A man who was accused of public indecency under the Forest Preserve District Code of Cook County has had the charge dropped because the statute is unconstitutional.
Joseph Lindeman was charged under Title 3, Section 3, Paragraph 5 of the code, which reads: "A. Indecent Exposure: No person shall appear in any forest preserve in a state of nudity, or in a dress not properly belonging to his or her sex, or in an indecent or lewd manner, and no person shall make any indecent exposure of his or her person or be guilty of any lewd or indecent act or behavior in any forest preserve, or while in any vehicle within the Forest Preserve District.
In his motion to dismiss, attorney Jon Erickson ( known for his participaton in several LGBT-rights cases ) argued that the charges were "unconstitutional pursuant to the due process clauses of the fifth and fourteenth amendments and the equal protection clause of the fourteenth amendment." In so arguing, he wrote that " [ v ] ague laws may trap the innocent by not providing fair warning."
In talking with Windy City Times, Erickson said, "The statute is a run-on sentence, and it's a long definition of 'public indecency.' That's why the whole subsection is unconstitutional—you can't cherry-pick phrases out of a sentence and say that [ some ] are unconstitutional, and others aren't. ... You can't put yourself in the place of the legislators and decide which ones must come and which ones must go."
Erickson added that when he saw the statute, "my eyes just popped out and my jaw dropped. The statute is written so broadly. First of all, it uses the term 'lewd,' which the courts have dismissed as unconstitutionally vague going back to the '70s. The danger is when you have laws that are so subjective like that, it allows the police to force it any way they want to—which becomes a tool for harassment.
"There was a time when the forest preserve police had a 'Lifestyle Enforcement Unit,' where they specifically went looking for gays in the park. ... So, when I saw the code, I said, 'Oh, this is unconstitutional," and filed a motion to dismiss."
Erickson said that after he talked with the state's attorney and the prosecutor discussed things with the police chief, the attorney dropped the charges. Erickson added that he was planning to take the case to the Circuit Court of Cook County if things had not turned out as he had hoped on the administrative level.
Stephen Mayberry, a spokesman for the Forest Preserve District of Cook County, agreed that sections of the code are antiquated: "We have parts of that code—for instance, no fortune-telling—that speak to a different time. These days, that sounds ridiculous. And what [ Erickson ] referred to reflected a different time; it would, in effect, punish cross-dressers—and that is not something we seek to do. That is one of the ordinances we're seeking to have stricken from the books."
When asked if authorities can still prosecute people under sections of the code that have not yet been removed, Mayberry told Windy City Times, "They can but they wouldn't. The chief of police—and, by extension, the rest of the force—knows that these are things we're looking to remove. It's more recognition of where we're headed and what makes sense, as opposed to selective arrests and enforcement."
Administrative law judge Thomas Grippando e-mailed Windy City Times that " [ w ] e are working with the Forest Preserve District in amending several sections of the Forest Preserve Code, including Section 3-5-7. We expect that the amendments will be considered by the Board in December."
Erickson said that he plans to make sure that the portions of the code are rewritten "in a way that meets constitutional muster." Read more about Erickson here www.ericksonandoppenheimer.com .
According to Mayberry, a public meeting to discuss the code will take place Wed., Dec. 15, at 10 a.m. at 537 N. Clark, room 567. The public is invited.
