A federal judge has upheld Chicago police ‘investigative alerts’ against a Fourth Amendment challenge in a civil suit.
U.S. District Judge Manish S. Shah has ruled the Chicago Police Department’s use of the alerts, which incorporate officers’ own probable cause determinations to make arrests sans a judge, do not violate the federal Constitution.
He wrote in an 11-page opinion this week that federal law allows warrantless arrests supported by probable cause.
He wrote that the alerts here are akin to police bulletin broadcasts, which allow officers to impute knowledge across jurisdictions.
He also determined the plaintiff in this case, a man named Robert Taylor who was detained based upon an alert that should have been canceled months earlier, didn’t show in his civil rights suit that such stale arrests were widespread under the city policy.
“By failing to offer any other examples of improper arrests, Taylor lacks sufficient evidence to infer the policy itself demonstrated deliberate indifference to his rights or caused his constitutional injury,” Shah wrote in the decision published Wednesday.
“The investigative alert policy required probable cause and timely audits to prevent unjustified seizures. The policy complied with the Fourth Amendment. At best, the evidence demonstrates one instance of a policy violation. Taylor cannot carry his burden of proof at trial to hold the [c]ity liable under [Section] 1983.”
A state appeals court last year ruled such alerts do violate search-and-seizure protections in the Illinois Constitution. The stat’s governing document includes more exacting standards in that area, the panel wrote in People v. Bass, 2019 IL App (1st) 160640, requiring probable cause to be supported “by affidavit” versus “oath and affirmation” in the U.S. Constitution.
The Cook County State’s Attorneys’ Office has appealed the Bass decision to the Illinois Supreme Court.
In this case, Taylor was arrested in June 2011 based on a tip related to illegally possessing a gun. Officers procured a warrant to search his apartment, found a firearm and issued an arrest alert based upon probable cause.
Taylor was arrested but ultimately acquitted of unlawful use of a weapon, with the trial judge noting the warrant had the wrong address.
In December 2011, Taylor was arrested again based upon the earlier alert, which was never exorcised from the system.
In an earlier opinion, Shah granted summary judgment for all but one of the officers who arrested Taylor, finding the warrant was procured in good faith and that Taylor couldn’t establish malicious prosecution.
He ruled there was still a genuine dispute involving one of the officers regarding his responsibility to cancel the alert.
The claims here were specifically against the city.
Its policy has changed a few times over the last 20 years, but the alerts in effect when Taylor was arrested were supposed to be audited every 28 days by certain officers within the department, members of the Bureau of Investigative Services.
The parties disputed whether there were audits in 2011, but Shah wrote there is no evidence of any, and as of last March, “there were hundreds, if not thousands, of open investigative alerts still in filing cabinets.”
Still, to hold a municipality liable for a constitutional injury under Section 1983, a plaintiff must show the injury was the result of an express policy, widespread custom or actions of an individual with policy-making authority; that it resulted from deliberate conduct and that the municipal action was the driving force behind the injury.
Shah wrote that an express policy that is constitutional on its face is treated like a widespread custom when it comes to this analysis — there must be more than a single instance alleged to prove culpability and causation. That would give a jury reason to believe there were gaps in the policy that resulted in predictable constitutional problems and the municipality was indifferent to them.
The judge wrote Taylor was mistaken to argue the policy of warrantless arrests is unconstitutional on its face, citing the 7th U.S. Circuit Court of Appeals’ decision last year in United States v. Haldorson for the idea that the Fourth Amendment allows such an action when it’s supported by probable cause.
He also wrote Taylor was off on his argument that such a determination doesn’t work here because there’s no requirement that the officers who approve the alerts coordinate with those who have the information to support probable cause in the first place.
“The probable cause to seize a person does not change based on how many people are in the chain of communication between the initial officer and the arresting one,” Shah wrote.
“Taylor does not argue that police bulletins can only be issued by dispatchers that actually communicate with the officer that determined probable cause and offers no evidence that investigative alerts materially differ from police bulletins. The CPD’s policy is not inherently unconstitutional.”
The judge concluded the policy’s auditing requirements were poorly implemented, noting the backlog of alerts yet to be acted upon. But he wrote that’s not enough, specifying that “this apparent sloppiness or incompetence” couldn’t support liability unless there was evidence of more stale arrests.
“Taylor provides no other evidence of improper arrests based on stale investigative alerts besides his own. For policies that are facially constitutional but contain certain omissions, or amount to an implied policy of inaction, more than a single incident is required to establish municipal liability,” Shah wrote.
“Nor was Taylor’s injury a ‘highly predictable consequence’ of the investigative alert policy, which would only require evidence of a single incident. Had the policy been followed as written, the alert on Taylor would have been canceled, a fact Taylor concedes.”
Shah granted the city’s motion for summary judgment and denied Taylor’s.
Irene K. Dymkar, of the Law Offices of Irene K. Dymkar, represented Taylor in the case.
She could not be reached for comment.
Kelly C. Bauer, of the city’s Law Department, represented the city. A spokesperson for the Law Department did not comment on the decision.
The case is Robert A. Taylor v. City of Chicago, No. 13 C 4597.