Alliance to End Repression v. City of Chicago

• Decision Date: 08 August 1984
• Docket Number: 83-1854,Nos. 83-1853,s. 83-1853
• Parties: ALLIANCE TO END REPRESSION, et al., Plaintiffs-Appellees, v. CITY OF CHICAGO, et al., Defendants, and United States Department of Justice, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1007

742 F.2d 1007

ALLIANCE TO END REPRESSION, et al., Plaintiffs-Appellees, v. CITY OF CHICAGO, et al., Defendants and United States Department of Justice, et al., Defendants-Appellants.

Nos. 83-1853, 83-1854.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 17, 1983.

Reargued En Banc June 13, 1984.

Decided Aug. 8, 1984.

Richard Martin Gutman, Richard Gutman, P.C., Chicago, Ill., Joseph M. Hassett, Hogan & Hartson, Washington, D.C., for plaintiffs-appellees.

Richard K. Willard, Civ. Div., Dept. of Justice, Washington, D.C., for defendants-appellants.

Before CUMMINGS, Chief Judge, BAUER, CUDAHY, ESCHBACH, POSNER and COFFEY, Circuit Judges, and PELL, Senior Circuit Judge. ^*

POSNER, Circuit Judge.

This appeal (under 28 U.S.C. Sec. 1292(a)(1)) by the Justice Department from an order enjoining it from putting into effect in Chicago a provision of the Department's new guidelines for FBI investigations requires us to consider the proper standards for interpreting an equity decree that restricts the executive branch of the federal government in the performance of its constitutional responsibilities.

The suit out of which the order under review arose was brought in 1973 and charged, so far as is pertinent here, that the FBI's Chicago office had in the name of domestic security conducted investigations (some protracted) of the plaintiffs, among them the American Civil Liberties Union, the National Association for the Advancement of Colored People, the Independent Voters of Illinois, the Better Government Association, the American Friends Service Committee, and a Congressman. The complaint alleged that the plaintiffs posed no actual or potential threat to domestic security, that the motivation for the investigations was the FBI's dislike of their political views, and that the goal and consequence of the investigations were to harass and intimidate the plaintiffs. These allegations repair the deficiencies that led the Supreme Court to hold in Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972), that a challenge to the Army's domestic surveillance activities was not justiciable because the surveillance was not alleged to have affected the plaintiffs' conduct in any way. See id. at 13 and n. 7, 92 S.Ct. at 2325 and n. 7; see also United Presbyterian Church v. Reagan, 738 F.2d 1375 at 1378-1381 (D.C.Cir.1984).

In 1976 the Department of Justice published guidelines for FBI investigations (the "Levi Guidelines," after the then Attorney General). The guidelines led to a sharp reduction in the number of domestic security investigations and set the stage for the settlement of the suit. The parties signed a settlement agreement in the fall of 1980. The agreement runs to 31 double-spaced typewritten pages and includes among other extraordinary provisions a section that gives standing not only to the plaintiffs but to every resident of Chicago at the time of the settlement to enforce the decree by application to the district court, and a section that empowers the plaintiffs' representatives to monitor compliance with the decree for five years with the help of periodic reports that the decree requires the Justice Department to furnish them. The provision of particular importance in this enforcement proceeding, however, is paragraph 3.4(a), which provides (we italicize the portion most pertinent to this appeal):

The parties agree that the following general principles apply to FBI activities relating to the domestic activities of United States persons:

(a) The FBI, in conducting domestic security investigations and inquiries, shall be concerned only with conduct and only such conduct as is forbidden by a criminal law of the United States, or by a state criminal law when authorized by federal statute. The FBI shall not conduct an investigation solely on the basis of activities protected by the First Amendment of the Constitution of the United States, or on the lawful exercise of any right secured by the Constitution or laws of the United States.

After the usual comment period, Judge Getzendanner in August 1981 approved a consent decree containing the settlement agreement. See Alliance to End Repression v. City of Chicago, 91 F.R.D. 182 (N.D.Ill.1981).

Eighteen months later Attorney General Smith announced new guidelines for FBI investigations ("The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations," March 7, 1983), superseding the Levi Guidelines of 1976. This too is a formidable document--19 single-spaced typewritten pages. In Part I ("General Principles") the following appears (again we italicize the key portion):

In its efforts to anticipate or prevent crime, the FBI must at times initiate investigations in advance of criminal conduct. It is important that such investigations not be based solely on activities protected by the First Amendment or on the lawful exercise of any other rights secured by the Constitution or laws of the United States. When, however, statements advocate criminal activity or indicate an apparent intent to engage in crime, particularly crimes of violence, an investigation under these Guidelines may be warranted unless it is apparent, from the circumstances or the context in which the statements are made, that there is no prospect of harm.

The plaintiffs applied to Judge Getzendanner for an injunction against the Smith Guidelines, charging that they were inconsistent with the consent decree in a variety of respects. She agreed to the extent of enjoining the last sentence quoted above (actually only the part of the sentence that we have italicized). 561 F.Supp. 575, 582-83 (N.D.Ill.1983). This appeal followed. The panel of this court that first heard the appeal modified the district court's decree to change the injunction to a declaratory judgment and affirmed the decree as so modified (one judge, however, would have reversed). 733 F.2d 1187 (1984). The full court granted rehearing en banc because of the sensitive issue of separation of powers raised by a decision invalidating in a major city a part of the FBI's nationwide investigatory guidelines.

The task of interpreting the decree in this case is complicated by the absence of a concrete factual context. Usually a question about the meaning of a consent decree arises because a party does, or proposes, an activity that may violate the decree or fails to undertake an activity required by the decree; and the task is then to apply the decree to the activity. There is no activity here. As far as we know, the FBI has yet to conduct or even propose a specific investigation that might run afoul of the decree; it only wants to be allowed to tell its agents in Chicago to follow the new guidelines that the Justice Department has issued to govern FBI investigations nationwide. Although the district judge had the power to interpret the decree even in this rather bare setting, cf. EEOC v. Safeway Stores, Inc., 611 F.2d 795, 798 (10th Cir.1979); Note, Implementation Problems in Institutional Reform Litigation, 91 Harv.L.Rev. 428, 440-48 (1977), the bareness of the setting requires us to resolve all reasonable doubts in favor of an interpretation of the guidelines that will avoid conflict with the decree. We do not lightly assume in advance of anything more ominous than a general statement of enforcement policy intended to be applicable nationwide that the Justice Department is trying to evade a judicial decree.

But that is what the plaintiffs are asking us to assume in pressing on us the following syllogism: Paragraph 3.4(a) of the decree forbids the FBI to "conduct an investigation solely on the basis of activities protected by the First Amendment"; the government may not suppress or punish statements advocating criminal activity unless they pose an immediate and substantial danger to the public safety (see, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969) (per curiam)); therefore the Smith Guidelines, in permitting investigations based on "statements [that] advocate criminal activity" without requiring that the statements be shown to pose an immediate and substantial danger, contravene paragraph 3.4(a). Reminding us that a consent decree "is to be construed for enforcement purposes basically as a contract," United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975), and that "the scope of a consent decree must be discerned within its four corners," United States v. Armour & Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971); see also Firefighters Local Union No. 1784 v. Stotts, --- U.S. ----, 104 S.Ct. 2576, 2586, 81 L.Ed.2d 483 (1984), the plaintiffs argue that the quoted language from paragraph 3.4(a) is clear, and clearly inconsistent with the quoted language from the Smith Guidelines, and therefore that the injunction was proper.

We agree that our function is interpretation, and also that the words of paragraph 3.4(a) will bear the plaintiffs' interpretation of them. But the question whether the interpretation is compelled is less clear. In searching for an answer we are of course not confined to the language of paragraph 3.4(a). The relevant "four corners" are those of the decree, not of one provision of the decree. White v. Roughton, 689 F.2d 118, 119 (7th Cir.1982). Like any document, a consent decree must be read as a whole. Cf. United States v. Morton, --- U.S. ----, ----, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984) ("We do not, however, construe statutory phrases in isolation; we read statutes as a whole"); United States v. American Trucking Ass'ns., Inc., 310 U.S. 534, 543-44, 60 S.Ct. 1059, 1063-64, 84 L.Ed. 1345 (1940). The plaintiffs concede as much by citing in support of their interpretation of paragraph 3.4(a) paragraph 2.2(2), which states that "the [Levi] Guidelines are not intended to permit domestic security investigations of groups...