On Aug. 29, 2017, the State of Illinois filed suit in federal court against the City of Chicago, alleging that the Chicago Police Department’s use-of-force policies and practices violate the federal Constitution and Illinois law. Two days later, the parties moved to stay these proceedings while they negotiated the consent decree.
Almost immediately after the State filed the complaint, the Fraternal Order of Police Lodge No. 7 publicly indicated its opposition to any consent decree, citing fears that the decree might impair its collective bargaining rights. For months, the Lodge monitored the ongoing negotiations and met informally with the State’s representatives. The Lodge waited until June 6, 2018 to file a motion to intervene in the lawsuit.
The U.S. District Court for the Northern District of Illinois denied the motion to intervene as being untimely. The reason given was that because the Lodge had to know from the beginning that a consent decree might impact its interests but delayed its motion for nearly a year, and because its allegations with prejudice were considered speculative, the court of appeals affirmed that order.
The consent decree itself, which is more than 230 pages, was signed by federal district court Judge Robert M. Dow Jr. on Jan. 31, 2019.
On March 1, 2019, Judge Dow named Margaret “Maggie” A. Hickey as independent monitor who will help Judge Dow oversee the implementation of reforms at the Chicago Police Department by virtue of the consent degree, which is now in effect. In addition, Judge Dow also named retired federal Judge David H. Coar as a special master for overseeing the consent decree; however, the order that Judge Dow signed did not state what Judge Coar’s duties and responsibilities might be. The details of Judge Coar’s responsibilities will be revealed in another order that will be entered no later than April 1, 2019.
In April 2016, the Chicago Police Accountability Task Force issued a report finding that the Chicago Police Department’s “response to violence is not sufficiently imbued with Constitutional policing tactics.”
In January 2017, the U.S. Department of Justice released a report concluding that the Chicago Police Department exhibits a pattern or practice of the unconstitutional use of force. The court found that Chicago’s inadequate accountability mechanisms are a significant contributor to the repeated Constitutional violations. The Department of Justice suggested that effective reform was unlikely without “[a] court-ordered over-arching plan . . . that is overseen by a federal judge.”
On Aug. 29, 2017, the State of Illinois filed suit against the City of Chicago, alleging that the City’s policing practices involve the repeated use of excessive force. Two days later, the parties moved to stay proceedings while they engaged in consent decree negotiations. The district court granted that motion, which led to this appeal.
Immediately after the State filed the lawsuit, the Lodge publicly expressed its opposition to any consent decree. In a news article published the evening of Aug. 29, 2017, the Lodge’s president, Kevin Graham, described a consent decree as a “a potential catastrophe for Chicago.” Graham voiced the fear that a consent decree might “seriously threaten our collective bargaining rights” and assured the Lodge that no one in this administration believed the consent decree was “necessary.”
During the negotiation of the consent decree between the parties, the State of Illinois and the City of Chicago, the Lodge focused on creating “carve-out” language that would ensure the consent decree left collective bargaining rights intact.
During the negotiations, the district court met four times with the parties to discuss the consent decree negotiations. The Lodge wanted to be included; however, both times, the City and State refused to consent to the request.
Finally, the Lodge moved to intervene on June 6, 2018.
On July 27, 2018, the State and City made the proposed consent decree public. The draft included numerous provisions that the Lodge believed conflict with the disciplinary and investigative provisions of the Collective Bargaining Agreement. The proposed consent decree also contained a paragraph addressing conflicts between the consent decree and the Collective Bargaining Agreement.
Because the motion to intervene was denied pending the litigation, the movant, the Lodge, appealed that final order. The Lodge sought to intervene as a right, meaning the requirements of Federal Rules of Civil Procedure 24(a)(2) applied: (1) timely application; (2) an interest relating to the subject matter of the actions; (3) potential impairment, as a practical matter, of that interest by the disposition of the action; and (4) lack of adequate representation of the interest by the existing parties to the action.” Shea v. Angulo, 19 F.3d 343, 346 (7th Cir. 1994).
The court of appeals and the district court found that the Lodge’s motion satisfied the final three requirements but denied the motion to intervene after concluding it was untimely.
The Lodge knew from the filing of the complaint that the consent decree might affect its interests. Indeed, the Lodge tacitly admitted this when it relied on allegations in the complaint — including reports from 2016 to 2017 – in arguing to the district court that intervention was necessary. Setting the delay aside, the Lodge’s assertions of prejudice are presently unsubstantiated. Existing law provides significant safeguards for the Lodge’s interests.
If those protections prove insufficient, the court stated, a renewed motion for intervention might be appropriate. However, based on the facts that were presented to the district court, there was no abuse of its discretion in finding the Lodge’s motion untimely. Accordingly, the court of appeals affirmed the district court’s denial of the motion to intervene.
State of Illinois v. City of Chicago, No. 18-2805 (U.S. Court of Appeals for the 7th Circuit, Jan. 2, 2019).
Kreisman Law Offices has been handling civil trial matters for more than 40 years in and around Chicago, Cook County and its surrounding areas.
Robert D. Kreisman has been an active member of the Illinois and Missouri bar since 1976.
On April 24, 2019, the Chicago Bar Association and the Union League Club of Chicago are co-sponsoring “Policing in Chicago Under the Consent Decree.” Now that the consent decree is in place, it mandates reforms in the Chicago Police Department’s policies, practices, training and accountability mechanisms to address use of force, ensure police accountability, improve public and officer safety and ultimately build trust between the department and the citizens it serves.
This program will be held at the Union League Club from 3-5 pm at the Union League Club of Chicago, 65 West Jackson Blvd., Chicago, Ill. Those who attend will be offered 1.75 hours of Illinois continuing legal education (CLE) credit.
The speakers will include Linda Greene, Professor of Law, University of Wisconsin-Madison; Cara Hendrickson, formerly the Chief, Public Interest Bureau, with the Office of the Illinois Attorney General (now in private practice); and Karen Sheley, Director, Police Practices Project of the American Civil Liberties Union. All three of these individuals have extensive litigation experience related to the consent decree or have national expertise in consent decrees.
The moderator will be Robert D. Kreisman of Kreisman Law Offices, who is the Chicago Bar Association’s Public Affairs Committee Chair and also the Chair of the Union League Club of Chicago’s Administration of Justice Subcommittee.
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