First Defense Legal Aid v. City of Chicago

• Decision Date: 19 February 2003
• Docket Number: No. 02-3389.,No. 02-3376.,02-3376.,02-3389.
• Citation: 319 F.3d 967
• Parties: FIRST DEFENSE LEGAL AID, Plaintiff-Appellee, v. CITY OF CHICAGO, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 967

319 F.3d 967

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

No. 02-3376.

No. 02-3389.

United States Court of Appeals, Seventh Circuit.

Argued December 11, 2002.

Decided February 19, 2003.

Locke E. Bowman, III(argued), Chicago, IL, for First Defense Legal Aid and Sladjana Vuckovic.

Paul A. Castiglione(argued), Office of State's Attorney of Cook County, Chicago, IL, Patrick T. Driscoll, Jr., Office of State's Attorney of Cook County, Federal Litigation Div., Chicago, IL, for Richard A. Devine.

Lawrence Rosenthal(argued), Mara S. Georges, Office of Corp. Counsel, Appeals Div., Chicago, IL, for City of Chicago, Terry G. Hillard, Frank Trigg, Walter Green and Richard Kobel.

Jacob M. Lewis(argued), Dept. of Justice, Civ. Div., Appellate Section, Washington, DC, for U.S., Amicus Curiae.

Aimee B. Anderson, Wildman, Harrold, Allen & Dixon, Chicago, IL, Donald R. Zoufal, Illinois Dept. of Corrections, Chicago, IL, for Illinois Ass'n of Chiefs of Police and Major City Chiefs Ass'n, Amicus Curiae.

Before COFFEY, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.

EASTERBROOK, Circuit Judge.

According to Moran v. Burbine,475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410(1986), a suspect in police custody does not have a constitutional right to be notified that his attorney is at the station-house.The Constitution permits the suspect to request counsel and stop the interrogation but does not require notice about the lawyer's whereabouts.Chicago applies to cooperating witnesses the approach sustained in Moran for custodial interrogation: Witnesses are not notified of attorneys' presence and undergo interrogation without legal advice unless they request access to counsel.The district judge found, after a trial, that "[w]hen a spontaneous request is made by a witness, the police attempt to discourage the contact, telling the witness either that he does not need a lawyer or that it is better if fewer people know he is at the station, or both.Only if the witness nonetheless `insists' on counsel will he be permitted to communicate with an attorney."225 F.Supp.2d 870, 875(N.D.Ill.2002)(emphasis in original; internal citations omitted).The district court held that this practice is unconstitutional and issued a permanent injunction requiring the City (and the State's Attorney for Cook County) to notify a witness as soon as an attorney arrives purporting to represent him; the injunction also compels the police to admit the attorney so that the notice must be given in his presence, and he may confer in confidence with the witness.225 F.Supp.2d at 892-93.In light of Moran, this holding was not based on a theory that the City's practice violates the witness' rights; instead, the district court found, the practice violates the attorney's right under the first amendment(applied to the states through the fourteenth) to associate with his client.We stayed the injunction and expedited the appeal.

One immediate obstacle to this approach is the fact that the interior of a police station is not a public forum.The Constitution does not create either a right of access to the inside of governmental buildings, seeHouchins v. KQED, Inc.,438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553(1978), or an obligation to offer a message-delivery service for the benefit of those who arrive at the door.SeeThornburgh v. Abbott,490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459(1989).Plaintiff First Defense, a legal-aid bureau that offers free assistance to persons associated with crime (either as suspects or as witnesses), concedes that there is no general right of access but contends that it possesses special rights of association with its clients.The idea appears to be that if the witness cannot come out, then the lawyer must be let in.How far this line of argument goes to establish rights to visit inmates in prison is a question now before the Supreme Court.SeeBazzetta v. McGinnis,286 F.3d 311(6th Cir.2002), cert. granted under the nameOverton v. Bazzetta,___ U.S. ___, 123 S.Ct. 658, 154 L.Ed.2d 514(2002).It is hard to reconcile this contention with Moran, for suspects are not free to come out yet need not be notified of counsel's arrival.Witnesses present an easier situation, for they are entitled to leave the police station and meet their attorneys outside (or anywhere else).

What is more, the district court's injunction extends beyond the attorney-client relation to require the police to admit attorneys who have not yet been engaged as counsel.This is why we referred to attorneys "purporting to" represent a witness; the injunction does not permit the police to determine whether a given attorney actually represents a given witness.The district court found that First Defense generally enters the picture at the request of witnesses' family or friends.The judge stated without elaboration that "[t]hose requests suffice to create an attorney-client relationship between the FDLA attorney and the person being held."225 F.Supp.2d at 873.It is hard to see how this can be so; an attorney is an agent, and there can be no agency without the knowledge and consent of a principal.It takes two to associate; a one-sided desire to counsel a witness does not create a protected "right of association."Neither First Defense nor the district court has drawn to our attention any statute or opinion providing that requests by third parties create attorney-client relations in Illinois.The district judge did cite decisions prohibiting police from looking behind a claim of representation—"the police must accept the FDLA attorney's assertion that he or she represents the witness until the contrary is proved.See, e.g., People v. McCauley,228 Ill.App.3d 893, 898, 172 Ill. Dec. 222, 595 N.E.2d 583(1992), rev'd in part on other grounds but reaffirming the same principle,163 Ill.2d 414, 206 Ill.Dec. 671, 645 N.E.2d 923(1994)("Moreover, when an attorney reasonably identifies himself and reasonably informs the police that he represents a suspect in custody, the police have no entitlement to make their own on the spot determination that the attorney does not lawfully represent the suspect.The purview for making that determination is plainly outside the bounds of the police")", 225 F.Supp.2d at 886—but neither McCauley nor any other casewe could find concludes that an attorney's say-so, or a friend's invitation, actually creates an attorney-client relation.

Sometimes a family member may act as next friend on behalf of a person unable to protect his own interests, but "friends"(the district court's opinion supplies no details about who these may be) differs from "next friends."Two courts of appeals recently have held that persons in custody must select counsel for themselves; volunteers and friends may not form an attorney-client relation on behalf of persons in custody.Coalition of Clergy, Lawyers & Professors v. Bush,310 F.3d 1153(9th Cir.2002);Hamdi v. Rumsfeld,294 F.3d 598(4th Cir.2002).See alsoWhitmore v. Arkansas,495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135(1990);Graham v. Lappin,255 F.3d 906(7th Cir.2001).Friends may be particularly poor champions of witnesses, for professed "friends" could be the very persons under investigation.Police and witnesses alike know that criminal organizations often retaliate against those who assist law enforcement.A legal rule entitling "friends" to send lawyers to police stations, and compelling the police to admit them, could help these criminals determine who within the organization has switched sides, with potentially fatal results—for attorneys acting in the best of faith may enable the "friend" to learn that a particular person has provided information to the police.Cf.United States v. Aguilar,515 U.S. 593, 115 S.Ct. 2357, 132 L.Ed.2d 520(1995)(prosecution of a federal judge for alerting a suspect to an investigation).Worse: although the district judge found that First Defense is above board, not all attorneys are honest.Some set out to assist criminal organizations, and the police thus may be right to counsel witnesses that the fewer people who know of their presence at the stationhouse, the better for their safety.

Nonetheless, because some of First Defense's requests may come directly from the witnesses (before they enter the stationhouse), we must consider what access an attorney may obtain after a bona fide attorney-client relation has been formed.First Defense contends that it has a preferred right of access—one greater than the press, which First Defense acknowledges lacks a legal entitlement to enter police stations—in large measure because Chicago's police mistreat witnesses.The district court agreed with this submission, finding that the police lock witnesses into Spartan rooms, sometimes holding them overnight against their will—and rarely informing the witnesses that they are free to leave.Yet no such advice is required by existing statutes or the Supreme Court's opinions: if a witness has turned into a suspect being held under custodial interrogation, then the witness is not free to leave (though Miranda warnings become essential); and if the witness is not in custody, then no advice of rights is needed.SeeOhio v. Robinette,519 U.S. 33, 117 S.Ct. 417, 136 L.Ed.2d 347(1996).See also, e.g., Schneckloth v. Bustamonte,412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854(1973);Rogers v. Richmond,365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760(1961).What First Defense really wants to do is to counteract decisions such as Robinette and Schneckloth by gaining entry in order to deliver the advice that it thinks the police should have given.But if the police are violating the rights of some witnesses by holding them against their will, the right response is to award damages to the witnesses(or suppress evidence if the witness becomes a defendant and the prosecutor seeks to use the statement against him).When A's...