Red Squads

1. Red Squads Police intelligence units specialized in infiltrating, harassing, and gathering intelligence on political and social groups.

2. Red Squads The Haymarket Riot in 1886 was emblematic of disruptive police tactics became common in larger cities such as Chicago. Randolph St, Chicago

3. Red Squads Investigating anarchists, unions, communists, radicals and everyday citizens. The Chicago Red Squad alone, between 1920 and 1960, gathered information on more than 14,000 organizations and 258,000 individuals, including the United Methodist Church and the League of Women Voters

4. Political Climate of the 1960s and 1970s Groups of activists emerged, from the lawful to the subversive, to protest the war in Vietnam and Civil Rights and other social and political causes. Protest at the 1968 Democratic National Convention in Chicago John Kerry with John Lennon

5. A New Threat Emerges Police and FBI used new tactics to infiltrate activist organizations. • COINTELPRO • Church Committee Many times, they infiltrated lawful groups of citizens. J. Edgar Hoover founded and ran the FBI for 48 years, from 1924-1972

6. The Weather Underground Weather Underground Organization, was a U.S. Radical Left group organized in the 1960s. The group referred to itself as a revolutionary organization of women and men whose purpose was to carry out a series of attacks that would achieve the revolutionary overthrow of the Government of the United States. Pollikoff’s buddy, and Professor of Education, Bill Ayers on the left

7. The Black Panther Party Fred Hampton was an American activist and deputy chairman of the Illinois chapter of the Black Panther Party (BPP).

8. “THE RED SQUAD” • Subversives Activities Unit of the Chicago Police Intelligence Division • Exclusively gathered information on lawful political activities • Openly harassed individuals and organizations • “The Red Squad acted like any other secret police. They’d find out who was dissenting. If a group was considered a threat to the status quo, they’d try to destroy it, directly or indirectly. Because it was such a blatant violation of the First Amendment…the Alliance decided that the best thing to do was to file a lawsuit.” Richard Gutman Attorney for the Alliance to End Repression (Quoted from The Price of Dissent by Bud and Ruth Schultz)

9. Red Squads React Fred Hampton was killed in his apartment by a tactical unit of the Cook County, Illinois State's Attorney's Office in conjunction with the Chicago Police Department and the FBI. Chicago police removing the body of Fred Hampton from his home at 2337 West Monroe St.

10. The Citizens Respond Groups such as The Alliance to End Repression form in response to police misconduct and violations of Constitutional rights.

11. THE ALLIANCE TO END REPRESSION What is it? • A coalition of religious and community groups formed in response to violations of civil liberties in Chicago. How was it formed? • On December 4, 1969, Black Panther leaders Mark Clark and Fred Hampton were assassinated by the Chicago police. The assassinations were planned by the Chicago police and the FBI, with the help of an infiltrator. • The assassinations were regarded as the “ultimate in repression” and the Alliance was created as a response.

12. THE ALLIANCE TO END REPRESSION What does the Alliance do? • John Hill—executive coordinator of the Alliance • “We decided we were going to attack repression wherever it was. There were so many wrongs that needed to be righted.” • “Then I began to realize that all you needed was a handful of people with normal intelligence and experience. If you were steadfast and continued to meet; if you were flexible, able to say, “That one will never work”; and if you were sufficiently courageous—but more than anything else, if you were persistent—you would be able to answer most of the social problems confronting the community. So I had this feeling right in my gut that it was possible to make a change.” • Bail Project, Prison Visitation Group, Discrimination in Police Hiring • (Quotes from The Price of Dissent by Bud and Ruth Schultz)

13. HOW IT BEGAN Richard Gutman Attorney for The Alliance to End Repression • First job was with the Illinois American Civil Liberties Union • During this time, the Alliance attorney came to the ACLU for assistance in filing the complaint • No one from the ACLU wanted to work on the lawsuit—”high risk case”

14. A QUOTE FROM GUTMAN:Quoted from The Price of Dissent by Bud and Ruth Schultz • “I’d rather have this than any other kind of case I can think of. I didn’t become a lawyer to practice law as an end in itself. I became a lawyer because that was the way I saw myself participating politically. When I learned of this case, I knew how important it was. A unit of government whose purpose is political repression, that does nothing but target lawful political dissent—to me, that’s an extremely important type of litigation. It’s something that affects all groups, everyone.”

15. THE COMPLAINT • Filed on November 13, 1974 as a class action lawsuit • Brought under 42 U.S.C. § 1983 • Violations of 1st, 4th, 5th, 6th, 8th, 9th, 14th Amendments • Allegations: • 1. surveillance and intelligence-gathering • 2. unlawful wiretapping and other electronic surveillance • 3. unlawful entry and seizure • 4. dissemination of derogatory information • 5. summary punishment and harassment • 6. infiltration of private meetings and political organizations • Relief requested: • Declarative relief • Injunctive releif • Compensatory damages

16. MOTION TO DISMISS • General argument: • Plaintiffs lack standing to seek injunctive relief • No justiciable controversy • Based on Laird v. Tatum (S.C. 1972) • Allegation of existence of system of surveillance of unlawful activity • Allegation of “chilling effect” on exercise of 1st Amendment rights • No allegations of specific action taken • Discovery stopped

17. FIRST MAJOR BREAKTHROUGH • An unrelated lawsuit against the Chicago Police Department regarding employment discrimination • Discovery produced payroll list of all the officers by name, race, sex, disciplinary actions, unit, and assignment • “Assignment Unknown” • 8 officers assigned this category • Howard Pointer—Operation PUSH • Marcus Sloane—OBA and MAHA • Melvin Barna—CAP • Geno Addams—Alliance to End Repression

18. MEDIA EXPOSURE

19. MEDIA EXPOSURE

20. MEDIA EXPOSURE

21. SIGNIFICANCE OF EXPOSURE • Exposure of double standard • Public generally more responsive when those in the “mainstream” are targeted • “When radical or Black groups are being spied on, the media really doesn’t care too much. They think: “It’s probably good that the government watches them.” But when it’s mainly white mainstream-type groups, all hell breaks loose.” –Gutman • The result? • The Red Squad was voluntarily abolished and completely discredited • Then the Motion to Dismiss was denied on May 16, 1975 • Grand Jury is convened by State’s Attorney Bernard Carey

22. GRAND JURY REPORT • Cook County Grand Jury Report • November of 1975 • “The evidence has clearly shown that the Security Section of the Chicago Police Department assaulted the fundamental freedoms of speech, association, press and religion, as well as the constitutional right to privacy of hundreds of individuals.”

23. CLASS CERTIFICATION • On March 25, 1976, two plaintiff classes were certified • Individual plaintiffs • All residents of the City of Chicago, and all other persons who are physically present within the City of Chicago for regular or irregular periods of time • Organizational plaintiffs • All organizations located or operating in the City of Chicago • Who: • Engage or have engaged in lawful political, religious, educational or social activities and who, as a result of these activities, have been within the last five years, are now, or hereafter may be, subjected to or threatened by alleged infiltration, physical or verbal coercion, photographic, electronic, or physical surveillance, summary punishment, harassment, or dossier collection, maintenance, and dissemination by defendants or their agents.

24. DISCOVERY • July 1, 1976: • Court order for production of documents related to intelligence activities of Chicago Police—but access limited to plaintiffs’ attorneys • October 14, 1976: • Court allowed plaintiffs’ attorneys to disclose to each plaintiff their own police file • Court did not restrict plaintiffs from disclosing files to anyone of their own choosing • November 10, 1976: • Court entered preliminary injunction against defendants from infiltrating the plaintiffs’ legal team and from using any information gained in that manner

25. SECOND MAJOR BREAKTHROUGH • Won access to all Red Squad files in entirely undeleted form • There were 33 named plaintiffs, but because this case was certified as a class action suit, they were able to get the files on everyone • Won the right to search the Red Squad file room and copy anything on anyone • Won the right to show these reports to the people who were spied on • Won the right to let people give the police reports about themselves to the media

26. DISCOVERY RESULTS • Documents produced by Alliance infiltrators • Reports of Alliance activity for the Chicago police • Talked about the strengths of the Alliance • Reported when the Alliance was ready to file the lawsuit • Included warning: “The people in authority better do what they have to do, because pretty soon it’s going to be too late.” • Reports regarding legal preparation of the Alliance • Included questionnaires that were used to help find potential plaintiffs • Led to ruling by the courts—although narrow • “Under the rules of procedure, if you want some information in a lawsuit, you have to file a request. You can’t just send somebody into the organization to spy on them.” –Seventh Circuit Court of Appeals-

27. NEGOTIATIONS • Lasted for more than 2 years • Described as nothing less than “arduous and adversary” • Nearly every line, paragraph, and many words of the resulting consent decree were the product of intense negotiations • Impasses occurred at two separate occasions • But in the end, attorneys for both parties agreed that the consent decree was “fair, reasonable, [and] adequate”

28. WHY ACCEPT? • “To me, it was a no-brainer. The most important factor was that even if we were to win a trial, we would not obtain injunctive relief even one-quarter as strong as the consent decree. It is a basic principal of law that a party can agree to an injunction that goes beyond what is required by law.” • Richard Gutman (via email)

29. OPINION OF THE COURT • No judicial decision or legislative enactment is as protective of citizens 1st Amendment rights as City of Chicago consent decree • Legal protections of consent decree go far beyond the legal relief likely entered by the court • The law in this area is largely unsettled • Proof of case at trial would pose difficulties for plaintiffs

30. FIRST AMENDMENT CONDUCT • Broadly defined in the Consent Decree: • Includes “the right to hold ideas or beliefs concerning public or social policy, or political, educational, cultural, economic, philosophical or religious matters” • Includes “the right to assemble privately concerning such ideas or beliefs, the right to advocate alternative systems of government, and the right to associate in connection with legal advice and litigation”

31. CITY OF CHICAGO CONSENT DECREE • Imposed against any agent or agency of City of Chicago • Protects 1st Amendment activity • Enforced by Court • Allows any person affected by prohibited conduct to bring a claim • Investigation of 1st Amendment activity only allowed for: • Criminal • There must be “reasonable suspicion based on specific and articulable facts that the subject has committed, is committing, or is about to commit a crime.” • Dignitary protection • Public gathering • Regulatory

32. The Consent Decree (a) The FBI, in conducting domestic security investigations and inquiries, shall be concerned only with conduct and only such conduct as is forbidden by a criminal law of the United States . . . . The FBI shall not conduct 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.

33. The Consent Decree The FBI: • “shall not conduct in the City of Chicago any warrantless unconsented physical searches in domestic security investigations, any unlawful unconsented physical searches of premises or property of U.S. persons in foreign intelligence collection or foreign counter-intelligence investigations, any unlawful entries that constitute searches under the Fourth Amendment, or any unlawful disruption or harassment of the lawful activities of any United States person.”

34. The Consent Decree The FBI: • “shall not conduct in the City of Chicago any warrantless unconsented physical searches in domestic security investigations, any unlawful unconsented physical searches of premises or property of U.S. persons in foreign intelligence collection or foreign counter-intelligence investigations, any unlawful entries that constitute searches under the Fourth Amendment, or any unlawful disruption or harassment of the lawful activities of any United States person.”

35. Smith Guidelines “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 the context in which the statements are made, that there is no prospect of harm.”

36. Posner on the Guidelines • Posner doubts that “in agreeing to the consent decree the Justice Department tied its hands to such an extent; for if it did, it was trifling with the public safety of the people of Chicago.” Hon. Richard Posner, Chief Judge of the 7th Circuit Court of Appeals, thinks this decree could use a little “modification”

37. Consent Decrees • Did the decree work? • Are consent decrees the best way to approach institutional reform? Roger Parloff, World Pad, CNN.com December 09, 2006: Judge Posner takes book tour spending a couple hours in Second Life, the metaverse simulated by servers operated by Linden Lab.

38. Consent Decrees • In institutional reform litigation, consent decrees: • Allow the state greater flexibility than hard rules • Protects the rights of citizens

39. Consent Decrees • Dual Character of Consent Decrees • An “agreement” approved by the court • A “contract” binding the parties

40. Balancing Test Consent decrees such as Alliance must balance civil liberties and public safety

41. Application of the Consent Decree • Spanish Action Committee • Chicago Committee in Solidarity with the People of El Salvador (CISPES) • Raymond Risley • 1996 Democratic National Convention • Attorney Fees

42. Spanish Action Committee of Chicago • 1966: Red Squad discredit Juan Diaz, SACC leader. • 1984: SACC win $60,000 in compensatory damages against the City. • Three individual defendants granted qualified immunity.

43. Chicago CISPES • 1983-85: FBI investigation of National CISPES • 19 separate investigations in Chicago. • Bank records, phone records, and monitoring of private and public meetings. • 1987: New head of FBI William Sessions orders audit of the investigation. • Disciplines those involved • Changes FBI guidelines. • 1991: CISPES receives summary judgment • FBI signed Consent Decree with knowledge of its terms and the investigation was undertaken deliberately • FBI’s actions found to be “intentional non-compliance”. • Expungement of files; order to comply. • 1997: FBI’s negligence is not “intentional non- compliance”. • Investigation violates the Consent Decree when conducted with intent to interfere with First Amendment Rights.

44. Raymond Risley • High ranking Chicago police officer from 1991-1999. • Investigated by Internal Affairs for allegedly communicating with the media. • Motion dismissed because of 2 year statute of limitations • No Consent Decree violation unless actual First Amendment conduct!!! • Risley alleged that investigation was retaliation based on the mistaken belief of First Amendment conduct. • No remedy for City actions First Amendment motivations unless those actions are meant to disrupt, interfere with, or harass a person because of their actual First Amendment conduct. • Alleged police retaliation was in response to perceived First Amendment conduct • Does this go against the idea that intentional non-compliance by the police violates the Consent Decree???

45. 1996 Democratic National Convention • Active Resistance CounterConvention • Autonomous Zone, CounterMedia, and Active Resistance Organizing Committee • Allege they were spied on, radio communications were monitored, cameras and film were destroyed or seized. and participants were generally followed, questions, and harassed by the police. • Summary judgment • surveillance allowed of public gatherings • Plaintiffs would need to show connection between retaliation and their First Amendment conduct for the police conduct to violate the Consent Decree. • Taking radio and sending false communications not violation unless police were retaliating because of the person’s First Amendment conduct. • If cameras opened to destroy the film of police searching a van, that is retaliation for First Amendment conduct • Underlying reason for searching the van did not violate CD.

46. 1996 Democratic National Convention • “clear and convincing” evidence • At bench hearing the plaintiffs fail to show that any of the incidents were retaliation for First Amendment conduct. • Unwillingness to enforce where the police action not clearly done in retaliation to the plaintiff’s First Amendment conduct. • CISPES negligence standard sufficient

47. Modification of the Consent Decree • 1997: City motion for modification • A burden on ability to serve and protect? • bad public policy? • Dist Ct. denies City’s motion for modification • allows motion for interpretation of the Consent Decree • City presents 13 interrogatories calling for interpretation of hypothetical scenarios • City’s motion for clarification on interrogatories denied, court “cannot be in the business of issuing hypothetical answers. • Misguided Nature • plaintiffs would not have disputed some of the scenarios if the City had bothered to ask for the plaintiff’s interpretation of the interrogatories. Mr. Edward Feldman Arguing attorney for ACLU

48. Modification of the Consent Decree (cont) • Attorney Edward Feldman: City had not offered any actual factual examples where criminal activity resulted from City’s inability to investigate a political group • Edward Feldman and Richard Gutman: • Decision was based on the 7th Circuit’s assumption of how the Consent Decree affected police activity rather than on the factual record presented. • FBI agent affidavit: decree never prevented FBI from doing what they wanted to do in an investigation Changes • “reasonable suspicion” standard removed. • The Consent Decree is still an open contract that the City must abide by or otherwise face sanctions. • Audits.

49. Then and Now • Then • Were the Police correct in assessing the threat to public safety? • Now • What infringements on civil liberties are necessary for national security today? That’s a tough one . . .

50. Good then . . . Bad now? • The party seeking modification must then show that the alteration is warranted by changed circumstances • The rationale for modification assumes that a decree can be “good then, but bad now.”