Police Torture and the Death Penalty in Illinois: Ten Years Later

By G. Flint Taylor

On January 11, 2003, the world watched as Illinois Governor George Ryan, days before leaving office, granted clemencies to all 163 men and women on death row in his state, reducing their sentences to life without parole. The previous day he had pardoned four death row prisoners—Madison Hobley, Aaron Patterson, Leroy Orange and Stanley Howard—all of whom had been tortured into giving false confessions by police officers working under notorious Chicago police commander Jon Burge.

“The category of horrors was hard to believe,” Ryan said at a press conference at DePaul University that day. “If I hadn’t reviewed the cases myself, I wouldn’t believe it.” He called the convictions “perfect examples of what is so terribly broken about our system.”

Ryan’s momentous actions were partly inspired by the case of Anthony Porter, who came within days of execution only to later be exonerated, thanks in large part to the work of journalism students at Northwestern University. Much credit has been awarded to their work in opening Ryan’s eyes—and rightly so. But Ryan’s actions were also the culmination of a long human rights struggle against the death penalty and police torture in Chicago. In the mid-1990’s, death row prisoners, community groups, political activists and public interest lawyers joined forces to unite these previously separate movements. After realizing that they were not alone in their horrific experiences at the hands of police, Burge torture victims facing execution formed the Death Row 10, and with the help of activist groups, such as the Campaign to End the Death Penalty, linked these two powerful issues. Along with the prisoners’ own descriptions of what happened, a series of devastating investigative reports by journalist John Conroy at the Chicago Reader shone light on the emerging mountain of evidence that Burge and his police confederates tortured more than 100 African-American suspects with a racist vengeance, using electric shock, suffocation with plastic bags, mock executions and brutal beatings. This evidence became a focal point for the merging of these important legal and political struggles.

In the year 2000, Governor Ryan, in response to this growing movement, declared an indefinite moratorium on executions. The same year, the Illinois Supreme Court recognized the significance of the newly uncovered torture evidence and ordered new hearings for several of the Death Row 10. Two years later, this evidence compelled the Cook County judiciary to appoint a special prosecutor to investigate whether Burge and his men had committed prosecutable crimes.

The release of the four pardoned torture survivors in 2003 marked the opening of yet another chapter in this human rights struggle. The men brought lawsuits against their torturers and the city of Chicago, opening a new avenue for proving that the torture they endured had been systemic. As a result, several former African-American detectives broke the Chicago Police Department’s code of silence and revealed that Burge’s torture ring, known internally as “Burge’s Asskickers,” was an open secret in police circles.

In July of 2006, the special prosecutor, who was connected to numerous Chicago police officials and the Daley political machine, completed his investigation. He refused to issue indictments, citing the statute of limitations, and instead issued what was widely condemned as a whitewash report. Outraged community organizations and activists issued a Shadow Report, and the Chicago City Council and the Cook County Board held hearings on the special prosecutor’s failure to indict. Meanwhile, activists had taken the case to the United Nations Committee on Torture, which issued a report linking Chicago police torture to Abu Ghraib and Guantánamo and calling on the US government to prosecute.

As a result, in October of 2008, thirty-five years after Burge tortured his first victim, United States Attorney Patrick Fitzgerald indicted him for falsely denying under oath that he participated in police torture. Subsequently, seven torture survivors were exonerated and released from prison, and several of them, including another Death Row 10 survivor Ronald Kitchen, were awarded certificates of innocence by Cook County Judges. In June of 2010, a federal jury convicted Burge of three counts of perjury and obstruction of justice, and he subsequently received a four-and-a-half-year sentence, which he is now serving, along with Bernie Madoff, at Butner Federal Correctional Center in North Carolina.

After their release, the seven exonerated men sued Burge and the city. In so doing, several of them named then-Mayor and former Cook County State’s Attorney Richard M. Daley as a co-conspirator on the basis of his decades long knowledge of the torture scandal, his willful failure to prosecute Burge and his participation in the cover-up of the scandal. In a landmark decision issued in 2011, Federal Judge Rebecca Pallmeyer upheld the allegations against Daley in Michael Tillman’s case, and on the eve of Daley’s scheduled deposition, the City and County settled Tillman’s case for $6 million.

Meanwhile, the related battle to end the death penalty in Illinois continued apace. Led by exonerated death row prisoner Randy Steidl, the Illinois Coalition Against the Death Penalty and state legislators Kwame Raoul and Karen Yarborough, the movement fought a long and dauntingly uphill battle that ultimately won the repeal of the Illinois death penalty in March of 2011.

These hard-fought victories serve as an example and inspiration to all those who are fighting against racism, police torture and the death penalty. However, in Chicago, much remains to be done. Scores of torture survivors still remain in prison on the basis of confessions tortured from them by Burge and his confederates. A class action lawsuit was recently filed on their behalf, seeking new hearings at which they can challenge those confessions. Other torture survivors have been granted new hearings by the Illinois Torture Inquiry and Relief Commission, a new body that was created as a result of community pressure, and which legislators have tried to defund. Scores of men, including several who courageously testified against Burge, have received no compensation, and a movement for reparations is underway. Meanwhile, a bill to make police torture a federal crime without a statute of limitations languishes in Congress, the City of Chicago continues to pour millions of taxpayer dollars into the defense of Burge in several ongoing civil rights cases, Burge continues to collect his pension while serving his sentence, Mayor Emanuel steadfastly refuses to apologize to the torture survivors and their families, and an ongoing federal investigation into Burge’s cronies has yielded no additional charges.

Clearly, Chicago’s power structure remains on the wrong side of history. Until it fully admits to its enormous collective crimes, compensates all of the torture survivors, affords all of those still imprisoned full and fair hearings, and brings all of the torturers to justice, Chicago will remain the torture capital of the United States with its conscience painfully stained by systemic police torture and its brazen and unremitting cover-up.

This was originally published in The Nation.

Emanuel Administration Earns Failing Grade on Police Torture and Code of Silence

By G. Flint Taylor

                             In their first full year at the helm of the City, Chicago Mayor Rahm Emanuel and his Corporation Counsel have, to be kind, left much to be desired in the field of police torture and misconduct, wasting tens of millions of dollars in the continued unprincipled defense of convicted police torturer Jon Burge and his confederates, the police code of silence, and detectives who framed an innocent 14 year old boy. This blatant disrespect for the citizens of the City, particularly African Americans, was further demonstrated by the Mayor’s refusal to apologize to the victims of police torture and their families, to join with Illinois Attorney General Lisa Madigan in her fight to strip Burge of his police pension, and the failure to make good on his promise that he would end the torture scandal by fairly settling the remaining cases that torture survivors had brought against the City.

In January, a Federal jury brought back a $25 million verdict against the City in a case brought by Thaddeus Jimenez, who, as a 14 year old, was framed by a Chicagopolice detective and spent 16 years in prison for a murder he did not commit. The City refused to settle the case before trial for a small fraction of the final verdict, choosing instead to follow the recommendations of its privately retained lawyers from Andrew Hale and Associates, who made a cool $2.5 million in fees defending the police detective.  During the trial, Hale was cited by trial judge Matthew Kennelly for practicing “deliberate,” “invidious” “racially based” discrimination when he struck an African American from the jury during voir dire.

In March, Federal District Court Judge Ruben Castillo dealt the City and Hale another blow when he granted a new damages trial to wrongfully convicted octogenarian Oscar Walden on the grounds that Hale and his partner, Avi Kamionski, engaged in “unethical” trial conduct. The City had paid Hale and Associates $400,000 to defend the case, and, after the ruling, paid another $1 million to Walden and his attorneys rather than to face a sanctions hearing on this misconduct and a re-trial.

Throughout the winter and spring of 2012 the City, again using taxpayers’ money to fund private lawyers, fought to avoid, then to delay, the deposition of former Mayor Richard M. Daley, who had been held as a co-conspirator along with Burge and his confederates, in torture victim Michael Tillman’s  wrongful conviction lawsuit. In July, when these tactics failed, and the deposition loomed large on the horizon, the City settled with Tillman for $5.375 million, but Mayor Emanuel, like Daley before him, pointedly refused to apologize on behalf of the City when called upon to do so.

Also in July, Chicago Sun Times reporter Chris Fusco exposed Hale and his partner’s misconduct in a “Watchdog” feature, revealing that they had made more than $20.5 million in taxpayer money defending police torture and wrongful conviction cases. The City responded by declaring that it had conducted its own “investigation,” and had determined that it would continue to retain Hale in these cases. The City later refused to honor a Freedom of information Act request to produce its Hale “investigation” file.

In November, a federal jury returned an $850,000 verdict against the City in a case where an off duty Chicagopolice officer had beaten a diminutive female bartender, finding that the beating was facilitated  by the police code of silence. Before trial, the City, which could have settled for $400,000, refused to offer any money to resolve the case.

After the verdict, the City compounded its arrogant miscalculation, first by publicly condemning the verdict, then by attempting to get the judgment removed from the public record.  The trial judge refused to go along with this ill-advised attempt, and the City now faces a total bill of as much as $5 million in damages and lawyers’ fees.

In December, the City’s defense of Jon Burge, Richard M. Daley and their collaborators again raised its ugly head as a federal jury was about to be selected in the case of Alton Logan, an innocent man who spent 27 years in prison. Logan alleged that Burge, who was represented by Hale and Associates, framed him, and Burge was scheduled to ‘testify” from his North Carolina jail cell by invoking his Fifth Amendment rights. The City, which had already paid $2.6 million to Hale and a battery of other lawyers to defend the case, successfully argued  for a continuance apparently so that 24th hour settlement discussions could be conducted. Whether these discussions were fruitful is not yet known, but, once again, pinstripe patronage is an obvious winner.

At the same time, the City continued to finance Burge and Daley’s defense in several police torture cases that, despite Mayor Emanuel’s promise, it has, to date, chosen not to resolve.  In Ronald Kitchen’s case, for example, the City had paid Hale and numerous other private lawyers approximately $2 million to continue fighting the case, most recently trying yet again to block or delay Daley’s deposition in that case.  Similarly, in Darrell Cannon’s case, the City has already paid $1.8 million to private lawyers to continue to pursue its argument that the $3000 settlement which it gave to Cannon before the torture scandal came to light, was not the result of an official cover-up but rather was fair and equitable.

If 2012 is any measuring stick, it is fair to say that the new mayor is just like the old mayor when it comes to police torture and misconduct, the code of silence, and pinstripe patronage. Can we reasonably expect 2013 to be any different?

Taylor is one of the lawyers for a number of alleged torture victims, including Michael Tillman, Ronald Kitchen, Darrell Cannon, and Oscar Walden, has also litigated police code of silence cases for the past two decades, and is a founding partner of the People’s Law Office, a Chicago civil rights law firm whose attorneys have been fighting for victims of police torture, brutality, wrongful convictions, false arrest and other government abuses for over 40 years.  For more information on police torture and other topics, visit peopleslawoffice.com

A shorter version of this article was published in the January 4, 2013 Chicago Sun Times

Chicago ‘Code Of Silence’ Case: Judge Won’t Set Aside Verdict Against City

On December 21, 2012 Federal Judge Amy St. Eve, adopting in large part the position argued by the Amici Curiae, which included the People’s Law Office as “of counsel,” denied the City of Chicago’s motion to vacate the judgement in the Obrycka code of silence case. Read Judge St Eve’s Opinion.

By MICHAEL TARM 12/20/12 07:13 PM ET EST AP

CHICAGO — A judge on Thursday refused to toss a jury verdict that suggested Chicago police adhere to a code of silence in protecting rogue officers, citing its “social value” despite claims by the city that the verdict could cost Chicago millions in other litigation.

The ruling involves the case of Karolina Obrycka, a local bartender who was attacked by a drunken off-duty police officer as she worked in 2007. Obrycka sued the city after the beating, which was caught on video and went viral online, and a jury ruled in her favor last month.

But along with awarding her $850,000, jurors strongly suggested in their verdict that they agreed the officer, Anthony Abbate, was protected by an unwritten code of silence among Chicago police.

The city asked U.S. District Judge Amy St. Eve to throw out that element of the verdict, arguing it could be cited as a precedent – and potentially cost the city millions of dollars fighting and losing lawsuits claiming the same alleged code. The city said it would still pay Obrycka the full jury award.

Critics then intervened, saying the city was seeking to sweep under the rug a police abuse issue that has plagued Chicago for years.

In her 13-page ruling, St. Eve agreed there were limits on how much the case could be cited by other alleged police-abuse victims, but she said the verdict shed light on an important and hotly debated issue.

“Although the judgment’s precedent is not binding, it has a social value to the judicial system and public at large,” she wrote, though she didn’t specify what that social value entailed.

The judge noted that the case involved more than five years of court filings, pre-trial hearings and a full trial – all of which cost money. She also said that just days before the trial, the city was given one last chance to try to settle the case but refused.

It wasn’t immediately clear whether the city would appeal the ruling. The city didn’t return messages seeking comment, but in a brief emailed statement, city spokeswoman Sarah Hamilton said “we respect the judge’s opinion and that this is the final decision.”

She said the city has taken steps to ensure police are held accountable, adding: “Everyone in public service must uphold the law and report lawbreakers – especially those who are entrusted to enforce it.”

The city’s request to have the verdict tossed was unusual in part because Obrycka joined it.

The city initially said that if St. Eve granted the motion, it would pay Obrycka the $850,000 and not appeal, which could take years. But days after the motion was filed – and amid criticism that the city had squeezed Obrycka to join the motion – city attorneys said Obrycka would immediately be paid the full damages despite the judge’s decision.

Abbate was convicted of aggravated battery in a 2009, and the sentenced to probation. During his trial, he admitting drinking heavily the night of the beating, saying he had just learned his dog was dying of cancer.

The core issue jurors had to decide at the civil trial this year was whether city officials tolerated a code of silence in the police department, and whether that emboldened Abbate and led him to act with impunity in attacking the bartender. Obrycka’s attorneys originally said they hoped a verdict in their favor would send a wider message that the code of silence won’t be tolerated.

In Thursday’s ruling, St. Eve agreed with city attorneys that the jury’s verdict could be seen as ambiguous – even though the majority of testimony dealt directly with police culture and whether officers are prone to cover up for each other.

Defense attorneys who represent clients with police-abuse claims welcomed the ruling.

“I think she was sending a strong message to the city,” said Flint Taylor, an attorney with the activist Peoples Law Office. “She was basically saying, `You got what you deserved in this and then you tried to back out of it.'”

The whole episode – the beating and the city’s motion – also indicated a lack of seriousness about the issue that has plagued one of the nation’s largest police forces for years, Taylor said.

“Where is the reform of the police area?” he said. “The reform just isn’t there.”


Follow Michael Tarm at:  www.twitter.com/mtarm


By G. Flint Taylor

                                On November 13,  2012 an all-white Federal jury found that off duty Chicago police officer Anthony Abbate was acting pursuant to a widespread and persistent police code of silence when, in 2007, he brutally beat a diminutive female bartender named Karoline  Obrycka.[1] The beating was caught on videotape, and it captured the public’s attention. Former Mayor Richard M. Daley and the Chicago Police Department, already on the defensive because of the continuing police torture scandal, made some cosmetic changes to the police disciplinary system with the hope that the controversy over police brutality would subside. Now, five years later, the jury’s verdict in the Obrycka case has rekindled public outrage, and should have sent a message to Mayor Rahm Emanuel, his hand -picked Police Superintendent, and the City’s Corporation Counsel that fundamental and systemic reform, from the top down, is required in order to change the police culture that has made the police code of silence a Chicago institution.

Extreme police brutality, unfailingly followed by police silence, lies, and cover-up, has been an all too frequent reality in Chicago for the past 45 years. The rampant brutality that marked the 1968 Democratic Convention was followed by false denials in testimony from untold numbers of Chicago police officers and supervisors. The next year Black Panther Party leader Fred Hampton was murdered in his bed during a pre-dawn police raid, and the entire command structure of the CPD, working in unison with the Cook County State’s Attorney, perpetrated a massive cover-up that spanned a decade and further illuminated the code of silence. Only three years later, Jon Burge started a torture ring at Area 2 detective headquarters, and the documented cases of Burge related police torture, now some 117 in number, followed him as he rose to Commander during the next two decades.  His meteoric  rise, as well as the systemic torture itself, was made possible by a code of silence so widespread that it not only has kept scores of detectives silent to this day, but has also extended to several successive Police Superintendents and former Mayor Richard M. Daley himself.

A few Chicago police officers have risked their lives and careers by breaking the code. Former Area 2 Detective Frank Laverty is the most shining example. In the early 1980’s, Laverty came forward to save the life of an innocent black teenager who was on trial for a murder he did not commit.  Laverty had uncovered the real perpetrator of the crime, but Laverty’s commander and several fellow detectives had hidden the evidence in a secret “street file” that was routinely kept by detectives.  Laverty’s heroic act freed the teenager and exposed the CPD’s illegal “street file” practice, but earned him physical threats from Burge and several of Laverty’s fellow detectives, and a demotion to the job of watching police recruits give urine samples. See, Jones v. City of Chicago, 856 F. 3d 985 (7th Cir. 1988)

This example of the code of silence at work was not lost on the police rank and file.  In 1989, when a fellow Area 2 detective came forward to detail for the first time the systematic and racist nature of Burge’s torture ring, he did so in anonymous letters to lawyers representing torture victim Andrew Wilson, saying that he wanted the letters to remain private because he “did not wish to be shunned like Officer Laverty has been since he cooperated with you.”  This Burge colleague has never been identified. Several African-American Area 2 detectives who had general knowledge about the torture ring remained silent until their retirement two decades later.  In 2008, one white Area 2 detective, when threatened with indictment, reluctantly told the Federal Grand Jury about witnessing Burge torture a black suspect, but the code of silence again reared its ugly head when he attempted to retreat from his prior testimony during Burge’s 2010 perjury trial. No other officer has ever come forward. Instead close to fifty officers have denied any knowledge of the torture ring, and, more recently, a majority of them has chosen to invoke the Fifth Amendment. The Obrycka case is but the most recent extreme example of a police code of silence so embedded within the Department that it permeates nearly every complaint of police brutality and misconduct.

For the past 25 years, the code of silence and the related failure to properly discipline  Chicago police officers has been the repeated subject of numerous Monell de facto practice and custom claims brought under 42 U.S.C. Sec. 1983 against the City of Chicago. Most often these practices are raised in serious excessive force, police torture, and wrongful conviction cases.[2] Over the years, the evidence of these practices has been documented, again and again, through hard fought discovery that has been contested at every stage by the City’s lawyers. Now and in the recent pase, the City regularly tries to avoid discovery and trial on these embarrassing claims by moving to bifurcate the Monell claim from the underlying constitutional violation in order to postpone discovery and trial until after the underlying case is tried.

The Mayor and his Corporation Counsel have shown, to date, little interest in taking the decisive steps required to change the police culture that perpetrates the code.  Instead they continue to defend torture, wrongful conviction, and other police misconduct cases by employing the implicated officers’ use of the code to deny responsibility.  Similarly the police disciplinary agency, (IPRA) ignores the code of silence, almost always taking the word of the accused officer and his confederates over the victim, in order to absolve the accused from discipline. The  police code of silence  is so embedded within the Department that it permeates nearly every complaint of police brutality and misconduct.

In the Obrycka case, her lawyers focused on her Monell  claim because the City refused to indemnify Officer Abbate, who was  off duty and judgment proof.  Confident that it could defeat the Monell claim, the City refused to make a settlement offer, choosing instead to go to trial in a case where the evidence of extreme brutality, official cover-up, police lies, and refusal to discipline was compelling.

After years of highly contentious pre-trial litigation,[3] and a 12 day trial, the evidence of a widespread, top to bottom, police code of silence and failure to discipline has now been confirmed by the jury’s verdict in the Obrycka case.  The City, however, immediately issued a statement that it “strongly disagreed with the verdict” and vowed to appeal. A few weeks later, it was publicly revealed that the City and Obrycka’s lawyers had entered into a deal whereby the City would forego an appeal, immediately pay the judgment, and negotiate the lawyers’ attorneys’ fees in exchange for the Plaintiff joining the City’s motion to vacate the judgment.

This deal further inflamed public opinion. Seen as an obvious attempt by the City to avoid political and legal responsibility, both daily newspapers editorialized against the motion, and public interest lawyers moved to intervene, arguing that the judgment should not be vacated because it could have preclusive  effect  against the City in future Monell cases. When the motion was argued before the trial judge, Amy St. Eve, on December 7, 2012, the parties revealed that the City had agreed to forgo an appeal and promptly pay the Plaintiff no matter whether the Judge granted the motion to vacate or not, thereby  removing the major rationale for vacating the judgment – – -the Plaintiff’s interest in prompt, certain and complete payment. The Judge promised to rule promptly on the motion.

Rather than to move decisively to eradicate the code of silence, the City has shamelessly attempted to erase the jury’s judgment  from the books.  Unfortunately, it appears to be “business as usual” when it comes to police brutality, the code of silence, and official cover-up in Chicago.

[1] The verdict form required only that the jury find one of two related practices or customs: (1) a widespread custom or practice of a police code of silence; and/or  (2) a widespread custom or practice of failing to investigate and/or discipline its officers.

[2] See, e.g., Tillman v. Burge, 2011 U.S. Dist. LEXIS 79320, at *16-18, 80-81 (N.D. Ill 2011); Patterson v. Burge, 328 F. Supp. 2d 878, 898-99 (N.D. Ill 2004);  Hobley v. Burge, 2007 U.S. Dist. LEXIS 12159 (N.D. Ill 2007); Cannon v. Burge, 2006 U.S. Dist. LEXIS 4040 (N. D. Ill. 2006) Garcia v. City of Chicago, 2003 U.S. Dist. LEXIS 16564 at *11-12 (N. D. Ill. 2003; and  Arias v. City of Chicago, 2008 U.S. Dist. LEXIS 4352 at *12-13 (N. D. Ill. 2008).

[3] The following seven Obrycka v. City of Chicago pre-trial decisions, all of which deal with aspects of the Plaintiff’s Monell claim, can be found at 2011 U.S. Dist. LEXIS 64575 (N.D. Ill., June 16, 2011); 2011 U.S. Dist. LEXIS 70018 (N.D. Ill., June 29, 2011); 2011 U.S. Dist. LEXIS 71788 (N.D. Ill., July 5, 2011); 2012 U.S. Dist. LEXIS 22818 (N.D. Ill., Feb. 23, 2012); 2012 U.S. Dist. LEXIS 128201 (N.D. Ill., Sept. 7, 2012); and 2012 U.S. Dist. LEXIS 131803 (N.D. Ill., Sept. 14, 2012); 2012 U.S. Dist. LEXIS 132585 (N.D. Ill., Sept. 17, 2012).



“Nothing But A Northern Lynching”

Nothing but a Northern Lynching: The Assassination of Fred Hampton

G. Flint Taylor, People’s Law Office, December 4, 2012

At 4:30 in the morning of December 4, 1969, 14 heavily armed Chicago police officers, acting at the direction of Cook County State’s Attorney Edward V. Hanrahan, raided a tiny apartment on the west side of Chicago where local Black Panther Party Chairman Fred Hampton and eight Party members were sleeping. Minutes later, Hampton and Peoria, Illinois BPP leader Mark Clark lay dead, several of the other Panthers were seriously wounded, and the survivors were hauled off to jail on attempted murder charges.

I was a second year Northwestern law student working at the fledgling People’s Law Office when I received a call that “the Chairman had been murdered” and was directed to come to the apartment. The crime scene was shocking – – – the plasterboard walls looked like swiss cheese, ripped by scores of bullets from police weapons that included a machine gun, a semi automatic rifle, and several shotguns. A large pool of blood stained the floor at the doorway where Hampton’s body had been dragged after he was shot in the head, and there were fresh blood stains on all the beds in the apartment.

I had met Chairman Fred only months before when I escorted him to the Law School to speak to the student body in venerable Lincoln Hall. He was only 21 years old, but he captivated the audience, as he always did, with his dynamic and analytical speaking skill, a mixture of Malcolm X, Dr. King, and Lupe Fiasco.  It was his unique leadership, together with the revolutionary politics he so convincingly espoused,  that made him a primary target of law enforcement.

Directly after the raid, State’s Attorney Hanrahan and his police loudly proclaimed that the “vicious Black Panthers” had instigated a “shootout” during which they fired a fuselage of shots at the raiders. The cold and bloody crime scene made lie of this official story, and Panther members led thousands of people on tours of the apartment for the next ten days while People’s Law Office lawyers and staff documented the evidence that would later establish that the police fired 99 bullets while the Panthers fired but one. An elderly African American lady best captured this reality when she said, while sadly shaking her head during the tour, that the raid was “nothing but a Northern lynching.”

Confronted with the ballistics evidence, Hanrahan was forced to drop the attempted murder charges against the surviving Panthers. The Richard Nixon Justice Department investigated, but refused to indict. In response to community outrage, a specially appointed Cook County Prosecutor subsequently indicted Hanrahan, his first assistant, and a number of the raiding officers, not for murder or attempted murder, but rather only for obstruction of justice. A Democratic machine judge acquitted Hanrahan and his co-conspirators on the eve of the 1972 election, but an inflamed African American electorate voted Hanrahan out of office, spawning a movement that paved the way for the election of Mayor Harold Washington a decade later.

All the while, the People’s Law Office continued to litigate a civil rights lawsuit in federal court on behalf of the Hampton and Clark families and the survivors of the raid. Through the discovery process, we unearthed FBI documents showing that the FBI’s secret COINTELPRO program was behind the raid. The documents, which were suppressed by the FBI for years, together with independent toxicological tests, further revealed that an FBI COINTELPRO agent supplied a floor plan of the Panther apartment, complete with markings where Hampton slept, to Hanrahan’s raiders; that William O’Neal, the COINTELPRO informant who drew the floor plan, most likely drugged Hampton so that he could not defend himself; and that after the raid FBI director J. Edgar Hoover rewarded O’Neal with a $300 bonus for making the raid a “success.”

In 1983, after an 18 month trial and 13 years of litigation, the City of Chicago, Cook County and the Federal Government all finally settled with the Hampton and Clark families and the survivors of the raid. While this financial settlement brought some modicum of justice, no one, except the Panther survivors, ever spent a day in jail. But the murderous raid, once falsely depicted as a shootout, is now rightly considered not only to be a northern lynching, but also an official assassination that was instigated by the FBI. And while we will never know what heights Fred Hampton would have reached as a leader had he lived, we do know, in the words first spoken in eulogy by People’s Law Office attorney Francis Andrew nearly forty three years ago, that the spirit of Fred Hampton continues to live on.

Taylor is one of the lawyers for the family of slain Black Panther leaders Fred Hampton and Mark Clark.. For more information on the Hampton/Clark case, the history of Black Panther Party, and the FBI’s Program to destroy it, visit the Black Panther page on this site.

A slap in the face of torture victims

Survivors of Chicago Police TortureCOMMENTARY BY G. FLINT TAYLOR

First appeared in the Chicago Sun-Times, Nov 28, 2012.

As of Wednesday, it appears certain the U.S. Department of Justice and the U.S. attorney for the Northern District of Illinois have decided not to bring perjury and obstruction of justice charges against former Chicago Police Sgt. John Byrne, who loyally served as convicted Chicago Police Cmdr. Jon Burge’s self-admitted “right-hand man,” and his trusted associate, detective Peter Dignan.

In 1982 Burge summoned Byrne to the Area 2 Detective Division to succeed him as the supervisor of his midnight crew of detectives. For the next decade, Byrne, often with Dignan as a partner, allegedly supervised and participated in torture of African-American suspects that featured electric shock, suffocation with plastic bags and typewriter covers, mock executions, and beatings that were coupled with attacks on the suspects’ genitals and racially laced verbal abuse. This alleged torture, which was found to be “systematic” in 1990 by the Chicago Police Department’s Office of Professional Standards, was allegedly carried out in interrogation rooms, in the stationhouse basement and at remote sites. When Burge was promoted to commander and transferred from Area 2, he brought Byrne with him, and new allegations of torture followed.

False confessions were coerced in numerous cases, suspects were wrongfully sent to prison and some men were condemned to death. Among the cases in which either or both Byrne and Dignan were implicated are those of Michael Tillman, Madison Hobley, Darrell Cannon, Ronald Kitchen, Gregory Banks, David Bates, Aaron Patterson, Steven Bell and Stanley Howard. The city of Chicago has paid out more than $30 million in settlements and attorneys’ fees in civil rights cases brought by these men alone.

Prosecutors, most prominently former Cook County State’s Attorney Richard M. Daley, refused to charge Burge and his men. A Cook County special prosecutor, appointed in 2002, also refused to indict. In the early 1990s, after a “mountain” of torture evidence began to emerge, the U.S. attorney’s office and the Department of Justice chose not to indict as well.

This changed in 2008 when U.S. Attorney Patrick Fitzgerald and his civil rights prosecutors indicted Burge for falsely denying under oath that he tortured suspects, and Fitzgerald publicly proclaimed Burge confederates could not rely upon a “conspiracy of silence.”

Byrne, Dignan and numerous accused confederates, in contrast to Burge, had consistently invoked the Fifth Amendment when questioned in civil lawsuits. However, for a brief period after the special prosecutor ended his investigation, many of them, including Byrne and Dignan, repeatedly denied under oath any knowledge of torture. Byrne gave his denials in December of 2006, and in September and October of 2007, while Dignan’s last sworn denial was on Nov. 28, 2007.

In June 2010 Burge was convicted of perjury and obstruction of justice, and the federal investigation appeared to shift to Byrne, Dignan and several other detectives.

However, the five-year statute of limitations on both Byrne and Dignan’s sworn denials will have expired Wednesday. Noted African-American historian Adam Green, who spoke at the January 2011 Burge sentencing, says leaving the impression the torture was due to just one rogue cop sends the wrong signal. He said, “Just as the actions of the U.S. attorney’s office raised hopes after 2008, their inaction now dashes those hopes and deepens the general frustration residents in the city, particularly African Americans, feel as to whether police are accountable to the public, and to standards of humane society.”

G. Flint Taylor is a civil rights lawyer representing a number of Burge, Byrne and Dignan’s victims and a founding partner of the People’s Law Office in Chicago.

‘Englewood Four’ say city, police ignored evidence that could have cleared them


Thursday, November 15, 2012. I John H. White~Sun-Times 

People’s Law Office attorneys, together with the MacArthur Justice Center, today filed a damages lawsuit on behalf of Terrill Swift, one of the Englewood Four, alleging that he was framed, at the age of 17, by several notorious Chicago police detectives, including Kenneth Boudreau and James Cassidy, for crimes he did not commit.

The following is a Chicago Sun-Times article, written by staff reporter Jon Seidel, detailing this case.

‘Englewood Four’ say city, police ignored evidence that could have cleared them

Terrill Swift and his “brothers” — Harold Richardson, Michael Saunders and Vincent Thames — all spent much of their lives in prison for a rape and murder they didn’t commit.

DNA evidence cleared them. A judge overturned their convictions one year ago, freeing Richardson and Saunders after they spent more than 17 years behind bars. Swift and Thames, who served more than a dozen years for the 1994 murder and rape of Nina Glover, had already been released.

Now the men, known as the Englewood Four, are all going back to court. Their lawyers said Thursday they’re filing lawsuits against the City of Chicago, a Cook County prosecutor and several city police detectives who they said ignored evidence that linked Johnny “Maniac” Douglas, a career criminal, to Glover’s murder. It was his DNA, linked to Glover’s body, that finally exonerated the men.

“This is Chapter Two in a long battle,” Swift said.

The men also claim a code of silence within the Chicago Police Department led to their false convictions. Their lawsuits come just two days after attorneys for a female bartender beaten by a former Chicago cop in 2007 said they won a verdict from a federal jury by proving the existence of that code of silence.

“We didn’t see any detectives come forward and say that these men were the wrong men,” said Flint Taylor of the People’s Law Office. “They went and continued to stand behind their coercion and their fabrication, so the code of silence was at work very much so in these cases.”

A spokesman for the city’s law office didn’t immediately return a call for comment.

The men were just teens, ranging in age from 15 to 18, when they were arrested for Glover’s murder. Her naked body was found Nov. 7, 1994, in a Dumpster behind the Family Super Mart Liquor Store at 1400 W. Garfield, wrapped in a bloody sheet, lawyers said. An autopsy found she’d been strangled to death.

Lawyers said police found Douglas — the “real murderer” — at the scene and even interviewed him. But they said police let him go and focused instead on the four teens. Swift said that led to him and his friends being “abducted” from their lives and families.

“Straight to the point, we were young black youth in urban communities,” Swift said. “We were, again, abducted. Maybe the mind-state was, we’ll get them off the street now. They’ll do something later. We were young, black, I don’t want to use the ‘N’ word, but, hey, they didn’t give us a chance. We were taken away for that reason.”

Stuart Chanen, Thames’ lawyer from the Valorem Law Group, said Douglas went on to kill at least one more woman after Glover’s death. Douglas, now dead, was arrested 83 times and earned 38 convictions between July 1980 and April 1998, the attorneys said.

But lawyers said police used “deceit, intimidation and threats” to force a confession from each of the teens, allegedly beating on one’s chest with a phone book and a flashlight. The officers are also accused of ripping an earring out of Saunders’ ear and threatening to take him to the railroad tracks behind the police station to shoot him.

Swift said he and the others are not filing the lawsuits for financial gain.

“We want you to make a change in how you interrogate us,” Swift said.

Adjusting to life since their release from prison has been a challenge, Swift said. He now has a job in Bolingbrook, but something as simple as finding a place to live can be difficult.

“People want to know, why don’t you have credit?” Swift said. “And I don’t want to tell everybody what I went through. But you have to at times, because it’s a big void in there.”

Thames now lives and works in Paducah, Ky. Richardson has earned his GED, and Saunders is looking for work.

When prosecutors announced in January they wouldn’t pursue another trial, Swift said he was still bitter about the time he spent in prison. He said Thursday that feeling will always be there.

“But like I said then, you can’t let the bitterness continue to control you,” Swift said. “You just have to continue to move forward.

The Police Code of Silence: What Will Mayor Emanuel Do?

By Flint Taylor, Civil Rights Attorney at People’s Law Office
Also Appears on Huffington Post

 When an all-white federal jury found that Chicago police officer Anthony Abbate was acting pursuant to a widespread and persistent police code of silence when he brutally beat a diminutive female bartender, it sent a message to Mayor Rahm Emanuel, his police superintendent, and the city’s corporation counsel that fundamental and systemic reform, from the top down, is required in order to change the police culture that has made the police code of silence a Chicago institution.

The overwhelming record of extreme brutality, unfailingly followed by police silence, lies, and coverup, has been spread upon the public record in a parade of civil rights cases that have been litigated in the Chicago federal courts during the past 45 years. The rampant brutality that marked the 1968 Democratic Convention was followed by false denials in testimony from untold numbers of Chicago police officers and supervisors.

The next year Black Panther Party leader Fred Hampton was murdered in his bed during a pre-dawn police raid, and the entire command structure of the CPD, working in unison with the Cook County State’s Attorney, perpetrated a massive cover-up that spanned a decade and further illuminated the code of silence. Only three years later, Jon Burge started a torture ring at Area 2 detective headquarters, and the documented cases of Burge related police torture, now some 117 in number, followed him as he rose to commander during the next two decades.

His meteoric rise, as well as the systemic torture itself, was made possible by a code of silence so widespread that it not only has kept scores of detectives silent to this day, but has also extended to several successive police superintendents and former Mayor Richard M. Daley himself.

The Abbate case is but the most recent extreme example of a police code of silence so embedded within the department that it permeates nearly every complaint of police brutality and misconduct.

A precious few officers have risked their lives and careers by breaking the code. Former Area 2 Detective Frank Laverty is the most shining example. In the early 1980s, Laverty came forward to save the life of an innocent black teenager who was on trial for a murder he did not commit. Laverty had uncovered the real perpetrator of the crime, but Laverty’s commander and several fellow detectives had buried the evidence in a secret “street file” that was routinely kept by detectives. Laverty’s heroic act freed the teenager and exposed the CPD’s illegal “street file” practice, but earned him physical threats from Burge and several of Laverty’s fellow detectives, and a demotion to the job of watching police recruits give urine samples.

This blood chilling example of the code of silence at work was not lost on the police rank and file. In 1989, when a fellow Area 2 detective came forward to detail for the first time the systematic and racist nature of Burge’s torture ring, he did so in anonymous letters to People’s Law Office lawyers, saying that he wanted the letters to remain private because he “did not wish to be shunned like Officer Laverty has been since he cooperated with you.”

This Burge colleague has never been identified. Several African-American Area 2 detectives who had general knowledge about the torture ring remained silent until their retirement two decades later.

In 2008, one white Area 2 detective, when threatened with indictment, reluctantly told the Federal Grand Jury about witnessing Burge torture a black suspect, but the code of silence again reared its ugly head when he attempted to retreat from his prior testimony during Burge’s 2010 perjury trial. No other officer has ever come forward. Instead close to 50 officers have denied any knowledge of the torture ring, and, more recently, a majority of them has chosen to invoke the Fifth Amendment.

The mayor and his corporation counsel have shown, to date, little interest in taking the decisive steps required to change the police culture that perpetrates the code. Instead they continue to defend torture, wrongful conviction and other police misconduct cases by employing the implicated officers’ use of the code to deny responsibility. Similarly the police disciplinary agency, (IPRA) ignores the code of silence, almost always taking the word of the accused officer and his confederates over the victim, in order to absolve the accused from discipline.

The evidence of a widespread, top to bottom, police code of silence has now been confirmed by the verdict of a federal jury. The city, however, rather than heeding the verdict, immediately issued astatement that it “strongly disagreed with the verdict” and vowed to appeal, while the mayor has already passed the buck to his police superintendent.

Once again, it appears to be “business as usual” when it comes to police brutality, the code of silence, and official cover-up in Chicago.

Review of Recent Supreme Court Civil Rights Decisions

End of Term United States Supreme Court Review

By G. Flint Taylor and Ben H. Elson

(This article was first published in the September/October 2012 Police Misconduct and Civil Rights Law Report, Vol. 10, No. 11.)

In the concluding months of its 2011-2012 term, the Supreme Court decided a number of cases that are pertinent to police misconduct litigators. These cases included two qualified immunity cases, one of which extended qualified immunity to Secret Service agents in a retaliatory arrest case, (Reichle v. Howards) and the other to a private lawyer on contract with the City (Filarsky v. Delia) and a case which extended blanket absolute immunity to grand jury witnesses (Rehberg v. Paulk). These cases are discussed in this article.

Earlier in the term, the Court decided Messerschmidt v. Millender, 132 S. Ct. 1235 (2012) in which it held that police officers who obtained and executed an overly broad search warrant that was approved by two prosecutors and a magistrate judge were entitled to qualified immunity; Minneci v. Pollard, 132 S. Ct. 617 (2012) in which the Court declined to imply the existence of an Eighth Amendment based Bivens action against employees of a privately operated federal prison, and Florence v. Board of Chosen Freeholders, 132 S. Ct. (2012), in which the Court upheld a strip search of an arrestee who was wrongfully arrested on a misdemeanor warrant. For discussions of Florence and Minneci, see PMCRLR, Vol. 10, No.7 (Jan/Feb 2012) and Vol. 10, No 9 (May/June 2012).

Because of its importance to the related areas of death penalty and juvenile justice litigation, we also discuss in this article the companion cases of Miller v. Alabama and Jackson v. Hobbs, 132 S. Ct. 2455 (2012) in which the Supreme Court held that the Eighth Amendment forbids mandatory life without parole sentences in juvenile homicide cases.

Qualified Immunity: Reichle v. Howards

On June 4, 2012, the U.S. Supreme Court, in a unanimous decision from which Justice Kagan recused herself, decided the case of Reichle v. Howards, 132 S. Ct. 2088 (2012), holding that two Secret Service agents were entitled to qualified immunity in a case where they were alleged to have made a retaliatory arrest in violation of the First Amendment.

Respondent Howards brashly stated at a public appearance by then Vice President Dick Cheney that he was going to ask him “how many kids he has killed today” in reference to the U.S. Government’s role in the Iraq war. Reichle v. Howards, 132 S. Ct. at 2091.  This statement was overheard by Secret Service Agent Doyle. Howards later approached Cheney while he was greeting the public and told him that his “policies in Iraq are disgusting.” Id. At this time he either touched Cheney’s right shoulder with his open hand, or pushed him.  Neither of the Secret Service Agents guarding Cheney believed that Howards’ touch of the Vice President provided probable cause for his arrest. Secret Service Agent Reichle subsequently questioned Howards who denied that he either assaulted or even touched Cheney, and further stated that “if you don’t want other people sharing their opinions, you should have him [the Vice President] avoid public places.” Id. Reichle then arrested Howards who was subsequently transferred to local custody, and was charged under Colorado law with harassment. This charge was later dropped and no federal charges were ever filed.

Howards brought a 42 U.S.C. § 1983 and Bivens action against several Secret Service Agents, including Respondents Reichle and Doyle, for arrest without probable cause and in retaliation for his exercise of his right to free speech. The District Court denied Reichle and Doyle’s motion for summary judgment on the basis of qualified immunity. The Tenth Circuit reversed the denial of qualified immunity on the Fourth Amendment claim, holding that Howards’ false denial that he had touched Cheney provided probable cause to arrest under 18 U.S.C.  § 1001. Howards v. McLaughlin, 634 F.3d 1131 (10th Cir. 2011). While recognizing that the Circuits were split on the question, the Tenth Circuit affirmed the denial of qualified immunity to Reichle and Doyle on Howards’ First Amendment retaliation claim. In so doing, the Court distinguished the Supreme Court’s decision in Hartman v. Moore, 547 U.S. 250, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (2006) which held that probable cause to prosecute defeated a retaliatory prosecution claim, holding that a retaliatory arrest, unlike a prosecution, presented an “ordinary,” rather than a “complex” causation claim, and therefore was not defeated by Hartman. Howards v. McLaughlin, 634 F.3d at 1148-49.

The Supreme Court granted certiorari on two questions: “whether a First Amendment retaliatory arrest claim may lie despite the presence of probable cause to support the arrest, and whether clearly established law at the time of Howards’ arrest so held,” 132 S. Ct at 2093, and reversed and remanded in an opinion written by Justice Thomas. Justice Thomas first noted that the Court was not reaching the question of whether a First Amendment claim was actionable at all under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999 (1971).  In accordance with Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808 (2009), Justice Thomas chose to address the issue of whether the lower court properly granted qualified immunity on the ground that “a purported right was not ‘clearly established’ by prior case law, without resolving the often more difficult question whether the purported right exists at all.” Reichle v. Howards, 132 S.Ct. at 2093.

Addressing that issue, Justice Thomas articulated the highly particularized standard first articulated by the Court in Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034 (1987) and refined in Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) that: to be clearly established, a right must be sufficiently clear that every “reasonable official would [have understood] that what he is doing violates that right,” . . . in other words “existing precedent must have placed the statutory or constitutional question beyond debate.” 132 S. Ct. at 2093.

Rejecting Howards’ argument that  prior Supreme Court precedent which established a generalized right to be free from  retaliation for exercise of First Amendment rights clearly established the right in question, Justice Thomas found that “this Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause.”  132 S. Ct. at 2093.  Justice Thomas then analyzed Tenth Circuit precedent and determined that its pre-Hartman decisions were no longer sufficient to clearly establish the right in question:

At the time of Howards’ arrest, Hartman’s impact on the Tenth Circuit’s precedent governing retaliatory arrests was far from clear. Although the facts of Hartman involved only a retaliatory prosecution, reasonable officers could have questioned whether the rule of Hartman also applied to arrests. 132 S. Ct. at 2095. This was so, according to Justice Thomas, because:

like retaliatory prosecution cases, evidence of the presence or absence of probable cause for the arrest will be available in virtually every retaliatory arrest case. Such evidence could be thought similarly fatal to a plaintiff’s claim that animus caused his arrest, given that retaliatory arrest cases also present a tenuous causal connection between the defendant’s alleged animus and the plaintiff’s injury. An officer might bear animus toward the content of a suspect’s speech. But the officer may decide to arrest the suspect because his speech provides evidence of a crime or suggests a potential threat. … Like retaliatory prosecution cases, then, the connection between alleged animus and injury may be weakened in the arrest context by a police officer’s wholly legitimate consideration of speech. 132 S. Ct. at 2095-96.  To further demonstrate that the particular right in question was not clearly established, Justice Thomas noted that post-Hartman decisions in several Circuit Courts of Appeals – – – both before and after Howards’ arrest – – – held that Hartman applied to probable cause arrest cases. See Barnes v. Wright, 449 F.3d 709, (6th Cir. 2006); McCabe v. Parker, 608 F.3d 1068, 1075 (8th Cir. 2010); Phillips v. Irvin, 222 Fed. Appx. 928, 929 (11th Cir. 2007) (per curiam).

Justice Ginsburg, joined by Justice Sotomayor, wrote a concurring opinion which joined in the judgment.  Justice Ginsburg first analyzed the Hartman holding in order to conclude that it “does not support” an “ordinary law enforcement officer[s’]” “entitlement to qualified immunity”:

Hartman involved a charge of retaliatory prosecution. As the Court explains, the defendant in such a case cannot be the prosecutor who made the decision to pursue charges. See ante, at ___, 182 L. Ed. 2d, at 992; Hartman, 547 U.S., at 262, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (noting that prosecutors are “absolutely immune from liability for the decision to prosecute”). Rather, the defendant will be another government official who, motivated by retaliatory animus, convinced the prosecutor to act. See ibid.; ante, at ___, 182 L. Ed. 2d, at 993. Thus, the “causal connection [a plaintiff must establish in a retaliatory-prosecution case] is not merely between the retaliatory animus of one person and that person’s own injurious action, but between the retaliatory animus of one person and the action of another.” Hartman, 547 U.S., at 262, 126 S. Ct. 1695, 164 L. Ed. 2d 441. This “distinct problem of causation” justified the absence-of-probable-cause requirement we recognized in Hartman. Id., at 263, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (Proof of an absence of probable cause to prosecute is needed “to bridge the gap between the non prosecuting government agent’s motive and the prosecutor’s action.”). See also id., at 259, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (“[T]he need to prove a chain of causation from animus to injury, with details specific to retaliatory-prosecution cases, . . . provides the strongest justification for the no-probable-cause requirement.” (emphasis added)).  132 S. Ct. at 2097.

In contrast, “because, in the usual retaliatory-arrest case, there is no gap to bridge between one government official’s animus and a second government official’s action,” Justice Ginsburg concluded that “Hartman’s no-probable-cause requirement is inapplicable.” 132 S. Ct. at 2097.

Nonetheless, Justice Ginsburg concurred in the judgment because the defendants seeking qualified immunity were “officers assigned to protect public officials” and must thereby “make swift on the spot decisions whether the safety of the person they are guarding is in jeopardy.” Id.  Hence, in performing those duties “they rightly take into account words spoken to, or in the proximity of, the person whose safety is their charge.” Id. Therefore, “whatever the views of Secret Service Agents Reichle and Doyle on the administration’s policies in Iraq” happened to be, they “were duty bound to take the content of Howards’ statements into account in determining whether he posed an immediate threat to the Vice President’s physical security.” Id. Consequently, in Justice Ginsburg’s view, “retaliatory animus cannot be inferred from the assessment they made in that regard. If rational, that assessment should not expose them to claims for civil damages.” Id. at 2098.

Qualified Immunity: Filarsky v. Delia

In Filarsky v. Delia, 132 S. Ct. 1657 (2012), the Supreme Court, in a unanimous decision written by Chief Justice Roberts, ruled that a private individual temporarily retained by the government to carry out its work is entitled to seek qualified immunity from suit, even though that individual does not work for the government on a permanent or full‑time basis.

Nicholas Delia, a firefighter employed by the City of Rialto, California, became ill while responding to a toxic spill in August 2006.  Id. at 1660.  Under a doctor’s orders, Delia missed three weeks of work.  Id.  Suspicious of Delia’s extended absence, the City hired a private investigation firm to conduct surveillance on him.  Id.  The private investigators observed Delia purchasing building supplies – including several rolls of fiberglass insulation – from a home improvement store.  Id.  The City suspected that Delia was missing work to do construction on his home rather than because of illness, and it initiated a formal internal investigation of him.  Id.

Delia was ordered to appear for an administrative investigation interview.  Id.  The City hired Steve Filarsky to conduct the interview.  Id.  Filarsky was an experienced employment lawyer who had previously represented the City in several investigations.  Id.  Delia and his attorney attended the interview, along with Filarsky and two fire department officials.  Id.  During the interview, Filarsky questioned Delia about the building supplies.  Id.  Delia explained that he had not yet done the work on his home.  Id.  During a break, Filarsky met with Fire Chief Stephen Wells and the two fire department officials and recommended asking Delia to produce the building materials.  Id.  Chief Wells approved the plan.  Id.

When the interview resumed, Filarsky requested permission for one of the fire department officials to enter Delia’s home to view the materials.  Id.  On the advice of counsel, Delia refused.  Id.  Filarsky then asked Delia if he would be willing to bring the materials out onto his lawn, so that the fire department officials could observe them without entering his home.  Id.  Delia again refused to consent.  Id.  Filarsky then ordered Delia to produce the materials for inspection.  Id.  Delia’s counsel objected to the order, asserting that it would violate the Fourth Amendment and threatened to sue the City and Filarsky.  Id.  Despite these threats, Filarsky prepared an order, which Chief Wells signed, directing Delia to bring the materials out of his house and place them on his lawn for inspection.  Id. at 1661.  Filarsky recommended this course mindful that an individual does not have an expectation of privacy in items exposed to the public, thereby eliminating the need for a search warrant.  Id.

As soon as the interview concluded, the fire department officials followed Delia to his home.  Id.  Once there, Delia complied with Chief Wells’ order by producing the materials, all of them unused, after which the investigation into the legitimacy of Delia’s absence from work apparently ended.  Id.

Delia brought an action under 42 U.S.C. § 1983 against the City, the Fire Department, Filarsky, and other individuals, alleging that the order to produce the building materials violated his Fourth and Fourteenth Amendment rights.  Id.  The District Court granted summary judgment to the individual defendants on the basis of qualified immunity.  Id.  The court held that Delia “had not demonstrated the violation of a clearly established constitutional right,” because Delia was not threatened with insubordination or termination if he did not comply with any order given and none of these defendants entered [his] house.”  Id.  The Ninth Circuit Court of Appeals affirmed with respect to all individual defendants except Filarsky.  Id.  The Court of Appeals concluded that the order violated the Fourth Amendment, but agreed with the District Court that Delia had not demonstrated that a constitutional right was clearly established as of the date of the order, such that the defendants would have known that their actions were unlawful.  Id.  As to Filarsky, however, the court concluded that because he was a private attorney and not a City employee, he was not entitled to seek qualified immunity.  Id.  Filarsky filed a petition for certiorari.  Id.

In determining whether Filarsky was entitled to seek qualified immunity, the Court looked to the general principles of tort immunities and defenses applicable at common law as it existed when Congress passed § 1983 in 1871.  Id. at 1662.  Using numerous examples of individuals receiving immunity for actions taken while engaged in public service on a temporary or occasional basis, the Court explained that the common law as it existed in 1871 did not draw a distinction between full-time public servants and private individuals engaged in public service in according protection to those carrying out government responsibilities.  Id. at 1662-65.  Since § 1983 should be read “in harmony” with the common law of torts and immunities in 1871, the Court held that “immunity under § 1983 should not vary depending on whether an individual working for the government does so as a full-time employee, or on some other basis.”  Id. at 1665.

The Court noted that the policy reasons it has given for recognizing immunity under § 1983 – – avoiding “unwarranted timidity” on the part of those engaged in the public’s business; and ensuring that talented candidates are not deterred by the threat of damages suits from entering public service – – support carrying forward the common law rule regardless of whether the individual sued as a state actor works for the government full-time or on some other basis.  Id. at 1665-66.

Justice Ginsburg concurred, saying that, on remand, the Ninth Circuit should address the issue of whether Filarsky’s conduct violated clearly established law:

First, if it is “clearly established” as the Ninth Circuit thought it was, that “the warrantless search of a home is presumptively unreasonable,” [Delia v. Rialto, 621 F.3d 1069, 1075 (CA9 2010)], and that a well-trained investigating officer would so comprehend, may an official circumvent the warrant requirement by ordering the person under investigation to cart his personal property out of the house for inspection? And if it is “clearly established” that an employee may not be fired for exercising a constitutional right, see id., at 1079, is it not equally plain that discipline or discharge may not be threatened to induce surrender of such a right?  Id. at 1669.

Justice Sotomayor also concurred, but she observed that it did not necessarily follow from the Court’s holding “that every private individual who works for the government in some capacity necessarily may claim qualified immunity when sued under 42 U.S.C. § 1983.”  Id. at 1669.  Such cases, she explained, should be decided “as they arise, as is our longstanding practice in the field of immunity law.”  Id. at 1670.

Witness Immunity: Rehberg v. Paulk

In Rehberg v. Paulk, 132 S. Ct. 1497 (2012), the Supreme Court, in a unanimous decision written by Justice Alito, held that a government official who acts as a “complaining witness” in a grand jury proceeding by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a § 1983 claim for civil damages.

Charles Rehberg, a certified public accountant, sent anonymous faxes to several recipients, including the management of a hospital in Albany, Georgia, criticizing the hospital’s management and activities.  Id. at 1500.  In response, the local district attorney’s office, with the assistance of its chief investigator, James Paulk, launched a criminal investigation of Rehberg, allegedly as a favor to the hospital’s leadership.  Id.

Paulk testified before a grand jury, and Rehberg was then indicted for aggravated assault, burglary, and six counts of making harassing telephone calls.  Id. at 1501.  The indictment charged that Rehberg had assaulted a hospital physician, Dr. James Hotz, after unlawfully entering the doctor’s home.  Id.  Rehberg challenged the sufficiency of the indictment, and it was dismissed.  Id.  A few months later, Paulk returned to the grand jury, and Rehberg was indicted again, this time for assaulting Dr. Hotz on August 22, 2004, and for making harassing telephone calls.  Id.  On this occasion, both the doctor and Paulk testified.  Id.  Rehberg challenged the sufficiency of this second indictment, claiming that he was “nowhere near Dr. Hotz” on the date in question and that “[t]here was no evidence whatsoever that [he] committed an assault on anybody.”  Id.  Again, the indictment was dismissed.  Id.  While the second indictment was still pending, Paul appeared before a grand jury for a third time, and yet another indictment was returned.  Id.  Rehberg was charged with assault and making harassing phone calls.  Id.  This final indictment was ultimately dismissed as well.  Id.

Rehberg then brought this action against Paulk under 42 U.S.C. § 1983, alleging that Paulk conspired to present and did present false testimony to the grand jury.  Id.  Paulk moved to dismiss, arguing that he was entitled to absolute immunity for his grand jury testimony.  Id. The District Court denied Paulk’s motion to dismiss, but the Eleventh Circuit Court of Appeals reversed, holding that Paulk was absolutely immune from a § 1983 claim based on his grand jury testimony.  Id.  The Court of Appeals noted Rehberg’s allegation that Paulk was the sole “complaining witness” before the grand jury, but declined to recognize a “complaining witness” exception to its precedent on grand jury witness immunity.  Id.  “[A]llowing civil suits for false grand jury testimony,” the court reasoned, “would . . . emasculate the confidential nature of grand jury testimony, and eviscerate the traditional absolute immunity for witness testimony in judicial proceedings.”  Id.  The Court of Appeals went on to hold that Paulk was entitled to absolute immunity, not only with respect to claims based directly on his grand jury testimony, but also with respect to the claim that he conspired to present such testimony.  Id.

The Court began its analysis by looking to the common law background in 1871 for guidance in determining the scope of the immunities available in a § 1983 action:

We consult the common law to identify those governmental functions that were historically viewed as so important and vulnerable to interference by means of litigation that some form of absolute immunity from civil liability was needed to ensure that they are performed with independence and without fear of consequences.  Id. at 1503.

The Court identified the following functions that are absolutely immune from liability for damages under § 1983: actions taken by legislators within the legitimate scope of legislative authority; actions taken by judges within the legitimate scope of judicial authority; actions taken by prosecutors in their role as advocates; and the giving of testimony by witnesses at trial.  Id.  The Court then noted that this functional approach to immunities did not simply duplicate the scope of common law immunities.  Id.  Using prosecutorial immunity as an example, the Court pointed out that in 1871 prosecutors were private and were not protected by absolute immunity, but when prosecutors later became public officials, the Court had held in Imbler v. Pachtman, 424 U.S. 409 (1976), that they were protected by absolute immunity for their prosecutorial conduct.  Id. at 1504.

Turning to the merits, the Court found that the factors that justify absolute immunity for trial witnesses as set forth in Briscoe v. Lahue, 460 U.S. 352 (1983), apply with equal force to grand jury witnesses:

When a witness is sued because of his testimony, the Court wrote [in Briscoe], “the claims of the individual must yield to the dictates of public policy.”  460 U.S., at 332-333, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (quoting Calkins v. Sumner, 13 Wis. 193, 197 (1860)).  Without absolute immunity for witnesses, the Court concluded, the truth-seeking process at trial would be impaired.  Witnesses “might be reluctant to come forward and testify,” and even if a witness took the stand, the witness “might be inclined to shade his testimony in favor of the potential plaintiff” for “fear of subsequent liability.” 460 U.S. at 333, 103 S. Ct. 1108, 75 L. Ed. 2d 96 . . . In both contexts a witness’ fear of retaliatory litigation may deprive the tribunal of critical evidence.  And in neither context is the deterrent of potential civil liability needed to prevent perjurious testimony.  In Briscoe, the Court concluded that the possibility of civil liability was not needed to deter false testimony at trial because other sanctions – chiefly, prosecution for perjury – provided a sufficient deterrent.  Id., at 342, 103 S. Ct. 1108, 75 L. Ed. 2d 96.   Since perjury before a grand jury, like perjury at trial, is a serious criminal offense, see, e.g., 18 U.S.C. § 1623(a), there is no reason to think that this deterrent is any less effective in preventing false grand jury testimony. Id. at 1505.

The Court concluded that “grand jury witnesses should enjoy the same immunity as witnesses at trial.” Id. at 1506.  The Court further held that “this rule may not be circumvented by claiming that a grand jury witness conspired to present false testimony or by using evidence of the witness’ testimony to support any other § 1983 claim concerning the initiation or maintenance of a prosecution.”  Id.

The Court noted that its decision was not at odds with Malley v. Briggs, 475 U.S. 335 (1986) and Kalina v. Fletcher, 522 U.S. 118 (1997).  Id. at 1507.  In those cases, law enforcement officials who submitted affidavits in support of applications for arrest warrants were denied absolute immunity because they “performed the function of a complaining witness.”  Id. at 1507.  The Court explained that the “complaining witness” exception of Malley and Kalina did not apply to grand jury testimony because the term “complaining witness” had a distinct meaning in 1871 – – “complaining witnesses” did not ordinarily testify before grand juries or at criminal trials; rather, they were parties who procured arrests and initiated criminal prosecutions, as the law enforcement officer did in Malley. Id. Once the distinctive function performed by a “complaining witness” is understood, the Court said, it is apparent that a law enforcement officer who testifies before a grand jury is not comparable to a “complaining witness” because it is not the officer who makes the critical decision to press criminal charges, but the prosecutor.  Id.

Juvenile Justice: Miller v. Alabama

On  June 25, 2012, a sharply divided Court, in a 5-4 decision written by Justice Elena Kagan, decided the companion cases of Miller v. Alabama and Jackson v. Hobbs,  ___ U.S. ___132 S. Ct. 2455 (2012). The Petitioner in each case was a 14 year old juvenile who had been convicted of murder and been given a mandatory life without parole sentence, one by the State of Alabama, the other by the State of Arkansas.

In November of 1999 Kuntrell Jackson, together with two other young boys, set out to rob an Arkansas video store, but when Jackson learned that one of the boys had a sawed off shotgun concealed in his sleeve, Jackson chose to stay outside of the store and stand lookout. He later entered the store, where the clerk was refusing to turn over the money demanded by the robbers. Jackson said either “we ain’t playin’,” or “I thought you all was playin’.” 2012 U.S. LEXIS 4873 at *10. When the clerk threatened to call the police, the boy with the sawed-off shotgun shot and killed her.

Evan Miller was a mentally disturbed 14 year old whose mother was an addict, whose stepfather physically abused him, and who had repeatedly attempted suicide, the first time being when he was six years old. In 2003, Miller and a friend robbed a neighbor after he passed out in his Alabama trailer, and when the neighbor awoke and resisted, they viciously beat him unconscious with a baseball bat, then later returned to the trailer and set it on fire to cover up their crimes. The neighbor died from his injuries and smoke inhalation from the fire.

Both boys were transferred to adult court pursuant to statute.  Miller’s attorney had unsuccessfully attempted to call a mental health expert at his transfer hearing. Both boys were convicted of capital murder, Jackson on an accountability theory, Miller after his co-defendant turned state’s evidence. Both boys were sentenced to mandatory life without parole. After their convictions and sentences were affirmed on direct appeal, and the dismissal of Jackson’s habeas petition was likewise affirmed, Miller and Jackson  filed separate petitions for certiorari to the U.S. Supreme Court, which were granted in tandem, and the Court consolidated the cases for argument. Jackson v. Hobbs, 132 S. Ct. 548 (2011).

The five Justice majority, which included Justice Kennedy, held that mandatory life without parole sentences for juveniles in homicide cases transgressed the “evolving standards of decency that mark the progress of a maturing society,” and therefore violated the Eighth Amendment. 2012 U.S. LEXIS 4873 at *17. The majority relied heavily on two of the Court’s prior decisions concerning juvenile offenders – – – Roper v. Simmons, 543 U.S. 551, 560, 125 S. Ct. 1183, (2005), which held that the Eighth Amendment bars the death penalty for juveniles, and Graham v. Florida, 560 U.S. ___, ___, 130 S. Ct. 2011 (2010), which held that the Eighth Amendment forbids the imposition of a life without parole sentence on a juvenile for a non-homicide offense.

Justice Kagan, who wrote the majority opinion, first noted that the cases before the Court “implicate two strands of precedent” – – – the first “has adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty,” while the second requires “individualized sentencing when imposing the death penalty.” 2012 U.S. LEXIS 4873 at *17-18, 28. With regard to the first strand, Justice Kagan made a compelling case for the evolving proposition that juveniles are different than adults when it comes to culpability, intent, and prospects for positive rehabilitation:

First, children have a “‘lack of maturity and an underdeveloped sense of responsibility,’” leading to recklessness, impulsivity, and heedless risk-taking. Roper, 543 U.S., at 569, 125 S. Ct. 1183, 161 L. Ed. 2d 1. Second, children “are more vulnerable . . . to negative influences and outside pressures,” including from their family and peers; they have limited “contro[l] over their own environment” and lack the ability to extricate themselves from horrific, crime-producing settings. Ibid. And third, a child’s character is not as “well formed” as an adult’s; his traits are “less fixed” and his actions less likely to be “evidence of irretrievabl[e] deprav[ity].” Id., at 570, 125 S. Ct. 1183, 161 L. Ed. 2d 1.

2012 U.S. LEXIS 4873 at *20-21.

Justice Kagan pointed to “developments in psychology and brain science” that “continue to show fundamental differences between juvenile and adult minds,” and that the “distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.” 2012 U.S. LEXIS 4873 at *21, 23.  Hence “by removing youth from the balance–by subjecting a juvenile to the same life-without-parole sentence applicable to an adult”

these laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender. That contravenes Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.  2012 U.S. LEXIS 4873 at *26-27.

Justice Kagan then pointed to the “share[d] characteristics” of a sentence of death and one for life without parole that are not shared by any other sentences:

Imprisoning an offender until he dies alters the remainder of his life “by a forfeiture that is irrevocable.”… And this lengthiest possible incarceration is an “especially harsh punishment for a juvenile,” because he will almost inevitably serve “more years and a greater percentage of his life in prison than an adult offender.” Graham, 560 U.S., at ___, 130 S. Ct. 2011, 176 L. Ed. 2d 825. 2012 U.S. LEXIS 4873 at *27.

Justice Kagan next turned to the second set of precedents – – – those that require that the sentencer “have the ability to consider the “mitigating qualities of youth.” Id. at 29. Noting that youth are often immature, irresponsible, impetuous and reckless, and further that these “‘signature qualities’ are all ‘transient,’” she found that mandatory life without parole penalties

by their nature, preclude a sentence from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it. Under these schemes, every juvenile will receive the same sentence as every other–the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one. And still worse, each juvenile (including these two 14-year-olds) will receive the same sentence as the vast majority of adults committing similar homicide offenses–but really, as Graham noted, a greater sentence than those adults will serve. In meting out the death penalty, the elision of all these differences would be strictly forbidden. And once again, Graham indicates that a similar rule should apply when a juvenile confronts a sentence of life (and death) in prison.

2012 U.S. LEXIS 4873 at *30-31.

Summing up on this point, Justice Kagan wrote:

Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features–among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him–and from which he cannot usually extricate himself–no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth–for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. See, e.g., Graham, 560 U.S., at ___, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (“[T]he features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings”); J. D. B. v. North Carolina, 564 U.S. ___, ___, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011) (discussing children’s responses to interrogation). And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.

2012 U.S. LEXIS 4873 at *32-33.

For the majority, Justice Kagan then articulated the Court’s holding:

We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. Cf. Graham, 560 U.S., at ___, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (“A State is not required to guarantee eventual freedom,” but must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation”). By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.

2012 U.S. LEXIS 4873 at *35.

She then stated what the majority did not reach:

Because [our] holding is sufficient to decide these cases, we do not consider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger. But given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Roper, 543 U.S., at 573, 125 S. Ct. 1183, 161 L. Ed. 2d 1; Graham, 560 U.S., at ___, 130 S. Ct. 2011, 176 L. Ed. 2d 825. Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.

2012 U.S. LEXIS 4873 at *35-36.

Justice Breyer joined fully in the majority’s opinion, but wrote separately to emphasize, with Justice Sotomayor, that a life without parole sentence should not be imposed on a juvenile in a transferred intent case, such as Petitioner Jackson’s, where he neither killed nor intended to kill:

At base, the theory of transferring a defendant’s intent is premised on the idea that one engaged in a dangerous felony should understand the risk that the victim of the felony could be killed, even by a confederate. See 2 LaFave, supra, §14.5(c). Yet the ability to consider the full consequences of a course of action and to adjust one’s conduct accordingly is precisely what we know juveniles lack capacity to do effectively. Ante, at 8-9.

2012 U.S. LEXIS 4873 at *59.

Quoting Justice Felix Frankfurter, Justice Breyer concluded with regard to Kuntrell Jackson:

“Legal theories and their phrasing in other cases readily lead to fallacious reasoning if uncritically transferred to a determination of a State’s duty toward children.” May v. Anderson, 345 U.S. 528, 536, 73 S. Ct. 840, 97 L. Ed. 1221, 67 Ohio Law Abs. 468 (1953) (concurring opinion [of Justice Frankfurter]). To apply the doctrine of transferred intent here, where the juvenile did not kill, to sentence a juvenile to life without parole would involve such “fallacious reasoning.” Ibid.

2012 U.S. LEXIS 4873 at *59.

Chief Justice Roberts, and Justices Alito, Thomas and Scalia dissented, with all but Scalia writing opinions. Their dissents in many respects parroted the arguments of the Respondent states of Arkansas and Alabama. Justice Thomas, joined by Scalia, bemoaned the fact that disproportionate punishment and evolving standards of decency were not contemplated by the framers of the Eighth Amendment. Chief Justice Roberts played lip service to the “grave and challenging questions of morality and social policy” presented when “determining the appropriate sentence for a teenager convicted of murder,” but went on to attempt to show that life without parole for juveniles convicted for murder was not “unusual” within the meaning of the Eighth Amendment. 2012 U.S. LEXIS 4873 at *61. In conclusion, the Chief Justice played the law and order card, shifting the focus from the juvenile offenders to the victims of their crimes and society’s supposed shift towards harsher prison sentences:

It is a great tragedy when a juvenile commits murder–most of all for the innocent victims. But also for the murderer, whose life has gone so wrong so early. And for society as well, which has lost one or more of its members to deliberate violence, and must harshly punish another. In recent years, our society has moved toward requiring that the murderer, his age notwithstanding, be imprisoned for the remainder of his life. Members of this Court may disagree with that choice. Perhaps science and policy suggest society should show greater mercy to young killers, giving them a greater chance to reform themselves at the risk that they will kill again. See ante, at 8-11. But that is not our decision to make. Neither the text of the Constitution nor our precedent prohibits legislatures from requiring that juvenile murderers be sentenced to life without parole.

2012 U.S. LEXIS 4873 at *75-76.

Justice Alito, joined by Justice Scalia, dropped all pretense of even handedness, and instead argued a hardline law and order position. Conjuring up a worst case scenario, Justice Alito intoned that, under the majority’s decision, “even a 17 1/2-year-old who sets off a bomb in a crowded mall or guns down a dozen students and teachers is a ‘child’ and   must be given a chance to persuade a judge to permit his release into society.” 2012 U.S. LEXIS 4873 at *89-90. In his view “nothing in the Constitution supports this arrogation of legislative authority.” Id. at *90. He also attacked the Eighth Amendment “evolving standard of decency” standard stating:

Both the provenance and philosophical basis for this standard were problematic from the start. (Is it true that our society is inexorably evolving in the direction of greater and greater decency? Who says so, and how did this particular philosophy of history find its way into our fundamental law? And in any event, aren’t elected representatives more likely than unaccountable judges to reflect changing societal standards?) But at least at the start, the Court insisted that these “evolving standards” represented something other than the personal views of five Justices.

2012 U.S. LEXIS 4873 at *90-91.

Justice Alito then predicted that the majority may soon further extend its holding in order to ban life without parole sentences in all juvenile homicide cases. In conclusion, Justice Alito raised the specter of depraved juvenile murderers being released on parole only to murder again later in life, and darkly warned that

unless our cases change course, we will continue to march toward some vision of evolutionary culmination that the Court has not yet disclosed. The Constitution does not authorize us to take the country on this journey.

2012 U.S. LEXIS 4873 at *99.

Justice Kagan persuasively and painstakingly rebutted these arguments and their rationales throughout her majority opinion. See, e.g., 2012 U.S. LEXIS 4873 at *19 n. 6 (pointing out that the dissenters also dissented in Graham and Roper and were attempting to reargue many of the same issues that were rejected there and in other previous Eighth Amendment cases); Id., at *25, n. 6 (asserting that the dissents “essentially ignore” Graham’s rationale concerning youth being different than adults); Id. at *36-37; (criticizing as “ironic” Justice Alito’s use of the most heinous crimes committed by 17½ year olds to make his point); and Id. at 38 (calling Justice Thomas’ argument concerning the Eighth Amendment “myopic”). Justice Kagan saved her sharpest and most frequent criticisms for Chief Justice Roberts and his dissenting opinion. See, Id. at 44 n. 10 (Chief Justice’s analysis concerning statistics “carries little weight”); Id. at *46, n 10 (his characterization of the majority’s opinion “no way resembles” what it truly says); and Id. at *47-48 n. 12.

Once again, Justice Kennedy joined the moderate block of four Justices to push back against the Draconian forces that have fought so hard to keep the United States in the dark ages when it comes to the death penalty and juvenile justice.  Hopefully, Justice Kagan’s powerful brief for our country’s troubled youth will, as Justice Alito fears, be another step in an unstoppable progression that results in the elimination of the death penalty and in a sentencing system that is more humane and less vindictive for children and adults alike.


In its 2011-2012 term, the Court continued its disturbing trend of expanding absolute and qualified immunity for law enforcement, making it ever more difficult for victims of police misconduct to have their claims decided by a jury.  Although Miller v. Alabama represents the one bright spot in an otherwise dismal term for police misconduct and criminal justice litigators, the case is also very troubling, as its dissenting opinions provide another chilling glimpse into the heartless agenda of the Court’s ultraconservative majority, who will no doubt continue to apply their merciless worldview to cases involving victims of police violence, other police misconduct, and the criminal justice system. Except for the infrequent occasions when Justice Kennedy abandons their cause, this conservative block promises to inflict further irreparable harm on those who already bear the brunt of this county’s runaway inequality.

Civil Rights Lawsuit Filed on behalf of Jonathan Barr of Dixmoor 5

People’s Law Office Lawyers File Dixmoor Five Lawsuit on Behalf of Jonathan Barr

Five innocent men, known as the Dixmoor Five, today filed civil rights complaints in Federal District Court alleging that their Constitutional rights to a fair trial were violated when they were wrongfully convicted for the brutal 1991murder and rape of a young girl. The complaint alleges that Illinois state and Dixmoor police officers, unable to solve the crime, coerced three of the Five to falsely confess to the crimes, and to name the two others as additional perpetrators. Despite the fact that DNA evidence excluded the Five, the suits allege that they were convicted on the basis of the false testimony of two of the young men who had confessed and who were offered leniency in exchange for their false testimony.

The People’s Law Office together with the noted New York firm of Neufeld, Scheck, and Brustin, today filed a complaint for damages on behalf of one of the men, Jonathan Barr, who was 14 at the time of the murder. Arrested a year after the murder, Barr did not confess, but was convicted solely on the false and fabricated testimony and spent more than 18 years in prison before he was finally released in 2009. After a belated DNA match established that a 33 year old repeat sex offender committed the crime, Barr was exonerated and subsequently received a certificate of innocence from the criminal court of Cook County. Speaking eloquently at a press conference called to announce the filings, Barr talked of losing his mother, father, and grandmother before he was released from prison, and his desire for justice, not only for himself, but also for all the men and women who have been unjustly convicted.

More Information:
Sun-Times Article: Dixmoor 5, Wrongfully Convicted of Murder, Sue Police
People’s Law Office work on other Wrongful Convictions