CHICAGO - Chicago police officers have made over 2.5 million investigatory stops and pat-downs over the last decade, many done to enforce the city’s anti-gang and drug loitering ordinance.
In 2015, a class-action lawsuit accused the city of conducting unconstitutional stops "without reasonable suspicion" in violation of the U.S. Civil Rights Act.
On Monday, the City Council’s Finance Committee agreed to settle that case for nearly $5 million, with all but $112,500 of that money going to attorneys’ fees.
Deputy Corporation Counsel Jennifer Bagby recommended that settlement after months of litigation, negotiation and mediation by a retired federal judge.
Those talks managed to narrow the case — from 35 named plaintiffs to just five — "none of whom have any reportable criminal history."
Through litigation, the city also managed to "prevent certification of a monetary damages class that could have covered all of those individual stops since 2013 for their own monetary award," Bagby said.
Although taxpayer liability has been narrowed significantly, two classes of plaintiffs were certified for "declaratory and injunctive relief … that would be the subject of any litigation" if the case went to trial, she said.
The first class includes every person who has been or will be subjected to an investigatory stop since April 20, 2013. The second class involves stops specifically related to the gang and narcotics loitering ordinance.
"By certifying these classes, a federal judge has determined some evidence of unconstitutional investigatory stop practices, including in the enforcement of the gang and narcotics loitering ordinances," Bagby told the Finance Committee.
"The benefits of this settlement are that the city would otherwise have to litigate five separate trials if this matter were to proceed to trial and would risk a declaratory finding that the city’s policies, practices and procedures involving investigatory stops and protective pat-downs — as well as the specific enforcement of these ordinances — are unconstitutional and discriminatory," Bagby said.
"The attorney’s fees and costs, should the city not prevail at trial, could reach $10 million if we were to litigate all of these matters."
Besides that $4.98 million cash award, the settlement calls for "consistent oversight and monitoring of investigatory stop policy, training and review that will ensure that CPD’s investigatory stops are constitutionally-conducted and well-documented through the consent decree" outlining the terms of federal court oversight of the Chicago Police Department.
The decree, which followed the police shooting of Laquan McDonald, already has an established mechanism for developing and reviewing policy and training, she said.
Chicago’s initial crackdown on street corner gang activity in 1992 led to over 42,000 arrests in three years before a string of adverse court decisions forced the city to suspend enforcement in December 1995.
During the summer of 1999, the U.S. Supreme Court agreed the ordinance was too vague but gave the city a legal road map to rewrite the law so it might pass constitutional muster.
Former Mayor Richard M. Daley’s Law Department followed it to the letter.
In 2000, Daley was shouted down by protesters concerned about police "sweeps" as he took the wraps off a watered-down anti-gang loitering ordinance intended to satisfy the nation’s highest court.
The city’s decision to clearly define "gang and narcotics loitering" and limit enforcement to designated "hot spots" identified by police and neighborhood residents still didn’t satisfy civil libertarians.
They questioned what good designated "hot spots" would do if there were no signs posted on street corners to warn people ahead of time.
The Council ultimately approved the watered-down ordinance amid warnings from a divided Black Caucus that it would "legalize racial profiling."
During Monday’s Finance Committee debate, Bagby noted the nearly $5 million settlement "does not prevent the enforcement of the gang and narcotics loitering ordinance."
"The only change in the enforcement is in the documentation of the initial contact through a dispersal order as required by the ordinance and not through a contact card or an investigatory stop report," she said.
"Additionally, this settlement ensures that enforcement is consistent with the ordinance as written and the Constitution and that officers have the necessary tools to conduct enforcement in a manner consistent with the Constitution."
Ald. Ray Lopez (15th), one of the police union’s staunchest Council supporters, noted the city was "being accused of making 2.5 million racially profiled investigatory stops."
He asked whether any of those 2.5 million stops "actually produced people who were in possession of illegal drugs, illegal guns or anything that would justify a stop and warrant" arrest.
Bagby said that’s not the point. What’s more important is "what the city would be able to prove" at a trial "without bodycam video or documentation" of those stops.
The Finance Committee also signed off on three other settlements for a combined, $3.5 million stemming from other allegations of police wrongdoing.
One involved a fatal police shooting. Another involved a high-speed police chase that resulted in injuries. The third involved Bernard Kersh, who was body-slammed by a police officer with martial arts training after Kersh allegedly licked and spit on the officer.