The way that police unions routinely bargain away public transparency is at the core of the legal battle in Chicago that has unleashed a stunning series of events.
Open government advocates consider “open by default” to be the gold standard for public records. But for Chicago’s Fraternal Order of Police, ”closed by default” has been the standard upheld by collective bargaining agreements with the City of Chicago.
This standard is the case with the police union not only in Chicago, but in many cities nationwide, says Craig Futterman, who is a clinical law professor at the University of Chicago Law School Mandel Legal Aid where he directs the University of Chicago’s Civil Rights and Police Accountability Clinic.
Futterman has been working with independent journalist Jamie Kalven, founder of Chicago’s Invisible Institute, for more than a decade to open to the public the misconduct records of Chicago police officers through Freedom of Information Act requests and civil rights litigation.
Their vision is for an open data portal that will capture and make public the entire disciplinary database for the Chicago Police Department. The portal will be easily accessible for all to use, including journalists, researchers and community.
A common body of evidence
Fully stocked and fully iterative, the data portal will be a common body of evidence around which discourse, however contentious, however collaborative, can take place.
“The database we are talking about …. there has been nothing like this in Chicago or anywhere,” Futterman said. “It is unique in that it is dedicated to the principle that public means ‘public.’ This database is an attempt to make this more than an abstract principle and to make that principle real in Chicago.”
The portal already has a strong start with the Chicago Police Database Project (CPDP), a fully searchable community data portal announced in early November that contains the complaint records for more than 8,500 Chicago Police officers over the past four years.
A dark achievement
In a significant step toward transparency, the City of Chicago had agreed to turn over its full list of misconduct complaints for all officers, dating back to 1967, to the Invisible Institute, Chicago Tribune and Chicago Sun-Times. But the Chicago Fraternal Order of Police has taken legal action to block its release, saying they would destroy hundreds of thousands of pages of evidence, files and records related to Chicago police misconduct reports older than four years.
Kalven petitioned the court and an Illinois Circuit Court Judge ruled in an emergency order that Chicago authorities must notify journalists, activists and the public before they destroy records. This is a heated time, when the U.S. Department of Justice is preparing its investigation of the Chicago Police Department, said to be the largest investigation ever of a police operation.
Futterman’s work with Kalven paid off big time in early 2014 when Kalven won as plaintiff in Kalven v. City of Chicago, a watershed court decision in Illinois that made police misconduct records public. That opened the floodgates to information on the Laquan McDonald shooting. Through a Freedom of Information Act request, Kalven obtained the autopsy that showed McDonald had been shot 16 times.
The Nov. 24 release of a Chicago Police Department dash-cam video shows Chicago Police Officer Jason Van Dyke shooting 16 times and killing 17-year old Laquan McDonald. The brutal image contradicts the official account given by the Fraternal Order of Police spokesman on Oct. 20, 2014. Also raising questions is the $5 million paid by the City of Chicago to McDonald’s family to settle out of court prior to a lawsuit.
In the streets, black youth, ministers and concerned citizens have been marching. In response, Mayor Rahm Emanuel has fired the Chicago Police Superintendent, the head of the Independent Police Review Authority and the Chief of Detectives. More heads could roll, some are saying, perhaps even the Mayor’s.
These extraordinary events add up to what Rachel Maddow called a “dark achievement” for Kalven’s journalism and police reform and open government in Chicago.
In this latest round with the police union, Kalven believes his effort will prevail and ultimately, after many legal volleys, the public records issue will be resolved permanently by the Illinois Legislature.
$500 million in police settlements
In addition to the human costs, the City of Chicago has paid out more than $500 million on police-related settlements, judgments, legal fees and other costs during the past decade, according to the Better Government Association, an independent watchdog group. The city shelled out $84.6 million in 2013 alone.
Meanwhile the existing data portal is there to carry water for Kalven and Futterman’s full transparency vision. Kalven is quick to say this is not a story about technology.
“The data is fragmentary in terms of the larger phenomena,” says Kalven, whose Invisible Institute first sprouted roots in an empty apartment at the old Stateway Gardens Housing Development. “That’s because there are things you can learn from the data. There are things you can only learn on the streets.”
“All the knowledge to reform the system is in the system, but it’s divided and scattered and divided from itself. (Events of the last few weeks) represent a huge breakthrough in (shattering) official secrecy. … Now, the key is to connect that knowledge with other kinds of knowledge on the street, in the department itself,” Kalven says.
System improvement as journalism
Kalven’s goal is to engender and fortify the feedback loops between the data and the people on the street and between the data and the police officers on the beat to create a systemic cycle of continuous improvement.
“I see that as fundamentally a journalistic project.”
When taken together, all the data completes the picture for public discourse on systemic police reform. Using the information in these documents and others as added, activists and journalists can map out the many interrelated components that form the entire “system” of police misconduct: everything from the attorneys who approach families to negotiate settlements; to how abusive police disrupt community trust; to how their abuse thwarts the work of conscientious and law-abiding police; to how the $500 million in settlements paid affects the system that is the City of Chicago and on.
An open newsroom ecosystem
All this will be rich fodder for a journalistic ecosystem Kalven hopes to see sprout around the police misconduct data. Already running as a pilot is a new newsroom called City Bureau directed by Darryl Holliday (who also works part-time for Invisible Institute). Publishing in partnership with the Chicago Reporter, the Chicago Reader and The Guardian, City Bureau has partners in the journalism, civic media and education spaces.
Kalven points out that that newsrooms themselves have an important place on the systems map and how open or closed they are as a component has a significant impact on working toward a systemic solution.
“There’s a strategy to secrecy. For instance, ‘If you knew what we (the Chicago Tribune) know, but we can’t tell you, but if you knew it, you would know we’re right’,” Kalven says. “We’ve had versions of that for years around these issues. Everybody picking their own facts, so to speak.”
“That’s no longer possible,” he says.
“What’s powerful about this is the publicness of it. … I see the journalism as an extension of that. As a possibility of really building an ever more robust ecosystem of journalists at different points in their career working individually, in collaboration on a whole constellation of issues bearing on these general themes and then having that work accumulate in a coherent way and be at the center of really critical public policy decisions that are going to be made in coming months and years about how the police operate in the city.”
“We made a very significant kind of down payment with the data we have on a public resource that’s open and available to everybody,” Kalven says. Now for others working on this issue, it’s “write your scoop, but then pass that material on to us. Don’t just put it in a file cabinet somewhere. Incorporate it into this expanding resource that’s of ever great use to everybody.”
The way forward for Chicago police reform
“This is an extraordinary moment in terms of possibilities for police reform, Kalven says. “If we have the black caucus and the ministers and various civic organizations, at least loosely, behind a clear, coherent reform agenda, that will be huge. There’s never been that kind of constituency for reform of this nature before.“
To Kalven’s view, four fundamental issues guide the police reform process forward.
They are —
- Code of Silence
- The Fraternal Order of Police Contract.
1) Transparency. It’s critical the information is made available to the public.
“That’s the phase we’re in and the drama we’re living through,” Kalven said. When Invisible Institute won the court decision in 2014 saying that police misconduct files are public information, he, his lawyers and Craig Futterman sat down and negotiated with Steve Patton, the corporation counsel and his team about how to operationalize the decision. “It was really successful and it was really a good negotiation,” Kalven said.
2) Accountability in terms of how citizen complaints are investigated and in the disciplinary process.
“Fundamentally, it doesn’t work,” Kalven said. “I think what our data show, overall, is they provide a kind of portrait of impunity.” Because the odds are against an abusive officer being identified, investigated and disciplined, there’s no real fear of punishment. And because of that residents of neighborhoods most affected by these patterns feel there’s no use in filing a complaint.
In addition, most large organizations that interface with the public conduct pattern analysis as part of quality control. Kalven cites airline practices that look at complaints as an important source of information for improving the bottom line. The City of Chicago ignores this large body of evidence.
3) The Code of Silence and the culture that enables it.
“This is where leadership really matters,” Kalven says. In the Laquan McDonald case, “I think it’s more disturbing how the culture of the department responds. This wasn’t some dramatic departure from the norm. This is the norm,” Kalven says. The way the institution responded was symptomatic of larger patterns. At every level, from officers on the scene as the boy was lying there bleeding to the highest levels of the city. “Over time, everybody’s instinct was to circle the wagons. To put out a false narrative and then double down on that false narrative when it was challenged. We now have more and more evidence and more will come out. That process of maintaining the false narrative required destruction of evidence, intimidation of witnesses, falsification of police records and, ultimately, the five million dollar settlement with the family, “ Kalven says.
4) Removing impediments in the union contract to vigorous, timely investigations.
This is likely to happen. Mayor Emanuel has referred to going back to the bargaining table with the police union, Kalven says. “The Fraternal Order of Police has succeeded in negotiating in their collective bargaining agreement so many layers of protection for police officers who are accused of crimes that it really is, ultimately, antithetical to the public interest,” Kalven says.” I joke sometimes, but it’s not really a joke that there’s no category of citizens including children and the mentally ill who have as much due process as police officers do.”