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HomeMy WebLinkAbout3058_001• AGENDA Meeting Location: Mount Prospect Senior Center 50 South Emerson Street CALL TO ORDER - ROLL CALL Meeting Date and Time: Tuesday, March 26, 1996 7:30 P.M. ACCEPTANCE OF MINUTES OF MARCH 12, 1996 Ill. CITIZENS TO BE HEARD IV. EFFECT OF HARVARD COURT DECISION ON MOUNT PROSPECTS YOUTH AND GANG -RELATED OFFENSES ORDINANCE Earlier this year, the Second District Court of Appeals handed down its decision in the Harvard Gang Suppression Ordinance case. That decision, for reasons enumerated in the attached Opinion, invalidated several Sections of the Harvard Ordinance and because there was no Severability Clause, ultimately ruled that the entire Ordinance was invalid. The attached Legal Analysis by Village Attorney Everette Hill and his associate, Ms. Karen Melnik, indicate that the Harvard decision does impact the Mount Prospect Youth and Gang -Related Offenses Ordinance in two areas. The attached legal memorandum and analysis points out the issues and suggests how to redraft specific Sections of the Ordinance. Even with this redrafting, Mr. Hill feels that there is some likelihood that the Ordinance could be challenged in the future. The purpose of Tuesday evening's discussion is to have Mr. Hill explain the impact of the Harvard decision and to review his proposed changes. The Village Board will need to consider whether it is comfortable with those changes or whether the invalid Sections should be stricken altogether. Mr. Hill and appropriate staff will be in attendance to facilitate discussion and answer questions. NOTE: ANY INDIVIDUAL WHO WOULD LIKE TO ATTEND THIS MEETING BUT BECAUSE OF A DISABILITY NEEDS SOME ACCOMMODATION TO PARTICIPATE, SHOULD CONTACT THE VILLAGE MANAGER'S OFFICE AT 100 SOUTH EMERSON, MOUNT PROSPECT, ILLINOIS 60056, 8471392-6000, EXTENSION 5327, TDD #8471392-6064. The City of Chicago, through the Department of Aviation, is currently implementing an automated noise monitoring system within many of the communities surrounding the Airport. The Village nfMount Prospect has been identified for two noise monitoring stations inthis initial phase. These monitoring stations will help to identify areas within the Village which are severely impacted byairplane noise and, more importmnUy, will help to identify individual flights which do not follow established flight path rules. The flight path rules are designed to take airplane traffic out over areas of low or no residential populations such as industrial parks, forest preserves and expressways. One identified reason for excessive airplane noise isthe fact that pilots do not observe these flight path rules. By being able to monitor individual Oighba, it will be possible to identify offending pilots and seek correction from specific airlines. This iomnimportant initial step ingetting ohandle onthe overall noise problem. Staff would like to present on overview of the noise monitoring program and discuss the proposed station locations. The attached information should provide egeneral overview. Mr. Gbah|will beonhand tofacilitate discussion and answer questions. With this package, each Village Board member is receiving the revised list of potential Deferred Committee pfthe Whole discussion items. Please allocate your votes (equal tothe total number ofitems unthe list) iothose items which you give the highest priorities. The completed list should bebrought with you hoTuesday evening's Committee of the Whole meeting. 8bsff will tabulate the naeu|bs and present same at the meeting. Discussion and finalization of the list should be accomplished pnTuesday evening. VII. MANAGER'S REPORT V1|L ANY OTHER BUSINESS D( ADJOURNMENT Village of Mount Prospect Mount Prospect, Illinois INTEROFFICE MEMORANDUM 4R, TO: MAYOR GERALD LFARLEYAND BOARD OFTRUSTEES FROM: VILLAGE MANAGER DATE: MARCH 22,1996 SUBJECT: PRIORITIZING DEFERRED ITEMS LIST SUBJECTS The following subjects were previously discussed at the March 12.1996 Committee of the Whole as pobanUe| future COW discussion items. A bobd of some 29 potential subjects were identified. Upon review qfthe total list, itwas determined that mnumber of items will be automatically coming backfor discussion based on previous commitments or generally recurring requirements; ie.. Budget Hearings. Staff was instructed to separate those items out of the overall |iaL A revised list of permissive subjects would then be created and each Board member would assign priorities through a voting system to some or all of these subjects. The mandator/and permissive list ofsubjects follows: ITEMS ALREADY SET TO APPEAR ON FUTURE COW AGENDA (NO VOTE) Northwest Central O System Commercial Vehicles in Residential Neighborhoods Weller Creek Bank Stabilization Six Month Budget Reviev/9ne-BudgetVVorhohop\ Annual Budget Hearings GIS Consultant's Report Village Hall Consultant's Report Review Towing Contract Review Impact ofGang Suppressing Ordinance (9/96) ITEMS THAT COULD BE THE SUBJECT OF A FUTURE COW DISCUSSION (BY VOTE 1. Review ofCurrent Two -Can Refuse Disposal 2. Busse Road Widening 8. Wisconsin Central Commuter Line - Mitigation Plan 4. General Emergency Preparedness 5. Carbon Monoxide Detectors (in all homes) 6. Creating eCitizen Survey Regarding Quality ofMunicipal Services 7. Futuna Downtown Redevelopment Options 8. Review ofChapter 5(Appointment and Reappointment ufBoard and Commission members; Possible Term Limits and Rotation ofChairmanships) Q. Review ofOpen Meetings Act Requirements 10. Review of Current Conflict of Interest Laws 11. Review ufRoberts Rules ofOrder (Parliamentary Procedure with regard toVillage Meetings; including specific requirements set for in Village Code) 12. Resolve Questions ofMayoral Veto Power 13. Policy Regarding Jurisdictional Transfer and Future Improvements hoCamp McDonald Road 14. Seceding Jurisdictional Transfer o[Seminole/ Willow Road toProspect Heights 15. Review of Vehicle Replacement Policy 16. Review ofStreet Improvement Program 17. Discussion regarding Prohibiting Signs in Public Rights -of -Way 18. Discuss Impact ofFederal Mandates on Local Government (Tenth Amendment) 19. Review ofAnnexation Opportunities ' 20. Review Density Requirements and Residential Redevelopment Opportunities 21� Review Feasibility ofaPolice Traffic Unit Atotal of nine mandatory items were identified and 21 permissive subjects were identified. According to the rating scheme agreed to by Board members, a total number of votes equal to the number ofpermissive subjects would be available to distribute among the permissive topics. In this case, each Board member has o total of 21 votes to allocate among the 21 topics. An individual Board member could choose to cast all 21 votes for a single topic or cast one vote for each subject or break up the 21 votes any way he/she sees fit. After all of the votes are ba||ied, subjects would be ranked in priority by the number of votes received. Conceivably, some subjects may receive novotes. The Board can then look at the prioritized list and confirm the rank order ormake adjustments by mutual agreement. The Board may wish to keep the entire list orsuggest that only e certain number of top vote getting subjects remain listed on the Deferred Items list. Other subjects could be brought forward as time permits orifpriorities change. The easiest way to e||000be votes would be to use a simple dash eyobam nrifyou are allocating all of your votes to a relatively small number of items, then you can simply write inthe numerical value ofeach. Remember, the total number ofvotes cast over the entire permissive subject list cannot exceed 21. Please bring your tally sheet with you to Tuesday evening's meeting. Staff will collect the sheets mtthe beginning ofthe meeting and collate same. The results will be reported out at the eppnnphotm time during the meeting. Ifyou have any questions urcomments, please donot hesitate tocontact myoffice. S MINUTES COMMITTEE OF THE WHOLE MARCH 12, 1996 Iw CALL TO ORDER, Mayor Farley, called the meeting to order at 7:32 p.m. Present at the meeting were: Trustees George Clowes, Timothy Corcoran, Richard Hendricks, Paul Hoefert, Michaele Skowron and Irvana Wilks. Also present were: Village Manager Michael Janonis, Assistant Village Manager David Strahl, Fire. Chief Edward Cavello, Police Chief Ronald Pavlock, Finance Director David Jepson, Deputy Fire Chief Steve Dumovich, Police Sergeant Kevin Condon, Public Works Director Glen Andler and Doug Edmonds, Executive Director of Northwest Central Dispatch. IL MINUTES Acceptance of Minutes from January 23, 1996. Motion made by Trustee Clowes and Seconded by Trustee Wilks. Minutes were accepted unanimously. Minutes of February 13, 1996. Motion made by Trustee Wilks and Seconded by Trustee Hoefert. Trustee Clowes requested a modification to his comments on page two. Minutes were approved with revision. Mayor Farley abstained. Ill. CITIZEN3:Q< BE HEARD None. IN Doug Edmonds, Executive Director for Northwest Central Dispatch, spoke. He stated this,system In place is virtually the same as was put into place in 1972. It is quite aged and has become a fragmented system due to attempts to band-aid the system to keep it operational. He stated that much of the time is spent addressing ongoing problems that occur such as the ones outlined by Sergeant Condon. He stated the original system has served its purpose well, however, its shortcomings are much more + pronounced than in previous years due to the volumes of traffic and other problems. He stated the impending need to file by the March 31 deadline is because the frequency may not be available at the next filing in October of 1996. A review by a consultant has also supported the need for the upgrade to the 800 MHz system because of its proven technology and it is used by other towns successfully. He stated the recommended funding option to finance the system upgrade is to increase the telephone line surchargefrom $.30 to $.75 per line. He stated that $:75 was originally approved by Referendum but the communities chose to only charge $.30. He stated that the $30 charge is significantly lower than other area systems and the increase to $.75 per line would be comparable and, in some cases, still less than many other system charges. Village Manager Janoni!s,stated that the other Village and City Managers of the member communities are the Board of Directors and they have been working with the technical staff to review the system and look at different options thoroughly over a long period of time. Doug Edmonds stated that Buffalo Grove and Arlington Heights are on one frequency; Mount Prospect, Elk Grove 'Village and Prospect'` Heights are on another frequency. The communities are separated into the frequencies based on cumulative population totals'. He stated that system will continue to have problems and could put Officers at risk and create unacceptable consequences if it is allowed to continue in its current fashion. General comments of the Board members included the following items: Some Board members expressed a concern that such a large expenditure should have been discussed previously. There was also concern that bringing this for discussion with the strict time frames which have been outlined puts the Board in a difficult position. There was also concern that a review of various options should be provided to the Village Board` and background information concerning the justification for the competitive bidding process to be by-passed in this instance. 3. There was also additional information provided to the Board members concerning technical aspects of the recommended system. Also, a description of the Impact upon the system if only some of the current participants approve the upgrade was outlined. Discussion also centered on what exactly was needed from the Village Board at this meeting in terms of commitment for future consideration of spending the dollars to upgrade the system. Finally, Boardmembers requested additional history of data requests and demands on the system along with projected growth factors and a breakdown of all costs associated with the current system and possible upgrades. A detailed cost/benefit review should be provided to Board members for consideration. This cost/benefit analysis would be reflective of each available vendor. Doug Edmonds responded to many of the concerns of the Board members. He also stated that it is unlikely that they will be able to reserve '11 channel frequencies in the future if they do not apply in this round. He stated the reason that Motorola is the most likely vendor is that other systems ars proprietary and Motorola offers the best system available and has proven technology. Furthermore,' the Dispatch System has already invested in new Motorola consoles which may not be compatible with other vendors. The consultant and vendor are in the process of designing the new system, therefore, it is unlikely that there will be any incompatibility problems. He also stated that if some towns do not approve the upgrade, there would be; the requirement to devote single dispatchers to Individual towns utilizing the old systems, thereby, costs would undoubtedly increase for the service. By filing the application, municipalities are not obligated to fund the new system, however, there is a time frame that is established which a funding commitment must be demonstrated or the FCC will reallocate the frequency that was reserved to someone else. Consensus of the Village Board was to participate in the application process. Board members also understand that the application process may obligate there for future funding, however, a final decision on the funding will not be made until' a later date. Trustee Hendricks abstained from the consensus due to a professional relationship with Motorola. 4 V. C M I"t"iillEE P THE WHOLE DEFERRED ITEMS REVIEW Manager Jannis stated that he would request the Board prioritize Committee of the Whole topics and he wanted to set up a system which would be used to put items upon the list from the Village Board, His goal this ,evening is to get consensus of the Board as to which topics should be on the list or taken off the list: A summary of the Committee of the Whole topics was provided as follows: Commercial Vehicles Discussion Weller Creek Bank Stabilization Busse Road Widening Refuse/SWANCC - Two Can Limit Discussion DowntownNiliage Hall Status Six Month Budget Review/Pre-Budget Workshops Wisconsin Central Discussion Emergency Preparedness Discussion Citizen Services Survey Carbon Monoxide Detectors Signs in the Rights -of -Way Downtown Redevelopment Review of Chapter 5 of the Municipal Code - Boards/Commissions ©pen Meetings Saturday Workshop Roberts Rules of Order Parliamentary Procedure Workshop Mayoral Veto GIS Presentation Camp McDonald Improvement/Jurisdictional Transfer Discussion Seminole Road Jurisdictional Transfer Discussion and Improvements General Discussion on Jurisdictional Transfer of Village Streets Vehicle Maintenance Replacement Program Village Street improvement Program Tenth Amendment Issues -Unfunded Mandate Resolution at the Federal Level TowingContract Discussion Annexation Opportunities Density/Redevelopment Opportunities Review of Gang Suppression Ordinance Police Traffic Unit Discussion 5 Consensus of the Village Board was to request staff take the items off of this lit which are already scheduled or are subjects which are part of the normal annual course of business. Such items would Include the Budget Hearings and the Six Month Financial Review, etc. Staff is to provide a revised list to Board members for their review. Board members will have the number of votes equal to the number of items remaining on the list. Therefore, Board members may use any combination of votes to weigh topics they feel should be discussed. 'Once the Board members have voted on the topics,; the list will again be provided to the Villagestaff for a summary list and redistributed to Board members for further discussion. VI. MANAGER'S REPORT , Manager Janonis reminded the Village Board and the public that the March 19 Board meeting is changed to March 20 due to the Primary Election taking place on March 19. VII. ANY OTHER BUSiNESS Trustee Skowron provided a follow-up on the Parliamentary Procedure question which 'arose the week before, She stated that it was her understanding there is no permission requirement, necessary from the person that made an original motion in order for the original motion to be amended. Trustee Wilks stated that even though there is no need for permission from the original person making the original motion, it would be a courtesy-which had been granted in the; past for amendments to motions. Trustee Clowes requested consideration in the future that a motion to adjourn: procedure be implemented instead of the chair determining when to adjourn. Vill. ADJQURNME�NT The meeting was adjourned at 10;21 p.m. Respectfully submitted; Da��) DAVID STRAHL DSlrcc Assistant Village Manager MAR 14 '96 10:31AM ARNSTEIN LEFIR ARNSTEIN & LEHR 12o SOUTH RNERSIVE PLAZA • SUITE 1200 P.2 HOFFMM ESTATES, Iwwae WEB4' FA1M 86=K FLOW^ MILVAUKEE,W000M8IM Re: Effect of Harvard decision on Mt. Prospect's Gang Ordinance D T IllinoisAttached please find a memorandum prepared by our prosecutor, Karen WIN with respect to how the p+ F W court's interpretation of the City of Harvard' Gang Ordinance affects • Gang suppreasslon Ordinance. Copy of the Harvard decision, I think Karen's discussion is a good One and generally points up the signitica determinations of theAppallats Court. Please bear In mind that this decision affects onl 23.608 ,,rohlbfts the throwing of gong • 2anGiven the lanqua a of the • the wearing or display of certain gang type Rem$. remain Intact. Appellate Courtdecision, it appears that with respect FUr choice is to eliminate,this paragraph altogether toamend it as• • Ytticletr anyperson to publicly Additionally, with respect to 23.6088 our choice again is to delete this paragraph or to amend it as follows: "it shall be a violation of this Article for any person to wear or display c CHICAGO, ILLINOIS 80608-3815 (312) 878.7100 EVOMW M. KAI, Jr. (312) 879-7874 FAX (312) 876 -USB FOUNDED 1893 March 14, 1996 Mr. Michael Janonis Village Manager VOlage of Mount Prospect 100 S. (Emerson Street Mount Prospect, Illinois 60056 P.2 HOFFMM ESTATES, Iwwae WEB4' FA1M 86=K FLOW^ MILVAUKEE,W000M8IM Re: Effect of Harvard decision on Mt. Prospect's Gang Ordinance D T IllinoisAttached please find a memorandum prepared by our prosecutor, Karen WIN with respect to how the p+ F W court's interpretation of the City of Harvard' Gang Ordinance affects • Gang suppreasslon Ordinance. Copy of the Harvard decision, I think Karen's discussion is a good One and generally points up the signitica determinations of theAppallats Court. Please bear In mind that this decision affects onl 23.608 ,,rohlbfts the throwing of gong • 2anGiven the lanqua a of the • the wearing or display of certain gang type Rem$. remain Intact. Appellate Courtdecision, it appears that with respect FUr choice is to eliminate,this paragraph altogether toamend it as• • Ytticletr anyperson to publicly Additionally, with respect to 23.6088 our choice again is to delete this paragraph or to amend it as follows: "it shall be a violation of this Article for any person to wear or display c MAR 14 '96 16:31AM ARNSTEIN LEFR P.3 Mr. Michael Janonis March 14, 1996 Page 2 clothing, Jewelry or tattoo, which has been made or altered to state or show hnW4.WW names or9jW Insignia." If you have any questions, please contact me. EMHAdd Enclosures 88878-i --iNAR 14 '% i® 31f 1 ARNSTEIN 1EHR TO: Everette M. Hill, Jr, FROM: Karen S. Melnik DATE: February 2, 1996 RE: Harvard Gang Ordinance P.4 On January 6, 1996, the Illinois Appellate Court, Second District, handed down Its o inion on the constitutionality of the gang suppression ordinance enacted by the City of l� Harvard. In that decision, the appellate court determined that the pardon of the Harvard Ordinance, which reads as follows: t e s ai a r r si i or appear to or ated massages through bee ged in municating the use of hand signets or ether means of communication, was "facially overbroad and violates constitutional guarantees of free Speech-" The court also ruled that the entire ordinance was invalid because it did not contain any Provision for severing those portions found to be invalid,' in the H ry case, the defendant was convicted of violating the City's gang activity ordinance after having been arrested for wearing a six -pointed star in open view an s bol and in public. The defendant admitted he was not Jewish, wore the star as nt s motion knew he was violating the ordinance. During a trial court hearing a defendants ng I It should be noted that Mount Pro ospue and rgeg relateddinance 2rafieses` be ot 23 of the Village Code and enumerating Youth any portion of that ordinance contain a severing provision. sion i di cat struck dawn, the !_ . ry rc ,decision indicates that the entire ordinance would be declared invalid. MF14l '96 10:32PJI RRMMIN LEFIR P.5 to dismiss, a motion which was denied by the trial court Harvard Police officers ackrMledged that „gang 00IOW and 090M symbols" Include a wide and undefined range of clothing and jewelry and that, in most Callus, these colors Or symbols are not necessarily gong related. The trial court accepted the namp?Ang construction of the ordinance which the City of Harvard advanced pursuant to which the City stated that the use of the word `known' in the ordinance implies that the City must prove that the defendant acted with "prior knowledge" orhad been previously warned that he was Wearing gang colors, emblems or ot other insignia. The trial court found that PluInder this reasonable construction, the ordinance is sufficiently clear to avoid the danger of arbitrary enforcement." The appellate court found that the ordinance was overly broad because it prohibits a substantial amount of constitutionally protected speech. Even with the narrowing construction advanced by the City, the appellate court found that the Ordinance was facially invalid. The appellate court slated that the ordinance is facially overbroad If it, I criminalizes a substantial amount of protected behavior, when judged in relation to the IsWe 'ptainly legitimate OW990"; and 2. is not susceptible to a limiting construction that avoids constitutional problems. With the Harvard ordinance, the appeiiate, court found that the ordinance was overty broad and could not be rescued by a narrowing construction. the court found that the ordinance prohibits notVang members from engaging in symbolic speech, which is protected by the first arpendment, citing to Cases holding that students wearing black armbands to protest U.S. involvement in the Vietnam War, jackets carrying vulgar anti -draft massages and wearing an American flag patch as a comment on Persian Gulf military buildup, wearing MAR 14 196 W a 32AM ARNSTEIN LEHR P.6 armbands signifying membership in the American Nazi party and wearing the hoods and robes that promote or Identify indlvduals as members of the Ku Klux Klan and even wearing the identifying colors and symbols of certain street gangs were all forms of protected symbolic speech; the Appellate Court found that the ordinance prohibits constitutionally protected symbolic speech. The Appellate Court stated that the record revealed that 'gang colors" and `gang clothing" are often worn by nongang members as a form of symbolic speech intended to convey a message unrelated to the promotion of gangs. For example, Bulls jackets. The ordinance was found to be directed at a wide variety of symbolic speech which is not inherently gang related and the subject matter of the ordinance isnot merely broad, but open-ended and potentially limitless.'z The court also found that the ordinance prohibits nongang members from engaging in religious expression. For example, wearing a six -pointed star to express their faith in Judaism. Finally, the Appellate Court noted that any attempt to narrow the construction of the ordinance as a ban on "fighting words" would Yuri afoul of the first amendment as it is viewpoint based discrimination. The court stated that the fighting words doctrine is a "narrow one, limited to personally abusive epithets which, as a matter of common knowledge, are likely to provoke the average person to retaliation and thereby cause a breach of the peau." The court stated that there might be situations in which the display of gang colors or symbols was so inherently personal that it might amount to fighting words, "a flat prohibition on the display of env gang symbols goes well beyond this situation and infringes on substantial amounts of constitutionally protected expression. 21iere, the court specifically noted that the ordinance does not define, list or explain what constitutes a "gang symbol" or 'gang colors" and does not even define "gang." .MAR 14 '96 10:33AM ARNSTEIN LEHR At the end of its opinion, the court noted that it recognized the seriousness of the City's gang problems. The dart suggested that Harvard was not helpless to control gang activity: It may punish criminal conduct more harshly where it is; gang motivated; may prohibit active, intentional and knowing promotion of criminal gang activity; and may prosecute gang "communication" that constitutes disorderly conduct because it rises to the level of fighting words which provoke a breach of the peace. After review of the HaMard decision and Section 23.608 of Mount Prospect's gang ordinance, it appears that Mount Prospect will have similar problems in enforcing its ordinance. Mount PPospecrs ordinance also appears to prohibit constitutionally protected symbolic apeech, The ordinance does not define what constitutes a "gang sign" or "gang names, insignia or informatlon." Defining these terms is obviously problematic because they are, as theigUWd court noted, ever changing and potentially limitless. Moreover, even if those terms were defined, there is still a problem that the ordinance prohibitions will be found to be impermissible viewpoint based discrimination. The Hary court was clear that the gang activity must go beyond just expressing a viewpoint in order to be restricted or prohibited. MAR iS '96 12:29P�rsTPLW> E - 3 (r`1� 0 � No. 2-94-1458 IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT THE CITY OF HARVARD, Plaintiff -Appellee, V. i L ED V i I Alp'" Appeal from the Circuit Court of McHenry County. No. 94 -OV -690 TODD GAUT, Honorable Conrad F. Floeter, Defendant -Appellant. Judge, Presiding. PRESIDING JUSTICE McLAREN delivered the opinion of the court: The plaintiff, the City of Harvard (City), has enacted an ordinance which reads, in full; "26.04 Gang Activity It shall be unlawful for any person within the Citj to wearknown an colors, emblems, or other insignia, or appear to be engaged in communicating gang -related messages through the use of hand signals or other means of communication." (Emphasis added,) The defendant, Todd Gaut, was charged with wearing a gang symbol, a six -pointed star, in violation of the City of Harvard's gang activity ordinance. He moved to dismiss the charges, arguing that the language of the ordinance emphasized above is unconstitutionally vague and overly broad. The trial court denied the motion, convicted the defendant, and sentenced him to supervision. On appeal, the defendant again raises his constitutional challenges to the ordinance. MAR 18 '96 12:30PIl ARNSTEIN & LEHR No. 2-94-1458 rN, We reverse the defendant's conviction and hold that the portion of Harvard's gang activity ordinance involved in this case is facially overly broad and violates constitutional guarantees of free speech. Because there is no provision for severing this part of the ordinance from the remainder, the entire ordinance must be invalidated, On March 8, 1993, the defendant, who was 13 years old at the time, wore d six -pointed star in open view in public. When he saw police officers, he tried to hide the star. The defendant told the officers he belonged to the "Action Packed Gangster Disciples." He also acknowledged that he was not Jewish; he wore the star as a gang symbol and not a religious symbol; and he knew he was violating the ordinance. On March 8, 1993, the defendant was arrested and charged with violating Harvard's gang activity ordinance, The City of Harvard issued a complaint alleging that the defendant violated the ordinance in that he "unlawfully wore a known gang insignia, that being a six point star on a neck chain, displayed in public view." In response to the defendant's motion to dismiss, the City observed that the ordinance contains the word "known" and that, in enforcing the ordinance, the Harvard police department construes this language as limiting the reach of the ordinance to a person who actually knows that he or she is wearing gang colors or insignia. The City attached an affidavit* of the arresting Harvard Police Officer Leslie Lunsmann to its response to the defendant's motion to dismiss. In the affidavit, Lunsmana states that he is trained and certified in street gang identification and anti -gang MAR 18 196 12:30PIl ARNSTEIN & LEHR P.4 NO. 2-94-1458 education and that the defendant attended a lecture on gang crime he gave at Harvard High School. Lunsmann stated in the affidavit that during the lecture he showed the students a six -pointed star and told them it was a Symbol of the Gangster Disciples street gang. , He told the students that the gang activity ordinance forbids knowingly wearing gang symbols, colors, or insignia. Further, the City argued that the knowing display of such gang symbols is unprotected by the first amendment (U.S. Const., amend I) because, insofar as it is communication, it is tantamount to "fighting words." At the hearing on the defendant's motion to dismiss, the trial court recognized that the defendant maintained that the ordinance is facially unconstitutional; however, the trial court limited the hearing to how the ordinance was enforced in the defendant's case. Despite this limitation, we find that much of the evidence presented at the hearing is relevant to whether the ordinance is facially overly broad. In particular, the hearing sheds light on whether the law is amenable to a narrowing construction. Officer Lunsmann stated during the hearing that he is primarily responsible for instructing the department on the administration of the gang activity ordinance. In this role, the officer defined "street gang" as a group of individuals who are together for malicious, although not necessarily criminal, activity, more specifically, he explained that most midwestern street gangs affiliated with either the People Nation or the Folk Nation, which are not "gangs" themselves, Officer Dean Burton, who also testified at the hearing, could not recall the department's -3- MAR 19 '96 12:30PM ARNSTEIN & LEHR No. 2-94-1458 P.5 exact definition of "gang," but stated that the definition stressed the wearing of distinctive emblems or colors as identification and the customary involvement in criminal activity. Both officers stated that the department's policy is not to arrest a person for violating the ordinance unless the person previously has been warned. They stated that the main purpose of the ordinance is to discourage gang activity, including attacks by gang members on people whom the attackers believe are wearing the colors or symbols of rival gangs. Burton estimated that the department had enforced the ordinance about 100 times; in every case, the arrestees had prior knowledge that they were wearing or using prohibited gang clothing, insignia, or signals. Lunsmann stated that, to his knowledge, the ordinance had not been enforced against anyone who did not have specific prior notice that the clothing or symbols involved were within the gang activity ordinance. In some cases, including the one here, the prior warning was not directed specifically at the offender, but was included in one of the officer's lectures at the City's schools. in Burton's words, the department implemented the prior warning policy because "you can't just arrest somebody that is walking down the Street --an average citizen for wearing a --say *** black and gold." Rather, enforcement of the ordinance is to be limited to "gang members and people that are affiliating themselves with gangs. That's what the ordinance is for." Both officers acknowledged that the six -pointed star is a symbol of Judaism as well as of the gangs affiliated with the Polk Nation, They stated that, if a Jewish person ware a six -pointed --4- MAR IS '96 12:31PM ARNSTEIN & LEHR No. 2-94-1458 P.6 star after being warned, the police would arrest that person if they had evidence he was a gang member. Similarly, the officers agreed that walking down the street with one shoelace untied can be a gang symbol and that they would warn a person with untied shoelaces, if they had evidence of gang affiliation, such as wearing known gang colors. However, both officers acknowledged that "gang colors" and "gang symbols" include a wide and undefined range of clothing and jewelry and that, in most cases, these colors or symbols are not necessarily gang related. According to officer Lunsmann, the best- known gang "colors" were black and gold (Latin Kings and other People Nation affiliates) and blue and black (Folk Nation affiliates). However, Lunsmann acknowledged that black and gold are also the official colors of Harvard High School. He further acknowledged that blue and black clothing may be a gang symbol, particularly when displayed via a Duke university baseball cap, which is also a Folk Nation emblem. However, people with no known gang connections wear Duke hats and other blue -black combinations. Moreover, numerous colors may be associated with or used by one gang. Lunsmann agreed with defendant's counsel that "all of the colors under the rainbow can indicate a gang in the right combination" and that "the list is endless." According to the officers, other examples of clothes used as gang symbols include Raiders caps, Bulls jackets and caps, Converse shoes, one untied shoelace, and caps that are tilted to the left or to the right. The officers also conceded that the list of gang symbols or jewelry also includes designs or emblems that are not necessarily gang -5- MAR le 196 12:31PM PP.NSTEIN & LEHR No. 2-94-1458 Z related. According to Lunsmann, other common gang insignia include the six -pointed star, the " (f live -pointed star, backwards Swastika, Playboy bunny head, Spanish cross *** [and] winged heart.,, The trial Court denied the motion to dismiss and entered a written order, which held that the use of "known" in the ordinance implies that the City must prove the defendant acted with "prior knowledge" and that, under this reasonable construction, the ordinance is Safficiently clear to avoid the danger of arbitrary enforcement. The trial court also found that the City has a legitimate interest in protecting people from organized crime, The trial court acknowledged that, while the ordinance might have been more "artfully drafted," the law is valid as written. Accordingly, the trial court found the defendant guilty of violating the gang activity ordinance and sentenced the defendant to supervision, fines, and costs. The defendant timely appeals. We agree with the defendant that the gang activity ordinance is unconstitutionally overly broad because it prohibits a substantial amount of constitutionally Protected speech. We hold that the ordinance is facially invalid, even with the narrowing constructions that the City advances. Also, we reject the City's assertion that the ordinance is a permissible ban on "fighting words," Initially, we note that, generally, a party does not hav6 standing to assert the rights of others not before the court, (Broadrick v. O,<Iahoma (1973), 413 U.S. 601, 610, 37 L. Ed. 2d 830, 839, 93 S. Ct. 2908, 2915.) However, the "overbreadth" doctrine is an exception to the general rule.Arcades, -6- MAR le '96 12:32PM ARNSTEIN & LEHR No. 2-94-1458 r-. Inc. (1985), 472 U.S. 491, 503-04, 86 L. Ed. 2d 394, 405-06, 105 S. Ct, 2794, 2801-02.) Because of the potential chilling effect on the protected activities of others, a defendant who is prosecuted for speech or expressive conduct may challenge a law on its face, whether or not his activities are protected by the first amendment. Broadrick, 413 U.S. at 610, 37 L. Ed. 2d at 839, 93 S. Ct. at 2915. our supreme court stated that "(t)he doctrine of overbreadth is designed to protect first amendment freedom of expression from laws written so broadly that the fear of punishment might discourage people from taking advantage of that freedom." (R12P—le v. Anderson (1992), 148 111. 2d 15, 26.) A law regulating conduct is facially overly broad if it: (1) criminalizes a substantial amount of protected behavior, when judged in relation to the law's "plainly legitimate sweep" (Broadrick, 413 U.S. at 615, 37 L. Ed, 2d at 842, 93 S. Ct. at 2917-18); see also 29pple v. Holder (1983), 96 Ill. 2d 444, 450); and (2) is not susceptible to a limiting construction that avoids constitutional problems (Board of Air ort Commissioners v. Jews for Jesus, Inc. (1987), 482 U.S. 569, 574, 96 L. Ed. 2d 500, 507, 107 S. Ct. 2568, 2572). After considering the possible legitimate application of the ordinance, we believe that the ordinance here is substantially overly broad and cannot be rescued by a narrowing construction. The ordinance prohibits gang members from wearing gang colors, emblems, and insignia. However, it also prohibits nongang members from engaging in symbolic speech, which is protected by the first amendment (U.S. Const., amend. 1). (Texas v. Johnson (1989), 491 -7- MAR 18 '96 12:32PM ARNSTCIN a LEHR No. 2-94-1458 P.9 U.S. 39 7, 404, 105 L. Ed. 2d 342, 353, 109 S. Ct. 2533, 2539.) "Speech," as protected in the United States Constitution, includes not only written or Spoken words but also a considerable amount of expressive conduct, often called "symbolic speech." (Johnson, 491 U.S. at 404, 105 L. Ed. 2d at 353, 109 S. Ct. at 2539; S2nSf_a. Washington (1974), 418 U.S. 405, 41 L. Ed. 2d 842, 94 S. Ct. 2727.) Nonverbal conduct implicates the first amendment if the actor intends to convey a particularized message and it is likely the message will be understood by those who view it. Johnson, 491 U.S. at 404, 105 L. Ed. 2d at 353, 109 S. Ct. at 2539; $pence, 418 U.S. at 410-11, 41 L. Bd. 2d at 846-47, 94 S. Ct. at 2730. It is well established that wearing certain clothing can be a form of protected symbolic speech. (Tinker v. Des Moines Indy endent Communit School District (1969), 393 U.S. 503, 21 L, Ed. 2d 731, 89 S. Ct. 733 (students wearing black armbands to protest U.S. involvement in the Vietnam War engaged in protected symbolic speech); Cohen v. California (1971), 403 U.S. 15, 29 L. Ed. 2d 264, 91 S. Ct. 1780 (jacket that carried vulgar anti -draft message is protected symbolic speech); Dunn v. Carroll (8th Cir. 1994), 40 F -3d 287, 291-92 (wearing American flag patch as comment on Persian Gulf military buildup is protected symbolic speech).) Since Tinker, many decisions have recognized that clothing which identifies the wearer with a particular organization is a protected form Of "speech," even where the organization is morally odious to most people or is known to have a history of routine violence and illegal activity. Thus, courts have ruled that the first amendment protects wearing armbands that signify membership in the American -a- MPR 18 196 12:35PM ARNSTEIN & LEHR No. 2-94-1458 P.2 Nazi party (Collin v. Smith (7th Cir. 1978), 578 F.2d 1197, 1201) and wearing hoods and robes that promote the Xu Klux Klan or identifying the wearer as a Klan member (Hernandez v. superintendent, tappahannock Joint security Center (E. . 1), Va. 1992), 800 F. SUPP- 1344, 1351; Knights of the Ku Klux Xlan,-V. Martin LutherKind �-WRKshi Worshippers (M.D. Tenn. 1990), 735 F. Supp. 745, 751). Even the identifying colors and symbols of the type of street gangs that appear to be the focus of the ordinance here have been accorded first amendment protection. a2RLaLex rel. Gallo v. Acuna (Cal. App. 1995), 40 Cal, Rptr. 2d 589, 595-96, review granted (1995), 43 Cal. Rptr. 2d 589 (invalidating an injunction which forbade the wearing of clothing identifying the wearer as a member of one of two named gangs and the use Of gestures, symbols, or other communication that described or referred to one of the gangs in question). After review of the ordinance and the record, we determine that the ordinance prohibits constitutionally protected symbolic speech. The record reveals that "gang colors" and "gang clothing" are often worn by nonqang members as a form of symbolic speech intended to convey a message unrelated to the promotion of gangs is equally evident. For example, black and gold are the official colors of Harvard High School, and a Bulls jacket is primarily a fashion item for sports fans. one who wears such clothing may well be attempting to convey an easily understood message. nut the message is no more likely to be "join a gang" than "Go, Harvard High," or "Be Like Mike." -9- MAR 18 '96 12:35PM ARNSTEIN & LEHR NO. 2-94-1458 P.3 The record reveals that the Harvard gang activity Ordinance is directed at a wide variety of symbolic speech, much of which is not inherently gang related. The subject matter of the law's prohibitions is not merely broad, but open-ended and potentially limitless. The ordinance does not define, list, or explain what constitutes a "gang symbol,, or "gang colors;" it does not even define "gang-" Further, Officers Lunsmann and Burton conceded that almost any color combination M become gang colors and almost any symbol Day be a gang symbol; in Lunsmann's words, "the list is endless." What is innocent today may become a gang symbol tomorrow according to the whim of the -a S themselves. Were a gang (however defined) to adopt red, white, and blue as its colors or the crucifix as a symbol, every school and church would be "flashing" gang signals. In addition, the ordinance prohibits nongang members from engaging in religious expression. The ordinance prohibits the wearing of religious symbols, which are also known gang symbols. For example, because the six -pointed star is a known gang symbol, it is prohibited by the ordinance. However, the City acknowledges that people also wear the Six -pointed Star to express their faith or ethnic pride. The six -pointed star is an emblem of Judaism known as the "Star of David." Therefore, the ordinance prohibits the display of the Six -pointed star which is Protected by the rights of free speech and free exercise Of religion under the first amendment, Chabad-LubavitcLv.Iller ��� (11th Cir. 1993), 5 F.3d 1383, 1387 (display of menorah is protected Symbolic Speech). _10- MAR 18 '96 12:36PM ARNSTEIN & LEHR No. 2-94-1458 P.4 Because the ordinance prohibits symbolic speech, freedom of religion, and freedom of expression, we conclude that the ordinance is "substantially overbroad." In fact, almost all of its applications are impermissible, even if we adopt the City's suggested narrowing constructions. In an attempt to narrow the construction of the ordinance, the City argues that the ordinance restricts only "fighting words," which are by their nature outside the protection of the first amendment.(Cha linsk v. New )shirel(1942), 315 U.S. 568, 86 L. Ed. 1031, 62 S. Ct. 766.) However, the fighting words doctrine is a narrow one, limited to personally abusive epithets which, as a matter of common knowledge, are likely to provoke the average person to retaliation and thereby cause a breach of the peace. (Johnson, 491 U.S. at 409, 105 L. Ed. 2d at 357, 109 S. Ct. at 2542; Cohen, 403 U.S. at 20, 29 L. Ed. 2d at 291, 91 S. Ct. at 1785.) While it may be possible to imagine a situation in which the display of gang colors or symbols is so inherently personal and inflammatory as to amount to '"fighting words" (or "fighting clothes") , a flat prohibition on the display of any gang symbols goes well beyond this situation and infringes on substantial amounts of constitutionally protected expression. Moreover, in view of the United States Supreme Court's decision in R.A.V. V. q.,::ty,of St. Paul Minnesota (1992), 505 U.S. 3711, _, 120 L. Ed. 2d 305, 319-20, 112 S. Ct. 2538, 2559, the gang ordinance, as construed by the City, would run afoul of the first amendment even were it limitable to fighting words, for viewpoint -based discrimination, even within this less favored class of speech, is MAR 18 '96 12.*36PM ARNSTEIN & LEHR No. 2-94-1458 P.5 impermissible. R.A.V., 505 U.S. at _, 120 L. Ed. 2d at 319-20, 112 S.' Ct. at 2545. Because the ordinance is unconstitutionally overly broad, we declare the ordinance invalid. The defendant was Convicted under one part of the ordinance. However, the ordinance contains no severability clause, and the invalid section is not only important to, but closely interconnected with the rest of the ordinance. Therefore, we presume that the City intended all parts of the law to stand or fall together. (See Williams v. Standard oil Co. (1929), 278 U.S. 235, 241-42, 73 L. Ed. 287, 309, 49 S. Ct. 115, 117, overruled on other grounds, Olsen v. Nebraska (1941), 313 U.S. 236, 85 L. Ed. 1305, 61 S. Ct. 862); Springfield Armarv, Inc. v. City of Columbus (6th Cir. 1994), 29 F.3d 250, 254; 2 Sutherland, Statutory Construction, 544.09, at 526 (5th ed. 1993).) Nevertheless, it is manifest that, under the first amendment principles we have discussed, the remainder of the ordinance is fatally infirm because it criminalizes the �appearance of engaging in any gang -related "communication." By recognizing the unconstitutionality of the Harvard gang activity ordinance, we do not wish to slight or deny the seriousness of the gang problem it addresses. A community has every right to be alert to the spread of organized crime in its midst. However, there are limits to the infringements of our liberties that government may use to combat the evils with which it is properly concerned. In addition, we remind the City that 11[iln attempting to control or prevent activities which are subject to State regulation, the legislature must not use means which sweep =*a MAR 18 '96 12:37PM APNSTEIN & LEHR No. 2-94-1458 P.6 too broadly and thereby penetrate the area of protected freedoms." (Peo le v. Klick(1977), 66 Ill. 2d 269, 273.) Moreover, the City of Harvard is not helpless to control gang activity. it may punish criminal conduct More harshly where the conduct is gang motivated (see WiLsconsin v, Mitchell (1993)f 509 U.S. 124 L. Ed, 2d 436, �lt�C active, intentional, and knowing 113 S. Ct , 2194); prohibit promotion of criminal gang activity (see Jackson V. Indiana (Ind, App- 1994), 634 N.E.2d 532, 536); and prosecute gang ,,communication" that constitutes disorderly conduct because it rises to the level of fighting words which provoke a breach of the peace (see 720 ILCS 5/26-1(a) (1) (West 1992)). What the City may not do is what it attempted here; that is, enact an ordinance which prohibits substantial amounts of constitutionally protected speech and ignore the mandate from our supreme court to ,avoid stifling [5uchl fundamental personal liberties." KlicXf 66 Ill. 2d at 273. Because we hold the ordinance is overly broad, we do not address the defendant's additional argument that the law is unconstitutionally vague' The judgment of the circuit court of Mr -Henry County is reversed. Reversed. GEIGER and THOMAS, JJ -1 concur. -13- o6moW0 jo A0psuodaei eqA aq Uyw ngn joguom oqA c4 euo4de|s4 pun/emod DuiIIeU;oIson eu1 -smold u! e! 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U!m qo!q/m uo!jeuuoju! 400ul jq819 qgx^ dn peqoJam eqU!/welepeo!ou9Wl'JeeA Iea|eje|eOu!leemu!9uoH.00u!punmujnnauo!jolsOu!joguom em!ou pejamolno jo ou!|lnu pemodnud o pep!xcud m|oiogo pocb!V euoH.O 'aeun:pndep puo o|ax!uo Aq peqoueu96 euueAad punoo jo Aop9xo ua p9p!xcud Apnl8 09 1, :P86 941 '9661, ;oIle; a41 6uijnPAPnj89n!oNVV4OgiPed ype4e|dm000beo!UDjoA110mql 9661, '91, H08VVY :31VG H3BVNVVY 39VllU\lN\0SU3BV :kUO8j B|N0NV['3l3VHO|KU839VNVA 3BV771A :Dl YwD0mV'd0W3W3D|33083lN| si»«!U| 'iDadsWd jvnoiN :tosds0-Jd rtunOVU .10 aBeDU!A The temporary monitoring sites are: 1)1OO1Golf Road (Fire Station #12); and 2)One West Berkshire (private residence). We have talked hothe property owner on Berkshire and they are receptive tothe temporary placement. The proposed permanent sites have been recommended for the following locations: 1)Village-owned property otSchool and Lonnquioi; and 2) corner ufLavergne and Pheasant (Village right-of-way). Theuhtahaforoaite!ocoUonindudetheovai|abi|ityofhe|ephoneandpowerandoclear area for noise collection. The site should not be blocked bytrees urstructures which may alter the sound pattern from a fly over. The monitor placed at Lavergne and Pheasant will be placed on a pole in the parkway and will appear as a utility pole to passers-by. The monitors do not require any type of zoning, but residents in the immediate area of the monitors will be notified of the placement and purpose of the device. Bill Cooney feels the monitors could be considered as utility and would not require any special consideration. Once the data has been reviewed from the temporary devinea. the permanent devices could be installed within 10 days from the date the Village gives the go ahead The Village still retains an option fora third device if necessary. Hmwavor, booed on the typical flight patterns and the alignment of the runways, the placement of the two devices should besufficient atthis time. |faneed arises for mthird device \nthe future, areview of potential sites and the placement of a temporary device will be repeated just before a permanent site is considered, just aethis initial phase. In addition to the noise data the Village will soon have access to, O'Hare is also reconfiguring the means by which noise complaints are logged and analyzed. Therafona, specific complaints will be linked to specific aircraft for better follow-up with residents. Unfodunate|y, there is o three-day waiting period before any flight track data can be released under FAA regulations. Regardless of the time de|my, pinpointing specific excessive aircraft noise will help in exerting pressure to narrow the noise footprint or, u|Umehe|y, eliminate aircraft which produce excessive noise. |wuu|d recommend approval boplace the Airport noise monitors on a permanent basis at the School and Lonnquistaihe and at the corner ofLavergne and Pheosent, once the proper resident notifications have been provided. If you have any queoUona, please contact me. DAVID STRAHL VILLAGE OF MOUNT PROSPECT COMMUNITY DEVELOPMENT DEPARTMENT Mount Prospect, Illinois TO: DAVID STRAHL, ASSISTANT VILLAGE MANAGER FROM: WILLIAM J. COONEY, DIRECTOR OF COMMUNITY DEVELOPMENT DATE: MARCH 19,1996 SUBJECT: AIRCRAFT NOISE MONITORING DEVICE I reviewed the Village's Zoning Code to determine how it addresses the proposed aircraft noise monitoring devices. It is my opinion that these devices would not be regulated by the Zoning Code and that we would address them as a public utility structure in the Village right-of-way. The only review from my department would be for a structural foundation review. Please have the installer of the device forward the appropriate plans to the Building Division for their review. If you have any questions regarding this matter, please contact me directly, WJC:bg 1 SITES 3 • • I • J a MAYOR GERALD L. FARLEY TRUSTEES GEORGE A. CLOWES TIMOTHY J CORCORAN RICHARD N. HENDRICKS PAUL WM. HOEFERT MICHAELE W, SKOWRON Village of Mount Prospect IFIVANA K. WILKS VO4AGE MANA"Al 100 South Emerson Street Mount Prospect, Illinois 60056 MICHAEL E. JANONIS I'M"" CLERK CAROL A, FIELDS Phone., 708 / 392-6000 Fax! 708 / 392-6022 TOO: 708 / 392-6064 NOTICE March 19, 1996 THE REGULAR MEETING OF THE BUSINESS DISTRICT DEVELOPMENT AND REDEVELOPMENT COMMISSION SCHEDULED FOR WEDNESDAY, MARCH 27, 1996 HAS BEEN CANCELLED. THE NEXT MEETING WILL BE WEDNESDAY, APRIL 24, 1996. AN AGENDA WILL BE SENT PRIOR TO THIS MEETING. MAYOR GERALD L. FARLEY TRUSIDERS GEORGE A, CLOWES TIMOTHY J. CORCORAN RICHARD N, HENDRICKS PAUL WM, HOEFORT MICHAEUE W. SKOWRON Village of Mount Prospect IRVANA K. WILK$ VIUAGOM"AGM MICHAEL F jANoNis' 100 South Emerson Street Mount Prospect, Illinois 60056 VILLAGE CL99K CAROL A, FIELDS Phone 708 / 392-6000 Fax: 708 / 392-6022 TOO: 708 / 392-6064 NOTICE MARCH 22, 1996 THE MARCH 28, 1996 MEETING OF THE ZONING BOARD OF APPEALS HAS BEEN CANCELLED. THE NEXT MEETING WILL BE THURSDAY, APRIL 25, 1996, AN AGENDA WILL BE SENT PRIOR TO THE NEXT SCHEDULED MEETING,