By Patricia Manson

Law Bulletin

 

Two men who claim the City of Chicago routinely — and illegally — suppresses dissent over the war in Iraq are entitled to use police surveillance records to try to prove their case, a federal judge has held. In an opinion made available Thursday, U.S. Magistrate Judge Arlander Keys directed the City of Chicago to turn over documents concerning surveillance of meetings held in 2003, 2004 and 2005 to plan demonstrations against the war Keys concluded that the documents were relevant to the claims raised in separate lawsuits filed by Andy Thayer and Bradford Lyttle. Thayer and Lyttle allege that the city follows a policy of squelching expression protected by the First Amendment by employing such methods as sending large numbers of police officers dressed in riot gear to anti-war demonstrations. Thayer and Lyttle also allege that police arrested them at a March 2005 demonstration in retaliation for their claims that the city is violating the constitutional rights of protesters. Thayer later was convicted of dis-orderly conduct and resisting arrest, while Lyttle was acquitted of all criminal charges. In his opinion, Keys noted that the city argued that police officers had probable cause to arrest Thayer and Lyttle and that evidence concerning the officers’ subjective motives for making those arrests was therefore irrelevant when it came to Thayer and Lyttle’s due process claims. Lyttle’s acquittal demonstrates that “there is no compelling evidence of prob-able cause” in his case, Keys said. Citing Corbett v. Biggs, 2005 WL 991903 (N.D. Ill. March 23, 2005), Keys also said Thayer’s conviction did not necessarily show that his arrest was based on probable cause. And Keys said evidence of the officers’ motives could be relevant to the equal protection claims raised by Thayer and Lyttle. Evidence of the motives behind the arrests also could be relevant to any request for punitive damages and to efforts by Thayer and Lyttle to establish that the police officers were following a city policy when they allegedly violated the men’s constitutional rights, Keys said. Keys rejected the city’s argument that the surveillance records – even assuming they were relevant to Thayer and Lyttle s claims – were shielded from disclosure by the law enforcement investigatory privilege. The privilege is. designed to keep law enforcement techniques confidential, preserve the privacy of individuals under investigation and prevent interference with ongoing inquiries, Keys said, citing Doe v. Hudgins, 175 ER.D. 511 (N.D. Ill. 1997). But Keys said the privilege “is not absolute.” “Before the privilege will apply, a responsible official must lodge a formal claim of privilege after personal consideration ‘specifying with particularity the information for which protection is sought, and explain why the information falls within the scope of the privilege,’ “Keys wrote, quoting Hernandez v. Longini, 1997 WL 754041 (N.D. Ill. Nov. 13, 1997). Keys said the City of Chicago failed to follow those steps before asserting that the surveillance records sought by Thayer and Lyttle were privileged. Keys said he would have concluded that the investigatory privilege does not prevent disclosure of the records even if the city had properly asserted the privilege. Courts typically weigh “the claimed need for secrecy against a plaintiff’s need for access to the information” in determining whether information is privileged, Keys said, citing Kampien v. Individuals of Chicago Police Department, No. 00 C 5867, 2002 WL 238443 (N.D. Ill. Feb. 19, 2002). In the case of Thayer and Lyttle, Keys said, the scale tips in favor of disclosure. Keys said requiring the City to turn over the surveillance records would not discourage people from cooperating in police investigations because the records apparently do not contain any information provided by private citizens. The records do not reveal confidential police methods because “the city’s practice of having officers infiltrate organizations is hardly a secret,” Keys said. Keys also noted that the investigations of demonstrations planned and conducted in 2003, 2004, and 2005 have been completed.  While directing the city to produce the surveillance records, Keys did order the redaction of the names of all undercover officers. Keys also ordered that only the lawyers for Thayer and Lyttle – not Thayer and Lyttle themselves – be allowed to see the documents. And Keys said the documents were not to be used in any matter other than the suits being pursued by Thayer and Lyttle. Keys issued his opinion in Andy Thayer v. Ralph Chiczewski, et al., No. 07 C 1290, and Bradford Lyttle v. John Killackey, et al., No. 07 C 1406. On Friday, lawyers for Thayer and Lyttle said they were pleased with Keys’ ruling. “In a free democracy, secret government surveillance of those with unpopular but lawful (anti-war) views is very troubling, and documents specifically relating to such efforts should not be immune from discovery in litigation,” Chicago attorney Elizabeth C. Wang of Loevy & Loevy said in a written statement. Chicago attorney Jon Loevy, also of the Loevy firm, said the city had sought to argue the issue of the surveillance records under seal. “In other words, they wanted the very dispute itself to be kept secret and out of the public eye,” Loevy said in a written statement. “That is a disturbing request, and we we’re pleased the court rejected it.” Spokeswoman Jennifer Hoyle said the city would comply with Keys’ order. The lead attorney for the city in the suits is Andrew S. Mine of the corporation counsel’s office.

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