You may not be aware, but for the last four years the public policy of the Cook County state’s attorney’s office has been not to prosecute criminal violations tied to protests and demonstrations if the office deems those actions “peaceful.”
That means the office as a matter of policy won’t prosecute protesters arrested for disorderly conduct, unlawful gathering or criminal trespass to state-supported land, among other laws.
Cook County State’s Attorney Kim Foxx reinforced these positions to her staff in a Nov. 15 memo, just as the protests over Israel’s campaign in the Gaza Strip were gaining momentum. Foxx’s office confirmed to us that the policy remains, even as aggressive protests on campuses have reached a point where some of America’s most storied universities have shut down in-person learning. She says it’s right there on the office’s website.
More on the wisdom of this approach — and, equally as important, stating it publicly — below.
While the campus disturbances we’re seeing and their increasing intensity are unsettling, they feel preparatory to the main event — the Democratic National Convention in August. We’ve seen groups stating openly that they intend to ignore areas set aside for protests and attempt to provoke police into using force.
The convention, with Chicago in full focus, would have been a particularly ill-suited occasion to give these groups advance notice that protesters won’t be prosecuted so long as they behave “peacefully” (as defined by the Cook County state’s attorney’s office). Prosecutors and law enforcement ought to have every tool at their disposal to ensure the convention runs as smoothly as possible and that other normal activities in the nation’s third largest city can be pursued unimpeded.
Fortunately, Foxx agrees. She told us Thursday when we asked about the Nov. 15 memo that her office’s policy on protests won’t be in effect for the convention. Her office is huddling with other agencies such as the Chicago Police Department, the U.S. Attorney’s Office for the Northern District of Illinois, the FBI and the Secret Service on how to handle law and order at the event and are developing a cooperative strategy.
Foxx, understandably, didn’t tell us the precise tactics envisioned in this multigovernmental initiative, but she was clear that her Nov. 15 memo wouldn’t apply during that time. To which we say, that’s a relief.
While there surely will be activists simply wanting to make their voices heard when the Democrats come to town, they will be interspersed with groups and individuals bent primarily on sowing chaos. Giving these malefactors a blueprint on what will or won’t be prosecuted would be foolhardy. Foxx thankfully recognizes that.
Our relief is not to say we endorse her policy of refusing to prosecute crimes like disorderly conduct and trespassing when involving dissent. That’s essentially the position of Foxx’s office when Chicago isn’t hosting political conventions — that is to say, nearly all the time.
The rationale for the policy is to distinguish peaceful protesters from those who assault or attack police (or anyone else for that matter). Foxx told us the origins of this approach stemmed from the city’s experience with the rioting in 2020 after the murder of George Floyd by a Minneapolis police officer. The Chicago inspector general’s office issued a report in early 2021 that was highly critical of what it characterized as a lack of preparation for the troubles by the Police Department.
Foxx’s justification for a near-blanket prohibition on prosecuting nonviolent protesters is, among other things, a practical one. It’s a waste of prosecutorial and police resources, she contended, to round up dozens or even hundreds of demonstrators who technically are breaking the law and charge them with misdemeanors. That can clog up the courts and distract from protecting the public from more serious crimes.
Fair enough. Anyone holding Foxx’s office — and there will be someone else in that role beginning next year, since Foxx opted not to run for reelection — is tasked with allocating resources and establishing prosecutorial emphases.
But that doesn’t logically entail public notice to all demonstrators and protesters that they will face no legal consequences if they break certain laws while exercising their First Amendment rights. If the primary body deciding when to pursue criminal charges declares upfront there’s a discrete set of statutes to be ignored when those breaking the laws are protesters, why have the laws in the first place?
Prosecutorial discretion is an unavoidable aspect of our criminal justice system, whether at the local or federal level. Managing issues such as when to press disorderly conduct changes, for example, is an appropriate subject of internal guidance to prosecutors. Public declarations of such are at a minimum unnecessary, and at worst positively encourage demonstrators to be more disruptive than they might otherwise be.
While Foxx told us she thinks the policy has worked well since the 2020 chaos, meaning Cook County hasn’t seen disruption on that scale since then, that is hardly proof of its wisdom. We are concerned now about a new wave of dissent, growing in intensity and in the level of threats to Jewish residents, whether in our neighborhoods or on campus. So long as the war in Gaza continues, there’s no reason to think this dynamic will calm.
We asked the Chicago Police Department for its opinion on Foxx’s policy, and in a statement the department didn’t respond directly to that question. What it did say: “As always, we will protect those exercising their constitutional rights, as well as those who are working, living, and visiting in the areas of the demonstrations. When orders to disperse are given for public safety reasons, we will seek voluntary compliance first, consistent with the Department’s First Amendment Rights policy. Those who continue to be in violation of dispersal orders after a reasonable amount of time will face arrest.”
We’ll have a new Cook County state’s attorney within months. The Democratic and Republican nominees for the office, Eileen O’Neill Burke and Bob Fioretti, ought to tell the public where they stand on this policy before voters go to the polls in November.
Submit a letter, of no more than 400 words, to the editor here or email letters@chicagotribune.com.
