Judge: Ex-O'Hare cops can keep suing city over aviation police disbanding following United passenger dragging

By Scott Holland | Dec 4, 2018

Ginger Evans   Youtube screenshot

A federal judge has let the state off the hook in a class action complaint airport police officers filed after a high-profile incident with a passenger, but the city of Chicago wasn’t able to earn a full dismissal.

Aviation security officers Keia Yates, Leonardo Rodriquez and Johnny Jimmerson filed a four-count class action complaint — against the state and Illinois Law Enforcement Training and Standards Board Executive Director Brent Fischer, as well as the city and Chicago Department of Aviation Commissioner Ginger Evans — in the wake of an April 9, 2017, incident, in which a United Airlines flight crew at O’Hare International Airport called airport police regarding a noncompliant passenger.

The officers physically removed the passenger from the plane, a violent incident other passengers captured on video that eventually gained widespread social media and broadcast television attention. The next month, Evans testified before the U.S. Senate Subcommittee on Aviation Operations, Safety and Security, repeatedly saying the officers involved were “non-sworn, non-armed security personnel” and not police.

U.S. District Judge Robert W. Gettleman issued an opinion on the dispute Nov. 27 in Chicago, explaining the security officers’ assertions the Chicago Department of Aviation was formally a law enforcement agency as recognized by the state. Gettleman’s background traced that history back to 1993, when aviation security officers were first required to recertify and retest with the ILETSB annually. Aviation security officers have been considered police officers in legal proceedings and are granted law enforcement officer status under the Federal Law Enforcement Officer Safety Act.

The officers say the city stripped workers of their police status after the United incident, which resulted in an unfair labor charge with the Illinois Labor Relations Board. On June 29, 2017, the state deactivated the CDA as a law enforcement agency, which included removing security officers’ privilege of participation in the Illinois Retired Officer Concealed Carry program. The workers ultimately filed the federal complaint, alleging violation of their Fifth and 14th amendment rights and asking the court to reinstate their work history as law enforcement officers. The state and city defendants moved to dismiss.

Gettleman agreed with the state’s argument that the workers’ claims violate 11th Amendment protections barring federal litigation against state agencies working in official capacities. He said the same principle applies to the complaint against Fischer in his official capacity because the workers are seeing retroactive relief and not alleging a continuing violation of federal law.

The city defendants don’t have 11th Amendment immunity, Gettleman explained, but he dismissed the complaints against Evans since she, like Fischer, was sued in her official capacity, making those counts redundant with the claims against the city.

The city said the officers’ work history doesn’t constitute property subject to the Fifth Amendment’s taking clause or 14th Amendment due process protections. Gettleman agreed the taking clause only applies to real and personal property, but said even if they were, those histories weren’t “taken” under eminent domain nor taken for public use.

However, the 14th Amendment is more expansive, and Gettleman agreed the officers sufficiently claimed “they had acquired certain benefits from having worked for the Chicago Department of Aviation as (law enforcement officers) for what they had always been told was and defendants treated as a ‘certified’ LEA.” Since they were stripped of those benefits unilaterally, retroactively and without due process, the city must continue to defend itself against that claim, as well as a count of promissory estoppel.

Gettleman dismissed the officers’ fraudulent inducement complaint, saying they didn't allege the city, when recruiting security officers, knew it would some day strip their law enforcement officer status.

The matter is set for a status hearing on Jan. 9.

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City of Chicago City of Chicago Department of Aviation U.S. District Court for the Northern District of Illinois United Airlines

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