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Judge certifies class in suit against Dart

Wednesday, September 03, 2014
Chicago Daily Law Bulletin
by Patricia Manson

Men who allege they were thrown back in jail following their acquittal on criminal charges have been given the go-ahead to jointly pursue their claims against Cook County Sheriff Thomas J. Dart.

In a written opinion Tuesday, U.S. District Judge Amy St. Eve certified a class of plaintiffs in a lawsuit accusing Dart of unlawfully detaining male inmates entitled to their freedom.

St. Eve rejected the argument that Brian Otero, the man who filed the suit, would not be an appropriate choice for class representative.

Dart contends that Otero cannot adequately represent the class members because he has a criminal record and, therefore, is not credible, St. Eve noted.

That argument, she wrote, “ignores that the proposed class members are all one-time inmates detained at Cook County Jail.”

And if convicted felons were barred from serving as class representatives. she continued, quoting Parish v. Sheriff of Cook County, 07 C 4369, 2008 WL 4812875 (N.D. Ill. 2008), “there would be no such thing as a class action in the prison or jail context.”

Otero alleges the sheriff’s office routinely takes all male inmates — including those who have been acquitted — back to jail and places them in their cells following an appearance in court.

The Cook County Department of Corrections then reviews the court records and checks for outstanding warrants before taking acquitted inmates from their cells to an outtake area, confirming their identities and releasing them, Otero alleges.

In his case, he alleges, he was beaten following his return to a jail cell by inmates angered that he had been acquitted and was to be released.

Otero alleges that female inmates who are acquitted are not routinely returned to their cells. Instead, he alleges, they are given the choice of remaining in a receiving room or returning to their cell to collect their belongings themselves while their release is processed.

Otero contends that the alleged procedures used for male inmates who no longer face criminal charges violates the Fourth Amendment.

He also contends that subjecting male inmates to different — and less favorable — procedures than those used for female inmates violates the right to equal protection of the law.

In her opinion, St. Eve held that pursuing the suit as a class action passes muster under Federal Rule of Civil Procedure 23.

The proposed class meets the requirements of Rule 23(a) — numerosity, commonality, typicality and adequacy of representation, she wrote. Also, she wrote, quoting Rule 23(b)(3), “questions of law and fact common to members of the class predominate over any questions affecting only individual members” and resolving those questions in a single suit is the best way to proceed.

“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.

“The proposed class might include hundreds, if not thousands of members, many of whom are unlikely to pursue their claims on their own.”

She certified a class of plaintiffs including all male inmates who, while detained by the sheriff’s office, were acquitted or had the criminal charges against them dismissed any time from April 27, 2010, to the present.

St. Eve designated Otero as the class representative and appointed three attorneys as class counsel.

They are Myron M. Cherry and Jacie C. Zolna, both of Myron M. Cherry & Associates LLC, and Robert M. Foote of Foote, Mielke, Chavez & O’Neil LLC in Geneva.

The case is Brian Otero v. Thomas J. Dart, et al., No. 12 C 3148.

Cherry said the sheriff’s office previously reached out-of-court settlements in at least two suits filed by individual plaintiffs raising similar claims.

A successful resolution of the class action would assist all male detainees who are acquitted, not just the class members, Cherry said.

“It will force the sheriff to modernize his procedures,” he said. “This is the third time that the sheriff of Cook County has been dinged on this issue.”

The lead attorney for Dart is Assistant State’s Attorney James C. Pullos.

In a written statement, spokeswoman Sophia Ansari of the sheriff’s office said Dart likely will appeal St. Eve’s ruling.

“We continue to believe that the circumstances of Mr. Otero’s release from jail were and are unique,” the statement says. “We do not believe that he satisfies all of the elements of federal class certification rules.”

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