Court orders release of police misconduct records
In a major victory for proponents of transparency, and Illinois appeals court panel unanimously ruled that the state’s Freedom of Information Act requires the disclosure of citizen complaints against police officers, despite police contracts calling for destruction of those records.
The court overturned a 2014 injunction won by the Fraternal Order of Police and other police unions barring the release of the records pending arbitration in which the unions have demanded destruction of records after five years under the terms of their contracts.
Those contract provisions are “unenforceable” if they block the city from complying with legitimate FOIA requests, the court ruled.
The case stems from a 2014 appeals court ruling in Kalven v. City of Chicago which held that civilian complaints are subject to the Freedom of Information Act. In a significant policy shift in 2015, the city announced it wouldn’t appeal that ruling and prepared to respond to FOIA requests from the Invisible Instititute (publisher of this blog) and the Chicago Tribune and Sun-Times. The FOP sued and won a preliminary injunction blocking release of the records.
In recent months, arbitrators have that disciplinary records must be destroyed under the contract; their rulings were put on hold pending document requests by the U.S. Department of Justice as it investigates the Chicago Police Department.
“The court has confirmed that citizens have a right to know about police abuse, past and present,” said Jamie Kalven, founder of the Invisible Institute. “The information belongs to them.” He called on the General Assembly to pass legislation (currently pending in the House) permanently protecting police disciplinary records.
He added that the Invisible Institute plans to incorporate the records that the court ordered released into the Citizens Police Data Project, which currently houses 11 years of police misconduct complaints previously released through litigation and FOIA requests.
Contacted by the Tribune, FOP president Dean Angelo declined to comment. The unions have the option of appealing the ruling to the Illinois Supreme Court.
More hearings. Also last week, two City Council announced additional hearings would be held in neighborhoods after two last-minute, daytime hearings at City Hall were denounced as a “farce” and “wholly inadequate” by many of those testifying.
The downtown hearings were called at the behest of Mayor Rahm Emanuel, according to Ald. Carrie Austin, chair of the City Council’s budget committee. Following calls for more robust public discussion (from the Sun Times and Police Board president Lori Lightfoot, among others), the mayor postponed for a second time introducing legislation to replace the Independent Police Review Authority with an independent civilian agency and establish a community oversight board and inspector general for public safety.
A coalition of 15 community organizations, backed by a number of civil rights groups, announced plans to sponsor community forums across the city to engage residents in the debate over reforming the police accountability system. The council’s Progressive Caucus also announced it would hold a series of neighborhood hearings, after which Austin said four more hearings would be scheduled.
The coalition was in discussion with aldermen to “create a process that is aligned,” Katya Nuques, executive director of Enlace Chicago, said late last week. “We like the fact that [aldermen] are open to a more comprehensive community engagement process,” she said. But “we are definitely challenging the idea that every meeting needs to be sponsored by the mayor or the City Council.”
Withholding evidence. Following revelations that Chicago police officers who lie in court rarely face consequences, a man whose 22-year sentence for drug dealing was overturned in March is suing the city, four officers and a State’s Attorney investigator.
Jermaine Walker, who was arrested and convicted in 2006, says officers beat him, planted crack cocaine on him and then covered up the existence of a surveillance camera he says would have backed up his claim of innocence.
In March, Circuit Court Judge Catherine Haberkorn overturned Walker’s conviction, saying she was “sickened” by “this miscarriage of justice.”
And following revelations that city lawyers routinely resist turning over police complaint records in civil rights cases, judges sanctioned city lawyers for a similar failure in one case and signaled that sanctions are likely in another.
U.S. District Court Judge Thomas Durkin ordered the city’s law department to pay Whitely Klingler’s lawyer fees after the city failed to turn over an IPRA investigation that identified a Will County sheriff’s deputy who allegedly injured Klinger in an altercation on St. Patrick’s Day 2014. Klingler has charged the police department failed to investigate the incident because it involved a fellow officer.
And U.S. Magistrate Judge Susan Cox said she expects to sanction the city for failing to produce records in a lawsuit filed by Elaina Turner, who suffered a miscarriage after being tasered three times by a police officer in a 2013 traffic stop.
The records include Officer Patrick Kelly’s involvement in the 2014 killing of 18-year-old Hector Hernandez — shot 13 times in his kitchen after allegedly threatening officers with a 10-inch knife — as well as two psychiatric evaluations which found Kelly unfit for duty.
Turner was charged with resisting arrest and her fiance was charged with aggravated assault to an officer in the 2013 incident. Both were acquitted.
Attorneys are also seeking sanctions for the city’s failure to produce Kelly’s records in another case — a lawsuit by the family of a friend of Kelly’s who was shot in 2010 under unknown circumstances, in Kelly’s home with Kelly’s gun, after a long night of carousing.
In court and in the press, attorneys for the city have sought to portray failure to disclose as rare oversights. But in its April report, the mayor’s Police Accountability Task Force noted that “civil rights attorneys with extensive experience litigating against the city have raised concerns about the city’s compliance with discovery requests. They maintain that discovery is frequently withheld through a system in which discovery is delegated to paralegals, city attorneys maintain ignorance of available documents within CPD, a discovery requests are not treated with appropriate seriousness.”
Comment. “I no longer believe that we can ‘fix’ the police, as though the police are anything other than a mirror reflecting back to us the true nature of our democracy,” comments Michelle Alexander, author of The New Jim Crow, following recent shootings by, and of, police. “We cannot ‘fix’ the police without a revolution of values and radical change to the basic structure of our society.
“Of course important policy changes can and should be made to improve police practices. But if we’re serious about having peace officers — rather than a domestic military at war with its own people — we’re going to have to get honest with ourselves about who our democracy actually serves and protects….
“This nation was founded on the idea that some lives don’t matter. Freedom and justice for some, not all. That’s the foundation. Yes, progress has been made in some respects, but it hasn’t come easy. There’s an unfinished revolution waiting to be won.”
