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ALLIANCE TO END REPRESSION v. CITY OF CHICAGO

April 18, 1983

ALLIANCE TO END REPRESSION, ET AL., PLAINTIFFS,
v.
CITY OF CHICAGO, ET AL., DEFENDANTS. AMERICAN CIVIL LIBERTIES UNION, ET AL., PLAINTIFFS, V. CITY OF CHICAGO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Getzendanner, District Judge:

MEMORANDUM OPINION AND ORDER

These actions come before the court on motions for preliminary relief. Plaintiffs seek an order temporarily restraining the Federal Bureau of Investigation from implementing within the City of Chicago portions of the Attorney General's newly-announced Guidelines on Domestic Security/Terrorism Investigations. (Hereafter referred to as the "Reagan Guidelines"*fn1) Plaintiffs contend that the challenged portions of the new Guidelines are inconsistent with the "permanent principles," Alliance to End Repression v. City of Chicago, 91 F.R.D. 182, 200 (N.D.Ill. 1981), underlying the settlement agreement concluding these two lawsuits. For the reasons to follow, the court finds that the plaintiffs are entitled in part to relief they seek.

I.

These cases commenced nearly ten years ago with the filing of complaints asserting that various "federal defendants"*fn2 had engaged in conduct within the City of Chicago violative of the plaintiffs' constitutional rights. In particular:

  Plaintiffs in both cases claim that the settling
  defendants have conducted surveillance of, and
  compiled dossiers on, their lawful political and
  other lawful activities; gathered information
  about plaintiffs by unlawful means, including
  warrantless wiretaps and break-ins, unlawful use
  of infiltrators and informers, and by other
  unlawful means; disrupted and harassed
  plaintiffs' lawful activities; and further, that
  defendants have also committed these alleged
  wrongs against members of the plaintiff classes,
  all as part of a continuing course and pattern of
  alleged illegal conduct.

Alliance to End Repression v. City of Chicago, supra, 91 F.R.D. at 186. After many years of "sharply contested" litigation, id. at 187, the parties proposed in late 1980 a settlement agreement for the court's approval.

As both suits had been certified as class actions, Alliance to End Repression v. Rochford, 565 F.2d 975 (7th Cir. 1977) (affirming the certification order), a fairness hearing on the terms of the proposed settlement was held. See Fed.R.Civ.P. 23(e). The court heard arguments from numerous objectors, but ultimately entered the agreement on August 11, 1981, finding it "fair, reasonable and adequate." Alliance to End Repression v. City of Chicago, supra, 91 F.R.D. at 204.

In broad brush, the agreement sets forth in ¶ 3.4 several "general principles" the FBI must follow while conducting "domestic security investigations." Paragraph 3.5 of the agreement further restricts in more specific ways the Bureau's latitude of operation. In particular, ¶ 3.5(c) incorporates, inter alia, the rules set forth in the then-governing Guidelines on domestic security investigations promulgated by former Attorney General Edward H. Levi. The Reagan Guidelines supersede the Levi document.

The prospect of superseding Guidelines was considered and dealt with by the parties in drafting their agreement. Paragraph 3.6(c) holds that superseding regulations must in general be employed in construing ¶ 3.5(c). However, the final proviso to ¶ 3.6 makes explicit that "future or amended written Departmental or Bureau regulations, guidelines or other procedures, or conduct relating to the use of investigative techniques described in Paragraph 3.5 shall be in accordance with the principles stated in Paragraph 3.4, and the applicable provisions of federal statutes and the United States Constitution." Because of this caveat, the court dismissed the objection voiced at the settlement hearing "that the proposed FBI settlement rests on government assurances or on Attorney General Guidelines which can be unilaterally withdrawn. It does not. The FBI agreement rests on permanent principles (¶ 3.4) which govern Justice Department and FBI procedures and conduct in Chicago, and which are subject to independent, external construction and enforcement by this Court. (¶¶ 5.1 and 5.2) [authorizing, inter alia, petitions by any plaintiff "for an appropriate order to enforce the Stipulation."]" Alliance to End Repression v. City of Chicago, supra, 91 F.R.D. at 200-01. At oral argument on the present motions, the Government acknowledged that it is within the court's power to enjoin the implementation within Chicago of the new Guidelines to the extent they embody standards for action inconsistent with those established by the settlement agreement.*fn3 The court will now address whether this is in fact the case.*fn4

II.

Paragraph 3.4(a) of the agreement explicitly bars the FBI from "conduct[ing] 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 Reagan Guidelines encourage violations of this norm by permitting investigations to commence solely on the basis of a target's exercise of protected First Amendment rights.

The reasoning leading to this conclusion begins with section III.B.1.a. of the new Guidelines which provides:

  A domestic security/terrorism investigation may
  be initiated when the facts or circumstances
  reasonably indicate that two or more persons are
  engaged in an enterprise for the purpose of
  furthering political or social goals wholly or in
  part through activities that involve force or
  violence and a violation of the criminal laws of
  the United States. The standard

  of "reasonable indication" is identical to that
  governing the initiation of a general crimes
  investigation under Part II. In determining
  whether an investigation should be conducted, the
  FBI shall consider all of the circumstances
  including: (1) the magnitude of the threatened
  harm; (2) the likelihood it will occur; (3) the
  immediacy of the threat; and (4) the danger to
  privacy and free expression posed by an
  investigation.

The cross-referenced standard of "reasonable indication" (section II.C.(1))

  is substantially lower than probable cause. In
  determining whether there is a reasonable
  indication of a federal criminal violation, a
  Special Agent may take into account any facts or
  circumstances that a prudent investigator would
  consider. However, the standard does require
  specific facts or circumstances indicating a
  past, current, or impending violation. There must
  be an objective, factual basis for initiating the
  investigation; a mere hunch is insufficient.

Section I of the Guidelines — entitled "General Principles" — offers further guidance as to when the requisite "objective, factual basis" for investigation is present:

  In its efforts to anticipate or prevent crime,
  the FBI must at times initiate investigations in
  advance of criminal conduct. It is important that
  such investigations not be based solely on
  activities protected by the First Amendment or on
  the lawful exercise of any other rights secured
  by the Constitution or laws of the United States.
  When, however, statements advocate criminal
  activity or indicate an apparent intent to engage
  in crime, particularly crimes of violence, an
  investigation under these Guidelines may be
  warranted unless it is apparent, from the
  circumstances or context in which the statements
  are made, that there is no prospect of harm.

Plainly read, the final sentence of the passage last quoted allows investigations when (1) the target "advocate[s] criminal activity"; and (2) it is not "apparent . . . that there is no prospect of harm." Much of the advocacy covered by this standard, ...


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