Media coverage

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Judge Lefkow denies motion of aldermen

On October 25, Judge Lefkow denied the motion of a group of aldermen to intervene in Bond v. Utreras in an effort to obtain the police documents she had earlier ruled are public. She no longer has jurisdiction over the matter, she said, because the case is on appeal before the U.S. Court of Appeals. On July 9, she had lifted the protective order with respect to the City, thereby removing any legal barrier to providing aldermen with the documents. On that occasion, she recalled, she had said in effect, “This is a political question. You go fight it out.” Now, with her ruling on appeal, she added, “I don’t have a dog in this fight.”

The aldermen have filed a notice to appeal to the U.S. Court of Appeals.

Despite the absence of Judge Lefkow’s dog, the political fight over the documents has been intense. The aldermanic intervention provoked strong responses from Mayor Daley, the acting superintendent of police, and the head of the police union, as well as from a variety of commentators. Here is a sampling of the news coverage and the debate:

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.

U.S. Court of Appeals stays Lefkow order to unseal documents pending appeal by City

On July 2, Judge Joan Lefkow of the U.S. District Court granted my motion to unseal a number of documents regarding allegations of police abuse that the City of Chicago is trying to keep secret.

On July 9, in response to an emergency motion by the City, Judge Lefkow granted a stay of her order until 5:00 PM on July 16.

On July 16, the U.S. Court of Appeals for the Seventh Circuit issued a stay pending the City’s appeal of Judge Lefkow’s ruling.

This case is unfolding in the context of ongoing public debate in Chicago about police reform. A series of events have contributed to the intensity of that debate: the long-simmering controversy over police torture of African-American suspects by officers under the command of Commander Jon Burge; the indictments of six Special Operations Section officers on charges of corruption and brutality; the case arising from the surveillance video seen around the world of an off-duty Chicago police officer beating a female bartender; the case of six off-duty officers charged with beating other patrons at a bar; the resignation of Superintendent Phil Cline; the passage by the City Council on July 19 of an ordinance revising how the Office of Professional Standards investigates civilian complaints; and the appointment of a new OPS director. Taken together, these events have kept the debate over police accountability at the center of public attention.

The disputed documents are highly relevant to this debate. They were produced by the City under a protective order (i.e., stamped “confidential”) in the course of Bond v. Utreras, the case I wrote about in Kicking the Pigeon.

The documents at issue are:

  • A list of 662 officers with more than ten civilian complaints during a five year period.
  • A list of officers with more than ten complaints who were referred to the Chicago Police Department’s “early intervention” programs.
  • A list of officers with more than ten complaints who were assigned to the Public Housing South Unit.
  • The employee complaint histories of the defendant officers in Bond v. Utreras.
  • The CR (“Complaint Register”) files of investigations of complaints against the defendant officers.
  • The CR files of the investigations initiated by Ms. Bond’s complaints.

After the parties in Bond agreed to settle, I petitioned the court to lift the protective order with respect to the documents at issue.I am represented in this matter by Jon Loevy and Samantha Liskow of Loevy & Loevy.

Judge Lefkow’s opinion

In her July 2 ruling, Judge Lefkow found that “good cause” does not exist to keep the documents secret. In reaching that conclusion, she rejected the City’s argument that “granting Kalven access to the protected documents he seeks to obtain is prejudicial to defendants because it would make public documents that cast defendants in an unfavorable light while depriving them of the ability and opportunity to effectively respond to them”:

The fact that the allegations of police misconduct contained in the requested materials would bring unwanted, negative attention on defendants is not a basis for shielding the materials from public disclosure.The public has a significant interest in monitoring the conduct of its police officers and a right to know how allegations of misconduct are being investigated and handled.

Judge Lefkow expressed her confidence that the general public is “sophisticated enough” to understand that allegations of abuse do not constitute actual proof of abuse. And she observed that the City is not without resources to participate in public debate:

The City has its own public relations department and there are no doubt countless media outlets that would invite city officials to participate in an open and frank discussion regarding these and other allegations of police misconduct.

Judge Lefkow also rejected the City’s argument that the privacy interests of the police officers outweighs the public interest in the disputed documents.After noting that I had agreed to the redaction of private information such as addresses and Social Security numbers, she addressed the City’s contention that the documents are part of employee personnel files and thus protected from disclosure:

That information, though personal, has a distinct public character, as it relates to the defendant officers’ performance of their official duties. Without such information, the public would be unable to supervise the individuals and institutions it has entrusted with extraordinary authority to arrest and detain persons against their will.With so much at stake, defendants simply cannot be permitted to operate in secrecy.

In the July 9 hearing before Judge Lefkow regarding the City’s emergency motion for a stay, we emphasized that the documents at issue are highly time-sensitive, in light of the July 19 City Council vote on proposed OPS reforms. We argued that aldermen need access to this information, in order to evaluate the proposed legislation.Judge Lekfow responded by lifting the protective order with respect to the City, so that it would not be legally constrained from providing the documents to any aldermen who requested them.

The Documents

When the Seventh Circuit on July 16 stayed Judge Lefkow’s order pending appeal, it froze the legal controversy for the time being. (Here are the City’s motion and our response.) The political controversy over the disputed documents, however, intensified. On July 17, two days before the City Council vote on the proposed OPS ordinance, Mara Georges, the corporation counsel, conveyed to all fifty aldermen copies of the lists described above with the names of the officers redacted.

Ms. Georges’ cover memo to the aldermen gave this explanation of why the City had not provided the other documents Judge Lefkow had ordered released:

The other category of documents which have been ordered released are complaint register files which are too voluminous to attached to this memorandum.

Here are links to the redacted lists the City provided to the aldermen:

Media Coverage

The controversy over the documents has received a good deal of media attention. I have not made an effort to capture television coverage; it can be accessed on the websites of various local stations. Here is a selection of articles and commentaries: