CONCLUSION
Defendant City of Chicago’s motion for summary judgment [59] is granted. This is a
final and appealable order, terminating the case.

Tt is so ordered.

C2.

7 Wayne R. Andersen .

United States District Judge
Dated: Lpbntas Af Mb

20



turned it to our advantage.” In addition, the media focused on Birch at times, and he was able to

give press interviews, Birch admitted in his Response to Defendant’s Statement of Undisputed
Material Facts that he was satisfied with his ability to communicate his message during the rally.

‘The record also shows thal Concealed Carry communicates its message by, among other
things, operating a website, holding speeches and rallies, writing letters to various media outlets,
giving interviews to various media outlets, contacting legislators, making telephone calls and
sending e-mails to various individuals and organizations, handing out fliers at gun shows,
providing legal assistance to individuals arrested [or firearms offenses, offering free firearms
owner identification cards, and putting up billboards. “That the cily’s [actions] may reduce to
some degree the potential audience for respondent’s speech is of no consequence, for there has
been no showing that the remaining avenues of communication are inadequate.” Ward, 491 U.S,
at 802, Any reduction in plaintiffs’ potential audience at the ICHV rally was inconsequential,
and plaintiffs’ alternative channels for communication are unquestionably more than adequate.

This court concludes that the City’s actions at the rally did not violate plaintiffs’ rights
under the First Amendment of the Constitution.
Ill. Fourteenth Amendment Claims

Plaintiffs argue that being segregated away from the permitted rally constituted
impermissible content-based discrimination - they seek protection of their rights to assemble,
speak, demonstrate and protest on an equal basis. This court notes that the equal protection
analysis under the Illinois Constitution, Article I, Section 1, is the same as under the Fourteenth
Amendment of the United States Constitution. Jn re A.4., 181 WL2d 32, 36-37; DeWoskin v.
Loew's Chicago Cinema, 306 iii App. 3d 504, 517 (Ist Dist. 1999), Therefore, plaintiffs’ state
and federal equal protection claims will be discussed together.

14


As explained by the Seventh Circuit, “[t]his court has ‘maintained a strict standard for a

finding of emotional damage because they are so easy to manufacture.”” Ruffin-Thompkins v.
Experian Info. Sys, 422 F 3d 603, 609 (7th Cir, 2005) (quoting Swver v. Experian Info.
Solwions, 390 F.3d 969, 971 (7th Cir. 2004)). “When the injured party’s own testimony is the
only proof of emotional damages, (he] must explain the circumstances of [his] injury in
reasonable detail; [he] cannot rely on mere conclusory statements.” /d.

Birch did not see any health care professional or have any physical symptoms resulting
from his alleged emotional distress, Based on undisputed evidence, his cmotional harm consists
of “indignity” and some “stress and pressure and fear,” and he simply feels that he was not
treated right. Such statements are not sufficient under the strict standard for emotional damages
maintained in this Circuit. Nor is this a case in which “the facts underlying the case are so
inherently degrading that it would be reasonable to infer that a person would su(fer emotional
distress from the defendant's action.” Denius v. Dunlap, 330 F.3d 919, 929-30 (7th Cir. 2003)
(citations omitted) (plaintiffs assertions that he was “embarrassed and humiliated” did not fall
into the inherently degrading category). Birch’s claims for cmotional damages fail as a matter of
law.

Finally, as discussed more completely in the sections below, the City did not violate
Birch’s First or Fourteenth Amendment rights. Moreover, “[c]ven if we assume that the city’s
conduct would, in a proper case, be adjudged violative of the constitutional and statutory rights
of the individuals affected, failure of plaintiffs to adequately demonstrate concrute and
particularized injury to themselves still precludes standing.” HOPE, Inc. v. County of DuPage,

LHinois, 738 F.2d 797, 805 (7th Cir. 1984).


were deprived, their claim still fails, To maintain a section 1983 claim against a municipality,
“one must establish the requisite culpability (a ‘policy or custom’ attributable to municipal
policymakers) and the requisite causation (the policy or custom was the ‘moving force’ behind
the constitutional deprivation).” Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir, 2002)
(citing Monell v. Dep't of Social Servs., 436 U.S. 658, 691-94 (1978)).

There are three things that a plaintiff can show in order to establish a policy or custom:

(1) an express policy that, when enforced, causes a constitutional deprivation; (2)

a widespread practice that, although not authorized by written law or cxpress

municipal policy, is so permanent and well scttled as to constitute a custom or

usage with the force of law; or (3) an allegation that the constitutional injury was

caused by a person with final policymaking authority.

Td. at $37 (quoting Baxter v. Vigo County School Corp., 26 F.3d 728, 735 (7th Cir.1994)). There
is no evidence in this case that the City has an official policy or ordinance on crowd control at
permitted events or that the City expressly authorizes violations of First and Fourteenth
Amendment rights.

There also is not evidence of any widespread practice, There is no “one way” that the
City responds in crowd control situations, and plaintiffs have not provided any evidence of
multiple instances of improper crowd control techniques or violations of the First and Fourteenth
Amendments, As the Seventh Circuit has noted, “{NJonmally random acts of isolated incidents
are insufficient to establish a custom.” Gable, 296 F.3d at 538 (quoting Denno v, School Bd. of
Volusia County, Fla., 218 F.3d 1267, 1277 (11th Cir, 2000).

Even if plaintiffs identified a custom, “[i]n order for the plaintiffs to show that the
alleged customs were attributable to the City and thus had the force of law, they must show that
City policymakers were ‘deliberately indifferent as to [their] known or obvious consequences.”
Id. a 537 (quoting Bd. of County Comm'rs v, Brown, 520 U.S. 397, 406-07 (1997)). “The

18



Plaintiffs have failed to show that the City’s actions violate any of these requirements.

The court addresses each requirement in turn.

A Content Neutrality

The general standard for determining content neutrality is that government regulation of
expressive activity is content neutral so long as “it is ‘justified without reference to the content
of the regulated speech.”” Ward, 491 U.S. at 791 (citations omitted). “The controlling
consideration is the government’s purpose in enacting the regulation. ‘A regulation that serves
purposes unrelated to the content of expression is deemed neutral, even if it has an incidental
effect on some speakers or messages but not others."” Potts, 121 F.3d at 1111 (citing Ward, 491
U.S. at 791) (intemal citations omitted).

The purpose of a permit system, such as that employed by the City of Chicago, is not to
exclude activity based on the content of the message. Rather, it is to “coordinate multiple uses
of limited space, to assure preservation of [public spaces], to prevent uses that are dangerous,
unlawful or impermissible . . ., and to assure financial accountability for damage caused by [an]
event.” Thomas v, Chicago Park District, 534 U.S. 316, 322 (2002). It is true that the police
officers were aware of the content of plaintiffs’ message when the decision was made to
segregatc them, but that does not mean that the action was unconstitutional.

“[Content-neutrality must govern the issuance of permits, bul once issued, the permits
may be enforced in a way that protects the expression of the permitted message, even to the
exclusion of some other message.” Sehwitzgebel y. City of Strongsville, 898 F. Supp. 1208, 1219
(D. Ohio 1995). There is no evidence that the City’s actions were motivated by disagreement
with (he content of plaintiffs’ message. According to the facts before the court, the City was not :

trying to suppress that message. Rather, it was trying to provide structure and organization for

10


However, before considering the clements set forth in Hunt, the court must consider as a

threshold matter whether Concealed Carry qualifies as an association. It is not clear that
Concealed Carry has any members. Birch states that “supporters” is the most appropriate term
for those associated with Concealed Carry. According to the Supreme Court, indicia of a
membership organization include three elements: (1) the supporters alone clect members of the
organization, (2) the supporters alone may serve or participate in the organization, and (3) the
supporters alone finance the organization's activities. Hunt, 432 U.S. at 344.

Looking to the first element, Concealed Carry’s supporters do not vote on the
corporation’s membership; Birch alone elects himself as the entity’s president every year,
without input from anyone else, Second, there is no limitation on who can participate in the
organizations’s activitics. The record shows that Birch is the only individual with any real
responsibilities. No formal participation is required of anyone else, and any participation that
does occur is open to anyone who reads the website. Third, the organizalion is not entirely
financed by it supporters. Birch indirectly mentioned that there are no membership dues, and
Concealed Carry also sells guns in order to raise funds. Based on the cvidence before the court,
Conecaled Carry does not appear to demonstrate any of the characteristics that are representative
of a membership organization.

“The Supreme Court has not scen fit to extend representational capacity standing to
entities other than associations which actually represent interests of parties whose affiliation with
the representational litigant is that of membership with the representative of substantial
equivalent of membership.” HOPE, 738 F.2d at 814. If it were correct that an association
“could litigate on behalf of individuals that were neither its members nor the substantial
equivalent of members, a conflict would be created with the prudential limitation that generally a

7


If there has been no “injury in fact,” the second and third prongs of the Luan test also

fail. Without an “injury in fact,” there can be no causal connection between that injury and the
City’s conduct (prong two), and there is no injury that is likely to be redressed by a favorable
decision (prong three). Duc to the fact that Birch’s claims fail all three prongs of the Lujan test,
this court concludes that he does not have standing.

B. Concealed Carry

‘the City also asserts that Concealed Carry lacks standing. First, the court examines
Concealed Carry’s standing to bring these claims on its own behalf as a corporation. As
discussed above, the first element required to establish standing is that the plaintiff, in this case a
corporation, must have suffered an “injury in fact.” A corporation is a legal entity. It can suffer
no physical harm or emotional distress, and it is impossible for the police to physically move or
segregate it. Morcover, no corporate financial losses have been alleged. Concealed Carry has
suffered no “injury in fact” as a corporation and, therefore, lacks standing on its own,

The court next examines Concealed Carry's standing as a representative of ils members.
Il is worth noting that “when the plaintiff is not [it]self the object of the government action or
inaction [it] challenges, standing is not precluded, but it is ordinarily “substantially more
difficult’ to establish.” Lujan, 504 U.S. at 562 (citations omitted). An association has standing,
to bring suit on behalf of its members when it meets each of the three following criteria: “(a) its
members would otherwise have standing to sue in their own right; (b) the interests it seeks to
protect are germane to the organizalion’s purpose; and (c) neither the claim asserted nor the
relief requested requircs the participation of individual members in the lawsuit.” [fu v.

Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977).


Supreme Court has defined deliberate indifference in this context to mean that ‘a reasonable
policymaker [would] conclude that the plainly obvious consequences’ of the City’s actions
would result in the deprivation of a federally protected right.” Jd. (citing Bd. of County
Comm'rs, 520 U.S. at 411). The City’s approach to rallics of this sort was to allow Commander
Risley, a well-trained and experienced law enforcement officer, to assess the specific
circumstances of the situation and respond as he saw fit, with the help of a group of officcrs who
were experienced in crowd control. This arrangement would not lead a reasonable policymaker
to conclude that deprivation of federal rights would obviously occur.

Finally, no injury was caused by a person with final policymaking authority. The Mayor,
named by plaintiffs as an individual with final policy-making authority, was not present at the

rally, and plaintiffs admit that Commander Risley acted on his own authority, without consulling

his superiors either prior to the event or in making his determination. Therefore, the Mayor

could not have caused plaintiffs any injury during the rally. Moreover, in 2001, the Seventh
Circuit concluded that superior officers of the Chicago Police Department did not qualify as
“policymakers” for the City. See Latuszkin v. City of Chicago, 250 F.3d 502, 505 (7th Cir, 2001)
(citing Auriemma vy. Rice, 957 F.2d 397 (7th Cir. 1992)). As such, the court concludes that
neither Commander Risley nor the other officers on site that day qualify as persons with final
policymaking authority.

This court concludes that plaintiffs’ claims under § 1983 fail as a matter of law.



particular case is not an issue for a jury to resolve, but is a legal question for the court to decide,”

Potts v. City of Lafayette, Indiana, 121 F.3d 1106, 1110-11 (7th Cir. 1997). !
The right to free specch is fundamental bul not absolute. See Tinker v. Des Moines

Independent Community School District, 393 U.S, 503, 508 (1969); Potts, 121 F.3d at 1111, i

“The privilege of a citizen of the United States to use the strects and parks for communication of

views of national questions may be regulated in the interest of all; it is not absolute, but relative,

and must be exercised in the subordination to the general comfort and convenience, and in

consonance with peace and good order; but it must not, in the guise of regulation, be abridged or

denied.” Ports, 121 F.3d at 1111 (citing Hague v. Committee for Indus. Org., 30 U.S. 496, 515-

16 (1939)). Since plaintiffs were free to express their convictions outside of, but adjacent to, the

primary area reserved for the ICLIV rally, the central issue in the First Amendment claim is quite

narrow: Did plaintiffs, in the exercise of their constitutional freedoms, have a right to express

their views by intruding within an arca reserved for another event still in progress? See Sanders

v, United States, 518 F. Supp. 728, 729 (D.D.C. 1981). i
‘The actions by the police at the rally were taken in furtherance of enforcing the City’s

permit system, and “[pJermit systems are the embodiment of time, place, and manner restrictions

that have long enjoyed the approbation of the Supreme Court.” Kroll v. United States Capitol

Police, 847 F.2d 899, 903 (D.C. Cir. 1988). Such time, place and manner restrictions over

protected specch are valid, even in public forums, as long as threc requirements are met: (1) the

restrictions arc justified without reference (o the content of the regulated speech, (2) they are

narrowly (ailored to serve a significant governmental interest, and (3) they leave open ample

allemative channels for communication of the information. See Ward v. Rock Against Racism,

491 U.S. 781, 791 (1989) (cilations omitted).

9


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

CONCEALED CARRY, INC., )
an Illinois corporation, and JOHN BIRCH, )
President of Conceated Carry, Inc., )

) No, 02 € 7088
Plaintiffs, )
)

v. ) Wayne R. Andersen

) District Judge
CITY OF CHICAGO, )
)
Defendant. )

MEMORANDUM, OPINION AND ORDER

This matter comes before the court on defendant City of Chicago’s motion for summary
[59] judgment filed pursuant to Federal Rule of Civil Procedure 56. The City’s motion for
summary judgment encompasses plaintiffs’ claims under the First and Fourteenth Amendments
and 42 U.S.C. §1983. For the reasons set forth below, the City’s motion is granted.

BACKGROUND

Plaintiff Concealed Carry is a corporation organized to advocate the preservation of the
Second Amendment right to bear arms, and plaintiff John Birch (“Birch”) is the president of
Concealed Carry (collectively, “plaintiffs”). The only remaining defendant is the City of
Chicago (the “City”). Various other defendants were named in the initial complaint but have
since been dismissed as explained below. This case centers around the events that took place
during a rally in Chicago’s Fedcral Plaza on Monday, October 7, 2002.

On April 15, 2001, the Hlinois Council Against Handgun Violence (“ICHV”) applied for,
and was issued, a Permit for Use of Space in Public Building and Grounds (the “Permit”) to

conduct a rally at the Federal Plaza, located at 230 South Dearbom, Chicago, Mlinois. The



potential of causing extreme commotion and chaos, which the City justifiably wished to prevent.
“Regulations of the use of a public forum that ensure the safety and convenience of the pcople
are not ‘inconsistent with civil liberties but ... [are] one of the means of safeguarding the good
order upon which {civil liberties] ultimately depend.” Thomas, 334 U.S, at 323 (quoting Cox v.
New Hampshire, 312 U.S. $69, 574 (1941).

The preservation of free speech, including the right to speak and to have one’s message
be heard, is undoubtedly a significant government interest.

A physical intrusion into another event for the purpose of interjecting one’s own

convictions or belicfs is by definition an mterference, regardless of how

insubstantial or insignificant it might appear. As such, il is an interference with

the rights of other citizens to enjoy the event or demonstration in which they have

chosen to participate, and in an area reserved for them.
Sanders, 518 F. Supp. at 730. Segregating plaintiffs from the area reserved for the ICHV rally
served to protect the First Amendment rights of the demonstrators who had obtaincd a permit.
“To allow unregulated access to all comers could casily reduce rather than enlarge the [plaza’s]
utility as a forum for speech.” Thomas, 534 U.S, at 322 (citing Thomas v. Chicago Park
District, 227 \'.3d 921, 924 (7th Cir. 2000)). Although plaintiffs contend that the segregation
occurred prior to any act of interference, it was reasonable for the City to infer that supporters of
Concealed Carry who brought bullhoms to an anti-handgun violence rally intended to interfere.

The court next tums to the “narrowly tailored” requirement of the analysis, “While time,
place or manner regulations must { ] be ‘narrowly tailored’ in order to survive First Amendment
challenge, we have never applied strict scrutiny in this context.” Ward, 491 U.S. at 800. “A
requirement is narrowly tailored if ‘the regulation promotes a substantial government intcrest
that would be achieved less effectively absent the regulation.’” Potts, 121 F.3d at 1111. The
Seventh Circuit further concluded: “So long as ‘the means chosen are not substantially broader

12



the manner in which the various messages were expressed. The record shows that the City
granted Concealed Carry a permit to conduct a rally on the Federal Plaza on the first Monday of

October 2003. Had that rally actually taken place, the police department most assuredly would

have afforded plaintiffs the same courtesy provided to the holders of the ITCHY rally permit,

allowing plaintiffs’ message to be expressed, and even protecting it from external intrusion and
disruption.

The requirement for content neutrality has been satisfied.

B. Narrowly Tailored to Serve a Significant Government Interest

The government most certainly has a significant interest at stake in these types of
situations.

The government interest here is twofold. The first concerns the salty, order, and

convenience of those other citizens already participating in the preexisting event. .

.. Secondly, and more fundamentally, is the interest in guaranteeing citizens the

right to participate in events without being subjected to interference by other

citizens.

Sanders, 518 F. Supp. at 729-30. Addressing the first of those two interests, “it is clear that a
State’s interest in protecting the ‘safety and convenience’ of persons using a public forum is a
valid governmental objective.” Heffron v. International Soc. for Krishna Consciousness, Inc.,
452 US. 640, 651 (1981). It is of no consequence that plaintiffs’ intrusion may have been
peaceful and non-violent.

“Tn evaluating the justification for a regulation of the type at issue, the Court should not
assess only the impact which would be caused by one party before the Court, but rather the
impact which would be caused by all persons who would wish to invoke the right.” Saaders,
518 F. Supp. at 729-30 (citmg Heffron, 452 U.S. 640). The impact of numerous counter-

demonstrators announcing their opposition to the rally through use of bullhorns could have the

ll



plaintiff ‘cannot rest his claim to relief on the legal rights and interests of third parties.” Zid, at

815 (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975).

Even if Concealed Carry did qualify as a membership organization, it fails the first prong
of the Hunt test laid out above, which requires that its members would otherwise have standing
to sue in their own right. See Hunt, 432 U.S. at 343. As laid out above, Concealed Carry’s
members would not have standing to sue in their own right because there has been no
demonstration that they suffered any injury in fact. “Since [the corporation] has not
demonstrated that any party that it represents as a ‘member’ has standing, it cannot have
standing as that member’s representative.” HOPE, 738 F.2d at 814,

Failure of any one of the Hunt factors means that Concealed Carry lacks standing as a
membership organization. Thus, plaintiffs do not have standing. Although this finding is
sufficient to grant the City’s motion for summary judgment, the court proceeds with an analysis
of each of plaintiffs’ remaining claims, which provide additional grounds for granting the City’s
motion.

il. First Amendment Claims

Plaintiffs claim that by being separated from the main portion of the l’ederal Plaza, their
right of free speech was diluted and chilled. The court first notes that the analysis under
Sections 4 and 5 of Article I of the Illinois Constitution, which deal with the rights to free speech
and to assemble and petition, is the same as under the First Amendment of the United States
Constitution. Therefore, plaintiffs’ state and federal free speech claims will be discussed
together. The court also notes that it is appropriate for this court to resolve this claim at the

summary judgment stage of trial. “{T}he application of the First Amendment to the facts of a


The City objects to plaintiffs’ Statement of Uncontested Facts Not Already Before the

Court. While the court notes that the document is ncedlessly voluminous, contains substantial
amounts of irrelevant material, and also makes numerous legal conclusions, all documents in the
record have been reviewed, and all evidence has been taken into consideration as appropriate. !
L Standing

The City asserts that plaintiffs do not have standing to raise the claims asserted in their
first amended complaint, “The core component of standing is an essential and unchanging part
of the casc-or controversy requirement of Article IIL.” Lujan v, Defenders of Wildlife, 504 U.S.
555, 560 (1992) (citing Allen v. Wright, 468 U.S. 737, 751 (1984). ‘To establish standing,
plaintiffs must show: (1) that plaintiff suffered an “injury in fact” an invasion ofa legally
protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not
‘conjectural’ or ‘hypothetical’; (2) that a causal connection exists between the injury and the
conduct complained of - the injury has to be “fairly. . . trace[able] to the challenged action of
the defendant, and not . . . th[e] result (of] the independent action of some third party not before
the court”; and (3) that it is “likely,” as opposed to merely “speculative,” that the injury will be
“rodressed by a favorable decision.” Lujan, 504 U.S. at 560-61.

A. John Birch

With regard to plaintiff Birch, the first requirement under the Lujan test is not met. Birch
has not suffered any “injury in fact.” Birch alleges no physical harm and admits in his response
to the City’s Statement of Undisputed Material Facts that he suffered no financial loss. He
claims damages for emotional distress, but there is insufficient evidence in the record to support

this claim. |


“The Equal Protection Clause of the Fourteenth Amendment commands that no State

shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is

essentially a direction that all persons similarly situated should be treated alike.” City of
Cleburne v, Cleburne Living Crr., 473 U.S, 432, 439 (1985) (citing Plyler v. Dae, 457 U.S. 202,
216 (1982)). As an initial matter, a plaintiff must be able to identify a similarly situated group
who was treated differently. However,

[I]t is difficult to discern any equal protection violation in the circumstances of

this case since [plaintiffs have] not demonstrated that [they] suffered unequal

treatment--the essence of an equal protection violation is, after all, discrimination

of some sort. We have previously held that a class of onc claim must fail where

the plaintiff has “failed to identify someone who is similarly situated but

intentionally treated differently than he.”

Lunini v. Grayeb, 395 F.3d 761, 769-70 (7th Cir, 2005) (quoting McDonald v. Vill. Of Winnetka,
371 F.3d 992, 1002 (7th Cir. 2004)). Nowhere in the record do plaintiffs identify similarly
situated individuals who have been treated differently by the City. Plaintiffs were not similarly
situated to the permit-holding demonstrators, nor were they similarly situated to passive
bystanders who had no intention of interrupting the ongoing ICHY ratly. No other group has
been identified who both lacked a permit and intended to interfere with the rally,

Additionally, there is no evidence to suggest that the Chicago Police Department always
allows counter-demonstrators to interrupt permil-holding demonstrators as a general practice.
See Lunini, 395 F.3d at 770, “Of course the law must provide some remedy for extreme abuses
of power by public officials. However, absent somc comparative showing of discnimination
among similarly situated individuals or classes of individuals, such a remedy cannot be obtained

via the Equal Protection Clause.” Lunini, 395 F.3d at 770 n.5. The court recognizes that. as a

general matter, whether individuals are similarly situated is a factual question for the jury. /d.

15



being finely tailored to serve substantial state interests. This was a narrow time, place and
manner restriction that left open ample alternative channels of communication, and it also served
the significant interests of maintaining order and safety and preserving the right to free speech.

This court concludes that plaintiffs’ Fourteenth Amendment claims fail as a matter of
law.
IV. Section 1983 Claims

Plaintiffs assert a section 1983 violation based on a widespread custom or practice of
being denicd the right to express their viewpoint at First Monday rallies, and they name the
Mayor as a person with final policy-making authority. Section 1983 provides, in rclevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the

jurisdiction thercof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the parly injured in an

action at law, suit in equity, or other proper proceeding for redress, except that in

any action brought against a judicial officer for an act or omission taken im such

officer's judicial capacity, injunctive relicf shall not be granted unless a

declaratory decree was violated or declaratory relief was unavailable
42 U.S.C. § 1983.

First and foremost, a section 1983 claim requires that the plaintiff be deprived of

something — plaintiffs must point to another source, either the United States Constitution or

federal statutes, for the substantive rights they seek to enforce. See Chapman v. Houston

Welfare Rights Org., 441 U.S. 600, 617 (1979). In this case, plaintiffs allege to have been

deprived of their First and Fourleenth Amendment rights. However, as has been discussed
above, plaintiffs’ rights guaranteed under the First and Fourteenth Amendments were not
violated. Plaintiffs have not sufficiently demonstrated any deprivation on which to base a
section1983 claim. Even if plaintiffs identified a right, privilege or immunity of which they

V7



First Monday Rallies, as well as a judgment declaring that defendants past removal of plainti (fs

was unconstitutional, Plaintiffs sought damages and injunctive and declaratory relief.

Defendants filed a motion to dismiss the action, which this court granted in part and
denied in part. See Concealed Carry, Inc. v. City of Chicago, et al., 2003 WL 22283948 (N.D,
Ill. Sept. 30, 2003). All requests for injunctive and declaratory relief were stricken from
plaintiffs’ first amended complaint, all official capacity claims were dismissed, and several
defendants were dismissed from the lawsuit. The only remaining defendant is the City, and the
surviving claims include First and Fourteenth Amendments claims under Count I (and the
corresponding state claims under Count V) and scetion 1983 claims under Counts I and TV.
These claims are addressed below.

DISCUSSION

Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any show that there is no
genuine issue as to any material fact and that the moving party is entitled to summary judgment
as a matter of law.” Fed. R. Civ. P. 56(c). A genuine issue of material fuct exists when (he
“evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson y. Liberty Lobby, Inc., 477 U.S. 242, 248 (1985). Initially, the moving party bears the
burden of showing that the record contains no genuine issue of material fact. See Celotex Corp.
y. Catrett, 477 U.S. 317, 323 (1986). The governing substantive law establishes which facts are
material. See Anderson, 477 U.S. at 248. The non-moving party must present more than a
“metaphysical doubt as to the material facts” to survive summary judgment, Matsushita Elec.
Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 596 (1986). Additionally, “mere conclusory”
allegations are not cnough. Nowak v. St. Rita High School, 142 34.999, 1002 (7th Cir. 1998),

3


Permit granted ICHV permission to usc the Federal Plaza to conduct its annual anti-handgun
violence rally from 6:00 a.m. to 5:00 p.m. on Monday, October 7, 2002, as well as a “First
Monday” event at noon. The rally was co-sponsored by the City and the Chicago Public
Schools. First Monday events are scheduled to occur every first Monday in October,
corresponding with the formal opening of the United States Supreme Court's fall term and
upcoming November local, state and national elections. Many politicians attend First Monday
events and speak against handgun violence to the assembled public and media. The First
Monday events also host an anti-handgun violence essay contest for the area’s children. Many
children and teachers from the Chicago Public School System are bused in to attend the awards
portion of this event.

In the past, plaintiffs have attended these rallies to protest the transportation of the
students and teachers on school time and at taxpayers’ expense as well as the Mayor’s anti-
handgun policies. Shortly before the rally began, John Risley, then serving as Commander in
charge of the First Police District in Chicago, and other members of the Chicago Police
Department instructed plaintiffs and various individuals associated with Concealed Carry to
move to the side of the Federal Plaza behind a set of barricades. From that location, plaintiffs
voiced their opinions throughout the rally.

Plaintiffs filed a seven-count first amended complaint, alleging that defendants violated
plaintiffs’ First, Fourth and Fourteenth Amendments rights in violation of 42 U.S.C. §§ 1983,
1985. Plaintiffs also alleged violations of numerous state law provisions. Plaintiffs sought an
order enjoining defendants from acting in concert with one another to remove plaintiffs to the far

end of the Federal Plaza at future ICHV rallies. Plaintiffs also sought to protest freely at future



than necessary to achieve the government’s interest, [ ] the regulation will not be invalid simply
because a court concludes that the government’s interest could be adequately served by some
less-speech-restrictive alternative,’ Jd. at 1111-12.

The City’s actions were by no means overly broad. As shown by the record, the
individuals in question simply were told to move to another portion of the Federal Plaza. They

were not forced to leave the premises, nor were they forced to remain silent and refrain from

expressing their message. The City’s action constituted a very narrow intrusion into their

freedom of expression. The content, volume or duration of their message was not affected -—
only the location from which it came. Generally speaking, cnforcement of a permit system is not
a denial of liberty, but rather “a ministerial, police routine for adjusting the rights of citizens so
that the opportunity for effective freedom of speech may be preserved.” Thomas, $34 US. at
323 (quoting Poulos vy, New Hampshire, 345 U.S, 395, 403 (1953)).

This court concludes that the City’s actions were narrowly tailored to serve a significant
government interest.

c. Alternative Channels of Communication

Plaintiff's certainly had ample alternative channels of communication available to them.
First of all, based on the facts before the court, it is difficult to assert that plaintiffs were
unsuccessful at communicating their message while al the ICHV rally. Birch admitted that the
participants in the ICHV rally were able to hear his message and, in fact, responded to him.
Supporters of Concealed Carry behind the barricades were able to talk to, and did talk with,
passers-by during the rally and expressed their views. Birch was able to use his bullhorn to
distract people’s attention during the rally and was able to convey his message to the audience
and participants. Birch wrotc an e-mail stating that “[tJhe fact is we blunted the rally and then

13



However, “when it is clear that no reasonable jury could find that the similarly situated
requirement has been met, a grant of summary judgment is appropriate.” Jd. at 770 n.6 (internal
citation omitted) (collecting cases).

Even if plaintiffs asserted that others present were similarly situated, their equal
protection claims still fail. In determining the standard for judicial revicw in equal protection
cases, the general rule is to apply “rational basis” scrutiny, meaning that “legislation is presumed
to be valid and will be sustained if the classification drawn by the statute is rationally related to a
legitimate state interest.” City of Cleburne, 473 U.S. at 439-40 (collecting cases). However, ifa

suspect classification is used (generally race, alienage, national origin, or gender), or if'a

personal right protected by the Constitution is impacted, the law will be “subjected to strict

scrutiny and will be sustained only if [it] is suitably tailored to serve a compelling state interest.”
7d. ai 440 (collecting cases).

Although the parties apply the “rational basis” test, heightened scrutiny is appropriate in
this case. “When government regulation discriminates among speech-related activities in a
public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve
substantial state interests, and the justifications offered for any distinctions it draws must be
carefully scrutinized.” Curey v. Brown, 447 U.S, 455, 461-62 (1980) (collecting cases)
(emphasis added). The existence of a public forum is important, because “|i]n a public forum,
by definition, all partics have a constitutional right of access and the state must demonstrate
compelling reasons for restricting acccss to a single class of speakers, a single viewpoint, or a
single subject.” Perry Educ. Ass'n vy. Perry Local Educators' Ass'n, 460 U.S, 37, 55 (1983).

Even using this heightened scrutiny standard, plaintiffs’ claims still fail. As was
discussed previously in the First Amendment section, the City’s actions meet the requirement of

16