Suit: CPD limiting access to lawyers, calls
Wednesday, June 24, 2020
Chicago Daily Law Bulletin
by Andrew Maloney
Claiming a history of “incommunicado detention” that’s grown worse due to protests and a pandemic, the Cook County Public Defender and several legal-aid groups sued to force police to give arrestees better access to lawyers and phone calls.
The public defender, Black Lives Matter Chicago, multiple law school clinics and several others filed a two-count complaint arguing the Chicago Police Department has official and de facto policies that violate state law on providing calls and private counsel within a reasonable amount of time.
In a 28-page filing Tuesday, the plaintiffs seek a writ of mandamus and a permanent injunction ordering the police to comply with sections of the state Criminal Code that say detainees “shall have the right” to talk to an attorney in private, with a “reasonable” amount of phone calls in a “reasonable” amount of time after arrest.
They claim CPD initially wouldn’t allow defense lawyers who were wary of COVID-19 to speak with detainees remotely. Eventually, it would only do so if defendants signed a form stating they weren’t guaranteed privacy during such phone consultations.
Additionally, according to the complaint, the department “systematically impeded” lawyers from speaking to clients for hours or even up to a day as protests following the death of George Floyd in Minneapolis spread across the city.
“The protests are ongoing and CPD continues to arrest people participating in or witnessing these demonstrations. CPD also continues to deny people in CPD custody, including members of the [p]laintiff organizations, access to attorneys and phones during non-protest related arrests,” the complaint states.
“CPD continues to prohibit defense attorneys from meeting with and talking to their clients, alone and in private. And CPD continues to block attorneys from locating clients and learning the charges lodged against them.”
A spokesperson for the city’s Law Department said in a statement it “strongly” disagrees with the claims and will “vigorously defend against these allegations.”
Section 103-3 of the Code of Criminal Procedure states that people who are arrested “shall have the right to communicate with an attorney of their choice and a member of their family by making a reasonable number of telephone calls.”
It also states such communiques “shall be permitted within a reasonable time after arrival at the first place of custody.” The plaintiffs noted the Administrative Code defines “reasonable time” as “generally within the first hour” after a detainee is brought to his or her first place of custody.
Section 103-4 also states someone who is arrested, except in cases of imminent danger or escape, shall be able to consult with a lawyer “alone and in private” while in custody.
The first count of the complaint, filed in the Chancery Division of Cook County Circuit Court, is for mandamus relief and cites the aforementioned sections while arguing the police have an affirmative duty to follow them. The second count is a state law claim that cites Section 103-3.
The filing claims Chicago police arrested more than 2,600 individuals for participating in demonstrations between May 29 — a few days after Floyd was killed by a Minneapolis officer who planted his knee on his neck for an extended period of time — and the following week.
Representatives from the plaintiff groups attested they routinely got busy signals or were denied access to clients for hours. Some said they were intentionally misled about their clients’ whereabouts by police.
Public Defender Amy P. Campanelli said police stations have long refused to post her office’s number for detainees, and that since the pandemic, detainees have been told to sign a waiver before they could use the phone. The waiver stated defendants “may not use any inadvertent overhear as a basis to defeat criminal charges or in civil litigation.”
The filing also cites to surveys conducted by the public defender’s office, finding a quarter of nearly 1,500 bond court respondents stated the police never offered them phone access, and the average wait time of those who were eventually offered a call was more than four hours.
In two separate surveys, between 10 and 13% of respondents said they were given an attorneys’ number at the police station.
“The severity of this type of misconduct has increased in recent weeks,” the filing claims. “CPD has denied and continues to deny arrestees legal representation and telephone access, using the COVID19 pandemic and recent community protests as cover for their unlawful conduct.”
In a statement on Tuesday, Campanelli noted the Criminal Code protections have been in place since 1963.
“For seven decades, Chicago police have not been held accountable for this systemic violation of human rights. If the police just followed the law, we would no longer be the false confession capital of the world and communities would have greater trust for and cooperation with the Chicago Police Department,” she said in the statement.
The Law Department countered that the allegations made by the plaintiffs are self-defeating.
“Indeed, the complaint itself makes clear that the CPD continues to allow lawyers to consult with their clients,” the office said in an email. “Plaintiffs’ demand that they be allowed a specific, alternative method does not take into account appropriate security conditions and resource limitations.”
The plaintiffs also include the National Lawyers Guild and First Defense Legal Aid.
The group is represented by the Roderick and Solange MacArthur Justice Center, the University of Chicago Law School Mandel Legal Clinic, the Community Justice and Civil Rights Clinic at the Northwestern Pritzker School of Law, Shiller Preyar Jarard & Samuels, FDLA and People’s Law Office.
The case is #LetUsBreathe Collective, et al., v. City of Chicago, 20 CH 4654.