Questioning Civil Law Suits Used in the War on Crime
In a Chicago Tribune story, Elgin police credited their city’s civil lawsuit against some 70 reputed Latin Kings gang members with an apparent dip in crime during the winter months and suggest that civil suits should be used more liberally as a weapon in the war on crime. But shortly after the suit was filed last fall, I paid a visit to the Kane County courthouse in Geneva. What I saw told me that this “tool” ought to be examined a lot more closely before our cities and counties wield it any more often.
The idea is a simple one: In a community experiencing gang crime, the city identifies a group of residents with gang-related criminal backgrounds and associations, and sues them for a civil court order that they not associate with other reputed gang members, on penalty of arrest, search, or other law enforcement attention. An attorney for Elgin suggested in the Tribune last September that many of the defendants would not show up for court, and that they then could be subjected to various consequences including criminal contempt or even jail.
During my day in Geneva, I saw that the city’s attorney was right about one thing. Not everyone showed up for the court date. Certainly not the young man whose mother arrived with documentation showing that he currently is serving his country as a U.S. Marine in Afghanistan. Another parent asked me if he could sue the city for defaming his son by calling him an active gang member. It became apparent that while some or even many of the defendants probably were gang members, the city’s factual investigation had been imperfect. That ought to suggest to us that cities and counties should exercise more care than did Elgin before it roped in large numbers of people and branded them “gang members.”
As it happened, few of the accused who showed up for court brought a lawyer. Some told the court they wanted time to get one. Others may not have been able to afford one, and the court reminded each of them that unlike in a criminal case, no publicly funded lawyer would be available. Meanwhile, the attorney representing the city spoke to some of the unrepresented, offering a “settlement,” the details of which I was unable to learn. I was concerned, though, that some of these unrepresented people might be considering giving up substantial rights, such as the First Amendment right of association, or the right to challenge whether the city’s complaint stated a proper claim under Illinois law, without being counseled by a lawyer of their own.
And that was where I ran into trouble that day with the city of Elgin, whose lawyer accused me of “soliciting business” in the hallway, in violation of the ethics rules which prohibit lawyers from making in-person solicitations “for gain.” The key part of that prohibition, of course, is the “for gain” part. Under well-established law in the U.S. Supreme Court and elsewhere, there is no ethical prohibition on a lawyer talking to a potential client if the legal services will not be for gain, but will be free of charge and “pro bono publico,” a Latin term meaning “for the good of the public.” The city’s lawyer seemed not to understand, and threatened to report me to the state disciplinary authorities.
Not surprisingly, after that, several of the people summoned to the courthouse no longer wanted to talk to me, and when I asked them why, I got another earful from the city’s attorney about how I was now ethically obligated to leave them alone.
Why didn’t the city of Elgin want these defendants and their families talking to volunteer lawyers? I cannot answer for the city, but its actions that day are troubling, at the very least. Perhaps we as public citizens should ask our elected or appointed officials a few questions when they tell us they want to invoke the power of the court – in our name – to drag people into court and get them to give up their rights so that public officials may run to the local newspapers for publicity about how tough they are on crime. Or perhaps we are fine with all this because the people on the receiving end are all gang members.
Aren’t they?
Gabriel A. Fuentes is a former Chicago federal prosecutor and the current president of the Chicago Council of Lawyers.