Pratt v. Chicago Housing Authority

• Citation: 848 F. Supp. 792
• Decision Date: 07 April 1994
• Docket Number: No. 93 C 6985.,93 C 6985.
• Court: U.S. District Court — Northern District of Illinois
• Parties: Mark PRATT, Easter Redman, Ethel Washington and Barbara Moore, Plaintiffs, v. The CHICAGO HOUSING AUTHORITY, Defendant. and Everett Alexander, Mary Baldwin, Deverra Beverly, Mamie Bone, Louis Brown, Hattie Calvin, Annie Davis, Beverly Dorsey, Helen Finner, Beatrice Harris, Myra King, Jerome Price, Artensa Randolph, Charles Reynolds, Dorothy Shelton, Esther Wheeler, Gloria Williams, Julia Wimms, Defendant-Intervenors.

848 F. Supp. 792

Mark PRATT, Easter Redman, Ethel Washington and Barbara Moore, Plaintiffs, v. The CHICAGO HOUSING AUTHORITY, Defendant. and Everett Alexander, Mary Baldwin, Deverra Beverly, Mamie Bone, Louis Brown, Hattie Calvin, Annie Davis, Beverly Dorsey, Helen Finner, Beatrice Harris, Myra King, Jerome Price, Artensa Randolph, Charles Reynolds, Dorothy Shelton, Esther Wheeler, Gloria Williams, Julia Wimms, Defendant-Intervenors.

No. 93 C 6985.

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

April 7, 1994.

Harvey Grossman, Patricia Mendoza, Rocio L. Cordoba, The Roger Baldwin Foundation of ACLU, Inc., Chicago, IL.

James J. Casey, Bradford T. Yaker, Keck Mahin & Cate, Chicago, IL.

Sharon A. Wildey, Sharon A. Wildey & Associates, Chicago, IL.

Edward W. Feldman, James P. Bailinson, Miller, Shakman, Hamilton, Kurtzon and Schlifke, Chicago, IL.

Thomas P. Sullivan, Michael R. Pace, Jenner & Block, Chicago, IL.

PRELIMINARY INJUNCTION ORDER

ANDERSEN, District Judge.

Plaintiffs Mark Pratt, Easter Redman, Ethel Washington and Barbara Moore have brought this action on behalf of all tenants and lawful residents of property owned and operated by defendant Chicago Housing Authority ("CHA"). Plaintiffs' complaint is a civil rights action for declaratory and injunctive relief arising under 42 U.S.C. §§ 1983, 1988, and 28 U.S.C. §§ 2201, et seq., due to defendant's alleged violations of the tenants' rights guaranteed by the Fourth and Fourteenth Amendments of the Constitution of the United States. Defendant-intervenors are CHA residents who are Local Advisory Council ("LAC") Presidents for eighteen of the nineteen CHA developments and who contend that the CHA's policy and practice as described in the complaint does not violate the Fourth Amendment. Each CHA development has a LAC and LAC members and presidents are elected by each development's residents. The LAC Presidents, in turn, comprise the CHA Central Advisory Council ("CAC"), representing CHA residents from all CHA developments. The CAC adopted a resolution on February 14, 1994 indicating its official support for the CHA's searches and sweeps and authorizing the representation of counsel to pursue the intervenors' interest in this case.

On February 14, 1994, this court granted plaintiffs' request for a temporary restraining order. Plaintiffs now seek to convert the temporary restraining order into a preliminary injunction. Based on the pleadings, affidavits, testimony and arguments submitted to the court, the plaintiffs' motion for a preliminary injunction is granted for the following reasons.

I. BACKGROUND

The CHA is an Illinois municipal corporation and a duly authorized housing authority of the State of Illinois created and existing under the Illinois Housing Authorities Act, 310 ILCS 10/1, et seq. Its police department has "all powers possessed by the police of cities, and sheriffs" pursuant to Section 8.1a of that Act. 310 ILCS 10/8.1a. Beginning in the summer of 1993, the CHA ordered its police department to "sweep" twelve residential buildings. Those "sweeps" took place on four different dates. The sweeps included searches of all residential units located within the buildings. The sweeps were conducted by searching entire apartment units, including closets, drawers, refrigerators, cabinets and personal effects. The normal procedure of obtaining search warrants from a judge was not attempted, so all searches were without court sanction. The sweeps themselves, due to the logistical difficulties of coordinating sufficient police to search properly, normally took place several days after the emergency circumstances arose and never occurred earlier than forty-eight hours after the alleged criminal activity. Although the CHA obtained consent to search from many tenants, it concedes that consent was not obtained from some tenants, such as those who were not home when the searches occurred.

The sweeps were explicitly authorized and directed by Vincent Lane, acting in his capacity as Chairman of the Board of Commissioners of the CHA, when he determined that the appropriate preconditions for a sweep had been met. Those preconditions include random gunfire from building to building and/or intimidation at gunpoint or by shooting if weapons were taken into buildings. If CHA police officers could not ascertain into which apartments weapons had been taken, they would request that a sweep be authorized. The most notorious instance triggering a sweep was random gunfire threatening the lives of workers installing window guards on buildings at the Robert Taylor homes.

Although no written policy has been adopted by the CHA, the CHA has advised the court that it intends to order these sweeps if the appropriate preconditions exist in the future. The CHA has defined these preconditions and the subsequent sweeps as its "Search Policy." The court, the plaintiffs and the intervenors accept this definition of "Search Policy."

It is this Search Policy that the plaintiffs seek to enjoin in the case of Pratt, et al. v. CHA, 93 C 6985, 1994 WL 168252 (N.D.Ill. 1994). Plaintiffs contend that searches conducted pursuant to the Search Policy violate the Fourth Amendment's constitutional guarantee against unreasonable search and seizure. The common denominator of the events triggering implementation of the Search Policy is the perceived need to respond on a dramatic basis to criminal activity which threatens the lives and safety of innocent persons in and around the CHA buildings.

Plaintiffs in the Pratt case do not seek to limit CHA actions taken pursuant to the Consent Decree entered in the related case of Summeries, et al. v. CHA, 88 C 10566. Searches authorized by the Summeries decree are not in response to particular criminal activity. The Summeries case was brought by CHA tenants alleging constitutional violations in connection with (1) emergency housing inspections of CHA properties by CHA and the City of Chicago Police Department, and (2) CHA's policy regarding visitors and guests to CHA properties which have been inspected and secured. Since the entry of the Summeries Consent Decree, the CHA has conducted numerous housing inspections at buildings throughout its system in order to identify and remove unauthorized occupants, inspect the condition of apartment units, distribute resident identification cards and secure the entranceways to the buildings. The CHA personnel and police officers are not allowed to search drawers, closets or personal effects under the Summeries Consent Decree.

II. DISCUSSION

In order to grant a preliminary injunction, the court must find that: (1) the plaintiffs have at least a reasonable likelihood of success on the merits; (2) plaintiffs have no adequate remedy at law and will be irreparably injured if the defendants are not enjoined; (3) the balance of hardships favors granting the preliminary injunction; and (4) the public interest will not be disserved if the injunction is granted. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Salvano, 999 F.2d 211, 214 (7th Cir.1993); Wesley-Jessen Div., Etc. v. Bausch & Lomb, Inc., 698 F.2d 862, 865 (7th Cir.1983). Plaintiffs have the burden of proving each of these factors. Roland v. Air Line Employees Ass'n, Int'l, 753 F.2d 1385, 1392 (7th Cir.1985). In this case, the court is satisfied that plaintiffs have carried their burden of demonstrating that the circumstances meet each of the four requirements.

A. Likelihood of Success

In this case, there is a reasonable likelihood that plaintiffs will succeed in proving that the CHA's Search Policy violates the requirements of the Fourth Amendment that non-consensual searches of a home for lawenforcement purposes be based in all cases upon probable cause, and that such searches be made pursuant to a warrant, except in cases of extreme immediate urgency known as "exigent circumstances." The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.¹ As the United States Supreme Court has stated:

The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home — a zone that finds its roots in clear and specific constitutional terms: "The right of the people to be secure in their ... houses ... shall not be violated." That language unequivocally establishes the proposition that "at the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." (citation omitted).

Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 1381-82, 63 L.Ed.2d 639 (1980). Thus, "the chief evil against which the Fourth amendment is directed is the physical entry of the home." United States v. Berkowitz, 927 F.2d 1376, 1385 (1991) aff'd, 972 F.2d 352 (7th Cir.1992). Accordingly, a warrantless police search inside a home is presumptively unconstitutional. Payton, 445 U.S. at 586, 100 S.Ct. at 1380; Reardon v. Wroan, 811 F.2d 1025, 1027 (7th Cir.1987).

In order to overcome the presumption that a warrantless search of a home is unconstitutional, the defendant must show that it had both probable cause for the search and exigent circumstances that excuse its failure to obtain the warrant. See, e.g., Reardon, 811 F.2d at 1028. Exigent circumstances alone cannot suffice. See, e.g., Payton, 445 U.S. at 588-89, 100 S.Ct. at 1381-82; Reardon, 811 F.2d at 1028; United States v. Paul, 808 F.2d 645, 647 (7th Cir.1986).

In this case, the fundamental requirement of probable cause is fatal to the Search Policy because the Search...