Definition of an Ordinance vs. Definition of an Amendment

[Chatto]

I was one of the 200+ people from Grant Park that got arrested, and my court date is tomorrow. I was given 2 options by a lawyer from the NLG:

1. Get it over with, pay a fine
2. Fight it using 1st Amendment argument

Well, I didn't get arrested for nothing, so fighting it is the way to go. I have more of a background in tech stuff, and not law, so I have a few questions regarding the definition of an amendment and the definition of an ordinance.

1. It's obvious that the 1st Amendment was created before the park Ordinance, however, can a state/city government create a law/ordinance that is in conflict with a federal government law such as the 1st Amendment in the fist place? I know that state government and fed level laws are different. Since our freedom of speech and peaceable assembly is guaranteed on a Federal level, it seems like a city or state court is less likely to support a federal law over a state/city Ordinance. I know that this isn't the first time a state and federal law have been in conflict however. It's a bit of a strange place to be in considering one of the very things we are against is the very same thing that should protect our rights by definition.

2. What is the scope of an Ordinance in the first place, is it allowed to overrule state and federal laws? It seems like we're trying to fight this ordinance on a Federal level when we should be fighting it on a state level to begin with. In this case, is using the 1st Amendment argument the best course of action, or should we be looking for other flaws in the Ordinance?

[Grimaldy]

Hi Chatto,
I hope everything went well for you today in court.

Some things you kind of need to be aware of however:
First it is great that you want to fight for your rights as a member of Occupy Chicago, but you need to remember this will all be over one day and your life will go on. Ordinance violations are very low on the list as crimes rank, but it will be there and follow.you around. Many schools ask if you have every been arrested and convicted when you apply. Many employers do as well and if you are looking at a good well paying job, guess who the employer will hire if he has to choose between someone who has a record and someone who does not?

Second, the issue of First Amendment versus Ordinance is the wrong way to state the problem. It is a legal question and one that has no easy cut and dry answer for you. IT is very unlikely the judge (or hearing officer) in an ordinance violation case is remotely interested in that particularly arcane area of the law. And probably won't want to listen to anything you or your lawyer might have to say about it. You could get lucky as there are some very bright guys and women on the bench over there but I wouldn't bet on it.

Your best bet is to contact the local Bar associations like Chicago Bar, Illinois State Bar and see if you can find a maverick lawyer who would be willing to invest the time and effort working through your case. They all have lawyer referral programs with some pretty talented people. Unless you can find an Atticus Finch you are really going nowhere by yourself.

Best of luck,

[Chatto]

Hi Grimaldy,

As for job/school related stuff, I'm not too big of a money chaser and am pretty set for employment, so having a record isn't going to hurt me too bad as of now. Fighting for our right to occupy and contributing to actually changing the system as well as the fabric of society is a lot more important than employment to me at the moment. I'm still rather young, so there's definitely the possibility of this coming back to bite me in the future, but that's something I had in mind when I decided to sit in a tent and that was a risk that I think is worth it.

As for the hearing, it went pretty smoothly. The lawyer from the NLG handled pretty much everything, and we filed for dismissal of the charges on the grounds of First Amendment rights, which I'm pretty happy about. I did have the option to "get it over with" and do some community service, but that seemed like it would be half-assing why I got arrested in the first place. I'll have to go to court again next month for a hearing, and maybe more after that, but that's all part of the process of protecting your rights in the current legal system, nobody said it would be easy.

I'll definitely remember to contact the Bar for a lawyer after the hearing in February, thanks for that info! Based on the sheer population of this movement, I'd be surprised if it hasn't at least a few maverick lawyers that would be willing to take up our case.

[Grimaldy]

Hi Chatto,

I believe there are quite a few lawyers out there who would quite willingly be interested in taking your cases pro bono (for free). There is an ethical rule governing lawyers however that you have to approach the lawyer, they can not contact you. Hence the reason I tell you to contact the local Bar Associations. Their lawyer referral services would likely know, or could find those lawyers for you.

Now its is good work that your lawyer filed a motion to dismiss on First Amendment grounds; that preserves the record for appeal. That means that the trial court below does not have the last word in the matter. The difficulty is that the trial court must find you guilty in order to preserve your right to appeal. If you plead guilty you give all of those rights up except what happens at the plea and sentencing hearing.

Talk with your trial lawyer about appeal, what it means, so forth and so on.

Good Luck to You!