*1 judg- our conclusion does not alter be, Wrigley should
ment favor
is,
Affirmed. PALMER, al.,
Reuben et Subclass
Plaintiffs-Appellees, Judge, Cudahy, Circuit dissented part opin- part concurred in and filed ion. al., Negron, Edward et Subclass B
Plaintiffs-Appellees, CHICAGO, Brzeczek, OF Richard
CITY Deas, Milton and Richard
Commander al., Daley, Defendants-Appellants.
M. et 83-1980,
Nos. 83-1981. Appeals, Court of
United States
Seventh Circuit.
Argued April 1984.
Decided 1985. Feb. Amended
As Feb.
Rehearing Rehearing In Banc April 9, 1985.
Denied *2 Deutsch, Office, Peoples E. Law
Michael Ill., plaintiffs-appellees. Chicago, McDonald, Hauser, Terry L. Henry A. Allen, Attys., Wm. Asst. David S. Herbert, Marsh, Hopkins Jeremiah Carlisle Ill., Sutter, Chicago, defendants-ap & *3 pellants. COFFEY, WOOD, CUDAHY,and
Before Judges. Circuit COFFEY, Judge. Circuit County Chicago and the City of entry prelimi- Cook, appeal the of a Illinois Chicago Po- nary injunction requiring County Department and the Cook lice Attorney’s revamp State’s Office recording, procedures internal investiga- maintaining, production and remand tive files. We reverse instructions district court with case to the injunctive relief to limit now of “street files” for criminal defendants convicted existence Circuit felonies Court.
I May that in The record reveals Office Jones, George eighteen year old charged an student, rape high honor with the school first-degree year of thirteen murder aggravated old Pointer Sheila bat- Purvey tery year ten old of Sheila’s brother pled guilty, prep- Pointer. Jones trial, counsel served aration for the defense separate subpoenas upon Record- four Department keeper Chicago Police (“CPD”). subpoena, particular, re- One quested: reports, re “Any police arrest ports, photos, supplementary reports, statements, slips, re inventory witness ports any of the results and scientific evidence, any physical conducted on tests con or written memorandum kind cerning place that took at 702 incident Street, Chicago, May 117th Ill. on West Pointer, Jr., Purvey was 1981 wherein allegedly beaten and Sheila Pointer killed.” addition, the defense filed a motion for a last name but no one was able to discovery with the Cook State’s At- ascertain what it was. It sounded like Office, torney’s asking produce, that it in- Anderson-Henderson-Harrison.” ter alia: When Jones’ murder trial commenced in “Any material or information which April prosecution expressed an negate guilt tends to of the accused intent to seek the penalty death for Jones. charged as to the offense or would tend unfolded, As the prosecution trial called punishment therefor, to reduce his and Purvey Pointer to the witness stand and he
any other material or information favor- positively George identified Jones as the pro- able accused which should be assailant. This testimony concerning the according Brady duced Maryland, appeared identification of Jones in the Chi- U.S. 83 [sic] [83 cago caught Tribune and the attention (1963), subsequent L.Ed.2d 215] Laverty, Detective Frank member cases.” CPD’s violent crimes participated unit who *4 The defense counsel original received oral assur- in investigation the of the Sheila members, ances from the of the CPD and Pointer homicide. Purvey’s testimony di- Attorney’s rectly State’s Office that their re- conflicted Laverty’s theory with spective complied case, offices had with the presented sub- which he had to his poenas discovery request. and supervisors The record in October that a Lester reveals, however, that when Pique the defense was the reading assailant. After subpoenaed Purvey counsel hospi- newspaper article, Pointer’s Laverty immediately record, tal he learned for the first time that contacted the defense counsel and informed May on CPD him Kelly officers and that “he had reports— written ... two Purvey picture separate Binkowski had shown a two separate memos on two occa- Jones, George concerning sions” Purvey investigation while was confined of Shei- hospital in la Pointer’s following day, his room. The death. The defense counsel confined, Purvey, had not received positively reports while still either of these iden- in response to subpoenas tified Jones as Upon upon the assailant.1 served dis- discovery CPD or the covery photo motions display, of this filed with defense County the Cook motion, Attorney’s State’s immediately counsel filed Office. another result, As a defense counsel not requesting complete production of “all subpoenaed specific reports, statements, but called interviews, notes of memoran- Laverty to the witness stand and dums, examined reports or written records of presence him in the of the state court regarding any kind and all interviews con- judge. any person ducted in connection with the investigation response, of this case.” In Laverty report related the content of one Office stated, in Purvey Pointer “George’s one-page transmitted a memo obtained Anderson, George name is ... he is the files, describing Purvey from the CPD’s leader or a gang, member of the ‘Pirate’ photograph Pointer’s reaction to the it, he cap because wears the the P on George According Jones. to the memo: vicinity and ... he lurks in the photo George
“The Jones was also Pullman gang School with other members.” Purvy shown to report, and when asked if Laverty the other asked Lester [sic] person yes gave he this he Pique, knew said but had who confessed to the murder response rape when asked if he were July and of a Sharon Hudson in [sic] offender____ kept trying He say “if he was the in offender the Pointer assailant, According "No, testimony pre- responding, elicited at the and Pointer that is No, no, liminary injunction hearing, hospital room not the man. no that is not the man.” (and George glasses, posi- identification consisted of Jones The officers then removed Jones’ bed, present hospital his defense counsel who was at all tioned Jones closer to Pointer’s room, times) “Yes, Yes, Yes, entering Purvey hospital responded, Pointer’s and Pointer no. no. asking the CPD officers Pointer if Jones was the no.” might previously stated that he undiscovered he evidence contained homicide file,” he blacked out couldn’t been but that in the CPD’s “street the state trial Laverty’s report further not- remember.” granted judge the defendant’s motion for a tests, Pique's lab hair according to ed that mistrial State’s Attor- samples in the hair found was “similar” to ney’s plea prose- Office entered a of nolle Pique able Pointer home (Lat: qui prosecute”).3 “will no further accurately pipe lead murder describe the April 16, following On the uncover- homicide. weapon used in Pointer practice of the CPD’s in the information, re- Laverty’s Based this Jones case—to maintain unofficial “street Pique port Lester “is the concluded that files” were not transmitted defend- person in with 2nd Pointer offender [the] response subpoenas discovery in ants or person charged is a homicide action, requests plaintiffs filed a class —the Laverty identity.” case of mistaken § rights civil under 42 lawsuit U.S.C. 1983 presented information to his command- against City Chicago and Cook Coun- 1981, requesting ing officers October ty, Illinois.4 class consisted lineup, Pique placed but the A, named seven “Purvey Point- supervisors responded that capacity their individual behalf of such that he er’s condition would not be situated, similarly those that were “convict- lineup____” could view plea guilty ed after trial or [of felonies] Following Laverty’s testimony in the probation sentenced court, trial the defense counsel served state imprisonment custody of the Illi- subpoena on Area 2 Command- Watch *5 Department of nois Corrections.”5 CPD,2 requesting: er of the this time plaintiff class also included eleven named supplemen- “Any reports, and all record “charged B subclass who were notes, reports, and tary memos written awaiting with felonies and trial the Cir- kind, including reports, any records of County, cuit Court Cook Criminal Divi- any investigator not limited to watch but plaintiffs alleged that the de- sion.” # 2 general or # 2 file or area file area fendants, acting through the CPD and the concerning the reports files or Sheila Office, # Pointer homicide. R.D. C-T60031. were: homicide occurred on 5-4-81 at 702 Said St., Chgo, 117th Illinois.” “continuing practices W. policy their and concealing working investigative basic response, produced a In the CPD files,’ files, ‘running known as ‘street consisting file” of additional memos not files,’ files,’ or in order to ‘office restrict previously to the defense coun- submitted prevent response exculpatory and the flow of evi- subpoenas to their earlier sel defendants, light discovery spite motions. In of this dence to criminal and fully investigate and 2. The CPD is divided into six areas and each ure the case turn over encompasses separate geographical potentially exculpatory opin- re- area In the evidence. gion Chicago. court, CPD ion of this should consider enter- Laverty’s per- a commendation in Detective Laverty 3. Detective testified that CPD has principles sonnel file for his adherence to the disciplinary proceeding commenced an internal justice. honesty, decency, and failing against "proper him follow the testifying procedures prior and channels 4. record reveals that the filed class realize, course, We CPD court." original complaint April on an and departmental guide- must establish and enforce complaint April amended applied equally to all members of lines that police In view of the evidence force. 5. The record reveals that this section 1983 law- injunction hearing, presented however, at the investigation prosecution suit involves the Laverty appears went Detective Chicago of violent crime felonies within duty, beyond call above properly area and that all subclass A have been upheld highest Unit- ethical standards in the convicted felonies Circuit justice system, he ed States when notified Court. George of the CPD’s fail- Jones’ defense counsel requirements the Constitutional Bra ruled that pre- shall ... “[defendants Maryland, dy v. police department serve intact all investiga- [83 (1963) tive, 10 L.Ed.2d and the dis files, working office or 215] some known as covery Supreme of the rules Illinois files,’ together ‘street con- (Ill.Rev.Stat. 110-A, ch. Sec. files, papers tents of such and all other files____” seq.).’’ et S.Ct.Rules belonging documents in such That same day, Superintendent CPD plaintiffs’ Rich- According complaint: ard Brzeczek a teletype issued order to all system “This intentional file double his commanding officers: by maintained the Defendants as a mat- policy discovery ter of violated the rules immediately, “Effective as a result of a Court, and, of the Illinois addi- temporary restraining by order issued tionally, deprived the Plaintiffs and the federal judge district court Thomas R. they represent rights of their sub-classes McMillen, police the contents of all de- trial to a fair and to from a be free partment investigative files known as of- life, deprivation of liberty property fice, unit, working files and sometimes process guaran- without due of law referred running’ to as ‘street or files Fifth, by teed Sixth and Fourteenth documents, kept will be intact. No mate- Amendments to the States United Consti- rials, or notes shall be removed from seq.” tution and U.S.C. Sec. et these files.” plaintiffs requested district addition, In the CPD issued Detective Divi- declaratory judgment, finding court enter a 82-2, which, sion Notice by express its policy the defendants’ and terms: practices process due violate investiga- “mandates that all current unit rights under the Fifth and Fourteenth intact, preserved tive files be right Amendments to a fair trial prohibits permanent removal, de- under the Sixth Fourteenth Amend- struction, or alteration of unit inves- ments of the United States Constitution. tigative report or file any sworn or addition, asked the district Department, civilian member permanently: court to *6 procedures establishes for Detective Di-
“[e]njoin policy the practice and of De- investiga- vision to members insure unit suppressing exculpatory fendants of and through properly preserved tive files are and con- discoverable material the main- file, system tenance of a and trolled.” double ma- nipulation reports of lab and illicit re- Although CPD with complied the interviews, police strictions on and order preserved court’s order and the “street reports that all and memorandum be tempo files” in existence at the time of part permanent subject made of one file rary order, restraining the evidence re discovery proper production.” to and considering vealed that detectives were cer that further asked the dis- memos, tain notes and “to-from” in drafted preserving court enter an order trict investigation, cases still under “as their existing “street for CPD’s files” future personal property ... and therefore as out production plaintiffs’ in the state court side requirements of No post-conviction damages actions and award Chicago, tice 82-2.” v. City Palmer compensate for their al- to (N.D.Ill.1983). F.Supp. As a leged injuries. result, Judge on September April days temporary McMillen restrain
On some four after amended filing plaintiffs’ complaint, Judge defendants of the order and directed that “the police ... investi McMillen of the United States District shall intact all Illinois, files, gative, working for Northern District office or some known files,’ tempo- together all of granted plaintiffs’ request ‘street with files, restraining Judge pa- other rary order. McMillen contents of such and all trast, reports in the official consist “stan- formally put such documents pers and added.) incident, (Emphasis opening, supplementary dardized files____” closing reports” typed, that and mark- following day, September with the Record Division as- ed number Judge the case McMillen withdrew from investigation, signed to the subse- and docketing to and the case due conflict quently transmitted to the Record reassigned Judge CPD’s to Shadur who was headquarters. hearing mo- Division at 1070. Id. scheduled injunction.6 The tion for a preliminary injunction hearing, At the requested district court City Chicago contended that: injunctive relief: grant preliminary policy Chicago “The Police De- “restraining from con- the Defendants partment all been that official re- tinuing policy practice of main- and ports prepared in accord a violent using taining separate, and confidential felony investigation complete must be files, police investigative sometimes accurate; is, reports such must files,’ purpose known as ‘street pre- contain all information known to the withholding inhibiting flow of re- parers) pertains to the offense or ports, documents other materials person(s) accused to thereof.” exculpatory or use- which are otherwise added). (emphasis James Id. Detective ful or the Defendants favorable Hickey, assistant to the Chief of Detectives County; di- criminal cases CPD, testified, however, “it inventory recting preservation, pro- prepare discretion to detective’s [an necessary of all such in- duction where ” supplemental report” in the first official] vestigative or ‘street files.’ Hickey instance. Detective further ac- sum, plaintiffs sought preliminary knowledged following issuance of the (a) prevent the defend- restraining study and his temporary order continuing practice ants from agree- procedures, of CPD “[t]here withholding exculpatory con- [among ment CPD that too much officials] files”; (b) preserve in “street tained activity investigative was not substantive existing six-day files.” A evidentia- being placed supplemental re- [official] hearing in the ry was conducted district Stibich, ports.” commander Officer John present- based the evidence the CPD’s Area added that the CPD ed, Judge Shadur found detectives guidelines detec- had formal assist unit within the CPD’s violent crimes determining pertinent information tives investigations “record the results of their “[wjhat’s pertinent one [detective] may classified two documents example, For might not be another.” categories, Reports’ ‘Unofficial and ‘Offi- ” Deas, Milton commander of the Officer Reports.’ According cial Id. at 1069. *7 Area testified that the informa- CPD’s court, reports the of the unofficial consist Purvey concerning in the case tion Jones’ notes, typewritten witness detectives’ mention of a last name like “An- Pointer’s interviews, major or crime statements derson, Henderson, Harrison” should not sheets, prepared contem- incident work all report placed in until an official obtaining of poraneous with the detectives’ “[c]hecking out to that those ascertain reports unofficial the information. These files,” actually the offender that was commonly as names were referred to files,” by In eon- referred to the victim.” Officer Deas “running or “office files.” Judge granted capacity employees as the Cook their official 6. On October Shadur County Attorney’s Similarly, County’s Office. motion to dismiss the Cook State’s Office, Judge Chicago Attorney’s ruling De dismissed the Police State’s that Shadur nonentity entity purposes partment its status for proper for of 42 because of was not a granted Judge purposes a 1983 lawsuit. See Palmer the section U.S.C. 1983. Shadur also § Chicago, damage City n. F.Supp. County's the claim motion to dismiss (N.D.Ill.1983). appealed against prosecutors have not in the the named rulings. acting complaint, they these were within amended
5fi7 Purvey piled Porter, by eyewitness claimed that Pointer’s a Detective further “George’s George Darryl: name is An- statement named ... he is a leader member the derson “observed ‘Dino’ walk from the [south- gang cap he a with ‘Pirate’ because wears building. carrying He was a side] put P on it ... need not be a [an official] rifle that had a red scarf around the butt. supplemental report.” upon Based tes- says nothing Darryl that was said and officers, timony and admissions of the CPD that he then heard one shot saw the despite district court found that fall ground victim between him policy requiring reports official CPD’s Darryl emphatic and MARSHALL ... is pertains all that to a contain information shooting that the offender in this case, the discre- detectives exercised their WILLIAMS, Anthony ‘Dino’ and not in determining what information to tion BAKER, by as said MARSHALL.” formal, place report in the official file at Following disclosure of exculpatory, headquarters. Division the CPD’s Record identification, eyewitness the defense coun- presented The evidence at the evidentia- requested sel a mistrial. The state court ry hearing further revealed that the usual judge motion, denied after jury but among practice criminal defendants guilty against Baker, returned verdict of Court was to obtain Circuit immediately the defense counsel moved for investigative from information the CPD a new At received trial. the close of serving Recordkeeper subpoena trial, the judge the new sustained a motion discovery filing the CPD or motion for verdict, finding for a directed Baker not with guilty Seay. murder of Jesse court found Office. district preliminary injunction At the hearing, responded subpoena requests CPD CPD Commander Deas testified that he “ ‘any by produc- and all’ ...” documents interpreted temporary the amended re- ing “only Reports the Official maintained straining order and Detective Division No- Headquarters, at Police ... and not ... permit tice 82-2 destruction detec- Reports maintained de- Unofficial at Area tives’ notes and “to-from” memos on the possession in the tective facilities or of an theory such writings constituted the detective____” individual Id. at 1071. personal property. Super- detective’s CPD response court further found to a “[i]n Richard intendent Brzeczek refuted this motion, discovery defendant’s trial assist- logic testimony his: with County] in the ants State’s Attor- [Cook 82-2, “interpretation of the TRO and ney’s simply by telephone Office ordered implement- the intent of 82-2 in terms Reports the Official maintained at TRO, document, every Central Records Division.” Id. [CPD’s] regardless nature, of its official or unof- referred specific informal, ficial, piece paper, formal or reports where unofficial had instances notebook, matchbook, back of a or what not been to criminal defendants transferred you part investiga- becomes response subpoenas to their and/or dis- tive file.” covery example, motions. For the defense . Superintendent Brzeczek added that to de- Baker, charged who counsel Glen personal stroy property notes as would be Seay a Jesse in June murder of violation TRO because order subpoena upon served CPD eliminates distinction between de- requesting police “any reports con- *8 partmental property property. #B190808; (6) personal and in RD include six tained addition, trial, Deputy Attorney In State’s Wil- 725469.” the photos under INV. # At the liam Kunkle testified that maintenance for the first defense counsel discovered investigative police of all documents at the that an “street file” was time unofficial headquarters investigative in officer’s CPD’s Record Division a CPD retained response Attorney’s in but not forwarded to assist the State’s file According subpoena. report, responding eom- Office in to criminal defend- requests. pertaining file to a violent crime field discovery The evidence inves- ants’ preliminary injunction tigation Department which contains official presented that some 300 hearing notes, further revealed reports, memoranda and miscellane- in existence files” remained generated by or ous documents received stations, such and that all CPD various any during detective the course such at, since, time of in existence files investigation.” Special at 1079. Order Id. restraining order had been temporary provides any placed in 83-1 document preserved. Investigative File Folder Case forthright testimony response to Investigative Inventory logged on an File Deputy Superintendent Brzeczek is forwarded to the CPD’s Sheet which CPD, Kunkle, Attorney on Jan- State’s headquarters Record Division to ensure Division uary issued Detective existing “proper of all docu- notice 83-1, February Special Order effective subject investiga- pertaining ments to Spe- at 1078-80. CPD’s 1983. See id. Attorney’s tion can made to the State’s part provides in relevant 83-1 cial Order Office, the courts and the defense coun- that: Special sel.” Id. The CPD’s Order 83-1 policy Chicago Police “It is the “preserve further mandates that detectives inves- Department to conduct all criminal investigative all handwritten notes and doc- objective tigations impartial in an generated or received and uments submit integrity to maintain the manner and supervisor sup- each them to the unit to ensure that the investigative its files report plementary submitted whenever an process rights the accused are not due Investigative File Case Folder not compromised during subject investi- (emphasis orig- initiated.” at 1080 been Id. hearing any subse- gation, initial court or inal). Additionally, it is the quent reviews. judge adopted district court Chicago Department Police policy of the 83-1, toto, Special CPD’s Order preserve any in- to relevant record preliminary injunctive relief. form of by any detective dur- formation obtained Judge saw fit add his own Shadur then ing the of a violent crime field course Order, Special requir- amendments investigation. alia, open ing, inter CPD: assigned violent crime field When File Investigative Case Folder all violent investigations, will detectives investigations; and main- crime field take and materials ob- and record information complete tain notes-of all relevant matters investigation tained in the course of investigation; during of an di- the course information and to assure not information any rect detective who receives possible guilt of indicating materials investigation relating to a violent crime preserved, but also that the accused are him, assigned is to forward such may materials that any information and charge to the detective in information possible his innocence or tend show case; copies transmit two Inves- preserved.” in his defense is aid Inventory the Office tigative File Sheet to original). (emphasis To accom- Id. at 1078 Legal Department or the Affairs of the main- objective recording plish this Office, County State’s taining investigatory informa- all relevant subpoena discovery motion whenever tion, requires Special the CPD’s Order 83-1 received, copy be trans- that one order Investigative File Case Folder be that an counsel; and as- mitted to the defendant’s homicides, po- involving cases opened Training Division de- the CPD’s sure that incidents, shooting batteries lice-related velop program to educate detectives death, rapes deviate likely result 1080-82. procedures. Id. at the new assaults, major other vio- sexual Moreover, required, Judge inter Shadur investigation unit su- crime field lent alia, Attor- that the Cook Investi- appropriate. The pervisor deems Office, presented with a dis- ney’s when “a case gative File defined as criminal *9 covery motion from a criminal defendant: material either guilt punishment, or to irrespective copy good the of the faith or provide defendant with of the bad faith Sheet; prosecution.” of the Inventory provide File 373 U.S. at Case the de- outset, S.Ct. 1196. At police writings the we note fendant with that are dis- that pretrial this lawsuit remains in the stage and notice of those coverable documents presented and evidence has been as to-" the State Office Attorney’s claims are legal plaintiffs’ the merits of the section discoverable; police and assure that no 1983 lawsuit. only The issue addressed in writings have been withheld from the court, the district and thus the issue Office. Id. at 1082. appeal, before this court on is whether 1 preliminary injunctive The relief addressed J principles of equity require that prelimi- only the restructuring proce- the CPD’s ...... nary-injunction be issued: j transcribing dures for maintaining and in- “restraining the defendants from con- vestigative Judge records. Shadur did not tinuing policy practice the and of main- adopt the temporary terms of the amended taining using separate, and confidential restraining require order nor did he police investigative files, sometimes preserve the CPD continue to the “street files,’ known as ‘street for the purpose of files” existence time at the this lawsuit withholding inhibiting the flow of re- appeal, City filed. On Chicago was ports, documents and other materials County, Illinois contend that the exculpatory are ... and directing granting plain- district court erred in preservation, inventory production preliminary injunction. tiffs’ motion for a where necessary of such investigative ” or ‘street files.’ II express purpose plaintiffs’ of the re- A. CASE OR CONTROVERSY quest for preliminary relief is plaintiff (a) class filed this two-fold: lawsuit un- restrain defendants § 1983, continuing alleged claiming practice der U.S.C. from their concealing (City exculpatory actions of the evidence Chicago defendants contained files”; (b) Illinois) in “street County, deprived files,” existing “street in order that process rights class members of their due meaningfully proceed can under the Fifth and Fourteenth Amend- post-conviction felony remedies and right ments and their a fair trial under court, trials Illinois state as well as their the Sixth and Fourteenth Amendments to attempt under section to obtain the United States According Constitution.7 declaratory permanent judgment, injunc- plaintiffs, City de- tion, damages. alleged practice withholding fendants’ exculpatory evidence contained City initially defendants violates holding files” Court’s grant contend that the district court’s Brady Maryland, 83 preliminary injunctive relief in this section (1963), L.Ed.2d 215 that “the lawsuit improper as the court prosecution of suppression subject jurisdiction. lacked matter Accord- upon request defendants, to an favorable accused vio- named process due jurisdictional require- lates where evidence is failed to establish the class, generally applicable The district court certified entire class. See subclasses, consisting of the A City Chicago, F.Supp. and B under Palmer v. at 1075- 23(b)(2). court ruled that Fed.R.Civ.P. City Chicago 76. The so members class are numerous that Cook, Illinois do not contest class certifica- impracticable; ques- joinder is there exist appeal, propriety tion on and thus subclass; of law and fact common to each tions ruling district court’s an issue is not before this typical claims named Goode, court for review. See Rizzo members; coun- 373 n. 605 n. 46 L.Ed.2d fairly protect the subclass members’ inter- sel ests; and that the defendants’ actions *10 570 its In both di- forth limitations on exercise. controversy as set or
ment of a case
it is
mensions
founded
concern about
Constitu
the United States
III of
in Article
proper
properly limited —role of
Indeed,
of Federal
is a
tenet
basic
tion.
—and
society.”
in a
the court
democratic
power of federal
judicial
“the
law that
constitutionally
restricted
(citations
courts
is
498, 95
at 2204
422 U.S. at
S.Ct.
” Flast v. Co
Gladstone,
and ‘controversies.’
‘cases’
also
Realtors v.
omitted).
See
1942, 1949,
83, 94,
20
hen,
88 S.Ct.
Bellwood, 441 U.S.
392 U.S.
Village of
99
main
(1968). The defendants
1607,
(1979);
1601,
L.Ed.2d 947
files” allegation “[pjast the mere expo rights. of their constitutional plaintiffs illegal conduct does in Rather, sure itself plaintiffs’ centered evidence present a concealing controversy regard in show case upon the defendants’ actions material, ing injunctive if unaccompanied exculpatory evidence from non- ... by George any continuing, present members such Jones and adverse ef class Baker, O’Shea, 495-96, neither of was convicted fects.” 414 U.S. at Glen whom felony at Lyons, of a Circuit 675-76. also See 461 U.S. 1665; plaintiffs that if Goode, claim materi- at Court. S.Ct. at Rizzo v. al, exculpatory was evidence withheld 96 S.Ct. felony cases, (“Rizzo”). Jones and murder (1976) Baker Though L.Ed.2d 561 it is “past
then
reasonable to assume that similar
wrongs
bearing
are evidence
felony
was withheld
other
evidence
there
real and
whether
is a
immediate
cases, including
involving the
those
named
repeated injury,”
plaintiff’s
threat
plaintiffs.8
City
defend-
standing
premised upon
must be
more than
respond
plaintiffs’ inability
ants
to hypothetical speculation
conjecture
prove
the essential
link and
make
causal
harm
will occur
the future.
withholding
specific instance of
or conceal- O’Shea,
(“Younger”).
“the
in “street files.”
review of the relevant
between state
proper
defendants,
balance
need for a
law
case
reveals that criminal
restraint
authority counsels
and federal
right
have a
upon request,
constitutional
against
injunctions
state
issuance
receive
“material either to
evidence that is
administration of
engaged in the
officers
irrespective
guilt
punishment,
laws
the absence of
criminal
states’
prosecution.”
good faith or bad faith of the
great
injury
is both
irreparable
83, 87, 83
Brady Maryland,
v.
Lyons, 461 U.S. at
immediate.”
(1963)
L.Ed.2d
S.Ct.
OShea,
577
Dist.,
463,
(7th
material,
plaintiff
cago Park
exculpatory
709 F.2d
467
contains
evi-
Cir.1983); Syntex
v.
Opthalmics,
Inc.
dence and the
does
CPD
not continue to
Tsuetaki,
677,
(7th Cir.1983);
F.2d
file,
maintain that
the affected
A
subclass
Bd.
No.
v.
Ed.
School Dist.
O’Connor
plaintiff will
irreparably
harmed. This
23,
de
578,
(7th Cir.),
cert.
645 F.2d
injury
plain-
A
threatened
subclass
nied,
641, 70
outweighs any
tiffs
threatened
harm
Valley
(1981);
Fox
Harvestore
L.Ed.2d
County
CPD and
Cook
State’s Attor-
Prod., 545 F.2d
v. A.O. Smith Harvestore
fact,
ney’s
In
Office.
defendants ad-
(7th Cir.1976).
plaintiffs
preliminary
at
injunction
mitted
hear-
proving
have the
each of these
burden
“street files”
existence at the
Lane,
arguable stake
existing
therefore,
to
the
files of
does move
files,
since destruc-
and
informal
plaintiffs,
point
A
of the
subclass
real
their
irreparably impairs
the files
tion of
justify the
standing discussion is to
denial
for
case, they
no
but to ask
a
have
choice
is,
denial
simi-
of future relief —that
of
preventing
de-
preliminary injunction
to
future members of the
lar relief
files.
of the
struction
class.
standing
access to
limits
doctrine of
bring
a
to
a
plaintiffs
right
have
When
courts,
incidental
to its
is
but
suit,
possible
it
class action suit makes
not
intended to
purpose. The doctrine
bring the
of
for them to
suit on behalf
courts,
load
the federal
reduce the case
of
situated,
similarly
including
others
are
who
the courts are
rather
to insure that
but
23b(2))
(especially under Fed.R.Civ.P.
those
only conflicts that
to resolve
called
inmay
who
the future have similar claims.
properly argued,
fully developed and
are
See, e.g.,
Liberty
Mutual Ins.
Wetzel
parties
do not under-
to insure that
and
Co.,
(3d Cir.),
cert. de
F.2d
254
508
accomplish in the courts what
is
take
nied,
95
44
S.Ct.
by
properly accomplished
the other
more
O’Bannon,
(1975); Ingram v.
L.Ed.2d 679
government. Constitutionally
branches
(E.D.Pa.1980);
see also
88 F.R.D.
injury
neither
required
is
is that
what
Center,
Area Medical
Doe v. Charleston
by
plaintiff,
nor causation
the defend-
(4th Cir.1975) (speculative
529 F.2d
redressability by the
ant nor
action
conclusory
representations
and
to class
speculative or remote. The courts
court be
declaratory
and
size suffice
required
grievance
have further
Schaffer,
Dudo v.
relief);
82 F.R.D.
right
overly general, and that
not be
(E.D.Pa.1979) (“[C]ourts
often define
belong to the
and
being asserted
persons
yet
to include
have not
classes
who
the zone of interests meant
be
be within
policies,
by
challenged
been affected
protected by
provision under
the statute or
may
by them in the
but who
be affected
being brought.
which the suit is
future.”)
case, may may
any given
or
requirements
None
these
would bar
appropriate
not
for a federal
be
present
injury
is concrete
case.
members;
certify
containing
a class
future
appro-
generalized
not so
as to be more
certification,
question
is a
but this
priate
by
legislative
resolution
standing.
a
deny
not of
the courts
When
injury
branch.
It is an
that will have been
standing
class
of the remoteness
because
defendants,
by
and it is redress-
caused
speculativeness
injury
or
—as
advance,
a
in-
able
injury
in Lyons
Court did
—the
specific
junction.
grievance is
to this
speculative
with re
been
remote
right being
plaintiffs,
class
as-
Ange
Los
spect
plaintiffs.
to the in-eourt
standing
is
The doctrine of
serted
theirs.
95, 103
Lyons,
les
web,
complex
parts
all the
of it
(1983). I
inappro
L.Ed.2d 675
believe it is
satisfied; but attention
the de-
must be
priate
essentially
to address what
a class
require
of the
not
us to
tails
doctrine does
grounds.
If
standing
certification issue on
give up our common sense.
consti-
“[T]he
legitimate
named
standing requirement
tutional
[cannot
preserved,
files
if
claim to have their
Allen v.
mechanical exercise.”
made]
they legitimately represent
the class of
—
U.S.-,
Wright,
present
in a
and future criminal defendants
L.Ed.2d
standing to
position,
similar
then
seek the
“on their
Plaintiffs have asked for relief
mem
the files
the future
I
behalf and
behalf
bers should not
an issue at all. Since
own
situated,
similarly
persons
believe that the class
have ev
who
have been or who will be
deprived
ery
seeking preser
right
bring
this suit
who
files,
I
vation of their own
and since
see
federal
state Constitutional
they
why
may
reason
P. Mish-
represent
proceeding.
Bator,
P.
class
forcement
only present
includes not
but
Wechsler,
also
D.
Shapiro,
Hart
kin,
& H.
&
members,
future
I
agree
cannot
with the Wechsler’s
The Federal
And
Courts
standing
discussion of
and the conclusion
System
(1981 Supp.)
The Federal
that follows from it.
rights
Where the
could not
comity, also
majority,
for reasons of
*20
be adequately protected in
proceed-
state
to those in-court
offers no relief
ings, Younger has not
applied.
been
In
come.
are still to
There
whose convictions
District Properties
v.
Associates District
to
of relief
appear
would
be three avenues
Columbia,