the basis of their housing status, and (b) have their property (including tents) displaced from public land. In this case, as discussed at length in the two prior sections, the City granted plaintiffs’ permit application to use the space in front of Stewart School for any assembly EXCEPT one involving tents. Since homeless people need to sleep somewhere, this limitation effectively bars them from using the Stewart mall to protest, while allowing any housed person (who can of course go home at night) to use the space. This is exactly the sort of disparate treatment which constitutes prohibited discrimination under the Homeless Bill of Rights.
In sum, Plaintiffs have established a likelihood of success on the merits on each of their three claims in this case sufficient to warrant granting a preliminary injunction. III. Plaintiffs Meet the Other Criteria to Obtain Preliminary Injunctive
Relief As explained above, in order to prevail on a motion for preliminary injunction, a plaintiff must demonstrate: (1) some likelihood of success on the merits; (2) that he lacks an adequate remedy at law; and (3) a likelihood that he will suffer irreparable harm if the injunction is not granted. Ty, Inc, 237 F.3d at 895. If
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these conditions are met, a court must then balance the hardships the moving party will suffer in the absence of relief against those the nonmoving party will suffer if the injunction is granted. Id. A court weighs all these factors “sitting as would a chancellor in equity,” using a “‘sliding scale’ approach: the more likely it is the plaintiff will succeed on the merits, the less the balance of irreparable harms need weigh towards its side; the less likely it is the plaintiff will succeed, the more the balance need weigh towards its side.” Abbott Labs v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992).
A. Plaintiffs Lack an Adequate Remedy at Law and Will Suffer Irreparable Harm if an Injunction Is Not Granted
Where, as here, deprivation of a constitutional right is alleged, “most courts hold that no further showing of irreparable injury is necessary.” Ezell v. City of Chicago, 651 F.3d 684, 699 (7th Cir. 2011) (quoting Alan Wright et al., Federal Practice and Procedure §2948.1 (2d ed. 1995)). However, as set forth above, individuals currently living in tent encampments impacted by the City’s planned construction will suffer severe harm if the City is not enjoined from enforcing its 30day removal notice. They will be deprived of a safe community out of the weather; they will be deprived of a space which highlights their plight. Further, many residents will not even be able to relocate to shelters dispersed throughout the City, either because they are not eligible, or because there are not sufficient beds.
B. The Balance of Harms Weighs in Favor of Granting Plaintiff the Relief Requested
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There is no evidence that the public interest will be harmed if the Court grants the preliminary injunctive relief they have requested. First, the public has a powerful interest in protecting constitutional rights that is well served by granting injunctive relief here. See, ACLU v. Alvarez, 679 F.3d 583, 589-90 (7th Cir. 2012) (“[T]he public interest is not harmed by preliminarily enjoining the enforcement of a statute that is probably unconstitutional.”) Second, there is no reason to believe that there is any risk to public safety posed by allowing the people currently living under the viaducts to either remain where they are or move their tent encampment to the Stewart School site. As set forth in the attached declarations, the existing encampments are long standing communities that have not posed any danger to the community in which they are located. Likewise, the Stewart School site currently stands vacant and unused. Allowing Plaintiffs to relocate to that site would pose no obstruction of the public way or other public safety risks.
CONCLUSION For all of the reasons set forth above, Plaintiffs respectfully requests that this Honorable Court grant a preliminary injunction barring the City from enforcing the 30-day notice until such time as at least one of the following conditions is met: a. the public assembly permit for Plaintiffs to establish a tent community
at the Stewart School site is granted (even if on a temporary basis, pending final resolution of this case); b. Plaintiffs and others affected by the Order are provided permanent housing; or c. The parties are able to agree upon an alternative location that both provides a safe place for Plaintiffs and others affected by the removal notice to stay, and has similar visibility to the current viaduct site and/or the Stewart School site.
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Jeffrey Frank 3418 W. Medill Chicago, Illinois 60647 312-206-5253 jhfrank52@gmail.com
Susan Hathaway Ritacca Susan Ritacca Law Office 601 South California Chicago, Illinois 60612 872-222-6960 susan@susanritaccalaw.com
Alan Mills Uptown People’s Law Center 4413 N. Sheridan Chicago, Illinois 60640 773-769-1411 alan@uplcchicago.org
Molly Armour Law Office of Molly Armour 4050 N. Lincoln Chicago, Illinois 60618 773-746-4849 armourdefender@gmail.com
Adele D. Nicholas Law Office of Adele D. Nicholas 5707 W. Goodman Street Chicago, Illinois 60630 847-361-3869 adele@civilrightschicago.com

Respectfully submitted,
/s/ Alan Mills /s/ Molly Armour /s/ Jeffrey Frank /s/ Adele D. Nicholas /s/ Susan Hathaway Ritacca Counsel for Plaintiffs

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 Case: 1:17-cv-04518 Document #: 48 Filed: 11/07/17 Page 1 of 37 PageID #:721

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UPTOWN TENT CITY ORGANIZERS, )

and ANDY THAYER,

)

)

Plaintiffs,

)

)

v.

)

)

CITY OF CHICAGO DEPARTMENT )

OF ADMINISTRATIVE HEARINGS, )

CITY OF CHICAGO DEPARTMENT )

OF TRANSPORTATION, and

)

CITY OF CHICAGO,

)

)

Defendants.

)

No. 17 CV 4518
Hon. Judge Sidney I. Schenkier, Presiding Magistrate

SECOND AMENDED COMPLAINT

Plaintiffs, UPTOWN TENT CITY ORGANIZERS and ANDY THAYER, by their undersigned attorneys, complain against the Defendants, CITY OF CHICAGO

DEPARTMENT OF ADMINISTRATIVE HEARINGS, DEPARTMENT OF

TRANSPORTATION, and CITY OF CHICAGO, a municipal corporation, as follows:

Nature of the Case

1.

This lawsuit began as an administrative appeal from a denial of

Plaintiffs’ Notification of Public Assembly pursuant to §10-8-334 of the Municipal

Code of Chicago (MCC). However, Defendants removed the case to federal court as

raising an issue of federal law. Therefore, the case is now more properly a federal civil

rights claim.

2.

Plaintiffs allege that the City’s refusal to approve Plaintiffs’ permit

application, in conjunction with the City’s removal of the homeless “tent city” located

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under the viaducts under Lake Shore Drive at Wilson Avenue and Lawrence Avenue and subsequent acts of the City denying plaintiffs any venue to establish their protest

encampment, arresting and threatening to arrest those that do so, and threatening

to seize plaintiffs’ personal property, violates the First, Fourth, Fifth, Eighth, and

Fourteenth Amendments to the United States Constitution; and Illinois Bill of Rights

for the Homeless Act, 775 ILCS 45/1 et. seq. (hereinafter Homeless Bill of Rights).

Plaintiffs seek declaratory and injunctive relief, as well as reasonable attorneys fees.

Jurisdiction and Venue

3.

Jurisdiction is proper in this court pursuant to 28 U.S.C. §1331

because this case alleges violations of Plaintiffs’ rights under federal law and under

42 U.S.C. §1983. The Court has supplemental jurisdiction over Plaintiffs’ state law

claims pursuant to 13 U.S.C. §1367. The Court has the authority to grant declaratory

relief pursuant to 28 U.S.C. §§2201 and 2202.

4.

Venue is proper in this district pursuant to 28 U.S.C. §1391(b), as all

the events giving rise to the claims asserted herein occurred in Cook County.

5.

The Court has authority to award attorneys’ fees pursuant to 42 U.S.C.

§1988.

Factual Allegations Common to All Counts The Parties

6.

Plaintiff Uptown Tent City Organizers (“UTCO”) is an unincorporated

association, the members of which include individuals currently residing on the

streets and other non-permanent locations, primarily using personally-owned tents

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for shelter, and supportive housed community members, primarily based in the Uptown neighborhood. The objective of this organized collective is to raise awareness

about the plight of homelessness across the city of Chicago, to provide services for

homeless individuals, and to advocate for those who have been excluded from

mainstream society. As an organization, UTCO believes that ending homelessness is

a political, societal, and moral responsibility that can only be confronted when

homeless individuals come out of the shadows and into open public space.

7.

Plaintiff Andy Thayer is a 30-year resident of Uptown, a community

activist, and a member of Uptown Tent City Organizers.

8.

Defendant City of Chicago (City) is a municipal corporation, duly

incorporated under the laws of the State of Illinois and located in Cook County,

Illinois.

9.

Defendant Department of Administrative Hearings is a division of the

City of Chicago responsible for appeals from denials of permit applications, MCC §10-

8-334.

10. Defendant Chicago Department of Transportation (CDOT) is a

department of the City of Chicago responsible for issuing permits for public assembly

pursuant to MCC §10-8-334 and public use pursuant to MCC §10-28-010.

History of Homeless Tent Encampments in Uptown and Defendants’ Harassment of Homeless Individuals

11. The city of Chicago, in general, and Uptown in particular, does not have enough shelter beds to house the homeless. Further, upon information and belief, certain populations of homeless people, such as married couples without children, are

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not allowed to remain overnight together in any existing shelter. 12. Prior to August 17, 2015, homeless people had set up tent encampments
and were sleeping in open public areas and on parts of public sidewalks located under the Lake Shore Drive viaducts at Wilson and Lawrence Avenues in Uptown. The encampment did not block the public’s access to the public throughway.
13. Prior to August 17, 2015, Defendant City of Chicago, acting through various police officers, had on numerous occasions threatened to arrest these homeless people for sleeping on public sidewalks, or to confiscate or destroy their tents and other property.
14. On the night of August 17, 2015, a group of homeless and housed Uptown residents planned an overnight protest on the edge of the public park near the Wilson Avenue Lake Shore Drive bridge viaduct.
15. Members of the Chicago Police Department threatened to arrest everyone—homeless residents and protesters—when the park closed at 11 pm.
16. As the viaducts under Lake Shore Drive began to fill, several homeless people began to sleep in the public mall space in front of the now-shuttered Stewart Elementary School, 4525 N. Kenmore Avenue (Stewart Mall). Stewart Mall is public land containing a publically accessible area located across the street from Alderman James Cappleman’s office, and is highly visible by the thousands of people who use Uptown’s major commercial street, Broadway, daily.
17. From July through September 2016, 20 to 30 homeless residents erected tents and lived on the Stewart Mall, creating a tent city.
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18. In addition to needing safe shelter, the Plaintiffs sought to erect tents at the Stewart Mall because it is highly visible to people frequenting the businesses in the Uptown community and a presence there would draw attention to the lack of affordable housing options and the lack of services available for people experiencing homelessness. Occupation is the Plaintiffs’ chosen form of expression; reclaiming public space in a stationary location over an extended period of time provides for greater dissemination of its message and offers the only rebuff against pervasive attempts to silence it and relegate homeless individuals to the margins of society.
19. Many of the tents in the encampment were the same orange-colored tents, given out by UTCO. Press conferences were held under the viaducts and several marches on issues of homelessness and affordable housing were also staged from that location. The tent city community put up signs educating people about police harassment and announcing upcoming protests and marches. At various times, UTCO homeless members who lived under the viaducts and at the Stewart Mall handed out informational leaflets.
20. On September 26, 2016, Morningside Construction Managers, LLC (MCM)—with heavy police presence in tow and under the guise of a public way permit—fenced off the Stewart Mall, evicting the homeless and the rest of the protesters from the Stewart Mall. No construction occurred at the adjacent school, nor was any equipment staged in the Stewart Mall, during the entire period of the MCM permit. The MCM permit expired on March 18, 2017, and was not renewed.
21. Many of the individuals living at the Stewart Mall encampment
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relocated to encampments under the Lake Shore Drive viaducts over Wilson and Lawrence Avenues.
Defendants’ Denial of Plaintiffs’ Public Use Permit Application
22. Sometime during the winter of 2016–17, Plaintiffs learned of a plan by Illinois Department of Transportation to reconstruct or otherwise perform substantial repairs to the Lake Shore Drive viaducts over Wilson and Lawrence Avenues.
23. The City of Chicago stated that this reconstruction would require the homeless people living under those viaducts to move. The City of Chicago had stated that it is not required to find alternative housing for those people displaced by Illinois Department of Transportation’s project, nor did it intend to do so.
24. As a response to this information, on March 7, 2017, Plaintiff Andy Thayer (Thayer) on behalf of Uptown Tent Community Organizers (UTCO) filed a Notification of Public Assembly pursuant to MCC §10-8-334 for the Stewart Mall set to begin the day after the Morning Side Construction’s MCM permit expired. The purpose of requesting this permit was two-fold: to provide an alternative location to live for the homeless people living in tents under the Wilson and Lawrence viaducts; and to erect a tent city in a highly visible location in order to protest the lack of affordable housing in the City of Chicago.
25. On March 15, 2017, the Chicago Department of Transportation denied Thayer’s permit application, citing unspecified “safety” concerns to justify its tardy response to the application. Under MCC §10-8-334(b)(2), “[s]uch public assemblies
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shall be allowed unless the commissioner notifies, in writing by mail, fax, or e-mail the person or organization giving the notice, within two business days after receipt of notice of the public assembly.” As permitted under MCC § 10-8-334, Thayer appealed the City’s rejection.
26. On March 22, 2017, two days before the appeals hearing was to take place, Thayer received a call from Kelley A. Gandurski, Senior Assistant Corporation Counsel at the Chicago Law Department. She stated that MCM’s permit was “illegal” and that the City had forced MCM to remove the fencing and “no trespassing” signs blocking the Stewart Mall. On this basis, she requested that that Thayer withdraw his appeal. Upon confirming that the Stewart Mall was indeed reopened, the next day Thayer withdrew the appeal, noting in an email to Ms. Gandurski that any attempt to close off the Stewart Mall again to the public would be taken as a sign of bad faith and possible legal action.
27. Within two hours after Thayer withdrew the appeal, MCM again erected the fences blocking the Stewart Mall. The next day, Thayer sent another email to the Department of Administrative Hearings requesting a new appeals hearing, which was granted and set for March 30, 2017. Prior to the March 30 hearing, the fences around the mall were again taken down. On March 28, 2017, the City filed a Hearing Memorandum outlining the City's posture on the permit request.
28. At the March 30, 2017, hearing, the City successfully moved to dismiss the hearing on the grounds of mootness, arguing that because the Stewart Mall was already open and accessible to the public, Thayer’s public assembly permit was
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unnecessary. 29. With the appeal of the original permit application mooted, that
afternoon Plaintiffs filed a more narrowly tailored Notification of Public Assembly. This permit notification was for a period of six months and included the use of tents by those assembled. On April 3, 2017, the City again denied Plaintiffs’ Notification of Public Assembly.
30. Plaintiffs appealed and a full administrative hearing was held on April 12, 2017. On April 11, 2017, less than 24 hours prior to the hearing, the City filed a written motion to dismiss arguing that Plaintiffs’ intention to allow for the erection of tents was an illegal, unpermitted act which should vacate the public assembly permit application without right of appeal. Plaintiffs’ counsel asked for a continuance to file a written response, but both the request for a continuance and to file a written response to the motion to dismiss were denied.
31. At the hearing, Plaintiffs argued that the City’s requirement to obtain a public way use permits pursuant to MCC §10-28-010 for people to erect tents, which can only be granted by passage of special ordinances by the City Council of Chicago, violated the First and Eighth Amendments to the U.S. Constitution, the broader public assembly protections of Illinois Article 1, the Illinois Homeless Bill of Rights (775 ILCS 45/1), and Chicago’s Public Assembly Ordinance (MCC §10-8-334).
32. The City argued that a tent is a “structure” under subsection MCC §1028-010(b)(10), and therefore, Plaintiffs were required to apply for a public way use permit rather than a public assembly permit. The City further argued that the denial
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letter provided Thayer with an adequate time and place alternative as required under the ordinance.
33. On April 14, 2017, Senior Administrative Law Judge Frank Lombardo issued the “Findings Decision and Order” (sic) affirming the City's denial of the public assembly permit application.
34. MCC §10-8-334(b)(2) provides that “[s]uch public assemblies shall be allowed unless the commissioner notifies, in writing . . . that there is a significant public safety issue, limited to those set forth for parades in Section 10-8-330(g)(1)– (4).” CDOT’s and the City’s notice of denial only stated there were “significant public safety issues” but did not state what subsection of MCC §10-8-330(g)(1)–(4) was applicable nor did it specify what constituted the specific public safety issue. CDOT’s and the City’s failure to provide a legal notice of denial and the misapplication of MCC §10-8-334 to Plaintiffs resulted in a violation of Plaintiffs’ First Amendment and Illinois Article 1 rights. Notably, in denying the second public assembly permit, the City did not cite any safety issues.
35. MCC §10-8-334(b)(2) further provides that when an assembly permit is denied, the City shall provide “an alternate date, time, location or route. This alternate, to the extent practicable, shall authorize a public assembly that will have comparable public visibility, and a similar route, location and date to that of the proposed public assembly.” The City’s alternative assembly offered the same dates and location, but not the same manner or public visibility of Plaintiffs’ planned public assembly. As applied to Plaintiffs, the City violated the public assembly ordinance in
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violation of Plaintiffs’ rights under the First Amendment and Illinois Article 1. 36. Nothing in the language of MCC §10-8-334 prohibits the erection of non-
permanent structures as part of a public assembly. On information and belief, significant numbers of public assemblies include the erection of non-permanent structures as part of the assembly that are dismantled at the end of the assembly. Such structures include scaffolding for speakers and elevated stages, all erected on the public way. On information and belief, none of the public assemblies containing such structures obtained public use permits. As applied to Plaintiffs, the City and CDOT’s requirement that Plaintiffs obtain a public use permit violated Plaintiffs’ rights under the First Amendment.
37. MCC §10-28-015 provides that applications for public use permits are submitted to the commissioner of business affairs and consumer protection. MCC §10-28-015(c) provides “[i]f the commissioner finds that the applicant meets the applicable requirements, the commissioner shall provide the application to the alderman of the affected ward. Upon passage of an ordinance approving the application, the commissioner shall issue the public way use permit to the applicant. If approval by ordinance is withheld, the commissioner shall deny the application and shall notify the unsuccessful applicant in writing of the denial within ten business days after the denial.
38. On information and belief, Alderman James Cappleman, Alderman of the 46th Ward, where the Stewart Mall is located, would not submit an ordinance for public use for an assembly of homeless people and their supporters to include tents
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to the Chicago City Council. 39. The requirement that a public assembly with certain types of structures
obtain a public use permit pursuant to MCC §10-8-334 and 10-28-010 et. seq. constitutes an express municipal policy of the City. Such policy subjects the homeless to citations for ordinance violations and possible arrest.
40. As a result of Defendants’ denial of Plaintiffs’ application for a public use permit, the present litigation was filed.
41. On August 27, 2017, Plaintiffs filed a Motion for a Preliminary Injunction, enjoining the Defendants from forcibly removing the homeless tent encampment from the viaducts of Wilson and Lawrence Avenues without a viable alternative location for the encampment to relocate. (Dkt. 25).
42. The Plaintiffs sought and received a September 14, 2017 hearing (Dkt. 34) on their motion for a preliminary injunction to preserve the tent communities beneath Wilson and Lawrence Avenues.
43. At this hearing, City representatives stated that the City did not have any intention to arrest homeless individuals or unlawfully dispose of their property.
44. The motion was denied on September 15, 2017, with eviction to commence on Monday, September 18, 2017.
Post-Injunction Hearing Evictions
45. By September 17, 2017, homeless residents who were previously living under the Lawrence viaduct moved to the Wilson viaduct to live with the residents still residing there. On this date, 20-25 homeless residents were still living in tents
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under the Wilson viaduct. 46. On the afternoon of September 17, 2017, the 20-25 homeless residents
and many housed UTCO members spent approximately 4-5 hours moving everyone’s tents and other belongings to relocate the protest encampment to a grassy strip west of the Wilson Avenue viaduct, between the southbound exit ramp of Lake Shore Drive at Wilson and the intersection of Wilson Avenue and North Marine Drive. No person’s belongings were obstructing the sidewalk and, on information and belief, the specific area was west of the construction zone covered by the viaduct reconstruction permit.
47. On September 18, 2017, the day of the eviction from the viaducts, Chicago Police Department officers alleged that the new area of the encampment was covered by the construction permit for the Lake Shore Drive viaducts and that encampment members would have to move again or risk arrest and confiscation of their possessions.
48. Chicago Police Department officers ordered the dispersal of the tent community at the new Wilson Avenue location, threatening arrest and confiscation of the homeless’ possessions if they failed to disperse.
49. Around 7:00 AM on the morning of September 18, 2017, more than 15 Chicago police officers assembled near the area where the tents had moved. A few hours later, approximately 40 police officers were present. The officers threatened to move everybody and stated that they could not be there; once they were finished securing the viaduct, they told them they would move every person out of the area. Many officers were standing in the viaduct where the tents had moved from, and
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fences were put up around the area under the viaduct. Police officers then lined up in a row on Wilson Avenue between the viaduct and Marine Drive behind some of the tents. When asked questions by homeless residents or community members present, the officers would not respond. When the officers were asked to cite an ordinance, they did not respond or give a reason.
50. During this time, a truck from Chicago Streets and Sanitation Department was parked on the grass on the south side of Wilson Avenue.
51. A Chicago Police Department SUV was parked at the intersection of Wilson Avenue and Marine Drive to block cars from entering Lakeshore Drive at Wilson Avenue.
52. Chicago Police Officer with star #66 walked toward a row of tents on the south sidewalk. Officer #66 sought to frustrate a number of local residents and UTCO members who were asking questions and filming what was happening. The officer stated that this was a permitted area due to the construction under the viaduct. When asked if people could move one block west out of the permitted area and be left alone, officer #66 said they would have to check the permit. He also said that the area was a public way. When asked where people should go, the officer responded by saying, “DFSS,” —the Chicago Department of Family Support and Services.
53. Officer #66 walked up to the first tent in the line and unzipped the tent to look inside. The Chicago Streets and Sanitation Department workers then lifted the tent, collapsed it, and moved it across the sidewalk to drop it in the park. The workers announced that they would move the tents and possessions to 850 W. Wilson.
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The workers then moved another tent and asked people to move off the sidewalk. 54. Other Chicago police offers were acting in a similar manner. 55. Many of the homeless residents had signs posted outside their tents
stating “Homes Not Shelters,” “Stop Harassing the Homeless,” and other similar messages. Many residents and bystanders chanted together as tents were being removed: “Stop Harassing the Homeless.”
56. In response to the threats of arrest and dispossession of personal property, on the afternoon of Monday, September 18, 2017, the tent encampment moved a second time to the 4500 block of North Marine Drive, in the public way between the sidewalk and the curb and stayed the night there. At no point did the encampment block public access to the public way.
57. Around 12:15 AM on the morning of September 19, 2017, an unknown police officer told a man in a sleeping bag at the park that he would be ticketed if he did not move. The man stated that it was hard to move and Plaintiff Andy Thayer offered to help him. The officer stated that family services would be there in the morning to help him get somewhere. The man replied that he had already spoken with them. The man then moved his belongings with the help of bystanders.
58. On Tuesday, September 19, 2017, Chicago Police officers stated that people in the tent encampment on North Marine Drive would be subject to arrest and their possessions confiscated if they did not move.
59. Later in the early morning of September 19, 2017, DFSS workers came to tell people they could move to Pacific Garden Mission for shelter. Yet, this was not
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a viable option for many of the homeless residents there because: a. Homeless individuals without funds are stranded in the neighborhood of the Pacific Garden Mission without the means to return to their neighborhoods where they have access to social services and medical care; b. Pacific Garden Mission’s barracks environment is incompatible with those individuals with post-traumatic stress syndrome (PTSD) from military service. Approximately 10% of the homeless in Chicago are military veterans; c. Pacific Garden Mission is rife with bedbugs and other vermin, theft and sporadic violence; and d. “The Gospel of Jesus Christ is preached faithfully four times daily, before meals and before bed.” (Pacific Garden Mission website) So even those who arrive after the evening meal are subjected to Christian preaching in violation of their First Amendment rights.
60. Later, in morning of September 19, 2017, when housed UTCO and other community organizers were no longer at the site, many police officers came and told all of the homeless residents that they had 15 minutes to move their belongings. Chicago Streets and Sanitation Department workers also arrived and brought multiple trucks.
61. Approximately six police officers began going tent-to-tent to tell people that they had to move. They asked if people needed medical attention and cited MCC
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§10-28-010 saying people can’t place any structure on the public way. One officer marked tents for removal with blue masking tape after warnings had been given.
62. When officers received no response at some of the tents visited, the officers removed tarps or blankets covering the corresponding tents. The officers then unzipped the tents to look inside. Simultaneously, another officer kicked a protest sign regarding homelessness out of the way.
63. An officer stated, “Everything will be tagged. If there is nobody here, it’s garbage.” Two trucks for the Chicago Department of Streets and Sanitation were waiting on Marine Drive behind the tents with many workers present. The Chicago Department of Streets and Sanitation confiscated one unattended tent that morning. The workers were heard laughing as they removed the tent to place in the truck. They also removed some other personal items.
64. One of the homeless residents responded, “How many times are we going to have to move? 18, 20, 20, 25 times?”
65. On the afternoon of September 19, 2017, for the third time, homeless residents packed their belongings. Residents moved across the sidewalk to a piece of land owned by the Metropolitan Water Reclamation District located on the south side of West Wilson Avenue between Marine Drive and Clarendon Avenue. Police officers stated that it was federal property, and thus it was up to another authority to determine whether people could stay on the land.
66. In the evening of September 19, 2017, retired police officer and current Metropolitan Water Reclamation District employee Ralph Chiczewski informed
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people at the third tent encampment that if they did not leave by 11 PM that evening that they would be arrested and their possessions confiscated.
67. Around 8:30 PM the evening of September 19, 2017, most of the people on the Metropolitan Water Reclamation District property moved their belongings to a fourth location on the 4900 block of North Sheridan Avenue. Many housed UTCO members came to help people move their tents and belongings for the fourth time in three days. The new location was an abandoned lot with a broken fence and gate. Homeless persons and UTCO members repaired the fence and gate. People then set up their tents and most went to sleep.
68. Later, on the night of September 19, 2017, police officer John Doe approached Plaintiff Andy Thayer and other UTCO members and stated that the police would find out who the owner was, but that they couldn’t evict the tent city that night.
69. On September 20, 2017, representatives of Chicago Police Department ordered plaintiffs to vacate the parcel claiming the owner had denied plaintiffs access to the parcel. The officers evicted everyone from the property, saying they had broken in. The police said there was a complaining witness but did not provide any name or more information. Such representatives refused to provide plaintiffs with the name and contact information of the owner.
70. One of the police officers placed a “No Trespassing” sign on the fence that had not been on the property the night before. More than ten (10) police officers were in the area at this time.
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71. The officers then told everyone that they had to leave immediately, stating, “If you go back on that property, you do not have permission. You’ll be subject to arrest.” The officers would not let anyone on to the property to help homeless persons pack their belongings. A housed UTCO member brought a moving truck to help the homeless move their possessions again.
72. Simultaneously, one of the homeless women asked for water and began having a seizure from the stress of the events.
73. Tyler Dean Hamlin, a UTCO member, refused to leave the parcel and was arrested for trespass.
74. In the course of these interactions, Chicago Police Commander informed Plaintiffs that no protest tent encampment would be allowed anywhere in Uptown and those who attempted to set one up would be subject to arrest and their possessions confiscated. Further, the Chicago Police Commander asserted that anyone leaving their possessions on the public way would be subject to administrative citation pursuant to MCC §10-28-070 and such possessions would be confiscated.
Irreparable Injury to Plaintiffs
75. As a direct and proximate result of Defendants’ unconstitutional application of MCC §10-8-334 and 10-28-010 and violation of the Illinois Homeless Act, the rights of Plaintiffs have been interfered with, and they are in fear of being ticketed, arrested, and deterred from exercising their constitutionally protected First Amendment rights.
76. As a direct and proximate result of Defendants’ unconstitutional
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application of MCC §§10-8-334 and 10-28-010 and violation of the Illinois Homeless Act, the activities of the Plaintiffs have been criminalized and they are being subjected to cruel and unusual punishment in violation of the Eighth Amendment and subject to illegal seizures and takings of their personal property in violation of the Fourth and Fifth Amendments.
77. Plaintiffs have suffered irreparable injury by Defendants’ actions and will continue to suffer irreparable injury in the absence of injunctive relief.
78. Plaintiffs lack any adequate remedy at law. 79. The balance of harms weighs in favor of Plaintiffs and against Defendants, as the issuance of the injunctive relief will not adversely affect the public interest.
COUNT ONE
The City’s Denial of Plaintiff’s Application Was Not Justified by the Law or the Facts 80. Plaintiffs reallege as if they were set forth in full herein all allegations set forth in paragraphs 1–77. Plaintiffs’ set forth the following Specification of Errors committed during Plaintiffs’ Administrative Hearing appealing the denial of Plaintiffs’ notification of public assembly: 81. The failure of the Senior Administrative Law Judge (ALJ) Frank Lombardo to grant Plaintiffs’ motion to issue subpoenas for Michael Simon as a witness in accordance with MCC §2-14-076(f) and 2-14-080. Transcript of the Appeals Hearing, April 12, 2017, Case No. 17 PA 000002, page 11, lines 10-17. (hereafter, T. P__, L__). Defendants submitted an affidavit of Mr. Simon that stated that Plaintiffs
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had not applied for a public use permit pursuant to MCC §10-28-010. 82. Mr. Simon, the Assistant Commissioner in the Public Way Permits
Division of Public Way Infrastructure of the Chicago Department of Transportation, is the city official in charge of granting public use permits pursuant to MCC § 10-28010. Plaintiffs sought to examine Mr. Simon under oath as to what constituted the specific “public safety issue” which formed the basis of CDOT’s denial of the Plaintiffs’ public assembly notification. Further, Plaintiffs sought to examine Mr. Simon as to the process of obtaining public use permits that require an ordinance of the City Council of Chicago. Plaintiffs sought to incorporate into the record the near impossibility of obtaining a public use permit for anything other than a sidewalk café that results in the de facto criminalization of the homeless organized in tent encampments. This form of criminalization is at the core of Plaintiffs’ arguments of cruel and unusual punishment under the Eighth Amendment to the United States Constitution.
83. The denial of Plaintiffs’ motion was arbitrary resulting in prejudice to the Plaintiffs and an unfair hearing.
84. ALJ Lombardo’s denial of a motion for continuance by Plaintiffs in order for Plaintiffs to respond in writing to Defendants’ Motion to Dismiss. Defendants filed a Motion to Dismiss on April 11, 2017, less than 24 hours before the administrative hearing. This motion included a 10-page memorandum of law and 10 pages of exhibits. T. P 6, L 10-24. Plaintiffs requested a continuance to respond with a memorandum of law to rebut Defendants’ arguments. T. P 5, L 11-24, P 6, L 1-2, P 8,
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L 12-18. Even though ALJ Lombardo denied the Motion to Dismiss (T. P 15, L 13), the denial of Plaintiffs’ motion for a continuance denied Plaintiffs’ the ability to submit a memorandum of law which would be included as part of the record. Once again, this prevented the record from including arguments, reasoning, and legal support for Plaintiffs’ position that the denial of the assembly permit violates the First, Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution and parallel provisions under the Illinois Constitution.
85. The denial of Plaintiffs’ motion was arbitrary resulting in prejudice to the Plaintiffs and an unfair hearing.
86. ALJ Lombardo overruled Plaintiffs’ objection as to Luis Benitez’s qualifications to make a legal interpretation of MCC §10-28-010(b)(10). Mr. Benitez is the assistant chief engineer and chief bridge engineer for the Chicago Department of Transportation (CDOT) and was qualified as an expert with respect to structural engineering. T. P 25, L 4-18. Mr. Benitez was qualified to testify whether tents are structures. Mr. Benitez was asked by Defendants for an interpretation of whether tents for the proposed homeless encampment are structures for purposes of MCC §1028-010(b)(10). T. P 28, L 11-24; P 29, L 12-24. ALJ Lombardo overruled Plaintiffs’ objection that this called for a legal conclusion by Mr. Benitez. T. P 30, L 1-11.
87. This arbitrary overruling of Plaintiffs’ objection resulted in prejudice to the Plaintiffs and an unfair hearing.
88. ALJ Lombardo overruled an objection by Plaintiffs that Mr. Benitez was not qualified to make a legal conclusion that the term “structure” as defined in Code
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Section 13-96-480(a) should apply to the term “structure” in MCC §10-28-010(b)(10). T. 32, L 3-18.
89. This arbitrary overruling of Plaintiffs’ objection resulted in prejudice to the Plaintiffs and an unfair hearing.
90. ALJ Lombardo sustained an objection by Defendants to part of Plaintiffs’ opening statement that provided background information on the history of the public assembly ordinance. T. P 50, L 13-24, P 51, L 1-4. Denial of presenting background information on the public assembly ordinance deprived Plaintiffs of entering such information in the record for purposes of making arguments of violations of the U.S. Constitution in subsequent proceedings.
91. This arbitrary sustaining of Defendants’ objection resulted in prejudice to the Plaintiffs and an unfair hearing.
92. ALJ Lombardo sustained an objection on relevancy grounds regarding the introduction of evidence of prior public assembly notifications for the same location (i.e. the Stewart Mall) as the notification of public assembly under appeal in the hearing. ALJ Lombardo stated, “I’m not going to allow this evidence from a previous hearing. It has no bearing on what the determination will be today.” T. P 53 L 9-24, P 53 L 1-12. The history of prior notifications of public assembly for the Stewart Mall was relevant to establishing Plaintiffs constitutional speech and assembly claims.
93. This arbitrary sustaining of Defendants’ objection resulted in prejudice to the Plaintiffs and an unfair hearing.
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94. ALJ Lombardo sustained an objection to Plaintiffs laying a foundation for the notification of public assembly at issue in the hearing. T. P 69, L 9-18.
95. This arbitrary sustaining of Defendants’ objection resulted in prejudice to the Plaintiffs and an unfair hearing.
96. ALJ Lombardo denied the admission of exhibits presented by Plaintiffs based on Defendants’ objection as to relevancy. T. P 77, L 18. Plaintiffs’ proffered exhibits were photographs of the prior homeless tent encampment at the Stewart Mall. Plaintiffs sought to enter the photographs into evidence for purposes of establishing the public safety and accessibility of the Stewart Mall with a homeless tent encampment. T. P 74, L 5-18. Plaintiffs wanted the photographic evidence and testimony related thereto entered into the record for purposes of appealing the permit denial on constitutional grounds.
97. This arbitrary denial of the admission of Plaintiffs’ exhibits resulted in prejudice to the Plaintiffs and an unfair hearing.
98. ALJ Lombardo denied Plaintiffs’ objection on grounds of relevancy to questions on cross-examination of Plaintiff Thayer whether he had asked Chicago officials, prior to submitting the notification for public assembly, if the City of Chicago was willing to house 40 homeless people. Plaintiffs objected that notification for a public assembly does not require other inquiries of city officials. T. P 97, L 16-24; P 98, L 1-19.
99. This arbitrary overruling of Plaintiffs’ objection resulted in prejudice to the Plaintiffs and an unfair hearing.
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100. ALJ Lombardo overruled Plaintiffs’ objection to the relevancy of Defendants’ questions to Plaintiff Thayer in cross-examination as to the extent of his contact with the homeless. Plaintiffs argued that the notification for public assembly was by an organization of the homeless and Thayer’s contacts with the homeless was irrelevant. ALJ Lombardo overruled the objection based on the Defendants’ argument of developing the record as a defense for constitutional arguments of Plaintiffs on appeal, even though the Plaintiffs were denied the same requests for entering evidence and testimony into the record. See other errors delineated above. T. P 101, L 13-24, P 102, L 1-19.
101. This arbitrary overruling of Plaintiffs’ objection resulted in prejudice to the Plaintiffs and an unfair hearing.
102. ALJ Lombardo overruled Plaintiffs’ objection based on relevancy to questions regarding Plaintiff Thayer’s attitude toward the project to convert the Stewart School into market rate housing. T. P117, L 3-24. ALJ Lombardo also allowed the follow up question to Plaintiff Thayer as to the location of the Stewart School in relation to the Stewart Mall, which left the prejudicial implication that the notification for public assembly was a pretext to stop the Stewart School project. T. P 119, L 2-18.
103. This arbitrary overruling of Plaintiffs’ objection resulted in prejudice to the Plaintiffs and an unfair hearing.
104. ALJ Lombardo permitted extensive testimony by Alisa Rodriquez, Deputy Commissioner for the homeless programs of the City of Chicago Department
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of Family and Support Services, with respect to services and programs provided by the City of Chicago for the homeless population as well as testimony on the number, characteristics and condition of the homeless population in Chicago. T. P 129-161. Prior to cross-examination of Ms. Rodriquez by Plaintiffs, Plaintiffs noted to ALJ Lombardo that Plaintiffs “were not allowed the same scope of questioning [as conducted by Defendants of Ms. Rodriquez] when we were conducting our direct examination of Mr. Thayer.” T. P 162, L 18-20.
105. ALJ Lombardo erred in not permitting the same scope of questioning Mr. Thayer by Plaintiffs on direct examination as he allowed on the direct examination of Ms. Rodriquez by Defendants. This arbitrary error resulted in prejudice to the Plaintiffs and an unfair hearing.
106. ALJ Lombardo’s interpretation of “structure” to include tents is arbitrary and capricious and has no basis in law or fact. WHEREFORE, Plaintiffs request that this Court:
A. Enter an order reversing the decision of ALJ Lombardo, and granting Plaintiffs’ application for an assembly permit for the Stewart Mall for the location and manner as applied therefore, to run for a period of six months from the date of issuance;
B. Enter judgment for reasonable attorney’s fees and costs incurred in bringing this action; and
C. Grant Plaintiffs any and all other relief as law and justice demand.
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COUNT TWO
Violation of the First Amendment 107. Plaintiffs reallege as if they were set forth in full herein all allegations set forth in paragraphs 1–106. 126. MCC §10-8-334 and 10-28-010 as applied to Plaintiffs violate the First and Fourteenth Amendments and constitute an unconstitutional express municipal policy of the Defendants. 127. Additionally, the City’s disruption and eviction of tent cities beginning September 17, 2017 and continuing through the present day violate the First and Fourteenth Amendments to U.S. Constitution and constitute an unconstitutional municipal policy of the Defendants. 128. As applied, these provisions and the City’s conduct unconstitutionally abridge the Plaintiffs’ right to free speech and assembly. 129. As applied, these provisions are not narrowly tailored to meet a significant governmental interest. 130. There are no ample alternatives channels for communication of the Plaintiffs message. WHEREFORE, Plaintiffs request that this Court: A. Grant Defendants’ appeal to reverse the Department of Administrative
Hearings’ affirmation of the Commissioner of the Chicago Department of Transportation’s denial of Defendants’ Notification of Public Assembly and grant said Notification of Public Assembly for the dates, location and manner as applied therefore;
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B. Enter a declaration that MCC §10-8-320 and MCC §10-28-010 as applied to the Plaintiffs violate the First Amendment to the U.S. Constitution;
C. Enter a declaration that Defendants’ disruptions and evictions of tent cities throughout the city of Chicago violate the First Amendment to the U.S. Constitution.
D. Enter a permanent injunction barring Defendants and their agents, servants, employees and attorneys from applying MCC 10-8-320 and MCC § 10-28-010 in a manner prohibiting Defendants from erecting tents as applied for in the Notification of Public Assembly;
E. Enter a permanent injuction barring Defendants and their agents, servants, employees and attorneys from unconstitutionally disrupting and evicting Plaintiffs’ tent encampments.
F. Enter judgment in favor of Plaintiffs and against Defendants. G. Enter judgment for reasonable attorney’s fees and costs incurred in
bringing this action; and H. Grant Plaintiffs any and all other relief as law and justice demand.
COUNT THREE
Violation of the Eighth Amendment 131. Plaintiffs reallege as if they were set forth in full herein all allegations set forth in paragraphs 1–130. 132. 42 U.S.C. §11302 defines those who are homeless to include: (a) an individual or family who lacks a fixed, regular, and adequate nighttime residence; (b) an individual or family with a primary nighttime residence that is a public or private
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place not designed for or ordinarily used as a regular sleeping accommodation for human beings; (c) an individual or family living in a supervised publicly or privately operated shelter designated to provide temporary living arrangements; (d) an individual who resided in a shelter or place not meant for human habitation and who is exiting an institution where he or she temporarily resided; (e) an individual or family who will imminently lose their housing, including housing they own, rent, or live in without paying rent, and are sharing with others; (f) an individual or family having a primary nighttime residence that is a room in a hotel or motel and where they lack the resources necessary to reside there for more than 14 days; (g) lacks the resources or support networks needed to obtain other permanent housing; and (h) unaccompanied youth and homeless families with children and youth who have experienced a long term period without living independently in permanent housing, have experienced persistent instability as measured by frequent moves over such period, and can be expected to continue in such status for an extended period of time because of chronic disabilities, chronic physical health or mental health conditions, substance addiction, histories of domestic violence or childhood abuse, the presence of a child or youth with a disability, or multiple barriers to employment.
133. Regulations promulgated by the U.S. Department of Housing and Urban Development are in accordance with 42 U.S.C. §11302.
134. Pursuant to this definition, the Chicago Coalition for the Homeless estimates that in 2015, there were 82,212 homeless Chicagoans, of which 67,414 were “doubled up,” (i.e. sharing housing with others due to loss of housing, economic
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hardship, or similar reason), leaving approximately 14,798 individuals in shelters or on the streets.
135. Of the homeless, approximately 35,480 individuals were part of 9,925 families with children with 8,734 families (31,222 individuals) “doubled up” leaving 1,191 families (4,258 individuals) living in shelters or on the streets.
136. Approximately 44% of homeless families served by the emergency shelter system had lived “doubled up” in the prior year.
137. In 2015, Chicago had 1,701 emergency shelter beds, down 17.6% from the 2,064 beds in 2014.
138. The lack of beds in shelters for the homeless population combined with the application of City ordinances in a manner which prohibits homeless people from legally sleeping on public land, results in the criminalization of homeless people based solely on their status as being homeless. The criminalizing of the status of homelessness, rather than any conduct by the homeless, violates the Eighth Amendment’s prohibition on cruel and unusual punishment.
139. On information and belief, the City of Chicago, acting through the Chicago Police Department has consistently and regularly threatened to arrest the individual homeless Plaintiffs in this action, who are attempting to sleep in tents or otherwise attempted to force them to move their tents and all other personal possessions, and in some instances have actually confiscated their personal possessions, from the public way - all without a lawful basis for doing so. Such actions of the Chicago Police Department constitute policies of the City.
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140. The City’s denial of the permit, coupled with the declared policy of the not allowing anyone to sleep with or without tents in the public way, without providing alternative housing for the Plaintiffs, violates the Eighth Amendment prohibition against cruel and unusual punishment, by criminalizing the status of homelessness. WHEREFORE, Plaintiffs request that this Court:
A. Grant plaintiffs’ appeal to reverse the Department of Administrative Hearings’ affirmation of the Commissioner of the Chicago Department of Transportation’s denial of plaintiffs’ Notification of Public Assembly and grant said Notification of Public Assembly for the location and manner as applied therefore, to run for a period of six months from the date of issuance;
B. Enter a declaration that MCC §10-8-320 and MCC § 10-28-010 as applied to the Plaintiffs violates the Eighth Amendment to the U.S. Constitution;
C. Enter a a permanent injunction barring Defendants and their agents, servants, employees and attorneys from applying MCC § 10-8-320 and MCC § 10-28-010 in a manner prohibiting Defendants from erecting tents as applied for in the Notification of Public Assembly;
D. Enter judgment in favor of Plaintiffs and against Defendants. E. Enter judgment for reasonable attorney’s fees and costs incurred in
bringing this action; and F. Grant Plaintiffs any and all other relief as law and justice demand.
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COUNT FOUR
Violation of the Fourth Amendment – Illegal Seizure 141. Plaintiffs reallege as if they were set forth in full herein all allegations set forth in paragraphs 1–140. 142. The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures of “their persons, houses, papers, and effects.” 143. It is well recognized that the Fourth Amendment protects property as well as privacy. Soldal v. Cook County, 506 U.S. 56 (1992). 144. A seizure of property occurs when “there is some meaningful interference with an individual’s possessory interests in that property.” U.S. v. Jacobson, 466 U.S. 109 (1985). 145. The Fourth Amendment to the U.S. Constitution is applicable to the Defendants’ conduct through the Fourteenth Amendment to the United States Constitution. 146. Though this Court has not specifically held that an individual living in a tent has an expectation of privacy in the tent of its contents, several other Courts have found an individual does have an expectation of privacy in a tent which served as a residence. U.S. v. Gooch, 6F 3d 673 (6th Cir. 1993). 147. Furthermore, the U.S. Supreme Court has held that the illegal removal of a trailer home constituted a seizure within the Fourth Amendment framework. Soldal v. Cook County, 506 U.S. 56 (1992). 148. At no to time relevant hereto did Defendants obtain a valid warrant or
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judicial authority to remove or seize Plaintiff’s personal property. WHEREFORE, Planitiffs request that this Court:
A. Grant plaintiffs’ appeal to reverse the Department of Administrative Hearings’ affirmation of the Commissioner of the Chicago Department of Transportation’s denial of plaintiffs’ Notification of Public Assembly and grant said Notification of Public Assembly for the location and manner as applied therefore, to run for a period of six months from the date of issuance;
B. Enter a declaration that MCC §10-8-320 and MCC §10-28-010 as applied to the Plaintiffs violates the Fourth Amendment to the U.S. Constitution;
C. Enter a permanent injunction barring Defendants and their agents, servants, employees and attorneys from applying MCC § 10-8-320 and MCC § 10-28-010 in a manner prohibiting Defendants from erecting tents as applied for in the Notification of Public Assembly;
D. Enter judgment in favor of Plaintiffs and against Defendants; E. Enter judgment for reasonable attorney’s fees and costs incurred in
bringing this action; and F. Grant Plaintiffs any and all other relief as law and justice demand.
COUNT FIVE
Violation of the Fifth Amendment – Takings Clause 149. Plaintiffs reallege as if they were set forth in full herein all allegations set forth in paragraphs 1–148. 150. The Fifth Amendment to the U.S. Constitution prohibits the taking of private property without just compensation.
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151. The Fifth Amendment to the U.S. Constitution is applicable to the Defendants’ conduct through the Fourteenth Amendment to the United States Constitution.
152. At all times relevant hereto, the Plaintiffs have had a vested property right in the tents, blankets, and other personal property in their possession while they were living in public areas of the City of Chicago.
153. At no time were any of the Plaintiffs provided with just compensation when their personal property had been destroyed or confiscated by the Defendants. WHEREFORE, Plaintiffs request this Court:
A. Grant Plaintiffs’ appeal to reverse the Department of Administrative Hearings’ affirmation of the Commissioner of the Chicago Department of Transportation’s denial of Plaintiffs’ Notification of Public Assembly and grant said Notification of Public Assembly for the dates, location and manner as applied therefore;
B. Enter a declaration that MCC § 10-8-320 and MCC § 10-28-010 as applied to the Plaintiffs violates the Fifth Amendment to the United States Constitution;
C. Enter a permanent injunction barring Defendants and their agents, servants, employees and attorneys from applying MCC § 10-8-320 and MCC § 10-28-010 in a manner prohibiting Defendants from erecting tents as applied for in the Notification of Public Assembly;
D. Enter judgment in favor of Plaintiffs and against Defendants;
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E. Enter judgment for reasonable attorney’s fees and costs incurred in bringing this action; and
F. Grant Plaintiffs any and all other relief as law and justice demand.
COUNT SIX
State Claim: Violation of the Illinois Homeless Act 154. Plaintiffs reallege as if they were set forth in full herein all allegations set forth in paragraphs 1–153. 155. The Illinois Homeless Act states in “Sec. 5. Legislative intent. It is the long-standing policy of this State that no person should suffer unnecessarily from cold or hunger, be deprived of shelter or the basic rights incident to shelter, or be subject to unfair discrimination based on his or her homeless status. At the present time, many persons have been rendered homeless as a result of economic hardship, a severe shortage of safe and affordable housing, and a shrinking social safety net. It is the intent of this Act to lessen the adverse effects and conditions caused by the lack of residence or a home.” 156. The Illinois Homeless Act states that homelessness “means the status of having or not having a fixed or regular residence, including the status of living on the streets, in a shelter, or in a temporary residence.” Illinois Homeless Act Sec. 10(b). 157. The rights of the homeless pursuant to the Illinois Homeless Act include:
a. Sec. 10(a)(1): the right to use and move freely in public spaces, including but not limited to public sidewalks, public parks, public transportation, and public buildings, in the same manner as any other person and without discrimination on the basis of his or her 34

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housing status; and b. Sec. 10(a)(7): the right to a reasonable expectation of privacy in his
or her personal property to the same extent as personal property in a permanent residence 158. The Defendants’ policies impede the ability of homeless Plaintiffs to move freely in public spaces in violation of the Illinois Homeless Act. 159. The Defendants’ policies prohibit use of public spaces and violate the reasonable expectation of privacy of the homeless Plaintiffs in violation of the Illinois Homeless Act. WHEREFORE, Plaintiffs request that this Court: A. Grant Plaintiffs’ appeal to reverse the Department of Administrative Hearings’ affirmation of the Commissioner of the Chicago Department of Transportation’s denial of Plaintiffs’ Notification of Public Assembly and grant said Notification of Public Assembly for the dates, location and manner as applied therefore; B. Enter a declaration that MCC §10-8-320 and MCC §10-28-010 as applied to the Plaintiffs violates the Illinois Homeless Act; C. Enter a a permanent injunction barring Defendants and their agents, servants, employees and attorneys from applying MCC §10-8-320 and MCC §10-28-010 in a manner prohibiting Defendants from erecting tents as applied for in the Notification of Public Assembly; D. Enter judgment in favor of Plaintiffs against Defendants.
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E. Enter judgment for reasonable attorney’s fees and costs incurred in

bringing this action; and

F. Grant Plaintiffs any and all other relief as law and justice demand.

Respectfully submitted,

Attorneys for Plaintiffs:
Alan Mills/Nicole Schult Uptown People’s Law Center 4413 N. Sheridan Chicago, Illinois 60640 773-769-1411 alan@uplcchicago.org

/s/ Alan Mills Counsel for Plaintiffs
Jeffrey Frank 3418 W. Medill Chicago, Illinois 60647 312-206-5253 jhfrank52@gmail.com

Molly Armour Law Office of Molly Armour 4050 N. Lincoln Chicago, Illinois 60618 773-746-4849 armourdefender@gmail.com

Susan Hathaway Ritacca Susan Ritacca Law Office 601 South California Chicago, Illinois 60612 872-222-6960 susan@susanritaccalaw.com

Adele D. Nicholas Law Office of Adele D. Nicholas 5707 W. Goodman Street Chicago, Illinois 60630 847-361-3869 adele@civilrightschicago.com

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CERTIFICATION OF SERVICE
The undersigned certifies that he/she filed the forgoing Second Amended Complaint on November 7, 2017, via the electronic filing system, which will serve copies upon all parties who have filed an appearance. Respectfully submitted, /s/ Alan Mills One of the Counsel for Plaintiffs
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 Case: 1:17-cv-04518 Document #: 56 Filed: 01/19/18 Page 1 of 6 PageID #:1047

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
UPTOWN TENT CITY ORGANIZERS and ANDY THAYER,

Plaintiffs,
v.
CITY OF CHICAGO DEPARTMENT OF ADMINISTRATIVE HEARINGS, CITY OF CHICAGO DEPARTMENT OF TRANSPORTATION, and CITY OF CHICAGO,

Case No. 17-cv-04518
Hon. Sidney I. Schenkier, Presiding Magistrate Judge

Defendants.

DEFENDANTS’ RULE 12(b)(1) AND 12(b)(6) MOTION TO DISMISS COUNTS II-VI OF PLAINTIFFS’ SECOND AMENDED COMPLAINT

Defendants City of Chicago Department of Administrative Hearings, the City of Chicago

Department of Transportation, and the City of Chicago (collectively “Defendants” or the “City”),

by their attorney, Edward N. Siskel, Corporation Counsel for the City of Chicago, hereby move

this Court pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss Counts

II-VI of the Second Amended Complaint filed by Plaintiffs Uptown Tent City Organizers and Andy Thayer (collectively, “Plaintiffs”).1 In support of their motion, the Defendants state as

follows:

1. Plaintiffs’ lawsuit stems from ongoing construction of the Wilson and Lawrence

Avenue viaducts under Lake Shore Drive and the City’s denial of a notification of public

assembly for an area known as Stewart Mall. Because the construction plans would displace

1 This Rule 12 motion does not address Count I of the Second Amended Complaint, which seeks administrative review of a decision by the Department of Administrative Hearings. In accordance with applicable Illinois administrative review law, Defendants have previously answered that count by filing the administrative record, and Defendants’ substantive response to the count consists of a separate response to the specification of errors contained in the count. See ECF No. 54.

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homeless individuals who were staying at the viaducts, Plaintiffs sought the City’s approval to hold a public assembly at Stewart Mall for a period of nearly seven months – 24 hours a day – to include erecting tents where homeless individuals would reside. Because Plaintiffs did not have a required permit to erect structures on the public way, that portion of their assembly notification was denied. However, Plaintiffs were granted the right to assemble at Stewart Mall for the entire time period they requested, just without the ability to erect tents.
2. After the City removed Plaintiffs’ administrative review claim to federal court, Plaintiffs filed a first amended complaint re-asserting their administrative review claim, and adding new claims under the First and Eighth Amendments to the U.S. Constitution, and a state law claim under the Illinois Bill of Rights for the Homeless Act.
3. After being denied a preliminary injunction on their first amended complaint, on November 7, 2017, Plaintiffs filed their Second Amended Complaint, repleading each of the four claims asserted in their first amended complaint, as well as adding new federal constitutional claims under the Fourth and Fifth Amendments, relating to alleged actions taken by Defendants in the days following the commencement of construction.
4. To establish subject matter jurisdiction under Rule 12(b)(1), a plaintiff has the burden to show that they have standing under Article III’s case or controversy requirement; it is “‘not a mere pleading requirement but rather an indispensable part of plaintiffs’ case[.]’” Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443(7th Cir. 2009) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Article III standing requires (1) an injury-infact to a legally protected interest, (2) a causal nexus whereby the injury is fairly traceable to defendant’s actions, and (3) redressability of the injury by court action. Lujan, 504 U.S. at 56061. An organization has standing to sue on behalf of others only when: (a) its members would
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otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of the individual members of the lawsuit. Hunt v. Wash. State Apple Adver. Com’n, 432 U.S. 333, 343 (1977). It is a plaintiff’s burden to establish standing. Lujan, 504 U.S. at 561.
5. To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must contain more than “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Id. (quoting Twombly, 550 U.S. at 555). The defendant must be given “fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. Although well-pleaded factual allegations are presumed true for purposes of a motion to dismiss, legal conclusions and conclusory allegations that merely recite the elements of a claim are not entitled to a presumption of truth. Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012). “Nor does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
6. At the outset, Counts II-VI of the Second Amended Complaint should be dismissed pursuant to Rule 12(b)(1) because Plaintiffs lack standing. Plaintiff Thayer lacks standing to assert Counts III-VI because (a) he has testified in this case that he is not homeless and (b) he has not alleged that any of his property was seized, searched or taken by Defendants. Plaintiff UTCO lacks standing to assert Counts II-VI because it has failed to allege that it has
3

Case: 1:17-cv-04518 Document #: 56 Filed: 01/19/18 Page 4 of 6 PageID #:1050
organizational standing under Hunt v. Wash. State Apple Adver. Com’n, 432 U.S. 333, 343 (1977). But even if Plaintiffs had standing, their claims still fail on the merits.
7. Count II, which asserts a First Amendment violation, fails for several reasons. First, erecting tents is not protected expression under the First Amendment. But even if it was protected expression, the City’s rejection of the request to erect tents, while providing Plaintiffs with the right to assemble in the same place and time as they requested, is a reasonable time, place and manner restriction. The same holds true to the extent that individuals attempted to erect new tent encampments on the public way nearby the viaducts following the closure of the viaducts. And the City, which is the only properly-named defendant on this count, cannot be held liable for the decisions of its employees that prevented those tent encampments because Plaintiffs do not allege that such decisions resulted from a City policy, as required by Monell v. Dept. of Social Servs., 436 U.S. 658(1978).
8. Plaintiffs’ Eighth Amendment claim (Count III) fails on its merits because no action by the Defendants has criminalized homelessness, and therefore no cruel or unusual punishment has been inflicted by Defendants. Further, as to any decisions by City employees that prevented new tent encampments nearby the viaducts, the City is not liable because Plaintiffs do not allege that such decisions resulted from a City policy, as required by Monell.
9. Count IV of Plaintiffs’ Second Amended Complaint purports to assert Fourth Amendment violations based on the alleged seizure of certain property by City employees in the days following the commencement of construction. This claim fails because Plaintiffs do not assert that their property was searched or seized, and they cannot vicariously assert Fourth Amendment claims on behalf of others. Further, Plaintiffs have not established that any actions
4

Case: 1:17-cv-04518 Document #: 56 Filed: 01/19/18 Page 5 of 6 PageID #:1051
were taken pursuant to a City policy, as required by Monell. Moreover, to the extent that any property was seized, such seizure was reasonable, and therefore no warrant was required.
10. Plaintiffs’ takings claim in Count V also the alleged seizure of certain property by City employees in the days following the commencement of construction. This claim fails because neither Plaintiff has claimed that their property was taken. Further, Plaintiffs have not established that any actions were taken pursuant to a City policy, as required by Monell. Further, even if Plaintiffs could overcome these hurdles, this claim should still be dismissed because it is not ripe. Plaintiffs have not made the required showing that a property owner has been denied compensation for any property taken. See Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194-95 (1985).
11. Finally, Plaintiffs’ state law claim under the Bill of Rights for the Homeless Act in Count VI fails because they have not shown that homeless individuals were treated any differently than a non-homeless person , that any right to privacy under the Act was violated, or that any adverse action was taken solely because people were homeless.
12. For the foregoing reasons, set forth more fully in Defendants’ accompanying Memorandum in Support, which is incorporated as if set forth fully herein, Counts II-VI of Plaintiffs’ Seconded Amended Complaint should be dismissed pursuant to Rules 12(b)(1) and 12(b)(6) with prejudice.
5

Case: 1:17-cv-04518 Document #: 56 Filed: 01/19/18 Page 6 of 6 PageID #:1052

WHEREFORE, the Defendants respectfully request that this Court dismiss Counts II-VI of Plaintiffs’ Second Amended Complaint and grant the Defendants such further relief as the Court deems just and appropriate.

Date: January 19, 2018
ANDREW W. WORSECK Andrew.Worseck@cityofchicago.org KELLEY A. GANDURSKI Kelley.Gandurski2@cityofchicago.org ANDREW S. MINE Andrew.Mine@cityofchicago.org MARGARET SOBOTA Maggie.Sobota@cityofchicago.org City of Chicago, Department of Law 30 North LaSalle Street, Suites 1230 &1720 Chicago, Illinois 60602 (312) 744-7129 / 744-0688

Respectfully submitted,
EDWARD N. SISKEL, Corporation Counsel for the City of Chicago
By: /s/ Margaret Sobota Attorney for Defendants

6

 
 Case: 1:17-cv-4518 As of: 05/22/2020 12:37 PM CDT 1 of 9
SCHENKIER,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.3.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:17−cv−04518

Uptown Tent City Organizers et al v. City of Chicago Department of Administrative Hearings et al Assigned to: Honorable Sidney I. Schenkier Case in other court: Circuit Court of Cook County, Illinois,
First Muni, 2017 M1 450151 Cause: 28:1331 Fed. Question: Review Agency Decision
Plaintiff

Date Filed: 06/15/2017 Date Terminated: 06/05/2018 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: Federal Question

Tent City Alternative to LSD Viaducts TERMINATED: 09/14/2017

represented by Adele D. Nicholas Law Office of Adele D. Nicholas 5707 W. Goodman Chicago, IL 60630 847 361 3869 Email: adele@civilrightschicago.com ATTORNEY TO BE NOTICED

Alan S. Mills Uptown People's Law Center 4413 North Sheridan Chicago, IL 60646 (773) 769−1411 Email: alan@uplcchicago.org ATTORNEY TO BE NOTICED

Jeffrey H. Frank Law offices of Jeffrey Frank 3418 W. Medill Avenue Chicago, IL 60647 Cook 312−206−5253 Email: jhfrank52@gmail.com ATTORNEY TO BE NOTICED

Molly Armour Law Office of Molly Armour 4050 N. Lincoln Avenue Chicago, IL 60618 (773) 746−4849 Email: mearmour@gmail.com ATTORNEY TO BE NOTICED

Nicole Rae Schult Uptown People's Law Center 4413 N Sheridan Chicago, IL 60640 (773) 769−1411 Email: nicirs@gmail.com ATTORNEY TO BE NOTICED

Susan Hathaway Ritacca Susan Ritacca Law Office 601 S. California Chicago, Il 60612 (872) 222−6960 Email: susan@susanritaccalaw.com ATTORNEY TO BE NOTICED

Case: 1:17-cv-4518 As of: 05/22/2020 12:37 PM CDT 2 of 9

Plaintiff Andy Thayer
Plaintiff Uptown Tent City Organizers

represented by Adele D. Nicholas (See above for address) ATTORNEY TO BE NOTICED
Alan S. Mills (See above for address) ATTORNEY TO BE NOTICED
Jeffrey H. Frank (See above for address) ATTORNEY TO BE NOTICED
Molly Armour (See above for address) ATTORNEY TO BE NOTICED
Nicole Rae Schult (See above for address) ATTORNEY TO BE NOTICED
Susan Hathaway Ritacca (See above for address) ATTORNEY TO BE NOTICED
represented by Adele D. Nicholas (See above for address) ATTORNEY TO BE NOTICED
Alan S. Mills (See above for address) ATTORNEY TO BE NOTICED
Jeffrey H. Frank (See above for address) ATTORNEY TO BE NOTICED
Molly Armour (See above for address) ATTORNEY TO BE NOTICED
Nicole Rae Schult (See above for address) ATTORNEY TO BE NOTICED
Susan Hathaway Ritacca (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
City of Chicago Department of Administrative Hearings

represented by Andrew S. Mine City of Chicago, Law Department 30 North LaSalle Street Suite1230 Chicago, IL 60602 (312) 744−7220 Email: amine@cityofchicago.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:17-cv-4518 As of: 05/22/2020 12:37 PM CDT 3 of 9

Defendant City of Chicago Department of Transportation
Defendant City of Chicago
Date Filed # Docket Text

Andrew W Worseck City of Chicago, Department of Law 30 North LaSalle Street Suite 1230 Chicago, IL 60602 (312) 744−7129 Email: aworseck@cityofchicago.org ATTORNEY TO BE NOTICED
Kelley A. Gandurski City of Chicago, Department of Law 30 N. LaSalle St. Suite 1720 Chicago, IL 60602 (312) 744−0688 Email: Kelley.Gandurski2@cityofchicago.org TERMINATED: 04/27/2018
Margaret R. Sobota City of Chicago, Department of Law Constitutional and Commercial Litigation Division 30 N. LaSalle St. Suite 1230 Chicago, IL 60602 (312) 742−0260 Email: Maggie.Sobota@cityofchicago.org ATTORNEY TO BE NOTICED
represented by Andrew S. Mine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew W Worseck (See above for address) ATTORNEY TO BE NOTICED
Kelley A. Gandurski (See above for address) TERMINATED: 04/27/2018
Margaret R. Sobota (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew W Worseck (See above for address) ATTORNEY TO BE NOTICED
Kelley A. Gandurski (See above for address) TERMINATED: 04/27/2018
Margaret R. Sobota (See above for address) ATTORNEY TO BE NOTICED

Case: 1:17-cv-4518 As of: 05/22/2020 12:37 PM CDT 4 of 9

06/15/2017 06/15/2017 06/15/2017 06/15/2017 06/16/2017
06/16/2017 06/20/2017 06/20/2017 06/28/2017 06/29/2017 06/30/2017 06/30/2017 06/30/2017 06/30/2017
06/30/2017 06/30/2017 07/05/2017
07/05/2017

1 NOTICE of Removal from Circuit Court of Cook County, Illinois, case number (2017 M1 450151) filed by City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation (Gandurski, Kelley) (Entered: 06/15/2017)
2 CIVIL Cover Sheet (Gandurski, Kelley) (Entered: 06/15/2017)
3 ATTORNEY Appearance for Defendants City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation by Kelley A. Gandurski (Gandurski, Kelley) (Entered: 06/15/2017)
CASE ASSIGNED to the Honorable John J. Tharp, Jr. Designated as Magistrate Judge the Honorable Sidney I. Schenkier. (meg, ) (Entered: 06/15/2017)
4 MINUTE entry before the Honorable John J. Tharp, Jr: This case is set for an initial status conference on 7/6/17 at 9:00 a.m. The parties are directed to review the procedures for initial status conferences, located at [https://www.ilnd.uscourts.gov/judge−info.aspx?79eF+7uiX7ewBj/ITKrjoA==], and to submit the required initial status report no later than 6/30/17. Mailed notice (ca, ) (Entered: 06/16/2017)
5 MAILED notice of removal letter to counsel of record (cc, ) (Entered: 06/16/2017)
6 ATTORNEY Appearance for Defendants City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation by Andrew S. Mine (Mine, Andrew) (Entered: 06/20/2017)
7 ATTORNEY Appearance for Defendants City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation by Margaret R. Sobota (Sobota, Margaret) (Entered: 06/20/2017)
9 CERTIFIED COPY OF ADMINISTRATIVE RECORD by Defendants City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation (Gandurski, Kelley) (Entered: 06/28/2017)
10 ATTORNEY Appearance for Plaintiffs Tent City Alternative to LSD Viaducts, Andy Thayer by Alan S. Mills (Attachments: # 1 Certificate of Service)(Mills, Alan) (Entered: 06/29/2017)
11 ATTORNEY Appearance for Plaintiffs Tent City Alternative to LSD Viaducts, Andy Thayer by Jeffrey H. Frank (Frank, Jeffrey) (Entered: 06/30/2017)
12 STATUS Report by City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation (Gandurski, Kelley) (Entered: 06/30/2017)
13 STATUS Report from Plaintiffs' by Tent City Alternative to LSD Viaducts, Andy Thayer (Mills, Alan) (Entered: 06/30/2017)
14 MINUTE entry before the Honorable John J. Tharp, Jr: Upon review of the Initial Status Report 12 , the parties appear to consent to proceed before the assigned Magistrate Judge. The parties are therefore directed to sign and file the required consent form, available on the Court's web site, and the case will be transferred to Magistrate Judge Schenkier pursuant to Local Rule 73.1. The status hearing set on July 6, 2017 is stricken and will be reset only if the parties have failed to file a consent form by July 14, 2017. Mailed notice (ma,) (Entered: 06/30/2017)
15 JOINT CONSENT to Exercise of Jurisdiction by a United States Magistrate Judge (Gandurski, Kelley) (Entered: 06/30/2017)
16 JOINT CONSENT to Exercise of Jurisdiction by a United States Magistrate Judge (Mills, Alan) (Entered: 06/30/2017)
17 MINUTE entry before the Honorable John J. Tharp, Jr: The parties having consented to proceed before the assigned Magistrate Judge 13 , the case isreferred to the Executive Committee for reassignment to Magistrate Judge Schenkier. Mailed notice (air, ) (Entered: 07/05/2017)
18 ORDER REASSIGNING: Case to the Honorable Sidney I. Schenkier, pursuant to Local Rule 73.1 for all further proceedings, parties having consented to the reassignment. Honorable John J. Tharp, Jr no longer assigned to the case. Signed by Honorable John J. Tharp, Jr on 07/05/2017. (nsf, ) (Entered: 07/05/2017)

Case: 1:17-cv-4518 As of: 05/22/2020 12:37 PM CDT 5 of 9

07/06/2017 07/07/2017 07/07/2017 07/18/2017
08/01/2017 08/09/2017 08/27/2017 08/27/2017 08/30/2017 08/31/2017
09/07/2017 09/07/2017 09/07/2017

19 MINUTE entry before the Honorable Sidney I. Schenkier: The Court, sua sponte, sets the matter for a status hearing before the magistrate judge on 7/18/17 at 9:00 a.m. Mailed notice. (jj, ) (Entered: 07/06/2017)
20 ATTORNEY Appearance for Plaintiffs Tent City Alternative to LSD Viaducts, Andy Thayer by Adele D. Nicholas (Nicholas, Adele D.) (Entered: 07/07/2017)
21 ATTORNEY Appearance for Plaintiffs Tent City Alternative to LSD Viaducts, Andy Thayer by Molly Armour (Armour, Molly) (Entered: 07/07/2017)
22 MINUTE entry before the Honorable Sidney I. Schenkier: Status hearing held. The parties report on the status of the case. Plaintiffs' counsel further reports that he wishes to file an amended complaint and a motion for preliminary injunction. Plaintiffs' counsel is given leave to file his amended complaint by no later than 8/01/17; by agreement, that amended complaint shall include a specification of the errors that plaintiffs allege in the administrative proceeding. Plaintiffs' counsel shall submit a letter to defendants' counsel specifying what the parameters of any standstill agreement he proposes. By agreement, plaintiffs' counsel will not file a motion for preliminary injunction pending the filing of the amended complaint and the next status hearing. The matter is set for a status hearing before the magistrate judge on 8/09/17 at 9:00 a.m. for a report on how the parties wish to proceed with the case. Mailed notice. (jj, ) (Entered: 07/18/2017)
23 First AMENDED complaint by Tent City Alternative to LSD Viaducts, Andy Thayer against City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation, City of Chicago (Armour, Molly) Docket text modified on 8/2/2017 (ags, ). (Entered: 08/01/2017)
24 MINUTE entry before the Honorable Sidney I. Schenkier: Status hearing held. The parties report on the status of the case. Defendants' are given leave to file their response to the first amended complaint by 9/08/17. The matter is set for a status hearing before the magistrate judge on 9/13/17 at 8:15 a.m. Mailed notice. (jj, ) (Entered: 08/10/2017)
25 MOTION by Plaintiffs Tent City Alternative to LSD Viaducts, Andy Thayer for preliminary injunction (Frank, Jeffrey) (Entered: 08/27/2017)
26 NOTICE of Motion by Jeffrey H. Frank for presentment of motion for preliminary injunction 25 before Honorable Sidney I. Schenkier on 8/31/2017 at 08:30 AM. (Frank, Jeffrey) (Entered: 08/27/2017)
27 MINUTE entry before the Honorable Sidney I. Schenkier: The Court, sua sponte, RESETS the TIME of the motion hearing regarding plaintiffs' motion for a preliminary injunction (doc. # 25 ) before the magistrate judge to 8/31/17 at 10:00 a.m. Mailed notice. (jj, ) (Entered: 08/30/2017)
28 MINUTE entry before the Honorable Sidney I. Schenkier: Motion hearing held. By agreement, the Court sets the following briefing schedule regarding plaintiffs' motion for a preliminary injunction (doc. # 25 ): defendants' response is due by no later than 5:00 p.m. on 9/07/17; no replies may be filed by plaintiff. For the reasons stated on the record, defense counsel's oral motion for an extension of time to file their answer is denied. Defendants' answer is to be filed by 9/07/17. The matter is set for a status hearing before the magistrate judge on 9/08/17 at 2:00 p.m. Mailed notice. (jj, ) (Entered: 08/31/2017)
29 ATTORNEY Appearance for Defendants City Of Chicago, City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation by Andrew W Worseck (Worseck, Andrew) (Entered: 09/07/2017)
30 ANSWER to Complaint by City Of Chicago, City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation(Gandurski, Kelley) (Entered: 09/07/2017)
31 NOTICE by City Of Chicago, City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation re answer to complaint 30 (Gandurski, Kelley) (Entered: 09/07/2017)

Case: 1:17-cv-4518 As of: 05/22/2020 12:37 PM CDT 6 of 9

09/07/2017 09/08/2017
09/08/2017
09/13/2017 09/13/2017 09/13/2017 09/13/2017
09/13/2017 09/13/2017 09/13/2017

32 RESPONSE by City Of Chicago, City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation to MOTION by Plaintiffs Tent City Alternative to LSD Viaducts, Andy Thayer for preliminary injunction 25 (Attachments: # 1 Exhibit Exhibits A − E)(Worseck, Andrew) (Entered: 09/07/2017)
33 TRANSCRIPT OF PROCEEDINGS held on August 31, 2017 before the Honorable Sidney I. Schenkier. Court Reporter Contact Information: Ms. Joene Hanhardt, Official Court Reporter, 219 S. Dearborn St., Suite 1744−A, Chicago, Illinois 60604, 312−435−6874.
IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.
Redaction Request due 9/29/2017. Redacted Transcript Deadline set for 10/10/2017. Release of Transcript Restriction set for 12/7/2017. (Hanhardt, Joene) (Entered: 09/08/2017)
34 MINUTE entry before the Honorable Sidney I. Schenkier: Status hearing held. The parties report on the status of the case. Defense counsel's unopposed oral motion for leave to participate in pre−hearing discovery is granted. By no later than 5:00 p.m. on 9/12/17, (1) each side shall provide to the other side a statement setting forth the substance of the testimony any witness called at the evidentiary hearing will provide, and (2) the parties are to submit to Judge Schenkier's proposed order box the statements from the administrative record (with page citations) that they wish the Court to consider. The parties shall meet and confer to attempt to reach a stipulation as to factual material relevant to standing. The status hearing set for 9/13/17 is hereby stricken. The matter is set for an evidentiary hearing before the magistrate judge on 9/14/17 at 10:00 a.m., and oral argument is set for 9/14/17 at 2:00 p.m. Mailed notice. (jj, ) (Entered: 09/08/2017)
35 ATTORNEY Appearance for Plaintiffs Tent City Alternative to LSD Viaducts, Andy Thayer by Nicole Rae Schult (Schult, Nicole) (Entered: 09/13/2017)
36 MOTION by Plaintiffs Tent City Alternative to LSD Viaducts, Andy ThayerCorrect Name of Plaintiff (Mills, Alan) (Entered: 09/13/2017)
37 NOTICE of Motion by Alan S. Mills for presentment of motion for miscellaneous relief 36 before Honorable Sidney I. Schenkier on 9/14/2017 at 10:00 AM. (Mills, Alan) (Entered: 09/13/2017)
38 MINUTE entry before the Honorable Sidney I. Schenkier: Telephone status hearing held with all counsel regarding the parties' proposed witnesses and exhibits for the 9/14/17 hearings. As stated on the record, the parties are to exchange each of their proposed stipulations by no later than 3:30 p.m. The parties are to further have a meet and confer (by telephone, if an in person meet and confer is not practicable) by no later than 5:00 p.m. for purposes of reaching agreement on the proposed stipulations. Any stipulations reached by the parties shall be submitted to Judge Schenkier's proposed order box by no later than 9:00 a.m. on 9/14/17. Mailed notice. (jj, ) (Entered: 09/13/2017)
40 LETTER from Plaintiff dated 9/12/17. (Exhibits). (jj, ) (Entered: 09/15/2017)
41 Abstract of the Record of Proceedings at the City of Chicago's Department of Administrative Hearings by City Of Chicago, City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation. (jj, ) (Entered: 09/15/2017)
42 Agreed Undisputed Facts For Purposes Of Preliminary Injunction Evidentiary Hearing by City Of Chicago, City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation, Andy Thayer, Uptown Tent City Organizers. (jj, ) (Entered: 09/15/2017)

Case: 1:17-cv-4518 As of: 05/22/2020 12:37 PM CDT 7 of 9

09/14/2017
09/15/2017 09/21/2017

39 MINUTE entry before the Honorable Sidney I. Schenkier: Motion hearings held. For the reasons stated on the record, plaintiffs' motion to correct the name of plaintiff "Tent City Alternative to LSD Viaducts" (doc. # 36 ) is granted. We hereby ask the Clerk of the Court to correct the name of that plaintiff to Uptown Tent City Organizers. Evidentiary hearing held on plaintiffs' motion for preliminary injunction (doc. # 25 ). Evidentiary proceeding concluded. Oral argument held. As stated on the record, plaintiffs' motion for a preliminary injunction (doc. # 25 ) is taken under advisement. The matter is set for ruling on the motion before the magistrate judge on 9/15/17 at 1:30 p.m. Mailed notice. (jj, ) (Entered: 09/14/2017)
43 MINUTE entry before the Honorable Sidney I. Schenkier: Ruling on motion hearing held. For the reasons stated on the record, plaintiffs' motion for a preliminary injunction (doc. # 25 ) is denied. The matter is set for a status hearing before the magistrate judge on 9/26/17 at 9:00 a.m. Mailed notice. (jj, ) (Entered: 09/15/2017)
44 TRANSCRIPT OF PROCEEDINGS held on 9−15−17 before the Honorable Sidney I. Schenkier. Ruling. Court Reporter Contact Information: Sandra M. Mullin, Sandra_Mullin@ilnd.uscourts.gov, 312−554−8244.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

09/26/2017
10/25/2017 10/26/2017 11/07/2017 11/21/2017
12/06/2017

Redaction Request due 10/12/2017. Redacted Transcript Deadline set for 10/23/2017. Release of Transcript Restriction set for 12/20/2017. (Mullin, Sandra) (Entered: 09/21/2017)
45 MINUTE entry before the Honorable Sidney I. Schenkier: Status hearing held. The parties report on the status of the case. Plaintiffs' unopposed oral motion for leave to file a motion to amend the complaint is granted. Plaintiffs' motion for leave to file an amended complaint (with the attached proposed amendment) is to be filed by 10/24/17. The matter is set for a status and motion hearing before the magistrate judge on 10/31/17 at 9:00 a.m. Mailed notice. (jj, ) (Entered: 09/26/2017)
46 MOTION by Plaintiffs Andy Thayer, Uptown Tent City Organizers for extension of time to amend complaint (Attachments: # 1 Notice of Filing)(Mills, Alan) (Entered: 10/25/2017)
47 MINUTE entry before the Honorable Sidney I. Schenkier: Plaintiffs' motion for extension of time to file an amended complaint (doc. # 46 ) is granted; no appearance on the motion is required. Plaintiffs may file an amended complaint by 11/07/17. The status hearing with the magistrate judge set for 10/31/17 is RESET to 11/21/17 at 9:00 a.m. Mailed notice. (jj, ) (Entered: 10/26/2017)
48 SECOND AMENDED complaint by Andy Thayer, Uptown Tent City Organizers against All Defendants (Mills, Alan) (Entered: 11/07/2017)
49 MINUTE entry before the Honorable Sidney I. Schenkier: Status hearing held. The parties report on the status of the case. For the reasons stated on the record, defense counsel's unopposed oral motion for an extension to time to file their responsive pleading is granted. Defendants' response to the amended complaint is to be filed by 1/05/18. The matter is set for a status hearing before the magistrate judge on 1/23/18 at 9:00 a.m. Mailed notice. (jj, ) (Entered: 11/21/2017)
50 TRANSCRIPT OF PROCEEDINGS held on 9/14/17 before the Honorable Sidney I. Schenkier. Court Reporter Contact Information: Joseph Rickhoff, 312−435−5562, joseph_rickhoff@ilnd.uscourts.gov. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 12/27/2017. Redacted Transcript Deadline set for 1/8/2018. Release of Transcript Restriction set for 3/6/2018. (Rickhoff, Joseph)

Case: 1:17-cv-4518 As of: 05/22/2020 12:37 PM CDT 8 of 9

01/02/2018 01/02/2018 01/03/2018
01/19/2018 01/19/2018 01/19/2018 01/19/2018 01/19/2018 01/19/2018 01/24/2018
01/24/2018 01/24/2018 02/23/2018 02/23/2018 02/27/2018

(Entered: 12/06/2017)
51 MOTION by Defendants City Of Chicago, City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation for extension of time UNOPPOSED (Sobota, Margaret) (Entered: 01/02/2018)
52 UNOPPOSED NOTICE of Motion by Margaret R. Sobota for presentment of extension of time 51 before Honorable Sidney I. Schenkier on 1/9/2018 at 08:30 AM. (Sobota, Margaret) (Entered: 01/02/2018)
53 MINUTE entry before the Honorable Sidney I. Schenkier: Defendant's unopposed motion for an extension of time to answer or otherwise plead to plaintiffs' second amended complaint (doc. # 51 ) is granted; no appearance on the motion is required. Defendant shall respond to the second amended complaint by 1/19/18. The status hearing set for 1/23/18 is RESET to 2/06/18 at 9:00 a.m. Mailed notice. (jj, ) (Entered: 01/03/2018)
54 RESPONSE by Defendants City Of Chicago, City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation to administrative record 9 (Gandurski, Kelley) (Entered: 01/19/2018)
55 NOTICE by City Of Chicago, City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation re Response 54 (Gandurski, Kelley) (Entered: 01/19/2018)
56 MOTION by Defendants City of Chicago Department of Transportation, City of Chicago Department of Administrative Hearings, City Of Chicago to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) (Sobota, Margaret) (Entered: 01/19/2018)
57 NOTICE of Motion by Margaret R. Sobota for presentment of motion to dismiss 56 before Honorable Sidney I. Schenkier on 2/6/2018 at 09:00 AM. (Sobota, Margaret) (Entered: 01/19/2018)
58 MOTION by Defendants City Of Chicago, City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation for leave to file excess pages UNOPPOSED (Attachments: # 1 Exhibit A)(Sobota, Margaret) (Entered: 01/19/2018)
59 NOTICE of Motion by Margaret R. Sobota for presentment of motion for leave to file excess pages 58 before Honorable Sidney I. Schenkier on 1/25/2018 at 08:30 AM. (Sobota, Margaret) (Entered: 01/19/2018)
60 MINUTE entry before the Honorable Sidney I. Schenkier: Defendant's unopposed motion for leave to file a memorandum in excess of 15 pages (doc. # 58 ) is granted; no appearance on the motion is filed. By a separate order, we set a briefing schedule on defendant's motion to dismiss (doc. # 56 ) and a deadline for plaintiffs' reply to defendants' response to the specification of errors (doc. # 54 ). ENTER ORDER. The status hearing with the magistrate judge set for 2/06/18 is RESET to 4/04/18 at 9:00 a.m. Mailed notice. (jj, ) (Entered: 01/24/2018)
61 AGREED ORDER AND BRIEFING SCHEDULE. Signed by the Honorable Sidney I. Schenkier on 1/24/2018. Mailed notice. (jj, ) (Entered: 01/24/2018)
62 MEMORANDUM by City Of Chicago, City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation in support of motion to dismiss 56 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Sobota, Margaret) (Entered: 01/24/2018)
63 MOTION by Plaintiffs Andy Thayer, Uptown Tent City Organizers for leave to file excess pages (Attachments: # 1 Exhibit A, # 2 Notice of Filing)(Mills, Alan) (Entered: 02/23/2018)
64 NOTICE of Motion by Alan S. Mills for presentment of motion for leave to file excess pages 63 before Honorable Sidney I. Schenkier on 3/1/2018 at 08:30 AM. (Mills, Alan) (Entered: 02/23/2018)
65 MINUTE entry before the Honorable Sidney I. Schenkier: Plaintiffs' unopposed motion for leave to file a memorandum in excess of 15 pages (doc. # 63 ) is granted; no appearance on the motion is required. Plaintiffs are given leave to file the

Case: 1:17-cv-4518 As of: 05/22/2020 12:37 PM CDT 9 of 9

02/28/2018
03/21/2018 03/21/2018 03/23/2018
04/13/2018 04/27/2018 04/27/2018 04/27/2018 06/05/2018
06/05/2018 06/05/2018

memorandum of law attached to the motion. Defendants are given leave to file a reply not to exceed 35 pages. Mailed notice (ber, ) (Entered: 02/27/2018)
66 RESPONSE by Andy Thayer, Uptown Tent City Organizersin Opposition to MOTION by Defendants City of Chicago Department of Transportation, City of Chicago Department of Administrative Hearings, City Of Chicago to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) 56 (Attachments: # 1 Certificate of Service)(Mills, Alan) (Entered: 02/28/2018)
67 MOTION by Defendants City Of Chicago, City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation for extension of time UNOPPOSED (Sobota, Margaret) (Entered: 03/21/2018)
68 UNOPPOSED NOTICE of Motion by Margaret R. Sobota for presentment of extension of time 67 before Honorable Sidney I. Schenkier on 3/27/2018 at 08:30 AM. (Sobota, Margaret) (Entered: 03/21/2018)
69 MINUTE entry before the Honorable Sidney I. Schenkier: Defendants' unopposed motion for extension of time (doc. # 67 ) is granted; no appearance on the motion is required. Defendants' reply memorandum in support of their motion to dismiss shall be filed by 4/13/18. The status hearing with the magistrate judge set for 4/04/18 is stricken. We will reset the matter for a status after reviewing the briefs on the motion and determining whether oral argument would be helpful. Mailed notice. (jj, ) (Entered: 03/23/2018)
70 REPLY by Defendants City Of Chicago, City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation to motion to dismiss 56 (Sobota, Margaret) (Entered: 04/13/2018)
71 MOTION by Attorney Kelley A. Gandurski to withdraw as attorney for City Of Chicago, City of Chicago Department of Administrative Hearings, City of Chicago Department of Transportation. No party information provided (Gandurski, Kelley) (Entered: 04/27/2018)
72 NOTICE of Motion by Kelley A. Gandurski for presentment of motion to withdraw as attorney 71 before Honorable Sidney I. Schenkier on 5/8/2018 at 08:30 AM. (Gandurski, Kelley) (Entered: 04/27/2018)
73 MINUTE entry before the Honorable Sidney I. Schenkier: Unopposed motion to withdraw (doc. # 71 ) is granted; no appearance on the motion is required. We ask the Clerk of the Court to terminate the appearance of Kelley A. Gandurski as one of the attorneys for the defendants. Mailed notice. (jj, ) (Entered: 04/27/2018)
74 MINUTE entry before the Honorable Sidney I. Schenkier: ENTER MEMORANDUM OPINION AND ORDER. Defendants' motion to dismiss (doc. # 56 ) is granted. We dismiss Counts III through VI, without prejudice, for lack of subject matter jurisdiction; we dismiss Count II, with prejudice, for failure to state a claim; and, with no federal claim remaining in the case, we relinquish supplemental jurisdiction over Count I. Civil case terminated. Mailed notice. (jj, ) (Entered: 06/05/2018)
75 MEMORANDUM Opinion and Order Signed by the Honorable Sidney I. Schenkier on 6/5/2018. Mailed notice. (jj, ) (Entered: 06/05/2018)
76 ENTERED JUDGMENT. Mailed notice. (jj, ) (Entered: 06/05/2018)

 
 Case: 1:17-cv-04518 Document #: 56 Filed: 01/19/18 Page 1 of 6 PageID #:1047

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
UPTOWN TENT CITY ORGANIZERS and ANDY THAYER,

Plaintiffs,
v.
CITY OF CHICAGO DEPARTMENT OF ADMINISTRATIVE HEARINGS, CITY OF CHICAGO DEPARTMENT OF TRANSPORTATION, and CITY OF CHICAGO,

Case No. 17-cv-04518
Hon. Sidney I. Schenkier, Presiding Magistrate Judge

Defendants.

DEFENDANTS’ RULE 12(b)(1) AND 12(b)(6) MOTION TO DISMISS COUNTS II-VI OF PLAINTIFFS’ SECOND AMENDED COMPLAINT

Defendants City of Chicago Department of Administrative Hearings, the City of Chicago

Department of Transportation, and the City of Chicago (collectively “Defendants” or the “City”),

by their attorney, Edward N. Siskel, Corporation Counsel for the City of Chicago, hereby move

this Court pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss Counts

II-VI of the Second Amended Complaint filed by Plaintiffs Uptown Tent City Organizers and Andy Thayer (collectively, “Plaintiffs”).1 In support of their motion, the Defendants state as

follows:

1. Plaintiffs’ lawsuit stems from ongoing construction of the Wilson and Lawrence

Avenue viaducts under Lake Shore Drive and the City’s denial of a notification of public

assembly for an area known as Stewart Mall. Because the construction plans would displace

1 This Rule 12 motion does not address Count I of the Second Amended Complaint, which seeks administrative review of a decision by the Department of Administrative Hearings. In accordance with applicable Illinois administrative review law, Defendants have previously answered that count by filing the administrative record, and Defendants’ substantive response to the count consists of a separate response to the specification of errors contained in the count. See ECF No. 54.

Case: 1:17-cv-04518 Document #: 56 Filed: 01/19/18 Page 2 of 6 PageID #:1048
homeless individuals who were staying at the viaducts, Plaintiffs sought the City’s approval to hold a public assembly at Stewart Mall for a period of nearly seven months – 24 hours a day – to include erecting tents where homeless individuals would reside. Because Plaintiffs did not have a required permit to erect structures on the public way, that portion of their assembly notification was denied. However, Plaintiffs were granted the right to assemble at Stewart Mall for the entire time period they requested, just without the ability to erect tents.
2. After the City removed Plaintiffs’ administrative review claim to federal court, Plaintiffs filed a first amended complaint re-asserting their administrative review claim, and adding new claims under the First and Eighth Amendments to the U.S. Constitution, and a state law claim under the Illinois Bill of Rights for the Homeless Act.
3. After being denied a preliminary injunction on their first amended complaint, on November 7, 2017, Plaintiffs filed their Second Amended Complaint, repleading each of the four claims asserted in their first amended complaint, as well as adding new federal constitutional claims under the Fourth and Fifth Amendments, relating to alleged actions taken by Defendants in the days following the commencement of construction.
4. To establish subject matter jurisdiction under Rule 12(b)(1), a plaintiff has the burden to show that they have standing under Article III’s case or controversy requirement; it is “‘not a mere pleading requirement but rather an indispensable part of plaintiffs’ case[.]’” Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443(7th Cir. 2009) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Article III standing requires (1) an injury-infact to a legally protected interest, (2) a causal nexus whereby the injury is fairly traceable to defendant’s actions, and (3) redressability of the injury by court action. Lujan, 504 U.S. at 56061. An organization has standing to sue on behalf of others only when: (a) its members would
2

Case: 1:17-cv-04518 Document #: 56 Filed: 01/19/18 Page 3 of 6 PageID #:1049
otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of the individual members of the lawsuit. Hunt v. Wash. State Apple Adver. Com’n, 432 U.S. 333, 343 (1977). It is a plaintiff’s burden to establish standing. Lujan, 504 U.S. at 561.
5. To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must contain more than “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Id. (quoting Twombly, 550 U.S. at 555). The defendant must be given “fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. Although well-pleaded factual allegations are presumed true for purposes of a motion to dismiss, legal conclusions and conclusory allegations that merely recite the elements of a claim are not entitled to a presumption of truth. Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012). “Nor does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
6. At the outset, Counts II-VI of the Second Amended Complaint should be dismissed pursuant to Rule 12(b)(1) because Plaintiffs lack standing. Plaintiff Thayer lacks standing to assert Counts III-VI because (a) he has testified in this case that he is not homeless and (b) he has not alleged that any of his property was seized, searched or taken by Defendants. Plaintiff UTCO lacks standing to assert Counts II-VI because it has failed to allege that it has
3

Case: 1:17-cv-04518 Document #: 56 Filed: 01/19/18 Page 4 of 6 PageID #:1050
organizational standing under Hunt v. Wash. State Apple Adver. Com’n, 432 U.S. 333, 343 (1977). But even if Plaintiffs had standing, their claims still fail on the merits.
7. Count II, which asserts a First Amendment violation, fails for several reasons. First, erecting tents is not protected expression under the First Amendment. But even if it was protected expression, the City’s rejection of the request to erect tents, while providing Plaintiffs with the right to assemble in the same place and time as they requested, is a reasonable time, place and manner restriction. The same holds true to the extent that individuals attempted to erect new tent encampments on the public way nearby the viaducts following the closure of the viaducts. And the City, which is the only properly-named defendant on this count, cannot be held liable for the decisions of its employees that prevented those tent encampments because Plaintiffs do not allege that such decisions resulted from a City policy, as required by Monell v. Dept. of Social Servs., 436 U.S. 658(1978).
8. Plaintiffs’ Eighth Amendment claim (Count III) fails on its merits because no action by the Defendants has criminalized homelessness, and therefore no cruel or unusual punishment has been inflicted by Defendants. Further, as to any decisions by City employees that prevented new tent encampments nearby the viaducts, the City is not liable because Plaintiffs do not allege that such decisions resulted from a City policy, as required by Monell.
9. Count IV of Plaintiffs’ Second Amended Complaint purports to assert Fourth Amendment violations based on the alleged seizure of certain property by City employees in the days following the commencement of construction. This claim fails because Plaintiffs do not assert that their property was searched or seized, and they cannot vicariously assert Fourth Amendment claims on behalf of others. Further, Plaintiffs have not established that any actions
4

Case: 1:17-cv-04518 Document #: 56 Filed: 01/19/18 Page 5 of 6 PageID #:1051
were taken pursuant to a City policy, as required by Monell. Moreover, to the extent that any property was seized, such seizure was reasonable, and therefore no warrant was required.
10. Plaintiffs’ takings claim in Count V also the alleged seizure of certain property by City employees in the days following the commencement of construction. This claim fails because neither Plaintiff has claimed that their property was taken. Further, Plaintiffs have not established that any actions were taken pursuant to a City policy, as required by Monell. Further, even if Plaintiffs could overcome these hurdles, this claim should still be dismissed because it is not ripe. Plaintiffs have not made the required showing that a property owner has been denied compensation for any property taken. See Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194-95 (1985).
11. Finally, Plaintiffs’ state law claim under the Bill of Rights for the Homeless Act in Count VI fails because they have not shown that homeless individuals were treated any differently than a non-homeless person , that any right to privacy under the Act was violated, or that any adverse action was taken solely because people were homeless.
12. For the foregoing reasons, set forth more fully in Defendants’ accompanying Memorandum in Support, which is incorporated as if set forth fully herein, Counts II-VI of Plaintiffs’ Seconded Amended Complaint should be dismissed pursuant to Rules 12(b)(1) and 12(b)(6) with prejudice.
5

Case: 1:17-cv-04518 Document #: 56 Filed: 01/19/18 Page 6 of 6 PageID #:1052

WHEREFORE, the Defendants respectfully request that this Court dismiss Counts II-VI of Plaintiffs’ Second Amended Complaint and grant the Defendants such further relief as the Court deems just and appropriate.

Date: January 19, 2018
ANDREW W. WORSECK Andrew.Worseck@cityofchicago.org KELLEY A. GANDURSKI Kelley.Gandurski2@cityofchicago.org ANDREW S. MINE Andrew.Mine@cityofchicago.org MARGARET SOBOTA Maggie.Sobota@cityofchicago.org City of Chicago, Department of Law 30 North LaSalle Street, Suites 1230 &1720 Chicago, Illinois 60602 (312) 744-7129 / 744-0688

Respectfully submitted,
EDWARD N. SISKEL, Corporation Counsel for the City of Chicago
By: /s/ Margaret Sobota Attorney for Defendants

6

 
 ILND 450 (Rev.C04a/2s9/e20:161):1Ju7d-gcmven-t0in4a5C1iv8il ADctoiocn ument #: 76 Filed: 06/05/18 Page 1 of 1 PageID #:1326
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS

Uptown Tent City Organizers et al Plaintiff(s), v.

Case No. 17 CV 4518 Judge Sidney I. Schenkier

City of Chicago Department of Administrative Hearings et al Defendant(s).

JUDGMENT IN A CIVIL CASE

Judgment is hereby entered (check appropriate box):

in favor of plaintiff(s) and against defendant(s) in the amount of $

which includes

pre–judgment interest.

does not include pre–judgment interest.

Post-judgment interest accrues on that amount at the rate provided by law from the date of this judgment.

Plaintiff(s) shall recover costs from defendant(s).

in favor of defendant(s) City of Chicago Department of Administrative Hearings et al and against plaintiff(s) Uptown Tent City Organizers et al
Defendant(s) shall recover costs from plaintiff(s).

other:

This action was (check one):
tried by a jury with Judge tried by Judge decided by Judge Sidney I. Schienkier

presiding, and the jury has rendered a verdict. without a jury and the above decision was reached.
on a motion to dismiss

Date: 6/05/18

Thomas G. Bruton, Clerk of Court

Jenny E. Jauregui

, Deputy Clerk