Remarks on police accountability / by Jamie Kalven

Remarks by Jamie Kalven at Forum on Police Accountability, hosted by the Chicago Council of Lawyers and American Constitution Society, on September 30, 2014.  Kalven followed a presentation by Scott Ando, the Chief Administrator of the Independent Police Review Authority, the City agency that investigates excessive force complaints.

We stand at an historic threshold in the campaign for police accountability. The Kalven decision and the policies adopted by the Emanuel administration to implement it have created the conditions for unprecedented transparency with respect to documents bearing on allegations of police abuse.

At the same time, events in Ferguson, Missouri, have reminded us, if we needed reminding, that the issue of police accountability is at the center of the contemporary civil rights agenda. This is not an issue among other issues.  It bears on the essential nature of our society. As a friend once observed, “In a democracy, there is nothing like a good cop, and there is nothing like a bad cop.”

Before considering what this moment – this opportunity – demands of us, allow me to briefly sketch the origins for the Kalven decision.  For me, the story begins with a question that formed years ago when I was immersed in the life of an abandoned South Side community: the Stateway Gardens public housing development on South State Street. 

From the mid-1990's until 2007 when the last high-rise was razed, I worked at Stateway as an organizer and reported from there as a journalist.  During those years, I regularly witnessed and constantly heard stories of police abuses, ranging from small gratuitous insults to harrowing cruelties and large-scale corruption.  What struck me, above all, was the dailiness of it all.  For residents, it seemed, these were conditions of life to borne like gravity or the weather.  And the officers who committed the abuses carried themselves with a sovereign air, confident of their power and their license.  Long before the word “impunity” became an active part of my vocabulary, I knew what impunity looked like on the ground.

No doubt I could have had similar perceptions in countless marginalized, disfavored communities in this city and across the nation, but they were particularly pointed at Stateway Gardens because of the circumstance that, as of 2000, this impoverished, embattled community was located a block and a half from the administrative headquarters of the Chicago Police Department.  It was also directly across the street from the Office of Professional Standards, which would later be rebranded as the Independent Police Review Authority.

The question that formed in my mind was this: what sort of institutional conditions would have to exist for what I was witnessing on the ground at Stateway from day to day to be the case?

With the help of my long-time collaborator Professor Craig Futterman and successive teams of law students in the Mandel Clinic of the University of Chicago Law School, I pursued this question via litigation. It was a long slog, first in federal court and then state court, in which we were joined by Loevy & Loevy and later the People's Law Office. Ultimately, this collective effort yielded the Kalven decision.

So here we are in the fall of 2014. My hair is now white. Derek Jeter, who began his career with the New York Yankees the year I first stepped on the grounds of Stateway Gardens, retired this week. And Stateway itself has been disappeared as thoroughly and radically as the Warsaw Ghetto. I finally have the long-sought documents. And I have spent the last couple of months immersed in them. What do they reveal? What have I learned? 

There are two different kinds of documents: lists of officers who accumulated repeated complaints of abuse during the periods 2001-2006 and 2002-2008; and the misconduct investigation files of five officers, known on the street as Skullcap Crew, who were defendants in Bond v. Utreras, a federal civil rights suit brought by the Mandel Clinic that arose out of my reporting at Stateway.

I made the lists public the moment I received them from the City at the end of July. They have been much discussed. (It was widely reported that officers at the center of the recent Special Operations Section scandal are high on the lists but were never disciplined.) So I'll limit myself to two observations.

First, even knowing essentially what to expect, it was stunning to finally see the lists and run my eyes over complaint after complaint on which no action was taken in the cases of officers now known to be criminals with badges. I urge you to do the same. It's instructive.

Second, it's important to note that the CPD does not maintain lists of this nature. These lists only exist because civil rights attorneys in the course of discovery asked the City to generate them.  Indeed, one of the arguments the City advanced in the Kalven litigation was that it shouldn't be required to make the lists public because it doesn't maintain such lists for its own purposes.  In other words, it doesn't do the sort of pattern analysis for investigatory purposes that the lists make possible.

Turning now to the investigative files, it becomes possible to identify the sorts of practices that produced the lists--the means by which findings of “not sustained,” “exonerated,” and “unfounded” are produced.

I have reviewed over a hundred investigative files involving one or more members of the Skullcap Crew in the course of their careers up to 2009. These files bridge the eras of OPS and IPRA.  They are uneven – some investigations are better than others – but taken together they reveal consistent deficiencies. Among them:

  • As I noted in connection with the “repeater” lists, there is no pattern analysis evident in the files – not with respect to individual officers, groups of officers alleged to act together, or recurring allegations of particular kinds of abuse.
  • The investigations are pervaded by double standards in the assessment of credibility. Investigators seize on any inconsistencies to impeach complainant and witness statements, while never questioning the mutually reinforcing statements of accused and witness officers.
  • It’s common practice for officers to provide their statements in the form of “To/From” memos that often read like carbon copies of each other. On the rare occasions when the investigator interviews an accused officer, the questioning is hardly probing.
  • I have reviewed a substantial number of investigations by Internal Affairs as well as IPRA. I should note at this point that the relative openness and availability to the public of IPRA—the fact that Mr. Ando is here today and Internal Affairs is represented by an empty chair—can leave the impression that IPRA is the agency that investigates allegations of police abuse, when in fact Internal Affairs handles close to 70% of all cases. Internal Affairs investigations exhibit the same deficiencies as IPRA investigations, but they add a distinctive one of their own: often the investigation is assigned to the immediate supervisor of the officers accused. In some instances, this means, in effect, that the suspects investigate themselves.
  • Finally, one cannot review these documents without forming the impression that all too often investigators look for reasons to terminate the investigation with a finding of “not sustained.” It’s almost as if that is what the system is designed to produced.

For years, my colleagues and I have spoken of the City's “broken” system of police accountability.  On the basis of what I have seen in these files, that imagery is misleading. This is not a system that occasionally (or even frequently) malfunctions. It is rather a well-functioning system dedicated to the end of producing findings of “not sustained.” Thus, the challenge is not to improve a system prone to malfunctioning. It is to dismantle a system at odds with its own stated purposes. It is a matter of fundamentally changing the culture that sustains that system.

The stakes are high. There are neighborhoods in this city that resemble failed states in the sense that the tools of our powerful City government are ineffectual there—neighborhoods were the police find it hard to clear a murder case because community members won't cooperate with them.  A major factor in this dynamic is the distrust of police—and indeed of civil authority—engendered by lack of accountability.

So what is demanded of us at this moment?

The transparency established by the Kalven decision is a necessary condition for reforms, but those reforms are not self-executing. It is up to us as citizens to make effective use of the tools we now have to leverage meaningful reform. Toward that end, my colleagues and I are developing a police data clearinghouse where we will collect, organize, and make searchable CPD documents accessed by various requesters. We envision this as a way of institutionalizing reform — a vehicle for diagnosing systemic problems, demonstrating how they might best be addressed, and engaging with the City in sustained negotiations over specific reforms.

In preparing these remarks, I made a decision not to engage in dueling statistics with Mr. Ando.  There is much that could be said about the numbers he has presented.  Perhaps some of it will be touched on in the discussion period. Rather, I want to make a different point, which is simply: show us

That is the significance of the watershed we have crossed over.  Now that we have penetrated official secrecy, we can henceforth engage one another with reference to the same body of data.

Similarly, I anticipate Mr. Ando will object that the data in the lists and the files I have reviewed predate improvements IPRA has made in the quality of investigations. Again, I say: show us.

In that spirit, I want to take this occasion to ask IPRA, going forward, to post the summary digests of every completed investigation on its website.  Post-Kalven, there are no legal impediments to doing so. The appellate court has ruled that this is public information.  And a central element of the policy adopted by the Emanuel administration is to provide summary digests when providing the full file is deemed unduly burdensome.

Posting the summary digests of completed investigations would make good on the promise of the administration's transparency policy. It would serve to incentivize rigorous investigations.  It would enable the public to assess for itself the quality of investigations. And it would greatly enhance IPRA’s credibility.

So, what do you say, Mr. Ando?