#81 - Feb. 2001

Federal Judge Backs Chicago Police in Ruling Against Activists

By Kari Lydersen

December 21, 2000 could turn out to be an ominous date with far-reaching implications for dissident activists and organizers in Chicago. That's when a federal judge ruled in favor of the Chicago police officers who not only illegally spied on and invaded an alternative media and organizing center during the 1996 Democratic National Convention, but arrested members of grassroots collectives and confiscated and destroyed their media equipment.

For weeks before the 1996 DNC, held at the United Center, Chicago police had been spying on the activists, videographers and reporters involved with the Active Resistance Organizing Collective, CounterMedia and the Autonomous Zone, who were planning to protest the convention with a CounterConvention where they would also document the police brutality, sweeps of the homeless and other effects of the convention on the low-income West Side community. Activists in Chicago know that political spying by the police and other government and corporate entities is nothing new. But technically it is illegal, outlawed by the Red Squad Consent Decree of 1981. The decree resulted from a lawsuit filed by the Alliance to End Repression against the city of Chicago in 1974. The lawsuit and the hearings that ensued documented the blatant and widespread use of police to carry out extensive surveillance and harassment of any vaguely oppositional groups, ranging from radicals like the Black Panthers and the Communist Party to relatively mainstream groups like Unitarian, Baptist and other churches, as well as the League of Women Voters.

The term "Red Squad" had existed since the 1920s, when Chicago police began systematically spying on suspected Communists and other dissidents. The Red Squad reached its height of activity in the 1960s and '70s under Mayor Richard J. Daley, father of Chicago's current "Democratic" mayor. Over the years, the Red Squad has employed thousands of spies and has kept hundreds of thousands of dossiers on Chicago residents and organizations. In the spirit of the FBI's COINTELPRO operations, they would also infiltrate community and activist organizations with the goal of not only spying on them but of disrupting and sabotaging their work.

The Consent Decree forbids police from gathering information or spying for political reasons. A "consent decree" is a contract between the plaintiff and defendant, that the defendant will cease what the plaintiff claimed was illegal and no fault is found. It is not a judicial sentence, but a contract. As such, the defending party doesn't actually admit wrongdoing or get convicted of anything, but agrees to uphold certain terms subject to monitoring by the court to ensure that the defendant meets the contract's terms.

Mayor Richard M. Daley claims that the police department has scrupulously followed the dictates of the decree, a claim the DNC protesters, and many other activists who have had their phones tapped or found their name on lists of known gang members, find laughable. (see note*) The DNC is just one of many examples of the decree being violated over the past two decades. In 1984, for example, the Spanish Action Committee of Chicago was awarded $60,000 by a jury because of harassment from the Red Squad. More recently, members of the Revolutionary Communist Party and Anti-Racist Action have found themselves listed in the state register of known gangs, further evidence that the police have been collecting information on political opponents.

In March 1997, six months after the DNC, Mayor Daley filed a motion asking for the relaxing of the consent decree, claiming that it prevents cops from doing their job in fighting crime, particularly in the areas of drugs, gangs, hate crimes and terrorism.

Among other things, the revisions Daley wants would allow the police to keep data on the political views of activists and organizations and allow them to open investigations based on the city's judgment that groups are "extremist." It would also allow them to film demonstrations for "training purposes." The police have claimed that the consent decree prevents them from filming crime scenes, a useful tactic, since perpetrators often return to the scene of the crime. The police also claim that the decree prevents them from investigating terrorism and gangs because it prevents them from sharing information with suburban and other departments. These statements are false, however. When there is legitimate reason involving an actual crime, the police have full power to film a crime scene and share information with suburban departments. The consent decree only applies to the issues of spying and First Amendment rights.

Federal judge Ann Williams denied the city's motion, but the city has appealed to a federal Seventh District appellate court, and a decision is expected sometime this winter. The city used a legal loophole to put the case in front of a handpicked panel of well-known conservative judges: Frank Easterbrook, who has been mentioned as a Bush Supreme Court appointee; William Bower, a Republican former US attorney and Richard Posner, a former University of Chicago law professor.

"Considering the judges we have, things don't look good for us in the Seventh Circuit," said a lawyer for the Active Resistance plaintiffs, who asked that his name not be used since legal proceedings regarding the decree are still ongoing.

Several weeks after the city's motion to weaken the decree, members of CounterMedia, Active Resistance and the A-Zone filed their civil lawsuit that alleged that officers had violated the consent decree with their actions during the DNC. Along with asking for $180,000 in punitive damages and compensation for equipment that was lost and damaged by police, the lawsuit aimed to prove that the city had in fact grossly violated the decree, which could possibly give a judge more reason to deny Daley's motion to gut the decree.

The attorneys for the Active Resistance plaintiffs had asked the appellate court to delay its decision pending the outcome of their civil suit against the city. But on Dec. 21, US District Judge Joan Gottschall ruled that the plaintiffs did not meet the burden of proof to show that Chicago police had illegally spied on and raided the center. Gottschall said she found the activists' testimony convincing, but there was not enough proof that the people responsible for the raids were police officers acting on official orders. In a civil suit such as this, the burden of proof is much higher than that of a criminal case and, as such, the burden lies on the plaintiff, not the defendant.

Testifying in front of scores of uniformed officers packing the courtroom during the November trial, lawyers for the police suggested that the raiders could have been from the railroad department or some other bureaucracy or that they could have been renegade police acting on their own.

"In order to accept [the plaintiffs'] version of the story, the court would have to believe that a group of officers ripped off their CPD patches and removed their stars and badges to carry out a senseless and blatantly unlawful raid on a peaceful protest," Gottschall wrote.

This version of events, which Gottschall insinuates is so implausible, makes perfect sense to those who have witnessed similar police behavior at protests during the IMF meeting in Washington DC in April or the Republican National Convention in Philadelphia last summer, not to mention the rampant police brutality and misconduct that goes on every day in Chicago and elsewhere.

The Active Resistance CounterConvention headquarters was raided around 8:30 PM on Aug. 29, 1996. The plaintiffs' legal brief notes that, "The primary issue regarding the raid is not whether it happened, but rather the organizational identity of the raiders."

At the Dec. 21, 2000 trial, the police department argued that it may have been railroad workers, Chicago Housing Authority police or security guards who carried out the raid, not Chicago police. But the plaintiffs say there is "substantial direct and circumstantial evidence in the record that establishes the raid was carried out by Chicago police." Though the raiders were in plain clothes and without badges, six witnesses recognized specific officers from other demonstrations. Two witnesses said they saw CPD patches on the raiders' clothing. And the police department admitted that they used a location right near the center, at 2010 W. Carroll Avenue, as a staging area on the night of the raid. That was the only night they used this staging area, and it is substantially further away from the United Center than other designated staging areas including an elementary school. Railroad police director Hahne testified that the counterconventioneers were not trespassing on railroad property, as the CPD alleged, so they would have had no reason to arrest them. And witnesses testified that none of the raiders were African American, a fact which would virtually rule out the CHA police, who are almost all African American.

"[Police] had already demonstrated their hostility to the CounterConvention by placing it under surveillance and there wasn't any other police work to distract them that evening," says the Active Resistance attorneys' case summary.

When activists filed complaints with the CPD's division of internal affairs, the investigation they got was predictably shoddy. Internal Affairs Sergeant Fivelson did not interview any of the officers in the vicinity of the raid that night, claiming he could not identify them. Fivelson also suppressed the review of photos of officers in the area, and of pepper spray canisters that were used during the DNC.

The raid wasn't the only issue in which police testimony was self-implicating and erroneous. At the trial, police claimed that they searched a CounterMedia van because the van was blocking and disrupting a protest march. Lee Wells, an artist and activist formerly of Chicago's Wicker Park, testified to the contrary, and his testimony is backed by a videotape that was made during the incident. The tape shows that the van was some distance away from the march, and it does not pick up any words from police regarding the van blocking the march. The lawyers' summary states that, "After viewing the video, Sergeant Richard Grand was forced to admit that the van was stopped at the corner" not blocking the march.

Police also testified that the driver of the van refused to move it, saying he didn't have the key. However, the video shows the driver attempting to start the van with the key as police approach. The driver of the van eventually says he doesn't have the keys because the police officer took them from him.

Police officers Grand and Folliard also claimed they saw a rag hanging out of the gas tank and a gas can on the van's floor, which suggested to them that the occupants were making explosive devices. However, the video contains no mention of these objects and shows one officer smoking, which, according to the summary, is "conduct inconsistent with the belief that a gasoline explosive device might be present."

At least four witnesses said they saw officers pull film out of video cameras from both the CounterMedia van and a van owned by the Shundahai Network. "One officer pulled out a journalist's film and said, 'Oops!'" said the attorney for the plaintiffs.

Police testified there was no video equipment in the vans, in obvious contradiction to the existing tape and the testimony of witnesses. Additionally, activist Carla West, whose camera was seized from the CounterMedia van, testified that after being arrested, police interrogated her about her political views and her reasons for demonstrating, in clear violation of the consent decree and various constitutional rights. The officers who transported West from the police station to a women's lock-up center said they didn't speak to her at all during the 45-minute ride, a claim West's attorneys call "difficult to believe."

"They were asking political questions about why the protesters were demonstrating, which is illegal unless they have written authorization about why it was relevant, and they didn't," said the attorney.

The issue of police infiltration of and police raids on organizing nerve centers becomes increasingly important with the growing wave of huge, well-organized demonstrations against globalization and corporate domination. The extent of police infiltration and surveillance going on around the country was made abundantly clear in Washington DC, where the protesters' welcoming center was raided and shut down, and in Philadelphia, where many puppeteers ended up spending two weeks in jail and facing serious charges after their workplace was raided. At both of these demonstrations, police infiltrated, spied on and eventually raided organizing/media/arts centers.

The status of the consent decree and the legality of spying in Chicago has national significance, as many major political conventions and meetings are held in Chicago and police departments around the country have traditionally turned to Chicago for training in handling political demonstrations.

While the Red Squad consent decree has obviously not kept police from conducting political surveillance and harassment, activists say its existence is still important. If the consent decree is modified as Daley wishes, it will be virtually non-existent and police will have free reign to spy on groups ranging from tenants rights organizations to leftist sectarian groups to anti-sweatshop and anti-globalization coalitions. The spying will make it easier for police to interfere with protests and the political work of these organizations, and even more disturbingly, the extra information they gather will likely lead to increasingly serious criminal charges against activist leaders. The notion that the consent decree's gutting is part of the war on drugs, gangs and terrorism is especially frightening, since these are the type of trumped-up charges most often used to slap activists with serious felonies and jail time.

"All over the country local police acting in concert with the FBI and other federal agencies are cracking down with increased surveillance and repression against dissident groups," said Emile Schepers, program director of the Chicago Committee to Defend the Bill of Rights. "In Chicago, police are somewhat impeded from violation of these constitutional rights by the Consent Decree. If it is gutted as the city of Chicago wants to do, we will definitely see an upsurge of harassment of activists and community organizations. We need to mobilize to prevent this."

* Phone taps were discovered via word of mouth, with people saying that the phone company found bugs when they came to do work. It may be a known fact that the Red Squad did tap phones. As for lists, people discovered through Freedom of Information requests that they were listed as members of certain gangs or organizations; as for gangs, there is an actual state register (called LEADS) which lists street gang members, Vice Lords, etc — the Revolutionary Communist Party is also listed there.