The Introvert Speaks

I have included on my web site a paper which was available for download on the net by Brian Pennington entitled "Modern-Day Red Squads: Police Surveillance of First Amendment Activity."

Electronic copy available at: http://ssrn.com/abstract=1280407

Bryan Pennington

Modern Day Red Squads: Police Surveillance of First Amendment Activity

I. INTRODUCTION

In 2002, the American Civil Liberties Union (ACLU) discovered that the Denver Police

Department (DPD) had been engaging in surveillance of the First Amendment activities of local

citizens. Instead of watching suspected criminals engaged in criminal activity, the DPD was

watching and recording the First Amendment activities of local political dissenters. The DPD

had created hundreds of files on such “radical” groups and individuals as the American Friends

Service Committee and a Franciscan nun.1

Such blatant surveillance of First Amendment activities harkens back to days of the first

Red Scare, COINTELPRO, and the other political abuses committed by national and local

intelligence agencies over the past eighty years. While surveillance of political dissidents is

certainly not unique to Denver, the DPD surveillance program was unusual in this day and age.

Not since the 1970s and 1980s—when several major cities entered into consent decrees that

erected strict limitations on how police conduct surveillance of political activity—has such a

program been discovered and successfully challenged in the courts. By building upon those

seminal consent decrees from the 1980s, the Denver plaintiffs were able to secure a consent

decree of their own that erected strong protections for First Amendment activity. The Denver

consent decree serves both as a lesson in how political surveillance cases are litigated today, and

as an example of how such cases can be litigated, and won, in the future.

Part II of this essay briefly examines the history of political surveillance at both the

national and local levels. Additionally, Part II attempts to use the analytical concept of “mission

creep” to examine how national intelligence agencies and local police intelligence squads went

1 Complaint at 3-4, American Friends Serv. Comm. v. City and County of Denver, No. 02-2993 (Colo. Dist. Ct. filed

March 28, 2002).

Electronic copy available at: http://ssrn.com/abstract=1280407

from conducting lawful investigations to surveilling political dissenters. Parts III and IV

examine three important local police consent decrees from the 1970s and 1980s that limited

police departments’ abilities to conduct political surveillance, as well as how those decrees have

been modified to aid police in combating terrorism. By cloaking themselves in the mantle of

anti-terrorism, police departments have been able to significantly undermine the effectiveness of

those decrees, and ultimately the protections afforded to political dissidents. Part V presents a

detailed case study of the only federal police surveillance case of the last fifteen years, American

Friends Service Committee v. City and County of Denver.2 Part VI concludes the essay, and

draws some parallels between the Denver decree and the decrees of the 1980s. In many of those

cases, the plaintiffs were able to use extra-judicial means—notably the media—to obtain a more

favorable settlement. This presents a lesson to anyone seeking to litigate such cases in the

future: embarrassment in the media is a powerful bargaining chip that can strengthen an

otherwise weak legal argument.

II. HISTORY OF POLICE SURVEILLANCE

A. Political Surveillance at the National Level

As former ACLU national staff counsel and CEO of the JFK Library Foundation John

H.F. Shattuck has noted, “[p]olitical surveillance . . . has a long and troubled history in the

United States.”3 While police tactics aimed at disrupting the lawful gathering of Americans

expressing their First Amendment rights can be traced back at least as far as the Haymarket Riot

in 1886, 4 the origin of political surveillance on a national level begins with the creation of the

Bureau of Investigation—the precursor the FBI—in 1908. Originally charged to investigate

2 No. 02-740 (D. Colo. filed April 16, 2002).

3 John H.F. Shattuck, Tilting at the Surveillance Apparatus, 1 CIV. LIBERTIES REV. 59, 59 (1974).

4 For a discussion of how the Haymarket Riot fits into the context of political surveillance, see FRANK DONNER,

PROTECTORS OF PRIVILEGE: RED SQUADS AND POLICE REPRESSION IN URBAN AMERICA 7-43 (1990).

Electronic copy available at: http://ssrn.com/abstract=1280407

violations of federal law, the Bureau’s mandate was expanded in 1916 “to allow additional

investigations at the behest of the Attorney General.”5 During World War I, the Bureau began

conducting domestic political surveillance on dissident groups, including those who criticized the

war, opposed the draft, or expressed pro-German sympathies.6 Domestic surveillance continued

after the war, focusing on anarchists and other radical groups.7

In 1919, in response to a series of terrorist bombings, a new division was created within

the Department of Justice. The new General Intelligence Division (GID), headed by a young J.

Edgar Hoover, engaged in intense political surveillance, with serious consequences for the

targets of its investigations. The most striking example was the “Palmer Raids” of 1920. Named

for Attorney General A. Mitchell Palmer, who ordered the raids, the GID and the Bureau

rounded up and detained nearly 10,000 persons who were believed to be Communists, though in

reality many had no connection to Communism.8 According to Professor Robert Preston, the

raids involved “indiscriminate arrests of the innocent with the guilty, unlawful seizures by

federal detectives, intimidating preliminary interrogations of aliens held incommunicado, highhanded

levying of excessive bail, and denial of counsel.”9 Such excesses prompted Attorney

General Harlan Fiske Stone to issue new internal guidelines for the Bureau in 1924.10 The

guidelines prohibited the Bureau from “investigating ‘political or other opinions,’ as opposed to

5 Linda Fisher, Guilt by Expressive Association: Political Profiling, Surveillance and the Privacy of Groups, 46

ARIZ. L. REV. 621, 629 (2004). It should be noted that the Bureau was originally created without congressional

approval. Id. at 628.

6 Id. at 629, quoting Senate Select Comm. to Study Governmental Operations with Respect to Intelligence Activities

Report, S. Rep. No. 94-775, 94th Cong., 2d Sess., Book III, at 382 (1976), available in part at www.cointel.org

[hereinafter Church Committee Report].

7 Fisher, supra note 5, at 629.

8 Id. See also Church Committee Report, Book II, part II at fn. 1.

9 DONNER, supra note 4, at 14, quoting ROBERT PRESTON, ALIENS AND DISSENTERS 221 (1963).

10 Id. at 14-15.

conduct . . . forbidden by the laws.”11 As these guidelines took effect, domestic surveillance

began to decline.12

After being renamed the Federal Bureau of Investigations in 1932,13 the Bureau again

stepped up its domestic surveillance programs in 1936 after receiving a number of secret orders

from President Roosevelt.14 During World War II, the FBI infiltrated and investigated purely

domestic organizations that were not connected to crime, particularly those associated with

Fascism and Communism.15 These investigations involved more than mere surveillance, and

“were built upon a theory of subversive infiltration which remained an essential part of domestic

intelligence thereafter.”16

Following World War II, the FBI continued to conduct domestic surveillance and

“compile dossiers on . . . liberal and leftist groups in its search for subversives.”17 Despite the

fading fear of Communism that accompanied the 1960s, the FBI hardly cut back on its efforts.

Indeed, accounts of FBI excesses and abuses during this time are legion: the surveillance of the

NAACP; the infiltration of the Black Panther Party (BPP) and the assassination of BPP leaders

Mark Clark and Fred Hampton; the investigation of the women’s liberation movement and

groups opposed to the Vietnam War; and the harassment of Dr. Martin Luther King, Jr., which

included sending him a letter attempting to induce him to commit suicide.18

These practices were conducted by the FBI’s infamous COINTELPRO

(Counterintelligence Program), which flourished between 1956 and 1971 and “was designed to

11 Fisher, supra note 5, at 629, quoting Church Committee Report, Book II, at 3.

12 Id. at 630.

13 Federal Bureau of Investigation, History of the FBI, http://www.fbi.gov/libref/historic/history/newdeal.htm (last

visited Sept. 14, 2008).

14 DONNER, supra note 4, at 15-16; Fisher, supra note 5, at 630. For a comprehensive account of the abuses of the

FBI from 1936-74, see Church Committee Report, Books II & III.

15 Fisher, supra note 5, at 630.

16 Id. at 630, quoting Church Committee Report, Book III, at 412 (internal quotations omitted).

17 Id.

18 See generally Church Committee Report, Book III (cataloging abuses by the FBI and other intelligence agencies).

‘disrupt’ and ‘neutralize’ its targets.”19 COINTELPRO’s five principal targets were the

Communist Party, the Socialist Workers Party, White hate groups, Black nationalist hate groups,

and the New Left.20 Many of the tactics used by COINTELPRO “would be intolerable in a

democratic society even if all of the targets had been involved in violent activity,” and included

“sending anonymous poison-pen letters intended to break up marriages” and “encouraging gang

warfare and falsely labeling members of a violent group as police informers.”21

Such abuses did not go completely unnoticed by those in government. After the

revelations of the Watergate scandal, lawmakers were less willing to look the other way

following FBI and CIA abuses. Various governmental inquiries culminated in the Final Report

of the United States Senate Select Committee to Study Governmental Operations with Respect to

Intelligence Activities—commonly known as the “Church Committee” after its chair, Idaho

Senator Frank Church. The Committee’s report, which spanned six volumes, “document[ed]

countless examples of abuses . . . by the major intelligence agencies, including the FBI, the CIA,

and the National Security Agency, or NSA.”22 Simply put, the Committee found that “too many

people have been spied upon by too many Government agencies and to [sic] much information

has been collected,”23 often by illegal means.24

After documenting, in great detail, abuses by the government intelligence agencies, the

Committee reached a fundamental conclusion: “intelligence activities have undermined the

constitutional rights of citizens and . . . they have done so primarily because checks and balances

19 Fisher, supra note 5, at 631, quoting Church Committee Report, Book III, at 3.

20 Church Committee Report, Book III, at 4.

21 Id. at 3.

22 FREDERICK A.O. SCHWARZ JR. & AZIZ Z. HUQ, UNCHECKED AND UNBALANCED 23 (2007).

23 Church Committee Report, Book II, at 5.

24 Id. at 12.

25 Id. at 289.

The Committee’s detailed recommendations—which numbered near 200—had a uniform theme:

“unchecked power is prone to unwise, inefficient application, and it leads inescapably to

abuse.”26 The Committee’s recommendations attempted to curb that abuse, and to restore

effective checks and balances into the intelligence-gathering apparatus. Some of its

recommendations were straight-forward and quickly adopted, such as limiting the tenure of the

FBI director to ten years.27 Others took more time but were also eventually adopted, such as the

creation of a permanent Senate Intelligence Committee28 and a “law strengthening the

independence of the CIA inspector general.”29 Still other crucial reforms that would have

enacted substantial barriers to future surveillance abuses were never adopted, such as the

“enactment of comprehensive statutory charters for all the intelligence agencies.”30 While some

of the committee’s recommendations did not clear their political hurdles, the publicity of the

Committee’s report, combined with the fallout from the Watergate scandal contributed to the

viability of lawsuits challenging political surveillance on a local level.

B. Local Police Surveillance

Not unlike national political surveillance, local police surveillance of those with

dissenting opinions also has a storied past in the United States. Patrick Murphy, a former New

York City Police Commissioner, has traced the origins of such local intelligence units in New

York to an “Italian Squad” in the NYPD, and “which sought as early as 1904 to curtail the illegal

activities of a group of Italian immigrants called the ‘Black Hand Society.’”31 Because many of

26 SCHWARZ & HUQ, supra note 22, at 50.

27 Id. at 54.

28 Id. at 51-56.

29 Id. at 54.

30 Id.

31 Paul Chevigny, Politics and Law in the Control of Local Surveillance, 69 CORNELL L. REV. 735, 735 (1984).

these police agencies were set up during the First Red Scare that followed World War I, they are

commonly referred to as “Red Squads.”

The history of the Red Squad in Chicago provides a good example of how such units

were formed and organized. The Chicago Red Squad was set up no later than the 1920s, though

some activists have found evidence of a Chicago Red Squad as early as the 1890s.32 During the

First Red Scare and the height of the Cold War, the Red Squad’s investigations focused mostly

on anarchists and communists. By the 1960s, however, their investigations had expanded to

encompass civil rights and antiwar groups.33 Between 1920 and 1960, the Chicago Red Squad

“gathered information on more than 14,000 organizations and 258,000 individuals, including the

United Methodist Church and the League of Women Voters.”34

Red Squad activities were not just confined to surveillance. According to Rick Gutman,

an attorney who litigated the well-known Alliance case discussed below,35 the squads “acted like

any other secret police. They’d find out who was dissenting. If a group was considered a threat

to the status quo, they’d try to destroy it, directly or indirectly.”36 Red Squads used illegal

surveillance techniques “such as break-ins and warrantless electronic surveillance,” and Red

Squad officers would assume “leadership positions of organizations they infiltrated.”37 Red

Squads often used a “vacuum cleaner” approach, taking down as much information as possible at

a given function, meeting, or event, and then working backwards to speculate about the beliefs

32 See BUD SCHULTZ & RUTH SCHULTZ, THE PRICE OF DISSENT 408 (2001) (interview with Rick Gutman).

33 Id.

34 Red Squads, Chicago Kent School of Law,

http://www.kentlaw.edu/faculty/rstaudt/classes/2007PublicInterestLaw/studentdocs2007/Red%20Squad%20-

%20Presentation.ppt (last visited April 25, 2008).

35 See infra Part III(C).

36 SCHULTZ & SCHULTZ, supra note 32, at 408 (interview with Rick Gutman).

37 Fisher, supra note 5, at 633.

and political feelings of those individuals present.38 Unsurprisingly, this often led to false

information being recorded.39

C. How did this happen?

While police and FBI practices such as those described above are relatively easy to

catalog, they are more difficult to explain. People find this kind of political surveillance

unsettling—especially when it is happening to them—and, as we saw with the Church

Committee, they rightfully look for answers and explanations as to why this kind of surveillance

was allowed to occur.

A useful theoretical model of political surveillance applied by Frederick A.O. Schwarz

and Aziz Huq helps answer these questions. They argue that the expansion of political

surveillance can be attributed to, among other things, the phenomenon of “mission creep.”40

Mission creep has two principle components: “[t]he absence of initial legal restraints”41 and the

absence of “meaningful oversight.”42 Though Schwarz and Huq’s analysis focuses on political

surveillance at a national level, their ideas fit easily into an explanation of local political

surveillance as well. When an intelligence agency or local police department lacks a clear

intent—either legal or legislative—and when there is little oversight over the workings of that

agency or department, then legitimate surveillance devolves into illegitimate surveillance. As

Schwarz and Huq put it: “The absence of initial legal restraints and subsequent oversight [means]

that intelligence agencies extend[] unwarranted powers beyond even initial targets.”43

38 Id.

39 Id.

40 SCHWARZ & HUQ, supra note 22, at 6.

41 Id.

42 Id. at 25.

43 Id. at 6.

The FBI’s surveillance tactics in the years leading up to the Church Committee

investigations provide an historical example of mission creep in action. After being charged by

President Roosevelt to combat subversion during World War II, the FBI began targeting

domestic groups that had no connection to crime.44 This legal mandate to fight subversion,

which “lacked clear boundaries,” was coupled with an incredibly lax policy of oversight by

Congress.45 Together, this permitted the FBI’s tactics “to migrate from real suspects to entirely

innocent Americans, particularly those who opposed administration policies and who protested

racial discrimination or the Vietnam War.”46 Simply put, the scope of FBI surveillance kept

expanding because no one told them it shouldn’t.

Local police departments are also vulnerable to mission creep. As discussed above, local

Red Squads were originally set up during the 1920s to fight Communists and anarchists.

However, as the Cold War wore on, the fear of imminent takeover by Communists declined

greatly. To fill the gap, Red Squads started focusing on other non-mainstream groups, such as

civil rights advocates and antiwar activists. Without someone telling them to confine their

investigations to one group or another, Red Squad investigations proliferated.

III. 1970S AND 1980S: ACTIVISTS GO TO COURT

While the abuses of the 1960s and early 1970s were being addressed by those in

government, they were also being challenged by activists on the ground. By the mid-1970s,

important lawsuits had been filed that challenged local police surveillance. In each of those

cases, the plaintiffs were able to secure negotiated settlement agreements that protected core First

Amendment activity from unwarranted police surveillance and interference.

44 Id. at 24

45 Id. at 19.

46 Id. at 25.

These cases are presented here chronologically by date of settlement. The first case,

Kendrick v. Chandler, challenged the surveillance practices of the Memphis Police

Department.47 Though it was filed after important cases in New York and Chicago, Kendrick

settled much sooner than those cases and thus represents the first consent decree of its kind, and

a decree that was relied on by plaintiffs in subsequent litigation. The second case, Handschu v.

Special Services Division, sought to curtail the surveillance powers of the NYPD.48 The consent

decree that came out of that case—known as the Handschu Guidelines—has also been a model

of police surveillance decrees, and has been one of the most litigated decrees of its kind. The

third case, Alliance to End Repression v. City of Chicago, challenged the practices of the

Chicago Police Department Red Squad, and also has been heavily relied upon by subsequent

plaintiffs.49 Moreover, Alliance and Handschu represent early examples of a tactic used

effectively by the American Friends plaintiffs: working the media in order to embarrass the City

into negotiating, thereby strengthening a relatively weak legal case.

A. Memphis: Kendrick v. Chandler

In June 1976, political activists in Memphis filed a federal civil rights lawsuit that

challenged the surveillance practices of the Memphis Police Department.50 The case, Kendrick

v. Chandler,51 was prompted by newspaper reports stating that the Department was considering

destroying its political files.52 After the mayor and chief of police claimed to have destroyed

most of the files, sections of them began surfacing outside the Department.53 This

47 Kendrick v. Chandler, No. 76-449 (W.D. Tenn. filed Sept. 1, 1976).

48 Handschu v. Special Servs. Div., No. 71-2203 (S.D. N.Y. filed May 18, 1971).

49 Alliance to End Repression v. City of Chicago, No.74-4268 (N.D. Ill. filed Nov. 13, 1974).

50 Chevigny, supra note 31, at 751.

51 Kendrick, No. 76-449 (W.D. Tenn.).

52 Chevigny, supra note 31, at 751-52.

53 Id. at 752.

embarrassment, combined with “the double pressure of bad publicity and the possibility of an

adverse court ruling,” led the City to enter into a consent decree with the plaintiffs.54

The Memphis decree was the first of its kind, and it influenced the more well-known

decrees that would come after it. As noted by Paul Chevigny, class counsel in the Handschu

case discussed below, “the most important feature of the Memphis decree, and others like it, is

simply that a decree is an injunction. As such, the decree subjects the police to the continuing

jurisdiction and sanctions of a federal court and cannot be changed at the whim of a new police

administration.”55 Substantively, the Memphis decree prohibited the police from undertaking

surveillance solely for political purposes.56 By the mid-1970s, the political climate was such that

this provision was easily accepted by the police department.57 The decree also addressed

“mixed” investigations: legitimate criminal investigations that also contained political

elements.58 The decree required the Director of Police to certify that any “lawful investigation of

criminal conduct which . . . may result in the collection of information about the exercise of First

Amendment rights” is unavoidable, that the investigation will employ non-intrusive methods,

and that “every reasonable precaution [will be] employed to minimize the collection of

information about . . . First Amendment rights.”59

While some critics—particularly on the left—were unhappy with some provisions of the

decree,60 it represented the first successful injunctive effort to curb illegal surveillance practices

by local police. As such, it was influential in future cases challenging similar conduct.

54 Id.

55 Id. at 753.

56 Id. at 752.

57 Id.

58 Id.

59 Id. at 753, quoting Kendrick v. Chandler, No. 76-449, at 3-4, paras. C-F (W.D. Tenn. Sept. 14, 1978) (Order,

Judgment and Decree).

60 Id. at 753-54.

B. New York: Handschu v. Special Services Division

On May 18, 1971, the first lawsuit challenging local police surveillance was filed in

federal court in the Southern District of New York. The suit was prompted by revelations of the

surveillance practices of the Special Services Division of the NYPD during the 1960s.61

According to Franklin Siegel, who has worked on the case as class counsel since 1974, the suit’s

sixteen named plaintiffs each represented a different organization or constituency that was the

target of police surveillance, “including Black Panthers, teachers, the War Resistors League,

early gay activists, and youth activists.”62 The case was filed as a class action, with the original

class being defined as people who “object to governmental policies or social conditions.”63 The

complaint alleged a chilling effect on their First Amendment rights based on seven categories of

police misconduct: “(1) informers; (2) infiltration; (3) interrogation; (4) overt surveillance; (5)

summary punishment; (6) intelligence gathering; (7) electronic surveillance.”64

According to class counsel Paul Chevigny, after losing an initial motion to dismiss, the

defendants—the Special Services Division of the NYPD, the NYPD itself, and various NYPD

officials—and the City of New York tried “to blunt the effect of the case by internal

housecleaning.”65 The defendants purged, but did not destroy, nearly a million documents from

their intelligence files.66 The NYPD also set up internal guidelines for the creation and

maintenance of political surveillance files, although they were “entirely internal, contained no

sanctions, and could be ignored or changed at any time.”67 The defendants also sought to limit,

delay, and hinder discovery in the case, and were largely successful in doing so. It was not until

61 Id. at 747. For a discussion of those practices, see PAUL CHEVIGNY, COPE AND REBELS: A STUDY OF

PROVOCATION 252-55 (1972).

62 Telephone Interview with Franklin Siegel (Feb. 28, 2008).

63 Chevigny, supra note 31, at 747.

64 Handschu v. Special Servs. Div., 605 F.Supp. 1384, 1388 (S.D. N.Y. 1985).

65 Chevigny, supra note, at 748.

66 Id. at 749.

67 Id.

1979 that the plaintiffs had gotten enough discovery to seek certification of the class, which was

eventually defined as

[a]ll individuals resident in the City of New York, and all other persons who are

physically present in the City of New York, and all organizations located or

operating in the City of New York, who engage in or have engaged in lawful

political, religious, educational or social activities and who, as a result of these

activities, have, been, are now or hereafter may be subjected to or threatened by

infiltration, physical and verbal coercion, photographic, electronic and physical

surveillance, provocation of violence, recruitment to act as police informers and

dossier collection and dissemination by defendants and their agents.68

This class definition closely tracks the class definitions in the Alliance case discussed below, and

according to Franklin Siegel, class counsel in Handschu “modeled our class definition on [the]

Alliance” class definitions.69 By the time the class was established, each side was amenable to

settling the case, and the parties entered into a settlement agreement that was approved by

District Judge Charles Haight on March 7, 1985.70

The agreement, known as the Handschu Guidelines, generally prohibits the investigation

of “political activity,” which is defined in the Guidelines as “[t]he exercise of a right of

expression or association for the purpose of maintaining or changing governmental policies or

social conditions.”71 In cases of criminal investigations or the planning of a public event, the

Public Security Section (PSS) of the Intelligence Division—the successor to the Special Services

Division—may conduct such investigation, provided that investigation is approved by an

Authority made up of “the First Deputy Commissioner of the Police Department, the Deputy

Commissioner for Legal Matters of the Police Department, and a civilian member appointed by

the Mayor.”72 The Guidelines authorize the PSS to investigate a person or group that has

68 Handschu, 605 F.Supp. at 1388.

69 Interview with Franklin Siegel, supra note 62.

70 Handschu, 605 F.Supp. at 1384.

71 Id. at 1420.

72 Id.

engaged in political activity only when the NYPD has received “specific information” that the

person or group “is engaged in, about to engage in or has threatened to engage in conduct which

constitutes a crime.”73 Before such an investigation begins, the PSS must submit a report

outlining the factual basis for the investigation to the Authority.74 The Guidelines also regulate

the use of undercover officers and investigators at public activities, with each generally having to

be approved by the Authority.75 Under the Guidelines, persons are allowed to request their

individual intelligence files from the PSS, which is forbidden from commencing an investigation

into that person based solely on their request.76 The Guidelines also set up a framework for

yearly review of the files by the Intelligence Division Commander, whose report is forwarded to

the Authority for review.77 Generally, Franklin Siegel and the other class counsel were happy

with the Guidelines because they “created a paper trail” and set up “more checks and balances

into the system.”78

C. Chicago: Alliance to End Repression v. City of Chicago

In response to perceived police misconduct and constitutional violations by members of

the Chicago Police Department in the 1960s, a number of community, civic, and religious groups

combined to form the Alliance to End Repression (hereinafter “the Alliance”).79 Specifically,

the Alliance was formed following the assassinations of Mark Clark and Fred Hampton by

Chicago police and FBI in 1969.80 This was seen as “the ultimate in repression,” and the

Alliance formed soon thereafter with a mission “to attack repression wherever it was.”81

73 Id. at 1421.

74 Id.

75 Id. at 1391.

76 Id. at 1391-92.

77 Id. at 1392.

78 Interview with Franklin Siegel, supra note 62.

79 SCHULTZ & SCHULTZ, supra note 32, at 403.

80 Id. For a more complete accounting of the assassinations, see SCHWARZ & HUQ, supra note 22, at 218-249.

81 SCHULTZ & SCHULTZ, supra note 32, at 403.

From its formation, one of the Alliance’s primary goals was the destruction of the

Chicago Red Squad, formally known as the Subversive Activities Unit of the Chicago Police

Intelligence Division.82 Because “it was such a blatant violation of the First Amendment to have

a unit that did nothing but harass citizens and spy on their political activities,” the Alliance

decided to file a lawsuit.83 At first, the Alliance had trouble finding an attorney to work on the

case, due to the 1972 Supreme Court decision in Laird v. Tatum which held that the mere act of

police spying does not allege an injury sufficient to file a suit.84 Eventually, a young Chicago

attorney named Rick Gutman took over the project. Gutman, a political activist and former

ACLU staff attorney, explained his involvement this way:

I’d rather have this than any other kind of case I can think of. I didn’t become a

lawyer to practice law as an end in itself. I became a lawyer because that was the

way I saw myself participating politically. . . . When I learned of this case, I

knew how important it was. A unit of government whose purpose is political

repression, that does nothing but target lawful political dissent–to me, that’s an

extremely important type of litigation. It’s something that affects all political

groups, everyone.85

The Alliance filed their class action complaint in November 1974, which was

consolidated with a similar complaint brought by the ACLU in 1975.86 The complaint alleged

that the Subversive Activities Unit and the FBI’s Chicago office engaged in

a continuing pattern and practice involving the following activities: (1)

surveillance and intelligence-gathering on individuals and organizations engaged

in lawful activities; (2) unlawful wire-tapping and other forms of electronic

surveillance; (3) unlawful entry and seizure; (4) dissemination of derogatory

information concerning plaintiffs; (5) summary punishment and harassment, and

(6) infiltration of private meetings and political organizations by informers and

provocateurs

82 Id. at 408. For a history of the Chicago Red Squad, see infra Part II(B).

83 SCHULTZ & SCHULTZ, supra note 32, at 408.

84 Laird v. Tatum, 408 U.S. 1 (1972).

85 SCHULTZ & SCHULTZ, supra note 32, at 409.

86 Chevigny, supra note 31, at 750. See also Complaint, ACLU v. City of Chicago, No. 75-3295 (N.D. Ill. filed Oct.

3, 1975).

and that those practices had a chilling affect on the plaintiffs’ exercise of their First Amendment

rights.87 After successfully defending an initial motion to dismiss—the decision for which relied

on Judge Edward Weinfield’s 1972 Handschu decision denying defendants’ motion to dismiss—

the plaintiffs forged ahead with discovery.

According to Gutman, the “first major breakthrough” in the case came in the spring of

1976, while discovery was halted pending Judge Lynch’s decision on defendant’s motion to

dismiss.88 As an attorney on a separate suit involving the Chicago Police Department, Rick

Gutman had obtained a payroll list of all Chicago police officers that listed officers “by name,

race, sex, disciplinary actions, unit, and assignment.”89 Gutman noticed that eight officers were

classified under “Assignment Unknown,” which he “thought was a little strange.”90 Upon

examining the names, he immediately recognized two of them as activists in Operation PUSH

and the Alliance.91 These purported activists were actually Red Squad police spies. Other spies

were found to be operating in the Organization for a Better Austin and the Citizens Action

Program, a “mainly white, lower-middle-class group trying to get people involved in issues like

housing and Social Security.”92 The infiltration of these groups was a huge tactical mistake by

the Red Squad, and it led to front page headlines in many Chicago newspapers.93 Particularly

important was the fact that the Squad had infiltrated mainly “white” groups. According to

Gutman: “When radical or Black groups are being spied on, the media really doesn’t care too

87 Alliance to End Repression v. City of Chicago, 561 F.Supp. 537, 540 (N.D. Ill. 1982).

88 SCHULTZ & SCHULTZ, supra note 32, at 410.

89 Id.

90 Id.

91 Id. at 410-11.

92 Id. at 411.

93 Id.

much. They think: ‘It’s probably good that the government watches them.’ But when it’s

mainly white mainstream-type groups, all hell breaks loose.”94

After these exposures, the City voluntarily abolished the Red Squad.95 However, this did

not stop the suit from moving forward. After the plaintiffs gained access to nearly all of the

files—which included the files of the named plaintiffs and all the class members—and the media

found out that the Red Squad had sought to infiltrate the plaintiffs’ legal team, the City became

more amendable to settling the case.96 Following nearly two years of arduous settlement

negotiations, the parties finally entered into an Agreed Order, Judgment and Decree on April 8,

1982. According to Gutman, settling the case “was a no-brainer. The most important factor was

that even if we were to win a trial, we would not obtain injunctive relief even one-quarter as

strong as the consent decree. It is a basic principal of law that a party can agree to an injunction

that goes beyond what is required by law.”97 Thus, by losing the battle of having nearly all of

the files exposed to the public, the City effectively lost the war of the case as well. By

embarrassing the City with public disclosure of the files, the plaintiffs were able to bring the

defendants to the negotiating table.

The Chicago decree states that “[n]o investigation shall be conducted for political,

religious or personal reasons. First Amendment information may be gathered only for valid

governmental purposes in accordance with this Judgment.”98 The decree applies “only to

94 Id. at 412.

95 Id.

96 The classes were defined as all individuals and organizations present or operating in Chicago

who engage or have engaged in lawful political, religious, educational or social activities and

who, as a result of these activities, have been within the last five years, are now, or hereafter may

be, subjected to or threatened by alleged infiltration, physical or verbal coercion, photographic,

electronic, or physical surveillance, summary punishment, harassment, or dossier collection,

maintenance, and dissemination by defendants or their agents.

Alliance to End Repression v. City of Chicago, 561 F.Supp. 537, 541 (N.D. Ill. 1982).

97 SCHULTZ & SCHULTZ, supra note 32, at 412. See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992).

98 Alliance, 561 F.Supp. at 560.

investigative activity that is directed toward First Amendment conduct,” and not to criminal

investigations that “merely [include] incidental references to [First Amendment] conduct.”99

The decree prohibits the City of Chicago from: (1) investigating a person “solely because of the

person’s First Amendment conduct, or selectively for political, religious, or personal reasons;”

(2) from disrupting, interfering with or harassing “any person because of the person’s First

Amendment conduct;” (3) from gathering “First Amendment information by intrusive methods . .

. or by illegal methods;” (4) from assisting any person in violating the Order; and (5) from

conducting “any investigation, or [maintaining] any file or file system, directed toward First

Amendment conduct.”100

While these prohibitions generally track those found in the Memphis decree, the Chicago

decree attempts to go further. The decree prohibits police from investigating First Amendment

activity in all but four classes of cases: criminal, dignitary protection, public gathering or

regulatory investigation.101 In those types of cases, the police may investigate First Amendment

activity to a limited extent, with each category subject to a litany of qualifications and standards

intended to ensure that investigation is as limited as possible.102 The most important such

qualification is that investigations must be based upon reasonable suspicion of criminal

activity.103 Such investigations also need the written approval of the Superintendent of Police,

setting out the factual basis for the investigation, within thirty days of the beginning of the

investigation.104 The decree also sets up a framework for periodic audits of the files by the

Superintendent of Police, the Police Board, and an independent auditing firm.105

99 Id. at 561.

100 Id. at 562-63.

101 Id. at 563.

102 See Chevigny, supra note 31, at 755-56.

103 Id.

104 Alliance, 561 F.Supp. at 563.

105 Id. at 568-69.

D. Other Remedies

The consent decrees obtained by the plaintiffs in the foregoing cases were not the only

ones of their kind, nor are consent decrees the only avenue available to curb police surveillance

practices. Though litigation produced some reform in cities like Los Angeles,106 Detroit,107 and

Philadelphia,108 administrative and legislative remedies were also successful in other places, with

varying degrees of efficacy.

In New Jersey, plaintiffs had filed suit in state court challenging the New Jersey State

Police practices of recording events “such as civil disturbances, riots, rallies, protests,

demonstrations, marches, confrontations, etc.”109 In denying the plaintiffs’ motion for summary

judgment, the New Jersey Supreme Court found that the plaintiffs “had failed to establish any

personal injury.”110 However, the Court did not dismiss the case out of hand, and the fear of an

adverse court ruling on remand led the State Police to adopt new intelligence gathering

policies.111 The policies, laid out in a new manual for the Central Security Unit (CSU), required

the CSU to maintain files only on “individuals and/or groups that pose an actual threat of

inciting violent confrontation.”112 The manual also “forbids the collection of data about an

individual ‘merely’ because of the individual’s race or political affiliation or because the

individual supports unpopular causes.”113 Though the Manual is only an administrative remedy

with no guarantee that it will not be altered or ignored, it nevertheless imposed constraints on

106 See Coalition Against Police Abuse v. Board of Police Comm’rs, No. 243-458 (L.A. County Ct. filed Dec. 16,

1982).

107 See Benkert v. Michigan State Police, No. 74-023-934-AZ (Wayne County Ct. filed July 18, 1974).

108 See Philadelphia Yearly Meeting of Religious Soc. of Friends v. Tate, No. 71-849 (E.D. PA) (filing date

unknown).

109 Chevigny, supra note 31, at 744 (internal quotations omitted).

110 Id.

111 Id. at 745.

112 Id. at 745-46 (quoting Department of Law and Public Safety Division of New Jersey State Police, New Jersey

State Police Central Security Unit Manual Delineating the Scope – Functions and Operations (released Feb. 10,

1976) [hereinafter “New Jersey Manual”]).

113 Id. at 746 (quoting New Jersey Manual).

political surveillance and curbed some of the practices about which the plaintiffs were

concerned.114

In Seattle, following the destruction of intelligence files in the aftermath of Watergate,

activists were able to convince the Seattle City Counsel to pass “an ordinance to control police

surveillance.”115 This legislative remedy is unique in political surveillance cases, and may be

due to Seattle’s relatively small size and cohesive nature.116 The ordinance prohibits surveillance

for purely political reasons, and provides that “[n]o person shall become the subject of the

collection of information on the account of a lawful exercise of a constitutional right or civil

liberty.”117 The ordinance also sets up an auditing mechanism to review intelligence files,

provides for limitations on the transfer of information to other intelligence agencies, and

provides a framework for collecting political information during a criminal investigation, all of

which mirror provisions found in the Alliance decree that became effective only months later.118

In fact, the ordinance goes one step further than the consent decrees discussed above by holding

the City civilly liable for damages based on violations of the ordinance, though it stops short of

holding offending officers individually liable.119

IV. 1990S AND 2000S: MODIFICATION OF THE CONSENT DECREES

The foregoing consent decrees in Memphis, New York City and Chicago marked a

change in how police engaged in political surveillance in those cities. The Handschu Guidelines

and the Alliance decree imposed significant restraints on local police departments, and forced

them to have legitimate reasons—based on imminent criminal activity—before engaging in

114 Id.

115 Id. at 778.

116 Id.

117 Id., quoting SEATTLE, WASH. MUN. CODE §14.12.020(A) (1980), available at

http://clerk.ci.seattle.wa.us/~public/code1.htm (last visited April 25, 2008).

118 See Chevigny, supra note 31, at 779-81.

119 Id. at 780.

surveillance of political speech. Not surprisingly, police departments largely did not appreciate

having their tactics questioned, and the parameters of both decrees were heavily litigated after

their promulgation.120 In the late 1990s and early 2000s, however, defendants in both cases

changed tactics. Instead of seeking to define the parameters of the decrees, the defendants began

seeking radical changes to the decrees based on changing circumstances. These efforts were

ultimately successful in both cases, and they drastically undermined the efficacy of the consent

decrees.

A. Alliance

In 1997, the City of Chicago moved to modify the Alliance consent decree under Federal

Rule of Procedure 60(b).121 The City argued that the decree, as written, placed “significant

burdens . . . on it's [sic] ability to serve and protect Chicago citizens,” and that activities

prohibited by the decree amounted to bad public policy. 122

District Judge Ann Williams denied the motion, adopting the recommendation of

Magistrate Judge Edward Bobrick.123 In doing so, Judge Williams found that neither the state of

the law nor the factual circumstances surrounding the case had sufficiently changed to justify

modifying the decree.124 Judge Williams also dismissed the City’s policy concerns, pointing out

“that much of the City’s policy argument is based upon a misinterpretation of the consent

decree,” and that many of the activities the City claimed were prohibited by the decree were

actually allowed. 125 Though she denied the motion to modify, Judge Williams allowed each

party to submit a motion for interpretation of the decree.126 However, the court refused to

120 Interview with Franklin Siegel, supra note 62.

121 Alliance to End Repression v. City of Chicago, 66 F.Supp.2d 899, 903 (N.D. Ill. 1999).

122 Id. at 912.

123 Id. at 899.

124 Id.

125 Id. at 911-12.

126 Id. at 913.

answer the “thirteen interrogatories that call for sweeping interpretations of the consent decree”

later submitted by the City, on the ground that they involved hypothetical situations and the court

“cannot be in the business of issuing hypothetical answers.”127

The City appealed the denial of its motion to the Seventh Circuit Court of Appeals. On

January 11, 2001, Judge Richard Posner agreed to modify the consent decree by removing the

“reasonable suspicion” requirements necessary to begin an investigation that implicates First

Amendment activity.128 The court saw the Red Squad as an historical relic, stating that “[t]he era

in which the Red Squad flourished is history, along with the Red Squad itself.”129 The court also

doubted whether “[m]ere compliance with a decree over a period of years . . . does not justify the

lifting of the decree.”130 Essentially, however, the court’s reasoning focused on the fear of

terrorism. Unlike the historical Red Squad,

[t]oday the concern, prudent and not paranoid, is with ideologically motivated

terrorism. The City does not want to resurrect the Red Squad. It wants to be able

to keep tabs on incipient terrorist groups. New groups of political extremists,

believers in and advocates of violence, form daily around the world. If one forms

in or migrates to Chicago, the decree renders the police helpless to do anything to

protect the public against the day when the group decides to commit a terrorist

act. Until the group goes beyond the advocacy of violence and begins preparatory

actions that might create reasonable suspicion of imminent criminal activity, the

hands of the police are tied.131

Contrary to the court’s implication that the decree remains effective because it “will leave the

Chicago police under considerably greater constraints than the police forces of other cities,”132

removal of the “reasonable suspicion” standard removes virtually all the teeth from the Chicago

decree. Without the “reasonable suspicion” requirement, the police will find it much easier to

127 Alliance to End Repression v. City of Chicago, No. 74-3268, 2000 WL 709485, at *1 (N.D. Ill 2000) (not

reported in F.Supp.2d).

128 Alliance to End Repression v. City of Chicago, 237 F.3d 799 (7th Cir. 2001).

129 Id. at 801.

130 Id.

131 Id. at 802.

132 Id.

return to Red Squad-like conduct. There remain precious few legal checks on police surveillance

power following this modification.

B. Handschu

On September 11, 2001, New York City and the rest of the country were rocked by

unprecedented acts of terrorism. Approximately eighteen months after these events, both parties

to the Handschu case began thinking “that the unprecedented emergence of terrorism and its

attendant dangers might require reconsideration of the Handschu Guidelines.”133 According to

Franklin Siegel, plaintiffs’ counsel wrote to the City after September 11 to discuss how those

events would shape the Handschu Guidelines.134 One of the class counsel, Jethro Eisenstein,

wrote to defendants’ counsel—Michael A. Cardozo, the Corporation Counsel of the City of New

York—offering to discuss the Guidelines, stating that “terrible things have happened, we believe

that Handschu continues to be an important protection of civil liberties, we stand ready to discuss

with you the continued viability of the Handschu agreement.”135 But instead of discussing

modification with the class counsel, the NYPD moved for an order modifying Guidelines under

Federal Rule of Civil Procedure 60(b).136

The basis for the NYPD’s motion was explained by David Cohen, the NYPD’s Deputy

Commissioner for Intelligence.137 Cohen, a career CIA official,138 testified that “[t]he continued

enforcement of the Guidelines is no longer consistent with the public interest because they limit

the effective investigation of terrorism and prevent cooperation with federal and state law

133 Handschu v. Special Servs. Div., 273 F.Supp.2d 327, 333 (S.D.N.Y. 2003).

134 Interview with Franklin Siegel, supra note 62.

135 Handschu, 273 F.Supp.2d at 333. See also Interview with Franklin Siegel, supra note 62.

136 Handschu, 273 F.Supp.2d at 329.

137 Id. at 333.

138 Id. at 337. Before becoming Deputy Commissioner for Intelligence, Cohen served as Deputy Director for

Operations and Deputy Director of the CIA’s Directorate of Intelligence. Id.

enforcement agencies in the development of intelligence.”139 In order to better combat terrorism,

the NYPD proposed modifications to the Handschu Guidelines. Most significantly, the NYPD

requested that the “criminal activity requirement” of the Guidelines be completely deleted,

making the Authority’s sole function to review records and decide if a violation had occurred.140

Cohen stated that the criminal activity requirement “may effectively shield from discovery the

lawful preparatory activities which invariably precede terrorist attacks.”141 The NYPD also

proposed drastically altering the Guideline’s prohibitions on the dissemination of records and

sharing of information by completely deleting sections six through nine of the Guidelines.142

Despite plaintiffs’ assertions that “[t]he Handschu Guidelines do not restrict the

investigation and prevention of terrorism” and that “[t]he Guidelines would not have interfered

with investigation of the September 11th hijackers because they were involved in no protected

political activity,”143 District Judge Haight granted all of the NYPD’s requested modifications.144

Judge Haight found significant factual changes since the Guidelines were enacted, noting that

“[t]here is no disputing Deputy Commissioner Cohen’s assertion that since the formulation of the

Handschu Guidelines in 1985, the world has undergone remarkable changes . . . in terms of new

threats we face.”145 Based on these new threats, Judge Haight determined that the Guidelines

needed modification.146 Judge Haight’s opinion was heavily influenced by Deputy

Commissioner Cohen’s testimony, and noted that “[c]lass counsel offer no evidence . . . to rebut

139 Id. at 333.

140 Jerrold Steigman, Note, Reversing Reform: The Handschu Settlement in post-September 11 New York City, 11 J.

L. & POL’Y 745, 767 (2003).

141 Handschu, 273 F.Supp.2d at 339.

142 Id. at 335.

143 Id. at 338.

144 Id. at 349.

145 Id. at 337 (internal quotations omitted).

146 Id. at 340.

[Cohen’s] testimony that the Handschu Guidelines . . . severely handicap police efforts to gather

and utilize information about potential terrorist activity.”147

After all of the defendants’ requested modifications were granted, questions remain about

the efficacy of the modified Handschu Guidelines. It is clear that the “criminal activity

requirement” was an important legal roadblock that inhibited unwarranted police surveillance.

The deletion of this important requirement could be seen as heralding a new era of political

surveillance. However, the Guidelines can also be understood as transcending their mere words.

Due to revelations about police spying and misconduct in other cities, societal changes in how

people believe the police should operate, and the fact that the Handschu Guidelines as so wellknown,

it is possible that a system offering lower First Amendment protection in theory might

offer the same amount of protection in practice. Because the boundaries of the modified

Handschu Guidelines are still being tested and litigated by both parties, the lasting effects of the

modifications remain to be seen.

V. AMERICAN FRIENDS SERVICE COMMITTEE V. CITY AND COUNTY OF DENVER

The foregoing litigation shaped, in many ways, the trajectory of the only new class action

lawsuit challenging police surveillance practices in the past fifteen years. Unlike the cases

discussed above, all of which were first brought in the 1970s, the City of Denver’s police

surveillance practices were not challenged until 2003. This case provides an interesting study of

current police surveillance practices for a number of reasons. First, this case is unique in its

recency. Because it is the only such case brought in recent years, most of the documents

produced during the litigation are publicly available, which greatly increases the chances of

getting the “entire story.” Second, this case’s recency makes it the only case that has been

influenced not only by the seminal cases discussed above—Handschu and Alliance—but also

147 Id. at 340.

from their recent modifications. As such, this case presents a more complete picture of what

police surveillance cases could look like today. Thus, it will be useful to examine how this case

came about, how it was resolved, and its overall impact on police surveillance within Colorado

and without.

Early in 2002, the ACLU of Colorado received a series of documents in discovery in an

unrelated case.148 According to Mark Silverstein, Legal Director of the ACLU of Colorado and

lead counsel on the case, the documents “were disclosed by another party, probably by

mistake.”149 Included in these documents were a handful of files purporting to be from the

Intelligence Bureau of the DPD.150 The files showed that the DPD had been monitoring and

recording information about the First Amendment practices of individuals and groups in the

Denver area. For instance, included in the files was information about individuals’ membership

in the American Friends Service Committee, participation in protests against the International

Monetary Fund and the World Bank in Washington, D.C., membership in End the Politics of

Cruelty (a Denver human rights group), and “license numbers and descriptions of vehicles used

by individuals identified as participants in peaceful protest activities.”151

Based on this information, the ACLU held a press conference on March 11, 2002,

disclosing the existence of the documents. The ACLU “contended that the Denver Police

Department has inappropriately smeared the reputations of peaceful advocates of nonviolent

148 Declaration of Mark Silverstein at 5, American Friends Serv. Comm. v. City and County of Denver, No. 02-740

(D. Colo. Sept. 24, 2003).

149 Telephone Interview with Mark Silverstein, Legal Director, ACLU of Colorado (March 7, 2008).

150 According to current Denver Mayor John Hickenlooper, the Intelligence Bureau was created “in 1953 to monitor

certain activities including organized crime, activity by the criminal element, individuals in groups of special interest

regarding the safety of the public, dignitary protection, the background investigation of police applicants, and the

arrest of outstanding fugitives.” Press Release, Mayor John Hickenlooper, June 17 2004. Unless otherwise noted,

all litigation documents are available at http://www.aclu-co.org/spyfiles/chronology.htm (last visited April 25,

2008).

151 Complaint, American Friends Serv. Comm. v. City and County of Denver, No. 02-2993 (Colo. Dist. Ct. March

28, 2002).

social change” and that the DPD had “branded several local organizations with the label

‘criminal extremist,’ including the American Friends Service Committee; the Chiapas Coalition,

and End the Politics of Cruelty.”152 Additionally, Mark Silverstein sent a letter to Denver Mayor

Wellington Webb on behalf of the ACLU, asking him to take steps to immediately halt the

“surveillance and monitoring of peaceful protest activity and prohibit police from keeping files

on the views and expressive activities of peaceful activist organizations,” and to compel the DPD

to release all the files to the public.153

Mayor Webb responded in a press release two days later, acknowledging that the

Intelligence Bureau of the DPD had compiled records on roughly 200 organizations and over

3200 individuals.154 Mayor Webb recognized that the “the issues that have been raised both by

the ACLU as well as others are legitimate,” and that some of the files had been improperly

collected.155 Instead of releasing the files to the public, Mayor Webb suggested purging all

improperly collected files and simply notifying the subjects of the files that a file had existed on

them, and that it had been destroyed.156 At the press conference, Mayor Webb also handed out

copies of the City’s then-current written policy on intelligence gathering. The policy stated that

the DPD “shall only collect and maintain criminal intelligence information concerning an

individual if there is ‘reasonable suspicion’ that the individual is involved in criminal conduct or

activity and the information is relevant to that criminal conduct or activity.”157 Mayor Webb

152 Press Release, ACLU of Colorado, ACLU Calls for Denver Police to Stop Keeping Files on Peaceful Protesters

(March 11, 2002).

153 Letter from Mark Silverstein, Legal Director, ACLU of Colorado, to Wellington Webb, Mayor, City and County

of Denver (March 11, 2002).

154 Press Release, Mayor Wellington Webb (March 13, 2002).

155 Id. Mayor Webb stated that “No information about political, religious or social views, associations, or activities

should be collected unless the information relates to criminal activity and the subject is suspected of criminal

activity.” Id. Mayor Webb also invoked his experiences as a civil rights protestor in the 1970s to empathize with

current subjects of police surveillance. Id.

156 Id.

157 Denver Police Department Intelligence Systems Information (date unknown).

blamed the creation and maintenance of the improperly collected files on an overly broad

interpretation of that policy.158

Worried that the City would begin destroying the “Spy Files,” as they came to be

known,159 Mr. Silverstein wrote to Denver Police Chief Gerald Whitman on March 25, 2002,

asking him to disclose large amounts of information on the Spy Files under the Colorado Open

Records Act and the Colorado Criminal Justice Records Act.160 Specifically, in addition to

requesting the files on all 208 organizations Mayor Webb stated appear in the files, the ACLU

requested the files on specific individuals161 and any files or information regarding how the files

were kept and used.162 Unsurprisingly, the DPD refused to produce any of the documents

requested by the ACLU.163

While Mark Silverstein was asking Mayor Webb and Police Chief Whitman to disclose

the existence of the files, the ACLU was simultaneously preparing to file a lawsuit to stop the

police practices that led to the files’ creation. Working in close connection with others at the

ACLU164 and Lino Lipinsky, an attorney at the firm of McKenna Long & Aldridge who became

the lead private attorney on the case,165 Mr. Silverstein eventually settled on six named plaintiffs:

158 Press Release, Mayor Wellington Webb, supra note 154.

159 According to Mr. Silverstein, the name “Spy Files” was coined “by some editor at the Rocky Mountain News or

the Denver Post” and the name just stuck. Interview with Mark Silverstein, supra note 149.

160 Letter from Mark Silverstein, Legal Director, ACLU of Colorado, to Gerald Whitman, Chief of Police, Denver

Police Department (March 25, 2002).

161 Those individuals were Glenn Morris, Mark Cohen, Barbara Cohen and LeRoy Lemos, whose names appeared in

the original files disclosed to the ACLU. Id.

162 Id.

163 Letter from Capt. John Weber, Denver Police Department, to Mark Silverstein, Legal Director, ACLU of

Colorado (March 29, 2002).

164 In addition to consulting Vince DeGarlais, the chair of the national ACLU Legal Panel, and David Miller, the

former legal director of the ACLU of Colorado, plaintiffs’ counsel also consulted Harvey Grossman, Legal Director

of the ACLU in Chicago who had litigated Alliance, and David Rudovsky, a civil rights attorney who had litigated

many of the police surveillance cases in Philadelphia and is the co-author of a treatise, Police Misconduct Law and

Litigation. Declaration of Mark Silverstein, supra note 148, at 8.

165 Mr. Lipinsky got involved in the case after “Mark Silverstein, the Legal Director of the Colorado ACLU,

contacted [him] in [his] capacity as an ACLU volunteer cooperating attorney after obtaining copies of what

appeared to be police intelligence files.” Telephone Interview with Lino Lipinsky, McKenna Long & Aldridge

(March 5, 2008).

three organizations and three individuals. The plaintiffs were chosen based on their appearance

in the files which were inadvertently disclosed to the ACLU in 2002. According to Mr.

Lipinsky, “Mark Silverstein contacted the individuals and the groups identified in the initial

intelligence files Mark had obtained. The named plaintiffs were the individuals and groups that

consented to join the lawsuit.”166

The American Friends Service Committee (AFSC) is a well-known, not-for-profit

Quaker organization founded in 1672 that advocates nonviolent social change and won the Nobel

Peace Prize in 1947.167 According to Mr. Lipinsky:

I thought it was a good idea for the case to be known by the name of a Nobel

Peace Prize winner. It is difficult to present any good faith argument that the

American Friends Service Committee is a “criminal extremist” group, or that its

activities warrant governmental surveillance. Furthermore, the American

Friends Service Committee had historically been a target of police surveillance,

primarily due to its assistance to individuals who sought to avoid induction into

the military.168

Another named plaintiff, Sister Antonia Anthony, is a Franciscan nun who has been a member of

the Sisters of Saint Francis of Penance and Christian Charity since 1956. She has worked in

ministries in the United States and Mexico for the last twenty-five years and is active with

another named plaintiff, the Chiapas Coalition.169 The Chiapas Coalition “is a Denver-based

organization that conducts education and advocacy activities in support of the human rights

struggle of indigenous persons in the Mexican state of Chiapas.”170 The last organizational

plaintiff was End the Politics of Cruelty, a Denver human rights organization. Also named were

166 Id.

167 Complaint at 3, American Friends Serv. Comm. v. City and County of Denver, No. 02-2993 (Colo. Dist. Ct.

March 28, 2002).

168 Interview with Lino Lipinsky, supra note 165.

169 Complaint at 3, American Friends Serv. Comm, No. 02-2993.

170 Id.

Stephan and Vicki Nash, a Denver couple who “frequently participate in peaceful education and

advocacy activities.”171

On March 28, 2002, the plaintiffs filed their complaint in state court against the City and

County of Denver,172 which was quickly removed to federal court.173 In their complaint, the

plaintiffs alleged that the DPD maintained a custom and practice of “monitoring the peaceful

protest activities of Denver-area residents; maintaining files . . . on the expressive activities of

law-abiding individuals and advocacy organizations . . . and providing copies of certain Spy

Files to third parties.”174 Additionally, the plaintiffs claimed that the files contained false and

derogatory information about them.175 For instance, the AFSC’s file labels them as “criminal

extremist.”176 The Chiapas Coalition’s file also labels them as “criminal extremist,” and state

that the group conducted demonstrations outside the Mexican Embassy in Denver, when no such

Embassy in Denver exists.177

The plaintiffs filed their suit as a class action under Rules 23(a) and 23(b)(2) of the

Colorado Rules of Civil Procedure, defining the class as “all organizations and all past, current,

and future Denver residents and visitors who engage in or have engaged in peaceful political,

religious, educational, social or expressive activities, and who, as a result of these activities, have

been, are now, or will become, targets of surveillance by the Department or the subjects of the

Department’s Spy Files.”178 In their complaint, the plaintiffs set out four claims for relief. The

first was a civil rights claim under 42 U.S.C. §1983, arguing that the practices of the DPD

171 Id.

172 See id.

173 See Docket, American Friends Serv. Comm. v. City and County of Denver, No. 02-740 (D. Colo. filed April 16,

2002) (on file with author).

174 Complaint at 2, American Friends Serv. Comm, No. 02-2993.

175 Id. at 5-6.

176 Id.

177 Id.

178 Id. at 10.

infringed and diminished “plaintiffs’ ability to enjoy and exercise fully and freely their rights”

under the First and Fourteenth Amendments.179 The plaintiffs asked for declaratory and

injunctive relief, including the expungement of the Spy Files.180 The plaintiffs’ second claim for

relief was a similar civil rights claim under the Colorado Constitution.181 Their third claim was

another §1983 claim, arguing that the DPD surveillance violated the requirements of 28 C.F.R.

Part 23, a federal regulation that allows intelligence databases that operate with federal money to

collect information on individuals “only if there is a reasonable suspicion that the individual is

involved in criminal conduct or activity and the information is relevant to that criminal conduct

or activity.”182 The plaintiffs’ final claim argued that the City was in breach of its written policy

on intelligence gathering, and that the breach posed “an imminent threat of infringing, interfering

with, and diminishing Plaintiffs’ ability to enjoy and to exercise fully and freely their

constitutional rights and their privacy.”183 While Mr. Silverstein and Mr. Lipinsky believed they

had a triable case, they “were always concerned about the strength of [their] legal claims.”184

Shortly before the plaintiffs’ filed their complaint, Mayor Webb hired three former state

judges—Judge Roger Cisneros, Judge Jean Dubofsky, and Judge William Meyer—to review the

Spy Files and to make recommendations.185 After issuing a draft of a proposed revised policy

and conducting an open hearing to hear comments from the public, the judges issued their final

report in late June 2002.186 The panel recommended that all information on the 208 groups and

179 Id.

180 Id.

181 Id. at 11. Specifically, the plaintiffs’ alleged violations of Article II, sections 3, 7, 10, 24, and 25 (which protect

essentially the same rights as the First Amendment).

182 Id.

183 Id. at 11-12.

184 Interview with Lino Lipinsky, supra note 165.

185 Judge Roger Cisneros and Judge William Meyer are retired Denver District Court judges; Judge Jean Dubofsky

is a retired Colorado Supreme Court Justice.

186 Roger Cisneros, William Meyer & Jean Dubofsky, Report of Panel Appointed to Review Denver Police

Department Policies for Collection and Retention of Criminal Intelligence Information (June 28, 2002).

over 3200 individuals be removed from the files, and that information be re-added to the files

only if there existed “a reasonable suspicion of current criminal activity.”187 The panel proposed

that the files not be disclosed to the public, but that a sixty-day period be instituted for groups

and individuals to examine their files; at the end of the sixty-day period, the files would be

destroyed.188 Mayor Webb adopted all of the recommendations of the three-judge panel, except

regarding the destruction of the Spy Files.

In August 2002, the City announced that it would begin limited disclosure of the files for

two months, beginning in September.189 However, instead of notifying groups and individuals

that they had been subjects of surveillance, the City required people to come down to the police

station in person and find out if a file existed on them. The system was very cumbersome and

according to Mr. Lipinsky, “the Denver Police Department was not prepared for the significant

number of individuals who appeared at Police Headquarters to review their files. People waited

hours to obtain a copy of their file.”190 The ACLU was able to obtain many additional files by

asking these people for copies of their files.191 After discovering more Spy Files in early

September, the City extended the time that the files would be available for review, and

announced that it would begin to allow individuals to request their files by mail.192

While limited disclosure of the Spy Files was going on, the plaintiffs’ class action suit

continued. In April 2002, the City moved to dismiss the plaintiffs’ case, arguing that Mayor

187 Id. at 5.

188 Id. at 6.

189 American Civil Liberties Union of Colorado, Chronology of Spy Files Controversy, http://www.acluco.

org/spyfiles/chronology.htm (last visited Sept. 14, 2008).

190 Interview with Lino Lipinsky, supra note 165.

191 Id.

192 Press Release, Denver Police Department (Sept. 16, 2002). Individuals could only request their files by mail if

the requests were accompanied by a notarized affidavit. Id.

Webb’s March 13 press release completely resolved the plaintiffs’ issues.193 The City also

argued, based on Laird v. Tatum, that the plaintiffs did not have standing to challenge the

creation and maintenance of the Spy Files.194 Plaintiffs’ counsel, in their response to the motion

to dismiss, argued that the “[p]laintiffs have standing to seek redress for the practices alleged in

the Complaint,”195 and that “the City’s mantra of ‘trust us’ does not render this case moot.”196

District Judge Edward Nottingham, to whom the case was assigned, denied the motion to dismiss

in a one-page order, allowing discovery to continue.197 However, discovery was somewhat

hampered by Magistrate Judge Craig Shaffer’s order of July 12, 2002, which allowed either party

to categorize virtually any information or file as “Confidential Information.”198 Both parties

were forbidden from disclosing such information to the public or members of the media. The

City chose to classify all the files that had not been turned over to individuals as confidential.199

It was that confidentiality order that prompted the plaintiffs to undertake a strategy that

eventually proved successful: they began pressing the issue of the Spy Files in the media. This

strategy evolved in discussions with both the named plaintiffs and other members of the class, as

well as counsels’ own feelings about the strength of their legal claims. In a way, the

confidentiality order only catalyzed a strategy that had been with plaintiffs’ counsel since the

beginning of the case: “We knew that a successful resolution of the ‘Spy Files’ controversy

required a legal, political, and media approach.”200 According to Mr. Lipinsky, using the media

193 Plaintiffs’ Response to Motion to Dismiss at 2, American Friends Serv. Comm. v. City and County of Denver,

No. 02-740 (D. Colo. June 11 2002).

194 Id. at 8.

195 Id.

196 Id. at 13.

197 Order Denying Motion to Dismiss, American Friends Serv. Comm., No. 02-740 (Oct. 21, 2002).

198 Stipulation and Protective Order, American Friends Serv. Comm., No. 02-740 (July 12, 2002).

199 See http://www.aclu-co.org/spyfiles/chronology.htm (last visited April 25, 2008).

200 Interview with Lino Lipinsky, supra note 165.

to embarrass the City was part of a strategy “to bring [the City] back to the negotiating table.”201

Additionally, using the media allowed plaintiffs’ counsel to strengthen an otherwise weak legal

theory.

Plaintiffs and other activists began bringing up the Spy Files issue in city counsel

meetings. Others pressed local newspapers to write articles about the Spy Files, which resulted

in several high-profile articles appearing in the Denver Post and the Rocky Mountain News in

late 2002.202 Activists also began posing questions about the Spy Files to candidates in the

upcoming mayoral election, including Denver Auditor Don Mares, and Ari Zavaras, a former

chief of the Denver Police. The Denver Post also moved to intervene as a party in the case for

the purpose of challenging the City’s designation of many of the Spy Files as confidential.203

Specifically, the Denver Post asked Judge Shaffer to remove from the confidentiality order (1)

all DPD intelligence files, (2) all deposition testimony, (3) all other documents that refer to the

intelligence files’ contents, and (4) “all other documents that discuss city policies regarding the

collection and maintenance of the intelligence files.”204

The strategy of going to the media proved to be a successful one, and in early 2003 the

City began to seriously discuss settling the case. While the public pressure to settle the case was

what brought the City back to the negotiation table, Magistrate Judge Craig Shaffer also played a

critical role in settling the case. According to Mr. Lipinsky:

Magistrate Judge Shaffer was instrumental in settling the case. On at least two

occasions, the Magistrate Judge adjourned the settlement conference in the

United States District Courthouse at 5:00 p.m. to allow the Court’s security

personnel to go home, and reconvened the mediation session at my office, two

201 Id.

202 See American Civil Liberties Union of Colorado, Chronology of Spy Files Controversy, http://www.acluco.

org/spyfiles/chronology.htm (last visited Sept. 14, 2008).

203 Motion to Intervene for the Limited Purpose of Challenging Defendant’s Designation of Certain Discovery

Materials as “Confidential Information”, American Friends Serv. Comm., No. 02-740 (Dec. 24, 2002).

204 Id. at 3.

blocks away. The Magistrate Judge practiced “shuttle diplomacy” to bring the

two sides together. Without the intervention of a dedicated neutral, the chances

of settling the case during the Webb administration would undoubtedly have

been diminished.205

After months of negotiations and late-night sessions with Judge Shaffer, the parties reached a

settlement agreement on April 17, 2003. The settlement became effective with Judge

Nottingham’s approval on May 7, 2003.206

The settlement agreement has three critical sections. First, the agreement states that the

City agrees to adopt and implement revised Policy 118.03 by adding it to the DPD Operations

Manual.207 Policy 118.03, which was attached as Exhibit 1 to the settlement agreement, is

entitled “Criminal Intelligence Information” and governs the collection and maintenance of

intelligence.208 At the heart of the policy is a prohibition on collecting or maintaining

intelligence information on an individual or organization, unless “there is reasonable suspicion

that the individual or organization is involved in criminal conduct or activity.”209 Reasonable

suspicion is further defined as being “present when sufficient facts are established to give a

trained law enforcement officer . . . a particularized and objective basis to believe that there is a

reasonable possibility than an individual or organization is involved in a definable criminal

enterprise or activity.”210

Policy 118.03 prohibits the DPD from collecting certain types of information, including

“information about the political, religious, social views, associations or activities or any

individual or any group, . . . unless such information directly relates to criminal conduct or

activity and there is a reasonable suspicion that the subject of the information is or may be

205 Interview with Lino Lipinsky, supra note 165.

206 Settlement Agreement, American Friends Serv. Comm., No. 02-740 (April 17, 2003).

207 Id. at para. 3.1

208 Exhibit 1, 118.03 Criminal Intelligence Information, American Friends Serv. Comm., No.02-740 (April 17,

2003).

209 Id. at 5-6 (para. 6(b)(1)).

210 Id. at 5 (para. 5(f)(1)).

involved in that criminal conduct.”211 The Policy also specifically prohibits the DPD from

basing intelligence on certain types of information, including because a person supports an

“unpopular cause,”212 because of a person’s “personal habits and/or predilections that do not

break any criminal laws,”213 and because “of involvement in expressive activity that takes the

form of non-violent civil disobedience that amounts, at most, to a misdemeanor offense.”214

Policy 118.03 also restricts the dissemination of intelligence information to other law

enforcement agencies215 and sets up a framework for independent auditing of the intelligence

files.216

The second important aspect of the settlement agreement deals with the review and final

disposition of the Spy Files. Within 30 days of the effective date of the agreement, the City was

required to purge the files to comply with Policy 118.03.217 For 90 days after the agreement, the

City was required to permit individuals and groups to request their files.218 After dismissal of the

suit, the City was left with sole discretion as to how to permanently dispose of the files. It was

not until June 2004 that new Denver Mayor John Hickenlooper announced that the Spy Files

would be permanently stored at the Denver Public Library.219 After being archived and indexed,

some of the files would be made available to the public, while other files would be closed to the

public for fifty years.220 The agreement sets up a framework to allow the plaintiffs to remove

211 Id. at 6 (para. 6(b)(2)).

212 Id. (para. 6(c)(1)).

213 Id. (para. 6(c)(4)).

214 Id. (para. 6(c)(5)).

215 Id. at 9-10 (para. 7).

216 Id. at 12 (para. 11).

217 Settlement Agreement at 2, American Friends Serv. Comm., No. 02-740 (April 17, 2003).

218 Id.

219 See Press Release, Mayor John Hickenlooper (June 17, 2004).

220 Id.

documents from the July 2002 confidentiality order, thereby making them available to the public

and the media.221

The third important aspect of the settlement agreement, in conjunction with Policy

118.03, sets up a system of independent, third-party audits of the DPD intelligence files.222

Policy 118.03 mandates that the files be audited quarterly for the first year, semi-annually for the

second and third years, and annually thereafter.223 The auditor, selected by the Mayor, must be

someone who is familiar with the policies and procedures of the auditing framework, and he/she

“shall have access to all Intelligence Bureau files and data necessary to perform the audit

function.”224 The plaintiffs were given the right to participate in the selection of the auditor for

two years following the date of the agreement, but not after.225

Overall, both the plaintiffs and plaintiffs’ counsel were happy with the settlement.226 One

of the plaintiffs’ primary goals during settlement was the preservation of the files themselves.

The City, viewing the maintenance of the files as an eyesore, was intent on destroying the files.

By preserving the files, Mr. Lipinsky and Mr. Silverstein hoped “to deter similar abuses in the

future.”227 This goal to preserve the files was based in part on the Alliance case, which “taught

[them] that the ‘Red Squad’ files compiled by the Chicago Police Department had been

preserved for the purpose of educating the public and minimizing the likelihood of similar

violations of civil liberties and civil rights in the future.”228 Plaintiffs’ counsel hoped that the

Spy Files could play a similar role in Denver. Though the settlement agreement itself gives the

221 Settlement Agreement at 3, American Friends Serv. Comm., No. 02-740 (April 17, 2003).

222 Id. at 4.

223 Exhibit 1 at 12, 118.03 Criminal Intelligence Information, American Friends Serv. Comm., No.02-740 (April 17,

2003).

224 Id.

225 Settlement Agreement at 4, American Friends Serv. Comm., No. 02-740 (April 17, 2003).

226 Interview with Lino Lipinsky, supra note 165.

227 Id.

228 Id.

City the ultimate authority to decide how to dispose of the files, by the time the agreement came

into effect there was immense public pressure on the City not to destroy the files. Additionally,

many of the mayoral candidates, including eventual winner John Hickenlooper, had promised to

preserve the files.229

Though the plaintiffs were generally happy with the agreement, it was not perfect. First,

the City was allowed to unilaterally alter or repeal most portions of Policy 118.03, so long as the

City gave notice to the plaintiffs if it planned on altering the policy within two years of the

settlement.230 Some of the more important aspects of the policy—mostly provisions prohibiting

the collection of information except upon reasonable suspicion of criminal activity—were to

remain unchanged for five years after the settlement.231 Those provisions expired in May 2008,

just in time for the Democratic Convention, held in Denver in August 2008.232 Second, while

Policy 118.03 provides a framework for informing individuals or groups if they become the

subjects of unauthorized police surveillance in the future, it contains no mechanism for

reprimanding officers who conduct such surveillance, or supervisors who approve it. This does

not create an incentive not to engage in unauthorized surveillance or much of an incentive not to

get caught.

VI. CONCLUSION

Each of the major police surveillance cases discussed above—Alliance, Handschu and

American Friends Service Committee—is unique in its own way, and each case was resolved

somewhat differently. However, they do share some similarities which are instructive in

thinking about political surveillance more generally.

229 Interview with Mark Silverstein, supra note 149.

230 Settlement Agreement at 1, American Friends Serv. Comm., No. 02-740 (April 17, 2003).

231 Id. at 2.

232 See http://www.denverconvention2008.com/ (last visited Sept. 14, 2008).

First, while each case is different, they all ended negotiated consent decrees. And while

the decrees are somewhat differently worded, each contains the same core elements: limitations

on the ability of police departments to conduct surveillance of First Amendment activity in the

absence of a suspicion of criminal activity, a mechanism for persons to discover if police have

been monitoring them, and a framework for reviewing and auditing intelligence files by a neutral

third party.

Second, each of these cases highlight an extra-judicial means for strengthening a

relatively weak legal argument. By using the media to embarrass local police departments, the

plaintiffs in these cases were able both to bring the defendants back to the negotiating table, and

ultimately to negotiate settlements that went far beyond the scope of any victory they could have

expected at trial. Because the surveillance in these cases went beyond radicals to more

mainstream political groups, the public did not appreciate the news that the police had been

spying on them. Once the surveillance was made public, citizens groups responded with anger

and resentment, so much so that cities and police departments felt pressure to abandon their

surveillance programs. Surely the next group of plaintiffs to challenge political surveillance will

utilize this tactic as well.

Police surveillance of First Amendment activity will certainly continue into the

foreseeable future. The scope of the substantive changes to the Handschu Guidelines and

Alliance decree is still being litigated, and it will likely be years before we can adequately assess

how effective those decrees still are. As portions of the American Friends decree expired in

August 2008—just in time for the Democratic National Convention—it remains to be seen

whether the DPD continued to follow the spirit of the decree, or whether it reverted back to prelitigation

behavior.

Caption Court Docket No. Date Counsel Reported Decisions

Abramovitz et al. v. James Ahern et al. District of CT 77-207 Filed 5/12/1977

John R. Williams, Williams, Wynn & Wise; Melvin L. Wulf, Clark, Wulf & Levine; Michael P. Koskoff;

Henry B. Hurvitz; Leon Friedman 96 F.R.D. 208

ACLU v. City of Chicago Northern District of IL 75-3295 Filed 10/3/1975 unknown none

Alliance to End Repression v. Chicago Northern District of IL 74-3268 Filed 11/13/1974

Edward J. Koziboski; Richard Gutman, Lawrence V. Jackowiak, Edward W. Feldman, Miller, Shakman

& Hamilton, Harvey M. Grossman, Roger Baldwin Foundation of ACLU, Inc., Roger S. Hutchinson,

407 F.Supp. 115; 75 F.R.D. 430; 75 F.R.D. 428; 75 F.R.D. 435; 75 F.R.D. 438; 75 F.R.D. 431; 75 F.R.D. 441; 565 F.2d 975; 91 F.R.D. 182;

561 F.Supp. 537; 561 F.Supp. 575; 733 F.2d 1187; 742 F.2d 1007; 1985 WL 3300; 627 F.Supp. 1044; 1986 WL 9762; 820 F.2d 873; 1989

WL 88237; 1989 WL 92030; 899 F.2d 582; 1990 WL 115571; 1991 WL 117915; 1991 WL 206056; 1992 WL 80527; 1992 WL 159495;

1992 WL 296388; 1994 WL 86690; 119 F.3d 472; 66 F.Supp.2d 899; 2000 WL 562480; 2000 WL 709485; 2000 WL 709482; 2000 WL

1368004; 2000 WL 1367999; 2000 WL 1947055; 2000 WL 1898594; 237 F.3d 799; 356 F.3d 767

American Friends Service Committee v. City and County of Denver District of CO 02-0740; 02-2993 Filed 3/28/2002 Gregory Wilson and Sandra Wick, McKenna & Cuneo LLP; Mark Silverstein (ACLU of Colorado) none

Anderson v. Sills New Jersey Superior Court unknown 1969

Morris Stern; L. Walter Finch, Muriel Finch; Frank Askin; Arthur D'Italia; Stephen M. Nagler, Melvin

Wulf and Eleanor Norton 106 N.J.Super. 545; 56 N.J. 210; 143 N.J.Super. 432

Aronson v. Giarrusso Eastern District of LA 29462 unknown George M. Strickler, Jr., Richard B. Sobol, 436 F.2d 955

Avirgon et al. v. Frank L. Rizzo Eastern District of PA 70-477 1970 unknown none

Bach v. Mitchell Western District of WI 71-22 unknown unknown none

Baldwin v. Quinn Northern District of OH C70-59 1972 unknown none

Ball v. Del Bello Southern District of NY 72-2112 1972 unknown none

Benkert v. Michigan State Police Wayne County Court 74-023-934-AZ unknown unknown none

Berlin Democratic Club v. Schlesinger District of DC 310-74 1974

John H. F. Shattuck, Melvin .l. Wulf, American Civil Liberties Union, David F. Addlestone, Lawyers

Military Defense Committee 410 F.Supp. 144 (Berlin Democratic Club v. Rumsfeld)

Cannon, Carter and Jones v. Davis Cal. Superior Court 978119 unknown unknown none

Chicago Lawyers' Committee for Civil Rights Under Law v. Chicago Northern District of IL 76-1982 1976 unknown none

Coalition Against Police Abuse v. Board of Police Comm'rs of L.A. L.A. County Court C 243-458 Filed 12/16/82 Joseph Lawrence, Paul L. Hoffman, Fred Okrand and Robert Lind none

Donohoe v. Duling Eastern District of VA 300-70-R 1970? Seymour DuBow, Robert Pustilnik and Samuel W. Tucker 330 F.Supp. 308; 465 F.2d 196

Dyketactics et al. v. Fencl Eastern District of PA 75-3641 1975 unknown none

Fifth Avenue Peace Parade v. Gray Southern District of NY 72-1439 1972

Arthur M. Handler; Donald D. Shack, Richard M. Resnik, Barry H. Mandel, New York City, and Burt

Neuborne, New York Civil Liberties Union 480 F.2d 326

Fowler v. Mery District of NM 71-1563 1971 Stephen T. Harvey; Donald Juneau and Spencer Smith; Willard F. Kitts 468 F.2d 242

Free Press et al. v. Frank L. Rizzo et al. Eastern District of PA 70-3175 1970 unknown none

Halperin v. Kissinger District of DC 1187-73 1973 Mark H. Lynch, Susan W. Shaffer, Alan B. Morrison 542 F.Supp.829; 578 F.Supp. 231; 807 F.2d 180; 723 F.Supp. 1535; 1991 WL 120167; 1992 WL 394503

Handschu et al. v. Special Serv. Div. et al. Southern District of NY 71-2203 Filed 5/18/71 Franklin Siegel (CCR), Chevigny, Stolar

349 F.Supp. 766; 605 F.Supp. 1384; 1985 WL 1366; 1985 WL 3538; 787 F.2d 828; 1989 WL 54153; 737 F.Supp. 1289; 1989 WL 82397;

131 F.R.D. 50; 2002 WL 31619035; 2003 WL 151974; 273 F.Supp.2d 327; 288 F.Supp.2d 404; 288 F.Supp.2d 410; 2003 WL 22019918;

2003 WL 21961367; 288 F.Supp.2d 411; 2003 WL 22245590; 2006 WL 1716919; 475 F.Supp.2d 331; 2007 WL 1711775

Hobson et al. v. Wilson et al. District of DC 76-1326 10/28/77

J.E. McNeil and Daniel Schember; Anne Pilsbury; Burton D. Weschsler, Urban Law Institute for

Antioch School of Law; Herbert Semmel 556 F.Supp. 1157; 737 F.2d 1; 646 F.Supp. 884

Holmes v. Church Southern District of NY 70-5691 1970 unknown none

It's About Time v. Seattle Police Dep't King County Court 830452 Filed 6/27/79 unknown See Seattle, Wash., Mun. Code ch. 14.12

Jabara v. Kelley Eastern District of MI 39065 unknown John Shattuck and Ronald Reosti 62 F.R.D. 424; 75 F.R.D. 475; 476 F.Supp. 561

Kendrick v. Chandler Western District of TN 76-449 Filed 10/10/76 unknown none

Kent State Vietnam Veterans Against The War v. Fyke Northern District of OH 72-1271 1972 unknown none

Kenyatta v. Kelley Eastern District of PA 71-2595 1971 David Rudovsky; John H. F. Shattuck, American Civil Liberties Union 430 F.Supp. 1328

Kinoy v. Mitchell Southern District of NY 70-5698 1970

Melvin Wulf, John Lowenthal, David Scribner, Morton Stavis, Herbert O. Reid, Sr., Arthur Kinoy, Ann

Garfinkle, Doris Peterson, James Reif, 331 F.Supp. 379; 67 F.R.D. 1

Kinoy v. Mitchell Southern District of NY 87-6047, 87-6119, 87-6137 1987 Henry F. Furst, Jeremiah Gutman, Michael Ratner 851 F.2d 591

Libby and Valdes v. Berlin Cal. Superior Court unknown unknown unknown none

Martin et al. v. Los Angeles Community College District et al. Superior Court of L.A. 25402 unknown unknown none

Myerson v. City of Los Angeles Cal. Superior Court unknown Filed 6/14/1977 R. Samuel Paz (ACLU) none

Philadelphia Resistance v. Insurance Co. of North America Eastern District of PA unknown unknown unknown none

Philadelphia Resistance v. Mitchell Eastern District of PA 71-1738 1971 David Rudovsky 63 F.R.D. 125; 58 F.R.D. 139

Philadelphia Yearly Meeting of Religious Soc. of Friends v. Tate Eastern District of PA 71-849 and 74-2222 1974 David Rudovsky 382 F.Supp. 547; 519 F.2d 1335

Pledge of Resistance v. We the People 200 Eastern District of PA 87-3975 1987 unknown none

Riggs v. City of Albuquerque District of NM 89-2006 1989 Philip B. Davis, American Civil Liberties Union of New Mexico 916 F.2d 582

Spanish Action Committee of Chicago v. City of Chicago Northern District of IL 84-2299; 85-1767 1984 Richard M. Gutman 766 F.2d 315; 811 F.2d 1129

Stern v. Richardson District of DC 179-73 1973 Ronald L. Plesser 367 F.Supp. 1316

United States v. United States District Court Eastern District of MI 70-153 (71-1105) 1970 Robert C. Mardian (CCR), William M. Kunstler, Hugh M. Davis, Jr, and Leonard I. Weinglass 444 F.2d 651; 407 US 297

Vietnam Veterans Against the War v. Caso Eastern District of NY unknown unknown unknown 10 Crim. L. Rep. 2152

White v. Davis Superior Court of L.A. L.A. 30348 unknown A. L. Wirin, Fred Okrand, John D. O'Loughlin and Jill Jakes 533 P.2d 222

Yaffe v. Powers District of MA 71-1269 1971

Matthew H. Feinberg, John Reinstein, Ronald F. Kehoe, C. Michael Malm, and Hausserman, Davison

& Shattuck 454 F.2d 1362

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