Red SquadsRed SquadsPolice intelligence Police intelligence units specialized in units specialized in

infiltrating, infiltrating, harassing, harassing, andand

gathering gathering intelligenceintelligence on on

political and social political and social groups.groups.

Red SquadsRed SquadsThe The Haymarket Riot in 1886 was emblematic of disruptive police Haymarket Riot in 1886 was emblematic of disruptive police

tactics became common in larger cities such as Chicago.tactics became common in larger cities such as Chicago.

Randolph St, Chicago

Red SquadsRed SquadsInvestigating anarchists, unions, communists, Investigating anarchists, unions, communists,

radicals and everyday citizens.radicals and everyday citizens.

The Chicago Red Squad alone, between 1920 and The Chicago Red Squad alone, between 1920 and 1960, gathered information on more than 14,000 1960, gathered information on more than 14,000

organizations and 258,000 individuals, including the organizations and 258,000 individuals, including the United Methodist Church and the League of Women United Methodist Church and the League of Women

VotersVoters

Political Climate of the Political Climate of the 1960s and 1970s1960s and 1970s

Groups of activists emerged, from the lawful to Groups of activists emerged, from the lawful to the subversive, to protest the war in Vietnam the subversive, to protest the war in Vietnam and Civil Rights and other social and political and Civil Rights and other social and political

causes.causes.

John Kerry with John Lennon Protest at the 1968 Democratic National Convention in Chicago

A New Threat EmergesA New Threat EmergesPolice and FBI Police and FBI used used new tactics to new tactics to infiltrate activist infiltrate activist organizations.organizations.

COINTELPROCOINTELPRO Church CommitteeChurch Committee

Many times, they Many times, they infiltrated lawful infiltrated lawful groups of citizens.groups of citizens.

J. Edgar Hoover founded and ran the FBI for 48 years, from 1924-1972

The Weather UndergroundThe Weather UndergroundWeather Underground OrganWeather Underground Organizationization, was a U.S. Radical Left , was a U.S. Radical Left group organized in the group organized in the 1960s. 1960s.

The group referred to itself The group referred to itself as a revolutionary as a revolutionary organization of women and organization of women and men men whose purpose was to whose purpose was to carry out a series of attacks carry out a series of attacks that would achieve the that would achieve the revolutionary overthrow of revolutionary overthrow of the Government of the the Government of the United States.United States.

Pollikoff’s buddy, and Professor of Education, Bill Ayers on the left

The Black Panther PartyThe Black Panther Party

Fred HamptonFred Hampton was an was an American activist and American activist and deputy chairman of the deputy chairman of the Illinois chapter of the Illinois chapter of the Black Panther Party Black Panther Party (BPP). (BPP).

““THE RED SQUAD”THE RED SQUAD” Subversives Activities Unit of the Chicago Police Subversives Activities Unit of the Chicago Police

Intelligence DivisionIntelligence Division– Exclusively gathered information on Exclusively gathered information on lawfullawful political political

activitiesactivities– Openly harassed individuals and organizationsOpenly harassed individuals and organizations

– ““The Red Squad acted like any other secret police. The Red Squad acted like any other secret police. They’d find out who was dissenting. If a group was They’d find out who was dissenting. If a group was considered a threat to the status quo, they’d try to considered a threat to the status quo, they’d try to destroy it, directly or indirectly. Because it was such a destroy it, directly or indirectly. Because it was such a blatant violation of the First Amendment…the Alliance blatant violation of the First Amendment…the Alliance decided that the best thing to do was to file a lawsuit.”decided that the best thing to do was to file a lawsuit.”

Richard GutmanRichard GutmanAttorney for the Alliance to End RepressionAttorney for the Alliance to End Repression(Quoted from (Quoted from The Price of DissentThe Price of Dissent by Bud and Ruth Schultz) by Bud and Ruth Schultz)

Red Squads ReactRed Squads React

Fred Hampton was Fred Hampton was killed in his apartment killed in his apartment by a tactical unit of the by a tactical unit of the Cook County, Illinois Cook County, Illinois

State's Attorney's State's Attorney's Office in conjunction Office in conjunction

with the Chicago with the Chicago Police Department and Police Department and

the FBI.the FBI.

Chicago police removing the body of Fred Hampton from his home at 2337 West Monroe St.

The Citizens RespondThe Citizens RespondGroups such as Groups such as The Alliance to End The Alliance to End Repression Repression form in response to form in response to police misconduct and violations of police misconduct and violations of Constitutional rights.Constitutional rights.

THE ALLIANCE TO END THE ALLIANCE TO END REPRESSIONREPRESSIONWhat is it?What is it?

A coalition of religious and A coalition of religious and community groups formed in community groups formed in response to violations of civil response to violations of civil liberties in Chicago.liberties in Chicago.

How was it formed?How was it formed? On December 4, 1969, Black On December 4, 1969, Black

Panther leaders Mark Clark and Panther leaders Mark Clark and Fred Hampton were assassinated Fred Hampton were assassinated by the Chicago police. The by the Chicago police. The assassinations were planned by assassinations were planned by the Chicago police and the FBI, the Chicago police and the FBI, with the help of an infiltrator.with the help of an infiltrator.

The assassinations were The assassinations were regarded as the “ultimate in regarded as the “ultimate in repression” and the Alliance was repression” and the Alliance was created as a response.created as a response.

THE ALLIANCE TO END THE ALLIANCE TO END REPRESSIONREPRESSION

What does the Alliance do?What does the Alliance do? John Hill—executive coordinator of the AllianceJohn Hill—executive coordinator of the Alliance

– ““We decided we were going to attack We decided we were going to attack repression wherever it was. There were so repression wherever it was. There were so many wrongs that needed to be righted.”many wrongs that needed to be righted.”

– ““Then I began to realize that all you Then I began to realize that all you needed was a handful of people with needed was a handful of people with normal intelligence and experience. If you normal intelligence and experience. If you were steadfast and continued to meet; if were steadfast and continued to meet; if you were flexible, able to say, “That one you were flexible, able to say, “That one will never work”; and if you were will never work”; and if you were sufficiently courageous—but more than sufficiently courageous—but more than anything else, if you were persistent—you anything else, if you were persistent—you would be able to answer most of the social would be able to answer most of the social problems confronting the community. So I problems confronting the community. So I had this feeling right in my gut that it was had this feeling right in my gut that it was possible to make a change.”possible to make a change.”

Bail Project, Prison Visitation Group, Bail Project, Prison Visitation Group, Discrimination in Police HiringDiscrimination in Police Hiring

(Quotes from (Quotes from The Price of DissentThe Price of Dissent by Bud and Ruth Schultz) by Bud and Ruth Schultz)

HOW IT BEGANHOW IT BEGANRichard GutmanRichard GutmanAttorney for The Alliance to End Attorney for The Alliance to End

RepressionRepression

First job was with the Illinois First job was with the Illinois American Civil Liberties UnionAmerican Civil Liberties Union

During this time, the Alliance During this time, the Alliance attorney came to the ACLU for attorney came to the ACLU for assistance in filing the assistance in filing the complaintcomplaint

No one from the ACLU wanted No one from the ACLU wanted to work on the lawsuit—”high to work on the lawsuit—”high risk case”risk case”

A QUOTE FROM GUTMAN:A QUOTE FROM GUTMAN:Quoted from Quoted from The Price of DissentThe Price of Dissent by Bud and Ruth Schultz by Bud and Ruth Schultz

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

THE COMPLAINTTHE COMPLAINT Filed on November 13, 1974 as a class action lawsuitFiled on November 13, 1974 as a class action lawsuit Brought under 42 U.S.C. § 1983Brought under 42 U.S.C. § 1983 Violations of 1Violations of 1stst, 4, 4thth, 5, 5thth, 6, 6thth, 8, 8thth, 9, 9thth, 14, 14thth Amendments Amendments Allegations:Allegations:

– 1. surveillance and intelligence-gathering1. surveillance and intelligence-gathering– 2. unlawful wiretapping and other electronic surveillance2. unlawful wiretapping and other electronic surveillance– 3. unlawful entry and seizure3. unlawful entry and seizure– 4. dissemination of derogatory information4. dissemination of derogatory information– 5. summary punishment and harassment 5. summary punishment and harassment – 6. infiltration of private meetings and political organizations6. infiltration of private meetings and political organizations

Relief requested:Relief requested:– Declarative reliefDeclarative relief– Injunctive releifInjunctive releif– Compensatory damagesCompensatory damages

MOTION TO DISMISSMOTION TO DISMISS General argument:General argument:

– Plaintiffs lack standing to seek injunctive Plaintiffs lack standing to seek injunctive reliefrelief

– No justiciable controversyNo justiciable controversy– Based on Based on Laird v. TatumLaird v. Tatum (S.C. 1972) (S.C. 1972)

Allegation of existence of system of Allegation of existence of system of surveillance of unlawful activity surveillance of unlawful activity

Allegation of “chilling effect” on exercise of 1Allegation of “chilling effect” on exercise of 1stst Amendment rightsAmendment rights

No allegations of specific action takenNo allegations of specific action taken Discovery stoppedDiscovery stopped

FIRST MAJOR BREAKTHROUGHFIRST MAJOR BREAKTHROUGH An unrelated lawsuit against the Chicago An unrelated lawsuit against the Chicago

Police Department regarding employment Police Department regarding employment discrimination discrimination

Discovery produced payroll list of all the Discovery produced payroll list of all the officers by name, race, sex, disciplinary officers by name, race, sex, disciplinary actions, unit, and assignmentactions, unit, and assignment

““Assignment Unknown”Assignment Unknown”– 8 officers assigned this category8 officers assigned this category

Howard Pointer—Operation PUSHHoward Pointer—Operation PUSH Marcus Sloane—OBA and MAHAMarcus Sloane—OBA and MAHA Melvin Barna—CAPMelvin Barna—CAP Geno Addams—Alliance to End RepressionGeno Addams—Alliance to End Repression

MEDIA EXPOSUREMEDIA EXPOSURE

MEDIA EXPOSUREMEDIA EXPOSURE

MEDIA EXPOSUREMEDIA EXPOSURE

SIGNIFICANCE OF EXPOSURESIGNIFICANCE OF EXPOSURE

Exposure of double standardExposure of double standard– Public generally more responsive when those in the Public generally more responsive when those in the

“mainstream” are targeted“mainstream” are targeted– ““When radical or Black groups are being spied on, the When radical or Black groups are being spied on, the

media really doesn’t care too much. They think: “It’s media really doesn’t care too much. They think: “It’s probably good that the government watches them.” But probably good that the government watches them.” But when it’s mainly white mainstream-type groups, all hell when it’s mainly white mainstream-type groups, all hell breaks loose.” –Gutmanbreaks loose.” –Gutman

The result?The result?– The Red Squad was voluntarily abolished and The Red Squad was voluntarily abolished and

completely discreditedcompletely discredited– Then the Motion to Dismiss was denied on May 16, 1975Then the Motion to Dismiss was denied on May 16, 1975– Grand Jury is convened by State’s Attorney Bernard Grand Jury is convened by State’s Attorney Bernard

CareyCarey

GRAND JURY REPORTGRAND JURY REPORT Cook County Grand Jury ReportCook County Grand Jury Report

– November of 1975November of 1975– ““The evidence has clearly shown that The evidence has clearly shown that

the Security Section of the Chicago the Security Section of the Chicago Police Department assaulted the Police Department assaulted the fundamental freedoms of speech, fundamental freedoms of speech, association, press and religion, as well association, press and religion, as well as the constitutional right to privacy of as the constitutional right to privacy of hundreds of individuals.”hundreds of individuals.”

CLASS CERTIFICATIONCLASS CERTIFICATION On March 25, 1976, two plaintiff classes were certifiedOn March 25, 1976, two plaintiff classes were certified

– Individual plaintiffsIndividual plaintiffs All residents of the City of Chicago, and all other persons who are All residents of the City of Chicago, and all other persons who are

physically present within the City of Chicago for regular or physically present within the City of Chicago for regular or irregular periods of timeirregular periods of time

– Organizational plaintiffsOrganizational plaintiffs All organizations located or operating in the City of ChicagoAll organizations located or operating in the City of Chicago

– WhoWho:: Engage or have engaged in lawful political, religious, educational Engage or have engaged in lawful political, religious, educational

or social activities and who, as a result of these activities, have or social activities and who, as a result of these activities, have been within the last five years, are now, or hereafter may be, been within the last five years, are now, or hereafter may be, subjected to or threatened by alleged infiltration, physical or subjected to or threatened by alleged infiltration, physical or verbal coercion, photographic, electronic, or physical verbal coercion, photographic, electronic, or physical surveillance, summary punishment, harassment, or dossier surveillance, summary punishment, harassment, or dossier collection, maintenance, and dissemination by defendants or collection, maintenance, and dissemination by defendants or their agents.their agents.

DISCOVERYDISCOVERY July 1, 1976: July 1, 1976:

– Court order for production of documents related Court order for production of documents related to intelligence activities of Chicago Police—but to intelligence activities of Chicago Police—but access limited to plaintiffs’ attorneysaccess limited to plaintiffs’ attorneys

October 14, 1976: October 14, 1976: – Court allowed plaintiffs’ attorneys to disclose to Court allowed plaintiffs’ attorneys to disclose to

each plaintiff their own police fileeach plaintiff their own police file– Court did Court did notnot restrict plaintiffs from disclosing files restrict plaintiffs from disclosing files

to anyone of their own choosingto anyone of their own choosing November 10, 1976: November 10, 1976:

– Court entered preliminary injunction against Court entered preliminary injunction against defendants from infiltrating the plaintiffs’ legal defendants from infiltrating the plaintiffs’ legal team team andand from using any information gained in from using any information gained in that manner that manner

SECOND MAJOR SECOND MAJOR BREAKTHROUGHBREAKTHROUGH

Won access to Won access to allall Red Squad files in Red Squad files in entirely undeleted formentirely undeleted form– There were 33 named plaintiffs, but because There were 33 named plaintiffs, but because

this case was certified as a class action suit, this case was certified as a class action suit, they were able to get the files on everyonethey were able to get the files on everyone

Won the right to search the Red Squad file Won the right to search the Red Squad file room and copy anything on anyoneroom and copy anything on anyone

Won the right to show these reports to the Won the right to show these reports to the people who were spied onpeople who were spied on

Won the right to let people give the police Won the right to let people give the police reports about themselves to the mediareports about themselves to the media

DISCOVERY RESULTSDISCOVERY RESULTS Documents produced by Alliance infiltratorsDocuments produced by Alliance infiltrators

– Reports of Alliance activity for the Chicago policeReports of Alliance activity for the Chicago police Talked about the strengths of the AllianceTalked about the strengths of the Alliance Reported when the Alliance was ready to file the lawsuitReported when the Alliance was ready to file the lawsuit Included warning: “The people in authority better do what they Included warning: “The people in authority better do what they

have to do, because pretty soon it’s going to be too late.”have to do, because pretty soon it’s going to be too late.”– Reports regarding legal preparation of the AllianceReports regarding legal preparation of the Alliance

Included questionnaires that were used to help find potential Included questionnaires that were used to help find potential plaintiffsplaintiffs

Led to ruling by the courts—although narrowLed to ruling by the courts—although narrow– ““Under the rules of procedure, if you want some information Under the rules of procedure, if you want some information

in a lawsuit, you have to file a request. You can’t just send in a lawsuit, you have to file a request. You can’t just send somebody into the organization to spy on them.” somebody into the organization to spy on them.” –Seventh Circuit Court of Appeals- –Seventh Circuit Court of Appeals-

NEGOTIATIONSNEGOTIATIONS Lasted for more than 2 yearsLasted for more than 2 years Described as nothing less than “arduous Described as nothing less than “arduous

and adversary”and adversary” Nearly every line, paragraph, and many Nearly every line, paragraph, and many

words of the resulting consent decree words of the resulting consent decree were the product of intense negotiationswere the product of intense negotiations

Impasses occurred at two separate Impasses occurred at two separate occasions occasions

But in the end, attorneys for both parties But in the end, attorneys for both parties agreed that the consent decree was agreed that the consent decree was “fair, reasonable, [and] adequate” “fair, reasonable, [and] adequate”

WHY ACCEPT?WHY ACCEPT? ““To me, it was a no-brainer. The most To me, it was a no-brainer. The most

important factor was that even if we important factor was that even if we were to win a trial, we would not were to win a trial, we would not obtain injunctive relief even one-obtain injunctive relief even one-quarter as strong as the consent quarter as strong as the consent decree. It is a basic principal of law decree. It is a basic principal of law that a party can agree to an injunction that a party can agree to an injunction that goes beyond what is required by that goes beyond what is required by law.” law.”

Richard Gutman (via email)Richard Gutman (via email)

OPINION OF THE COURTOPINION OF THE COURT No judicial decision or legislative No judicial decision or legislative

enactment is as protective of citizens enactment is as protective of citizens 11stst Amendment rights as City of Amendment rights as City of Chicago consent decreeChicago consent decree

Legal protections of consent decree go Legal protections of consent decree go far beyond the legal relief likely far beyond the legal relief likely entered by the courtentered by the court

The law in this area is largely unsettledThe law in this area is largely unsettled Proof of case at trial would pose Proof of case at trial would pose

difficulties for plaintiffsdifficulties for plaintiffs

FIRST AMENDMENT FIRST AMENDMENT CONDUCTCONDUCT

Broadly defined in the Consent Decree:Broadly defined in the Consent Decree:– Includes “the right to hold ideas or beliefs Includes “the right to hold ideas or beliefs

concerning public or social policy, or concerning public or social policy, or political, educational, cultural, economic, political, educational, cultural, economic, philosophical or religious matters” philosophical or religious matters”

– Includes “the right to assemble privately Includes “the right to assemble privately concerning such ideas or beliefs, the right concerning such ideas or beliefs, the right to advocate alternative systems of to advocate alternative systems of government, and the right to associate in government, and the right to associate in connection with legal advice and litigation”connection with legal advice and litigation”

CITY OF CHICAGO CITY OF CHICAGO CONSENT DECREECONSENT DECREE

Imposed against any agent or agency of City of Imposed against any agent or agency of City of ChicagoChicago

Protects 1Protects 1stst Amendment activity Amendment activity Enforced by CourtEnforced by Court

– Allows any person affected by prohibited conduct to bring Allows any person affected by prohibited conduct to bring a claima claim

Investigation of 1Investigation of 1stst Amendment activity only allowed Amendment activity only allowed for:for:– CriminalCriminal

There must be “reasonable suspicion based on specific and There must be “reasonable suspicion based on specific and articulable facts that the subject has committed, is articulable facts that the subject has committed, is committing, or is about to commit a crime.”committing, or is about to commit a crime.”

– Dignitary protectionDignitary protection– Public gatheringPublic gathering– Regulatory Regulatory

The Consent DecreeThe Consent Decree(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 . . . . 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.

The Consent DecreeThe Consent DecreeThe FBI:The FBI: ““shall not conduct in the City of Chicago any warrantless shall not conduct in the City of Chicago any warrantless

unconsented physical searches in domestic security unconsented physical searches in domestic security investigations, any unlawful unconsented physical searches of investigations, any unlawful unconsented physical searches of premises or property of U.S. persons in foreign intelligence premises or property of U.S. persons in foreign intelligence collection or foreign counter-intelligence investigations, any collection or foreign counter-intelligence investigations, any unlawful entries that constitute searches under the Fourth unlawful entries that constitute searches under the Fourth Amendment, or any unlawful disruption or harassment of the Amendment, or any unlawful disruption or harassment of the lawful activities of any United States person.”lawful activities of any United States person.”

The Consent DecreeThe Consent DecreeThe FBI:The FBI: ““shall not conduct in the City of Chicago any warrantless shall not conduct in the City of Chicago any warrantless

unconsented physical searches in domestic security unconsented physical searches in domestic security investigations, any unlawful unconsented physical searches of investigations, any unlawful unconsented physical searches of premises or property of U.S. persons in foreign intelligence premises or property of U.S. persons in foreign intelligence collection or foreign counter-intelligence investigations, any collection or foreign counter-intelligence investigations, any unlawful entries that constitute searches under the Fourth unlawful entries that constitute searches under the Fourth Amendment, or any unlawful disruption or harassment of the Amendment, or any unlawful disruption or harassment of the lawful activities of any United States person.”lawful activities of any United States person.”

Smith GuidelinesSmith Guidelines““When, however, statements advocate criminal activity or When, however, statements advocate criminal activity or

indicate an apparent intent to engage in crime, indicate an apparent intent to engage in crime, particularly crimes of violence, an investigation under particularly crimes of violence, an investigation under these Guidelines may be warrantedthese Guidelines may be warranted unless it is unless it is apparent, from the circumstances or the context in apparent, from the circumstances or the context in which the statements are made, that there is no prospect which the statements are made, that there is no prospect of harm.”of harm.”

Posner on the GuidelinesPosner on the Guidelines Posner doubts that “in Posner doubts that “in

agreeing to the consent agreeing to the consent decree the Justice decree the Justice Department tied its hands to Department tied its hands to such an extent; for if it did, such an extent; for if it did, it was trifling with the it was trifling with the public safety of the people public safety of the people of Chicago.”of Chicago.”

Hon. Richard Posner, Chief Judge of the 7th Circuit Court of Appeals, thinks this decree could use a little “modification”

Consent DecreesConsent Decrees Did the decree Did the decree

work?work? Are consent Are consent

decrees the best decrees the best way to approach way to approach institutional institutional reform?reform?

Roger Parloff, World Pad, CNN.comDecember 09, 2006: Judge Posner takes book tour spending a couple hours in Second Life, the metaverse simulated by servers operated by Linden Lab.

Consent DecreesConsent Decrees In institutional reform litigation, In institutional reform litigation,

consent decrees:consent decrees:

– Allow the state greater flexibility than Allow the state greater flexibility than hard ruleshard rules

– Protects the rights of citizensProtects the rights of citizens

Consent DecreesConsent Decrees Dual Character of Consent DecreesDual Character of Consent Decrees

– An “agreement” approved by the courtAn “agreement” approved by the court

– A “contract” binding the partiesA “contract” binding the parties

Balancing TestBalancing Test

Consent decrees Consent decrees such as such as AllianceAlliance must balance civil must balance civil liberties and public liberties and public safetysafety

Application of the Consent DecreeApplication of the Consent Decree Spanish Action CommitteeSpanish Action Committee Chicago Committee in Solidarity with the People of El Chicago Committee in Solidarity with the People of El

Salvador (CISPES)Salvador (CISPES) Raymond RisleyRaymond Risley 1996 Democratic National Convention1996 Democratic National Convention Attorney FeesAttorney Fees

Spanish Action Committee of ChicagoSpanish Action Committee of Chicago

1966: 1966: Red Squad discredit Juan Red Squad discredit Juan Diaz, Diaz, SACC leader.SACC leader.

1984:1984: SACC win $60,000 in SACC win $60,000 in compensatory damages compensatory damages

against against the City.the City. Three individual defendants granted qualified Three individual defendants granted qualified

immunity.immunity.

Chicago CISPESChicago CISPES 1983-85:1983-85: FBI investigation of National CISPESFBI investigation of National CISPES

19 separate investigations in Chicago.19 separate investigations in Chicago. Bank records, phone records, and monitoring of private Bank records, phone records, and monitoring of private

and public meetings.and public meetings. 1987:1987: New head of FBI William Sessions orders New head of FBI William Sessions orders

audit of the investigation. audit of the investigation. Disciplines those involved Disciplines those involved Changes FBI guidelines.Changes FBI guidelines.

1991:1991: CISPES receives summary judgmentCISPES receives summary judgment FBI signed Consent Decree with knowledge of its terms FBI signed Consent Decree with knowledge of its terms

and the investigation was undertaken deliberatelyand the investigation was undertaken deliberately FBI’s actions found to be “intentional non-compliance”.FBI’s actions found to be “intentional non-compliance”. Expungement of files; order to comply.Expungement of files; order to comply.

1997:1997: FBI’s negligence is not “intentional non-FBI’s negligence is not “intentional non-compliance”.compliance”.

Investigation violates the Consent Decree when conducted Investigation violates the Consent Decree when conducted with intent to interfere with First Amendment Rights.with intent to interfere with First Amendment Rights.

Raymond RisleyRaymond Risley High ranking Chicago police officer from 1991-1999.High ranking Chicago police officer from 1991-1999.

Investigated by Internal Affairs for allegedly communicating with Investigated by Internal Affairs for allegedly communicating with the media.the media.

Motion dismissed because of 2 year statute of limitationsMotion dismissed because of 2 year statute of limitations

No Consent Decree violation unless No Consent Decree violation unless actualactual First First Amendment conduct!!!Amendment conduct!!!

Risley alleged that investigation was retaliation based on the Risley alleged that investigation was retaliation based on the mistaken beliefmistaken belief of First Amendment conduct. of First Amendment conduct.

No remedy for City actions First Amendment motivations No remedy for City actions First Amendment motivations unless those actions are meant to disrupt, interfere with, or unless those actions are meant to disrupt, interfere with, or harass a person because of their harass a person because of their actualactual First Amendment First Amendment conduct.conduct.

Alleged police retaliation was in response to Alleged police retaliation was in response to perceivedperceived First Amendment conductFirst Amendment conduct

Does this go against the idea that intentional non-Does this go against the idea that intentional non-compliance by the police violates the Consent Decree???compliance by the police violates the Consent Decree???

1996 Democratic National Convention1996 Democratic National Convention Active Resistance Active Resistance

CounterConventionCounterConvention Autonomous Zone, CounterMedia, and Active Resistance Autonomous Zone, CounterMedia, and Active Resistance

Organizing Committee Organizing Committee Allege they were spied on, radio communications were Allege they were spied on, radio communications were

monitored, cameras and film were destroyed or seized. and monitored, cameras and film were destroyed or seized. and participants were generally followed, questions, and harassed participants were generally followed, questions, and harassed by the police.by the police.

Summary judgmentSummary judgment surveillance allowed of public gatheringssurveillance allowed of public gatherings Plaintiffs would need to show connection between retaliation Plaintiffs would need to show connection between retaliation

and their First Amendment conduct for the police conduct to and their First Amendment conduct for the police conduct to violate the Consent Decree.violate the Consent Decree.

– Taking radio and sending false communications not violation Taking radio and sending false communications not violation unlessunless police were retaliating because of the person’s First police were retaliating because of the person’s First Amendment conduct.Amendment conduct.

– If cameras opened to destroy the film of police searching a van, If cameras opened to destroy the film of police searching a van, that is retaliation for First Amendment conduct that is retaliation for First Amendment conduct

Underlying reason for searching the van did not violate CD.Underlying reason for searching the van did not violate CD.

1996 Democratic National Convention 1996 Democratic National Convention ““clear and convincing” evidenceclear and convincing” evidence

– At bench hearing the plaintiffs fail to show that At bench hearing the plaintiffs fail to show that any of the incidents were retaliation for First any of the incidents were retaliation for First Amendment conduct.Amendment conduct.

Unwillingness to enforce where the police Unwillingness to enforce where the police action action not clearly done in retaliationnot clearly done in retaliation to to the plaintiff’s First Amendment conduct. the plaintiff’s First Amendment conduct. – CISPES negligence standard sufficientCISPES negligence standard sufficient

Modification of the Consent DecreeModification of the Consent Decree

• City presents 13 interrogatories calling for City presents 13 interrogatories calling for interpretation of hypothetical scenariosinterpretation of hypothetical scenarios• City’s motion for clarification on City’s motion for clarification on

interrogatories denied, court “cannot be in the interrogatories denied, court “cannot be in the business of issuing hypothetical answers.business of issuing hypothetical answers.

Misguided NatureMisguided Nature– plaintiffs would not have disputed some of the plaintiffs would not have disputed some of the

scenarios if the City had bothered to ask for the scenarios if the City had bothered to ask for the plaintiff’s interpretation of the interrogatories.plaintiff’s interpretation of the interrogatories.

1997: City motion for modification• A burden on ability to serve and protect? • bad public policy?

• Dist Ct. denies City’s motion for modification• allows motion for interpretation of the Consent Decree

Mr. Edward Feldman

Arguing attorney for ACLU

Modification of the Modification of the Consent Decree (cont)Consent Decree (cont)

Attorney Edward Feldman:Attorney Edward Feldman: City had not offered any actual factual City had not offered any actual factual examples examples where criminal activity where criminal activity resulted from City’s resulted from City’s inability to inability to investigate a political groupinvestigate a political group

Edward Feldman and Richard Gutman:Edward Feldman and Richard Gutman:– Decision was based on the 7th Circuit’s assumption of how the Consent Decision was based on the 7th Circuit’s assumption of how the Consent

Decree affected police activity rather than on the factual record Decree affected police activity rather than on the factual record presented.presented.

FBI agent affidavit:FBI agent affidavit: decree never prevented FBI from doing what decree never prevented FBI from doing what they wanted to do in an investigationthey wanted to do in an investigation

ChangesChanges ““reasonable suspicion” standard removed.reasonable suspicion” standard removed. The Consent Decree is still an open contract that the City must abide by or The Consent Decree is still an open contract that the City must abide by or

otherwise face sanctions. otherwise face sanctions. Audits. Audits.

Then and NowThen and Now ThenThen

– Were the Police correct Were the Police correct in assessing the threat in assessing the threat to public safety?to public safety?

NowNow– What infringements on What infringements on

civil liberties are civil liberties are necessary for national necessary for national security today?security today?

That’s a tough one . . .

Good then . . . Bad now?Good then . . . Bad now?

The party seeking modification must then show that the The party seeking modification must then show that the alteration is warranted by changed circumstances alteration is warranted by changed circumstances

The rationale for modification assumes that a decree can The rationale for modification assumes that a decree can be “good then, but bad now.”be “good then, but bad now.”

““They that can give They that can give up essential liberty up essential liberty to obtain a little to obtain a little temporary safety temporary safety deserve neither deserve neither liberty nor safety”liberty nor safety”

Ben Franklin, 1759