Opinion
Nos. 74 C 3268, 75 C 3295
March 9, 1999
REPORT AND RECOMMENDATION
Before the court is the motion of defendants City of Chicago, et al. ("City") to modify the consent decree in two cases — Alliance to End Repression v. City of Chicago, 74 C 3268 and American Civil Liberties Union v. City of Chicago, 75 C 3295; 561 F. Supp. 537 (N.D.Ill. 1982) (" Alliance I") — pursuant to Fed.R.Civ.P. 60(b)(5).
The court has also reviewed several amicus submissions filed in connection with this matter.
I. BACKGROUND
These two cases involve class action suits brought nearly 25 years ago by plaintiffs representing individuals or organizations residing in or present for periods in Chicago that engage in lawful political, religious, educational, or social activities. 561 F. Supp. at 541-542. The plaintiffs claimed that the City and its agents had infiltrated their organizations, harassed them, conducted surveillance and compiled dossiers on their lawful activities, and disrupted those activities. 561 F. Supp. at 537, 541-42. The City asserted that neither the Constitution nor case law prohibited governmental surveillance of any First Amendment activity, as opposed to prevention or interference with such activity. 561 F. Supp. at 551. The parties engaged in vigorous, hotly-contested litigation, including massive pretrial discovery that fairly apprised them of the facts that would likely be adduced at trial. 561 F. Supp. at 544. Ultimately, after extensive adverse negotiations, the parties arrived at the settlement decree ("decree") that is the subject of these proceedings. Id. At the time — in 1982 — both sides considered the decree to be "fair, reasonable, and adequate." Id.Now, the City moves to modify the decree pursuant to Rule 60(b)(5). The decree prevents police from undertaking a variety of investigative measures, the City argues, and particularly restricts the manner in which it can investigate and compile information on persons based on their First Amendment activities. According to the City, at the time the decree was entered, it was arguable that the First Amendment restricted police investigations of persons who came to the attention of police through their First Amendment activities, even if the purpose of the investigation was to determine whether those persons had committed, or were likely to commit, crimes. Two years after the entry of the decree, in 1984, the City informs us that the Seventh Circuit ruled that the First Amendment does not authorize federal courts to enjoin law enforcement investigative activity based on an individual's protected First Amendment activity. As such, the City submits that the decree must be modified for four reasons: (1) the change in law means that the decree no longer protects a federal right; (2) the City has substantially complied with the decree so far; (3) police functions should be controlled by local government; and (4) compliance with the decree is an undue burden.
At this point in the proceedings, the parties are treating the City's motion as one for summary judgment. They have filed the requisite Local Rule 12 submissions in order to do so. More than 1500 pages of documentary evidence accompany these filings. Very few issues are not in dispute and, indeed, there is little agreement as to what issues are even material. There seems to be even less agreement as to what the consent decree does and does not prohibit. Thus, while this matter appears to be beyond the scope of summary judgment, we must rely on those submissions in our consideration of this case.
Under Local Rule 12, a party moving for summary judgment must file a:
statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law . . . The statement . . . shall consist of short numbered paragraphs, including with each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forward in the paragraph. Failure to submit such a statement constitutes grounds for denial of the motion.
Local Rule 12(m)(3). The party opposing the motion must then file:
a concise response to the movant's statement that shall contain:
(a) a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon, and
(b) a statement consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon. All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.
Local Rule 12(n)(3). The district court, with the approval of the Seventh Circuit, has long enforced the requirements of these rules. Huff v. UARCO, Inc., 122 F.3d 374, 382 (7th Cir. 1997).
A. Prologue
Chicago Police Department surveillance of political activity appears to date back to the 1930s. ( Appendix to Alliance Plaintiffs' Memorandum(" App."); City Defendants' Counterproposal to Alliance Plaintiffs' Pretrial Materials (" CDC"), at 47). By 1961, the branch of the police responsible for such intelligence gathering activity became known officially as the Subversive Activities Section, and colloquially known as "The Red Squad." ( App.; CDC, at 48). The Red Squad compiled files on wide-ranging groups, including:
1) civic groups like the League of Women Voters, the City Club of Chicago, the Chicago Council on Foreign Relations, and the Jewish War Veterans;
2) religious groups such as the Catholic Interracial Council of Chicago, the National Council of Churches, and the American Jewish Congress;
3) labor unions including the Chicago Teachers Union and the United Steel Workers Union;
4) publications like the Southtown Economist and the New York Review of Books; and
5) civil rights organizations such as the NAACP, the Anti-Defamation League, and the DuSable Museum of African-American History.
( App.; CDC; at 50-51). More predictably, Marxist and socialist organizations were also surveilled. ( Id.). Some of the information in these file consisted merely of newspaper clippings; other information was drawn from investigations. ( App.; Security Section Functions, at 57). Investigations involved undercover surveillance, and association with and infiltration of the subject organizations. ( Id., at 57-62). In the case of the Alliance plaintiffs, Red Squad action was so successful that police were able to place undercover agents as organization board members with decision-making responsibilities. Alliance to End Repression v. City of Chicago, 627 F. Supp. 1055, 1050 (N.D.Ill. 1985).
This troubling list of seemingly innocuous — and often benevolent — subject organizations might be explained in at least a small part by the police department's take on subversive activity at that time. A 1971 Red Squad training bulletin provides some context for what was thought to constitute subversive activity by listing the goals of communism. The more interesting goals listed include: long-term loans to Russia and Soviet satellites; recognition of Red China and admission to the UN; representation of Soviet satellites in the UN; present homosexual activity as normal, natural, healthy; eliminate prayer or any phase of religious expression in the schools; internationalize the Panama Canal; degrade artistic expression with shapeless, awkward, or meaningless forms as public sculpture. ( App.; Intelligence Division Training Bulletin; at 64-66). With such goals as "red flags," Richard Nixon, the Republican Party, Jimmy Carter, the Democratic Party, and the City of Chicago could well have been listed as subject organizations.
The consolidated cases at issue here were prompted by Red Squad activities, including infiltration and surveillance directed at the named plaintiff organizations in the late 1960s to early 1970s. In bringing suit, the plaintiffs alleged that Red Squad agents:
1) visited individual members at their homes, places of business, and other locations in order to interrogate them and their friends and acquaintances;
2) disseminated the information in their files to publications, prospective employers, and academic officials thereby invading members' privacy;
3) infiltrated their organizations and exhorted members to commit unlawful acts;
4) engaged in unlawful electronic telephone surveillance of members' telephone conversations;
5) unlawfully broke into organization offices and seized files, membership lists, and other materials in violation of the Constitution;
6) photographed and/or videotaped proceedings at rallies, places of business, and private gathering at residences;
7) engaged in summary punishment and harassment of members by failing to protect them from physical attacks at lawful rallies, beating members arrested at lawful rallies, verbally abusing members a lawful rallies, and conducting unlawful searches.Alliance to End Repression v. Rochford, 407 F. Supp. 115, 117-19 (N.D.Ill. 1975). As already noted, the course of litigation was less than amicable. Early in the proceedings, the Alliance plaintiffs were forced to obtain an injunction against City infiltration of its legal team. Alliance to End Repression v. Rochford, 75 F.R.D. 435 (N.D.Ill. 1976). There was also the usual satellite litigation over discovery matters. Finally, in June of 1981, the parties presented Judge Getzendanner with the proposed consent decree, which she approved in Alliance I.
B. The Consent Decree
The decree opens with a statement of principals that reminds the City of the terms of the First, Fourth, and Fourteenth Amendments, and explains the police department's law enforcement duties to the plaintiffs. Alliance I, 561 F. Supp. at 560. The decree states that it applies only to investigative activity that is directed at First Amendment conduct. 561 F. Supp. at 561. This does not include investigative activity that merely incidentally refers to First Amendment conduct. Id. The decree prohibits any investigation of First Amendment conduct in the absence of a valid government purpose, such as a criminal investigation . Id. The parties expected that the great majority of police activity would not be affected by the decree, but that systematic investigation and record keeping about political and social organizations unrelated to criminal conduct would be prohibited. Id.
The decree defined First Amendment conduct as follows:
conduct protected by the rights [sic] under the First Amendment of the Constitution of the United States to [sic] freedom of speech, press, assembly, petition and religion, including but not limited to the following rights:
the right to hold ideas or beliefs concerning public or social policy, or political, educational, cultural, economic, philosophical or religious matters;
the right to communicate or receive such ideas or beliefs, publicly or privately, orally, in writing or by symbolic means;
the right to associate and assemble publicly or privately with other persons concerning ideas or beliefs about public or social policy, or political, educational, cultural, economic, philosophical or religious matters (but not a right to associate or assemble for purposes unrelated to the right to hold and express such ideas or beliefs);
the right to advocate, for purposes related to such ideas or beliefs, "the use of force or of law violation, except where such advocacy is directed to inciting or producing imminent lawless conduct and is likely to incite or produce such action," Brandenburg v. Ohio, 395 U.S. 444 (1969); with respect to the above, it is the duty of the Chicago Police Department, when it learns of the advocacy of the use of force or of law violation, to make prudent and reasonable inquiry to determine whether it is an exercise of the expression of ideas only or whether it is directed to inciting or producing imminent lawless conduct and likely to produce such action; this inquiry shall be conducted in accordance with [provisions pertaining to police investigations];
the right to advocate alternative systems of government;
the right to petition the government or government officials for redress of grievances; and
the right to associate for the purpose of seeking and giving legal advice as well as advancing litigation.561 F. Supp. at 562. In addition, the decree states that investigative activity is directed at First Amendment conduct when it does or foreseeably will: include the collection of information about First Amendment conduct; have as a subject or target a person engaging in First Amendment conduct and the investigative activity relates to that conduct; or interferes with First Amendment conduct. 561 F. Supp. at 561-62. On the other hand, investigative activity is not directed at First Amendment conduct when: the conduct is not itself a significant issue or focus of the investigation; and the reference to the conduct is relevant to the law enforcement purpose of the investigative activity. 561 F. Supp. at 562.
The heart of the decree pertains to police department investigations that are directed toward First Amendment activity, setting out procedures for such investigations. 561 F. Supp. at 563. It prohibits the gathering of First Amendment information unless it is so necessary to and inseparable from an investigation that its gathering cannot be avoided. Id. The decree directs that minimization procedures be employed with respect to First Amendment conduct, including avoiding gathering information about a political group to which a criminal suspect belongs, unless it is unavoidably necessary to investigation of a reasonably suspected crime. Id. Under the decree, investigations directed at First Amendment conduct must be approved at the level of section commander within 24 hours. Id. After 72 hours, such investigations must be authorized in writing by the superintendent of police or a member of his executive staff and shall not last longer than 30 days per authorization. Id. Investigations will be terminated when there is no longer reasonable suspicion of a crime, the investigation's purpose has been achieved, or written authorization has expired. Id. The information collected is not allowed to be disseminated except to officers conducting investigations in compliance with the decree, to state or federal prosecutors, to government agencies upon written request for criminal investigations, to the subject of the information, or in response to subpoena. 561 F. Supp. at 564. At the conclusion of the investigation, all First Amendment information shall be purged — that, is, placed in sealed files — unless there remains reasonable suspicion of a crime and there is a nexus between that and the exercise of First Amendment rights. Id. Access to the sealed files is limited, and those files are to be retained no more than ten years and then destroyed. Id.
The decree states that criminal investigations that are directed toward First Amendment conduct must be conducted solely for the purpose of obtaining evidence of a crime that has occurred, is occurring, or is about to occur. Id. They must not be conducted unless there is reasonable suspicion based on specific articulable facts that a crime has been, is being, or is about to be committed. Id. The decree also forbids the use of intrusive methods — such as informants, infiltrators, electronic surveillance, or nonconsensual search or seizure — to gather First Amendment information unless certain conditions are met, including obtaining written authorization from police executives, secure proper warrants, and complying with statutes governing electronic surveillance. 561 F. Supp. at 567.
Under the decree, when police learn of the advocacy of use of unlawful force in furtherance of a First Amendment idea, they may conduct a brief preliminary investigation as follows:
The sole purpose of the inquiry shall be to determine whether the advocacy is an exercise of the expression of ideas only, or whether the advocacy is both
-directed to inciting or producing imminent violent conduct, and,
-likely to produce such action.
561 F. Supp. at 565. These investigations are subject to the same 24-hour, 72-hour, and 30-day requirements discussed previously. Id. Such investigations are to focus on whether there are facts indicating the subject is currently engaged in conduct preparing for the imminent use of force or violence. Id. A full investigation may not follow without evidence of activity that makes the use of violence a credible threat. Id.
The decree made the Chicago Police Board responsible for auditing and monitoring compliance with the decree. 561 F. Supp. at 568-69. Independent audits, by a national accounting firm, were to be conducted in 1982, 1984, and every five years thereafter. 561 F. Supp. at 569. The reports were to be made public. Id. The City has borne the costs of these audits, internal and external, and has been liable for attorneys' fees plaintiff's have been awarded pursuant to statute.
C. Epilogue
The parties agree about little of what the decree precludes the police from doing, and little about what has happened since it was entered. It is the City's position that it has complied fully with the decree over the last fourteen years. It points to this compliance as support for its proposed modification. Furthermore, the City lists several aspects of law enforcement which it contends the decree unnecessarily thwarts: terrorism, gangs, demonstrations, hate crimes, organized crime, bombings and arsons, and CAPS — the community policing program. The City also complains that the decree imposes an undue burden in terms of financial costs. Finally, the City argues that a change in the law in 1984 also warrants modification of the decree.
The plaintiffs have a completely different interpretation of both the City's performance under the decree, and the decree's impact on law enforcement. They point to several instances, many fairly recent, where the City has fallen short of compliance. They are also skeptical regarding the supposed burden that the decree places on law enforcement efforts. Finally, they point out that most of the City's arguments for the modification of the decree are irrelevant under the law applicable to such proceedings.
II. ANALYSIS
The City moves for modification of the consent decree under Federal Rule of Civil Procedure 60(b)(5), which provides, in relevant part:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: . . . (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it was based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application . . . The motion shall be made within a reasonable time . . .
In Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748 (1992), the Supreme Court discussed modification of institutional reform consent decrees, noting that courts should be flexible when considering such requests. 502 U.S. at 383, 112 S.Ct. at 760. By the same token, however, the Court also stated that modification would not be warranted in all circumstances, but only where the moving party establishes "that a significant change in circumstances warrants a revision of the decree." Id. "A party seeking modification of a consent decree may meet its . . . burden by showing either a significant change either in factual conditions or in law." 502 U.S. at 384, 112 S.Ct. at 760. Here, the City cites four reasons why the consent decree should be modified in these cases: (1) the decree no longer secures a federal right as a result of a change in the law evidenced by Alliance to End Repression v. City of Chicago, 742 F.2d 1007 (7th Cir. 1984) (" Alliance II"); (2) the City has complied with the decree while it has been in force; (3) policing is a local activity that should be administered locally; and (4) compliance with the decree is burdensome. Of these, only the first — a purported change in the law — merits consideration under Rufo.
A. Timeliness of City's Motion
Before evaluating the merits of the City's motion, we address the Rule 60(b)(5) requirement that a motion be made within a reasonable time. The City's motion is based on the Seventh Circuit's opinion in Alliance II, which was delivered thirteen years before the City filed its motion. See King v. State Bd. of Elections, 979 F. Supp. 582, 591 (N.D.Ill. 1996) (relevant focus is passage of time between advent of changed law and filing of motion). On its face, this is not just an unreasonable delay in filing such a motion, but an incredibly unreasonable delay. United States v. Morgan, 346 U.S. 502, 518, 74 S.Ct. 247, 256 (1954). While there is no outside limit, the courts of this circuit have only found periods of as long as three years to be reasonable. Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 610 (7th Cir. 1986). The delay here is four times as long as what would appear to be the outside limit. It is, without question, long enough to warrant some type of explanation on the City's part.
Here, the City exhibits little concern over its delay; in fact, it barely addresses the issue. It was somewhat troubling to find no mention of Rule 60(b)(5)'s time limit in the City's opening brief, but that omission could be written off to attorney neglect. The City's stance becomes more troubling, however, when both plaintiffs raise the timeliness issue in their briefs, and the City remains cavalier with regard to it in its reply submission. We also note that the City has had more than six weeks to compile a reply to the issue after plaintiffs filed their briefs. Quite frankly, the court had hoped for something more substantial to consider in rendering an informed decision.
As already noted, three years is generally regarded as the outside limit for Rule 60(b)(5) motions. Courts are less lenient where, as here, the moving party offers no explanation for its tardiness. U.S. v. Deutsch, 981 F.2d 299, 302 (7th Cir. 1992) (two-year delay is unreasonable); Lee v. Village of River Forest, 936 F.2d 976, 980 (7th Cir. 1991) (two-year delay is unreasonable). In our case, rather than offer an explanation, the City does not really even admit that it has delayed significantly. Almost as an aside, the City devotes a single paragraph of its reply brief to its 13-year delay. ( Consolidated Reply Memorandum (" City Reply), at 15). It argues that it was deliberately establishing a 14-year record of compliance with the decree, which it contends it had a right to do under Alexander v. Britt, 89 F.3d 194, 201 (4th Cir. 1996). There are several problems with this argument. We agree that the court in Alexander relied on Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 111 S.Ct. 630 (1991) in requiring a showing that the moving party had complied with the consent decree for a reasonable period to the point where the "vestiges of past unlawful behavior have been eliminated." The City ignores several salient points, however, which it may have developed had it not given so little attention to this issue. First, and foremost, the court in Alexander noted that the decree in Dowell was designed as relief for past injustices, as opposed to the decree in Rufo, which was designed to ensure future compliance with federal law. 89 F.3d at 198. As the decree here is designed to ensure compliance with the First, Fourth and Fourteenth Amendments, the Rufo standard, rather than the Dowell standard is applicable, making a 14-year record of compliance essentially irrelevant.
Second, as the City relies on Alexander to excuse its delay, it notes that Rufo was not decided until 1992 and that the applicable requirements for modification at the time of Alliance II were to be drawn from United States v. Swift Co., 286 U.S. 106, 52 S.Ct. 460 (1932). This is a rather curious position because Alexander had not been decided either. And even under Swift, a movant had to show a "grievous wrong evoked by new and unforeseen conditions." 286 U.S. at 119, 52 S.Ct. at 464. So, again, there would have been no excuse for a 13-year delay.
Thus, the City provides the court with neither an explanation nor an admission of tardiness — although tardiness is a rather gentle term for thirteen years of inactivity. This is certainly sufficient to warrant denial of the City's motion. Furthermore, under the Seventh Circuit's holding in Deutsch, the court cannot address the merits of an untimely 60(b)(5) motion. To the extent that the City's motion is untimely, the court does not have jurisdiction to consider it. Deutsch, 981 F.2d at 302. (regardless of subsection, 60(b) time limits are jurisdictional). Accordingly, given the City's 13-year delay, its disregard of the applicable procedure, its failure to explain its tardiness, and the lack of jurisdiction, the court is constrained to deny the City's motion.
B. Merits of City's Motion
Although we find that the City's delay precludes the consideration of its motion, we will discuss the merits for the sake of thoroughness. As already noted, the parties are proceeding by way of summary judgment, which early in this matter appeared as a propitious vehicle for resolution of the disputed issues raised by the City's motion — but it is not to be.
The standards governing summary judgment proceedings are familiar; the Seventh Circuit discussed them in Santaella v. Metropolitan Life Ins. Co., 123 F.3d 456 (7th Cir. 1997):
In a summary judgment action, the moving party shoulders the initial burden of production. It must identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. When the movant satisfies that burden, the nonmovant must set forth specific facts showing there is a genuine issue for trial. If no genuine issue of material fact exists, the sole question is whether the moving party is entitled to judgment as a matter of law.Santaella, 123 F.3d at 456 (citations and quotations omitted). Here, as already noted, the parties have filed volumes of documentary evidence, the vast majority of which pertains to events occurring after the entry of the decree. Most of this evidence consists of depositions and affidavits, offering both sides of the parties' various disputes, at times from the same individuals. As such, the court is left with "swearing contests" over most issues, which cannot be resolved through summary judgment. Weeks v. Samsung Heavy Industries Co., Ltd., 126 F.3d 926, 933 (7th Cir. 1997). Rather than reiterate every supposed "undisputed fact" that the parties have asserted, we will offer a limited number of salient examples that demonstrate the inapplicability of disposing of the matter by way of summary judgment. 1. The Rufo Standard
This is of no real moment, however, for we nonetheless, can recommend a dispositive ruling on the City's motion to modify the consent decree.
Although the City seems not to fully accept that Rufo controls in this case, it does address the requirements for modification of a consent decree the Supreme Court announced in that case. The City argues that, under Rufo, it is entitled to its modification because the law has changed to make legal what the decree was designed to prevent, and because the parties had based the terms of the decree on a misunderstanding of the law. ( Consolidated Reply Memorandum, at 9).
The Rufo Court held that "modification of a consent decree may be warranted when the statutory or decisional law has changed to make legal what the decree was designed to prevent." 502 U.S. at 388, 112 S.Ct. at 762. The City submits that, at the time of the decree, "it was unclear whether the Constitution forbade all government investigations of First Amendment activity unless there was a reasonable suspicion that a crime had occurred or imminently would occur." ( City Mem., at 17). According to the City, the Seventh Circuit's decision in Alliance II made it clear that a law enforcement agency could investigate groups advocating violence, even without evidence that a crime has been or is about to be committed, without violating the Constitution. Thus, the City argues, the decision made legal what the decree in this case was designed to prevent. There are, however, several problems with the City's position — most obviously, that it neglects the terms of the decree. Under the decree, when the police learn of the advocacy of violence, they may conduct a preliminary inquiry, without authorization or reasonable suspicion of a crime, for at least three days; much longer given executive authorization. Alliance I, 561 F. Supp. at 564-65. Thus, the decree does not prevent what the City claims it does.
In addition, the City has not shown that the Alliance II decision effected a change in the law. Alliance II concerned plaintiff groups' challenge to a set of FBI guidelines that the groups contended violated the terms of a consent decree. 742 F.2d at 1009-10. The provision of the decree at issue precluded the FBI from conducting "an investigation solely on the basis of activities protected by the First Amendment." 742 F.2d at 1010. The challenged guidelines provided that "[w]hen . . . statements advocate criminal activity . . . 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." Id. The court did not announce a change in the law, as the City would have it; indeed, the court noted that the "FBI has always investigated people who advocate or threaten to commit serious violations of federal law, even if the violations are not imminent . . ." Rather, the court found that the new guideline was not inconsistent with the consent decree. 742 F.2d at 1019-1020.
The City's argument also strays from the Supreme Court's holding in Rufo. It would appear that the City contends that Alliance II changed the law to the extent that the decree no longer protects any federal rights. ( City Mem., at 19-20). In Rufo, a consent decree required single-cell occupancy in a county jail. Shortly after the decree was entered, the Supreme Court ruled in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 (1979), that double celling is not in all cases unconstitutional, and the county's sheriff moved to modify the decree based on a change in the law. Rufo, 502 U.S. at 388, 112 S.Ct. at 762. The Rufo court rejected the sheriff's argument, stating that the law had not changed concerning the legality of single-cell occupancy, and that parties could settle a dispute by fashioning a consent decree that "requires more than the Constitution requires." 502 U.S. at 388-89, 112 S.Ct. at 762. In other words, the decree had not protected a federal right to single-cell occupancy, but that did not warrant its modification.
Finally, with regard to the Rufo decision, the City argues that the parties based the decree on a misunderstanding of governing law. ( City Reply, at 11-14). Under Rufo, however, the City would have to establish what that misunderstanding was. 502 U.S. at 390, 112 S.Ct. at 763. The City does not even address the purported misunderstanding or provide evidence of it anywhere in its statement of facts. Thus, even if it were appropriate to consider the merits of the City's unreasonably tardy motion, the City has failed to establish it is entitled to relief under Rufo.
2. The City's Complaints
Although we do not find them to be particularly relevant under Rufo, we will briefly discuss the City's proffered arguments for modification, consisting of its record of compliance and the burdens of continued compliance. The City stresses that it has complied fully with the decree since it was entered and, indeed, offers this compliance as support for modification and goes so far as to claim it has deliberately established a 14-year record of compliance. ( Corrected Memorandum of the City of Chicago(" City Mem."), at 3, 11-12, 20-24). It contends that the audits conducted under the decree prove as much. ( City's 12(m) Statement of Undisputed Facts (" City St."); ¶¶ 2-4).
The plaintiffs, however, submit that evidence suggest at least six instances of noncompliance. ( ACLU's Statement of Facts- Response (" ACLU Rsp."), ¶ 3). Several other possible violations, allegedly occurring as recently as during the 1996 Democratic National Convention, are presently the subject of a separate petition from the plaintiffs. ( ACLU's Statement of Facts-Additional Facts (" ACLU Add."), ¶ 3). These alleged violations are detailed in Alliance Plaintiffs' Statement of Additional Facts (" Alliance Add."), and include:
1) Interrogations of demonstrators regarding political affiliations, of journalists regarding their opinions of law enforcement;
2) Surveillance of and entry into activists' headquarters and seizure of records;
3) Surveillance of individuals by marking of cars and tailing;
4) A raid of a political meeting at which participants were pepper-sprayed;
5) Seizure of journalists' film that recorded law enforcement surveillance;
6) Arrest of several demonstration participants and journalists;
7) Battery and severe injury of at least two demonstrators.
( Id., ¶¶ 58-113). Obviously, proof of any one of these allegations would essentially require a separate trial. Suffice it to say, however, that it is not beyond dispute that the City has complied with the decree. Even if compliance were the applicable requirement for modification, the court would be unable to rule in the City's favor based on this record.
Next, the City complains of the burdens the decree imposes on several areas of law enforcement, namely: terrorism, gangs, demonstrations, hate crimes, organized crime, bombings and arsons, and CAPS — the community policing program. In discussing these complaints, we note that we view them with skepticism given the City's 13-year delay in seeking modification. In other words, we question how severe the burden was given the City's long period of silence.
Nevertheless, we address each of the City's concerns separately, beginning with investigations into terrorism. According to the City, the decree inhibits its investigations into terrorism and politically motivated crimes. Because the City does not cite specific portions of the decree, it is difficult to assess their argument. The City claims that the decree forbids investigation of politically active groups when they advocate commission of illegal acts unless there is reasonable suspicion that a crime has been, is being, or is about to be committed. ( City Mem., at 30). Actually, the decree allows a preliminary investigation even where there is no such reasonable suspicion for as long as three days. Alliance I, 561 F. Supp. at 565. If reasonable suspicion is uncovered, the investigation may continue under executive authorization. Id. According to Police Commander William Callaghan, the police department has never conducted such a preliminary investigation. ( ACLU Rsp., ¶ 6; Callaghan Dep. at 147). In addition, the police department apparently does not conduct any terrorism investigations at all, although it does assign officers to the FBI's terrorism unit. ( Id. at 13-17). It does, however, investigate actual threats of violence, such as bomb or assassination threats, without restraint from the decree. ( Id. at 146). Accordingly, based on the record assembled, it is difficult to perceive the burden of which the City complains.
The City next asserts that the decree thwarts its law enforcement activity with respect to gangs or organized crime. It claims that once a gang becomes involved in what may pass for political activity — such as racial hatred — the decree prohibits the collection of information that might relate to future crimes. ( City Mem. at 31). Under the decree, however, "investigations as a law enforcement technique, including collection, analysis and dissemination of information about systemic criminal conduct" are allowed. Alliance I, 561 F. Supp. at 561. In addition, the right to assemble for purposes unrelated to holding political, educational, cultural, economic, philosophical or religious beliefs is not protected by the decree. Id. at 562. Thus, where a gang is essentially an ongoing criminal enterprise — see, e.g. 18 U.S.C. § 1961; 740 ILCS 147/10 — the decree is no obstacle to investigation. Indeed, the head of the Chicago Police Department's Gang Crimes Investigation Sections has testified that he has never had occasion to consult the decree in connection with an investigation, that he knows of no one in his unit that has conducted a preliminary investigation under the decree, and that he knows of no gang crime investigation that has been thwarted by the decree. ( ACLU Add., ¶ 13; Radney Dep. at 26, 34-38, 45). In addition, the police department maintains a database of approximately 59,000 individuals suspected to associate or belong to gangs. ( Id., ¶ 12; Radney Dep. at 58-59). It has extensive documentation of gang territories, signs, and colors. ( Id., ¶ 13; Radney Dep. at 46-47). Again, it is difficult to understand, from the record before us, how the decree imposes an the burden of which the City complains. ( See also ACLU Rsp. ¶¶ 14-15).
According to the City, the decree also inhibits law enforcement activity as it pertains to demonstrations. The City states that it wishes to videotape demonstrations it believes may result in illegal activity. While it acknowledges that the decree does not preclude photographing illegal activity once it occurs, it contends it is too difficult to wait for it to occur before photographing or videotaping. ( City Mem., at 32). Problems with waiting to turn on a camera are mere inconveniences that do not merit the overhaul of a consent decree. The City also claims that the decree thwarts their law enforcement activity with respect to demonstrators that commit breaches of the peace, such as blocking entry to institutions by chaining themselves together or gluing doors shut. ( City St., ¶ 12). According to the City's designated witness for this subject, coordinator John W. Flanagan, testified that such conduct would constitute criminal activity, and the decree would not prohibit recording it. ( ACLU Rsp., ¶ 12; Flanagan Dep. at 50-51). The City would also like to videotape demonstrations for use in training. As for these concerns, the plaintiffs are amenable to working out an agreement covering videotaping for the limited purpose of training. We are sure that as a general matter, a more flexible videotaping arrangement can also be worked out between the parties.
The next problem the City raises is in regard to investigation of hate crimes. According to the City, the decree prevents it from gathering and maintaining information on individuals holding political views that make it more likely they will commit hate crimes. According to the head of the police department's hate crimes unit, Sergeant Scalise, the unit would like to keep records and photographs of members in groups that bigoted views and have a track record of violence. ( ACLU Rsp., ¶ 13; Scalise Dep. at 65-67). According to the sergeant, if a group does not have a record of violence, he is not interested in keeping records or photographs of members. ( Id.; Scalise Dep. at 67). As such, the target groups would be organized criminal groups and, as is the case with gangs or organized crime, the decree does not preclude investigation into their conduct.
The City also complains that the decree curtails investigations of bombings or arsons, since the police department would like to photograph crowds that show up at such crime scenes. Yet again, the City's failure to specify what portion of the decree forbids this investigative activity is frustrating. ( City Mem., at 34). It is clear under the terms of the decree that a gathering at a bombing or arson crime scene would not be First Amendment conduct. Alliance I, 561 F. Supp. at 562.
Finally, the City appears to have found fault with the decree as it relates to community policing — the City's CAPS program. ( City Mem., 35-36). The City's concerns in this area are less than clear. Some are identical to the gang and organized crime issue already addresses. Beyond that, the City mentions that the decree prevents the CAPS program from maintaining list of community leaders. Under the decree, however, such listings do not constitute investigative activity directed at First Amendment conduct. Id., 561 F. Supp. at 562.
Many of the City's complaints then, appear to be based on a misunderstanding of the terms of the decree. In areas where that might not be the case, the record before the court fails to establish that the City's assertions are beyond dispute. We fail to detect any restriction under the consent decree to any legitimate law enforcement activities, which include intelligence gathering that is not otherwise offensive to a citizens' First Amendment right. When looking to the consent decree as a whole, we perceive nothing in it that would hobble or place "blinders" on legitimate police activities or trifle with public safety; nor should it. Alliance II, 742 F.2d at 1014-1015.
III. CONCLUSION
For all the foregoing reasons, it is hereby recommended that the defendants' motion for modification of the consent decree be DENIED.
Any objections to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this notice. Failure to file objections within the specified time waives the right to appeal the District Court's order. Fed.R.Civ.P. 72; Thomas v. Arn, 474 U.S. 140 (1985); Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330 (7th Cir. 1995).
Copies to:
Lawrence V. Jackowiak Richard Gutman 20 N. Wacker Drive, Ste. 1700 55 Warfield Street Chicago, IL 60606-2904 Montclair, NJ 07043-1116
Peter Donoghue Robert Howard Sharon Baldwin Futterman Howard Patrick Johnson 122 S. Michigan Avenue 30 N. LaSalle Street, Ste. 900 Ste. 1850 Chicago, IL 60602 Chicago, IL 60603
Harvey Grossman Roger Baldwin Foundation of ACLU, Inc. 180 N. Michigan Avenue Ste. 2300 Chicago, IL 60601
On March 9, 1999, a copy of this Report and Recommendation was mailed to each of the above listed attorneys.
Theresa Hammonds Courtroom Deputy