The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KEIA YATES, LEONARDO RODRIQUEZ, and )
JOHNNY JIMMERSON, as representative of that )
class of individuals working as Aviation Security )
Officers of the City of Chicago, Department of )
Aviation, )
)
Plaintiffs, ) Case No. 18 C 2613
)
v. )
) Judge Robert W. Gettleman
STATE OF ILLINOIS, BRENT FISCHER, as )
Executive Director of the Illinois Law Enforcement )
Training and Standards Board; the CITY OF )
CHICAGO; and GINGER EVANS, as )
Commissioner of the City of Chicago Department )
of Aviation, )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
Plaintiffs Keia Yates, Leonardo Rodriquez and Johnny Jimmerson, on behalf of
themselves and other similarly situated individuals working as Aviation Security Officers of the
City of Chicago, Department of Aviation, have brought a four count putative class action
complaint1 against defendants State of Illinois and Brent Fischer as Executive Director of the
Illinois Law Enforcement Training and Standards Board (“ILETSB”) (jointly, the “State
defendants”), and the City of Chicago and Ginger Evans as Commissioner of the City of Chicago
Department of Aviation (“CDA”) (jointly, the “City defendants”). Counts I and II are brought
pursuant to 42 U.S.C. § 1983 and allege violations of the Fifth Amendment’s Taking Clause and
1 The complaint is titled “Class Action Complaint,” but contains no class allegations or a
proposed class definition.
the Fourteenth Amendment’s Due Process Clause respectively. Counts III and IV are state law
claims for fraudulent inducement and promissory estoppel. All claims are brought against all
defendants. The State defendants and the City defendants have each brought separate motions
to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. For the reasons described
below, the State defendants’ motion is granted in full, and the City defendants’ motion is granted
in part and denied in part.
BACKGROUND2
According to the complaint, in approximately 1982 the City of Chicago amended its
municipal code to create the position of Aviation Security Officer (“ASO”) to serve a security
function within the CDA at O’Hare International and Midway International airports. The
airports are generally divided into two areas: (1) the “Land Side,” which are areas open to the
public; and (2) the “Air Side” which are secured areas such as the airfield, terminals and other
restricted areas. The ASOs were responsible for securing the Air Side.
Sometime in 1993 the City applied to the State for the CDA to be recognized as a law
enforcement agency (“LEA”). The application was granted, giving the CDA the ability to send
its officers to the Chicago Police Academy and/or the Cook County Sheriff’s Training Academy
for law enforcement training. Only a designated LEA can send its employees or probationary
employees to those training academies. Since 1993, every ASO hired by the CDA, including
plaintiffs, have been required to gain acceptance into and graduate from either of the two
2The background facts are taken from plaintiffs’ complaint and are presumed true for resolving
defendants’ motions to dismiss. Firestone Financial Corp. v. Meyer, 796 F.3d 822, 826 (7th Cir.
2015).
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academies, be sworn in as an officer, and become certified as a law enforcement officer (“LEO”)
by defendant ILETSB. Each ASO hired since 1993 through June of 2017 who completed those
requirements received LEO certification and a corresponding LEO ID Number.
In addition, each ASO hired since 1993 was given an employment manual which
provided:
Aviation Special Police Officers will be state certified law enforcement officers.
They will be commissioned by the Superintendent of Police of the City of
Chicago Police Department as Special Police Officers and will have the authority
to make arrests while enforcing state laws and City of Chicago ordinances as
specified by the Managing Deputy Commissioner, Security, while on Department
of Aviation property.
. . .
Special Police will possess all the powers of the regular police patrol at the places
for which they are respectively appointed or in the line of duty for which they are
engaged.
Every ASO since 1993 has been required to recertify and retest with the ILETSB every
year, like every other LEO in the state, or be terminated by the CDA. Until June 2017, failure to
graduate from one of the two training academies, or failure to pass recertification testing with
ILTESB every year, resulted in termination from the CDA. In addition, the City and the State
have required ASOs to testify in court as police officers, have prosecuted individuals for
aggravated assault on ASOs as police officers, and assigned ASO’s police vehicles.
Since 1993 the CDA has consistently advised applicants of the requirements and benefits
of the position as an ASO, including the right to receive LEO status. That status grants each
LEO rights and opportunities not available to others not so certified, such as carrying a concealed
weapon without a conceal carry permit while serving and in retirement under the Federal Law
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Enforcement Officer Safety Act, 18 U.S.C. § 926B, C. Certified LEOs are permitted to carry
concealed weapons in any jurisdiction in the United States without standard certification under
local or state laws, and can “generally” transfer among LEAs laterally and “typically” are not
required to retrain or recertify under that jurisdiction’s police training academy. Additionally,
and perhaps most importantly for the instant case, LEOs “typically” are not subject to the age
restrictions applicable to new hires and receive credit for time served working as LEOs in other
jurisdictions.
After the World Trade Center attacks in 2001 and the creation of the Transportation
Safety Administration (“TSA”), the CDA officially renamed ASOs as “Aviation Police Officers”
(“APOs”). In doing so the City and CDA revised all documents and signs to indicate Aviation
Police rather than Aviation Security. The CDA held the officers out as “police” in a number of
ways, including giving them 5-point star badges, which are provided only to law enforcement
officers, and providing APOs with patrol cars that had flashing red and blue emergency lighting,
which in Illinois is restricted to law enforcement vehicles.
Plaintiffs claim that everything changed on April 9, 2017, when APOs at O’Hare Airport
were dispatched to United Flight 3411 to respond to a call from the flight crew about a non-
compliant passenger. Several APOs responded and eventually physically removed the
passenger from the plane. Videos of the event went viral on social media and news outlets
across the county, alleging abuse by Chicago Police Officers. One video showed an APO
dragging the passenger down the aisle. The video showed the back of the APO’s vest indicating
“POLICE.”
4
One month later, Commissioner Evans was called to testify before the U.S. Senate
Subcommittee on Aviation Operations, Safety and Security. Evans repeatedly testified that the
officers involved with the flight 3411 incident were not police officers but rather “Aviation
Security Officers,” and were “non-sworn, non-armed security personnel.” She also promised to
institute several changes to policies, procedures and training. Since her hearing, Evans has
publicly stated that APOs “are not, and have never been, police.”
On April 5, 2017, just four days before the flight 3411 incident, the ILETSB had sent a
letter to the First Deputy Chief of Staff for the City, indicating that in the early 1990s the
ILETSB had been informed that ASOs were City employees “duly authorized to make arrests,
trained and certified in the same manner as Chicago Police Officers and under the appointment
of the CPD Superintendent as ‘Special Police’ Officers.” The letter indicates that for those
reasons the ASOs were “deemed ‘law enforcement officers’ employed within a special division
of the Chicago Police Department.” The letter (attached to the instant complaint) indicates that
the Board had come to learn that APOs were not authorized to carry firearms on or off duty, that
decisions of the Illinois Labor Relations Board (“ILRB”) had repeatedly determined that ASOs
were not LEOs, and that the chain of command for ASOs ended with the Chairman of the CDA
but “at no point is the Superintendent [of CPD] involved in their direction or command.” The
letter then indicated that as a result the board 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 final paragraph of the
letter provides:
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At this time, we respectfully ask the City to define the moment when these
employees were pulled from the jurisdiction of the Superintendent and placed
wholly under the direction of the Department of Aviation – this will allow us to
determine when aviation employees ceased serving as “law enforcement officers”
under the Police Training Act. This has become relevant as the Board must
regularly verify the status of retired law enforcement officers who are eligible for
certain firearm privileges under the federal Law Enforcement Officers Safety Act
after serving as a law enforcement officer for ten years.
Plaintiffs allege that the ILETSB knew that the CDA “was an independent LEA and had
recognized it as such separate and apart from the Chicago Police Department when it assigned
the CDA its own LEA ID Number.” Plaintiffs further allege, on information and belief, that the
April 5, 2017, letter was actually drafted later and was intended to “create the false impression
that its decision to decertify the CDA and APO was independent of – and arose before – the
United Airlines Flight 3411 incident.”
According to plaintiffs, after the Flight 3411 incident the City decided to strip APOs of
their police status. As a result, the APOs’ Union brought an unfair labor charge with the ILRB.
The City and the Union engaged in settlement discussions and on May 18, 2017, the Union
received a draft Letter of Agreement from the City specifying that APOs would no longer be
recognized as police, special police, or peace officers, and that their title would be changed to
Aviation Public Security Officers.
On June 15, 2017, the Union rejected that Letter of Agreement. That same day the
ILETSB sent a follow-up letter to the City indicating that it had received no response to its
earlier (April 5) letter, and that it was concluding that the pertinent date identifying when the
APOs were reorganized and no longer under the direction and control of the Superintendent is
not known, and thus it determined that APOs are not “law enforcement officers as defined by the
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Police Training Act.” The letter indicated that new hires would be precluded from attending an
approved law enforcement training academy. The letter further provided:
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. Because no date of reorganization could
be identified, and to protect the interests of the employees at issue, the Board will
deactivate the CDA and administratively separate the individuals on the subject
roster as of July 1, 2017.
On June 20, 2017, Joseph Martinico of the City Law Department responded to the
ILETSB, indicating that he had responded earlier and including a copy of a May 19 letter. In
the June 20 letter, Martinico indicated that 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.”
Based on Martinico’s letter, the ILETSB, on June 29, 2017, indicated that it would
deactivate the CDA as a LEA and administratively separate all personnel currently listed on that
roster effective on the close of June 30, 2017. The letter further provided:
As soon as possible, the respective authorities should inform all employees of this
agency that they are not law enforcement officers under the Police Training Act
and have no authority as such to make arrests or carry firearms. Any individual
who completed a basic law enforcement academy and passed the state
certification exam shall be reflected as a certified officer within the Board’s
records; however, time employed by the CDA shall not be credited as “law
enforcement” employment in any capacity, including, but not limited to,
subsequent employment and participation in the Illinois Retired Officer
Concealed Carry program.
DISCUSSION
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Both sets of defendants have moved to dismiss under Fed. R. Civ. P. 12(b)(6) for failure
to state a claim. Such a motion challenges the sufficiency of the complaint, not its merits.
Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). The court accepts as true all
well-pleaded factual allegations and draws all reasonable inferences in plaintiff’s favor. Sprint
Spectrum, L.P. v. City of Carmel, Indiana, 361 F.3d 998, 1001 (7th Cir. 2004). The complaint
must allege sufficient facts, that if true, would raise a right to relief above the speculative level,
showing that the claim is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 549,
555 (2007). To be plausible on its face, the complaint must plead facts sufficient for the court to
draw the reasonable inference that the defendant is liable for the alleged misconduct. Ashcroft
v. Iqbal, 556 U.S. at 678 (2009).
A. The State Defendants
The State defendants first argue that the claims brought against them violate the Eleventh
Amendment. The court agrees. The Eleventh Amendment “bars actions in federal court
against the state, state agencies, or state officials acting in their official capacities.” Ind. Prot. &
Advocacy Servs. v. Ind. Family & Soc. Servs. Admin., 603 F.3d, 365, 370 (7th Cir. 2010) (citing
Edelman v. Jordan, 415 U.S. 651, 662-63 (1974)). There are three exceptions: “(1) where
Congress, acting under its constitutional authority conveyed by amendments passed after the
Eleventh Amendment (like the Fourteenth Amendment), abrogates a state’s immunity from suits;
(2) where the state itself consents to being sued in federal courts; and (3) under the doctrine
articulated by the Supreme Court in Ex Parte Young, 209 U.S. 123.” Chester Bross
Construction Co. v. Schneider, 886 F. Supp.2d 896, 903-04 (C.D. Ill. 2012) (quoting Council 31
8
of the Am. Fed’n of State, County and Mun. Emps., AFL-CIO v. Quinn, 680 F.3d 875, 882 (7th
Cir. 2012).
In the instant case, plaintiffs’ claims against the state and/or ILESTB, an agency of the
state, are barred by the Eleventh Amendment. The state has not consented to suit against it or
the agency and Congress has not abrogated the state’s or the ILETSB’s immunity.
Consequently, all claims against the state are dismissed.
Plaintiffs have also sued Fischer in his official capacity as Executive Director of the
ILETSB.3 Suits brought against individuals in their official capacity are treated as suits brought
against the governmental entity itself and are generally redundant. See Drager v. Village of
Bellwood, 969 F.Supp.2d 971, 977 (N.D. Ill. 2013). Under Ex parte Young, however, “a private
party may sue individual state officials in federal court to obtain prospective relief for an
ongoing violation of federal law.” MCI Telecomms. Corp. v. Ill. Bell Tele. Co., 222 F3d. 323,
345 (7th Cir. 2000). “Sovereign immunity does not apply because an official who acts
unconstitutionally is stripped of his official or representative character.” Penhurst State Sch.
and Hosp. v. Halderman, 465 U.S. 89, 104 (1984). This principle does not extend to suits
seeking retroactive relief because “to do so would effectively eliminate the constitutional
immunity of the States.” Id. at 105.
Thus, to determine whether Ex parte Young allows plaintiffs’ claims against Fischer, the
court must question “whether [the] complaint alleges an ongoing violation of federal law and
3The complaint does not expressly state that Fischer is sued in his official capacity, but names
him as Executive Director of the ILETSB. When a complaint fails to specify the capacity of an
individual defendant, the court presumes the person to be named in an official capacity. See
Yeksigian v. Nappi, 900 F.2d 101, 104 (7th Cir. 1990).
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seeks relief properly characterized as prospective.” Ind. Prot. & Advocacy Servs., 603 F.3d at
371.
The answer to that question is no. Plaintiffs do not allege that defendants are continuing
to violate federal law; instead they seek retroactive relief. Their claim is that defendants have
wiped out their past work history as certified LEOs. Paragraph 763 of the complaint makes this
clear:
While the City of Chicago and the State of Illinois can, at the stroke of a pen,
change plaintiffs’ titles and status to suit their political need, they cannot alter
history and cannot deprive plaintiffs of their rights and privileges guaranteed unto
them by virtue of their time served as bona fide law enforcement officers.
Again, in their brief, plaintiffs state that they “did not initiate this action because
defendants stripped away plaintiffs’ badges or prospectively altered their job titles and duties.
That is a fight for a different day in a different forum.” Again, they state in their response brief
that they “do not challenge the City’s right or authority to change plaintiffs’ status from LEOs to
Airport Security Officers on a prospective basis. . . . Instead, plaintiffs challenge the City’s
and State’s authority to retrospectively alter – to in effect, erase their employment history . . ..”
What that means is that plaintiffs are simply seeking restoration of benefits already earned, but
are not alleging that they are entitled to earn these benefits in the future. They are seeking
retrospective relief. As such, the claims are not protected by Ex parte Young and are dismissed.
B. The City Defendants
The City defendants are in a different position because they are not arms of the state and
do not have Eleventh Amendment immunity. As to Evans, however, like Fischer, she is sued in
10
her official capacity, meaning that the claims against her are treated as claims against the City
and as such are redundant and dismissed. Drager, 969 F.Supp.2d at 971.
The City argues that the complaint must comply with the requirements for municipal
liability under Monell v. Dept. of Social Servs. of City of New York, 436 U.S. 658 (1978).
Under Monell, a municipality may be liable for an employee tortfeasor’s actions only if the
tortfeasor inflicts a constitutional injury on the plaintiff in the execution of the municipality’s
policy or custom. The municipality’s policy or custom must deprive the claimant of his
constitutional rights. Petty v. City of Chicago, 754 F.3d 416, 424 (7th Cir. 2014). Thus,
plaintiffs must allege both that they suffered a constitutional violation, and that that violation
resulted from the City’s municipal policy, custom or practice. The City challenges both
elements.
First, the City argues that the complaint fails to allege a constitutional violation because
plaintiffs’ “work history” does not constitute property for purposes of either the Fifth
Amendment’s Taking Clause, or the Fourteenth Amendment’s Due Process Clause.
The Taking Clause of the Fifth Amendment provides that “private property [shall not] be
taken for public use without just compensation.” “But the Takings Clause does not apply when
property is retained or damaged as a result of the government’s exercise of its authority pursuant
to some power other than the power of eminent domain.” Johnson v. Manitowoc County, 635
F.3d 331, 336 (7th Cir. 2011). “Property, as used in the Takings Clause, is defined much more
narrowly than in the Due Process Clause.” Pittman v. Chicago Board of Education, 64 F.3d
1098, 1104 (7th Cir. 1995). It extends only to real and personal property, including intellectual
property, but not to contracts or statutory entitlements. Id.
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In the instant case, even if plaintiffs’ work history could be considered property for the
Takings Clause purposes (it cannot), their histories were not “taken” under eminent domain.
Nor have they, or can they, allege that the “takings” were for public use. Consequently, Count I
fails to allege a constitutional violation and is dismissed.
Count II is another matter. “The Fourteenth Amendment’s procedural protection of
property is a safeguard of the security interests that a person has already acquired in specific
benefits. These interests – property interests – may take many forms.” Board of Regents of
State Colleges v. Roth, 408 U.S. 564, 576 (1972). In the instant case, plaintiffs claim that they
had acquired certain benefits from having worked for CDA as LEOs for what they had always
been told was and defendants treated as a “certified” LEA.
“To have a property interest in a benefit, a person clearly must have more than an abstract
need or desire for it. He must have more than a unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property
to protect those claims upon which people rely in their daily lives, reliance that must not be
arbitrarily undermined.” Id. at 577.
The Constitution itself does not create any property rights. Such rights are created, and
their dimensions are defined by “existing rules or understandings that stem from an independent
source such as state law – rules or understandings that secure certain benefits that support claims
of entitlement to those benefits.” Id. Thus, for example, in Goldberg v. Kelly, 397 U.S. 254
(1970), the Supreme Court held that welfare recipients had a claim of entitlement to welfare
payments that was grounded in the statute defining eligibility of those payments. Although
those recipients had not yet shown that they were in fact within the statutory terms of eligibility,
12
the Court held that they had a right to a hearing at which they might attempt to do so. See Roth,
408 U.S. at 577.
In the instant case, state law defines a “permanent police officer” as a law enforcement
officer who has completed “the probationary period and is employed on a fulltime basis as a
local law enforcement officer by a participating local governmental unit . . . .” A Law
Enforcement Officer is defined as any police officer of a local governmental agency who is
primarily responsible for prevention or detection of crime and the enforcement of the criminal
code, traffic or highway laws of the state. 50 ILCS 705/2.
Plaintiffs allege that in 1993 the state certified and recognized the CDA as an LEA for
purposes of the Act. Plaintiffs further allege that they were hired, required to attend police
training at a certified police academy, and were credited by the state as LEOs. They were told
by the City that they were hired as special police officers, and for thirty years the state treated
them as police officers, including treating their years of service with CDA as years of service
with an LEA, qualifying them for LEO benefits and credentials as maintained by the ILETSB.
Finally, the complaint alleges that the City has reversed the position it held for years and
now maintains the CDA “officers” were never qualified as LEOs under the Act. As a result, the
State has retroactively determined that no CDA police officer is entitled to credit as an LEO.
How that affects plaintiffs’ ability to transfer laterally, how it affects retired APOs who are now
not considered retired LEOs, and how it affects APOs who transferred laterally based on years of
service with CDA remains to be seen. What is clear, however, is that plaintiffs have plausibly
alleged a legitimate claim of entitlement to credit for service with CDA, and that that credit has
13
been taken without procedural due process. The complaint thus plausibly alleges a violation of
the Fourteenth Amendment.
The City also argues that even if plaintiffs have alleged a property right, plaintiffs have
failed to allege any injury as a result of a municipal policy or practice. But, the Chicago
Municipal Code § 2-20-30 expressly vests Evans as Commissioner of CDA, with the power to
designate those employees in the CDA that “shall have full police powers.” Plaintiffs allege
that Evans divested them of their police powers and did so retroactively causing them injury to
their benefits and service credits earned as LEOs. They have plausibly alleged that their injuries
were caused by a decisionmaker with authority. Consequently, the court concludes that Count
II states a claim.
In Count III, plaintiffs attempt to allege a claim for fraudulent inducement.4 To state a
claim for fraudulent inducement plaintiffs must allege: (1) a false statement of material fact;
(2) defendants’ knowledge that the statement was false; (3) defendants’ intent to induce plaintiffs
to act; (4) plaintiffs’ reliance on the truth of the statement; and (5) damages resulting from that
reliance. Connick v. Suzuki Motor Co. Ltd., 174 Ill.2d 482, 496 (1996); Mission Measurement
Corp. v. Blackbaud, Inc., 287 F.Supp.3d 691, 722 (N.D. Ill. 2017). Defendants’ knowledge of
the falsity or deliberate concealment with intent to deceive is an intentional element of a
common law fraud claim. Fox v. Heimann, 375 Ill.App.3d 35, 47 (1st Dist. 2007).
In the instant case, the complaint alleges that at the time they were hired plaintiffs were
told that ASOs would be state certified LEOs commissioned by the Superintendent of the CPD
4Although the count seeks relief against all defendants, it contains factual allegations against the
City only.
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as special police officers, and that plaintiffs relied on those statements to take and retain the
position. What the complaint fails to allege is that the statements were false when made and
that the City knew that the statements were false. Indeed, such an allegation would be
inconsistent with plaintiffs’ whole theory that both the City and State consistently considered
plaintiffs to be and treated plaintiffs as LEOs earning years of service credit for their work with
CDA. Plaintiffs’ claim is that the City reversed its position after the Flight 3411 incident, now
claiming that those representations were false. Thus, their claim that LEO status was “taken
away retrospectively” is inconsistent with a claim that the statement was false when made.
Indeed, paragraph 1 of the complaint states that “for nearly three decades the City of Chicago’s
Department of Aviation and the . . . ILETSB have recognized the members of the Chicago
Aviation Police as bona fide law enforcement officers.” Again, in paragraph 47 of the
complaint, plaintiffs allege that “until United Flight 3411 there has never been a genuine dispute
that APOs served as LEOs.”
Because the complaint fails to allege that the City knew that the statements made to
plaintiffs were false when made, Count III fails to state a claim and is dismissed.
In Count IV, plaintiffs assert a claim against the City for promissory estoppel. To state a
claim for estoppel against a municipality plaintiffs must allege that the City affirmatively acted;
the affirmative act induced substantial reliance; and plaintiffs substantially changed their position
as a result of their justifiable reliance. Williams v. Office of the Chief Judge of Cook County,
Illinois, 839 F.3d 617, 625-26 (7th Cir. 2010). The affirmative act must be either by the City
itself, such as legislation, or by an official with express authority to bind the City. Patrick Eng’g
Inc. v. City of Naperville, 2012 Ill. 113148, ¶39 (2012).
15
In the instant case, plaintiffs allege that when they were hired they were promised that
they would be certified LEOs. That promise was made by Evans in her role as Commissioner of
CDA. As noted above, she had authority under the municipal code to designate plaintiffs as
special police officers. As such she is at least arguably able to bind the City in that promise.
Consequently, the court concludes that Count IV states a claim against the City.
CONCLUSION
For the reasons described above, the State defendants’ motion to dismiss [Doc. 34] is
granted and the State defendants are dismissed. The City defendants’ motion to dismiss [Doc.
25] is granted as to Counts I and III, and denied as to Counts I] and IV. The City is ordered to
answer Counts II and IV on or before December 18, 2018. The parties are directed to file a joint
status report using this court’s form on or before December 21, 2018. This matter is set for a
report on status on January 9, 2018, at 9:10 a.m.
ENTER: November 27, 2018
“(lw). Gait
obert W. Gettleman
United States District Judge
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