Judge grants former inmate's request to certify class in suit over jail policies

A man who a jury found not guilty of burglary in 2011, yet returned to the general population at the Cook County Jail, where he was beaten by other inmates while waiting to be released, has secured permission from a federal judge to pursue his suit over policies of the Cook County Sheriff’s Office as a class action.

U.S. District Court Judge Amy J. St. Eve this week granted the request of plaintiff Brian Otero to certify a class of men who were held at the county jail pending trial and were found not guilty or whose charges were dismissed, but like Otero, were returned to the general jail population, potentially in violation of their constitutional rights.

“A class action is the superior procedure for litigating these claims because the court can determine the legality of the alleged practice and procedure in one proceeding,” St. Eve wrote in her Tuesday opinion.  “The proposed class might include hundreds, if not thousands of members, many of whom are unlikely to pursue their claims on their own.”

Otero’s complaint against Sheriff Tom Dart and Cook County centers on his treatment at the hands of the sheriff’s office in 2011, in the time immediately after a jury acquitted him of burglary. He was arrested and charged with the crime in 2009.

Rather than being released or held in a cell segregated from the jail’s other inmates, Otero claims he was processed back into the general population under the jail’s standing policies for male inmates who have been acquitted or a court has otherwise ordered released.

That policy, he alleges, allowed him to suffer a severe beating from other male inmates, who attacked him upon learning he had been found not guilty and would soon be released.

He noted the policy also stands in contrast to the office’s policy for acquitted female inmates, who are typically segregated from the general population and are allowed a more peaceful detention pending final processing and release.

Otero contends the different policies violate his and other male inmates’ equal protection rights.

Because the policy concerns all similarly situated male inmates, Otero’s attorneys asked the court to certify a class, potentially including a sizable portion of the estimated “50 to 300” male inmates that have been released each day from the jail since 2010.

Otero first filed suit in 2012, but a federal judge dismissed his complaint in December 2013, noting that it was not substantially different from previous failed attempts by others to certify a class over such detention procedures.

The judge at that time said Otero’s initial complaint, like those others, centered on the “unreasonable” amount of time acquitted inmates were detained following their acquittals.

Otero amended his suit in January, this time focusing on the constitutionality of the detention procedures, specifically claiming they violate male inmates’ rights under the Fourth and Fourteenth Amendments by detaining them in an “unreasonable manner.”

Dart challenged Otero’s certification motion, claiming it would be difficult to distinguish inmates like Otero from others whose releases may have been complicated by other factors, like mental illness, or who may have received a “judicial determination requiring their release,” such as those on electronic monitoring, those released to another agency or those who posted bond.

St. Eve agreed, in part, with the sheriff’s argument, and struck language from Otero’s motion that could have potentially included those whose situations were substantially different from former inmates like Otero.

However, she said the class could include those who, like Otero, have been “acquitted or found not guilty,” as his complaint was amended to “focus on a specific detention procedure, rather than the length of detention” and presses an equal protection claim.

In her opinion, St. Eve appointed Otero as class representative, rejecting arguments from Dart that his criminal background presents a credibility issue.

She also appointed attorneys Myron M. Cherry and Jacie C. Zolna of Myron M. Cherry & Associates in Chicago; and Robert M. Foote of Foote, Mielke, Chavez & O’Neil in Geneva to serve as class counsel in the case.

Records show Dart and the county are being represented by James Charles Pullos, Michael L Gallagher and Anthony E. Zecchin with the Cook County State's Attorney's Office.

According to the latest docket entry, a status hearing is set for Oct. 24 and discovery is scheduled to be completed by January 2015.