Illinois v. City of Chi.

STATE OF ILLINOIS, Plaintiff, v. CITY OF CHICAGO, Defendant.

Case No. 17-cv-6260

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

August 16, 2018

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

On August 29, 2017, the State of Illinois ("State") filed this lawsuit against the City of Chicago ("City") pursuant to 42 U.S.C. § 1983, the U.S. Constitution, the Illinois Constitution, the Illinois Civil Rights Act of 2003, the Illinois Human Rights Act, and the parens patriae doctrine "to ensure the City enacts comprehensive, lasting reform" of the Chicago Police Department ("CPD"), the Independent Police Review Authority ("IPRA"), and the Chicago Police Board ("Police Board"). [1] at 1. Currently before the Court is the Motion to Intervene [51] filed on June 6, 2018, by the Fraternal Order of Police Chicago Lodge No. 7 ("FOP"). For the reasons explained below, the FOP's motion [51] is respectfully denied and the FOP's motion to hold proceedings in abeyance pending ruling on motion to intervene [65] is denied as moot. This case remains set for status hearing on August 30, 2018 at 10:30 a.m.

I. Background

The State filed this lawsuit against the City to enjoin the CPD "from engaging in a repeated pattern of using excessive force, including deadly force, and other misconduct that disproportionately harms Chicago's African American and Latino residents." [1] at 1, ¶ 2. As evidence of this pattern, the complaint points to reviews of CPD's policing practices over the last fifty years, including most recently two separate reports issued by the U.S. Department of Justice ("DOJ") (the "DOJ Report") and Chicago's Police Accountability Task Force ("Task Force") concluding that "CPD has continued to engage in a repeated pattern of using excessive force and racially discriminatory policing practices." [1] at 2, ¶ 3; see also id. at 13-29 (detailing the DOJ Report's findings). The State contends that CPD's "policy, custom, or practice" of police misconduct is reflected in and caused by "the City's failure to effectively train, supervise, and support law enforcement officers, and the City's failure to establish reliable programs to detect and deter officer misconduct and administer effective discipline." Id. at 7, ¶ 33. The State asserts that these failures have created "profound mistrust between many Chicago communities and CPD," which "reached its most recent flashpoint in late November 2015, following the release of a videotape depicting the fatal shooting of Laquan McDonald, a 17-year old African American, by a CPD officer." Id. at 2, ¶ 5. According to the State, the City has spent approximately $662 million on settlements, judgments, and outside legal fees for police misconduct cases between 2004 and early 2016.

The DOJ Report acknowledges that the City has announced a number of reforms to CPD but opines that necessary reforms "will likely not happen or be sustained without the reform tools of an independent monitoring team and a court order." [1] at 3, ¶ 10 (quoting the DOJ Report). The DOJ Report advises that "[a] court-ordered, over-arching plan for reform that is overseen by a federal judge will help ensure that unnecessary obstacles are removed, and that City and police officials stay focused on carrying out promised reforms." Id.

The State brings this lawsuit in response to the DOJ Report "to obtain injunctive relief that will finally enable the City to eliminate unconstitutional conduct that has plagued CPD for decades." Id. at 4, ¶ 11. The State alleges that it is authorized to bring suit on behalf of the Peopleof Illinois based on the doctrine of parens patriae and the Illinois Human Rights Act, 775 ILCS 5/10-104(A)(1), to defend its "quasi-sovereign interest in the prevention of present and future harm to its residents, including individuals who are, have been, or would be victims of the City's unconstitutional law enforcement practices." [1] at 5, ¶ 21. The State also seeks to protect its proprietary interests. According to the complaint, "[m]ultiple persons injured as a result of excessive force by CPD officers have incurred medical care costs that Illinois has paid for" through its Department of Healthcare and Family Services ("DHFS") and Medicaid. [1] at 6, ¶ 29.

The State's complaint contains four counts. In Count I, the State alleges that the City and its agents maintain a policy, custom or practice of using force against persons in Chicago without lawful justification, in violation of the Fourth Amendment to the United States Constitution and 42 U.S.C. § 1983. Count II alleges that these practices also deprive persons in Chicago of their rights under Article I, Section 6 of the Illinois Constitution. In Count III, the State alleges that the City and its agents have violated the Illinois Civil Rights Act of 2003, 740 ILCS 23/5(b), by engaging in law enforcement practices that have a disproportionate impact on African Americans and Latinos in Chicago. Finally, Count IV alleges that the City and its agents have violated the Illinois Human Rights Act, 775 ILCS 5/5-102(C), by engaging in a pattern or practice of discrimination that denies African Americans and Latinos in Chicago the full and equal enjoyment of the privileges of the City's law enforcement services.

As relief, the State seeks a consent decree covering "several substantive reform areas to address the critical deficiencies at CPD, including departmental policies and practices, such as use of force, accountability, training, community policing and engagement, supervision and promotion, transparency and data collection, and officer assistance and support." [1] at 31, ¶ 201.The State requests that the Court appoint an independent monitor to measure and test these reforms. Id. at 31, ¶ 199.

Since the lawsuit was filed approximately one year ago, counsel for the State and City have engaged in extensive negotiations to arrive at a draft consent decree. The draft consent decree has been released to the public for comment and ultimately will be presented to the Court with a request for approval. According to the State, there have been 250 hours of face-to-face negotiation thus far between the City and State. [73] at 6. The State reports that it has a team of nine attorneys working on the case and has retained a team of six experts who have conducted site visits, meetings, and interviews with City and CPD personnel. The State also represents that, since the complaint was filed, its counsel have had eight in-person meetings with the FOP's President, Kevin Graham, to discuss, among other things, provisions that might be included in the consent decree. See Id. at 5. The State advises that the Office of the Illinois Attorney General ("OAG") "sought and obtained input on reform of the Chicago Police Department from CPD officers through 13 focus groups." "Chicago Police Consent Decree," http://chicagopoliceconsentdecree.org/ (last visited Aug. 15, 2018).¹

The State and City also have engaged in public outreach to obtain the input of community groups and other stakeholders on the contents of the consent decree. The OAG held fourteen consent decree community roundtables "to ensure that interested Chicago residents had a meaningful opportunity to provide their input on reform of CPD." "Chicago Police ConsentDecree," http://chicagopoliceconsentdecree.org/ (last visited Aug. 15, 2018). In March 2018, the State and the City entered into a memorandum of agreement ("MOA") with a coalition of community groups ("Coalition") that "afford[s] the Coalition certain rights to raise objections and provide input regarding any consent decree proposed to the Court before the Court decides whether to approve and enter a final consent decree." [73] at 5. According to the State, it "offered FOP the same rights provided to the Coalition in the MOA, but FOP refused this offer." Id. (The FOP does not dispute that it refused the State's offer.)

On June 6, 2018, the FOP filed a motion to intervene in the lawsuit. The FOP is the "exclusive representative for the purpose of negotiating with the City of Chicago for wages, hours and working conditions of Chicago police officers pursuant to Sections 3 and 7 of the Illinois Public Labor Relations Act, ('IPLRA')." [51] at 1 (citing 5 ILCS 315/3 and 7). According to the motion to intervene, the "FOP has the right to bargain collectively and negotiate in good faith with the City of Chicago with respect to wages, hours and other conditions of employment, to bargain about matters that may be covered by other laws that pertain in part to a matter affecting wages, hours and other conditions of employment, and to enter into collective bargaining agreements containing causes which either supplement, implement or relate to the effect of such provisions in other laws." [51] at 5. The most recent collective bargaining agreement ("CBA") between the FOP and the City has a term of July 1, 2012, to June 30, 2017, but remains in full force and effect during the negotiation of a successor agreement.

The FOP asserts that it has a "substantial interest in the subject of this litigation which may, as a practical matter, impair or impede the [FOP's] ability to protect its collective bargaining representational interests of the Chicago police officers it represents." [51] at 1. According to the FOP, "[t]he CBA contains provisions addressing a number of the subjects raised in the complaintfiled by the [OAG] in this case," including "the investigation of allegations of police officer misconduct and related discipline, the field training officer program, police officer promotions, officer mental health and support programs, including the performance recognition system, behavioral intervention system, personal concerns program, and the requirement that allegations of misconduct by police officers be supported by affidavits." [51] at 6. The FOP also attaches to its motion a draft answer to the complaint and a draft motion to dismiss...