Media coverage


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:

Kalven seeks Bond documents

On March 15, Jamie Kalven filed a motion to intervene in the Bond case for the purpose of challenging the protective order under which certain documents produced by the City in the course of the litigation are withheld from the public. These include a list of Chicago police officers who have been repeatedly charged with official misconduct, documents that reveal how the CPD addresses or fails to address misconduct charges, and the complaints files of the individual officer defendants.

Kalven is represented in this matter by Loevy & Loevy. The City has until April 3 to respond to the motion. Kalven will then have until April 10 to reply.

Exchange with Deputy Superintendent Kirby

On January 1, I published an op-ed piece in the Chicago Sun-Times on Mayor Daley’s Commission on Police Integrity. Appointed in 1997 in the wake of a police scandal in the Austin and Gresham Districts, the Commission was charged with investigating the underlying causes of the scandal and making recommendations for reform. The Mayor welcomed the Commission’s report as “an excellent blueprint for change.” Yet nearly a decade later, I argued, the City has still not implemented the Commission’s primary recommendations.

In a letter to the Sun-Times published on January 9, Deputy Police Superintendent Debra Kirby, the head of the Internal Affairs Division, responded to my piece:

Jamie Kalven’s Jan. 1 commentary leaves citizens with the impression that the Chicago Police Department has done nothing since 1997 to address the issue of police misconduct. Nothing could be further from the truth. Many of the blue-ribbon committee’s recommendations for improved integrity and accountability have been fully implemented.

Apart from repeatedly asserting the CPD’s “commitment” to professionalism and accountability, Kirby makes several points. I will respond to each in turn.

* * * *

Both the Office of Professional Standards and the Internal Affairs Division actively investigate and respond to complaints regarding officer misconduct.

My point is not that the CPD has no systems for supervising, monitoring and disciplining officers. It is that those systems are ineffective. In an earlier Sun-Times op-ed piece, published on September 16, 2006, I used the CPD’s own statistics to demonstrate this. Since then, the CPD’s data has been further analyzed by Dr. Steven Whitman, an epidemiologist who was an expert witness for the plaintiff in Bond v. Utreras. (Statistical tables generated by Dr. Whitman are available here.) Among his findings:

  • During 2002-2004, citizens filed 10,149 complaints alleging police abuses in the categories of excessive force, illegal arrest, illegal searches, racial abuse and sexual abuse. Only 124 of these complaints were sustained–slightly more than 1 percent.
  • If “meaningful discipline” is defined as a suspension of 7 days or more, only 19 of the 10,149 complaints resulted in “meaningful discipline”–a rate of less than 2 per 1,000 complaints.
  • According to a U. S. Department of Justice report, the national sustained rate for excessive force complaints filed with “large municipal police departments” in 2002 was 8 percent. By contrast, the CPD’s sustained rate during 2004, the most recent year for which it has released figures, was less than half of one percent (0.48%). In other words, excessive force–brutality–complaints are 94 percent less likely to be sustained by the CPD than they are by other large municipal police departments across the country.
  • Contrary to Kirby’s assertion that the CPD has “improved integrity and accountability” in the years since 1997, the percentage of sustained complaints steadily declined during the period 1999-2004. The sustained rate for all civilian abuse complaints decreased from 3.7% in 1999 to 0.6% in 2004–a decline of 84%. The sustained rate for excessive force complaints decreased from 4.8% to 0.5%–a decline of 90%.
  • The odds that a CPD officer who abuses a citizen will receive meaningful discipline are in reality even less than 2 in 1,000–substantially less. Citizens who believe they have been victims of police abuse often do not file formal complaints. Among the reasons are fear of reprisals and distrust of the investigatory process. A national survey conducted by the U. S. Department of Justice found that only 10% of those who believed they suffered excessive force in an encounter with the police reported the incident to the agency employing the officer. If we use that baseline, an incident in Chicago in which a citizen believes the police used excessive force will result in meaningful discipline in 2 in 10,000 cases.

These numbers evoke the conditions of impunity under which abusive CPD officers operate. It is hard to believe, given such odds, that an officer with criminal tendencies would be deterred from wrongdoing by fear of being investigated and punished.

* * * *

To be clear, we have remained committed to rooting out bad cops who violate the public’s trust. The recent arrests of Special Operations Section officers underscores that commitment.

The CPD has repeatedly claimed that the SOS case and other recent indictments prove it has adequate systems in place to identify and discipline rogue officers. These indictments are not, however, evidence the system is working. They are evidence it is broken.

The internal investigation of the SOS officers was initiated after lawyers in the State’s Attorney’s Office informed the CPD that the officers in question were consistently missing court appearances. It was not triggered by the CPD’s supervisory and monitoring systems but by the intervention of another agency. It would be interesting to know how many citizen complaints the CPD had received over the years regarding these officers as individuals and as a group.

Similarly, the tactical officers in the Englewood district who recently pled guilty on charges arising from their practice of robbing drug dealers were not brought down by internal CPD mechanisms of accountability. The case was precipitated by federal agents who observed the officers interacting with drug dealers they had under surveillance. The agents’ interest was piqued, when they noticed a Fraternal Order of Police bumper sticker on the officers’ vehicle. One of these officers, it has been reported, had amassed 31 citizen complaints within the two years prior to his indictment, while another had amassed 24.

This is just one of many high-profile criminal cases over the years in which officer defendants proved to have high numbers of citizen complaints alleging abuses consistent with the pattern involved in the criminal case but had never received meaningful intervention and/or discipline.

Again and again, the CPD has responded the same way to cases such as these that carry the threat of a widening police scandal. It announces that bad cops will not be tolerated and that vigorous investigations are ongoing. The Mayor may appoint a special body to address the problem such as the Commission on Police Integrity in 1997 or the current panel advising him on selection of a director for the Office of Professional Standards. Then, when public attention wanes, the status quo is restored without any meaningful reforms having been instituted.

Consider, for example, the recent verdict in the case against the City brought by Michael Casali, an ATF agent, and his wife Diane Klipfel, a former AFT agent. In 1992, these federal agents reported criminal acts by Officer Joseph Miedzianowski to their supervisors. Described by federal prosecutors as “the most corrupt cop in Chicago history,” Miedzianowski is currently serving a life sentence for running a Miami-Chicago drug ring out of the Gang Crimes unit. By the time he was finally arrested in 1998, he had amassed more than 40 complaints; among them, 20 brutality complaints, none of which had resulted in meaningful intervention or punishment. In their suit, Casali and Klipfel charged that the CPD retaliated against them rather than investigating their complaints, allowing Miedzianowski and his cronies to terrorize them. After a five-week trial that included testimony from Superintendent Phil Cline, the jury found in favor of the couple and awarded them $9.75 million. In post-trial interviews, jurors made it clear that the crux of the case, as one of them put it, was the CPD’s “incompetent, lazy and overall negligent” investigation of Miedzianowski. Another remarked, “What investigation did the Chicago Police Department do? Mike and Diane were wronged. It was the city’s policies that created that.”

* * * *

In my op-ed piece, I noted that the Commission on Police Integrity recommended that the CPD institute a “fully computerized” early warning system to identify officers engaged in misconduct and that it emphasized the importance of tracking patterns with respect to groups of officers as well as individuals.

Kirby responds:

While we appreciate Kalven’s recommendations to track patterns of complaints against police officers . . . readers should know that we are already doing so . . .

Again, the issue is not whether or not the City has a system. It is the adequacy of that system. The City has repeatedly declared it is in the process of instituting a state-of-the-art computerized system for tracking patterns of misconduct. Technology may well be forcing the City’s hand: it is increasingly hard to justify the use of high tech tools to identify criminal patterns in the general population, while refusing to do the same with respect to criminals in uniform. There is, however, no evidence such a system has been implemented. What we know about the system currently in place is that it yields outcomes such as those described above. And we know that police officials responsible for investigating citizen complaints have acknowledged that the CPD does not currently track complaints by groups of officers. In other words, it chooses not to know things within its power to know about patterns of abuse.

Viewed against this background, Dr. Whitman’s analysis of CPD data regarding officers who have amassed unusually large numbers of complaints is telling. Among his findings:

  • During the period May 2001 – May 2006, 10,387 officers had 0 to 3 complaints. Another 2,451 officers had 4 to 10 complaints. 662 officers had more than 10 complaints.
  • The 662 “repeaters” were named in 10,733 complaints. Only 236 or 2.2% of these complaints were sustained.
  • Only 22 of the 10,733 complaints or 0.2% resulted in “meaningful discipline”–i.e., a suspension of 7 days or more.
  • Of the 662 “repeaters,” only 25% ever received any discipline, however nominal, while 75% were never disciplined at all.
  • Among the “repeaters,” 33 officers were named in 30 or more complaints within a five year period. Of these, four had 50 or more complaints. Taken together, these 33 officers had, at a minimum, well over 1,000 complaints. Yet only 6 of these complaints were sustained and only one resulted in meaningful punishment.
  • The CPD has two programs that it describes as its “early warning system”: the Behavior Intervention System and the Personnel Concerns Program. The purpose of an early warning system is to identify officers in need of intervention before, in the words of the Commission on Police Integrity, “small problems become big ones.” It is a measure of the inadequacy of the CPD’s early warning system that only 89 (13.4%) of the 662 “repeaters” have been identified by these programs. More than 86% “repeaters” have not been identified as needing intervention; among them, officers who amassed 50 or more complaints over a five year period.

* * * *

The Commission recommended that the CPD provide closer supervision of tactical units assigned to enforcing narcotics laws, because this is the setting in which most abuses occur. According to Kirby:

. . . readers should know that we . . . have reorganized citywide response units to provide closer supervision with better tactical responses to monitoring officers and their actions.

I am not altogether sure what this means and whether it translates into more stringent accountability standards and practices. I do know that Superintendent Phil Cline stated, in the wake of the SOS indictments, that members of that unit would be placed under closer supervision. He also said he did not think it necessary to disband SOS altogether, as had been done to Gang Crimes in 2000 after Miedzianowski was convicted on racketeering charges for running a drug ring out of the unit. The underlying issue here goes to the deployment strategy adopted by the City. Instead of strengthening the units based in particular districts, it has opted to create special units that operate city-wide with a high degree of autonomy. A byproduct of this strategy, as we have seen with Gang Crimes and SOS, is that these units are relatively unaccountable and prone to high levels of abuse. What does it mean when Cline and Kirby say there will be “closer supervision” of these units? Will supervisors have access to effective tools for enforcing accountability? Will they be directed to make vigorous use of those tools?

* * * *

. . . Kalven claims that officers who are accused of misconduct have a “2-in-1,000” chance of receiving what he considers “meaningful punishment.” There is no question that Supt. Cline has prioritized the commitment to integrity, honesty and professionalism within the Chicago Police Department. For the record, Supt. Cline has recommended the terminations of more than 100 police officers—recommendations that are governed and decided solely by an independent police board.

My statement that officers accused of misconduct had a 99.8% chance of not receiving meaningful discipline is not based on the full universe of allegations of misconduct but on complaints involving direct abuse of citizens (excessive force, illegal search, etc.). There are a range of other sorts of administrative infractions and matters of non-performance that do not figure in this analysis.

Kirby responds by citing the number of officers Cline has recommended terminating during his three-and-a-half-year tenure. It is not surprising that in a force of 13,600 the superintendent would have occasion to recommend the firing for all causes of 100 officers over more than three years. This is, however, unresponsive to the point I am raising about the CPD’s ineffectiveness in responding to citizen complaints of abuse. How many officers has Cline recommended terminating on the grounds that they abused citizens?

* * * *

Kirby closes her letter with these words:

Our mission and challenge are to discipline effectively and fairly without compromising the public’s trust or the morale of the more than 13,600 decent and hardworking men and women who serve this department and city every day.

That is indeed what is at stake. A small percentage of the police force commit the vast majority of the abuse. Allowed to operate with impunity, these “few bad apples” do great damage to both the public’s trust and the morale of the rest of the force.

Portrait of Impunity – Part II

In the aftermath of the special prosecutor’s report on abuses committed by Commander Burge and officers under him in the 1970’s and 1980’s, Mayor Daley took pains to reassure the public “that the city has, in the two decades since, put in place a series of safeguards aimed at preventing such abuses.” Police Superintendent Cline struck a similar note. “The Chicago Police Department,” he said, “is a very different Department today since that period of time.” Among the safeguards the Mayor and Superintendent highlighted is a new “a personnel performance management system” designed to ensure police accountability. As I reported in the first part of this article, that system exists on paper but not in practice. It has been announced but not implemented.

What do we know about the effectiveness of the system the City in fact has in place? Does the CPD conduct adequate investigations of citizen complaints? Do officers in the field operate with an awareness that their supervisors will hold them accountable and impose appropriate discipline if they commit crimes against citizens?

Answers to these questions emerge from statistics provided by the City in Bond v. Utreras, the federal civil rights case described in “Kicking the Pigeon.”

Citizen complaints are investigated by two sections within the CPD. The Office of Professional Standards (OPS) is responsible for excessive force complaints; and the Internal Affairs Division (IAD) handles other categories of complaint. If a complaint is sustained by OPS or IAD and is not reversed by the Police Board, various forms of discipline may be imposed. These range from reprimands to suspensions of varying lengths to termination. For the purposes of analysis, the plaintiff’s attorney in the Bond case, Prof. Craig Futterman of the Mandel Clinic of the University of Chicago Law School, defines “meaningful discipline” as a suspension of seven days or more.

Let’s begin with the grand totals. During the years 2002-2004, citizens filed 10,150 complaints alleging police abuses in the categories of excessive force, illegal arrest, illegal searches, racial and sexual abuse. Investigations of those 10,150 complaints by OPS and IAD yielded just 18 cases in which the accused officer received meaningful discipline. In other words, an officer accused of abusing a citizen had a 99.8% chance of not receiving any meaningful discipline.

When you break out particular categories of police misconduct, this stunning ratio of complaints to meaningful discipline holds:

Type of misconduct Total complaints Meaningful discipline imposed %
Excessive force 5,358 15 0.27%
Illegal search 3,837 1 0.03%
Illegal arrest 661 0 0.00%

It is hard to believe officers with criminal tendencies would be deterred from wrongdoing by such odds. On the contrary, these numbers evoke conditions of impunity under which abusive officers can operate without fear of punishment.

Police abuse is not random. It is a highly concentrated phenomenon. Law enforcement professionals and critics generally agree that a small percentage of officers commit most of the abuses. The statistics disclosed in Bond v. Utreras reflect this phenomenon:

  • During the last five years, 662 officers had ten or more complaints. In a police force of roughly 13,500, these “repeaters” represent 5% of the force.
  • During the 2002-2004 period, the City investigated 18,077 misconduct allegations. (This total includes administrative infractions, bribery, substance abuse, and so on, as well as direct abuse of citizens.) 7,864—44%—of the 18,077 complaints name the 662 repeaters.

According to Futterman, these strong patterns do not affect investigation outcomes: repeaters, like the officer population as a whole, had a 0.2% chance—2 in 1,000 odds—of receiving meaningful discipline.

What are we to make of these statistics? Some defenders of the status quo argue that the number of complaints is inflated by false accusations designed to frustrate officers in the performance of their duties. Although it is hard to credit the proposition that thousands of citizens each year file false complaints against the police, this sort of argument cannot be definitively refuted. It should be noted, though, that dispute over the number of complaints cuts both ways. Critics of the CPD’s investigatory practices argue that police misconduct is grossly under-reported because of various disincentives to filing a complaint; among them, lack of faith in the process and fear of reprisals.

Another argument often made is that effective officers attract complaints. In its most extreme form, this argument sees complaints as a measure of effectiveness: citizens complain because the accused officers are doing their jobs.

This logic is an insult to the substantial majority of officers who are never accused of abusing citizens. Let’s take another look at the repeater figures. If 662 officers account for 7,864 of the 18,077 total complaints, that means 12,838 officers are responsible for the remaining 10,213 complaints. In light of the strong repeater dynamic—officers accused of abuse are accused multiple times—it is reasonable to assume these 10,213 complaints are attributable to 2,043 officers with five complaints each. That would mean 80% of the force has no complaints. Are we to conclude that those officers are ineffective?

The counter-argument is that many police officers do not interact with citizens in ways that would give rise to complaints. Those who draw the most complaints, so the argument goes, are working on the front lines of “the war” against gangs and drugs. This is indeed the heart of the matter. When police scandals have erupted in Chicago and elsewhere they have almost always involved elite gang tactical units, such as the Special Operations Section, working in low-income black and Hispanic neighborhoods.

In view of this history, one would expect the CPD to closely monitor such units. Yet the City has acknowledged in Bond v. Utreras that it does not track complaints by unit. In other words, it chooses not to know things within its power to know about patterns of abuse.

The implications of the statistics we have—and those we don’t have because the City refuses to connect the dots—are clear. They reflect a state of affairs in which officers with criminal tendencies enjoy all but complete impunity. Thirty years after the first abuses alleged to have occurred under Commander Burge, thirteen years after Burge was fired, four years after the special prosecutors were appointed, and two months after they released their report, that is the ongoing human rights scandal disclosed by the City’s own numbers.

Portrait of Impunity – Part I

The special prosecutor’s report on allegations that African-American suspects were tortured by former police commander Jon Burge and officers under his command, released on July 19, reaches three broad conclusions:

  • Burge and other officers committed serious crimes. Although the report does not use the word “torture,” deputy special state’s attorney Robert Boyle did so at the press conference at which it was released.
  • They cannot be prosecuted for those crimes, because the statute of limitations has run.
  • The Chicago Police Department and the Cook County State’s Attorney have corrected the underlying conditions that allowed Burge and his men to commit crimes with impunity. “I don’t believe,” Boyle said at the press conference, “this could happen again.”

In a statement issued on July 21, Mayor Daley echoed the last of these conclusions. The City supported the release of the report, he said, “because the public deserves to know the full story of this shameful episode in our history.” Citizens also need to know “that the city has, in the two decades since, put in place a series of safeguards aimed at preventing such abuses.”

“As a Department,” Police Superintendent Cline declared in a July 19 statement, “we take this matter very seriously because past perceptions can erode all the good work and progress that has been accomplished over the years.”

More recently, on September 7, when four Special Operations officers accused of robbing drug dealers were indicted, Superintendent Cline and Cook County State’s Attorney Devine took the occasion to press the argument that the CPD aggressively investigates allegations of misconduct. “This case happened,” Cline said, “because the Chicago Police Department made it happen.”

The next day Mayor Daley praised Cline and his department. “They did a thorough investigation and they uncovered it. That says a lot about the Chicago Police Department—about investigating themselves.” He added, “The Chicago Police Department is doing this. No one else is doing it. They’re doing it.”

For the most part, the press has uncritically accepted official claims that the structural conditions that allowed Burge and his associates to operate with impunity have been corrected. Thus, for example, on the public television program “Chicago Week in Review” on September 8, Andy Shaw of ABC 7 News observed of the Special Operations indictments:

I’m mostly surprised at the stupidity of these elite officers to actually think that you can shake down a lot of drug dealers, and because they’re drug dealers you’re going to do it with impunity. I can’t imagine how you could think you could get away with this.

None of the veteran journalists participating in the panel discussion challenged this assessment.

Do the facts support the official narrative? Has the CPD instituted reforms that serve to prevent abuses? Do victims of police misconduct now have effective forms of recourse?

Apart from advances in technology and forensics that reduce the possibility of mistaken identity, the Mayor and Superintendent cite several major reforms. Let’s consider each in turn:

Videotaping of interrogations. “The most important step” taken to protect suspects during interrogations, according to the Superintendent, is “the videotaping of interrogations so there is a record of the conduct of officers as well as those being questioned.” He did not mention that videotaping is limited to murder cases. (Why doesn’t the same logic apply to other serious crimes?) In any case, this is a significant advance. It was one of the recommendations of the Illinois Commission on Capital Punishment. The CPD, as well as a number of other police departments in the state, resisted the proposed reform on the grounds it would hamper law enforcement and be unduly expensive. It was enacted by the state legislature in 2003 and took effect in 2005. The CPD’s history of opposing the videotaping of interrogations, which it now heralds as a key measure in combating police abuse, does not make the reform any less welcome. It does underscore that meaningful change will not be achieved without sustained pressure on the department.

Policies regarding treatment of witnesses. Among “advances to protect witnesses” cited by the Superintendent is “a new special order that outlines how witnesses are treated while discussing cases with investigators.” This special order “provides clear-cut instructions to detectives on our standards on how witnesses should be treated.” Again, these reforms were not initiated by the CPD but imposed on it. The special order was adopted in the context of Ayala v. City of Chicago, a class action suit brought against the CPD by the Mandel Clinic and MacArthur Justice Center of the University of Chicago Law School. The suit claims that witnesses have been detained and held in locked interview rooms against their will, in some instances for several days. It seeks injunctive relief against such practices. The judge was at the point of entering an injunction when the City adopted its new policy in January of this year. The case is ongoing. The plaintiffs argue that CPD practices with respect to witnesses remain constitutionally deficient.

Limit on how long suspects may be held without being charged. The Superintendent stated that the CPD adopted in 2003 a policy that requires suspects to be released within 48 hours if they are not formally charged. This policy is in fact a matter of belated, minimal compliance with longstanding constitutional precedents. The United States Supreme Court held in Gerstein v. Pugh in 1975 that the Fourth Amendment requires a “prompt” judicial determination of probable cause as a prerequisite for detention. In County of Riverside v. McLaughlin in 1991 the Court interpreted “prompt” to mean that the outer limit a suspect could reasonably held without being brought before a judge for a determination of probable cause was 48 hours. Beyond 48 hours, the burden of proof shifts to the government to show that there was an emergency or other extraordinary circumstance to justify the protracted detention. The CPD only adopted this policy after many challenges, in both civil and criminal cases, to its detention practice. Again, while any movement, no matter how feeble, toward compliance with constitutional standards is welcome, such movement has only been achieved through repeated challenges to CPD policies and practices.

New personnel performance management system. The Mayor and Superintendent report dramatic improvements in the CPD’s system for monitoring officers. According to the Superintendent, the department has “made significant advances in officer accountability with the recently announced personnel performance management system.” And Mayor Daley stated: “we have put in place a new personnel performance management system to detect patterns of misconduct on the part of individual officers, so the department can intervene early, modify their behavior or separate them from the force.” They are referring to the personnel suite of the CPD’s state-of-the-art information-based management system I-CLEAR. As I reported in “Kicking the Pigeon,” the monitoring functions of the personnel suite exist only on paper. They have not been implemented. As of February 2005, academic evaluators of I-CLEAR stated that the personnel component “remained in the conceptual stage.” On April 15, 2006, the Sun-Times reported that Superintendent Cline had announced a new computerized system that will track various job performance measures and flag problems requiring intervention. The article noted, “No timetable has been set for launching the new system.” There is no evidence that the system was implemented during the three months between the Superintendent’s April 15 announcement and his July 19 statement. His phrasing is thus technically accurate: the “personnel performance management system” has been “recently announced.” But what does the Mayor mean when he says the system is “in place”?

Chicago Magazine article on Kalven case

The August issue of Chicago Magazine contains an article by David Bernstein on Jamie Kalven’s legal confrontation with the City of Chicago over the subpoena demanding his notes. Bernstein places the controversy against the background of Kalven’s effort as a young man to complete the manuscript on the American tradition of freedom of speech on which his father, Harry Kalven, Jr., was working when he died.