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Chicago airport security guards are not cops, Seventh Circuit rules

The ruling is the latest of several failed attempts by airport security officers in the Windy City to get their law enforcement status back.

CHICAGO (CN) — The Seventh Circuit on Wednesday all but killed a class action suit brought by Chicago airport security guards, when an appellate panel ruled that airport security officers are not police.

The Illinois Law Enforcement Training and Standards Board did classify security guards working at Chicago's O'Hare and Midway international airports as law enforcement officers from 1993 to 2017. But following an investigation into airport security guards' chain of command within the Chicago Department of Aviation, the ILETSB decided to revoke that privileged status.

The investigation itself was prompted by a 2016 email from a CDA official telling the board that his department was seeking access to an online law enforcement database of state criminal records. ILETSB officials thought the CDA already had access to the database; the fact it didn't called its status as a law enforcement agency into question.

The inquiry that followed revealed that while airport security officers received similar training to Chicago police officers and performed similar duties, the CDA had no oversight from the Chicago Police Department. Airport security ultimately reported to the city's commissioner of aviation, not its police superintendent. Accordingly, the ILETSB told the city in April 2017 that it could not “trace law enforcement authority from the Illinois statutes to these particular employees, in the manner that we can for CPD officers, and we can no longer find them [to] be law enforcement officers.”

Chicago quickly affirmed the board's decision. At the time the city was already facing public scrutiny over airport security guards' actions. Only four days after the ILETSB gave its decision to City Hall, video surfaced of O'Hare security guards beating a man and dragging him off a United Airlines flight by his wrists, police stars visible on their waists and hats.

“[The] City’s Aviation Security Officers do not receive any certification or appointment from the Chicago Police Superintendent, are under the supervision of the Commissioner of the CDA, and serve as an unarmed security function and are not police officers or special police officers under the Chicago Municipal Code,” the city wrote in a June 2017 letter to the ILETSB.

But while the city may have been happy to close off one potential avenue for police controversy, among countless others, the security guards themselves suddenly faced losing all the perks of being cops. Per the ILETSB decision, even senior guards had their law enforcement benefits retroactively stripped.

In response, the guards' union, Service Employees International Union Local 73, filed an unfair labor charge with the Illinois Labor Relations Board in April 2017. The union claimed the city was sacrificing its airport security in order to stave off the political fallout of the United Airlines incident. The ILRB thought otherwise, ruling against the union in October 2018.

Three guards also filed a federal class action lawsuit in 2018 against Chicago, Illinois and the heads of the CDA and ILESTB. The guards alleged the cancellation of their law enforcement status was a violation of their property and due process rights under the Fifth and 14th Amendments.

U.S. District Judge Robert Gettleman wasn't convinced. The Bill Clinton appointee winnowed the case several times, eventually dismissing all defendants except the city itself. He tossed the case entirely in September 2021, agreeing with the ILETSB and ILRB that airport security should never have been considered law enforcement in the first place.

"It is doubtful that plaintiffs can have a constitutionally protected property right in something to which they were never entitled," Gettleman wrote.

Following an appeal and oral arguments last September, the Seventh Circuit's six-page opinion issued Wednesday affirmed Gettleman's ruling, as well as the 2018 ILRB decision. Like the lower court, the three-judge panel found that besides a loss in status and the revocation of the right to carry concealed weapons after retirement, being decertified as police did not change airport security guards' daily responsibilities or compensation.

"Plaintiffs’ theme is that they have been deprived, without due process, of property interests in their work histories. It is
hard to know what to make of this," U.S. Circuit Judge Frank Easterbrook, a Ronald Reagan appointee, wrote in the opinion. "Their job duties and compensations have not changed. Chicago does not propose to show them as unemployed before 2017 or refuse to give them references if they seek other positions."

The panel – rounded out by U.S. Circuit Judges David Hamilton and Michael Brennan, appointed by Barack Obama and Donald Trump, respectively – did not directly address the security guards' concerns over the loss of benefits. But their ruling did allude to the issue by reminding them of their failed unfair labor charge from 2017.

Easterbrook also chided the class of security guards over what he considered a misunderstanding of the U.S. Constitution. He wrote that even if the guards losing their police status was a violation of Illinois labor law, a state law violation does not necessarily equate to a violation of constitutionally protected property rights.

"The dispositive problem with plaintiffs’ position is that it depends on a belief that the Constitution of the United States ensures the correct application of state law," the opinion states. "But it does not. A violation of state law is just that—a violation of state law." (Emphasis in original.)

Nothing in the Constitution, Easterbrook added, mentions airport security guards' right to be cops.

"No one has a 'fundamental right' to be a law-enforcement officer," he wrote.

Attorneys from the law firm Sweeney, Scharkey & Blanchard, who represented the security guards in their appeal before the Seventh Circuit, did not respond for a request for comment on the panel's decision. Neither did Chicago's legal department.

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