Kicking the Pigeon # 11 -The Logic of Impunity
The administrative headquarters of the Chicago Police Department seen from a vacant unit at Stateway Gardens.
In one of their briefs, the City lawyers characterize Diane Bond’s allegations as “a series of horrendous acts.” That the alleged acts are serious crimes is not in dispute. The City's thesis is that they did not occur. In one sense, this would seem a difficult defense to sustain, in view of the fact that there are multiple witnesses to three of the four incidents, as well as various documentary records that lend support to Bond’s allegations. In another sense, though, this defense strategy, however problematic on its face, is aided immensely by the larger patterns of denial—by the powerful gravitational field of not-knowing—in which the case arises and will be heard.
Those patterns are at once the central focus of the argument advanced by Bond’s lawyers and the biggest impediment to its success. That argument turns on demonstrating how not-knowing is operationalized and institutionalized. It unfolds in three steps:
The City has “a de facto policy, practice and custom of failing to properly supervise, monitor, discipline, counsel, and otherwise control its police officers.”
The officers who repeatedly violated Bond’s constitutional rights were aware of this “de facto policy, practice and custom.” They knew they could act with impunity.
The City knew its disciplinary and monitoring practices, particularly with respect to repeat offenders, were inadequate. It knew it lacked an effective early warning system. And it knew repeat offenders would, as a consequence, “continue to abuse with impunity.” Its decision not to fix a system it had long known was inadequate and its disregard for the predictable consequences of that decision constitute “conscious, deliberate, and reckless indifference to Ms. Bond’s rights and safety.”
The institutionalization of denial is a complex phenomenon. It is enforced on the ground by the “code of silence” among police officers. It is defended against legal challenges by City lawyers who pursue litigation strategies designed to protect the CPD’s internal processes against any possibility of judicial or public scrutiny. And it is heavily subsidized by the City which pays out millions of dollars each year to settle police misconduct cases that would otherwise go to trial. At its center are the CPD’s investigatory arms—the Internal Affairs Division (IAD), which investigates complaints of corruption and other forms of misconduct not involving the use of force, and the Office of Professional Standards (OPS), which investigates excessive force complaints such as those in the Bond case.
The operation of OPS is partially obscured by secrecy; it lacks transparency as an institution. Much of what is known about it is anecdotal in the sense that it arises out of individual cases. One can only wonder what an independent audit of OPS files would reveal about its internal workings. Through the processes of discovery and ultimately trial, Bond v. Utreras promises to add significantly to our knowledge of how OPS’s investigatory machinery works—and doesn’t work. For the moment, drawing on a variety of sources, it is possible to sketch the broad outlines of that machinery.
As described in the CPD’s annual report, an OPS investigation will have one of four possible outcomes:
Unfounded: “the complaint was not based on facts as shown by the investigation, or the reported incident did not occur."
Exonerated: “the incident occurred, but the action taken by the officer(s) was deemed lawful, reasonable and proper.”
Not sustained: “ the allegation is supported by insufficient evidence which could not be used to prove/disprove the allegation."
Sustained: “the allegation was supported by sufficient evidence to justify disciplinary action.”
The vast majority of complaints are “not sustained.” The reason, according to City representatives, is that many cases turn on the word of the complaining citizen against the word of the officer in the absence of corroborating evidence.
Critics have long questioned how vigorously OPS pursues available leads. For example, Diane Bond’s complaints in connection with the April 13 and April 28 incidents were “not sustained,” despite the fact Bond had provided OPS with physical descriptions of the officers, the license plate of the vehicle they were driving, and the names of witnesses.
In 2003, in Garcia v. City of Chicago, a federal civil rights suit against the City involving allegations of abuse by an off-duty officer, the plaintiff put into evidence OPS investigations of excessive force complaints against off-duty officers over a twenty-one month period. After a jury trial, Judge James Holderman characterized the OPS investigations as “incomplete, inconsistent, delayed, and slanted in favor of the officers.”
OPS has an inherently difficult mission. Police misconduct tends to take place in the shadows. And the darkness is deepened by the “code of silence” among officers. The Bond complaint describes the code:
According to standard practice, police officers refuse to report instances of police misconduct, despite their obligation under police regulations to do so. Police officers either remain silent or give false and misleading information during official investigations in order to protect themselves and fellow officers from internal discipline, civil liability, and criminal charges.
In order to bring misconduct to light, the CPD would need to move aggressively against this institutional culture. It would need to bring a high degree of skepticism to the process and be alert to the gang phenomenon that so often figures in police misconduct. It would need to create incentives and disincentives to encourage cooperation. And it would need to provide meaningful forms of protection for officers who come forward to report on the misconduct of fellow officers.
The CPD does none of these things. OPS uncritically gives corroborative weight to the statements of other officers at the scene. It appears rarely, if ever, to recommend that an officer who witnessed an incident of misconduct by a fellow officer be charged with failure to report a crime. And it is subject to a City policy that bars the CPD from transferring whistleblowers from their units in order to protect them against retaliation. Rather than penetrating the code of silence, OPS practices mesh with it to form a system that seems designed to produce judgments of "not sustained."
Many of the constraints under which OPS operates are dictated by the Fraternal Order of Police (FOP), the police union, and are embodied in its contract with the City. For example, OPS is sharply limited in the use it can make of an officer’s prior history of complaints. Complaints alleging criminal conduct are kept for seven years; lesser complaints for five years or in some instances for a year. This makes it difficult for investigators to track patterns of misconduct over time.
The FOP’s aggressive representation of its members in contract negotiations is to be expected. The question is whether concessions to the union enable the City to blunt the effectiveness of internal investigations, while claiming, “The union made us do it.”
During 2001 - 2003, OPS sustained roughly 5% of the 7,613 excessive force complaints it received. Critics have argued that even this small number is inflated. For one thing, OPS sometimes sustains a complaint for reasons other than the brutality charge. For example, investigators may find that the officer did not properly execute the required paperwork, and that becomes the basis for the sustained judgment rather than the original charge of excessive force.
The small number of cases sustained by OPS are then further reduced by the Police Board. Appointed by the Mayor, the Police Board reviews cases in which the superintendent recommends termination or suspension for more than thirty days and cases in which officers appeal suspensions between six and thirty days. (In suspensions of five days or less, there is no appeal.) The Board frequently exonerates the officers brought before it or reduces the penalties against them. It does not have the authority to increase penalties.
Procedural protections and appeal processes are of course justified to protect the rights of officers accused of wrongdoing. The question is whether the procedures of OPS and the Police Board, taken together, do not have the effect of largely crippling the investigatory process.
The character of the City’s machinery for investigating brutality complaints is most tellingly revealed by what it yields. The amended complaint in the Bond case summarizes the results of OPS investigations, after Police Board review, for a three year period:
From 2001 through 2003, the City received at least 7,610 brutality complaints against Chicago police officers. The City imposed meaningful discipline in only 13 of those 7,610 complaints: 6 officers were fired and 7 suspended for 30 days or more. In other words, between 2001 and 2003, a Chicago police officer charged with criminal brutality had only a 0.08 (significantly less than a one in a thousand) chance of being fired, and a 0.17% (less than one-fifth of 1 percent) chance of having any meaningful discipline being imposed.
On the basis of such numbers, it is clear that officers who engage in misconduct have little reason to fear they will be disciplined as the result of an OPS investigation. They have even less reason to be concerned about criminal prosecution. Over the fifteen years prior to the alleged abuse of Bond, roughly 2,500 to 3,000 complaints charging police brutality were made each year. During that period, according to the amended complaint, “there was only one instance of an Illinois state criminal prosecution of a Chicago police officer for brutality committed while on duty, as a result of the Chicago Police Department’s referral of a complaint to the Cook Country State’s Attorney’s Office.”
The City has not yet responded to the argument of the amended complaint that the abuse of Bond resulted from systemic policies and practices of the CPD. In light of what is known about the deficiencies of the CPD’s monitoring and disciplinary system, how will it attempt to counter the conclusion that abusive officers indulge their sadism and corruption with impunity, secure in the knowledge that, if challenged by the citizens they abuse, they can say it never happened and rely on the City’s machinery of denial to protect them?
