INTRODUCTION



Chicago Red Squad

A Case Study of Alliance to End Repression v. City of Chicago

Esther Lim, Jonathan Rhodes, and Jacob Shorr

Law enforcement has a long history of gathering intelligence on political organizations and attempting to disrupt groups whose dissenting opinions and activities challenge the status quo. The start of the international labor movement in 1886, when labor strife erupted in the infamous Haymarket Riots, was marked by police use of infiltration and surveillance to squelch dissent from anarchists and labor unions, to communists and radical activists. In recent history, many law enforcement agencies created special police units with a focus on infiltrating subversive organizations and gathering intelligence on political and social groups. These local entities, known as Red Squads, were common across the country during the First Red Scare of the 1920s through the McCarthy era. In the 1960s the Red Squads turned their attention from specifically communist threats to the activism of the Vietnam War and Civil Rights era, spurred on in great part by the FBI and Hoover’s push for files to be maintained on those deemed subversive.

Law enforcement often found itself dealing with a new brand of dissident in the turbulent 1960s. Beyond the nonviolent protests and peaceful marches of the early 60s, the idea of radical revolution had taken hold. In fact, many groups plotted and attempted to bring down the U.S. Government through political dissidence and acts of violence. The City of Chicago became a hotbed of unrest, from underground activism to the well-publicized riots at the 1968 Democratic National Convention. For example, the Weather Underground Organization, known as the Weathermen, referred to itself as a revolutionary organization of women and men whose purpose was to carry out a series of attacks that would achieve the revolutionary overthrow of the Government of the United States. The Weathermen had hundreds of members and carried out violent attacks on federal offices around the country. Similarly, the Black Panther Party (BPP) was famous for its position that nonviolence could not bring about social change in a society as violent as the United States.

The public nature of the Weathermen and BPP’s armed, civil disobedience, shocked and scared many Americans. The Chicago Police and Federal Bureau of Investigations developed new and drastic tactics to infiltrate and disrupt such groups. Chicago Police Department’s political squad operated for the purpose of “chilling, harassing, intimidating, “disrupting” the organizations and “destroying the left”.[1]

Numerous members of the Weathermen were arrested and the group eventually disbanded. The BPP’s leader, Fred Hampton, became the target of investigation. He was killed while he slept in his apartment by a tactical unit of the Chicago Police, State’s Attorney’s Office, and the FBI. The assassination of Fred Hampton and other police abuses outraged many people who believed that the Red Squads had gone unchecked for too long. Not only were the police conducting operations to disrupt the most radical political activists, they were using similar tactics to infiltrate peaceful groups. It became clear that law enforcement was disrupting the peoples’ exercise of their First Amendment rights.[2] In the early 1970s, a series of lawsuits began to emerge that would challenge, and eventually but an end to, law enforcements unchecked surveillance, infiltration, and disruption of groups with unwelcome political views.

The Alliance to End Repression was created in the early 1970s as a response to the ongoing violations of civil liberties occurring in Chicago at that time.[3] Though these abuses were widespread, the assassinations of Black Panther leaders, Mark Clark and Fred Hampton, specifically triggered the formation of the Alliance.[4] On December 4, 1969, Clark and Hampton were brutally murdered in their sleep in their own home by the Chicago police.[5] These assassinations were carried out by the Chicago police, but planned with the aid of the Federal Bureau of Investigation as well as with the aid of an informant placed within the Black Panthers. [6] According to John Hill, the executive coordinator of the Alliance, these assassinations were regarded as the “ultimate in repression” and necessitated a response from the community.[7] As a result, the Alliance was formed as a broad coalition of various religious and community groups.[8] The Alliance was created with the sole aim to “attack repression wherever it was” because “[t]here were so many wrongs that needed to be righted.”[9]

The Alliance directed their attention to various civil liberties violations in Chicago, which included the activities of the “Red Squad.”[10] The Red Squad was the informal name for the Subversive Activities Unit of the Chicago Police Intelligence Division.[11] This unit was entirely separate from the intelligence unit that gathered information on criminal activity.[12] Instead, this unit was focused exclusively on gathering information on lawful political activity.[13] The Alliance was aware of the Red Squad’s activities because members of the Red Squad would openly harass different organizations or members participating in those organizations.[14] For example, at demonstrations or protests, Red Squad members would harass the participants using information they had gained about their personal lives; or Red Squad members would have photographers take pictures of all those attending meetings related to different community organizations; or Red Squad members would even slip the media derogatory information about different people and organizations; or Red Squad members would break into organizational offices and steal some of their files and equipment.[15] Due to the blatant violation of the First Amendment by the Red Squad the Alliance decided that its best course of action was to file a lawsuit against the Red Squad.[16]

Though the violations of the Red Squad may have been blatant, there were very few attorneys that wanted to supervise this lawsuit.[17] In general, in the early 1970s the courts seemed to be unwilling to impose limits on the police methods of collecting information or on the kinds of information the police collected.[18] In 1972, the Supreme Court had held in Laird v. Tatum that the mere existence of government surveillance does not create the grounds for a lawsuit.[19] In 1971 in New York the federal case Handschu v. Special Services Division was brought to curtail the surveillance tactics of the New York City Police. Although Handschu eventually resulted in a Consent Decree similar to the Chicago Consent Decree, the defendant’s ability to put the case in limbo on the discovery issue until 1979 was seen as a minor victory for the police, and indicated a major problem for the Chicago plaintiffs in their ensuing case.[20]

As a result, most attorneys regarded this type of lawsuit as a “high risk” case.[21] When an attorney from the Alliance brought this case to the Illinois American Civil Liberties Union in 1973, there was difficulty finding an attorney willing to supervise this lawsuit.[22] Finally, Richard Gutman, an attorney who had come to work for the ACLU immediately following law school, volunteered to work on this case.[23] This decision ultimately defined Gutman’s legal career. In the book, The Price of Dissent, Gutman explains,

I’d rather have this than any other kind of case I can think of. I didn’t become a lawyer to practice law as an end to itself. I became a lawyer because that was the way I saw myself participating politically. … I decided that I could best contribute as a lawyer. When I learned of this case, I knew how important it was. A unit of government whose purpose is political repression, that does nothing but target lawful political dissent—to me, that’s an extremely important type of litigation. It’s something that affects all political groups, everyone.[24]

On November 13, 1974, the Alliance to End Repression, et al. v. City of Chicago, et al. was filed as a class action lawsuit.[25] This lawsuit was brought under 42 U.S.C., Section 1983 as a civil action.[26] The plaintiff class initially consisted of eighteen named individuals and fifteen named groups, as well as included all those who were similarly situated.[27] The original defendants included the commanders of the Intelligence Division, those referred to as the Unknown Agents of The Chicago Police Department, two specifically named police officers, and the direct superiors to all these defendants, including the Mayor of the city.[28] The plaintiffs sought declaratory and injunctive relief, as well as compensatory damages due to the violations of their rights under the First, Fourth, Fifth, Sixth, Eight, Ninth and Fourteenth Amendments to the Constitution.[29] The complaint included a general allegation of “unlawful intelligence gathering activities” of the Chicago Police Department’s Intelligence Division.[30] This division was allegedly under the general order to gather individuals on either individuals or organizations who pose “a threat to the security of the country, state or city.”[31] The complaint alleged that under this general order this division engaged in a continuing pattern and practice involving the following activities: (1) surveillance and intelligence-gathering on individuals and organizations engaged in lawful activities; (2) unlawful wire-tapping and other forms of electronic surveillance; (3) unlawful entry and seizure; (4) dissemination of derogatory information concerning plaintiffs; (5) summary punishment and harassment, and (6) infiltration of private meetings and political organizations by informers and provocateurs.”[32] In summary, the activities were said to have a chilling effect of the plaintiffs’ exercise of their First Amendment rights.[33]

In response, the defendants filed a motion to dismiss the complaint based primarily on the argument that the plaintiffs lacked standing to sue due to a failure to present a justiciable controversy.[34] The defendants relied heavily upon Laird v. Tatum, where the Supreme Court held that the plaintiffs did not present a justiciable controversy in the absence of any specific allegations of violations of their First Amendment rights.[35] The Court explained that the mere existence of an intelligence gathering and distribution system and its general effect on the plaintiffs could not sustain the complaint.[36] As a result, the defendants argued that the complaint in the case at hand also did not present a justiciable controversy and should be dismissed.[37]

While the parties waited for the judge’s decision regarding the motion to dismiss, all discovery related to this case was halted.[38] During this time, Gutman determined it was crucial to attempt to discover other ways to expose the activities of the Red Squad.[39] Gutman explains that the “first major breakthrough” occurred as a result of Gutman’s involvement in a separate lawsuit against the Chicago Police.[40] During the discovery portion of this employment discrimination lawsuit, Gutman received a payroll list including the name of all the officers and other relevant information, including their assignments.[41] While reviewing the list, Gutman came across the classification of “Assignment Unknown.”[42] He noticed that there were eight names given this assignment and immediately recognized two names—Howard Pointer and Geno Addams.[43] Pointer was a leader of Operation PUSH (People United to Serve Humanity) and, after the Alliance lawsuit was filed, had voluntarily confessed to its founder Jesse Jackson that he was a Red Squad cop.[44] Addams happened to be an active member of the Alliance.[45] With that payroll list, Gutman had discovered that the Alliance itself had a police informant among them.[46]

He further investigated the other names and found that three other community groups had been infiltrated by the police.[47] He then promptly informed the media of his discovery.[48] This led to multiple headlines in the Chicago newspapers and prompt public outcry.[49] Although Mayor Daley continued to stand behind the actions of the Chicago Police Department, the State’s Attorney at that time, Bernard Carey, recognized one of the Red Squad police officers as one of the men who had previously participated in a demonstration outside of his home.[50][51] According to Gutman, Carey was furious when he realized one of the demonstrators was a paid police officer and thought that Mayor Daley was using the police officer to turn community groups against him.[52] State’s Attorney Carey then convened a Cook County grand jury to investigate the Red Squad.[53] At this time, the parties were still awaiting the district court’s decision regarding the motion to dismiss.

The continued media exposure from March through May of 1975 was significant because it finally drew public attention to the activities of the Red Squad. However, it also revealed the existing double standard. Though there were previous incidents of radical groups being spied on, infiltrated, or harassed by the police, the public and the media had paid very little attention.[54] Gutman explained, “They think: ‘It’s probably good that the government watches them.’ But when it’s mainly white mainstream-type groups, all hell breaks loose.”[55] After these exposures, the Red Squad was completely discredited and voluntarily abolished.[56] This all occurred still before the ruling on the motion to dismiss.

On May 16, 1975, the court soundly rejected the defendants’ arguments and denied their motion.[57] The court found the Laird holding to be completely inapplicable to this case due to the complaint in this case containing allegations that the plaintiffs were specifically targeted as objects of surveillance by the defendants.[58] The court proceeded to outline six separate sections detailing the specific allegations of a variety of police misconduct directed against the plaintiffs.[59] In addition, the court found that this ongoing course of conduct was substantially more intrusive and widespread than any previous comparable cases.[60] The court further concluded that if the allegations contained in the complaint could be proven through facts, then the defendants would indeed to be entitled to relief.[61]

On March 25, 1976, the district court certified two plaintiff classes, one consisting of individuals and the other of organizations, in the Alliance case.[62] The plaintiff class consisting of individuals included:

all residents of the City of Chicago, and all other persons who are physically present within the City of Chicago for regular or irregular periods of time, who engage or have engaged in lawful political, religious, educational or social activities and who, as a result of these activities, have been within the last five years, are now, or hereafter may be, subjected to or threatened by alleged infiltration, physical or verbal coercion, photographic, electronic, or physical surveillance, summary punishment, harassment, or dossier collection, maintenance, and dissemination by defendants or their agents.[63]

The plaintiff class consisting of organizations included:

all organizations located or operating in the City of Chicago who engage or have engaged in lawful political, religious, educational or social activities and who, as a result of these activities, have been within the last five years, are now, or hereafter may be, subjected to or threatened by alleged infiltration, physical or verbal coercion, photographic, electronic, or physical surveillance, summary punishment, harassment, or dossier collection, maintenance, and dissemination by defendants or their agents.[64]

These class certifications played an increasingly significant role during subsequent discovery rulings by the court.

On July 1, 1976, the plaintiffs obtained an initial court order that ultimately led to the production of massive documents related to the intelligence activities of the Chicago Police.[65] The initial order only granted limited access to the plaintiffs’ attorneys.[66] On October 14, 1976, the district court granted permission for the plaintiffs’ attorneys to disclose to each plaintiff his own file that was kept by the Red Squad.[67] More importantly, the court did not restrict the plaintiffs from disclosing the information in their own files to any persons of their own choosing.[68] The court agreed that the privacy interest of the plaintiff individuals and organizations would be sufficiently protected by allowing these plaintiffs to choose whether and to whom to disclose that information.[69] Due to the Alliance case being certified as a class action lawsuit, the attorneys were able to gain access to the files on virtually everyone. As the plaintiffs began to receive their own files compiled by the Red Squad, they subsequently released this information t o the media. Numerous articles were published exposing the widespread extent of the activities of the Red Squad.[70]

As the Alliance attorneys reviewed the endless documents produced through discovery, they began to see reports of their own legal preparation.[71] In a report prepared by an informant named David Cushing, he detailed the strengths of the Alliance, the discussions in meetings, and specifically when the Alliance was near ready to file the lawsuit.[72] Even more damaging reports included copies of questionnaires that another informant named Adele Noren had used to interview potential plaintiffs for this lawsuit.[73] Due to the extent of evidence that the defendants were now spying on the Alliance’s legal preparations, the Alliance attorneys used it as an opportunity to try to get a ruling against police spying.[74] On November 10, 1976, the court agreed with the plaintiffs and entered a preliminary injunction against the defendants’ infiltration of plaintiffs’ legal team.[75] The court expressed its strong disapproval of the methods used by the defendants and further enjoined the defendants from using all information gained by joining the plaintiffs’ legal team.[76]

On April 8, 1982, the City of Chicago defendants entered into the Agreed Order, Judgment and Decree with the Alliance plaintiffs.[77] The City of Chicago settlement contained specific prohibitions on political spying and harassment by the City of Chicago.[78] This settlement was the product of a negotiating process that was described by both sides as “arduous and adversary” and which lasted for more than two years.[79] In fact, the court found that “there was no evidence that the negotiations were other than adverse.”[80] The resulting settlement was painstakingly crafted where “nearly every line and paragraph of the City of Chicago Settlement, and in many cases individual words, are the product of vigorous negotiations.”[81] This settlement was entered into after extensive discovery and investigation to allow for both parties to have sufficient facts to fairly determine the outcome of trial.[82] In the end, the attorneys for both parties stated that the negotiated settlement was considered to be “fair, reasonable, and adequate.”[83] The court accepted the settlement agreement after considering many factors which included “the complexity, length and expense of future litigation.”[84]

The settlement agreement with the City of Chicago provided a broad definition of First Amendment conduct, which in turn had the effect of a broad injunction against the City of Chicago. [85] The restrictions of the settlement were imposed against any agent or agency of the City of Chicago.[86] The settlement explicitly states that “investigative activity toward First Amendment conduct is entirely prohibited except in four specific types of investigations: criminal, dignitary protection, public gathering, and regulatory investigations.”[87] More importantly, a criminal investigation concerning First Amendment conduct cannot be started unless that is a “reasonable suspicion based on specific and articulable facts that the subject has committed, is committing, or is about to commit a crime.”[88] The settlement provides additional restrictions in order to further protect the investigation, gathered information, and the dissemination of First Amendment conduct.[89] This injunction outlined in the settlement was to be enforceable by the Court and allowed “any person affected by the conduct complained of” to bring a claim to the Court for enforcement purposes.[90]

The Consent Decree was explicitly designed to protect the political freedom and Constitutional rights of American citizens. At the same time, law enforcement did not want to be so restricted that it could not protect public safety. To that end, the FBI was restricted to investigating only “criminal activity” and could not investigate solely on the basis of activities protected under the Constitution:


“3.4 The parties agree that the following general principles apply to FBI activities relating to the domestic activities of United States persons:

(a) The FBI, in conducting domestic security investigations and inquiries, shall be concerned only with conduct and only such conduct as is forbidden by a criminal law of the United States, or by a state criminal law when authorized by federal statute. The FBI shall not conduct 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.



(b) The FBI, in investigating United States persons, shall not employ any technique designed to impair their lawful and constitutionally protected political conduct or to defame the character or reputation of a United States person.”[91]

The decree also addressed Fourth Amendment issues of “search and seizure.” Notably, these provisions applied to foreign intelligence collection and counterintelligence investigations, precisely the issues that were modified in the 2001 decision. The original decree provided that the FBI:

“shall not conduct in the City of Chicago any warrantless unconsented physical searches in domestic security investigations, any unlawful unconsented physical searches of premises or property of U.S. persons in foreign intelligence collection or foreign counterintelligence investigations, any unlawful entries that constitute searches under the Fourth Amendment, or any unlawful disruption or harassment of the lawful activities of any United States person.”[92]

The Consent Decree was challenged by the adoption of the FBI “Smith Guidelines” in 1983. These new guidelines attempted to give the FBI greater latitude in investigating and preventing crime:

“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 the context in which the statements are made, that there is no prospect of harm.”[93]

The Alliance plaintiffs responded by bringing a cause of action for an injunction against the guidelines, which they believed were inconsistent with the original decree. However, the 7th Circuit found for the FBI. Writing for the court, Judge Posner expressed the court’s doubt that “in agreeing to the Consent Decree the Justice Department tied its hands to such an extent; for if it did, it was trifling with the public safety of the people of Chicago.”[94] The court seemingly relied on the idea that forcing the FBI to operate under tighter constraints in Chicago than anywhere else in the United States would cause the city to "become a sanctuary for nascent terrorist organizations".[95] Granted, the 7th Circuit's decision did not change the Consent Decree; it only removed the injunction against the Smith Guidelines. Thus, the FBI could still be found to violate the Consent Decree by intentionally retaliating against a person for their First Amendment conduct.

The Consent Decree had its first application when the Chicago Committee in Solidarity with People of El Salvador (CISPES) brought action against the FBI. Based on an informant tip the FBI conducted an investigation of National CISPES from March 1983 through June 1985, including 19 Chicago spin-off investigations.[96] In Chicago, infiltrators and undercover agents were used to monitor the group at both public and private meetings.[97] The FBI also obtained bank records and phone records without proper FBI Assistant Director authorization.[98] The investigations ended on June 2, 1985 when the Department of Justice concluded that CISPES was involved in political activities involving First Amendment rights and not international terrorism.[99] The investigation was closed, but the Chicago Field Office continued to gather data on lawful exercise of First Amendment rights.[100]

In November 1987, new head of the FBI William Sessions ordered an in-depth inquiry of the FBI investigation of CISPES.[101] He ordered that FBI guidelines be modified to restrict to FBI Headquarters the initiation of an international terrorism investigation, that high levels of justification be offered before monitoring of First Amendment activities is allowed, and that those involved with the CIPSES investigation be disciplined.[102]

Once CISPES learned of the investigation they made a motion seeking enforcement of the Decree, an order of compliance, expungement of the records that were collected about them, and that FBI personnel be trained about the Consent Decree.[103] The FBI argued that CISPES had no cause of action because the FBI’s changes in policy render petitioner’s request for relief moot.[104] The court held that just because the investigation had ended did not mean that the harm had ended, and that furthermore future violations of the Decree were possible despite the FBI’s recent changes.[105]

The FBI argued that the Chicago Field Office was only following orders of the national FBI, and thus their actions were not subject to the Consent Decree.[106] But the court held that the Consent Decree regulated the conduct of the not just FBI agents physically in Chicago, but the national FBI as well.[107] Furthermore, the court held that because the FBI signed the Consent Decree with full knowledge of its terms, and because the investigation at issue was undertaken deliberately, the FBI’s actions were intentional and thus violated the Consent Decree.[108]

The court awarded summary judgment to CISPES and the FBI was ordered to comply with the decree and ordered supplementary discovery to explore what training regarding compliance with the requirements of the Consent Decree the FBI now provides.[109] The supplemental discovery was later closed when the plaintiffs failed to request information regarding the Consent Decree, instead focusing on FBI interviews of Arab-Americans during the Gulf War.[110] On Oct 13, 1992 the court granted CISPES motion for expungement of all names and other data identifying Chicago CISPES members and associates, which were located at the National Archives with the designation “IT” for International Terrorism” despite the FBI’s conclusion that CISPES was a political group conducting First Amendment activity.[111]

The FBI appealed the court’s ruling to the 7th Circuit, concentrating on a narrow question: Was the CISPES investigation, in the words of the Consent Decree, in “serious intentional non-compliance” with the decree.[112] The FBI feared that agents might be worried about being held responsible for noncompliance, when instead it would actually be negligence, based on the District Court’s previous finding that any noncompliance was by definition intentional.[113] CIPSES acknowledged that negligence should not be enough to be ‘serious intentional non-compliance”, and the court held that for an investigation to violate the Consent Decree it must be conducted with the intent to interfere with First Amendment Rights.[114] Thus, although CISPES was successful in regards to the relief they sought, the FBI was also successful because the restrictions of the Consent Decree were slightly loosened.

Another petition for enforcement of the Consent Decree was brought by Raymond Risley, a high ranking Chicago police officer from 1991-1999.[115] He had been investigated by Internal Affairs for allegedly communicating with the media, as well as for possible Greek mafia ties.[116] The court dismissed his motion without addressing his First Amendment claim because the 2 year statute of limitations on bringing suit for a Consent Decree violation had run.[117] However, the court noted that Risley alleged that the investigation was retaliation based on the mistaken belief that he leaked information to the media.[118] Although it is not even dicta, it is interesting that the court makes the distinction that the Consent Decree does not provide a remedy for City actions arising from anti-First Amendment motivations unless those actions are meant to disrupt, interfere with, or harass a person because of their actual First Amendment conduct.[119] The court is saying that even though the police retaliation was in response to perceived First Amendment conduct, the Consent Decree is not violated unless the conduct was actual First Amendment conduct. This appears to go against the idea that intentional non-compliance by the police violates the Consent Decree, but the court does not address that issue, nor has that specific point appeared in any other litigation.

Compared to the 1968 Democratic National Convention in Chicago the 1996 Democratic National Convention in Chicago was peaceful and sedate. Of course, just because there were not mass riots does not mean that there weren’t skirmishes between activists and the police. Plaintiffs involved in various political demonstrations, workshops, and rallies around the time of the 1996 Democratic National Convention in Chicago brought an enforcement petition under the Consent Decree for alleged violations. The groups Autonomous Zone, CounterMedia, and Active Resistance Organizing Committee were all participating in the Active Resistance CounterConvention, an activist convention taking place at the same time and about a mile away from the 1996 Democratic National Convention at the United Center.[120] They alleged that the CounterConvention was spied on, radio communications were monitored, and that CounterConvention participants were generally followed, questions, and harassed by the police.[121] They also alleged that some participants were arrested and physically assaulted, and others were interrogated and had cameras and film destroyed or seized.[122]

The court found at a hearing for summary judgment that the surveillance of the CounterConvention did not violate the Consent Decree because it was a public gathering of 700 participants, and public gatherings are allowed to be monitored.[123] Also, the court said that taking a CounterMedia radio and then using it to send false communications would not violate Consent Decree unless the police were retaliating because of the person’s First Amendment conduct.[124] This allegation survived summary judgment, but the plaintiffs would need to show connection between retaliation and their First Amendment conduct for the police conduct to violate the First Amendment.[125] The court made the same distinction regarding the searching of a plaintiff van resulting in a destroyed camera. The underlying reason for searching the van did not violate the Consent Decree because the van driver had refused to move his vehicle from blocking traffic; but if the police were found to have opened cameras to destroy the film of them searching a van, then that film destruction would have been done in retaliation for First Amendment conduct and thus violated the Consent Decree.[126]

Although some of the plaintiffs’ allegations survived summary judgment, at a bench hearing the court found that the plaintiffs do not meet their burden of “clear and convincing” evidence of Consent Decree violations on any of their allegations.[127] The court did not go so far as to deny that the alleged incidents may have occurred, just that the plaintiffs failed to show that any of the incidents were retaliation for First Amendment conduct or part of a larger scheme of intimidation.[128] The court once again showed its unwillingness to enforce the Consent Decree where the police action was not clearly done in retaliation to the plaintiff’s First Amendment conduct. This raises the same question raised in the CISPES litigation, whether a negligence standard should be sufficient to find violations of the Consent Decree. It is a pretty large loophole for police officers not trained on the Consent Decree to be able to claim negligence if they retaliated against a person for their First Amendment conduct. The court never addressed this issue because the next major motion on the Consent Decree, a motion for modification by the City, made this point moot.

In 1997, the City made a motion to modify the Consent Decree. The City argued that the continued compliance with the Consent Decree placed significant burdens on its ability to serve and protect Chicago citizens.[129] The City also argued that the activities prohibited by the Consent Decree were bad public policy.[130] Adopting the Magistrate’s Report and Recommendation, Judge Ann Williams denied the City’s motion for modification, but allowed that if either party had any questions, they could submit a motion for interpretation of the Consent Decree directed at specific provisions of the Decree, as a well as proposed conduct.[131] The City responded by presenting 13 interrogatories calling for interpretation of hypothetical scenarios that could possibly violate the Consent Decree.[132] The court denied the City’s motion for clarification on interrogatories, holding that the court “cannot be in the business of issuing hypothetical answers.”[133] The court further noted the misguided nature of the City’s interrogatories, pointing out that the plaintiffs would not have disputed some of the scenarios if the City had bothered to ask for the plaintiff’s interpretation of the interrogatories.[134] As attorney Edward Feldman pointed out, the City had not offered any actual factual examples where under the Consent Decree criminal activity resulted from the City’s inability to investigate a political group.[135] The City was asking for modification based not upon any factual instances, but on hypothetical scenarios where the City could possibly be hampered in an investigation.

Despite the denial of the motion’s, the City appealed to the 7th Circuit, where the court agreed to modify the Consent Decree by removing the “reasonable suspicion” standard needed to begin a preliminary investigation.[136] Both Edward Feldman, the arguing attorney, and Richard Gutman, the lead attorney on Alliance since its inception, feel that this decision was based on the 7th Circuit’s assumption of how the Consent Decree affected police activity rather than on the factual record presented.[137] Feldman specifically said that the plaintiffs knew there was nothing they could argue that was going to convince the 7th circuit court, that the court was not receptive to their argument, and that the court was determined to modify the decree because the court thought the decree was tying the hands of the police.[138]

It is not clear where the court got the idea that the hands of the police were tied, because the City had not offered any instances where an investigation was hindered by the Consent Decree; in point of fact, the ACLU’s brief contained an affidavit from an FBI agent that the decree never prevented them the FBI from doing what they wanted to do in an investigation, supporting the opposite view of the court’s opinion, that the Consent Decree never actually hindered any investigations.[139] Despite the modification of the Consent Decree, the Consent Decree is still an open contract that the City must abide by or otherwise face sanctions.[140] Furthermore, the City must still conduct audits to determine if they have violated the Consent Decree. It was through one of these audits that the ACLU learned of an investigation of a trade conference sponsored by the American Friends Service Committee.[141] The City’s motion to dismiss has been denied, and a holding on the case should be forthcoming by the end of the year.[142]

Did the Alliance Consent Decree work? Despite the inability of plaintiffs to have the Consent Decree enforced, it seems obvious that the decree was successful in restricting police investigation to protect civil rights while allowing the police to retain enough discretion to protect public safety. Although it can be argued that the Consent Decree has never actually kept police from conducting themselves as they want to, at the very least the police no longer are able to commit the gross abuses that marked the Red Squad’s infiltration of political activist groups. Furthermore, other aspects of the Consent Decree, most notably the police audits, have been beneficial for keeping the police honest about their practices. It is notable that the debate today focuses more on Fourth Amendment issues such as wiretapping and data-mining versus the First Amendment issues that the Consent Decree is aimed at.

The most relevant aspect of the Consent Decree today is the discussion surrounding the awarding of attorney fees. The courts determined in the late 1980s that although the Consent Decree was a settlement between the two parties, the Alliance to End Repression is still the prevailing party because the Consent Decree reflected the plaintiff’s demands for relief.[143] However, the court recently put limits on what the plaintiffs can claim as attorney fees because allowing them to claim fees as a prevailing party in perpetuity would be an invitation for ongoing litigation and would be an undue burden on the City of Chicago.[144] Although the court recognized that the City should be responsible for attorney fees stemming from City motions, it will be interesting going forward to see how the court applies this ruling in other civil rights cases.[145]

The more interesting question for us going forward is whether Consent Decrees themselves are a workable solution to conflicts and an appropriate resolution for litigation. On one hand, judicial decrees are often beneficial because of their injunctive nature, and are not subject to the inherent limitations of administrative or agency guidelines. Decrees, unlike agency guidelines, do not change with each new director or administration. But courts and legislatures may be reluctant to enforce controls over police investigations, reasoning that police or executive discretion in such matters must be absolute.[146] The 7th Circuit, for example, in interpreting the original Alliance decree, was reluctant to impose restrictions on the Attorney General, an officer of the executive branch.[147]

Like case law or legislation, Consent Decrees must be interpreted according to a system of rules and standard practices. The standards of decree interpretation are based largely on contract law, interpreting the decree according to the parties intentions, limited to the four corners of the agreement, and the considering the language for its plain meaning.[148] Under these guidelines, it can be argued that the 7th Circuit went beyond basic the principles of Consent Decree interpretation by identifying the special circumstances in Alliance that warranted construing the decree in the government’s favor. For example, rather than stick to the intent of the parties as embodied in the decree, the court speculated about the effects on public safety and the reputation of the government if it was found to have violated the decree.[149]

However, there is a preferable option for decree interpretation that allows the court to alter the terms of the agreement while maintaining the intent of the parties. Rather than asking the court to reinterpret an existing decree, a party may request that the court modify the decree. The party seeking modification must then show that the alteration is warranted by changed circumstances.[150] The rationale for modification assumes that a decree can be “good then, but bad now.” This rationale applies a cost/benefit model to civil liberties. It assumes that as the threat to public safety increases, (for example, from international terrorism), a decree that limits law enforcements ability to take on the threat produces increased costs to society. Thus, loosening the restrictions of the decree lowers the costs and raises the benefits of increased security.

Decree modification proposes a balancing test, with civil liberties on one side and public safety on the other. The public interest in domestic security is correlative to the public interest in protecting individuals from intrusive governmental activity.[151] In considering whether to modify a Consent Decree, the court must balance the interest of public safety and individual liberties. Modification is a trade off, where removing restrictions on police surveillance is to license an increased rate of executive abuses. But a citizenry whose liberty can be invaded at will experiences insecurity in a real sense.[152] As the famous saying of our founding fathers goes, “Those how would give up a little liberty for security deserve neither liberty nor security.”

Police surveillance and civil rights has been a contentious issue under current American circumstances. With the threat of international terrorism and networks evil-doers intent on bringing the American (Capitalist) system to its knees, the Executive has authorized a program of domestic spying and surveillance remarkably similar to police surveillance before the decree. Today, however, citizens do not seem to have the same fear that government spying is meant to disrupt their political views, but rather to gather intelligence about potential threats to national security. In the current context, the issue appears to be violations of the Fourth Amendment as opposed to the First Amendment.

The Seventh Circuit’s opinion in the modification of the Alliance decree in early 2001 highlights this difference. In that case, the Chicago Police brought the decree to court to be modified in light of changed circumstances. The Police asserted that the decree, originally adopted to protect political freedom, was now overly burdensome on law enforcement in the context of the new terrorist threat. Essentially, the Police were asking the court for another trade-off: they would continue to respect the First Amendment rights of the residents of Chicago as required by the decree, but were now asking the court for some leniency on the Fourth Amendment. The 7th Circuit allowed a modification that tipped the balance in favor of the government’s right to investigate the public. The position of the police and the court’s pragmatic decision in early 2001 turned out to be eerily prescient. The question now is whether the balance has tipped too far against the Fourth Amendment rights of Americans.

-----------------------

[1] Politics and Law in the Control of Local Surveillance. 69 Cornell L. Rev. 735, 747-48 (1984).

[2] Id.

[3] Bud Schultz & Ruth Schultz, The Price of Dissent: Testimonies to Political Repression in America (Los Angeles: University of California Press, 2001) p. 403.

[4] Ibid.

[5] Ibid., p. 221.

[6] Ibid., p. 220-221.

[7] Ibid., p. 403.

[8] Ibid.

[9] Ibid.

[10] Ibid., p. 408.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid., p. 409.

[15] Ibid., p. 409-410.

[16] Ibid., p. 409.

[17] Ibid., p. 408.

[18] Paul G. Chevigny, Politics and Law in the Control of Local Surveillance, 69 Cornell L. Rev. 735, 741 (1984)

[19] Ibid., p. 409.

[20] Id. at 760-762

[21] Bud Schultz & Ruth Schultz, The Price of Dissent: Testimonies to Political Repression in America (Los Angeles: University of California Press, 2001) p. 408.

[22] Ibid., p. 409.

[23] Ibid.

[24] Ibid.

[25] Alliance to End Repression, et al. v. City of Chicago, et al., 561 F. Supp. 537, 539-540 (N.D. Ill. 1982).

[26] Alliance to End Repression, et al. v. Rochford, et al., 407 F. Supp. 115, 116 (N.D. Ill. 1975).

[27] Id.

[28] Id. at 117.

[29] Id. at 116.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Id. at 117.

[35] Id.

[36] Id.

[37] Id.

[38] Schultz, The Price of Dissent, p. 410.

[39] Ibid.

[40] Ibid.

[41] Ibid.

[42] Ibid.

[43] Ibid., p. 410-411.

[44] Ibid., p. 410.

[45] Ibid., p. 411.

[46] Ibid.

[47] Ibid.

[48] Ibid.

[49] See attached Exhibit A.

[50] See attached Exhibit B.

[51] Schultz, The Price of Dissent, p. 411-412.

[52] Ibid., p. 412.

[53] Ibid.

[54] Ibid.

[55] Ibid.

[56] Ibid.

[57] Alliance to End Repression, 407 F. Supp. at 120.

[58] Id. at 117.

[59] Id. at 117-119.

[60] Id. at 119.

[61] Id. at 120.

[62] Alliance to End Repression, 561 F. Supp. at 541.

[63] Id.

[64] Id.

[65] Id. at 542.

[66] Alliance to End Repression et al. v. Rochford et al., 75 F.R.D. 431, 432 (N.D. Ill. 1976).

[67] Id. at 433.

[68] Id. at 434.

[69] Id.

[70] See attached exhibit C-K.

[71] Schultz, The Price of Dissent, p. 416.

[72] Ibid. p. 415.

[73] Ibid. p. 416.

[74] Ibid. p. 417.

[75] Alliance to End Repression et al. v. Rochford, 73 F.R.D. 435, 437 (N.D. Ill 1976).

[76] Id. at 438.

[77] Alliance to End Repression et al., 561 F. Supp at 559.

[78] Id. at 544.

[79] Id.

[80] Id.

[81] Id.

[82] Id.

[83] Id.

[84] Id. at 549.

[85] Id.

[86] Id.

[87] Id.

[88] Id. at 550.

[89] Id.

[90] Id. at 551.

[91] Alliance to End Repression v. City of Chicago. 91 F.R.D. 182, 205-06. (D.C. Ill. 1981)

[92] Id.

[93] Alliance to End Repression v. City of Chicago. 742 F.2d 1007 (7 Cir. 1984)

[94] Id.

[95] Id. at 1018-1019

[96] Alliance to End Repression v. City of Chicago, 1991 WL 206056, 1 (N.D. Ill 1991)

[97] Id. at 2.

[98] Id.

[99] Id.

[100] Id.

[101] Id. at 3.

[102] Id.

[103] Id. at 1.

[104] Id. at 4

[105] Id. at 6

[106] Id. at 8.

[107] Id.

[108] Id. at 10.

[109] Id. at 11

[110] Alliance to End Repression v. City of Chicago, 1992 WL 80527, 2, (N.D. Ill 1992)

[111] Id. at 2, 6

[112] Alliance to End Repression v. City of Chicago, 199 F.3d 472, 475 (7 Cir. 1997)

[113] Id. at 475-476.

[114] Id. at 476.

[115] Alliance to End Repression v. City of Chicago, 2000 WL 1368004, 1 (N.D. Ill 2000)

[116] Id. at 2

[117] Id. at 2-3

[118] Id. at 3

[119] Id.

[120] Alliance to End Repression v. City of Chicago, 2000 WL 562480, 1 (N.D. Ill 2000)

[121] Id.

[122] Id. at 2

[123] Id. at 8

[124] Id. at 9

[125] Id. at 17

[126] Id. at 21-23

[127] Alliance to End Repression v. City of Chicago, 2000 WL 1898594, 1-2 (N.D. Ill 2000)

[128] Id. at 1-16

[129] Alliance to End Repression v. City of Chicago, 66 F.Supp.2d 899, 912 (N.D. Ill 1999)

[130] Id.

[131] Id. at 913.

[132] Alliance to End Repression v. City of Chicago, 2000 WL 709485, 1 (N.D. Ill 2000)

[133] Id. at 4.

[134] Id. at 5.

[135] Interview with Edward Feldman (September 2007)

[136] Alliance to End Repression v. City of Chicago, 237 F.3d 799, 802 (7 Cir. 2001)

[137] Interview with Edward Feldman, Interview with Richard Gutman (September 2007)

[138] Interview with Edward Feldman.

[139] Interview with Feldman.

[140] Interview with Feldman.

[141] Interview with Feldman.

[142] Interview with Feldman.

[143] Alliance to End Repression v. City of Chicago, 899 F.2d 582 (7 Cir. 1990)

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[147] Id. at 773.

[148] Politics and Law at 782

[149] Alliance to End Repression v. City of Chicago. 80 Nw. U. L. Rev. at 1687

[150] Id. at 1690

[151] Id. at 1693-1700

[152] Id. at 1710

[153] Id. at 1707

[154] Posner on Security and Liberty: Alliance to End Repression v. City of Chicago. 120 Har. L. Rev. 1251, 1260 (2007).

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