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Left Field Media LLC v. City of Chicago, Illinois

United States Court of Appeals, Seventh Circuit

May 23, 2016

LEFT FIELD MEDIA LLC, Plaintiff-Appellant,
v.
CITY OF CHICAGO, ILLINOIS, and ELIAS VOULGARIS, Defendants-Appellees

         Argued April 4, 2016.

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 C 3115 -- Jorge L. Alonso, Judge.

         For LEFT FIELD MEDIA LLC, Plaintiff - Appellant: Mark G. Weinberg, Attorney, Law Office of Mark G. Weinberg, Chicago, IL; Adele D. Nicholas, Attorney, Chicago, IL.

         For CITY OF CHICAGO, ELIAS VOULGARIS, Chicago Police Commander, Defendants - Appellees: Jonathon D. Byrer, Attorney, OFFICE OF THE CORPORATION COUNSEL, Appeals Division, Chicago, IL.

         Before EASTERBROOK and HAMILTON, Circuit Judges, and PEPPER, District Judge.[*]

          OPINION

         Easterbrook, Circuit Judge.

         Left Field Media publishes Chicago Baseball, a magazine that produces four issues over the course of a baseball season. Copies are sold for $2 out-side Wrigley Field before the Chicago Cubs' home games. On the day of the Cubs' home opener in 2015, patrol officer Elias Voulgaris of Chicago's police force saw Matthew Smerge, Left Field's editor, selling the magazine at the corner of Clark and Addison streets. Voulgaris told Smerge to move across the street in order to comply with Chicago Municipal Code 4-244-140(b), which the parties call the Adjacent-Sidewalks Ordinance. Section 4-244-140(b) forbids all ped-dling on the streets adjacent to Wrigley Field. Smerge re-fused to move and was ticketed. Told that the next step would be an arrest, Smerge then crossed the street. A few days later Left Field sued under 42 U.S.C. § 1983, contending that the Adjacent-Sidewalks Ordinance violates the First Amendment, applied to the states by the Fourteenth.

         After the district court issued a temporary restraining order, Chicago agreed not to enforce the Adjacent-Sidewalks Ordinance while the district court considered Left Field's motion for a preliminary injunction. The 2015 season ran its course, and just as the playoffs began the district court de-clined to issue a preliminary injunction. (N.D.Ill. Oct. 5, 2015). The 2016 season is underway, and the Cubs are doing well on the field. Left Field hopes to do as well on appeal.

         The Adjacent-Sidewalks Ordinance provides:

No person shall peddle any merchandise on the sidewalk imme-diately adjacent to Wrigley Field; such sidewalk consisting of the north side of Addison Street, the east side of Clark Street, the south side of Waveland Avenue, and the west side of Sheffield Avenue. For purposes of this subsection (b), the term " sidewalk" shall mean that portion of the public way extending from the pe-rimeter of the Wrigley Field stadium structure to the street curb or curb line.

         A satellite picture of Wrigley Field and environs helps the reader to understand the ordinance:

         In this picture, Clark is on the west, Addison on the south, Sheffield on the east, and Waveland on the north. As the pic-ture shows, the park is surrounded by buildings (many of them residential), and an elevated railway (the CTA's Red Line) is half a block to the east. The district court found (citations omitted):

[T]he area surrounding Wrigley Field indeed creates unique problems for the City ... . [Wrigley Field] has a " very small foot-print" compared with other sports arenas; most stadiums have about thirty acres of land to work with, as opposed to Wrigley Field's three acres. The area immediately surrounding the ball-park is bustling, with a high density of retail establishments, rooftop businesses, and residences. There are no vast swaths of parking lots around Wrigley; the park is uniquely hemmed in, and the flow of pedestrian traffic to the stadium is confined to the public ways. The surrounding sidewalks around game times are so congested that people often walk in the streets alongside the sidewalks. Because of the stadium's position, a certain portion of the sidewalk on the north side of Addison between Clark and Sheffield is extremely narrow; only about three people at a time can pass in that section. The location of the CTA Addison Red Line stop contributes to the congestion because it is so close to the east side of the stadium. Alderman Tunney ... testified that in the three-year period before the Adjacent-Sidewalks Ordinance was enacted in 2006, he had received complaints about peddlers and street performers blocking the entrances to the ballpark and making it difficult to safely walk in the area.

         Left Field wants to take advantage of the narrow passages, so that people who try to enter the stadium must pass someone selling Chicago Baseball ; the other side of the street is less crowded and so, Left Field insists, less desirable as a place to sell magazines. But the district court ruled that the throngs of people on narrow sidewalks justify the ordinance, even on the ...


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