Alliance to End Repression v. City of Chicago, 74 C 3268

• Decision Date: 18 April 1983
• Docket Number: 75 C 3295.,No. 74 C 3268,74 C 3268
• Citation: 561 F. Supp. 575
• Parties: ALLIANCE TO END REPRESSION, et al., Plaintiffs, v. CITY OF CHICAGO, et al., Defendants. AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs, v. CITY OF CHICAGO, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

561 F. Supp. 575

ALLIANCE TO END REPRESSION, et al., Plaintiffs, v. CITY OF CHICAGO, et al., Defendants.

AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs, v. CITY OF CHICAGO, et al., Defendants.

Nos. 74 C 3268, 75 C 3295.

United States District Court, N.D. Illinois, E.D.

April 18, 1983.

Richard Gutman, Chicago, Ill., for Alliance plaintiffs.

Douglass W. Cassel, Jr., Business and Professional People for the Public Interest, Chicago, Ill., for ACLU plaintiffs.

J. Charles Kruse, Sp. Litigation Counsel, Dept. of Justice, Washington, D.C., for defendants.

MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

These actions come before the court on motions for preliminary relief. Plaintiffs seek an order temporarily restraining the Federal Bureau of Investigation from implementing within the City of Chicago portions of the Attorney General's newly-announced Guidelines on Domestic Security/Terrorism Investigations. (Hereafter referred to as the "Reagan Guidelines"¹) Plaintiffs contend that the challenged portions of the new Guidelines are inconsistent with the "permanent principles," Alliance to End Repression v. City of Chicago, 91 F.R.D. 182, 200 (N.D.Ill.1981), underlying the settlement agreement concluding these two lawsuits. For the reasons to follow, the court finds that the plaintiffs are entitled in part to relief they seek.

I.

These cases commenced nearly ten years ago with the filing of complaints asserting that various "federal defendants"² had engaged in conduct within the City of Chicago violative of the plaintiffs' constitutional rights. In particular:

Plaintiffs in both cases claim that the settling defendants have conducted surveillance of, and compiled dossiers on, their lawful political and other lawful activities; gathered information about plaintiffs by unlawful means, including warrantless wiretaps and break-ins, unlawful use of infiltrators and informers, and by other unlawful means; disrupted and harassed plaintiffs' lawful activities; and further, that defendants have also committed these alleged wrongs against members of the plaintiff classes, all as part of a continuing course and pattern of alleged illegal conduct.

Alliance to End Repression v. City of Chicago, supra, 91 F.R.D. at 186. After many years of "sharply contested" litigation, id. at 187, the parties proposed in late 1980 a settlement agreement for the court's approval.

As both suits had been certified as class actions, Alliance to End Repression v. Rochford, 565 F.2d 975 (7th Cir.1977) (affirming the certification order), a fairness hearing on the terms of the proposed settlement was held. See Fed.R.Civ.P. 23(e). The court heard arguments from numerous objectors, but ultimately entered the agreement on August 11, 1981, finding it "fair, reasonable and adequate." Alliance to End Repression v. City of Chicago, supra, 91 F.R.D. at 204.

In broad brush, the agreement sets forth in ¶ 3.4 several "general principles" the FBI must follow while conducting "domestic security investigations." Paragraph 3.5 of the agreement further restricts in more specific ways the Bureau's latitude of operation. In particular, ¶ 3.5(c) incorporates, inter alia, the rules set forth in the then-governing Guidelines on domestic security investigations promulgated by former Attorney General Edward H. Levi. The Reagan Guidelines supersede the Levi document.

The prospect of superseding Guidelines was considered and dealt with by the parties in drafting their agreement. Paragraph 3.6(c) holds that superseding regulations must in general be employed in construing ¶ 3.5(c). However, the final proviso to ¶ 3.6 makes explicit that "future or amended written Departmental or Bureau regulations, guidelines or other procedures, or conduct relating to the use of investigative techniques described in Paragraph 3.5 shall be in accordance with the principles stated in Paragraph 3.4, and the applicable provisions of federal statutes and the United States Constitution." Because of this caveat, the court dismissed the objection voiced at the settlement hearing "that the proposed FBI settlement rests on government assurances or on Attorney General Guidelines which can be unilaterally withdrawn. It does not. The FBI agreement rests on permanent principles (¶ 3.4) which govern Justice Department and FBI procedures and conduct in Chicago, and which are subject to independent, external construction and enforcement by this Court. (¶¶ 5.1 and 5.2) authorizing, inter alia, petitions by any plaintiff "for an appropriate order to enforce the Stipulation."" Alliance to End Repression v. City of Chicago, supra, 91 F.R.D. at 200-01. At oral argument on the present motions, the Government acknowledged that it is within the court's power to enjoin the implementation within Chicago of the new Guidelines to the extent they embody standards for action inconsistent with those established by the settlement agreement.³ The court will now address whether this is in fact the case.⁴

II.

Paragraph 3.4(a) of the agreement explicitly bars the FBI from "conducting 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." The Reagan Guidelines encourage violations of this norm by permitting investigations to commence solely on the basis of a target's exercise of protected First Amendment rights.

The reasoning leading to this conclusion begins with section III.B.1.a. of the new Guidelines which provides:

A domestic security/terrorism investigation may be initiated when the facts or circumstances reasonably indicate that two or more persons are engaged in an enterprise for the purpose of furthering political or social goals wholly or in part through activities that involve force or violence and a violation of the criminal laws of the United States. The standard of "reasonable indication" is identical to that governing the initiation of a general crimes investigation under Part II. In determining whether an investigation should be conducted, the FBI shall consider all of the circumstances including: (1) the magnitude of the threatened harm; (2) the likelihood it will occur; (3) the immediacy of the threat; and (4) the danger to privacy and free expression posed by an investigation.

The cross-referenced standard of "reasonable indication" (section II.C.(1))

is substantially lower than probable cause. In determining whether there is a reasonable indication of a federal criminal violation, a Special Agent may take into account any facts or circumstances that a prudent investigator would consider. However, the standard does require specific facts or circumstances indicating a past, current, or impending violation. There must be an objective, factual basis for initiating the investigation; a mere hunch is insufficient.

Section I of the Guidelines — entitled "General Principles" — offers further guidance as to when the requisite "objective, factual basis" for investigation is present:

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 context in which the statements are made, that there is no prospect of harm.

Plainly read, the final sentence of the passage last quoted allows investigations when (1) the target "advocates criminal activity"; and (2) it is not "apparent ... that there is no prospect of harm." Much of the advocacy covered by this standard, however, falls within the protective shield of the First Amendment.

Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969) (per curiam), teaches that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The standard embraced by the Reagan Guidelines is more lenient in three respects. First, under the Guidelines, the feared "harm" need not be, as it must under Brandenburg, "imminent."⁵ Second, and also contrary to Brandenburg, the feared "harm" need not be "likely."⁶ Finally, the speech need not be "directed" (i.e., intended)⁷ to cause imminent, lawless action.

To the extent, then, that the statement in paragraph 3.4 of the settlement agreement proscribing investigations "solely on the basis of activities protected by the First Amendment" means "solely on the basis of activities protected under Brandenburg," plaintiffs are clearly entitled to relief. The response pressed in the Government's briefs (but not in oral argument) is that this equation should not be drawn. The Brandenburg decision dealt with attempts by the state to punish speakers through criminal sanctions. The Reagan Guidelines, by contrast, deal only with the "more limited" power to investigate. Thus, according to the Government, an activity may be "protected" from punishment, but not from investigation.

As a matter of "pure" constitutional law, this line of argument may or may not have validity. The court expresses no opinion on this question since it is simply irrelevant. The present proceedings were not brought to vindicate First Amendment rights per se. The court is hearing an enforcement proceeding authorized by a settlement agreement, and it therefore follows that the issue is whether the promulgation and...