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.

Adeshina Emmanuel January 14, 2017

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)

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 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."

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.”

Adeshi­na Emmanuel is an edi­tor at Injus­tice Watch, a non­prof­it jour­nal­is­tic research orga­ni­za­tion ded­i­cat­ed to expos­ing insti­tu­tion­al fail­ures that obstruct jus­tice and equal­i­ty. He is a for­mer reporter for DNAin­fo Chica­go, the Chica­go Sun-Times, the Chica­go Reporter and Chalkbeat.
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