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Seventh Circuit considers whether airport security guards count as law enforcement

Chicago approved the revocation of law enforcement status for security guards at the O'Hare and Midway airports in 2017. An appeals panel is now weighing whether the move violated the guards' due process rights.

CHICAGO (CN) — In 1993, the Illinois Law Enforcement Training and Standards Board determined that security guards working at Chicago's O'Hare and Midway international airports were law enforcement officers. In 2017, it changed its mind.

The change followed an ILETSB investigation into airport security guards' chain of command within the Chicago Department of Aviation, itself prompted by a seemingly innocuous 2016 email from a CDA official telling the board that the 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 investigation revealed that while airport security officers received similar training to Chicago police officers and performed similar duties - part of the basis for the 1993 decision granting them law enforcement status - the CDA had no oversight from the Chicago Police Department. No one in the CDA answered to the city's police superintendent.

Accordingly, the board wrote in an April 2017 letter to the city 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.” The decision was affirmed by the city and backed up by concurring determinations from the Illinois Labor Relations Board.

For the city, the change was the correction of a decadeslong oversight; the removal of law enforcement power from an institution that was never supposed to have it. It was also politically convenient - only four days after the ILETSB sent its letter to City Hall, video surfaced of O'Hare security guards dragging a man off a United Airlines flight by his wrists, police stars visible on their waists and hats. At the time the city was still reeling from allegations that the police and then-Mayor Rahm Emanuel had worked to cover up white CPD officer Jason Van Dyke's 2014 murder of Black teenager Laquan McDonald. It was happy to wash its hands of further cop controversy.

“[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 the city's gain was the airport security guards' loss. Law enforcement status comes with a number of benefits and professional opportunities, both of which the guards lost overnight. Even longtime guards who were allowed to keep their personal law enforcement certification had their law enforcement benefits retroactively stripped.

"By way of administration, officers who received their training and certification as employees of the CDA will remain certified officers; however, time served as an employee of this entity will not qualify towards any law enforcement benefits or credentials as maintained by the Board," the ILESTB wrote in 2017.

Three security guards, convinced the city and state had illegally deprived them of their benefits, filed a federal class action lawsuit against Chicago, Illinois and the heads of the CDA and ILESTB in 2018. The guards alleged the cancellation of their law enforcement status was a violation of their property and due process rights under the Fifth and Fourteenth Amendments.

U.S. District Judge Robert Gettleman didn't buy it. The Bill Clinton appointee winnowed the case several times, eventually dismissing all defendants except the city itself. In September 2021, he tossed the case entirely. He found that the guards could not claim a due process property rights violation for property - in this case police benefits - they were never supposed to have in the first place.

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"It is doubtful that plaintiffs can have a constitutionally protected property right in something to which they were never entitled... plaintiffs have certainly presented nothing to indicate that they can," Gettleman wrote in his 2021 ruling. "Moreover, even if they could have such a right, they have failed to demonstrate that they do have a property right in their work histories. The Fourteenth Amendment protects property rights, but it does not create them."

Undeterred, the trio filed for an appeal in October. After almost a year of waiting, they took their case before a three-judge appellate panel of the Seventh Circuit on Wednesday.

Their attorney Richard Sweeney, of the law firm Sweeney, Scharkey and Blanchard, argued that the city had deprived the guards of their due process rights by never giving them a chance to plead their case.

"The process should have been that the... [security guards] who were at that point certified as law enforcement officers should have been given an opportunity to challenge the decision by the city," Sweeney said.

This position was heavily, at times angrily, criticized by U.S. Circuit Judge Frank Easterbrook, a Ronald Reagan appointee. Arguing that the guards should have been given a chance to individually make their cases may be appropriate for a lawsuit under Illinois state law, Easterbrook said, but it didn't hold up when alleging constitutional violations in federal court.

"The due process clause doesn't require individual hearings," Easterbrook said, after several exchanges with Sweeney in which he implied the attorney's argument was baseless. Easterbrook remained openly annoyed with both sides' attorneys throughout the hearing.

In an attempt to clarify the debate, U.S. Circuit Judge David Hamilton, a Barack Obama appointee, asked Sweeney what process the city could have provided his clients.

Sweeney responded only that there should have been "some" process, "other than someone from the city of Chicago responding to ILESTB saying, 'yes you're right,' and then all of a sudden everyone is told 'as of June 1 you guys are not police officers, you never have been, you never will be.'"

Sweeney went on to tell Hamilton, who was doubtful the guards had lost any property rights at all, that his clients had lost a "plethora" of benefits, including death benefits, scholarship opportunities and the right to carry a concealed weapon without a concealed carry permit.

"It's not just your job, It's the benefits you get as a result of the job," Sweeney said.

City attorney Ethan Merel rebutted Sweeney's claims by pointing out, as the district court did, that the airport security guards were never supposed to have been given those benefits in the first place. Even considering the 1993 ILETSB decision deeming them law enforcement officers, which the board now calls a mistake, Merel said that the security guards were never sworn in by the city's police superintendent and never had the same duties as a Chicago beat cop.

"They were never given the right to carry arms while on duty. They were never effectuating arrests at the airport. They were detaining people for formal arrests to then be conducted by the Chicago Police Department," Merel said.

Merel also said the guards' records as former law enforcement officers had not been erased in city or state records, contradicting their claim that they had suffered that material loss. When Hamilton confronted Merel on this contradiction, he admitted the resolution of some guards' grievances may be "unclear." But he added that even if the guards could claim a material loss, their fight should be with the state, not the city.

"The city couldn't possibly cause them property deprivation because the board, as an agency of the state from which police powers flow, exclusively controls law enforcement officer status," Merel said.

The appellate panel, rounded out by the mostly silent Donald Trump appointee U.S. Circuit Judge Michael Brennan, took the arguments under advisement but did not say when they would issue a ruling.

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