First Defense Legal Aid v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-3376 & 02-3389
F IRST D EFENSE L EGAL A ID ,
Plaintiff-Appellee,
v.
C ITY OF C HICAGO , et al.,
Defendants-Appellants.
____________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 01 C 9671—Milton I. Shadur, Judge.
____________
A RGUED D ECEMBER 11, 2002—D ECIDED F EBRUARY 19, 2003
____________
Before C OFFEY , E ASTERBROOK , and D IANE P. W OOD ,
Circuit Judges.
E ASTERBROOK , Circuit Judge. According to Moran v.
Burbine, 475 U.S. 412 (1986), a suspect in police custody
does not have a constitutional right to be notified that
his attorney is at the stationhouse. The Constitution
permits the suspect to request counsel and stop the in-
terrogation but does not require notice about the lawyer’s
whereabouts. Chicago applies to cooperating witnesses
the approach sustained in Moran for custodial interroga-
tion: Witnesses are not notified of attorneys’ presence and
undergo interrogation without legal advice unless they
request access to counsel. The district judge found, after a
trial, that “[w]hen a spontaneous request is made by a

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2 Nos. 02-3376 & 02-3389
witness, the police attempt to discourage the contact, telling
the witness either that he does not need a lawyer or that it
is better if fewer people know he is at the station, or both.
Only if the witness nonetheless ‘insists’ on counsel will he
be permitted to communicate with an attorney.” 225 F.
Supp. 2d 870, 875 (N.D. Ill. 2002) (emphasis in original;
internal citations omitted). The district court held that this
practice is unconstitutional and issued a permanent injunc-
tion requiring the City (and the State’s Attorney for Cook
County) to notify a witness as soon as an attorney ar-
rives purporting to represent him; the injunction also
compels the police to admit the attorney so that the no-
tice must be given in his presence, and he may confer in
confidence with the witness. 225 F. Supp. 2d at 892-93. In
light of Moran, this holding was not based on a theory
that the City’s practice violates the witness’ rights; instead,
the district court found, the practice violates the attorney’s
right under the first amendment (applied to the states
through the fourteenth) to associate with his client. We
stayed the injunction and expedited the appeal.
One immediate obstacle to this approach is the fact that
the interior of a police station is not a public forum. The
Constitution does not create either a right of access to
the inside of governmental buildings, see Houchins v.
KQED, Inc., 438 U.S. 1 (1978), or an obligation to offer a
message-delivery service for the benefit of those who ar-
rive at the door. See Thornburgh v. Abbott, 490 U.S. 401
(1989). Plaintiff First Defense, a legal-aid bureau that
offers free assistance to persons associated with crime
(either as suspects or as witnesses), concedes that there
is no general right of access but contends that it possesses
special rights of association with its clients. The idea
appears to be that if the witness cannot come out, then the
lawyer must be let in. How far this line of argument
goes to establish rights to visit inmates in prison is a ques-
tion now before the Supreme Court. See Bazzetta v.

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Nos. 02-3376 & 02-3389 3
McGinnis, 286 F.3d 311 (6th Cir. 2002), cert. granted under
the name Overton v. Bazzetta, No. 02-94 (U.S. Dec. 2, 2002).
It is hard to reconcile this contention with Moran, for
suspects are not free to come out yet need not be notified
of counsel’s arrival. Witnesses present an easier situation,
for they are entitled to leave the police station and meet
their attorneys outside (or anywhere else).
What is more, the district court’s injunction extends
beyond the attorney-client relation to require the police
to admit attorneys who have not yet been engaged as
counsel. This is why we referred to attorneys “purporting
to” represent a witness; the injunction does not permit
the police to determine whether a given attorney actually
represents a given witness. The district court found that
First Defense generally enters the picture at the request
of witnesses’ family or friends. The judge stated with-
out elaboration that “[t]hose requests suffice to create an
attorney-client relationship between the FDLA attorney
and the person being held.” 225 F. Supp. 2d at 873. It is
hard to see how this can be so; an attorney is an agent,
and there can be no agency without the knowledge and
consent of a principal. It takes two to associate; a one-sided
desire to counsel a witness does not create a protected
“right of association.” Neither First Defense nor the dis-
trict court has drawn to our attention any statute or opin-
ion providing that requests by third parties create attorney-
client relations in Illinois. The district judge did cite
decisions prohibiting police from looking behind a claim
of representation—“the police must accept the FDLA at-
torney’s assertion that he or she represents the witness
until the contrary is proved. See, e.g., People v. McCauley,
228 Ill. App. 3d 893, 898, 595 N.E.2d 583 (1st Dist. 1992),
rev’d in part on other grounds but reaffirming the same
principle, 163 Ill.2d 414, 645 N.E.2d 923 (1994) (“More-
over, when an attorney reasonably identifies himself
and reasonably informs the police that he represents a

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4 Nos. 02-3376 & 02-3389
suspect in custody, the police have no entitlement to make
their own on the spot determination that the attorney
does not lawfully represent the suspect. The purview for
making that determination is plainly outside the bounds
of the police”)”, 225 F. Supp. 2d at 886—but neither
McCauley nor any other case we could find concludes
that an attorney’s say-so, or a friend’s invitation, actually
creates an attorney-client relation.
Sometimes a family member may act as next friend on
behalf of a person unable to protect his own interests, but
“friends” (the district court’s opinion supplies no details
about who these may be) differs from “next friends.” Two
courts of appeals recently have held that persons in cus-
tody must select counsel for themselves; volunteers and
friends may not form an attorney-client relation on be-
half of persons in custody. Coalition of Clergy, Lawyers
& Professors v. Bush, 310 F.3d 1153 (9th Cir. 2002); Hamdi
v. Rumsfeld, 294 F.3d 598 (4th Cir. 2002). See also
Whitmore v. Arkansas, 495 U.S. 149 (1990); Graham v.
Lappin, 255 F.3d 906 (7th Cir. 2001). Friends may be
particularly poor champions of witnesses, for professed
“friends” could be the very persons under investigation.
Police and witnesses alike know that criminal organiza-
tions often retaliate against those who assist law enforce-
ment. A legal rule entitling “friends” to send lawyers to
police stations, and compelling the police to admit them,
could help these criminals determine who within the
organization has switched sides, with potentially fatal
results—for attorneys acting in the best of faith may
enable the “friend” to learn that a particular person has
provided information to the police. Cf. United States v.
Aguilar, 515 U.S. 593 (1995) (prosecution of a federal
judge for alerting a suspect to an investigation). Worse:
although the district judge found that First Defense is
above board, not all attorneys are honest. Some set out
to assist criminal organizations, and the police thus may

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Nos. 02-3376 & 02-3389 5
be right to counsel witnesses that the fewer people who
know of their presence at the stationhouse, the better for
their safety.
Nonetheless, because some of First Defense’s requests
may come directly from the witnesses (before they enter
the stationhouse), we must consider what access an attor-
ney may obtain after a bona fide attorney-client relation
has been formed. First Defense contends that it has a
preferred right of access—one greater than the press,
which First Defense acknowledges lacks a legal entitle-
ment to enter police stations—in large measure because
Chicago’s police mistreat witnesses. The district court
agreed with this submission, finding that the police lock
witnesses into Spartan rooms, sometimes holding them
overnight against their will—and rarely informing the
witnesses that they are free to leave. Yet no such advice
is required by existing statutes or the Supreme Court’s
opinions: if a witness has turned into a suspect being
held under custodial interrogation, then the witness is
not free to leave (though Miranda warnings become essen-
tial); and if the witness is not in custody, then no advice
of rights is needed. See Ohio v. Robinette, 519 U.S. 33
(1996). See also, e.g., Schneckloth v. Bustamonte, 412 U.S.
218 (1973); Rogers v. Richmond, 365 U.S. 534 (1961). What
First Defense really wants to do is to counteract deci-
sions such as Robinette and Schneckloth by gaining entry
in order to deliver the advice that it thinks the police
should have given. But if the police are violating the rights
of some witnesses by holding them against their will, the
right response is to award damages to the witnesses
(or suppress evidence if the witness becomes a defendant
and the prosecutor seeks to use the statement against him).
When A’s rights are violated, the remedy runs to A; a
court does not create some new constitutional right and
award it to B. Yet that is First Defense’s theme: that
because the police violate some witnesses’ rights, then

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6 Nos. 02-3376 & 02-3389
lawyers receive extra constitutional rights. Not so. Each
group enforces its own entitlements.
First Defense and the district court express concern
that police “invite” to the station persons they suspect of
crime but lack the evidence to charge with offenses, ask
these persons for information, and keep them cooped up
because they, not being formally in custody, do not re-
ceive either Miranda warnings or direct notice that they
are free to leave. Some of these persons know that they
can leave but will be too timorous, or cowed by authority,
to invoke this right; others may think themselves to be
in custody (and behave as if they were) even though the
police would honor a demand for liberty. Many of the
witnesses incriminate themselves as well as (or instead
of) third parties, and if prosecutors elect to charge them
with crimes rather than reward them for assistance, they
cannot invoke Miranda or any equivalent when seeking
suppression of their statements. Whether something (an
exclusionary rule, an entitlement to damages, or a new
norm of police conduct) should be done about this—leg-
islatively, through the state judiciary, or as a matter
of federal constitutional law—is not presented today,
given that no witness is a party. First Defense is assert-
ing its own rights, and to ascertain them we must ask
how the police must deal with lawyers for suspects
whose rights have been respected—for this injunction
requires the police to notify any witness at any lawyer’s
request.
Do lawyers have associational rights stronger than
those of the press, the general public, and a witness’
relatives? In some respects the answer must be yes, be-
cause an attorney wears two hats: his own plus the cli-
ent’s. See Legal Services Corp. v. Velazquez, 531 U.S. 533
(2001). The attorney may exercise not only the rights he
holds personally, but also rights he wields as agent—and
persons in police custody have rights that differ from those

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Nos. 02-3376 & 02-3389 7
of the general public and the press. This confluence of
rights underlies many aspects of the lawyer-client rela-
tion. But First Defense has no (relevant) rights derived
from those witnesses with whom it has attorney-client
relations. The constitutional right to counsel attaches
only with formal charges. See United States v. Gouveia,
467 U.S. 180 (1984); Kirby v. Illinois, 406 U.S. 682 (1972).
Witnesses have no right to counsel under either the fifth
or the sixth amendment. See McNeil v. Wisconsin, 501
U.S. 171 (1991); Minnesota v. Murphy, 465 U.S. 420
(1984). Moran holds that even persons in custody, who do
have a constitutional right to counsel, have no right to
notice that a lawyer is at the door, or to meet with counsel
in the interview room. Their right is to terminate the inter-
rogation, not to have counsel on the spot. See Duckworth
v. Eagan, 492 U.S. 195 (1989).
Attorneys often engage in political speech—either di-
rectly or through solicitation or representation of cli-
ents—and enjoy in that endeavor the highest degree
of protection. See In re Primus, 436 U.S. 412 (1978);
NAACP v. Button, 371 U.S. 415 (1963). Yet First Defense
seeks to counsel witnesses in private, and the practice
of law under the protection of the attorney-client privi-
lege is not part of the marketplace of ideas. Quite the con-
trary: lawyers as counselors are subject to entry control
(licensing) and extensive ethical regulation, cf. Florida
Bar v. Went for It, Inc., 515 U.S. 618 (1995), of a kind
that could not be imposed on the press or the speaker on
a soapbox. What lawyers say in confidence to witnesses
is covered by a privilege and will not play any role in pub-
lic debate. So First Defense does not enjoy especially
strong rights of access or speech: it is not exercising
any entitlements on behalf of clients and, as a potential
giver of legal advice, is subject to greater regulation than a
newspaper reporter would be.

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8 Nos. 02-3376 & 02-3389
This brings us back to the point that interrogation
rooms are not public forums, and that even the press
lacks a general right of access to the places in which pub-
lic agencies conduct their business. See Houchins; cf.
Los Angeles Police Department v. United Reporting
Publishing Corp., 528 U.S. 32, 40 (1999); Perry Education
Association v. Perry Local Educators’ Association, 460
U.S. 37, 48 (1983); Pell v. Procunier, 417 U.S. 817, 835
(1974). Two other circuits have applied this principle to
conclude that lawyers lack any first amendment right
of access to clients inside public buildings. See Cuban
American Bar Association, Inc. v. Christopher, 43 F.3d
1412, 1429 & n.21 (11th Cir. 1995); Ukrainian-American
Bar Association v. Baker, 893 F.2d 1374, 1381-82 (D.C.
Cir. 1990). These opinions hold, following Moran and
Duckworth, that the relevant right is the one held by
the client—to stop the interrogation (and, for a witness,
to walk out of the station)—rather than any right distinc-
tive to an attorney.
Nonetheless, First Defense contends, even if the police
could exclude everyone from the interview room, they
may not discriminate according to viewpoint. Its “view-
point,” according to First Defense, is that witnesses should
know their legal rights, especially their right to stop
talking. The district court found that the police permit
relatives and clergy into the interview room when that
will promote cooperation; it is unconstitutional viewpoint
discrimination, the court held, to exclude those who may
advise witnesses not to cooperate.
Chicago replies—and First Defense appears to con-
cede—that it does not pick and choose among private
lawyers. It does not notify witnesses when pro-coopera-
tion lawyers (sent, say, by neighborhood anti-crime asso-
ciations) show up, but refuse to notify witnesses when anti-
cooperation lawyers knock on the door. Chicago’s practice
is, as the district court found, to afford access to coun-

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Nos. 02-3376 & 02-3389 9
sel only if the witness initiates the request. It does admit
assistant state’s attorneys, but no constitutional rule
provides that if public employees enter a given public
space, private parties have a like degree of access. It is
not “viewpoint discrimination” to insist, for example, that
public prosecutors handle a trial on behalf of a state,
without giving defense attorneys an equal crack at pre-
senting the state’s evidence. Distinctions among roles
differ from viewpoint discrimination. Public buildings
and proceedings may be devoted to those chosen to carry
out public purposes. Cornelius v. NAACP Legal Defense
and Education Fund, Inc., 473 U.S. 788 (1985), is among
many cases showing that access to public property may
be limited to persons who advance the goal of the public
organization. In Cornelius this meant that charities that
would undermine the purpose of a fund-raising drive
(by driving away donors) could be excluded; for the
same reason the public agency need not distribute with
the fund-raising packet a leaflet urging the employees
not to give one red cent. Just so here: by admitting pub-
lic prosecutors who urge witnesses to cooperate, the city
does not oblige itself to give “equal time” to private at-
torneys who are likely to urge witnesses to clam up.
Lots of public agencies limit access to those private
persons who advance their mission. For example, polling
places exclude advocates for abstention. People who want
to boycott the election may form a picket line outside;
the first amendment does not entitle them to contact
each voter inside. States may send prosecutors into grand
jury rooms while excluding defense attorneys; wit-
nesses who want to consult counsel must walk outside the
grand jury room, just as witnesses may leave the
stationhouse to meet with lawyers. And the first amend-
ment does not require a state that decides to per-
form abortions at a public hospital to employ surgeons
who refuse to carry out that procedure, or to notify wom-

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10 Nos. 02-3376 & 02-3389
en that representatives of Operation Rescue want to be
admitted to talk them out of ending their pregnancies. See
Hill v. Colorado, 530 U.S. 703 (2000). (And the reverse:
a public hospital that has decided not to perform abor-
tions, see Poelker v. Doe, 432 U.S. 519 (1977), need not
set up a space inside so that representatives of Planned
Parenthood may offer opposing views. Government may
promote one side of an issue, provided that it does not
inhibit opponents’ use of private resources. See Rust v.
Sullivan, 500 U.S. 173 (1991).)
A public hospital may welcome family members who
will calm and comfort patients without obliging itself to
give equal access to those who promote faith healing or
other non-scientific approaches. The hospital may admit
allopaths to the medical staff while excluding homeo-
paths, even though the first amendment allows homeo-
paths to argue their position to the public. Likewise a
police station may admit those who help it enforce the
laws while excluding those who it believes have a differ-
ent goal. Houchins shows this. The prison excluded report-
ers (except as participants in monthly guided tours) while
routinely admitting the prisoners’ family and lawyers. If
it was not forbidden viewpoint discrimination to prefer
lawyers over reporters in a prison, it is not viewpoint
discrimination to prefer prosecutors, family, and clergy
over defense lawyers in a police station. The goal in either
case is not to throttle a disfavored viewpoint, but to de-
vote the public building to the purpose for which it is
maintained.
First Defense therefore has neither a personal right,
nor one derived from its clients, to have the police notify
witnesses that a lawyer is at the front desk, let alone a
right to be escorted inside immediately and to engage
in confidential consultations within the police station.
Any violations of suspects’ rights to be free of trickery,
wrongful imprisonment, and compulsory self-incrimina-

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Nos. 02-3376 & 02-3389 11
tion must be redressed after the fact (by damages or
exclusion of evidence) rather than by a regulatory injunc-
tion issued in a case to which no witness is a party. The
injunction issued by the district court accordingly is
REVERSED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-19-03

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