Alliance to End Repression et al v. City of Chicago

• Decision Date: 11 January 2001
• Docket Number: No. 99-3825,99-3825
• Citation: 237 F.3d 799
• Parties: (7th Cir. 2001) Alliance to End Repression, et al., Plaintiffs-Appellees, v. City of Chicago, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 799

237 F.3d 799 (7th Cir. 2001)

Alliance to End Repression, et al., Plaintiffs-Appellees, v. City of Chicago, Defendant-Appellant.

No. 99-3825

In the United States Court of Appeals For the Seventh Circuit

Argued November 27, 2000

Decided January 11, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 74 C 3268, 74 C 3295--Ann Claire Williams, Judge.

Before Bauer, Posner, and Easterbrook, Circuit Judges.

Posner, Circuit Judge.

More than a quarter of a century ago a number of individuals and organizations brought suit under 42 U.S.C. sec. 1983 against the United States and the City of Chicago, claiming that the FBI's Chicago office and the Chicago Police Department's intelligence division were violating the plaintiffs' First Amendment rights by overly intrusive and improperly motivated investigations of alleged subversive activities. In 1981, before a trial could be held, the defendants agreed to a consent decree, which was approved by then district judge Getzendanner the following year, imposing detailed and onerous restrictions on the defendants' powers of investigation. 561 F. Supp. 537 (N.D. Ill. 1982). The City has now asked the district court to modify the decree to make the restrictions that it places on the City less onerous. Fed. R. Civ. P. 60(b)(5). The district court has refused, and the City has appealed, pointing out that the decree is so strict that Judge Getzendanner said she would not have awarded the plaintiffs such draconian relief (but for the defendants' acquiescence) even if they had proved all the allegations of their complaint in a trial. 561 F. Supp. at 551.

The City argues that it has been in compliance with the decree throughout the almost two decades in which the decree has been in force and it points out that during this period the Supreme Court and this court have become ever more emphatic that the federal judiciary must endeavor to return the control of local governmental activities to local government at the earliest possible opportunity compatible with achievement of the objectives of the decree that transferred that control to the federal courts. The City also argues that the culture of local law enforcement and the character of the threats to public safety by ideologically motivated criminals have so far changed as to make much of the decree obsolete and points out that the Supreme Court has adopted a more flexible standard for the modification of decrees entered in institutional reform litigation than the Swift standard of yore. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378-81 (1992); Board of Education v. Dowell, 498 U.S. 237, 248 (1991); see also Alexander v. Britt, 89 F.3d 194, 197-98 (4th Cir. 1996). Although the federal government has not joined the City in seeking to modify the decree, the provisions applicable to the FBI are different and were interpreted by us in an earlier phase of this litigation to impose far lighter restrictions on FBI investigations than the district court had interpreted the decree to impose. Alliance to End Repression v. City of Chicago, 742 F.2d 1007 (7th Cir. 1984) (en banc).

The core of the decree, which the City does not seek to modify, forbids investigations intended to interfere with or deter the exercise of the freedom of expression that the First Amendment protects, and requires the City to commission independent periodic audits of the City's compliance with the decree. The effect of these provisions is to add the threat of civil and criminal contempt to the usual sanctions for infringing civil rights and, through the requirement of the audits, to make it easier to detect such infringements. These are substantial enhancements of the ordinary deterrent effect of constitutional law. Id. at 1014-15. They annex swift and severe sanctions to the ordinary tort remedies (mainly 42 U.S.C. sec. 1983) for violations of that law.

The periphery of the decree, which the City considers insufficiently protective of the public safety and wishes to have lanced, comprises a dizzying array of highly specific restrictions on investigations of potential terrorists and other politically or ideologically motivated criminals. Investigations "directed toward First Amendment conduct," a defined term referring to any investigation likely to involve the collection of information about protected activity or the investigation of anyone engaged in such activity, may be conducted only for the purpose of obtaining evidence of past, present, or impending criminal conduct and only if the Chicago police already have a reasonable suspicion of such conduct. Unless "unavoidably necessary to the investigation of a reasonably suspected crime," the police may not collect information about the political group to which the target of an investigation belongs or about other members of the group or people attending the group's meetings. The investigation must terminate as soon as reasonable suspicion of criminal conduct is dispelled and upon termination all information protected by the First Amendment must be purged from the investigatory file. An investigation may not be conducted on the basis of mere advocacy of violent conduct (what the decree terms "ideological rhetoric"); only a "brief preliminary inquiry" is permitted on that basis and it must cease unless it generates a reasonable suspicion of criminal conduct. Use of undercover informants is strictly limited along with the gathering of information at rallies or other public assemblies of advocates of violence and other political extremists. There is more to the decree, and some qualifications and other nuances that we have omitted, but our summary gives the flavor.

From the 1920s to the 1970s the intelligence division of the Chicago Police Department contained a unit nicknamed the "Red Squad" which spied on, infiltrated, and harassed a wide variety of political groups that included but were not limited to left- and right-wing extremists. Most of the groups, including most of the politically extreme groups, were not only lawful, and...