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.
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
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
The reasoning leading to this conclusion begins with section
III.B.1.a. of the new Guidelines which provides:
The cross-referenced standard of "reasonable indication"
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, ...