
    FIRST DEFENSE LEGAL AID, et al., Plaintiffs, v. CITY OF CHICAGO, et al., Defendants.
    No. 01 C 9671.
    United States District Court, N.D. Illinois, Eastern Division.
    July 18, 2002.
    See, also, 209 F. Supp.2d 934.
    Craig Benson Futterman, Mandel Legal Aid Clinic, Chicago, IL, Locke E. Bowman, Jean McCléan Snyder, MacArthur Justice Center, Chicago, IL, for plaintiffs.
    
      Daniel E. Reidy, June K. Ghezzi, Jason Graham Winchester, Jones, Day, Reavis & Pogue, Chicago, IL, Alec M. McAusland, Allen Duarte, City of Chicago, Assistant Corporation Counsel, Commercial & Policy Litigation Division, Chicago, IL, Sheri H. Mecklenburg, Scott J. Jebson, City of Chicago, Assistant Corporation Counsel, Individual Defense Litigation Division, Chicago, IL, Paul A. Castiglione, Louis R. Hegeman, Patrick T. Driscoll, Jr., Cook County State’s Attorney’s Office, Chicago, IL, for defendants.
   MEMORANDUM OPINION AND ORDER

SHADUR, Senior District Judge.

This lawsuit presents a collision between (l)'the lawyer plaintiffs — not-for-profit legal organization First Defense Legal Aid (“First Defense”) and two of its lawyer staff members — who seek to exercise their claimed First Amendment right to represent clients who are held by the police for interrogation purposes (with the police taking the position that the clients are witnesses in crime investigations, not suspects or targets) and (2) a gaggle of other lawyers who urge on behalf of their governmental clients — the City of Chicago (“City”), members of the top echelon in its police department (its Superintendent and four Area Commanders, collectively “Police Defendants”) and Cook County State’s Attorney Richard Devine — that law enforcement goals entitle them to keep the lawyer plaintiffs and their clients apart. Indeed, defense counsel are unabashed by the fact that their clients’ conduct — in addition to the refusal to permit the lawyer plaintiffs to see their clients when those lawyers arrive at the police station for that purpose' — -regularly involves nondisclosure to the clients of their lawyers’ presence, And the nature of that refusal is exacerbated by the facts that it is often accomplished via affirmative deception on that score, and that State’s Attorney Devine’s assistants have on occasion misrepresented the state of the law as the basis for instructing the police to bar plaintiffs’ access to their clients (just as his assistants handling this litigation have mischaracterized the state of the law before this Court).

Before this opinion turns to the critical constitutional issue, the context in which this litigation arises must be noted. Defense counsel persist in approaching the issue, not in a vacuum but rather in a sterile bubble that ignores the real world considerations that have triggered this lawsuit. In their universe the police are always meticulous in both understanding and implementing a bright line between noncustodial and custodial interrogation: Not only is that line always recognized and adhered to by the police, but every person who is interrogated and is still on the noncustodial side of that line is studiously informed of his or her freedom to leave. Essentially defense counsel say this:

Trust us — whenever an individual is in a police station being questioned, the police are always scrupulous about maintaining the distinction between a witness (who is free to leave) and a suspect or target (who is not). Because they always give people who are not just witnesses their Miranda rights, thus assuring them of their constitutional right to counsel, our police clients are free to refuse all access to counsel to those who are simply witnesses.

But the real world that the lawyer plaintiffs confront instead, as demonstrated by the evidentiary hearing on their motion for a temporary restraining order (“TRO”), gives the lie to that sanitized ideal. Instead the “witnesses” whom the police interrogate remain incommunicado in locked interrogation rooms (and sometimes in handcuffs) for extended periods, all the while being told that they don’t need lawyers (sometimes coupled with the police withholding from them the fact that lawyers have in fact appeared and are there to see them). Do defense counsel contend with a straight face that someone whose interrogation took place over a period of 78 hours (as testified to by one of the plaintiffs without contradiction) had really been given to understand during that protracted period that he was free to leave at any time?

Meanwhile the lawyers who appear at the police station to see their clients are expressly refused — are actually barred from — such access on the stated basis that such clients are just witnesses in an investigation. Yet in fact the evidence included testimony as to a situation in which such a “witness” — handcuffed to a chair, and having been at the police station for over 14 hours — called out of the station’s upstairs window, asking his wife (who was outside of the building with one of the plaintiffs) which person out there was his attorney and saying that he wanted an attorney— but the police officers still refused access to the lawyer. And the evidence further confirmed that such refusal of access is no random aberration, but rather a deliberately adopted and enforced policy.

This Court is disinclined to believe in the tooth fairy — to ignore the obvious reality that the climate in which plaintiffs seek to carry out their responsibilities to their Clients, as they contend the First Amendment entitles them to do, is not as defendants would portray it. And the obvious potential for abuse in that respect, which defense counsel resolutely ignore in their portrayals, should surely be understood as part of the matrix in which the key constitutional issue of the First Amendment rights of the lawyer plaintiffs is considered.

Now to consideration of defendants’ motions to dismiss the Complaint here. In that respect the familiar ground rule is that articulated in Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984):

A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

And although a brief in opposition to a motion to dismiss cannot of course take the place of a plaintiffs pleading requirements (Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir.1984) is the first of a number of Seventh Circuit opinions that set out that teaching), the evidence obtained during the TRO hearing can appropriately serve to illuminate the reading of the Complaint here through the Hishon lens (see, e.g., Jennings v. Emry, 910 F.2d 1434, 1436 n. 1 (7th Cir.1990)).

In this case the TRO hearing has indeed borne out a good deal of the matters alleged in Complaint Count I’s ¶¶ 22 and 23 (a photocopy of which paragraphs is attached to this opinion). Apart from Counts I and II, defense counsel’s most recent filings have made the point — quite legitimately — that this action has been narrowed in scope since its inception. Counts VII and VIII were dropped early on, and since then plaintiffs have voluntarily dismissed Counts III, IV and V, recognizing the standing difficulties that faced the constitutional claims that they had sought to assert on behalf of their clients (as contrasted with advancing their own claims in Counts I and II). But while plaintiffs’ lawyers have thus demonstrated their capacity to be educable, regrettably defense counsel have not.

Thus defense counsel (including those working for and representing State’s Attorney Devine, who surely ought to know better) persist in urging the impermissible notion that only one set of rights is protected by the First, Fifth and Sixth Amendments' — that if no claim exists under either the Fifth or the Sixth Amendment, ergo there is no viable claim under the First Amendment. Just which one or more law schools has or have failed in their educational task by enabling their graduates to emerge with such a bizarre understanding (more precisely, a lack of understanding) of the Constitution is unclear — but if any such law school does exist, it might have been expected that the graduates’ ongoing practice of law and their hoped-for reading of cases would have dispelled such a fundarhental misconception.

State’s Attorney Devine

Despite what has just been said, the submissions filed by State’s Attorney De-vine’s assistants on his behalf repeatedly argue that plaintiffs and their counsel, in urging that this case be viewed from a First Amendment perspective, are seeking to flout — to take an end run around- — ■ decisions that deal with the very different questions of the constitutional posture of lawyers’ clients in Fifth Amendment and Sixth Amendment terms. Thus the State’s Attorney’s responsive memorandum on the TRO motion characterizes plaintiffs’ invocation of their First Amendment rights as a “stalking horse” that somehow seeks to “overrule” caselaw that defines the rights of clients .under the Fifth and Sixth Amendments. That is the same false notion that, according to the uncontroverted TRO evidence, one of the State’s Attorney’s assistants used in refusing one of the lawyer plaintiffs any opportunity to confer with her client.

What the State’s Attorney’s counsel in this ease have succeeded in doing by that kind of insistence on a demonstrably unsound principle of constitutional law is to snatch potential defeat from the jaws of potential victory. If, as appears clear, their position is indeed that they will continue to give bad advice to the police and that they will continue to refuse all contact between plaintiffs and their clients on the strength (more accurately the weakness) of that same misunderstanding of fundamental law, they ought to be barred from so doing. And that 'is so even though they claim that the State’s Attorney has not been shown to violate the law on the premise that his earlier-referred-to assistant, in refusing to permit one of the plaintiffs to see her client, “only” relied on an Illinois Appellate Court ease (People v. DeSantis, 319 Ill.App.3d 795, 253 Ill.Dec. 227, 745 N.E.2d 1 (2000)) that dealt with a whofly different question under a wholly different constitutional provision. Even more importantly in terms of the sustainability of the Complaint, if there were any doubt as to whether that position represents the policy of the State’s Attorney (as contrast^ ed perhaps with the irresponsible act of a single assistant), it is totaUy dispeUed by the State’s Attorney’s repeated filings in this case that advance the same position.

It must be remembered that the joinder of the State’s Attorney as a defendant is predicated, as Complaint ¶ 17 makes plain, on his office’s responsibility “for advising the City of Chicago about its legal duties in connection faith people held for investigation at Chicago police stations.” On that score the State’s Attorney is the deci-sionmaker, and the advice that he and his assistants give must take into account the First Amendment right advanced by plaintiffs here, rather than perpetuating the office’s current less-than-specious position that relies exclusively on Fifth and Sixth Amendment considerations. In sum, the motion to dismiss filed by State’s Attorney Devine must be and is denied.

Other Defendants

As for the motions to dismiss filed by the other defendants, City’s counsel have signed onto and adopted the extensive submissions tendered by counsel for the police top brass — the Police Defendants. This opinion’s ensuing determinations as to Police Defendants’ motion should therefore be understood as equally applicable to City.

To begin with, Complaint Count II can be addressed in short order. Police Defendants’ Reply in Support of Their Motion To Dismiss has it right. Plaintiffs’ claim of deprivation of their right to “occupational liberty” fails, because the controlling caselaw rejects such a claim where only part and not all of a person’s calling or profession is foreclosed by a defendant’s conduct (see, e.g., Conn v. Gabbert, 526 U.S. 286, 291-92, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999), which distinguishes earlier caselaw based on that precise distinction). Here plaintiffs can concededly continue to represent their clients who are acknowledged by the police to be suspects or targets and who therefore possess their own constitutional rights to counsel. And plaintiffs’ further effort to extract a constitutionally protected property interest from various aspects of state law is unpersuasive. Count II is therefore dismissed.

That leaves only Count I for consideration. Police Defendants’ opening gun- — ■ which asserts a lack of standing on plaintiffs’ part based on the doctrine announced in the “ehokehold case” (Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)) — simply vanishes on examination. Although the principle articulated in that case could well bar a claim advanced by any client of plaintiffs for lack of the client’s inability to show the likelihood of recurrence of his or her own injury in the future, here the lawyer plaintiffs are regularly confronted by the police with the no-access-to-client policy about which they complain. And even though as previously stated- only the sufficiency of plaintiffs’ pleading is being tested at this point, this opinion has already observed that the TRO hearing evidence has confirmed that ongoing confrontation in cards and spades.

As for the substantive First Amendment right asserted by the lawyer plaintiffs, in part. Police Defendants commit the same conceptual error as State’s Attorney De-vine by pointing to Fifth Amendment case-law and by drawing from that caselaw the false conclusion that “Plaintiffs’ argument is directly contrary to established Supreme Court precedent regarding the right to counsel” (Police Defendants’. Mem. 13). . It is quite true that the application of a lawyer’s acknowledged First Amendment right (discussed later) has not been presented for judicial decision in the current context before now. But it must be remembered that this is not an action for damages that might trigger considerations of qualified immunity, but is rather one seeking injunctive relief to which such immunity does not extend (see, e.g., Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984), rejecting even the applicability of absolute judicial immunity where only injunctive relief is at issue). In summary, the argument sought to be drawn from any inapplicability of constitutional provisions other than the First Amendment fares no better coming from the Police Defendants than from the State’s Attorney- — -it is again rejected.

Nor are Police Defendants aided by their repeated arguments that walling off lawyers from their clients at the expense of the former’s First Amendment rights is necessary in the interests of law enforcement. Nearly four decades ago Escobedo v. Illinois, 378 U.S. 478, 490, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) admonished those who would urge a policy of law enforcement uber alies:

If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with the system.

This Court is secondary to none in its respect for law enforcement, but that horse will not carry the load that Police Defendants seek to make it bear. Plaintiffs’ exercise of their First Amendment rights meshes with and promotes their clients’ correlative rights under that same Amendment — and not incidentally, it also serves to protect their clients against the kind of pretextual applications of the principles that govern noncustodial interrogation that are regrettably suggested by the evidence during the TRO hearing, and that pose an obvious danger for the reasons expressed earlier in this opinion.

Just as a client’s “right to hire and consult an attorney is protected by the First Amendment’s guarantee of freedom of speech, association, and petition” (Denius v. Dunlap, 209 F.3d 944, 953-54 (7th Cir.2000)), so too the attorney has a First Amendment right to associate with the attorney’s clients to further what First Defense describes as its “organizational mission — the social goal of affording protection to indigents in police custody” (Plaintiffs’ Amended Response to Defendants’ Motions To Dismiss at 9). That right has been validated in NAACP v. Button, 371 U.S. 415, 430, 439, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963) and revalidated by In re Primus, 436 U.S. 412, 424, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978), and it is no less strong today.

Although Police Defendants seek to call Ukrainian-American Bar Ass’n v. Baker, 893 F.2d 1374 (D.C.Cir.1990) to their aid, its obvious limitations render it inapplicable to the lawyer plaintiffs’ rights here-— instead Ukrainian-American, id. at 1378, 1381 expressly confirmed the constitutional existence of lawyers’ First Amendment rights in those terms and confirmed the entitlement of lawyers to have access even to potential clients (let alone actual clients) “free from governmental interference.” Nor does Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498 (11th Cir.1992) bear on this case, for its special circumstances — involving aliens detained in government custody outside of the United States (id. at 1512-13) — render it wholly inapropos as a barrier to plaintiffs’ First Amendment claim.

In short, Police Defendants’ Motion 'To Dismiss Count I (and hence the piggyback motion of City) does not deserve a better fate than State’s Attorney Devine’s. It too is denied.

Conclusion

All defendants’ motions to dismiss Complaint Count I are denied, while the motion to dismiss Count II is granted. All defendants are ordered to answer -Count I (the Complaint’s sole surviving count) on or before August 1, 2002. In the-meantime, both because of what has been said in this opinion and because of the issuance of a brief contemporaneous memorandum order that denies plaintiffs’ motion for a TRO for the present, this action is set for a status hearing at 9:30 a.m. July 23, 2002. 
      
      . As always, this opinion adheres to the conventional and convenient (though technically imprecise) practice of referring to the underlying Bill of Rights provisions (which of course impose limitations only on the federal government) rather than to the Fourteenth Amendment (which applies to state actors and has- been construed to embody such Bill of Rights guaranties).
     
      
      . An overly generous assumption? It took this Court's law clerk all of five minutes to locate an example of the obvious proposition that while a case may fail to state a claim under two other provisions of the Bill of Rights (in that case the Fifth and Eighth Amendments), the case will still survive in terms of a First Amendment claim (Babcock v. White, 102 F.3d 267 (7th Cir.1996)).
     
      
      . It might be wondered whether State’s Attorney Devine himself would really advance the unsound contention that has been addressed here — but he has presumptively chosen his lawyers and, like the plaintiff in Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), he is stuck with them.
     
      
      . [Footnote by this Court] For this, purpose “held'' is not viewed in the technical sense as limited to custodial status. Instead it covers both custodial and noncustodial interrogation.
     
      
      . Indeed, it is truly disturbing to find those who are supposed to be our pillars of law enforcement urging that allowing people— those who are being asked to cooperate and to provide information- — to meet with their lawyers (retained for them by their family members) and be advised as to their legal rights represents an invariable threat to the interests of law enforcement, such as to justify a blanket prohibition against such meetings. And it is doubly disturbing to find defense counsel, who of course would not dream of seeing their clients deprived of their advice and representation, espousing that mindset with such vigor.
     