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.

'Market Place' story on NJ cops suing bosses

The ‘Marketplace’ story that I was featured on concerning cops suing bosses can be seen and heard on this link: Who sues police departments the most? Police officers

Unfortunately, Sally Herships didn’t have time to look beyond New Jersey…or consider fire departments.  You and I know that this issue exists in many states.  In the end it can be traced back to ineffective IA/OPS operations and either lazy or abusive bosses. 

We do have some officers who simply won’t accept any responsibility for their own actions and will fight any censorship or discipline.  But even those officers can be nullified when the administrative investigation is done in a reasonable and defensible manner.  Cutting corners and hastily done investigations will always get us in trouble and feed the employees who want to show that the bosses, or as they call them in fire departments the ‘white shirts,’ are just out to get them.

When cops sue their employer.

Last week I worked with a reporter from NPR’s ‘Marketplace’ on a story about New Jersey cops suing their employers.  The local report can be found at

http://www.wnyc.org/story/good-cop-bad-cop-how-infighting-coasting-nj-taxpayers/?utm_source=local&utm_media=treatment&utm_campaign=daMost&utm_content=damostviewed.  The comments following the article are very insightful, as well.

She was astounded by the fact that these cases cost the local jurisdictions in New Jersey more than lawsuits brought by citizens accusing police misconduct.  But, this is really an issue throughout the country.  The reporter hasn’t even considered the issue with firefighters or arbitration awards. 

If there is one common denominator in these cases, it’s that the agency’s IA/OPS process generally is flawed.  Sure some chiefs and sheriffs have vendettas against an employee usually because they challenge the boss, are lazy, or go behind the boss’ back to local politicians.  In their haste to do something, the chief or sheriff often cuts corners on the methodical process of the administrative investigation.

Other times the haste in the internal investigation is generated by a sudden outcry from a local politician or the media.  The chief or sheriff now wants to show that s/he is the boss and takes premature disciplinary action.  Someone has to tell the boss to slow down; take the reasonable approach to the investigation; and then administer fair, reasonable and defensible discipline.

The IA/OPS operation should be conducted in a responsible way to address all of the stakeholders in the process: the aggrieved person, the accused employee, the agency, and the community served by the agency. 

Avoid knee jerk responses to critics attacks

Does law enforcement jump too quickly or bend too easily with the wind of the day on issues that we’ve faced for many years and can show successes? 

I’ve taken the liberty of editing somewhat an Email I received from an old friend, Pete Sarna.  He’s one of several old sages in police work that I value.  Not just because he’s old like I am, but because he’s spent his time in the trenches rather than in statistical studies and grant funded projects.

“Per my Emerson Society (a gathering of some law enforcement sages I discussed last year in one of the my blogs) remarks (regarding making seismic policy shifts at great cost on questionable evidence), Dr. Lawrence Sherman now reaches a contrary finding to his earlier research in the 80’s that triggered a monstrous avalanche of policy changes in police response to domestic violence – mandatory arrest.  Much of current policy and practice---even the law---is apparently based upon a now-discredited body of research.  Who is to say that this round is any more valid, although it's hard to argue with blood all over the floor?  If we are talking harm reduction as the basic strategy, mandatory arrest is a "drug" that has failed clinical trials.  Maybe discretion, with some guidance and greater non-police resources on call (in contrast to a time-bound, desk-bound service delivery model under which other responders work), is not a bad thing, after all.  I recall a time in Oakland when we had specialized two-officer cars to handle domestic violence calls; their choice of options included arrest, but the ultimate decision was a matter of judgment given each set of circumstances.  Although specialists, they operated as an integral part of a patrol team and responded to other sorts of calls as well.  I still claim some form of team policing with a territorial imperative is the optimum model.  I am not suggesting that we toss shoes into the machinery by any means, but we need to be a bit more skeptical and sophisticated when it comes to research claims.”

I’m sure you can think of others.  I’m amazed that so many police agencies have abandoned any form of neck restraint hold.  I hear police managers and policymakers say it has been banned by court decisions.  Nothing can be further from the truth.  For the most part, courts have steadfastly refused to declare a tool or tactic we use as unconstitutional.  That goes for the neck restraint, as well.  Consider the thousands of times it has been used successfully.  It was easy to teach and easy to remember how to apply it properly.  How many of you use the PR24 as a come-along tool? Maybe a martial arts fan, but not the normal street cop.  The abandonment of the neck restraint is simply another example of our knee jerk reaction when we are challenged by well meaning, but ill-formed people.

I’ve heard of chiefs who have put their agency’s Tasers back in the box.  I’m afraid more will make that knee jerk reaction, as well.  They forget the successful outcomes including tremendous reductions in subject injuries, officer injuries and worker’s comp rates, and complaints of “excessive force.”  Yes, some people have died who have been involved in an incident where the Taser was used.  But, consider the hundreds of thousands who have lived and haven’t got shot because the Taser was properly used. 

So what have you seen that demonstrates our knee jerk reaction?  What do you think will be the next ill-founded decision by police policymakers to throw out the good in response to ill-informed attacks?

Dark clouds gather over law enforcement

There are storm clouds gathering over law enforcement agencies.  Once a cop was always believed, but that is no more.  For many years agencies have been able to handle their dirty laundry themselves, without outside scrutiny.  But that too appears to be changing.  There are several recent notable examples of the public rising up and demanding more accountability and transparency in what we do.

This past week Wisconsin Governor Scott Walker, certainly not a liberal politician, signed a one of a kind law directly impacting how police agencies in Wisconsin investigation any police custody death.  This law mandates that two investigators from a different police agency direct the investigation of that police related death.  This law is the result of the shooting death of Michael Bell by Kenosha officers nearly 10 years ago.  I was a police practices expert for the plaintiff on that civil case.  It settled for $1.75 million.  Bell’s father, however, spent nearly $1 million on billboards and other advertisement to change the way police agencies in Wisconsin handle these types of cases.  It should be noted that five provinces in Canada have formed all-civilian investigative units to handle all police involved use of force cases, including those resulting in death.

In Hawaii, SB2591, has passed both state legislative houses and is now awaiting the Governor’s signature.  It would mandate more reporting and transparency in how local police agencies report officer misconduct and discipline.  Chiefs would now be required to report to the legislature whenever an officer is suspended, fired or allowed to resign in lieu of discipline.  The Chief would also be required to report whether criminal charges were sought.  Should some appeal process overturn the discipline, the Chief would have to report the reasoning for this outcome.  Still at issue is disclosure of disciplined officers past records.  But the files of the discipline would be mandated to be retained for 18 months after the officer is disciplined.

The NYPD thought it was a swell idea to start a Twitter campaign asking local citizens to share there photos and videos of officers engaged in policing.  The NYPD thought this would produce lots of community feel good publicity.  Unfortunately what the department got was a steady streaming of negative images. 

The Albuquerque Police Department is under intense scrutiny by the U.S. Department of Justice and community action groups resulting from several years of police-involved shootings.  This is simply a continuation of several other outside studies, many originated by the Agency or City, on similar use of force issues.  The main thrust is how officers are trained and disciplined, specifically on use of force incidents.

Sheriff Baca of Los Angeles County made the decision to not run for a fifth term in office.  His agency has been besieged with outside investigations, lawsuits and internal turmoil for many years now. 

It’s time to reevaluate our position in law enforcement.  Our striving for secrecy in our IA/OPS operation is only exacerbating the problem of transparency.  From the public’s standpoint we look like we’re trying to hide our failure to hold our employees and ourselves accountable.  We have to reexamine our focus in the way we provide our service to our communities.  Are we law enforcement officers or keepers of the peace!  There is a distinct difference and it can have a monumental impact on how we select, train, supervise and hold accountable our employees.  Do we want to be known as ‘warriors’ or ‘guardians?’

Update of my novel "Broken Badges."

I’ve received many comments about my first fiction novel, “Broken Badges: Cases from Police Internal Affairs Files.”  Most everyone found it a page-turner and liked the character development.  Those not in law enforcement were a little concerned that this type of misconduct occurs in policing.  Many appreciated learning the ins and outs of an Internal Affairs investigation and some of the police historical points outlined in the novel.

Most all enjoyed the manner in which the cases were written with each chapter being a separate case with its own conclusion.  It was easy to read and could be picked up at different times without retracing what had occurred before.

The “Sexual Predator” deals with the on-going sexual misconduct of one patrol officer.  The second chapter, “Colorado Adventure,” addresses the growing issue of police motorcycle groups acting like one-percenter outlaw groups.  The next chapter, “Miss Emma Mae,” revolves around a malignant street narcotic unit.  The fourth chapter, “Mental Health,” delves into the mistreatment of the mentally ill and other marginal street people by an uncontrolled duo of officers.  The next chapter, “Tangled Relationships,” looks at fraternization and domestic misconduct involving police employees.  And the last chapter, “Forgotten Cop Land,” is an unusual look at private policing of an exclusive community.

These cases follow the work of a fictional police consultant, Taylor Sterling, usually hired by the insurance carrier to evaluate the critical incident involved in each case.  This technique allows the book to deal with cases in different cities and locales.  Most of the cases are in police departments less than 300 employees.  The book looks at the chiefs and sheriffs who are good, bad or not skilled in IA/OPS investigations.  Some of you in law enforcement may swear you know the cops portrayed in the stories, but these are fictional accounts.

“Broken Badges” is available on Kindle, Nook, iBook, and through order from Public Agency Training Council, Indianapolis, IN., and Deeds Publishing, Atlanta, GA.  If you've already read it, I would appreciate a review on Amazon.