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American Civil Liberties Union v. City of Chicago

July 31, 2009

AMERICAN CIVIL LIBERTIES UNION, ET AL., PLAINTIFFS,
v.
CITY OF CHICAGO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER

In 2001, the parties entered into a Modified Consent Decree ("MCD"). The MCD was dissolved on June 4, 2009. This opinion addresses motions to dismiss eleven petitions to enforce the MCD that were filed before its dissolution by individuals who are not direct parties to this lawsuit.*fn1 On September 4, 2008, the following individuals filed petitions: (1) Bruce Randazzo (Doc. No. 147); (2) Charles Walker (Doc. No. 149); (3) Terrence Doherty (Doc. No. 151); (4) John Swietczak (Doc. No. 152); and (5) Thomas McDarrah (Doc. No. 154). Defendant the City of Chicago moved to dismiss these petitions on November 21, 2008 (Doc. No. 187). On January 19, 2009, a second wave of petitions was filed. These are on behalf of (6) Patrick McDonough (Doc. No. 197); (7) Avi Yarkony (Doc. No. 198); (8) Bryan Washington (Doc. No. 199); (9) Michael McGann (Doc. No. 200); (10) Steven A. Collier (Doc. No. 201); and (11) Ronald Rockwell (Doc. No. 202). The City has moved to dismiss these petitions. (See Doc. No. 223).*fn2

I. BACKGROUND

In 1982 a consent decree was entered which governed certain conduct of the Chicago Police Department ("CPD"), related to the protection of individuals' First Amendment rights. See Alliance To End Repression v. City of Chi. ("Alliance 1982"), 561 F. Supp. 537 (N.D. Ill. 1982). Among other things, the original decree grew out of a lawsuit containing allegations relating to the CPD's "Red Squad," which targeted individuals based on their political beliefs and First Amendment activity. See Alliance to End Repression v. City of Chi. ("Alliance 2001"), 237 F.3d 799, 801 (7th Cir. 2001).

The original decree was replaced by the MCD in 2001. See id. The MCD "forb[ade] investigations intended to impede freedom of expression and require[d] the City to commission independent periodic audits to determine the City's compliance." Alliance To End Repression v. City of Chicago ("Alliance 2004"), 356 F.3d 767, 769 (7th Cir. 2004). "The core of the [MCD] . . . forb[ade] investigations intended to interfere with or deter the exercise of the freedom of expression that the First Amendment protects, and require[d] the City to commission independent periodic audits of the City's compliance with the decree." Alliance 2001, 237 F.3d at 800.

The MCD prohibited the City from "investigat[ing], prosecut[ing], disrupt[ing], interfer[ing] with, or harass[ing] any person for the purpose of punishing or retaliating against that person for engaging in conduct protected by the First Amendment, or for the purpose of preventing them from engaging in such conduct." MCD 3. The MCD also required either the Superintendent of Police or the Inspector General to investigate allegations of violations that were referred to them by heads of City agencies. In particular, the MCD provided:

If the [Police] Board, the Superintendent of Police, or the head of any other City Department learns of any probable substantial violation of this Decree, the matter shall be promptly referred to the Superintendent of Police (or, if the matter involves personnel of a City agency other than the Police Department, to the Inspector General). The Superintendent of Police or the Inspector General, as the case may be, shall cause an investigation to be made and shall report to the Board, the Superintendent, and the head of the agency who made the report the results of the investigation. Where the result of the investigation supports the finding of a violation, the Superintendent or other agency head shall in turn report to the Board what corrective action has been taken, including what disciplinary proceedings have been instituted or completed.

MCD 5--6. The MCD provided that this court would retain jurisdiction to enforce its provisions.

The court expressly retains jurisdiction to enable the parties to the Decree to apply to this court for its enforcement of compliance with the provisions contained herein, and for the punishment of any violation of such provisions. Application to enforce the provisions or to impose punishment for any such violation may be presented to the court by any person affected by the conduct complained of. Prior written notice of all such applications shall be given to counsel for the named parties to this action. Except where emergency relief is sought, seven days written notice shall be given. MCD 6.

II. ANALYSIS

A. Standard of Review

The City has moved to dismiss the petitions under Rule 12(b)(1) for lack of standing and under Rule 12(b)(6) for failure to state a claim. Standing is "the threshold question in every federal case." Warth v. Seldin, 422 U.S. 490, 498 (1975). Motions to dismiss based on lack of standing are considered under Fed. R. Civ. P. 12(b)(1) as an argument that the court lacks subject matter jurisdiction. Mayo v. Lane, 867 F.2d 374, 378 (7th Cir. 1989). When reviewing a motion to dismiss brought under Rule 12(b)(1), this court "must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff." Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995). For the purpose of determining subject matter jurisdiction, the court "may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Id. The burden of proof in a Rule 12(b)(1) issue is on the party asserting jurisdiction. United Phosphorus, Ltd. v. Angus Chemical Co., 322 F.3d 942, 946 (7th Cir. 2003).

In reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court reviews all facts alleged in the complaint and any reasonable inferences drawn from those facts in the light most favorable to the plaintiff. Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). Claims must have "facial plausibility," which requires a plaintiff to plead "'factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Hecker v. Deere & Co., 569 F.3d 708, 710--11 (7th Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). However, a complaint need not plead a legal theory, nor allege every fact necessary to establish essential elements of a legal theory. Albiero v. City of Kankakee, 122 F.3d 417, 419 (7th Cir. 1997). Only a short and plain statement of the claim is required, so long as the complaint puts defendants on notice of the of the claims and the grounds upon which they rest, along with "some indication . . . of time and place." Thomson v. Washington, 362 F.3d 969, 970--71 (7th Cir. 2004). Because all necessary facts need not be pled in a complaint, however, it is possible for a plaintiff to defeat a motion to dismiss by supplementing additional facts, via affidavit or responsive pleading, that are not inconsistent with the complaint. Albiero, 122 F.3d at 419; Walker v. Thompson, 288 F.3d 1005, 1008 (7th Cir. 2002); Gutierrez v. Peters, 111 F.3d 1364, 1367 n.2 (7th Cir. 1997). However, in light of the recent ruling in Iqbal requiring facial plausibility in the complaint itself, any material facts presented for the first time in a response to a motion to dismiss will need to be incorporated into an amended complaint.

The City raises three bases to dismiss the pending petitions. First, the City contends that only the named parties to the MCD, the American Civil Liberties Union ("ACLU") and the American Friends Service Committee ("AFSC"), have standing to enforce violations of the MCD.

Second, each petitioner is seeking an order requiring the Inspector General to cease investigating his individual complaint, which the City contends is not permissible under the MCD. Third, the City argues that the individual complaints do not suggest a plausible MCD violation. These arguments will be considered in turn.

B. Standing of Non-Parties

The City's argument that only named parties to the MCD may enforce it stems from this court's ruling on a petition brought by Victor Crown, which was dismissed on January 11, 2006. Crown argued that certain documents he requested under Illinois' Freedom of Information Act were scheduled to be destroyed, and he sought to bar their destruction. Crown's petition was dismissed for lack of standing. The court stated, "The MCD limits this court's continuing jurisdiction to claims brought by 'parties to the Decree.' Since Mr. Crown is not a party to the MCD, he is not properly before the court, and his motions are denied." Jan. 11, 2006 Order (Doc. No. 59).

This statement was in error, although the result was correct. Crown did lack standing, but only because the claim he was presenting did not fall within the protections of the First Amendment. Indeed, this was the argument advanced by the City in its brief seeking dismissal. See Resp. of Def. City of Chi. to Mot. of Victor Crown to Enforce 4 (Doc. No. 39). The MCD states that "[t]he court expressly retains jurisdiction to enable the parties to the Decree to apply to this court for its enforcement of compliance with the provisions contained herein, and for the punishment of any violation of such provisions." MCD 6. This sentence mentions only the named parties, but the very next sentence continues, "Application to enforce the provisions or to impose punishment for any such violation may be presented to the court by any person affected by the conduct complained of." MCD 6 (emphasis added). This clause envisions that petitions will be brought by non-parties, so long as they are affected by the violation of the MCD. The same section of the MCD requires that non-party petitioners must give notice to the named parties, which would make sense only if they are permitted to file a petition on their own behalf. Id.

This court has permitted non-parties to bring petitions in the past. The original consent decree contained nearly identical jurisdictional language, see Alliance 1982, 561 F. Supp. at 570, and non-party Raymond Risley was permitted to petition to enforce the original consent decree. See Alliance to End Repression v. City of Chi. ("Alliance 2000"), Nos. 74 C 3268, 75 C 3295, 2000 WL 1368004 (N.D. Ill. Sept. 21, 2000) (resolving petition brought by non-party Raymond Risley on the merits). The Seventh Circuit has indicated this approach is correct. In denying attorneys' fees to the named parties in 2004, it explained that the MCD "provide[s] a venue and procedural framework for prosecuting discrete claims," and that the aggrieved individuals need not "prosecute [their claims] as independent suits." Alliance 2004, 356 F.3d at 771--72.

The resolution of the Crown petition was correct-he lacked standing because the violation he was claiming was not covered by the First Amendment. But the broader proposition that only signatories to the MCD can move to enforce it is in error; this is not what the MCD states, nor is it consistent with the treatment of former ...


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