by Kyle Langvardt, ’07
Detectives arrive at your home in the middle of the night, in the middle of your Memorial Day barbecue, in the middle of your bath. They draw guns, demand entrance. You need to go with them and answer some questions. Your children watch as you are escorted to the back seat of a squad car, perhaps in handcuffs. You are driven off to a police facility. There, police search you thoroughly. Your shoelaces, your belt, and your phone are taken away. You are locked in an "interview room"—a small, windowless hole furnished with a steel bench and a handcuff ring. The room is brightly lit. There is no way to turn the lights off. There is no running water in the interview room, so if you need to relieve yourself, you must knock and your escort will eventually arrive. You can knock if you get hungry, but whether you get something to eat is up to the detectives.
From time to time, detectives question you about a homicide you insist you know nothing about. They advise against demanding an attorney. You ask to leave. You ask to use the phone. The detectives need to ask you a few questions first. At some point, you are made to take a lie detector test to clear your name. You go back to the interview room. By the time you are released, you have been at the station for three days. You were free to leave the whole time, but nobody bothered to tell you. For years, this was the practice.
The Police Accountability Project and the MacArthur Justice Center have worked together to end these types of detentions. Despite vigorous opposition from the city, we are beginning to see results.
We began with First Defense Legal Aid v. City of Chicago. First Defense Legal Aid, public interest law office represented by the Police Accountability Project and the MacArthur Justice Center, argued that under the First Amendment detained witnesses must be informed when attorneys arrive at the police facility to offer assistance. This argument succeeded in the trial court, although it was reversed by the Seventh Circuit. Nonetheless, the Court of Appeals left open the issue of whether the police practices violated the Fourth Amendment rights of witnesses to be free from unlawful detentions. Judge FrankEasterbrook,’73,wrote,"[I]f the police are violating the rights of some witnesses by holding them against their will, the right response is to award damages to the witnesses."
After First Defense, the clinic sought to challenge the detentions directly. On behalf of a number of witnesses who had been illegally held without probable cause, the clinic brought Johnson v. City of Chicago, a section 1983 civil rights action for monetary damages. The case looked promising, but lacked the injunctive claim that could end witness detentions once and for all.
Unfortunately, victims of the witness policy faced an uphill battle in bringing such a claim. Under current law, a case for an injunction in such a claim would have to be a class action and, in order to certify the class, the complaint would have to be delivered during the putative class representative’s incarceration. Given that detained witnesses were forbidden to use the telephone and isolated from legal counsel, the procedural obstacles to an injunctive claim were considerable.
Clinic faculty and students prepared a template for a complaint and waited for the call. A young man named Ramon Ayalahad been missing for about a day. His sister gathered that Ramon was being held by the police. She contacted an attorney from First Defense Legal Aid, who contacted the clinic. Police Accountability Project head Craig Futterman prepared the complaint and rushed to deliver it. Hours later Ramon was released and the class action Ayala v. City of Chicago began.
Both Johnson and Ayala have already effected positive change. The parties recently reached a settlement in principle in Johnson, in which the city has agreed to pay $29,000 to each of the plaintiffs. Ayala, the injunctive case, should go to trial this summer. Under pressure, the city has implemented a new special order requiring detectives to inform most witnesses that they are free to leave the station at anytime, but the order is far from perfect. As written, it allows some witnesses to be held for as long as three hours without being informed of their right to leave. Moreover, it continues to permit police to lock witnesses in interrogation rooms and hold them incommunicado for extended periods of time. Clinic faculty and students are ready to litigate these points further. All acknowledge, however,that the litigation thus far has begun to force improvement of the City of Chicago’s witness interrogation procedures.
