Alliance End Repress v. City of Chicago ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3825
Alliance to End Repression, et al.,
Plaintiffs-Appellees,
v.
City of Chicago,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 74 C 3268, 74 C 3295--Ann Claire Williams, Judge.
Argued November 27, 2000--Decided January 11, 2001
Before Bauer, Posner, and Easterbrook, Circuit Judges.
Posner, Circuit Judge. More than a quarter of a
century ago a number of individuals and
organizations brought suit under 42 U.S.C. sec.
1983 against the United States and the City of
Chicago, claiming that the FBI’s Chicago office
and the Chicago Police Department’s intelligence
division were violating the plaintiffs’ First
Amendment rights by overly intrusive and
improperly motivated investigations of alleged
subversive activities. In 1981, before a trial
could be held, the defendants agreed to a consent
decree, which was approved by then district judge
Getzendanner the following year, imposing
detailed and onerous restrictions on the
defendants’ powers of investigation. 561 F. Supp.
537 (N.D. Ill. 1982). The City has now asked the
district court to modify the decree to make the
restrictions that it places on the City less
onerous. Fed. R. Civ. P. 60(b)(5). The district
court has refused, and the City has appealed,
pointing out that the decree is so strict that
Judge Getzendanner said she would not have
awarded the plaintiffs such draconian relief (but
for the defendants’ acquiescence) even if they
had proved all the allegations of their complaint
in a trial. 561 F. Supp. at 551.
The City argues that it has been in compliance
with the decree throughout the almost two decades
in which the decree has been in force and it
points out that during this period the Supreme
Court and this court have become ever more
emphatic that the federal judiciary must endeavor
to return the control of local governmental
activities to local government at the earliest
possible opportunity compatible with achievement
of the objectives of the decree that transferred
that control to the federal courts. The City also
argues that the culture of local law enforcement
and the character of the threats to public safety
by ideologically motivated criminals have so far
changed as to make much of the decree obsolete
and points out that the Supreme Court has adopted
a more flexible standard for the modification of
decrees entered in institutional reform
litigation than the Swift standard of yore. Rufo
v. Inmates of Suffolk County Jail, 502 U.S. 367,
378-81 (1992); Board of Education v. Dowell, 498
U.S. 237, 248 (1991); see also Alexander v.
Britt, 89 F.3d 194, 197-98 (4th Cir. 1996).
Although the federal government has not joined
the City in seeking to modify the decree, the
provisions applicable to the FBI are different
and were interpreted by us in an earlier phase of
this litigation to impose far lighter
restrictions on FBI investigations than the
district court had interpreted the decree to
impose. Alliance to End Repression v. City of
Chicago, 742 F.2d 1007 (7th Cir. 1984) (en banc).
The core of the decree, which the City does not
seek to modify, forbids investigations intended
to interfere with or deter the exercise of the
freedom of expression that the First Amendment
protects, and requires the City to commission
independent periodic audits of the City’s
compliance with the decree. The effect of these
provisions is to add the threat of civil and
criminal contempt to the usual sanctions for
infringing civil rights and, through the
requirement of the audits, to make it easier to
detect such infringements. These are substantial
enhancements of the ordinary deterrent effect of
constitutional law. Id. at 1014-15. They annex
swift and severe sanctions to the ordinary tort
remedies (mainly 42 U.S.C. sec. 1983) for
violations of that law.
The periphery of the decree, which the City
considers insufficiently protective of the public
safety and wishes to have lanced, comprises a
dizzying array of highly specific restrictions on
investigations of potential terrorists and other
politically or ideologically motivated criminals.
Investigations "directed toward First Amendment
conduct," a defined term referring to any
investigation likely to involve the collection of
information about protected activity or the
investigation of anyone engaged in such activity,
may be conducted only for the purpose of
obtaining evidence of past, present, or impending
criminal conduct and only if the Chicago police
already have a reasonable suspicion of such
conduct. Unless "unavoidably necessary to the
investigation of a reasonably suspected crime,"
the police may not collect information about the
political group to which the target of an
investigation belongs or about other members of
the group or people attending the group’s
meetings. The investigation must terminate as
soon as reasonable suspicion of criminal conduct
is dispelled and upon termination all information
protected by the First Amendment must be purged
from the investigatory file. An investigation may
not be conducted on the basis of mere advocacy of
violent conduct (what the decree terms
"ideological rhetoric"); only a "brief
preliminary inquiry" is permitted on that basis
and it must cease unless it generates a
reasonable suspicion of criminal conduct. Use of
undercover informants is strictly limited along
with the gathering of information at rallies or
other public assemblies of advocates of violence
and other political extremists. There is more to
the decree, and some qualifications and other
nuances that we have omitted, but our summary
gives the flavor.
From the 1920s to the 1970s the intelligence
division of the Chicago Police Department
contained a unit nicknamed the "Red Squad" which
spied on, infiltrated, and harassed a wide
variety of political groups that included but
were not limited to left- and right-wing
extremists. Most of the groups, including most of
the politically extreme groups, were not only
lawful, and engaged in expressive activities
protected by the First Amendment, but also
harmless. The motives of the Red Squad were
largely political and ideological, though they
included a legitimate concern with genuine
threats to public order. Demonstrations against
U.S. participation in the Vietnam War that
climaxed in the disruption of the Democratic
National Convention in Chicago in 1968, race
riots in Chicago and other major cities in the
same period, and the contemporaneous criminal
activities of the Black Panthers, the Weathermen,
and Puerto Rican separatists, all against a
backdrop of acute racial and Cold War tensions,
political assassinations (notably of President
Kennedy, Senator Robert Kennedy, and Martin
Luther King, Jr.), and communist subversion,
fueled a widespread belief in the need for
zealous police activity directed against
political militants.
The era in which the Red Squad flourished is
history, along with the Red Squad itself. The
instabilities of that era have largely
disappeared. Fear of communist subversion, so
strong a motivator of constitutional
infringements in those days, has disappeared
along with the Soviet Union and the Cold War.
Legal controls over the police, legal sanctions
for the infringement of constitutional rights,
have multiplied. The culture that created and
nourished the Red Squad has evaporated. The
consent decree has done its job. To this the
plaintiffs reply mainly by pointing us to
accusations that during the 1996 Democratic
National Convention, the first to be held in
Chicago since the disaster of 1968, some Chicago
police officers, fearing a repetition, reverted
to the old ways and harassed demonstrators. But
that was at worst a temporally limited, an
isolated, and very much a situation-specific
lapse; in its ad hoc, unorganized, and episodic
character it resembled not at all the activities
of the Red Squad, which were organized,
systematic, and protracted.
Mere compliance with a decree over a period of
years, the plaintiffs argue, does not in itself
justify the lifting of the decree. We have our
doubts whether this position is correct when the
period of substantial compliance is as long as it
has been in this case and the decree is one that
constrains a core function of state (or, what for
these purposes is the same thing, local)
government as tightly as this one does. The
states and their subdivisions have a right to the
restoration of control over the institutions of
state and local government upon proof of decades
of compliance with a decree that had shifted that
control to a federal judge. See Missouri v.
Jenkins, 515 U.S. 70, 99 (1995); Bogard v.
Wright, 159 F.3d 1060, 1065 (7th Cir. 1998);
People Who Care v. Rockford Board of Education,
153 F.3d 834 (7th Cir. 1998) (per curiam); United
States v. Board of School Commissioners, 128 F.3d
507, 510 (7th Cir. 1997). Federal decrees that
hand ultimate control of state functions to
federal courts "are not intended to operate in
perpetuity." Board of Education v. Dowell, supra,498 U.S. at 248; United States v. Board of School
Commissioners, supra, 128 F.3d at 510. These
cases involved school-desegregation decrees but
their principles apply with equal force to
police-reform decrees. Policing is as much, and
as important, a local function as education.
The City in any event is asking only that the
decree be modified, not that it be abrogated; and
its grounds for modification go beyond a mere
history of compliance. The City wants flexibility
to meet new threats to the safety of Chicago’s
citizens. In the heyday of the Red Squad, law
enforcers from J. Edgar Hoover’s FBI on down to
the local level in Chicago focused to an
unhealthy degree on political dissidents, whose
primary activity was advocacy though it sometimes
spilled over into violence. Today the concern,
prudent and not paranoid, is with ideologically
motivated terrorism. The City does not want to
resurrect the Red Squad. It wants to be able to
keep tabs on incipient terrorist groups. New
groups of political extremists, believers in and
advocates of violence, form daily around the
world. If one forms in or migrates to Chicago,
the decree renders the police helpless to do
anything to protect the public against the day
when the group decides to commit a terrorist act.
Until the group goes beyond the advocacy of
violence and begins preparatory actions that
might create reasonable suspicion of imminent
criminal activity, the hands of the police are
tied. And if the police have been forbidden to
investigate until then, if the investigation
cannot begin until the group is well on its way
toward the commission of terrorist acts, the
investigation may come too late to prevent the
acts or to identify the perpetrators. If police
get wind that a group of people have begun
meeting and discussing the desirability of
committing acts of violence in pursuit of an
ideological agenda, a due regard for the public
safety counsels allowing the police department to
monitor the statements of the group’s members, to
build a file, perhaps to plant an undercover
agent.
All this the First Amendment permits (unless the
motives of the police are improper or the methods
forbidden by the Fourth Amendment or other
provisions of federal or state law, see Alliance
to End Repression v. City of Chicago, supra, 742
F.2d at 1014-15, and cases cited there), but the
decree forbids. The decree impedes efforts by the
police to cope with the problems of today because
earlier generations of police coped improperly
with the problems of yesterday. Because of what
the Red Squad did many years ago, today’s Chicago
police are fated unless the decree is modified to
labor indefinitely under severe handicaps that
other American police are free from. First
Amendment rights are secure. But under the decree
as written and interpreted, the public safety is
insecure and the prerogatives of local government
scorned. To continue federal judicial
micromanagement of local investigations of
domestic and international terrorist activities
in Chicago is to undermine the federal system and
to trifle with the public safety. Every
consideration favors modification; the City has
made a compelling case for the modification that
it seeks.
Modification is not abrogation. The modified
decree will leave the Chicago police under
considerably greater constraints than the police
forces of other cities. A violation of the
constitutional rights of any person whom the
Chicago police investigate will be a violation of
the decree and not just of the Constitution
itself and so will invite summary punishment by
the exercise of the contempt power, while the
requirement of outside audits will make it more
difficult for the Chicago police than for their
counterparts in the other big cities to commit
constitutional violations undetected.
The judgment of the district court is reversed
and the case remanded with instructions to make
the modifications in the consent decree that the
City has requested.