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July 18, 2002


The opinion of the court was delivered by: Milton I. Shadur, Senior United States District Judge


This lawsuit presents a collision between (1) the lawyer plaintiffs — not-for-profit legal organization First Defense Legal Aid ("First Defense") and two of its lawyer staff members — who seek to exercise their claimed First Amendment*fn1 right to represent clients who are held by the police for interrogation purposes (with the police taking the position that the clients are witnesses in crime investigations, not suspects or targets) and (2) a gaggle of other lawyers who urge on behalf of their governmental clients — the City of Chicago ("City"), members of the top echelon in its police department (its Superintendent and four Area Commanders, collectively "Police Defendants") and Cook County State's Attorney Richard Devine — that law enforcement goals entitle them to keep the lawyer plaintiffs and their clients apart. Indeed, defense counsel are unabashed by the fact that their clients' conduct — in addition to the refusal to permit the lawyer plaintiffs to see their clients when those lawyers arrive at the police station for that purpose — regularly involves nondisclosure to the clients of their lawyers' presence. And the nature of that refusal is exacerbated by the facts that it is often accomplished via affirmative deception on that score, and that State's Attorney Devine's assistants have on occasion misrepresented the state of the law as the basis for instructing the police to bar plaintiffs' access to their clients (just as his assistants handling this litigation have rnischaracterized the state of the law before this Court).

Before this opinion turns to the critical constitutional issue, the context in which this litigation arises must be noted. Defense counsel persist in approaching the issue, not in a vacuum but rather in a sterile bubble that ignores the real world considerations that have triggered this lawsuit. In their universe the police are always meticulous in both understanding and implementing a bright line between noncustodial and custodial interrogation: Not only is that line always recognized and adhered to by the police, but every person who is interrogated and is still on the noncustodial side of that line is studiously informed of his or her freedom to leave. Essentially defense counsel say this:

Trust — whenever an individual is in a police station being questioned, the police are always scrupulous about maintaining the distinction between a witness (who is free to leave) and a suspect or target (who is not). Because they always give people who are not just witnesses their Miranda rights, thus assuring them of their constitutional right to counsel, our police clients are free to refuse all access to counsel to those who are simply witnesses.

Meanwhile the lawyers who appear at the police station to see their clients are expressly refused — are actually barred from — such access on the stated basis that such clients are just witnesses in an investigation. Yet in fact the evidence included testimony as to a situation in which such a "witness" — handcuffed to a chair, and having been at the police station for over 14 hours — called out of the station's upstairs window, asking his wife (who was outside of the building with one of the plaintiffs) which person out there was his attorney and saying that he wanted an attorney — but the police officers still refused access to the lawyer. And the evidence further confirmed that such refusal of access is no random aberration, but rather a deliberately adopted and enforced policy.

This Court is disinclined to believe in the tooth fairy — to ignore the obvious reality that the climate in which plaintiffs seek to carry out their responsibilities to their clients, as they contend the First Amendment entitles them to do, is not as defendants would portray it. And the obvious potential for abuse in that respect, which defense counsel resolutely ignore in their portrayals, should surely be understood as part of the matrix in which the key constitutional issue of the First Amendment rights of the lawyer plaintiffs is considered.

Now to consideration of defendants' motions to dismiss the Complaint here. In that respect the familiar ground rule is that articulated in Hishon v. King & Spalding, 467 U.S. 69, 73 (1984):

A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Conley v. Gibson, 355 U.S. 41, 45-46 (1957)

And although a brief in opposition to a motion to dismiss cannot of course take the place of a plaintiff's pleading requirements (Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) is the first of a number of Seventh Circuit opinions that set out that teaching), the evidence obtained during the TRO hearing can appropriately serve to illuminate the reading of the Complaint here through the Hishon lens (see, e.g., Jennings v. Emry, 910 F.2d 1434, 1436 n. 1 (7th Cir. 1990)).

In this case the TRO hearing has indeed borne out a good deal of the matters alleged in Complaint Count I's ¶¶ 22 and 23(a photocopy of which paragraphs is attached to this opinion). Apart from Counts I and II, defense counsel's most recent filings have made the point — quite legitimately — that this action has been narrowed in scope since its inception. Counts VII and VIII were dropped early on, and since then plaintiffs have voluntarily dismissed Counts III, IV and V, recognizing the standing difficulties that faced the constitutional claims that they had sought to assert on behalf of their clients (as contrasted with advancing their own claims in Counts I and II). But while plaintiffs' lawyers have thus demonstrated their capacity to be educable, regrettably defense counsel have not.

Thus defense counsel (including those working for and representing State's Attorney Devine, who surely ought to know better) persist in urging the impermissible notion that only one set of rights is protected by the First, Fifth and Sixth Amendments — that if no claim exists under either the Fifth or the Sixth Amendment, ergo there is no viable claim under the First Amendment. Just which one or more law schools has or have failed in their educational task by enabling their graduates to emerge with such a bizarre understanding (more precisely, a lack of understanding) of the Constitution is unclear — but if any such law school does exist, it might have been expected that the graduates' ongoing practice of law and their hoped-for reading of cases*fn2 would have dispelled such a fundamental misconception.

State's Attorney Devine

Despite what has just been said, the submissions filed by State's Attorney Devine's assistants on his behalf repeatedly argue that plaintiffs and their counsel, in urging that this case be viewed from a First Amendment perspective, are seeking to flout — to take an end run around — decisions that deal with the very different questions of the constitutional posture of lawyers' clients in Fifth Amendment and Sixth Amendment terms. Thus the State's Attorney's responsive memorandum on the TRO motion characterizes plaintiffs' invocation of their First Amendment rights as a "stalking horse" that somehow seeks to "overrule" caselaw that defines the rights of clients under the Fifth and Sixth Amendments. That is the same false ...

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