28 Aldermen intervene before Judge Lefkow

Today 28 aldermen filed a motion before Judge Lefkow seeking access to “certain Chicago Police Department documents.” At issue are the documents Judge Lefkow ruled are public in her July 2 opinion. The City has appealed that ruling to the U.S. Court of Appeals. The aldermen argue that Corporation Counsel Mara Georges, contrary to her representations to several courts, has “wrongfully withheld” the documents from them.

The following aldermen—a majority of the City Council—joined the motion: Toni Preckwinkle, Manuel Flores, Robert Fioretti, Pat Dowell, Leslie Hairston, Freddrenna Lyle, Sandi Jackson, Michelle Harris, Anthony Beale, Toni Foulkes, Joann Thompson, Latasha Thomas, Lona Lane, Willie Cochran, Howard Brookins Jr., Ricard Munoz, Sharon Denise Dixon, Billy Ocasio, Walter Burnett, Jr., Ed Smith, Scott Waguespack, Carrie Austin, Rey Colon, Emma Mitts, Brendan Reilly, Thomas M. Tunney, Helen Shiller, and Joseph A. Moore.

They are represented by Matthew Piers, Judson Miner, and Clyde Murphy. Miner and Piers were respectively Corporation Counsel and Deputy Corporation Counsel in Harold Washington’s administration. Murphy is Executive Director of the Chicago Lawyers’ Committee for Civil Rights Under Law.

As I have reported elsewhere, the City, in seeking a stay of Judge Lefkow’s order, repeatedly argued that any harm to First Amendment values would be mitigated because the City Law Office would provide the documents to “any City Council member who requests them. ”Having secured the stay, Corporation Counsel Georges refused Alderman Preckwinkle’s request for the documents on the ground that an appeal is pending.

The aldermen argue:

The Corporation Counsel should not be allowed to make representations to three courts, obtain relief based on those representations, and then fail to act in accordance with the representations.

They ask Judge Lefkow to direct the Corporation Counsel to provide them with the documents.They also ask that she modify the protective order, in order to allow plaintiff’s counsel to provide them with the documents.

The aldermen will appear before Judge Lefkow on Thursday, October 25, to present the motion.

Media coverage

Here is a selection of media coverage of the controversy over aldermanic access to the CPD documents:

City denies aldermen access to police documents

The Daley Administration is subverting the democratic process by withholding important information from the public and their elected representatives. Its sovereign contempt for First Amendment principles bears comparison to the excesses of the Bush Administration in the national security realm. In defiance of an order entered by a federal judge, Corporation Counsel Mara Georges has denied City Counsel members documents they are seeking with respect to an issue of profound and immediate public importance—the Chicago Police Department’s failure to adequately investigate civilian complaints of abuse by officers.

Earlier this year, I intervened in Bond v. Utreras, a recently settled federal civil rights suit against the CPD, and petitioned Judge Joan Humphrey Lefkow to unseal certain documents produced by the City in pretrial discovery under a protective order (i.e., stamped “confidential”). These documents include a list of the officers who amassed the most civilian complaints over a five year period and the files of investigations of complaints against the five individual defendant officers in Bond.

I argued that police officers are public officials whom we entrust with extraordinary powers—the power to arrest and detain, to use force and, under certain circumstances, to kill. It is a first principle of our democracy that public officials in whom we vest substantial powers must be subject to close public scrutiny.

Judge Lefkow agreed. In an eloquent opinion, she ruled I could have access to the documents at issue and could make them public. “With so much at stake,” she wrote, “defendants simply cannot be permitted to operate in secrecy.”

The City filed an emergency motion to stay the ruling. In a hearing before Judge Lefkow, my lawyers argued against the issuing of a stay. They stressed that City Council members urgently need access to the documents in order to perform their duties. Judge Lefkow agreed to stay her order for a week to enable the City to seek a stay pending appeal from the U. S. Court of Appeals for the Seventh Circuit. At the same time, she instructed the City to provide the documents to any aldermen who asked for them. She was explicit in addressing the City lawyers. If aldermen approach you seeking these documents, she told them, “you or Ms. Georges or whoever they speak to can’t say this is subject of a protective order because it isn’t.”

In a futile effort to get Judge Pallmeyer of the Seventh Circuit to extend Judge Lefkow’s stay, a City lawyer argued, “So if there’s any public official who has an interest in the documents that are in question, any alderman . . . they can contact the city, the city attorneys, and the city attorney can provide them with that information.”

In its motion to the Seventh Circuit for a stay pending appeal, the City reiterated the same formulation: “We have agreed to make the confidential documents available to any City Council member who requests them.”

The Seventh Circuit granted the stay pending appeal. As often happens, the effort to suppress public information backfired. Faced with an avalanche of negative publicity—the headline in the Chicago Sun-Times asked “What Are They Hiding?”—Ms. Georges distributed to City Council members a version of the list of officers from which the names had been redacted. In a cover memo to the aldermen, she noted that the other documents at issue were “too voluminous” to provide at that time.

When Alderman Toni Preckwinkle recently requested copies of the list with the names and the documents pertaining to investigations of complaints against the Bond defendants, Ms. Georges replied that the City could not provide the documents because of the stay.

In other words, in seeking a stay from the Seventh Circuit, the City emphasized that it would, in keeping with Judge Lefkow’s ruling, make the documents available to any aldermen who asked for them. Having been granted the stay, Ms. Georges now tells aldermen who request the documents that the City cannot provide them because of the stay.

Withholding the documents on the basis of this transparently specious argument is an affront to the First Amendment—and to members of the City Council. They should insist on their right to this information.

A great deal is at stake. Circumstances have combined to create an historic opportunity for police reform in Chicago. Once the disputed documents are released, they will interact with information already in the public domain in ways that will deepen our understanding of patterns of police abuse and also of the systemic failures of supervision, monitoring, and discipline that have allowed abusive officers to operate for years with impunity.

Consider, for example, the ever-expanding Special Operations Section case. Six SOS officers have been indicted on an array of charges that include corruption, kidnapping, and robbery. They stand accused, in effect, of having operated a large-scale criminal enterprise out of their unit. A number of other SOS officers have been granted immunity in exchange for their testimony. The trial has not yet begun, yet the damage continues to mount. The state’s attorney’s office has dropped more than a hundred pending felony cases, because they were contaminated by one or another of the defendants. A large number of civil cases will inevitably be brought against the City. The U. S. Attorney’s office is undertaking its own investigation. Finally, last week Officer Jerome Finnegan, the alleged ringleader of the SOS racketeering operation, was arrested by federal agents for plotting the murder-for-hire of a former SOS officer who had agreed to testify against him and his co-defendants.

Although we do not yet know the full dimensions of the SOS scandal, it is clear that the monetary and institutional costs to the City will be vast. Against this background, what might we learn from the list of officers who have amassed the most civilian complaints over a five year period?

The names of officers were blacked out on the list Ms. George provided aldermen, but their unit numbers were included. It is thus possible, as was widely reported at the time, to determine that the top four officers on the list, each of whom have 50 or more complaints, are all members of SOS. The top ten SOS officers on the list, all of whom have 30 or more complaints, account for a total of 408 complaints over five years. Of these complaints, only three were sustained by CPD investigators. Two resulted in reprimands (among the mildest forms of discipline) and one resulted in a 15-day suspension. What would be revealed about the CPD’s systems of supervision, monitoring, and discipline, if we definitively knew that Finnegan and his co-defendants are at or near the top of the list?

There is, of course, reason to strongly suspect they are, but in the absence of the unredacted document this remains speculation. A classic tactic of official denial is to insist that anything short of definitive knowledge is not knowledge at all. And so, given a degree of uncertainty, Mayor Daley and other City officials continue to talk as if the problems with the CPD’s internal investigations are largely matters of public perception or, at worst, reflect the need for some administrative and staffing improvements in an essentially sound, workable system. They continue to engage in scandal management and to make reform gestures rather than coming to terms with the underlying problem and engaging in real reform.

If the CPD failed to adequately investigate hundreds of civilian complaints against the central figures in what may well prove the biggest police scandal in Chicago history, then we must confront the fact that the essential issue is not how to improve a flawed system of investigation. It is how to dismantle a complex apparatus of official denial—a regime of not-knowing—in which not only CPD investigations but also Ms. Georges’ City Law Office are components.

It is a necessary condition for meaningful reform that we openly confront the extent of this human rights debacle. Only then will the energies and resources of government be released from the massive ongoing effort required to deny these realities and become available to address them. Only then will we be able to go forward, on the basis of a sound diagnosis, to enact meaningful changes.

The alternative scenario, fast developing, is that the regime of not-knowing will collapse under the weight of metastasizing scandal and intensifying federal investigation. Reforms will then be dictated by outside authority. They will be the product not of the regeneration of our political institutions but of their utter failure.

The moment is at hand for members of the City Council to act. They should demand that the City honor its representations to the federal courts and give them access to the documents, thereby advancing the process of public acknowledgement that is a necessary prelude to genuine, enduring reform.