Chicago Police reverse longstanding policy on disclosure of IA files

Police abuse allegations finally go public

By Craig Futterman, Jamie Kalven, Jon Loevy and Flint Taylor July 18, 2014 8:04PM

We stand at a watershed in the long history of efforts to address patterns of police abuse in Chicago. On March 10, the state appellate court held in Kalven v. Chicago that documents bearing on allegations of police misconduct are public information. On July 11, the Emanuel administration announced that it will not appeal Kalven and that it has adopted a set of procedures for implementing the decision.

As the plaintiff and attorneys in Kalven, we engaged in extended negotiations with Corporation Counsel Steve Patton and his staff in order to settle the case. The Emanuel administration is to be commended. Not only does its new transparency policy conform to Kalven, in some respects it goes beyond what the decision requires.

This is real reform. It is important to understand why.

The documents at issue are: (1) the investigative files generated when a citizen files a complaint charging police misconduct, and (2) lists of officers who accumulated repeated complaints of abuse.

Two agencies handle police misconduct complaints for the city: the Independent Police Review Authority investigates allegations of excessive force, and Internal Affairs is responsible for allegations of corruption and a range of other offenses.

In case after case, we and others have challenged the adequacy of IPRA and Internal Affairs investigations. We have argued that the police department’s investigative system is broken and that this confers impunity on abusive officers.

Chicago Police Department data reveal that a small proportion of officers — officers who typically work together in groups — are responsible for nearly half of all abuse complaints. But the department has failed to investigate these patterns, leading abusive officers to believe they are above the law.

Beyond the harms to individual victims, this engenders pervasive distrust that greatly reduces the effectiveness of the police. A handful of abusive officers, if not held accountable, can alienate an entire neighborhood. As a result, the vast majority of officers who are trying to do their jobs do not receive the cooperation they need to prevent and solve crimes.

Until now, the city has fiercely resisted any and all efforts via the Freedom of Information Act and civil discovery to make public the identities of officers with repeated complaints and the contents of police misconduct files. From our perspective, it has often seemed to allocate more resources to maintaining official secrecy than to addressing the underlying problems.

The Emanuel administration’s new policy breaks with the past. From now on, the city will honor FOIA requests for police misconduct files, subject only to the redaction of private information such as the names of complainants and the accused officer’s address and Social Security number. If it believes a request is unduly burdensome, it will provide summary digests, detailed narratives of the investigation. Requesters will then have the option of asking the city for a subset of the requested files or specific documents they have identified within the files.

This policy will allow the public and the press to assess the quality of investigations and to identify groups of officers with a pattern of complaints. It will create incentives for investigators, knowing their work is subject to public scrutiny, to conduct rigorous investigations. And it will ultimately, we believe, move the department to address patterns of police abuse.

A significant reform in itself, the new policy facilitates an ongoing process of reform. It allows us to see what is not working and to engage in public discussion, unimpeded by official secrecy, about how best to fix it.

The purpose of the Freedom of Information Act is to ensure that citizens and the press have the information they need to perform their roles in our democratic society. The Kalven decision emphatically affirms that principle with respect to information about police misconduct. And the Emanuel administration has taken appropriate steps to implement it. This puts a powerful tool in our hands. It is up to us as citizens to make effective use of it.

Craig Futterman is director of the Civil Rights and Police Accountability Project at the University of Chicago Law School. Jamie Kalven is a journalist who has written extensively about police abuse and impunity. Flint Taylor, a founding partner of the People’s Law Office, has represented a number of men tortured by Chicago Police under Commander Jon Burge. Jon Loevy is the founder of Loevy & Loevy, a civil rights firm specializing in police misconduct cases.

Recent court decision chip away at the Garcetti decision

It takes a lot of courage and conviction for a law enforcement officer to engage in action that might adversely affect their job and career.  Most, without hesitation, will engage a subject armed with a gun or knife or jump into the middle of a fight to protect a partner.  It takes even more commitment for an officer to stand up to an agency’s failure, officer misconduct or abusive management.  In most cases s/he will encounter some form of retaliation.  Challenging retaliation at the Federal level has been severely limited in recent years…until just this year.

In 2005, the U.S. Supreme Court significantly changed the First Amendment protection for public employees in the case of Garcetti v. Caballos, 547 U.S. 410(2006).  Mr. Caballos was demoted and reassigned by his boss, Los Angeles County District Attorney Garcetti.  Caballos wrote an internal memo and talked about what he believed had been a miscarriage of justice in a case he had been handling.  He challenged his employment sanctions under the grounds that his First Amendment rights had been violated as he was speaking about a matter of public concern.  The Supreme Court ruled that the First Amendment did not protect public employees when their actions involved matters resulting from the course and scope of their employment. 

All of the Federal District Courts and Circuit Courts of Appeal have, with a few exceptions, followed this precedent and found against public employees.  This has been true even when the employee spoke out about corruption and incidents of unreasonable uses of force, were required to report by agency policies, and used proper internal chain of command procedures.

Two recent cases seem to have pecked away at the underlying issues in Garcetti.  The first case is Dahlia v. City of Burbank ,689 F.3d 1094 (9^th Cir 2102). This case involved an officer who observed and believed that other officers used unreasonable force during a robbery arrest.  His attempts to have this addressed within his agency were futile and he was immediately subjected to various forms of harassment.  He reported his concerns to the Los Angeles County Sheriff’s Office and the FBI.  When a case was initiated by those agencies, he was eventually terminated by the Burbank Police Department.  He filed a Federal claim alleging retaliation and a violation of his First Amendment rights.

The District Court dismissed his claim citing Garcetti.  The initial 3-judge panel of the 9^th Circuit upheld that decision citing also a previous case the Circuit had ruled on, Huppert v. City of Pittsburg, 574 F.3d 696 (9^th Cir. 2009).  That case involved an officer’s termination after he attempted to bring to light corruption within his department and eventually went to the FBI.  That decision and the current one involving Burbank troubled the Circuit.  The 9^th Circuit met en banc and reversed the Burbank decision in a 9-2 finding.  The Circuit’s decision was appealed to the U.S. Supreme Court, City of Burbank v. Dahlia, No. 10-55978, which denied certiori, thus making this the standard of care at least in the 9^th Circuit.

The U.S. Supreme Court in this current session further clarified its position in Garcetti with its decision in Lane v. Franks, 573 U.S. ____ (2014).  This was a case in Alabama involving a public college auditor who found that a part-time employee was being paid for work not being done.  The part-time employee was also an elected State legislator who was subsequently criminally charged.  During that criminal process, the auditor was required to relate under oath in sworn testimony what his investigation had uncovered.  He was subsequently terminated and successfully demonstrated that his employment sanction was the result of his testimony, not some budgetary decision.  His First Amendment claim was dismissed by both the District Court and the 11^th Circuit citing Garcetti and claiming that his termination resulted not from his speech as a private citizen or of an issue of public concern, but from his assigned job as a public employee.

The Supreme Court, in a 9-0 decision, reversed those findings.  The Court found that his speech was “outside the scope of his ordinary job duties” and “sworn testimony in judicial proceedings is a quintessential example of citizen speech…and is distinct and independent from any separate obligations a testifying public employee might have to his employer…the critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”  “Here, corruption in a public program and misuse of state funds obviously involve matters of significant public concern.” 

In a concurring written opinion, Justices Thomas, Scalia and Alito also postulated another issue: “We accordingly have no occasion to address the quite different question whether a public employee speaks ‘as a citizen’ when he testifies in the course of his ordinary job responsibilities…For some public employees --- such as police officers, crime scene technicians, and laboratory analysts --- testifying is a routine and critical part of their employment duties.  Others may be called to testify in the context of particular litigation as the designated representatives of their employers.  The Court properly leaves the constitutional questions raised by these scenarios for another day.”

Garcetti, in this writer’s opinion, has created an impediment that can stifle a public employee who wants to do the right thing and stand up and be heard on matters that truly are of public concern.  Most of these involve corruption, abuse of authority and serious mismanagement.  In an agency that has these types of serious problems, the employee who steps up and does the right thing can expect management and elected officials to react against the employee and try to make his/her life unbearable.  These two decisions may be an indication that the U.S. Supreme Court is reconsidering the implications resulting from its Garcetti decision.