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Appellate court upholds decision keeping FOP out of consent decree lawsuit

Kevin Graham

Fraternal Order of Police President Kevin Graham | Ashlee Rezin/Sun-Times file photo

The Fraternal Order of Police has again been denied in its attempts to formally join the lawsuit that could soon lead to a consent decree governing reform at the Chicago Police Department.

The 7th U.S. Circuit Court of Appeals on Wednesday upheld U.S. District Judge Robert Dow’s decision, reached last summer, that barred the police union from intervening in the lawsuit between City Hall and then-Attorney General Lisa Madigan.

In doing so, the appellate court noted the FOP waited “for nearly a year” to try to intervene, despite realizing the consent decree might affect its interests. The court also described as “largely speculative” the FOP’s fear that the consent decree will violate its collective bargaining agreement, or CBA.

“As things stand now, the consent decree cannot impair the CBA or state law rights enjoyed by Chicago police officers,” the court wrote in a 17-page opinion released Wednesday. “That will change only if the district court concludes that federal law requires the abrogation of those rights.”

Dow listened in October to two days of public comment regarding a draft of the consent decree. Among those who spoke was FOP President Kevin Graham.

Though it’s not clear when Dow will rule in the case, the judge is more likely to do so now that the appellate court has upheld his decision not to let the FOP intervene.

In a 25-page ruling last August, Dow said the FOP waited too long to try to get involved “despite its clear recognition” through public comments that the case could significantly affect policing in Chicago.

The appellate court on Wednesday also called the FOP’s attempt to intervene “untimely.” It noted that Graham in August 2017 publicly called a consent decree “a potential catastrophe for Chicago.” The FOP did not move to intervene until June 2018.

Meanwhile, the appellate court said the FOP met with attorneys for the state to express concerns that the consent decree could conflict with its contract or even state law. The two sides then agreed on “carve-out” language that would keep such rights intact, according to the opinion.

The appellate court also said the FOP “has enjoyed repeated (and continuing) opportunities” to convey its concerns about the consent decree to Dow.

Attorney General Lisa Madigan praised the appellate court’s ruling.

“We were careful to engage all of the interested stakeholders who are concerned about reforming the Chicago Police Department, which is why we were in regular communication with the leadership of the Fraternal Order of Police and their lawyers as we negotiated the consent decree,” Madigan said in a statement.