U.S. Court of Appeals Stays Lefkow Order to Unseal Documents Pending Appeal by City

Written By Maheen Khan

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:

Maheen Khan
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