On Friday, January 13, Chicago Police Superintendent Eddie Johnson listens as U.S. Attorney General Loretta Lynch announce the results of a a 13-month investigation that found widespread abuses by Chicago police officers. (Photo by Scott Olson/Getty Images)

DOJ: To Address “Defective” Accountability System, Chicago Must Renegotiate Police Union Contracts

The DOJ’s damning report found a pattern of racism and unreasonable force, and that contract provisions hinder investigations.

BY Adeshina Emmanuel

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“The City fails to conduct any investigation of nearly half of police misconduct complaints,” the report said. “In order to address these ignored cases, the City must modify its own policies, and work with the unions to address certain CBA provisions."

Now we know what the Department of Justice (DOJ) found in Chicago after a 13-month investigation of the Chicago Police Department: a “defective” police accountability system whose failures are tied to public distrust in police and Chicago’s murder spike. Among the roadblocks to reform noted in the report were police collective bargaining agreements (CBAs), including the three agreements for police supervisors, currently in negotiations, and the contract for rank-and-file cops, which expires on June 30.

The DOJ report, released Friday, “found reasonable cause to believe that CPD has engaged in a pattern or practice of unreasonable force in violation of the Fourth Amendment and that the deficiencies in CPD’s training, supervision, accountability, and other systems have contributed to that pattern or practice.”

The report continues:

We found that officers engage in tactically unsound and unnecessary foot pursuits, and that these foot pursuits too often end with officers unreasonably shooting someone—including unarmed individuals. We found that officers shoot at vehicles without justification and in contradiction to CPD policy. We found …that officers exhibit poor discipline when discharging their weapons and engage in tactics that endanger themselves and public safety, including failing to await backup when they safely could and should; using unsound tactics in approaching vehicles; and using their own vehicles in a manner that is dangerous.

The DOJ noted that CPD uses force against blacks almost ten times more than against whites and called on the city to tackle serious systemic deficiencies whose consequences disproportionately impact black and Latino communities. In a release following the report, Black Lives Matter Chicago called for “the immediate reopening of all closed police shooting investigations within the last four years.”

The report was released a week before the inauguration of President-elect Donald Trump, whose incoming administration is expected to lean less on the 1994 civil rights laws that enables the feds to compel reforms of local police departments when they find a pattern or practice of constitutional violations. The law allows for agreements between cities and the feds known as consent decrees, which are filed in and enforceable by federal courts, in comparison to less stringent measures, such as technical assistance letters or memorandums of agreement.

The findings come as no surprise, says Ed Yohnka of ACLU Illinois. “What it really did is confirm what residents in Chicago have known for years, which is the system itself for policing is simply broken,” he said.

The report also affirms a critique offered last April by Mayor Rahm Emanuel’s Police Accountability Task force: Union contracts are a major piece of the police reform puzzle in Chicago.

Contracts as roadblocks

Any perceived attack on public employee contracts and labor protections can raise hackles, especially in a heavily Democratic state like Illinois. Yet activists, policing experts and politicians have increasingly targeted the FOP contracts as a fundamental barrier to police reform and demanded that certain provisions be stripped in the next round of negotiations.

In April, the accountability task force found that police contracts institutionalize the code of silence in the police department that shield cops from accountability. “The collective bargaining agreements between the police unions and the City have essentially turned the code of silence into official policy,” the task force report read.

Friday’s DOJ report echoed many of the criticisms of police union contracts raised in the task force report. The DOJ highlighted the myriad ways the agreements hinder how police are monitored, investigated and disciplined for misconduct. People issuing complaints against the police, for instance, must sign sworn affidavits under threat of perjury. Legal experts have said such rules intimidate victims of misconduct and discourage reporting.

Here’s a list of other CBA provisions that the feds said hamper investigations of police misconduct and should be change:.

  • The contracts allow officers accused of misconduct or involved in shootings to delay interviews.
  • The agreements mandate disclosure of a complainant’s identity to an accused officer before questioning, which is problematic because many complainants fear police retaliation.
  • The agreements limit investigations into misconduct complaints filed more than five years after an incident, and requires the destruction of most disciplinary records older than five years.

“The City fails to conduct any investigation of nearly half of police misconduct complaints,” the report said. “In order to address these ignored cases, the City must modify its own policies, and work with the unions to address certain CBA provisions, and in the meantime, it must aggressively investigate all complaints to the extent authorized under these contracts.”

The DOJ report called the city's failure to investigate so many complaints a major blow to police accountability, saying, “these are all lost opportunities to identify misconduct, training deficiencies, and problematic trends, and to hold officers and CPD accountable when misconduct occurs.”

The city also shares some of the blame for rarely using override provisions in the contracts that would help investigators circumvent the affidavit step, said the report. The report said DOJ staff interviewed investigators with the Independent Police Review Authority (IPRA), which investigates allegations of police misconduct along with CPD’s Bureau of Internal Affairs (BIA), and that they relayed that using overrides is not encouraged at IPRA. The DOJ also alleged that IPRA fails to provide training on how to use the process.  “Not surprisingly,” said the report, “this override provision was used only 17 times in the last five years.”

However, the override option contained in the contract is still problematic, according to the report. For investigators with IPRA or BIA to use the override, they have to obtain an affidavit from the other agency’s director verifying that he or she has reviewed “objective verifiable evidence” and concluded an investigation should ensue. “Not only does this process undermine the independence of IPRA, and create an additional procedural barrier to investigating misconduct, but requiring that objective verifiable evidence exists before an investigation can be undertaken puts the cart before the horse,” said the report.

The report also notes that the provision to destroy records after five years “not only may impair the investigation of older misconduct, but also deprives CPD of important discipline and personnel documentation that will assist in monitoring historical patterns of misconduct.” Similarly, the CBAs prevent CPD's Behavioral Intervention System and Personnel Concerns Program, both programs meant to flag problem officers, from considering misconduct allegations older than five years and limits how “not sustained” complaints (how complaints are classified when investigators claim allegations can’t be proven true or false) are used to determine if an officer should be placed in the programs.

The DOJ also recommended changes to the “command channel review” process, outlined in the union contract and embedded in department policy, that allows various supervisors above an officer to review and comment on disciplinary decisions. The process undermines accountability, said the DOJ report.  The DOJ agreed with the mayor's Police Accountability Task Force that the process “provides a platform for members who are potentially sympathetic to the accused officer to advocate to reduce or eliminate discipline.”

“We recommended to the City during the course of this investigation that it modify the CCR process, and instead have discipline decided at a disciplinary conference headed by a single individual whose decision is reviewed directly by the Superintendent,” said the report, which named the command channel review as one of numerous factors undermining police accountability in Chicago.

The report claimed that these failures of the city’s accountability systems contributes to distrust of police and erodes the relationship between communities and law enforcement, which in turn makes it harder for police to solve murders and other crimes.

The FOP’s response

On Friday, minutes before the report was released, FOP President Dean Angelo issued a press release decrying the 13-month  investigation as “lightening speed.” The release expressed concerns that the DOJ rushed the report ahead of President-elect Donald Trump’s inauguration:

In all practicality, to have completed this investigation in LESS than one year’s time brings to surface several concerns: the main one being timeliness. Completing an investigation into the 12,000 member Chicago Police Department, and in a City with over 2 million citizens in less than one year clearly brings to light that the outgoing DOJ wanted to issue a report before the new Administration takes over on January 20, 2017. What also remains to be seen is whether or not the Report might be considered compromised, or incomplete as a result of rushing to get it out before the Presidential Inauguration. Everyone who reads this document should be as concerned about the timeliness of this Report as the FOP. 

Attempts to reach Angelo after the report was released were unsuccessful. But in past interviews with In These Times, Angelo has insisted that the DOJ probe could be a boon for the union, whose members could benefit from better training and equipment as part of reforms. But he has defended the “Police Bill of Rights” section in the union contract, which contains the affidavit rule and heavily influences misconduct investigations. Angelo has said such protections are necessary to discourage frivolous complaints and unfair interrogation techniques that could endanger cops’ jobs.

The DOJ probe was sparked by the killing of a black teen named Laquan McDonald, who was walking away from police when officer Jason Van Dyke shot him 16 times. In November 2015, the release of a video the city fought to keep under wraps spurred public outcry, mass protests and calls for federal intervention. The incident also put the FOP under increased scrutiny and accusations that the union uses its influence to protect bad cops at all costs. A supposed account from numerous cops at the scene of the shooting, relayed through an FOP spokesman, turned out to be false. And the FOP hired Van Dyke as a janitor after he was suspended without pay. Amid this increased visibility for the FOP, the FOP’s contract with the city was thrust into the spotlight like never before.

In the aftermath of the McDonald video, calls for contract changes rang out from city hall, propelled by allegations from activists and politicians that the agreement makes it hard to conduct effective investigations of police misconduct and sets the bar too high for flagging or firing cops like Van Dyke whose encounters with civilians had already led to several lawsuit settlements and more than 20 complaints before he killed McDonald. The CPD is currently trying to fire Van Dyke, who is facing trial on murder charges. CPD is also trying to fire other cops who allegedly lied about the shooting—but the FOP is trying to block their dismissal.  

The Chicago Urban League, an organization that has advocated for African Americans since 1916, took aim at the FOP in a statement released Friday.

“We know that reactions to this report will vary from anger and disgust to, unfortunately, but quite probably, repudiation from the Fraternal Order of Police,” said the statement. “But the Chicago Urban League believes that the report must be viewed as a milestone. It is verification of the worst of what we’ve been and continue to be, but offers a viable path to what we want to become.”

Negotiations ahead

NBC News reports that the city has already begun negotiations over reform measures, which a judge will oversee. What’s less clear is how Trump’s administration will enforce those measures. Yohnka said the city needs a sustained reform effort with independent oversight, and that signing a consent decree before Trump gets keys to the White House would help ensure that.

“With the political instability, what they’d be better off doing is signing a consent decree—and doing it by next week,” Yohnka said.

Trump's nominee to replace Lynch as U.S. attorney general and lead the DOJ, Jeff Sessions, has sent strong signals that he isn't a fan of consent decrees. He said at a Senate confirmation hearing on Tuesday that the DOJ probes undermine the public's respect for cops. “I think there's concern that good police officers and good departments can be sued by the Department of Justice when you just have individuals within a department who have done wrong, and those individuals need to be prosecuted,” Sessions said.

While Mayor Rahm Emanuel’s statement acknowledged the city has a lot of work to do, he touted reform measures his administration has already initiated, including an updated use of force policy, training initiatives and plans for a new independent civilian agency that would investigate allegations of police misconduct. He also acknowledged—and sought to dispel—fears that the reforms will lack teeth without backing from the next presidential administration.

“As we move forward, there are questions about what the next administration in Washington will do, but we know with certainty what we will do in the City of Chicago,” Emanuel said. “We will continue on the path of reform because that is the path to progress.”

Early Friday evening, activists with Black Lives Matter Chicago help a press conference with relatives of Rekia Boyd, Ronald Johnson and other Chicagoans killed by police officers. Activist Kofi Ademola led the press conference, which was captured on video and posted by DNAinfo Chicago, and blasted the mayor's reforms as hollow, including a new civilian oversight agency that Ademola said still leaves too much power in the hands of city officials and the FOP.

Ademola also accused the mayor of trying to coverup the McDonald killing, and cast doubt on the prospect of Emanuel and the city steering Chicago toward serious reform without federal enforcement.

“The so-called reforms they have been making since the investigation are empty and hollow and ceremonious at best,” Ademola said. “We know that they don't want community control of the police.”

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Adeshina Emmanuel is an independent Chicago-based journalist and an Ida B. Wells Fellow with the Investigative Fund at the Nation Institute. He is a former reporter for DNAinfo Chicago, the Chicago Sun-Times and the Chicago Reporter.

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