Case: 1:17-cv-06260 Document #: 160 Filed: 10/12/18 Page 1 of 11 PageID #:2306

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF
ILLINOIS EASTERN DIVISION

STATE OF ILLINOIS,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CITY OF CHICAGO,
Defendant.

Case No. 17-cv-6260
Judge Robert M. Dow, Jr.

UNITED STATES’ STATEMENT OF INTEREST
OPPOSING PROPOSED CONSENT DECREE 1

Over the last several years, the City of Chicago has experienced an alarming and
unprecedented surge in violent crime and homicide. From 2015 to 2016, violent crime increased
by twenty-two percent and murders increased by nearly sixty percent. Compare Fed. Bureau of
Investigation, Crime in the United States, Table 6 (2015) (24,663 violent crimes and 478 murders),
to Fed. Bureau of Investigation, Crime in the United States, Table 4 (2016) (30,126 violent crimes
and 765 murders). The victims of this violent crime often reside in the City’s most vulnerable
neighborhoods. This violence must end. The safety of the people of Chicago is paramount, and it
cannot be achieved without the Chicago Police Department (“CPD”).

The CPD must be

empowered to properly utilize proven, effective, constitutional law enforcement tactics. The

The United States files this Statement of Interest under 28 U.S.C. § 517, which permits
the Attorney General to attend to the interests of the United States in any case pending in a federal
court. The United States has a substantial interest in this case because its resolution will have a
significant impact on public safety in Chicago, including public-safety issues addressed by federal
statutes, federal funding, and federal law enforcement officers.
1

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excessive restraints imposed on the CPD by the November 2015 settlement agreement with the
American Civil Liberties Union, with its “Consultant” and many burdensome provisions,
significantly contributed to this shocking homicide rise and increase in violent crime to a historic
and unacceptable level. See Paul G. Cassell, and Richard Fowles, What Caused the 2016 Chicago
Homicide Spike? An Empirical Examination of the ‘ACLU Effect’ and the Role of Stop and Frisks
in Preventing Gun Violence, 2018 U. Ill. L. Rev. __ (forthcoming 2018), available at:
https://ssrn.com/abstract=3145287.
While the leadership of the City of Chicago, the CPD, and the State of Illinois are the frontline officials who must address this crisis, the United States Department of Justice stands ready to
help. Indeed, in the last two years, the Department has increased its federal law enforcement
resources to the City of Chicago by establishing the Chicago Gun Strike Force and committing to
the City twenty-one additional agents from the Bureau of Alcohol, Tobacco, Firearms and
Explosives and seven additional violent crime prosecutors. 2 This influx of federal resources has
led to more federal prosecutions of violent and gun crimes than at any time in Chicago’s recent
history. Today, the Department is adding another five federal prosecutors to establish a new Gun
Crimes Prosecution Team in the Northern District of Illinois.
The responsibility of law enforcement is given to the executive branches of our state, local,
and federal governments. The principal duty of law enforcement is to ensure the safety and
protection of the public in a manner consistent with our Constitution and laws. See Attorney
General Memorandum On Supporting Federal, State, Local and Tribal Law Enforcement (March

2

See Press Release, Dep’t of Justice, Attorney General Jeff Sessions: We Cannot Accept
these
Levels
of
Violence
in
Chicago
(June
30,
2017),
available
at
https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-we-cannot-accept-these-levelsviolence-chicago.
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31, 2017), available at https://www.justice.gov/opa/press-release/file/954916/download.

The

United States Department of Justice partners with local law enforcement agencies, who make up
85% of all law enforcement, to help carry out this mission—both through cooperative crime
prevention and detection operations and through enforcement of state and local agencies’
constitutional obligation to uphold the civil rights of all members of the public. Accordingly, the
Department wholeheartedly supports the goals of ensuring “that Chicago police officers are
provided with the training, resources, and support they need to perform their jobs professionally
and safely” and that “the City [of Chicago] and the [CPD] deliver services in a manner that fully
complies with the Constitution and laws of the United States and the State of Illinois, respects the
rights of the people of Chicago, builds trust between officers and the communities they serve, and
promotes community and officer safety.” Illinois v. Chicago, No. 17-cv-6260, Dkt. No. 107-1
(Sept. 13, 2018 N.D. Il.) (hereinafter “Proposed Consent Decree” or “Decree”) at ¶ 2.
Furthermore, the Department recognizes and supports the efforts that the CPD and local leadership
have already taken to address practices that the Department previously alleged violate the
Constitution. For example, in 2016, the CPD established a committee to oversee its training
program, see id. at ¶¶ 269–70, and the CPD has begun to develop and implement an in-service
training program for its officers, see id. at ¶ 318. In our system of federalism, this kind of local
control and accountability is the best way to secure safe, effective, and constitutional policing.
Given this progress and the expressed determination at both the City and State levels to
address use-of-force issues to ensure constitutional policing, a consent decree that shifts control of
CPD policy and budgets—for the indefinite future—from local, politically accountable officials
to a federal court and a private-party monitor is not tenable while Chicago is addressing the current
challenge of solving its violent-crime crisis. That crisis will not be solved through civil litigation,

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and murders of Chicagoans will not be prevented by subjecting the CPD and its officers to
multiple, costly monitors through various settlement agreements and consent decrees. Nor will
actions that reduce police productivity or restrain their use of lawful procedures advance that goal.
There may be times when ongoing federal court oversight is necessary to ensure that a
recalcitrant local government agency comes into compliance with federal law. But this is not such
a time. The State Attorney General, the Chicago Mayor, and the CPD Superintendent of Police
(“Superintendent”) have all expressed a commitment to ensuring constitutional policing—and as
the duly elected and authorized officials responsible for policing in Chicago, they can
collaboratively bring about the desired reforms without years of entanglement in a federal court
consent decree. 3 Indeed, the parties to this adversarial lawsuit held a joint press conference upon
its filing. Press Release, Illinois Attorney General, Attorney General Madigan Files Lawsuit
Against City of Chicago to Obtain Consent Decree for Police Reform (Aug. 29, 2017); see also
Horne v. Flores, 557 U.S. 433, 449 (2009) (“public officials sometimes consent to, or refrain from
vigorously opposing, decrees that go well beyond what is required by federal law” so that they can
“‘sidestep political constraints’”) (citations omitted).

The Illinois Attorney General, the plaintiff here, has emphasized her office’s commitment
to “work[ing] to provide the people of Chicago with a city and a police department that respects
their rights, protects their safety, and provides support and resources to” CPD officers. Press
Release, Illinois Attorney General, Attorney General Madigan Files Lawsuit Against City of
Chicago to Obtain Consent Decree for Police Reform (Aug. 29, 2017). The Mayor’s Office has
expressed a similar commitment. See, e.g., Press Release, Office of the Mayor, City Builds on
Road to Reform, Immediately Implements Nearly a Third of Police Accountability Task Force
Recommendations (Apr. 21, 2016) (“[T]he city is committing to the police oversight concepts
recommended by the Task Force, including independent investigations of serious police
misconduct, a new Public Safety Auditor, a role for citizen oversight, and increased transparency
and independence for the entire system.”). And CPD Superintendent Johnson has stressed his
commitment to police reform, pointing out the value to policing of “best-in-class training,” “deescalation tactics, body cameras, and cultural sensitivity.” Press Release, Office of the Mayor,
Mayor Emanuel, Chicago Police Celebrate 338 New and Promoted Officers at Graduation (Aug.
28, 2018).
3

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The Supreme Court has explained that, once entered, consent decrees in “institutional
reform litigation” like this case “bind state and local officials to the policy preferences of their
predecessors and may thereby ‘improperly deprive future officials of their designated legislative
and executive powers.’” Id. at 449 (citations omitted). The problem is even more acute when a
mayor who is not running for reelection will sign the Proposed Consent Decree on one of his final
days in office. These decrees “often remain in force for many years, and the passage of time
frequently brings about changed circumstances—changes in the nature of the underlying problem,
changes in governing law or its interpretation by the courts, and new policy insights—that warrant
reexamination of the original judgment.” Id. at 447–48. Consent decrees, such as the one proposed
here, can cause “state and local officials . . . [to] inherit overbroad or outdated consent decrees that
limit their ability to respond to the priorities and concerns of their constituents,” and “constrain[]
their ability to fulfill their duties as democratically-elected officials.” Id. at 449. Once a consent
decree is entered, the parties to the decree are bound to comply with and implement its provisions,
and may seek the court’s amendment or termination of that decree only in the circumstances that
the law or the decree permit. Consent decrees can thus strip local government officials of the
flexibility they need to address evolving issues, and can deprive the local populace of the ability
to control their policies through the democratic process.
These concerns are paramount in this case. The Proposed Consent Decree currently before
the Court will not permit local leaders the flexibility they need to proactively adjust law
enforcement strategies to address the crime wave across the City. This is demonstrated by four
major—and problematic—features of the Decree.
First, the Proposed Consent Decree goes beyond remedying specific violations of federal
law cognizable in federal court. See Horne, 557 U.S. at 450 (“[C]ourts must remain attentive to

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the fact that ‘federal court decrees exceed appropriate limits if they are aimed at eliminating a
condition that does not violate [federal law] or does not flow from such a violation.’”) (citation
omitted; alteration in original). The Decree is a 226-page document governing virtually every
facet of CPD operations, in excruciating detail. The Decree’s 799 paragraphs (and hundreds more
subparagraphs) cover: community policing, impartial policing, crisis intervention, use of force,
recruitment, hiring, promotion, training, supervision, officer wellness and support, accountability,
transparency, and data collection. The broad scope of this Decree is not, as the Supreme Court
requires, “limited to reasonable and necessary implementations of federal law,” and thus “may
‘improperly deprive future officials of their designated legislative and executive powers.’” Id.
(citation omitted).
In addition, micro-management of police department procedures and policies, as
contemplated by the Proposed Consent Decree, can result in decreased responsiveness to residents,
decreased accountability, increased crime, and other unintended and deleterious consequences.
Indeed, there is evidence that the recent deadly crime surge in Chicago resulted, in significant part,
from the sweeping 2015 settlement agreement between the CPD and the American Civil Liberties
Union—an agreement that has already imposed an invasive “Consultant” and significant,
unjustified administrative burdens upon street-level policing, and has dramatically decreased
police officers’ use of commonsense, effective policing tactics. See, e.g., Paul G. Cassell, and
Richard Fowles, What Caused the 2016 Chicago Homicide Spike? An Empirical Examination of
the ‘ACLU Effect’ and the Role of Stop and Frisks in Preventing Gun Violence, 2018 U. Ill. L.
Rev. __ (forthcoming 2018), available at: https://ssrn.com/abstract=3145287 (analyzing the
impact of the settlement agreement). Such overly burdensome administrative requirements not
only decrease officer morale and discourage proven policing practices, but also take officers off

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of the streets—where they are needed to protect neighborhoods and fight crime—and entangle
them in paperwork and red tape.
Second, the Proposed Consent Decree strips the Superintendent—who is appointed by, and
accountable to, the popularly elected Mayor—of his duty and ability to administer the CPD. See
Chicago Municipal Code § 2-24-850(3) (the Superintendent is charged with “administer[ing] the
affairs” of CPD). The Proposed Consent Decree broadly states that the Superintendent “continues
to be in charge” of the CPD, Proposed Consent Decree at ¶ 611, but the specific provisions of the
Decree dictate that the Superintendent will, in fact, cede significant operational control of the CPD
to the Monitor. For example, the Proposed Consent Decree requires the Superintendent to obtain
the Monitor’s approval for each and every one of the hundreds of “policies and procedures required
to be implemented or maintained” by the Decree; for plans affecting a wide swath of CPD
operations, including crisis intervention, officer training, span of control and unity of command,
recruitment, promotion, hiring, officer support systems, equipment and technology, and data
systems; and for “curricula, lesson plans, and course materials” for officer training. See Proposed
Consent Decree at ¶¶ 627, 638–41. Moreover, under the Proposed Consent Decree, the Monitor
must be given “prompt, cooperative, and unobstruct[ed]” access, at any time and without notice to
or approval by the Superintendent, to all “individuals, facilities, meetings, disciplinary
proceedings, reviews, [and] incident scenes.” Id. at ¶¶ 681–82. The Monitor’s substantial degree
of control over the Superintendent and the CPD leave it at best unclear in what operational sense
the Superintendent will “continue[] to be in charge” of the CPD. Here, the Monitor is not
accountable to the local residents who elect local officials and expect them to lead, and the Monitor
cannot and should not act as a substitute for the considered policy judgments and leadership of
local officials, or the difficult, real-time decisionmaking of officers on the beat. This sweeping

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Decree gives far too much power to a private-party Monitor who will control the CPD for years to
come. 4
Third, the Proposed Consent Decree turns over long-term budgetary control of the CPD to
the federal Court and the Monitor through vague mandates that there must be “sufficient funding
and an adequate number of qualified staff” to fulfill the provisions of the sweeping Decree, that
there will be “adequate funding” to develop and implement various programs, and that the City
will be responsible for providing “necessary support and resources” to the CPD. See Proposed
Decree at ¶¶ 521, 605, 706. Because the Decree does not define “sufficient,” “adequate,” or
“necessary,” these budgetary decisions will be left to this federal Court and its Monitor, rather than
local elected officials who are accountable to the residents whose taxes must fund CPD operations
and compliance with the Decree, and who are in the best position to make difficult funding
decisions (and tradeoffs) that affect the community and taxpayers’ daily lives. See Horne, 557
U.S. at 448 (“Federalism concerns are heightened when, as in these cases, a federal court decree
has the effect of dictating state or local budget priorities. States and local governments have
limited funds. When a federal court orders that money be appropriated for one program, the effect
is often to take funds away from other important programs.”). It is, of course, obvious that the
judicial branch and this federal Court are not empowered—and do not have the training or
resources—to administer executive law-enforcement functions.

And the Monitor proposed by this Decree will be the second imposed on the CPD in the
last three years. The CPD-ACLU agreement already establishes a “Consultant” to review
investigatory stops and pat downs. See Investigatory Stop and Protective Pat Down Settlement
Agreement,
Section
V
(August
5,
2015),
available
at
https://www.acluil.org/sites/default/files/wp-content/uploads/2015/08/2015-08-06-Investigatory-Stop-andProtective-Pat-Down-Settlement-Agreeme....pdf.
4

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The costs of the Decree will be significant, draining limited resources that could be used
to prevent crime or fund other important City priorities. The Monitor costs alone will be
staggering. The Monitor can be paid up to $2.85 million per year—more than ten times both the
Superintendent’s salary and the Mayor’s salary, and fifty-nine times the starting salary for CPD
officers. See Proposed Consent Decree at ¶ 617. 5 In addition, the Court can, on its own and
without request from any of the parties to the Decree, increase the Monitor’s budget if it finds, in
its sole discretion, that the increase is necessary for the Monitor to fulfill its duties. Proposed
Consent Decree at ¶ 618. These costs will not be paid by the plaintiff, the court, the federal
government, or the “certain community organizations” that the Decree also empowers to monitor
and enforce its provisions, see Proposed Consent Decree at ¶¶ 669, 709. Instead, these costs will
be borne by the very taxpayers of Chicago who are the victims of the violent crime surge (and who
are already paying for the Consultant required by the CPD-ACLU agreement). These taxpayer
funds thus will not be available to hire and train more CPD officers and equipment to protect
Chicago residents.
Fourth, the Proposed Consent Decree provides that the Court will retain jurisdiction until
the City has achieved “full and effective compliance” with the Decree for two consecutive years.
Proposed Consent Decree at ¶ 693. But the Decree employs vague, subjective terms and metrics—
subject to a wide range of interpretations—that may make it difficult for future City leadership to

5

The 2017 salary for the Superintendent is $260,004.00. See 2017 Position & Salary
Schedule
Chicago
Police
Department
(July
14,
2017),
available
at
http://directives.chicagopolice.org/forms/CPD-61.400.pdf.
The salary for the Mayor is
$216,216.00. See Chicago Data Portal: Current Employee Names, Salaries, and Position Titles –
Dashboard (2018), available at https://data.cityofchicago.org/Administration-Finance/CurrentEmployee-Names-Salaries-and-Position-Title/aned-ke5c. The starting salary for a CPD officer is
$48,078.00. See Classification and Pay Plan: Salary Resolution 115 (2017) available at
https://www.cityofchicago.org/content/dam/city/depts/dhr/supp_info/JobClassification/2017_Sch
edule_A_revised.pdf.
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demonstrate, as an objective matter, that the CPD is in compliance with, and may thus terminate,
the Decree. See, e.g., id. at ¶ 126 (requiring in-service training “that is adequate in quality,
quantity, and scope”); id. at ¶ 135 (requiring “language used in policies, procedures, forms,
databases, and trainings … is appropriate, respectful, and consistent with industry recognized
terminology”); id. at ¶ 282 (requiring training instructors to be “appropriately qualified”); id. at ¶
424 (requiring public complaints to “be courteously received, properly classified, and efficiently
investigated”); id. at ¶ 721 (requiring “compliance reviews, audits, and community surveys
deemed necessary and appropriate”). A consent decree carefully tailored to remedy specific
violations of federal law should have specific, objective remedies, the achievement of which will
demonstrate compliance. See Horne, 557 U.S. at 450 (“If a durable remedy has been implemented,
continued enforcement of the order is not only unnecessary, it is improper.”). This Proposed
Consent Decree fails on that score and thus would not be a proper order for a federal district court.
See id. (holding that district courts “exceed appropriate limits” if their decrees “are aimed at
eliminating a condition that does not violate [federal law] or does not flow from such a violation”).
***
Now, before the Court supplants the traditional role of democratically accountable local
officials, is the best time to assess whether a decree such as this one is appropriate. The City and
the State have already begun to take crucial and laudable steps to improve the CPD’s compliance
with federal law and protect the rights of its citizens. There may be times and places that
necessitate carefully tailored consent decrees to bring a local agency into compliance with federal
law. But this sweeping Proposed Consent Decree is not the right vehicle for the City of Chicago
right now, as the City’s law enforcement professionals seek to combat a historic violent crime
wave. Because necessary reforms are, currently, better addressed through the legislative and

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administrative process than through broad judicial oversight from a federal court, and because the
Decree would strip the CPD of the flexibility it needs to address the violent crime crisis in Chicago,
the Proposed Consent Decree is not in the public interest. The United States therefore opposes
entry of the Proposed Consent Decree. The United States asks the Court not to enter the Proposed
Consent Decree but, rather, to allow state and local officials—and Chicago’s brave front-line
police officers—to engage in flexible and localized efforts to advance the goal of safe, effective,
and constitutional policing in Chicago.

Respectfully submitted,
JEFFERSON B. SESSIONS III
Attorney General

John M. Gore
Acting Assistant Attorney General
Civil Rights Division

John R. Lausch
United States Attorney
Northern District Of Illinois
219 S. Dearborn Street, 5th Floor
Chicago, IL 60604
312-353-5300

DATED: October 12, 2018

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