First Defense Legal Aid v. City of Chicago

• Decision Date: 09 September 2002
• Docket Number: No. 01 C 9671.,01 C 9671.
• Citation: 225 F.Supp.2d 870
• Parties: FIRST DEFENSE LEGAL AID, Plaintiff, v. CITY OF CHICAGO, et. al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

225 F.Supp.2d 870

FIRST DEFENSE LEGAL AID, Plaintiff, v.CITY OF CHICAGO, et. al., Defendants.

No. 01 C 9671.

United States District Court, N.D. Illinois, Eastern Division.

September 9, 2002.

Locke E. Bowman, Jean Maclean Snyder, Joel Hunter, Senior Law Student, Molly Kim, Senior Law Student, MacArthur Justice Center, University of Chicago Law School, Chicago, IL, Craig B. Futterman, Edwin F. Mandel Legal Aid Clinic, University of Chicago Law School, Chicago, IL, for plaintiff.

Mara S. Georges, CorporationCounsel, Alec M. McAusland, Assistant CorporationCounsel, Allen Duarte, Assistant CorporationCounsel, Commercial & Policy Litigation Division, City of Chicago, Department of Law, Chicago, IL, for defendant, City of Chicago.

June K. Ghezzi, Daniel E. Reidy, Jason G. Winchester, Susan L. Winders, Jones, Day, Reavis, & Pogue, Chicago, IL, for defendants, Hillard, Trigg, Green, Kobel, and Mahnke.

Paul A. Castiglione, Assistant State's Attorney, Louis R. Hegeman, Assistant State's Attorney, Patrick T. Driscoll, Jr., Deputy State's Attorney, Cook County State's Attorney's Office, Chicago, IL, for defendant, Cook County State's AttorneyRichard A. Devine.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER AWARDING INJUNCTIVE RELIEF

SHADUR, Senior District Judge.

These findings of fact ("Findings") and conclusions of law ("Conclusions") are being entered in this action brought by First Defense Legal Aid ("FDLA") against City of Chicago("City"), its Police Superintendent and four of its Police Area Commanders (collectively "Police Defendants") and Cook County State's AttorneyRichard Devine.Because the evidence adduced by the parties calls for the entry of a permanent injunction in favor of FDLA and against all defendants, the Findings and Conclusions are being promulgated pursuant to Fed.R.Civ.P. ("Rule")52(a), followed by the entry of an order granting the appropriate permanent injunctive relief.To the extent (if any) that the Findings as stated may be deemed conclusions of law, they shall also be considered Conclusions.In the same way, to the extent (if any) that matters later expressed as Conclusions may be deemed findings of fact, they shall also be considered Findings.In both of those respects, seeMiller v. Fenton,474 U.S. 104, 113-14, 106 S.Ct. 445, 88 L.Ed.2d 405(1985).

FINDINGS OF FACT

These Findings are drawn from evidence presented at a three day evidentiary hearing ("Hearing," held on June 7, June 12 and June 25, 2002) on FDLA's motion for a temporary restraining order("TRO") and from the affidavits submitted in conjunction with the Hearing.Although all parties have been offered the opportunity to supplement the TRO hearing record, all have agreed that the record may be considered as the ultimate record in the case and that it suffices to enable this Court to determine whether and to what extent FDLA should be awarded permanent injunctive relief on its Complaint (see, e.g., City and Police Defendants Proposed Finding¶ 21;State's Attorney Proposed Findings and Conclusionsat 3;FDLA's Proposed Findingsat 1).

These Findings include both matters directly testified to during the Hearing and inferences drawn from that testimony in accordance with the well-established rule that the trial court may draw reasonable inferences from the evidence in making its findings.See, e.g., McDermott v. John Baumgarth Co.,286 F.2d 864, 868(7th Cir.1961)("It is a function of a trial judge to draw reasonable inferences from the facts appearing before him");BASF Corp. v. Old World Trading Co.,41 F.3d 1081, 1097-98(7th Cir.1994).

Parties

1.FDLA is a non-profit legal aid agency formed in 1994 for the purpose of providing free legal counsel to indigent persons at Chicago police stations during questioning by the police and other law enforcement officials.Tr. 52-53.

2.City is a municipal corporation, organized under the laws of the State of Illinois, that operates the Chicago Police Department("Department").

3.Police Defendants comprise Department's Superintendent Terry Hillard and four of Department's Area Commanders: Area One's Frank Trigg, Area Two's Walter Green, Area Four's Richard Kobel and Area Five's Gerald Mahnke.

4.Richard A. Devine is the State's Attorney of Cook County.

FDLA's Work

5.FDLA was organized to afford counsel to indigent persons in police stations who need advice concerning their legal rights but would not otherwise have counsel.Under the Illinois Public Defenderstatute, counsel are provided to indigent defendants at the time of their initial court appearances, not before.Thus, in the words of FDLA's Executive Director Darron Bowden, FDLA fills a "critical gap" by working to "make real" the opportunity of indigent individuals to consult with counsel at police stations before they are charged.Otherwise such persons, even if they were to request counsel, would not in practice have a lawyer available to them.Tr. 52-53.

6.FDLA operates a 24 hour hotline, with a widely publicized number (1-800-LAW-REP4) that people can call when a family member or friend has been taken to a Chicago police station.FDLA gets information about the person being held¹ from the caller and, where the case meets FDLA guidelines, sends a lawyer to the police station to assist that person.Tr. 52-54, 80-81.At the time of the Hearing, FDLA's policy was to respond to calls requesting assistance for juveniles and for persons being held in connection with felony offenses, as well as in cases in which the person is alleged to have been injured or a victim of police misconduct.Tr. 59.

7.When FDLA attorneys appear at Chicago police Area Headquarters to speak with a person there, it is because they have been specifically requested by a friend or family member to assist that person.Those requests suffice to create an attorney-client relationship between the FDLA attorney and the person being held.In each instance the FDLA attorney informs police personnel at the station that he or she has been retained to represent that specific person and requests the opportunity to speak with the individual.SeeTr. 60-61, 80-81.

8.Since its inception in 1994, FDLA has responded to well over 10,000 calls received through the hotline.Tr. 53.FDLA focuses its outreach and its services on low-income communities in which a relatively high proportion of the population has had or is having some involvement with the criminal justice system.Tr. 56.FDLA provides its services through a staff of three paid lawyers and a group of approximately 50 volunteer attorneys whom FDLA recruits, trains and supervises as they provide that representation.

9.In the course of its direct representation, FDLA represents both persons who are in custody² as suspects in criminal investigations and persons who are not in custody but are being held at the police station for questioning as witnesses to an offense.

10.In addition to its direct representation, FDLA engages in issues-related advocacy on topics that it learns of in the course of its direct representation and that it deems significant.FDLA also engages in public education and public outreach as to the rights of persons to consult with counsel when they are held at police stations.Tr. 53-54.

11.FDLA's successful performance of its organizational mission depends upon its being perceived in the community as a capable and diligent defender of the constitutional and statutory rights of its client population.When FDLA asserts such rights on behalf of its clients and the police refuse to honor those assertions, FDLA's credibility is diminished in the eyes of its clients.Tr. 57-58.

12.There was no credible evidence at the Hearing that FDLA engages in direct representation of clients in anything other than a lawful and ethical manner or that FDLA seeks to advance any goal other than protecting the best interests of the client-witnesses themselves.

13.On a number of occasions Chicago police have refused FDLA attorneys permission to meet and speak at Chicago police stations with witnesses whom FDLA has been asked to represent:

(a) On two occasions earlier this year, FDLA Executive Director Bowden was denied access to witnesses.On one of those occasions (at Area Two police headquarters) the witness was held for over five hours, and when he emerged from the police station his belt was in his hands and he was missing his car keys, which the police said they had misplaced.Tr. 64-68.

(b) On May22 and 23, 2002 FDLA attorney Sladjana Vuckovic("Vuckovic") and FDLA volunteer attorney Leonard Goodman("Goodman") were refused permission to speak with two clients, Andre Winston("Winston") and Dijuan Davis("Davis"), who were held at the Area Four police headquarters for questioning for over 24 hours.Tr. 81-90.

(c) On June 4, 2002 attorney Vuckovic was refused permission to speak with a client-witness named Karen Terrell.Tr. 90-95.

(d) In June 2002 FDLA attorneys were barred from access to a number of witnesses who were being held by the police for questioning in connection with the investigation of the murder of Chicago Police Officer Brian Strouse.Tr. 295-302.

(e) Attorney Vuckovic estimated in her testimony that she personally has been refused access to witnesses at Chicago police stations on 25 occasions since she became FDLA's Legal Director in January 2001.Tr. 112-13.

(f) FDLA attorney Dawn Sheikh("Sheikh") estimated that her experience included 7 to 10 occasions on which she had been refused permission to speak with witnesses being held at Chicago police stations.Tr. 269-70.

14.Because of the volume and ongoing nature of FDLA's work and in light of the positions taken by defendants and their counsel during the Hearing and throughout this litigation, it is more than reasonable to infer—and this Court expressly finds—that FDLA will continue to face large numbers of future denials of access to witnesses whom it has been asked to represent unless this Court en...