Vol. 2, Issue 35: Chicago's Criminal Justice Playbook
At Issue: Shifting Police Use of Force Guidelines Fall Short
“Civil rights advocates expressed alarm that proposed guidelines released [last week] on Chicago police use of force may signal a retreat from the effort to curb excessive force by officers,” with one advocate arguing that the revisions may fall short of constitutional standards, Injustice Watch reported.
The Chicago Police Department (CPD) released a proposed use-of-force policy in October and invited public comment. A revised draft, released on March 6, “[pulls] back on proposed rule changes that upset some rank-and-file officers,” The Chicago Tribune reported. Comments on the latest draft are being accepted until March 16. The full text of the original use-of-force document, the October 2016 draft, and the latest draft can be viewed, explored, and annotated via the Use of Force Tracker.
“In a shift in tone and policy,” The Tribune reported, the new draft proposal “opens by proclaiming the department’s commitment to officer safety while eliminating a provision saying cops must use only the least amount of force needed.” The draft also softens the department’s stance on officers using their new de-escalation training to defuse tense encounters, stating that officers only have to attempt de-escalation tactics “when it is safe and feasible.”
By removing the requirement that officers use the least amount of force necessary—and eliminating the emphasis on de-escalation as a central tactical consideration in potential force situations—the new policy risks falling short of constitutional standards requiring proportionality in the use of force by police, Sheila Bedi, associate professor at Northwestern University Law School, told View From the Ground.
“The new draft cuts language mandating that officers must use only the least amount of force needed in any situation, though it still holds that force must be objectively reasonable, necessary, and proportional,” according to The Tribune. “The new draft also strips out a requirement that cops use force only when no alternative appears to exist.”
“The draft also softens language that called on officers to intervene if they see colleagues using excessive force,” The Tribune noted. The first draft required “verbal or physical intervention” in such situations, while the new draft requires only verbal intervention.
The revised draft also eliminates a requirement that officers render medical aid to injured parties commensurate with their training. It removes language advising officers to consider whether an immediate response to a situation is necessary and whether a lesser level of force than that presented by an assailant may be effective. Additionally, it removes a reminder that “less-lethal devices” such as Tasers “may under certain circumstances be lethal to the subject” and eliminates language mandating “ethical behavior and professional conduct.”
The first draft of the new policy was issued while the U.S. Department of Justice (DOJ) was investigating CPD’s use of force and racial bias. In a report issued on January 13, the DOJ found that “CPD uses unnecessary and unreasonable force in violation of the Constitution with frequency, and that unconstitutional force has historically been tolerated by CPD.” The report urged CPD to go further with the use-of-force policy revisions then under consideration.
However, weeks later, newly installed Attorney General Jeff Sessions signaled that the DOJ would “pull back” on civil rights investigations of police departments.
The new draft proposal is “a huge step backward” and “demonstrates that CPD thinks the pressure to reform is really off” from the federal government, Ed Yohnka of the ACLU told Injustice Watch.
Black Lives Matter activists protested the proposed changes with a downtown march, The Chicago Sun-Times reported. The group accused Mayor Rahm Emanuel of attempting to “outright ignore and deflect the DOJ report that exposed the institutional racism, structural violence, crimes, terrorism, and abuses by CPD.”
Bedi added that the policy contains no guidance on the use of Tasers. A separate Taser policy, released in October, was “deeply flawed,” she said, and the DOJ report noted that training in Taser use was so rushed that it was ineffective. Given the weapon’s potential for abuse and harm, she argued that guidance on Taser use should be included in the main policy.
FOIA LAWSUIT IN LAQUAN MCDONALD COVER UP
Jamie Kalven of the Invisible Institute has sued the Chicago Police Department (CPD), seeking the release of an inspector general’s investigation into an alleged cover-up by 11 officers and supervisors following the 2014 shooting of Laquan McDonald.
CPD has cited state law exempting inspector general offices from the Freedom of Information Act (FOIA). However, in a previous case brought by Kalven, an Illinois appellate court ruled that investigations of police misconduct are public information.
Noting that the most controversial cases are typically referred to the inspector general, Kalven argued that under CPD’s interpretation of the law, “citizens would be denied access to information about precisely those cases in which there is the most intense public interest.”
HEARING SOUGHT ON RACIAL BIAS IN ATF STINGS
Lawyers representing dozens of defendants are seeking to demonstrate that federal agents engaged in racial bias when targeting individuals for sting operations. The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has employed its signature sting operation—setting up individuals to rob drug stash houses—since the 1990s.
The Federal Criminal Justice Clinic at the University of Chicago Law School has helped coordinate legal efforts on behalf of 43 Chicago defendants. Attorneys are seeking an unprecedented hearing before a panel of district judges handling multiple criminal cases.
The Chicago Tribune provides the legal background and details about one sting victim.
STATE ATTORNEY TO INVESTIGATE WATTS CASE
The Cook County State’s Attorney’s Conviction Integrity Unit “is reviewing cases where [Sgt. Ronald] Watts was substantially involved,” The Chicago Tribune reported.
Last year, Jamie Kalven and the University of Chicago Exoneration Project petitioned for a special prosecutor to investigate claims from individuals who allege they were framed by Watts. His years-long reign of corruption was previously detailed in The Intercept.
BAIL REFORM UPDATES
State’s Attorney Kim Foxx announced a new policy last week under which her office will agree to release certain jail inmates held for nonviolent offenses who cannot afford the cash bonds set in their cases. Nearly 200 people charged with nonviolent offenses and unable to pay bond were scheduled for release this week under the initiative.
Sheriff Tom Dart, who supports legislation to eliminate the state’s cash-bond system—allowing judges to release individuals on their own recognizance or order electronic monitoring or detention—is backing a new bill that would permit prosecutors to ask judges to deny bond for individuals charged with gun crimes, The Chicago Sun-Times reported.
Meanwhile, attorneys challenging the constitutionality of the county’s cash bail system have agreed to drop Dart as a defendant, instead focusing on bond court judges, Injustice Watch reported. Dart and county judges filed motions to dismiss the lawsuit after it was filed in October. Attorney Matthew Piers argues that legislation backed by Dart has little chance of passing.