The Fight To Save Police Misconduct Records
By Ken Hare
Chicago Defender Staff Writer
Despite the recent release of 56,000 police misconduct records ranging from 2001 to 2008 and 2011 to 2015, another continuing battle looms over the fate of more records dating back to 1967, perhaps over half a million based on preliminary estimates, according to sources.
Currently underway in Cook County Circuit Court is case number 15-CH-3492, before Judge Peter Flynn, that may determine the fate and possible future of Chicago policing and reformation.
In the case, the Fraternal Order of Police (FOP) and the Policemen’s Benevolent & Protective Association of Illinois are fighting Jamie Kalven and his dedicated team of attorneys, law students and community activists over the destruction of police records and their decade-long efforts to protect the public’s interest surrounding the matter.
The Chicago police contract negotiated with the unions contains a portion – Section 8.4: Use and Destruction of File Material – which states:
“All disciplinary investigation files, disciplinary history card entries, IPRA (Independent Police Review Authority) and IAD (Internal Affairs Division) disciplinary records and any other disciplinary record or summary of such record other than records related to Police Board cases, will be destroyed five (5) years after the date of the incident or the date upon which the violation is discovered, whichever is longer, except that not sustained files alleging criminal conduct or excessive force shall be retained for a period of seven (7) years after the date of the incident or the date upon which the violation is discovered, whichever is longer, and thereafter, cannot be used against the Officer in any future proceedings in any other forum, except as specified below …”
By way of background, on April 12, 2004, Professor Craig Futterman of the Mandel Legal Aid Clinic at the University of Chicago filed a federal lawsuit, Bond v. Utreras, against five police officers and the City of Chicago that was later amended on April 5, 2005, to include: Philip Cline, then-Superintendent of Police, Terry Hillard, former Superintendent, and Lori Lightfoot, then-head of the Office of Professional Standards, who is now currently head of the Chicago Police Board via appointment by Mayor Rahm Emanuel.
The suit arose out of independent reporting that was conducted by journalist and community activist Jamie Kalven, who served as a consultant to the resident council of the Stateway Gardens housing projects prior to its demolition.
Diane Bond, a Stateway resident, and family members had allegedly been victims of repeated police brutality and abuse, according to the suit. Her attorneys asserted that her constitutional rights had been violated via the equal protective clause of the 14th Amendment by way of “excessive force,” and “unlawful seizures and illegal searches,” amongst other allegations.
Also in the suit were allegations that the City of Chicago failed “to properly supervise, monitor, discipline, counsel, and otherwise control its police officers,” and that top police officials were aware “these practices would result in preventable police abuse.”
In a suit that has lasted more than a decade and produced some very interesting discovery under a protective order, a fascinating twist occurred in 2007.
According to Kalven, he alone joined the suit. “I intervened on behalf of the public and asked the judge to unseal various documents about police misconduct that had been produced in the course of discovery, where parties exchange information.”
Further, he said, “In the course of civil discovery, the lawyers had asked for a list of officers that had the most complaints against them and the disciplinary records of the five defendants in the case.”
“The process is done under judicial order that says the parties can share the information, but it can’t be made public.
I intervened and made the argument that the protective order should be lifted with respect to these documents because they belong to the public, they are public. And the judge bought the argument.”
However, the city “moved frantically to appeal,” according to Kalven, and “stay the decision.” An appeal was filed in the United States Court of Appeals, which finally settled in the city’s favor, denying Kalven the records. But the judge’s ruling allowed him leeway to pursue the records through the Freedom of Information Act.
Kalven filed a FOIA request with the CPD asking for the police misconduct records and was denied. His legal team filed a separate lawsuit in the Illinois Appellate Court challenging the denial.
According to court documents reviewed by the Chicago Defender staff, on November 16, 2009, Kalven submitted FOIA requests to CPD for two types of documents: (1) lists of Chicago police officers who amassed the most misconduct complaints (referred to as Repeater Lists or RLs); and (2) complaint register files (referred to as CRs) related to CPD’s completed investigations into allegations of police misconduct against five officers.
On December 8, 2009, CPD denied the requests. Kalven filed his lawsuit on December 22, 2009, seeking an injunction requiring CPD to produce the documents.
Misconduct Records Are Public Records
The CRs are CPD’s records of investigations into complaints made by citizens against police officers. Upon receiving a citizen complaint, CPD generally creates records cataloging the investigation into any officer’s alleged misconduct.
The CR files consist of the complaint itself and documents created during the investigation of the complaint. The RLs, in contrast, were first compiled by defendants as part of Bond v. Utreras, and Moore v. City of Chicago. The Bond RLs identify police officers that accumulated the most misconduct complaints between 2001 and 2006.
The Moore RLs identify officers who received more than five complaints from May 2002 to December 2008, as well as officers who were accused of excessive force more than five times during the same time period.
These lists were retrieved from CPD’s complaint register management system and were produced in response to court-ordered civil discovery in each case.
Stephen Patten, the city’s attorney, put forth the argument that the request should be denied because “the CRs were exempt under two FOIA provisions.”
An Appellate court opinion concluded that the information was not exempt and agreed that police misconduct records were in fact public records, Kalven stated.
He says, “We went into negotiations with the city about a transparency policy to implement the decision. And then they released the documents to me. Soon after, reporters at the Sun-Times and Tribune and myself made massive FOIA requests essentially for the police disciplinary records of every officer going back to 1967. So, it’s close to 50 years, including the Burge years, back to Fred Hampton, everything.”
“After the city agreed to give us the information, the FOP intervened with the argument that the release of the information would violate the terms of their contract – that there are provisions that police misconduct records should be kept for five to seven years depending on the allegations.”
“The judge was sympathetic to their argument and imposed an injunction that applies to any misconduct files older than four years. So the city gave us the last four years, which is huge and that’s a wealth of information in itself.”
What’s At Stake?
Created on November 15, 2015, is a database of 56,000 misconduct complaints against 8,600 officers called The Citizens Police Data Project.
The data reveals that there were over 9,000 civilian complaints of illegal searches conducted by police, over 9,500 complaints of excessive use of force, and 3,300 complaints of false arrests.
The database contains further sub-categories, like where the illegal searches happened, whether they were illegal searches of cars, individuals or homes, disciplinary action taken, if any, race and gender of complainant and officers, etc. etc.
This type of information will most likely reveal, with the correct algorithms, all types of patterns and practices.
Speaking of which, the Chicago Police Department is currently under a pattern and practice investigation by the Department of Justice.
So the question that begs answering is: If potential discriminatory patterns exist from just several years of data, how much more information could be gleaned from more records that go back to 1967?
Those algorithmic patterns could potentially show racial bias and prejudice that could possibly lead to convictions being overturned; that would not bode well for the city, the state’s attorney and especially the police department.
Craig Futterman, the University of Chicago Law School professor who was, in part, responsible for securing the release of the Laquan McDonald video, says “We obtained a band-aid order, in which the city must give us at least two weeks notice before it takes any act to destroy the records. We have also asked the Cook County Local Records Commission not to allow the CPD to destroy these records.”
When asked if there was anything the public can do about the matter, he stated, “Yes. Go to their state legislators and demand that they amend the state local records act to forbid the destruction of records that relate to complaints, investigations, and adjudications of police misconduct. The NAACP has circulated language for such a law, and it is important that the Illinois state legislature move on this.”
The misconduct records can be viewed at: invisible.institute/police-data/
The site has space for comments from those who appreciate the efforts made by – Jamie Kalven, Craig Futterman of the Mandel Legal Aid Clinic at the University of Chicago and law students, Civil Right Attorneys Loevy & Loevy, The People’s Law Office and numerous community activist – in this extended fight that has lasted over a decade on behalf of Blacks, Latinos and other marginalized people who continue to suffer at the hands of a corrupt system.