and that there are no remaining effects from the alleged violation, See Kikumura v. Turner, 28 F.3d
592, 597 (7th Cir. 1994).

Since October 31, 2001—the date on which the City argues it voluntarily ceased enforcing
the panhandling ordinance-—police officers have arrested six individuals for panhandling and have
issued at least ninety-four panhandling tickets.'> Also, Mr. Thompson’s testimony—which this
Court finds credible—establishes that, despite the City’s non-enforcement policy, police officers
have threatened to arrest him for panhandling on a weekly basis.'° The evidence presented at the
hearing also establishes both that enforcement of the panhandling ordinance has increased each
month since the City announced its non-enforcement policy, and that the ordinance has been
enforced in a majority of police districts.

The City does not dispute these numbers. Instead, the City argues that there is a difference
between tickets issued and arrests made pursuant to official City policy and the conduct of individual
officers. The City contends that the October 30 facsimile message and the City’s subsequent efforts
to disseminate the non-enforcement policy demonstrate that the City has ceased enforcing the
panhandling ordinance. Without citing any legal authority, the City argues that it is not responsible
for officers who act in violation of the City’s non-enforcement policy. Regardless of the legal merit
of this argument, the Court notes that the City’s position is based on its assumption that it effectively

communicated the non-enforcement policy to individual police officers. The record in this case does

’ Additionally, during the same period of time, police officers have cited the panhandling
ordinance on nine other arrest reports—though panhandling was not the sole reason cited for arrest.

‘© For purposes of the present motion, this Court makes no distinction between these different
methods of enforcing the panhandling ordinance. All three methods result in the suppression of
protected speech. See Gresham v. Peterson, 225 F.3d 899, 904 (7th Cir. 2000) (collecting cases
holding that begging is protected speech).

-13-


lL Police Department’s General Method of Informing Officers of New Policies and
Procedures

The Chicago Police Department is divided into twenty-five districts and a number of
specialized units. (Hr’g Tr., Mar. 7, 2002, p. 34.) As a general matter, the police department
informs individual police officers of new policies and procedures by issuing either a department
directive or a facsimile message. (/d., p. 22.) Of these two methods of disseminating information,
the normal procedure is to issue a published department directive. (Id., pp. 22-23; Hr’g Tr., Mar.
8, 2002, p. 172.) “Publishing” in this context means printing copies of the directive and sending the
copies to each police district and specialized unit. (Hr’g Tr., Mar. 7, 2002, pp. 24, 26.) For example,
when a city or state ordinance is repealed, the police department prints 15,000 copies of an official
notice of repeal and hand-delivers the copies to each district and specialized unit. (Id., pp. 100, 128-
29.) The copies of the published directive are then made available to individual officers. (/d., pp.
27, 44; Hr’g Tr., Mar. 8, 2002, p. 173.) In the Fifth District, for example, individual officers can
pick up copies of published directives at the front desk or in the roll-call room. (Hr’g Tr., Mar. 7,
2002, pp. 22, 27.) If the police department needs to disseminate information quickly, however, the
department uses a facsimile message. (/d., pp. 23, 78.) Like a published directive, a facsimile
message is an official department document. (/d., pp. 33, 79, 126.) Unlike a published directive,
however, the police department does not make copies of facsimile messages available to individual
officers. (/d., p. 27; Hr’g Tr., Mar. 8, 2002, p. 173.) Instead, the facsimile message is pasted into

the district’s Commanding Officer’s Book (“CO Book”) and the information contained in the

* Department directives are further broken down into general orders, special orders, and
department notices. (Hr’g Tr., Mar. 7, 2002, p. 23.) The parties did not present evidence regarding
the differences between general orders, special orders, and department notices.

-4-


ENTER:

Wor 2 Wah sine

Nan R. Nolan

United States Magistrate Judge

Dated: Vhanate al, Aaoo2.

-17-


the November 2 message was received by any district. The City also failed to present any evidence
that the non-enforcement policy was read at roll calls on multiple days, much less evidence
establishing that it was read at roll calls for seven consecutive days. (E.g., Hr’g Tr., Mar. 7, 2002,
pp. 124-25.)

The City took two other steps to disseminate the non-enforcement policy. It printed notices
of the non-enforcement policy in eight issues of the Daily Bulletin—four in January 2002 and four
in February 2002, (Def.’s Ex. 4-11; Hr’g Tr., Mar. 8, 2002, p. 205), and it retrieved the “Panhandling
is Illegal” posters from local businesses, (Hr’g Tr., Mar. 8, 2002, pp. 208-09).

3. Post-October 30, 2001 Enforcement of the Panhandling Ordinance

The parties stipulated to the following facts relating to the number of arrests made and tickets
issued pursuant to the panhandling ordinance since the City announced its non-enforcement policy.
(Hr’g Tr., Mar. 7, 2002, pp. 5-6, 16; Pls.’ Ex. 7.) From October 31, 2001 until early February 2002,
the Chicago police department issued eighty-one panhandling tickets; the tickets were issued in
twenty-one of the twenty-five police districts. During this period, the number of tickets has
increased each month; police officers issued fifteen tickets in November (including one ticket issued
on October 31), twenty-four tickets in December, and thirty-nine tickets in January.'® From October
31, 2001 until mid-January 2002 (the period for which there is complete data), the Chicago police
department cited the panhandling ordinance in ten arrest reports (though the ordinance was not
always the sole reason cited for arrest). These arrests occurred in nine different police districts and

throughout the relevant time period; in November, the panhandling ordinance is cited in three arrest

'° At the time of the hearing, the City was not able to produce complete data regarding the
tickets issued in February 2002. The then-available information indicates that the police department
issued three panhandling tickets in early February 2002.

-9-


2. Police Department’s Efforts to Inform Officers of the Non-Enforcement Policy

On October 30, 2001, the police department sent a facsimile message to the twenty-five
districts and the specialized units regarding enforcement of the panhandling ordinance. The body
of the message states:

Effective immediately, Department Members will no longer enforce Chapter 8-4-
010(f) of the Municipal Code which states:

~— A person commits disorderly conduct when he knowingly:

(f) Goes about begging or soliciting funds on the public ways.
Officers will continue to enforce Chapter 10-8-110 through 10-8-170 which requires
a permit for charitable solicitations on a public way. CTA Ordinance 98-126 (1.2)
which prohibits solicitation and/or begging on property owned, operated or

maintained by the CTA will also continue to be enforced.

For further information, please contact the Office Of Legal Affairs, at [phone
number].

(Def.’s Ex. 3 (emphasis in original); Pls.’ Ex. 3 (emphasis in original).) The parties stipulate that
this message was received by each police district on October 30, 2001, and that the message was
pasted into each district’s CO Book.

At the hearing, the parties presented evidence regarding whether the October 30 message was
read at roll calls. The City presented only one police officer who testified that the October 30
message was read at roll call in his district. Patrick J. Blair, a bicycle patrolman from the First
District, testified that he heard the non-enforcement policy announced at a roll call for the second

watch. (/d., p.229.)’ Incontrast, the plaintiffs presented three police officers who testified that they

7 The City also presented Ralph Zbierelski, a patrolman from the First District, who testified
that he was aware of the non-enforcement policy because other officers told him about it and because
the October 30 facsimile message was pasted into the First District’s CO Book. (Hr’g Tr., Mar. 8,
2002, p. 267). Patrolman Zbierelski did not testify that he heard the non-enforcement policy

-6-


message may be read to the individual officers by the watch commander during roll call. (Hr’g Tr.,
Mar. 7, 2002, pp. 22, 39-40, 58, 65, 85; Hr’g Tr., Mar. 8, 2002, p. 182.)°

In addition to department directives and facsimile messages, the police department
sometimes reinforces new policies and procedures through the department’s Daily Bulletin. (Hr’g
Tr., Mar. 7, 2002, p. 91.) The bulletin is a daily newsletter that is made available to individual police
officers. (Hr’g Tr., Mar. 8, 2002, pp. 204-05.) In the Twenty-Third District, for example, copies of
the Daily Bulletin are available at the front desk and in the roll-call room. (Hr’g Tr., Mar. 7, 2002,
p. 59.) One side of the bulletin—referred to as the “hot sheet’”—lists the license-plate numbers of
vehicles recently reported stolen. (Hr’g Tr., Mar. 8, 2002, p. 204.) The reverse side of the bulletin
contains information regarding death notices, educational opportunities available to officers, and
individuals wanted for questioning or wanted on warrants, and also states the proper procedures to
be followed in certain situations. (See Def.’s Ex. 4-11; Hr’g Tr., Mar. 7, 2002, p. 91; Hr’g Tr., Mar.
8, 2002, p. 204.) For example, the bulletin dated February 5, 2002, states that “[e]nforcement of
M.C.C. 9-64-100(f), which prohibits parking within 20 feet of a crosswalk, requires the existence

of a sign indicating the prohibition.” (Def.’s Ex. 8.)

° Officers assemble at roll call to receive instructions for the upcoming watch. Each district
holds multiple roll calls for each watch. (See Rayl Dep., p. 52.) At roll call, the watch commander
inspects the officers, ensures that they have their assignments for that watch, provides them with any
necessary information for that day, e.g., information regarding court appearances or community
meetings, and, to the extent necessary, reads relevant portions of the CO Book. (Hr’g Tr, Mar. 7,
2002, p. 41.)

-5-


enforcement policy announced at roll call and that he first learned of the policy at his deposition,
which took place in late-February or early-March 2002. (Hr’g Tr., Mar. 8, 2002, pp. 170-71.) The
parties did not present any other evidence regarding whether the City’s non-enforcement policy was
read at roll calls in the other twenty-one districts.

The City also introduced a document that appears to be a copy of a November 2, 2001
facsimile message from the Patrol Division to all district commanders. (Def.’s Ex. 13.) The
November 2 facsimile message instructs the district commanders to place the October 30 facsimile
message in the district’s CO Book and to read the message at roll call for seven consecutive days.

(Def.’s Ex. 13; Hr’g Tr., Mar. 8, 2002, p. 222.) However, the City did not present any evidence that

° The City attempted to offer into evidence photocopies of CO Book pages from twenty-four
of the twenty-five districts. The City asked the Court to infer that handwritten notations on some
of the CO Book pages indicate that the non-enforcement policy was read at roll calls. (See Def.’s
Proffered Exs. 14-38.) Although the plaintiffs stipulated to the fact that the October 30 facsimile
message was received by each district and pasted into each district’s CO Book, they objected to the
introduction of the photocopied CO Book pages on the ground that the City failed to lay a foundation
for the proffered exhibits. Hickey, who was a watch commander in the Third District from 1994 to
1997 and in the Eleventh District from 1997 to 1998, testified that he occasionally made notations
in the CO Book to record that he announced certain messages at roll call. (Hr’g Tr., Mar. 7, 2002,
pp. 88-89.) Hickey testified that although it was his practice to initial the CO Book, watch
commanders are not required to initial CO Book pages. (/d., p. 89.) The City also read into the
record the deposition testimony of Commander Rayl, who was a watch commander in the Twelfth
District in the fall of 2001. Commander Ray] testified that, according to his general practice, he
initials CO Book pages to record that he had read the material on the page. (Ray! Dep., pp. 53, 63.)
Commander Rayl did not testify that he initialed CO Book pages to record that he announced a
certain message at roll call. The evidence presented at the hearing established that each district (and
each watch commander) has its own practices and procedures. The City presented evidence as to
the procedures of only two watch commanders, Hickey and Rayl. Of these two, only Rayl was a
watch commander during the relevant time period and his testimony does not support the City’s
position that watch commanders initial CO Book pages to record that they announced a message at
roll call. The City did not present any evidence establishing who wrote the notations in the
photocopied CO Book pages or that watch commanders in any of the other twenty-four districts
initial CO Book pages to record an announcement they made at roll call. The Court concludes that
the City failed to establish the appropriate foundation for this evidence. Accordingly, the Court
sustains the plaintiffs’ objection to the introduction of this evidence.

-8-


Minwte Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judi i Sitting Judge if Other
Mor Magistrate Judge Blanche Manning than assigned Judge Nan R. Nolan
CASE NUMBER 01 C 6916 DATE 3/21/2002
CASE Jessie E. Thompson, et al. vs. City of Chicago
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION:

DOCKET ENTRY:

ql) Qo Filed motion of [ use listing in “Motion” box above.]

(2) im} Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer brief due

(4) o Ruling/Hearing onset for_ at

(5) im} Status hearingfheld/continued to] [set for/re-set for]on___——s set for at

(6) oO Pretrial conference[held/continued to] [set for/re-set for]on___——ssetfor_ at.
(7) oOo Trial[set for/re-set for] on______at

(8) im [Bench/Jury trial} [Hearing] held/continued to__at

(9) im) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) OGeneralRule21 OFRCP41(a)(1) CFRCP41(a)(2).

(0) «xf [Other docket entry] Report and Recommendation recommending that the District Court deny the
City’s motion to deny as moot the plaintiffs’ preliminary injunction motion [18-1] is hereby entered of
record.

(1) {For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document.

No notices required. number of notices,

AR 2.2 2002

(NX

W | Notices mailed by judge’s staff.

hat-2d

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form. sn —
v | Copy to judge/magismatajudge. >
courtroom or
Ic deputy’s ras)
initials - —
yi ~ Datg/tifne received in 7
central Clerk’s Office mailing deputy initials



Discussion

The panhandling ordinance prohibits panhandling on any public way in the City of Chicago.
Chicago Mun. Code § 8-4-101(f). In Loper v. New York Police Dep't, 999 F.2d 699 (2d Cir. 1993),
the Second Circuit held that a similar panhandling statute violated the First Amendment. In
Gresham y. Peterson, 225 F.3d 899 (7th Cir. 2000), the Seventh Circuit rejected a constitutional
challenge to an Indianapolis panhandling ordinance that prohibited “aggressive panhandling,” but
permitted peaceful panhandling at certain times and in certain locations. The Seventh Circuit noted
that the Gresham ordinance was a “far cry from the total citywide ban on panhandling overturned
by the court in Loper.” Gresham, 225 F.3d at 907. After this suit was filed—and perhaps after
reviewing Loper and Gresham—the City sent to each district the October 30 facsimile message,
which states that department members are no longer to enforce the panhandling ordinance. The City
contends that the October 30 facsimile message and its subsequent efforts to disseminate the non-
enforcement policy, e.g., the notices in the Daily Bulletin, establishes that the plaintiffs’ preliminary
injunction motion is moot because the City has voluntarily ceased enforcing the panhandling

ordinance.'*

a proposal to repeal the panhandling ordinance. (Hr’g Tr., Mar. 8, pp. 160-61.) Janega also testified
that Alderman Edward M. Burke introduced his own proposal relating to the panhandling ordinance.
(d., pp. 165-67.) Both proposals have been referred to legislative committees. (Id., pp. 160, 165.)
After a committee has reviewed a legislative proposal, it reports the proposal to the City Council at
the next regularly scheduled meeting. (Jd., p. 164.) However, any two aldermen can vote to table
consideration of a legislative proposal. (/d., p. 165.) Janega testified that he did not know whether
the Daley and Burke proposals were “competing proposals.” (/d., p. 167.) Because the City did not
rely on the potential repeal of the panhandling ordinance in its closing argument, the Court’s opinion
does not discuss the subject.

‘The City also argues that the plaintiffs lack standing because the City is no longer enforcing
the ordinance. The City confuses the doctrine of standing with the doctrine of mootness. Standing
concerns whether the plaintiffs have the requisite personal interest in the case at the outset, i.e., when

-ll-


reports, in December, it is cited in two arrest reports, and for the first half of January, it is cited in
five arrest reports. At this Court’s request, on March, 15, 2002, the City filed a supplemental report
containing updated ticket and arrest information. (Docket Entry #52.) The City’s subsequent search
uncovered thirteen additional panhandling tickets and five additional arrest reports that cite the
panhandling ordinance.’ Adding these tickets and arrests to the stipulated totals establishes that
since October 31, 2001, the police department has issued ninety-four panhandling tickets and has
cited the panhandling ordinance on fifteen arrest reports.’

In addition to the ticket and arrest information, Jessie Thompson—one of the named
plaintiffs—testified that, since October 31, 2001, police officers have repeatedly threatened him with
arrest for panhandling. (Hr’g Tr., Mar. 7, 2002, pp. 137-38.) According to Mr. Thompson, the
officers told him that panhandling is illegal and that they would arrest him if he did not cease
panhandling and leave the area. (/d., pp. 137-38, 146.) Mr. Thompson testified that the most recent

incident occurred in mid-February 2002. (Id., p. 147.)

' The City conducted its search on March 11, 2002. Because tickets are not entered into the
City’s computer system until the date of the administrative hearing, it is unclear whether the City’s
supplemental search uncovered all of the tickets issued in February 2002.

" On arrest reports and ticket forms, the reporting officer identifies the offense violated and
provides a short narrative of the offender’s conduct. Of the fifteen arrest reports, six reports cite the
panhandling ordinance as the sole offense, three reports cite the general disorderly conduct ordinance
and report that the offender was begging and blocking the doorway to a business, and six reports cite
the panhandling ordinance and at least one other offense. Of the ninety-four tickets, eighty-six
tickets cite only (1) the panhandling ordinance or (2) the general disorderly conduct ordinance and
report that the suspect was begging. The eight remaining tickets cite either the panhandling or
disorderly conduct ordinance and at least one other ordinance.

'S On February 28, 2002, the City moved to postpone the evidentiary hearing based on the
possibility that the City Council would repeal the panhandling ordinance. The Court denied the
motion but invited the City to present testimony on the potential repeal of the ordinance. At the
hearing, Robert Janega, an attorney for the City, testified that Mayor Richard M. Daley introduced

-10-


do not remember hearing the non-enforcement policy announced at any roll call and that they were
not aware of the policy until very recently. (Hr’g Tr., Mar. 7, 2002, pp. 17-18, 46; Hr’g Tr., Mar.
8, 2002, p. 170.) Maryann Stanek, a field lieutenant from the Fifth District whose duties sometimes
include running roll call, testified that she attends roll call on a daily basis and that she does not
recall hearing the non-enforcement policy announced at roll call. (Hr’g Tr., Mar. 7, 2002, pp. 19-21,
43.) Field Lieutenant Stanek also testified that she first learned of the non-enforcement policy when
she received a note from the police department’s legal affairs division in mid- to late-January 2002.
(d., p. 29-30.) Similarly, Sheila Magnus, a lieutenant from the Twenty-Third District who also
occasionally runs roll call, testified that she does not recall hearing the non-enforcement policy
announced at roll call and that she was not aware of the policy until mid- to late-February 2002,
when she was notified that she would be deposed in connection with the this case. (Id., pp. 49, 48-
49.)* Jerry McGhee, a field training officer from the Sixth District who is responsible for training

new recruits from the police academy, testified that he does not remember hearing the non-

announced at roll call.

The City also read into the record the deposition testimony of Commander Dennis Rayl.
Commander Ray! testified that he was a captain in the Twelfth District during the fall of 2001. (Rayl
Dep., p. 3.) Although Commander Ray stated that he “would have read” the October 30 facsimile
message during roll call for the third watch, he testified that he had no independent recollection that
he announced the non-enforcement policy during any roll call. (Id., pp. 20, 52-53, 63.)

* Lieutenant Magnus testified that she went on vacation in the beginning of October and that
she does not remember when she returned to work. (Hr’g Tr., Mar. 7, 2002, pp. 55-56.) She also
testified that when she returned to work she reviewed the CO Book to bring herself back up to speed.
(Id., p. 64.)

Lieutenant Magnus further testified that she was temporarily assigned to the Sixth District
from November 29, 2001 until January 3, 2002. (/d., p. 50.) She testified that she does not recall
hearing the non-enforcement policy announced at a roll call during the time she was assigned to the
Sixth District, nor does she recall that other officers discussed the non-enforcement policy in her
presence during that period of time. (dd., p. 51.)

T-


The City primarily defends the plaintiffs’ preliminary injunction motion on the ground of
mootness. (Def.’s Resp. to Pls.’ Mot. for Preliminary Inj., Docket Entry #12.) According to the
City, the plaintiffs’ claim for injunctive relief is moot because the police department ceased
enforcing the panhandling ordinance on October 31, 2001. (/d.) On December 21, 2001, the City
moved this Court to deny the plaintiffs’ preliminary injunction motion as moot. (Def.’s Mot. to
Deny Pls.’ Mot. for Preliminary Inj., Docket Entry #18.) The plaintiffs responded that their claim
was not moot because the panhandling ordinance was still being enforced. (Pls.’ Resp. to Def.’s
Mot. to Deny Pls.’ Mot. for Preliminary Inj., Docket Entry #22.) Because the parties could not
initially agree on the number of panhandling tickets and arrests that had occurred after the City
announced its non-enforcement policy—the City asserted that there were only a few isolated
incidents and the plaintiffs claimed that there were many incidents—the parties requested time to
conduct discovery. By mid-February 2002, the parties had taken several depositions and the City
had produced the then-available documentary evidence regarding the numbers of tickets issued and
arrests made under the ordinance since October 30, 2001. On March 7 and 8, 2002, this Court held
a two-day evidentiary hearing concerning the City’s mootness argument.

Evidentiary Hearing

The evidence presented at the evidentiary hearing can be divided into the following three
categories: (1) the police department’s general method of informing officers of new policies and
procedures; (2) the department's efforts to inform officers of the non-enforcement policy; and (3)

the department’s post-October 30, 2001 enforcement of the panhandling ordinance.

Ill and 1V of the second amended complaint (the new counts). The district court has not yet ruled
on the motion to dismiss. This opinion concerns only the claims in the first amended complaint and
the plaintiffs’ first preliminary injunction motion.

3-


not support that assumption. The record contains no evidence that the non-enforcement policy was
announced at roll calls in twenty-four of the twenty-five districts. Moreover, despite knowledge that
police officers were still enforcing the panhandling ordinance, the City did not distribute copies of
the non-enforcement policy to individual police officers. The City argues that the reminders printed
in the Daily Bulletin notified officers of the non-enforcement policy. The Court concludes, however,
that there is a difference between a reminder printed in a daily newsletter along with various other
information and an individual document issued to each police office setting forth a change in
department policy. This conclusion is supported by the police department’s own procedure. When
the department issues a published directive, the department makes copies of the directive available
to individual police officers—the department does not simply rely on a notice printed in the Daily
Bulletin. (£.g., Hr’g Tr., Mar. 7, 2002, p. 27.) James K. Hickey, the former commanding officer
of the Policies and Procedures section in the Research and Development division of the City’s Legal
Department, testified that a published directive is the preferred method for communicating
information to individual officers because the published directive is then incorporated into the police
department’s directive system. (/d., pp. 74, 108, 126.) Accordingly, the Court concludes that the
record does not support the City’s contention that it effectively communicated the non-enforcement
policy to individual police officers.

The City next argues that the number of tickets and arrests is too small to constitute a
reasonable expectation that enforcement of the panhandling ordinance will continue. To support this
argument, the City compares the post-October 30 panhandling tickets and arrests to the total number
of tickets issued of arrests made by the Chicago police department. Specifically, the City states that

the ninety-four tickets and the fifteen arrest are insignificant when compared to the 91,000 tickets

-14-


1989), it must demonstrate that there is no reasonable expectation of future enforcement. Based on
this record, the Court concludes that the City has not met this heavy burden.

The City suggests that it has taken every possible step to effectively communicate its non-
enforcement policy to individual police officers. The Court disagrees. The City could have issued
a published directive instructing officers not to enforce the panhandling ordinance. The City
contends that it did not issue a published directive because it wanted to disseminate the non-
enforcement policy quickly. While that reason explains the initial decision to issue a facsimile
message, it does not explain why the City has not followed up the facsimile message with a
published directive. Hickey testified that it would take less than a month to issue a published
directive notifying officers that they should not enforce a repealed ordinance. (Hr’g Tr., Mar. 7,
2002, p. 100.) Alternatively, instead of issuing a published directive, the City could have printed
copies of the non-enforcement policy and made the copies available to individual police officers.
The City has not explained why it has not issued a published directive or distributed copies of the
non-enforcement policy to individual police officers in the four and one-half months that have passed
since it issued the October 30 facsimile message.

Conclusion

For the foregoing reasons, this Court recommends that the District Court DENY the City’s
motion to deny as moot the plaintiffs’ preliminary injunction motion. Any objections to this Report
and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this
notice. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). Failure to object constitutes waiver of the

right to appeal. Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330 (7th Cir. 1995).

-16-


as provided in Chapter 10-8, Sections 10-8-110 through 10-8-170,” (hereinafter “the panhandling
ordinance”).' It is undisputed that prior to October 30, 2001, the Chicago Police Department
regularly enforced the panhandling ordinance. (See Hr’g Tr., Mar. 8, 2002, pp. 227-28, 266-67.)
When enforcing the panhandling ordinance, officers either arrested individuals for panhandling or
issued a ticket. (/d., p. 218-19.) The police department also asked local businesses to display posters
that cite the panhandling ordinance and state that “Panhandling is Illegal.” (Def.’s Ex. 12; Hr’g Tr.,
Mar. 8, 2002, pp. 207-08.)’ On September 6, 2001, the named plaintiffs—three individuals who
panhandle in the City of Chicago—filed suit under 42 U.S.C. § 1983, alleging that the panhandling
ordinance violates their rights under the First, Fourth, and Fourteenth Amendments to the United
States Constitution. (Compl.  1.)° The plaintiffs seek a declaratory judgment stating that the
panhandling ordinance violates the First and Fourth Amendments, a preliminary and then a
permanent injunction barring the City from enforcing the panhandling ordinance, money damages
to be determined at trial, and costs and attorneys’ fees. (First Am. Compl. 1.) On October 22,
2001, the plaintiffs moved the district court to enjoin the City from enforcing the panhandling
ordinance. (Pls.’ Mot. for Preliminary Inj., Docket Entry #4.) The district court subsequently

referred the plaintiffs’ preliminary injunction motion to this Court.*

' Chapter 10-8 allows individuals to solicit charitable donations provided they have a permit.

? The record contains evidence that the posters were distributed to businesses located within
the police department’ s Eighteenth District. It is unclear whether the posters were displayed in other
districts.

3 The complaint also alleges that enforcement of the panhandling ordinance constitutes false
arrest under Illinois law.

4 After the referral, the plaintiffs filed a second amended complaint (adding two new counts)
and an amended preliminary injunction motion. The City moved the district court to dismiss counts

2.


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

EASTERN DIVISION
JESSIE E. THOMPSON, et al., )
Plaintiffs, ;
Vv. } No. 01 C 6916
CITY OF CHICAGO, } Judge Blanche M. Manning
) Magistrate Judge Nan R. Nolan
Defendant. )

REPORT AND RECOMMENDATION

This case has been referred to the Court for decision on the plaintiffs’ motion for preliminary
injunction. The Defendant City of Chicago subsequently moved to deny as moot the plaintiffs’
preliminary injunction motion. (Docket Entry #18.) Following the March 7, 2002 through March
8, 2002 hearing on the issue of mootness, the Court recommends that the District Court DENY the
City’s motion to deny as moot the plaintiffs’ motion because the City has not established that there
is “no reasonable expectation that the putatively illegal conduct will be repeated, and that there are
no remaining effects of the alleged violation.” Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir.
1988). In rendering this decision, the Court has considered the testimony of the witnesses, the
documents admitted into evidence, the stipulations, pre-hearing submissions and arguments of the
parties, and the relevant case law. Pursuant to Rule 52 of the Federal Rules of Civil Procedure, the
Court’s findings of fact and conclusions of law are set forth below.

Background
Section 8-4-010(f) of the Chicago Municipal Code states that “[a] person commits disorderly

conduct when he knowingly: (f) Goes about begging or soliciting funds on the public ways, except

D0CKE

MAR 2 2 ;


Voluntary cessation of putatively illegal conduct “render[s] a controversy moot where there
is no reasonable expectation that the putatively illegal conduct will be repeated, and there are no
remaining effects of the alleged violation.” Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir.
1988); see also Buckhannon Bd. and Care Home, Inc. v. West Virginia Dep ’t of Health and Human
Resources, 532 U.S. 598, 609 (2001) (“It is well settled that a defendant’s voluntary cessation of a
challenged practice does not deprive a federal court of its power to determine the legality of the
practice unless it is absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.”) (internal quotations and citation omitted). The defendant bears the heavy burden
of establishing mootness. United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953); Edwards v.
Illinois Bd. of Admissions to the Bar, 261 F.3d 723, 728 (7th Cir. 2001). One commentator has
noted that a governmental entity’s cessation of putatively illegal conduct “provides a secure
foundation for mootness so long as it seems genuine.” 13A Wright, Miller & Cooper, Federal
Practice and Procedure § 3533.7, at 353 (2d ed. 1984). Although courts treat governmental claims
of self-correction with more solicitude than similar action by private parties, Ragsdale, 841 F.2d at
1365, a governmental entity cannot moot a controversy “simply by professing that they have mended
their ways,” 13A Wright, Miller & Cooper, supra, § 3533.7, at 359, The governmental entity must

still establish that there is no reasonable expectation that the putatively illegal conduct will continue

the complaint is filed, and mootness concerns whether the plaintiffs have a personal stake in the case
throughout the litigation. Friends of the Earth, Inc. v. Laidlaw Environmental Serv., Inc., 528 U.S.
167, 189 (2000); Becker v. Federal Election Comm’n, 230 F.3d 381, 387 n.3 (1st Cir. 2000). The
City’s standing argument, however, focuses solely on the City’s efforts to cease enforcement of the
ordinance—events that occurred after the plaintiffs filed suit. Accordingly, the Court rejects the
City’s standing argument.

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issued for all offenses in the year 2001 and the approximately 80,000 arrests made for all offenses
in the last four months. The Court finds this argument unpersuasive because the City did not select
the appropriate comparison group. If the City wanted to show that enforcement of the panhandling
ordinance has decreased since it announced its non-enforcement policy, the City should have
presented statistics on the pre- and post-October 30 enforcement of the ordinance. Enforcement of
any particular statute or ordinance is likely to be dwarfed by the police department’s overall
statistics. It does not follow, however, that the enforcement of that individual statute or ordinance
is insignificant.

The only question that this Court must answer is whether the City has established that there
is no reasonable expectation that the panhandling ordinance will be enforced in the future and that
there are no remaining effects of the City’s former policy of enforcing that ordinance. In Ragsdale,
the Seventh Circuit concluded that the plaintiffs’ challenge of a specific regulation was moot based
on the fact that the state had not enforced that regulation in the five years preceding the suit.
Ragsdale, 841 F.2d at 1365. Similarly, in Jews for Jesus Inc. v. Hillsborough County Aviation
Authority, 162 F.3d 627, 629 (11th Cir. 1998), the Eleventh Circuit held that the plaintiff's challenge
to an airport’s literature distribution policy was moot because the defendant rescinded the policy
three years ago and had not enforced it since. In contrast, in this case, the City has enforced the
panhandling ordinance over 100 times in the last four months. Furthermore, the evidence establishes
both that enforcement of the ordinance has increased over this period of time and that enforcement
of the ordinance has occurred in a majority of police districts. Although the City does not need to

show that there is a zero chance of future enforcement, Moore v. Thieret, 862 F.2d 148, 150 (7th Cir.

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