Professor Harcourt Helps Student Protesters

Meredith Heagney
Law School Office of Communications
January 7, 2013

The class was on, of all things, theories of punishment. Professor Bernard Harcourt was teaching it in the fall of 2011 when 12 of his political science Ph.D. students and other Chicago graduate students were arrested in Grant Park as part of the Occupy Chicago movement. They were charged with violating the park’s curfew: no visitors between 11 p.m. and 4 a.m.

Harcourt believed his students’ First Amendment rights had been violated. So he set out to make it right, starting with finding the best defense attorney for the job. Luckily, he happened to have one of the city’s most renowned defense attorneys, Tom Durkin, taking the very same class as a graduate student-at-large. Durkin agreed to take the case pro bono, as did Harcourt’s research assistant, Gabriel Mathless, ‘11.

In September, a Cook County Circuit Court Judge dismissed the charges against the 12 students who Durkin and Mathless defended, as well as about 80 other protesters arrested at the same time. The city of Chicago has appealed the widely publicized ruling.

All involved agree that Harcourt, Julius Kreeger Professor of Law and Criminology and Chairman and Professor of the Political Science Department, was a critical part of the happy ending to this almost yearlong ordeal.

For the professor, helping was a no-brainer.

“I feel a certain amount of responsibility for my students, particularly when it’s in an area I’m very familiar with: policing and punishment. I feel a responsibility to protect them from some of the excesses of the criminal justice system.”

The students were arrested on Oct. 16. Along with other protesters remaining in the park, they were handcuffed and transported in police vans to various stations where they were kept, in some cases, for more than 17 hours.

Harcourt had been writing about the Occupy movement for publications such as the New York Times and the Guardian. Mathless, now a litigator at Ginsberg Jacobs LLC, was working for Harcourt on a project on legal and social theory. Once Harcourt pulled him in, Mathless completed enormous amounts of research and writing during the course of the case.

Four days after he was sworn into the Illinois bar, he attended a bail bond hearing to represent one of the defendants. A court officer asked for his registration number, and he had to reply that he didn’t “have one yet; I got sworn in on Thursday.”

“The Occupy case gave me my first courtroom experience as an attorney,” Mathless said.

Mathless co-authored the motion to dismiss and an accompanying memo and responded to the city’s filings as they came. He reviewed 200 to 300 First Amendment cases as preparation.

The defense argued that the charges must be dismissed because the law didn’t serve a significant government interest, the city didn’t leave alternate channels for the speech, and the law is not content-neutral because it is not applied consistently. (For example, the celebration after President Barack Obama’s election in 2008 in Grant Park lasted well past 11 p.m.)

The city argued, of course, the opposite: that the government had a compelling interest in keeping people out of the park overnight, that the protesters had other options for 24-hour demonstrations, and that the law is content-neutral, and the Obama example irrelevant.  

On September 27, Judge Thomas More Donnelly dismissed the charges in a 37-page, in-depth ruling that included a section on the history of Grant Park as a public forum. In fact, as early as 1836, “what was to become Grant Park became the city’s ‘favorite spot for political rallies and expositions,’” Donnelly wrote, adding that Abraham Lincoln spoke there in 1856 in favor of the new Republican party and its anti-slavery platform.

Mathless, for one, “was pretty stunned” by the ruling, he said. “I had been expecting to lose, and I was already working on some possible appeals…I thought we had the stronger argument, but we’re up against City Hall and the city of Chicago, and they have a very large legal department and a lot of resources.”

As for Mathless, “Gabe was terrific,” Durkin said. “He was a big help. It’s always very difficult in pro bono cases to find the resources to handle them correctly, and we couldn’t have done it without him.”   

Harcourt’s role was indispensable as well, Mathless said.

“He’s the one who put all the parties together. He served as an active supporter. He also reviewed the briefs before we submitted them. He helped edit. He played an active role. If it weren’t for him, I wouldn’t have been involved; Tom Durkin wouldn’t have been involved. He helped publicize our case in various media.”

Durkin agreed, and added that Harcourt is a great teacher, too.

“He’s that rare combination of someone who can connect the practical with the theoretical,” Durkin said. “Bernard has one of the best minds I’ve ever seen.”