Public Interest Law & Policy

1. Public Interest Law & Policy Class 14 Ronald W. Staudt October 16, 2007

2. Upcoming Events • Wednesday, October 17th, 3:00pm – 10th Floor Event Room • David Rudovsky, renowned civil rights litigator, scholar at the University of Pennsylvania Law School and recipient of a MacArthur “genius grant” will speak on Racial Profiling: Policing, Terrorism and Equality. A reception will follow at 4:30. • Wednesday, October 17th 1:30- 2:30— Room 844. • David Rudovsky will meet with the members of the Public Interest Law & Policy class.

3. Today’s Assignment Read for Tuesday October 16: Alliance To End Repression v. Chicago (The Red Squad Case) Infiltration Injunction, 75 F.R.D. 435 (D.C.N.D. Ill. 1975 "Reagan Guidelines" injunction opinion, 561 F. Supp. 575 ( D.C.N.D. Ill.1983) Injunction reversed, 742 F.2d 1007 (7th Cir. 1984) Fees award reversed on appeal, 356 F. 3d 767 (7th Cir 2004) Cops Disband Elite Unit, Chicago Tribune, October 10, 2007 Wednesday October 17, David Rudovsky, Special session for this class at 1:30 in room 844. Lecture at 3 p.m.

4. The Red Squad Case • Setting • Formation and purpose of Alliance to End Repression • Complaint survives Motion to Dismiss based on Laird v. Tatum

5. A. Intelligence Gathering and Dissemination of Information It is alleged that various agents of the Intelligence Division have visited plaintiffs at their homes, places of business and other locations in order to interrogate them or their friends and acquaintances. It is further alleged that defendants have contacted other law enforcement agencies and requested that they obtain information on the plaintiffs that might be added to the files maintained by the Intelligence Division on the various plaintiffs.Plaintiffs further allege that the contents of these files are disseminated to newspaper reporters, prospective employers, academic officials and others. … The purpose and result of the information dissemination is said to be the invasion of the plaintiffs' privacy as well as damage to their academic or professional lives and to subject them to ridicule and to make them targets of further police surveillance and harassment.

6. B. Surveillance and Provocation by Paid Informers and Undercover Agents Plaintiffs allege that members of the Intelligence Division have infiltrated various plaintiff organizations. Having  so infiltrated, the agents have exhorted members of the organizations to commit unlawful acts. Certain Unknown Agents of The Chicago Police Department are alleged to have posed as newspaper reporters and photographers in order to infiltrate the organizations.

7. C. Electronic Surveillance Plaintiffs allege that certain telephone conversations that they have engaged in have been intercepted and recorded unlawfully by Unknown Agents of The Chicago Police Department. Plaintiffs base their beliefs that such surveillance has taken place due to their observation of a defendant whose presence at O'Hare Airport coincided with the plaintiffs' concurrent presence solely because  he overheard earlier telephonic communications of the plaintiffs. One plaintiff was allegedly ridiculed by Unknown Agents over a telephone line he was speaking on.

8. “E. Overt Surveillance Defendants Unknown Agents are alleged to have engaged in activities involving photographing, videotaping, and recording of the proceedings at: • (1) Various rallies that plaintiff organizations  have participated in; • (2) Their places of business; • (3) Private gatherings such as picnics and outside a private residence in which a party was being held.”

9. “F. Summary Punishment and Harassment (1) Refusal to protect members of a plaintiff organization when assaulted by another group at a rally plaintiff organization was holding; (2) Administering a beating to a plaintiff after arresting him at a lawful political demonstration (3) Shouting verbal abuse at plaintiffs while engaging in lawful political demonstrations and (4) Conducting illegal searches. “

10. Preliminary Injunction Motion Plaintiffs sought an injunction; “…restraining defendants from engaging in the following alleged activities: • (1) joining plaintiffs' legal team; • (2) gathering information about plaintiffs' evidence, legal strategy, legal preparations, legal objectives and litigation schedule; and • (3) utilizing any of the above information in the litigation of this suit. Plaintiffs further seek an order compelling defendants to impound any information already gathered by defendants while engaged in the above-named activities.”

11. Injunction “[T]he Court hereby enjoins defendants from joining plaintiffs' legal team. Defendants are enjoined from using any and all data which has been obtained by defendants or their agents as a result of joining plaintiffs' legal team …” “Defendants are further enjoined from gathering information about non-public communications concerning plaintiffs' evidence, legal strategy, legal objectives or litigation schedules.”

12. Motion to Enjoin the Reagan Guidelines in Chicago561 F. Supp. 575 (1983) • Settlement Agreement 8/11/81- see Appendix • Levi Guidelines • Do Reagan Guidelines unilaterally supercede the Levi Guidelines in Chicago? • If not, do they conflict with the Settlement Agreement?

13. Brandenburg teaches that “…the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of   force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

14. Reagan Guidelines are • “… more lenient in three respects. First, under the Guidelines, the feared "harm" need not be, as it must under Brandenburg, "imminent." Second, and also contrary to Brandenburg, the feared "harm" need not be "likely." Finally, the speech need not be "directed" (i.e., intended) to cause imminent, lawless action.”

15. Court’s Order “The court finds that the settlement agreement embraces the principles of Brandenburg as the test for initiating investigations. The court further finds that the Reagan Guidelines authorize investigations on much lesser showings. Plaintiffs are entitled to relief…”

16. Court’s Order “…defendants are hereby permanently enjoined from implementing within the City of Chicago the following provision found in the Attorney General's Guidelines on General Crimes, Racketeering Enterprises and Domestic Security/Terrorism Investigations promulgated March 7, 1983: When, however, statements advocate criminal activity . . . an investigation under these Guidelines may be warranted unless it is apparent, from the circumstances or the context in which the statements are made, that there is no prospect of harm. In all other respects, plaintiffs' motions for temporary relief are denied.”

17. J. Posner’s Opinion Reversing the D.C.’s Injunction • But it is one thing to misread a decree and another to draw back from concluding that a coequal branch of government "improvidently" surrendered its constitutional obligations and exposed the people of the nation's third-largest city -- exposed everyone in this country, for there is no way to keep a Chicago-nutured terrorist organization in Chicago, any more than the Nazi party could be confined to Munich -- to the dangers posed by embryonic terrorist groups that are immunized from FBI investigation. If the consent decree will bear an alternative interpretation it ought to be given one.

18. J. Cudahy’s Dissent • This is a case, if there ever was one, where the result dictates the rationale. It is possible to understand the very high priority which the majority accords to inquisitorial freedom at the possible expense of free speech. But it is difficult to discern exactly how the majority proposes to deal with the legal doctrines which until now I though most clearly applicable to the interpretation of consent decrees.