Marcus Wiggins, and Chicago Reader, Incorporated, John Conroy, Citizens Alert, Intervenors-Appellees v. Leroy Martin, Former Superintendent, Chicago Police Department, James O'brien, Detective, 8825, Anthony Maslanka, 16161, and Fraternal Order of Police, Lodge No. 7, Intervenor-Appellant

Citations: 150 F.3d 671; 26 Media L. Rep. (BNA) 2405; 158 L.R.R.M. (BNA) 2955; 1998 U.S. App. LEXIS 16196Docket: 97-2446

Court: Court of Appeals for the Seventh Circuit; July 15, 1998; Federal Appellate Court

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Marcus Wiggins filed a lawsuit in 1993 under 42 U.S.C. § 1983, claiming torture by the Chicago Police Department, which involved 40 prior incidents of abuse. The case settled for $95,000 before trial, and the dismissal occurred on October 10, 1996, with both parties bearing their own costs. On October 24, 1996, Wiggins sought to unseal certain documents from the City of Chicago related to prior torture cases, prompting intervention motions from the Chicago Reader and others, which were granted.

The Fraternal Order of Police (FOP) initially attempted to intervene but was denied on August 16, 1994. A subsequent motion on November 20, 1996, was granted. On May 9, 1997, Judge Castillo ruled to unseal investigative files related to Wiggins and other alleged torture victims, as well as parts of the Goldston Report and a Police Foundation Memorandum. Following this decision, the FOP appealed, but the court found that the FOP lacked standing, leading to the dismissal of the appeal.

The FOP contends that the plaintiff waived his right to contest standing by not appealing the FOP's intervention petition; however, jurisdictional issues cannot be waived. Despite being allowed to intervene, the FOP may lack standing on appeal since the City of Chicago and individual officers involved did not appeal. To establish standing, the FOP must show either individual standing or associational standing. 

The FOP lacks standing to appeal on its own behalf as it has not shown an injury. Although allowed to intervene based on a claimed contract right regarding document destruction, the collective bargaining agreement with the City does not confer standing. The FOP has not convincingly demonstrated that the current agreement includes a destruction provision, as the relevant contract was replaced 17 months prior, and the FOP failed to inform the court of this change. 

The FOP mistakenly attached an outdated agreement with a destruction provision and claimed a scrivener's error when attempting to substitute documents. The court allowed a substitution of an earlier contract containing the provision, creating uncertainty about the current agreement's contents. The FOP bears the burden of proof regarding standing, and it has not provided adequate evidence.

Even if the current agreement did include a destruction provision, the FOP would still lack standing because the agreement is between the FOP and the City alone, imposing no obligations on the intervenors. The FOP's claim of injury due to the plaintiff's refusal to honor the contract is unfounded, as the plaintiff had no obligation towards the contract between the FOP and the City. Thus, any alleged circumvention of contractual obligations by the intervenors does not result in an injury to the FOP that would grant it standing.

The Fraternal Order of Police (FOP) has not established a right to the destruction of specific documents, as it has not indicated any breach of its agreement with the City of Chicago regarding a document destruction provision. This provision stipulates that documents must be destroyed within five years unless they are involved in ongoing civil or court litigation, in which case they should not be destroyed until five years after litigation concludes. The ongoing police brutality litigation prevents the FOP from claiming the City breached their agreement, thus negating any alleged injury that could be redressed by the court.

Additionally, the FOP lacks an existing privacy right over the documents in question, as its members possess no ownership interest and the widespread dissemination of these documents has undermined any potential privacy claims. Even if a destruction provision exists, it does not grant the FOP standing to challenge the access rights of intervenors.

The FOP also does not possess associational standing under the three-prong test from *Hunt v. Washington State Apple Advertising Commission*. It has failed to demonstrate that its individual members have any claims against the appellee-intervenors, which is essential for the first requirement of standing. Furthermore, it has not provided adequate proof that the interests it seeks to protect are relevant to its organizational purpose. The FOP's stated purpose as a collective bargaining representative does not inherently support claims for document destruction, and there is no evidence that all members collectively favor non-disclosure.

Lastly, the FOP's attempt to deny access necessitates the participation of its members, and there has been no demonstration that the members collectively oppose the release of the documents. As the FOP has not proven standing to pursue the appeal, the appeal is dismissed. The motion to strike certain parts of the FOP's reply brief is denied.

The Fraternal Order of Police (FOP) did not appeal the district court's preservation orders from June 16, 1994, and reaffirmed on September 5, 1995, which required the City of Chicago to retain disciplinary records of all police officers. These orders prevent the FOP from asserting any right to destroy documents. On August 21, 1997, the FOP sought to replace an exhibit, claiming an omission of a document destruction provision due to a scrivener's error. The district court permitted the substitution with an earlier collective bargaining agreement from January 1, 1992, to June 30, 1995, which included the provision, raising doubts about whether the current agreement contains the relied-upon destruction clause.

Even if such a provision exists in the current agreement, the FOP lacks standing to appeal because the agreement is solely between the City and the FOP, imposing no obligations on third parties like the intervenors. The FOP asserted an injury due to the plaintiff's refusal to honor the contract, but the plaintiff had no duty to the FOP's agreement with the City. The FOP's claim that the intervenors circumvented this contract does not establish an injury sufficient for standing.

Furthermore, the FOP has not demonstrated a right to have the documents destroyed, as there is no indication of a breach of the agreement concerning the district court's access order. The document destruction provision specifies that records must be destroyed within five years unless they are involved in ongoing litigation, which applies in this case. Consequently, the FOP has failed to prove it has suffered a redressable injury. Lastly, the FOP has not established an existing privacy right over the documents in question.

FOP members lack a possessory interest in the requested documents, and any privacy rights have been compromised by their public availability. Consequently, even if a document destruction clause exists in the collective bargaining agreement between the City of Chicago and the FOP, it does not grant the FOP standing to contest the intervenors' access rights. The FOP also fails to establish associational standing under the three-prong Hunt test. It has not demonstrated that its members possess independent claims against the intervenors, failing the first prong. The FOP has not provided competent evidence that the interests it seeks to protect are pertinent to its organizational purpose, thus failing the second prong. Furthermore, the third prong is unmet because the FOP's challenge to access requires participation from its individual members, and there is no indication that all members support non-disclosure of the documents. As the FOP has not shown it has standing to appeal, the appeal is dismissed. Additionally, the motion to strike parts of the FOP's reply brief is denied, and the FOP did not appeal a prior order mandating the preservation of disciplinary records, which limits its ability to enforce any claims regarding document destruction.