Murdock v. City of Chicago

• Decision Date: 04 October 2021
• Docket Number: 20 C 1440
• Parties: Anthony MURDOCK, Andrew Cruz, Johonest Fischer, Maurice Grant, Theresa Kennedy, Chawan Lowe, James McGee, Brian Neals, Myron Nelson, John Perry, and Duwayne Richardson, on behalf of themselves and others similarly situated, Plaintiffs, v. CITY OF CHICAGO, Defendant.
• Court: U.S. District Court — Northern District of Illinois

565 F.Supp.3d 1037

Anthony MURDOCK, Andrew Cruz, Johonest Fischer, Maurice Grant, Theresa Kennedy, Chawan Lowe, James McGee, Brian Neals, Myron Nelson, John Perry, and Duwayne Richardson, on behalf of themselves and others similarly situated, Plaintiffs,

v.CITY OF CHICAGO, Defendant.

20 C 1440

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

Signed October 4, 2021

Kenneth N. Flaxman, Joel A. Flaxman, Kenneth N. Flaxman, P.C., Chicago, IL, for Plaintiff Anthony Murdock.

Kenneth N. Flaxman, Kenneth N. Flaxman, P.C., Chicago, IL, for Plaintiffs Duwayne Richardson, Andrew Cruz, Theresa Kennedy, John Perry, Myron Nelson, Chawan Lowe, Johonest Fischer, Brian Neals, Maurice Grant, James McGee.

Bret Anthony Kabacinski, Nicholas Tyler Peluso, Raoul Vertick Mowatt, Stephanie Amanda Sotomayor, City of Chicago Department of Law, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Gary Feinerman, United States District Judge In this putative class action, Plaintiffs allege that the City of Chicago's policy preventing arrestees from posting bond at the police station if arrested on a weekend or holiday, or on a warrant issued outside of Chicago, violates the Fourth Amendment. Doc. 56. Plaintiffs move to compel the City to produce certain Chicago Police Department ("CPD") documents concerning the policy's development and adoption. Doc. 67. The motion is granted in part and denied in part.

Background

CPD Special Order S06-12-02 prohibits individuals arrested in Chicago on weekends and court holidays, or on a warrant issued outside of Chicago, from posting bond at the police station. Doc. 56 at ¶¶ 6-10 & p. 28. Those individuals instead must wait until the following day to post bond at Central Bond Court in the presence of a judge of the Circuit Court of Cook County, Illinois. Id. at ¶¶ 9-10. Those individuals are held overnight at the police station before being transported to Central Bond Court. Ibid.

Discussion

Plaintiffs seek in discovery a copy of Special Order S06-12-02’s "task file," a set of papers by which CPD "documents its work in promulgating written policies." Doc. 67 at 2. The City declined to produce all but some of the task file, arguing that the withheld documents are not relevant and, in the alternative, that they are shielded from discovery by the deliberative process privilege. The City adds that some of the withheld documents are also protected by attorney-client privilege.

I. Relevance

Civil Rule 26(b)(1) states that "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." Fed. R. Civ. P. 26(b)(1). Plaintiffs argue that the task file is potentially relevant because, among other reasons, it could reveal discrepancies between the City's proffered justifications for the Special Order and CPD's actual reasons for adopting it. Doc. 67 at 4; Doc. 74 at 6-7. The City responds that the task file is not relevant because where, as here, a plaintiff challenges the constitutionality of an express municipal policy, the challenge turns on the policy's objective reasonableness and does not require a showing of deliberate indifference. Doc. 71 at 1-2.

Plaintiffs allege that Special Order S06-12-02 violates the Fourth Amendment by causing individuals arrested in Chicago on weekends or holidays, or on warrants issued outside of Chicago, to suffer unreasonably long post-arrest detentions. Doc. 56 at ¶ 12. The Fourth Amendment "forbids detentions that are unreasonable in length." Driver v. Marion Cnty. Sheriff , 859 F.3d 489, 492 (7th Cir. 2017). Although the Fourth Amendment "does not require any particular administrative arrangement for processing bail admissions," "[i]t does require ... that whatever arrangement is adopted not result in seizures that are unreasonable in light of the Fourth Amendment's history and purposes." Williams v. Dart , 967 F.3d 625, 636 (7th Cir. 2020) ; see also Harper v. Sheriff of Cook Cnty. , 581 F.3d 511, 515 (7th Cir. 2009) (holding that the constitutionality of detaining arrestees who had already posted bond "depends on whether the length of the delay between the time the Sheriff was notified that bond had been posted and the time that the detainee was released was reasonable").

A justifiable administrative delay in processing an arrestee, arising from "practical realities" such as "unavoidable delays in transporting arrested persons from one facility to another" or "handling late-night bookings where no magistrate is readily available," does not violate the Fourth Amendment. Chortek v. City of Milwaukee , 356 F.3d 740, 748 (7th Cir. 2004) (quoting County of Riverside v. McLaughlin , 500 U.S. 44, 57, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) ). By contrast, a delay motivated by an "improper purpose," id. at 747 n.3, 748 —such as a delay "for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay's sake"—is unreasonable and therefore violates the Fourth Amendment. Id. at 746 (quoting McLaughlin , 500 U.S. at 56, 111 S.Ct. 1661 ).

Given the nature of the Fourth Amendment inquiry, the task file's documentation of CPD's reasons for adopting the Special Order are potentially relevant to Plaintiffs’ claim. If CPD were motivated by an "improper purpose"—for example, if CPD adopted the Special Order "out of spite" for arrestees subject to warrants issued outside of Chicago, or individuals arrested on weekends or holidays, id. at 747 n.3 —the Special Order might violate the Fourth Amendment. See Williams , 967 F.3d at 635 (holding that a sheriff's policy of delaying detainees’ court-ordered releases on bail violated the Fourth Amendment because the policy was motivated by the sheriff's "opposition to their release" rather than by legitimate administrative needs). Because the task file includes documents describing the goals and methodologies that informed the Special Order's crafting, Doc. 67-4, it may include evidence of CPD's motivations for adopting it, and therefore is potentially relevant to the Fourth Amendment inquiry.

Even setting aside any potentially improper motivations, the task file could contain evidence that is relevant simply because it contradicts the City's proffered justifications for the Special Order. For instance, in its answer, the City submits that its "policies regarding bonding out people arrested on warrants were mandated by Illinois state law, the Illinois Supreme Court Rules, and/or orders implemented by the Circuit Court of Cook County." Doc. 63 at 23. If the task file contains evidence directly contradicting that justification—for example, a determination from CPD counsel that the Special Order in fact was not legally mandated—that would undermine the predicate of the City's submission that the policy is reasonable under the Fourth Amendment. See United States v. Wilbourn , 799 F.3d 900, 909 (7th Cir. 2015) (holding that police officers’ proffered justification for a Terry stop—that they had reasonable suspicion "based on facts known to them as a result of [an] investigation" into the defendant—was invalid because the record was "devoid of any facts" indicating that the officers knew about the investigation at the time of the stop); United States v. Dexter , 165 F.3d 1120, 1124 (7th Cir. 1999) (suggesting that a Terry stop would have been improper if the officer had lied about not having been able to see the car's license plate or temporary registration tag).

The City's argument to the contrary—that because Plaintiffs challenge an express municipal policy, they need not show that anybody in CPD acted with deliberate indifference, and therefore that they have no need to delve into the task file, Doc. 71 at 1-2—misunderstands Plaintiffs’ theory of relevance. As explained, the Special Order's constitutionality turns, at least in part, on CPD's motivations for developing and adopting it. That makes the task file potentially relevant for reasons having nothing to do with whether CPD officials acted with deliberate indifference.

II. Deliberative Process Privilege

"The deliberative process privilege, as its name implies, allows an agency to withhold ‘all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be.’ " Nat'l Immigrant Justice Ctr. v. U.S. Dep't of Justice , 953 F.3d 503, 508 (7th Cir. 2020) (quoting NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 153, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) ). "To encourage candor, which improves agency decisionmaking, the privilege blunts the chilling effect that accompanies the prospect of disclosure." U.S. Fish & Wildlife Serv. v. Sierra Club, Inc. , ––– U.S. ––––, 141 S. Ct. 777, 785, 209 L.Ed.2d 78 (2021). The Seventh Circuit has not resolved whether state and municipal entities may invoke the deliberative process privilege in a federal question suit, so the question remains open in this Circuit. See Williamson v. City of Pekin , 2015 WL 13747583, at *1 (C.D. Ill. July 15, 2015) (citing cases).

Evidence Rule 501 provides that federal common law, not state law, "governs a claim of privilege" in federal question suits. Fed. R. Evid. 501 ; see Hamdan v. Ind. Univ. Health N. Hosp., Inc. , 880 F.3d 416, 421 (7th Cir. 2018) ("[F]ederal courts apply the federal common law of evidentiary privileges—not state-granted privileges—to claims ... that arise under federal law."). That said, the "strong policy of comity between state and federal sovereignties" requires federal courts to "consider the law of the state in which the case arises in determining whether a privilege should be recognized as a matter of federal law." Mem'l Hosp. for McHenry Cnty. v. Shadur , 664 F.2d 1058, 1061 (7th Cir. 1981) (internal quotation marks omitted); see also Nw. Mem'l Hosp. v. Ashcroft , 362 F.3d 923, 933 (7th Cir. 2004) (holding that "comity has required us ... to consider with special...