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Jamie Kalven

Jamie Kalven

Posted: September 9, 2009 08:18 PM

Release of Police Documents Imminent

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Two years ago, Chicago newspapers and airwaves were full of public discussion of patterns of police abuse, government secrecy and institutional denial. As converging police scandals threatened to engulf his administration, Mayor Daley rebranded the agency that investigates abuse complaints, appointed a new police superintendent and promised an era of reform.

Today public debate is muted. There are several reasons for this. Among them is the unresolved status of a key legal issue, arising from Bond v. Utreras, a federal civil rights suit alleging police abuse. In 2007, Judge Joan Lefkow of the U.S. District Court ruled in Bond that certain police documents -- including the complaint files of the individual officer defendants and a list of 662 officers with the most citizen complaints in a five-year period -- are public information.

In a strong, eloquent opinion, Judge Lefkow went back to first principles. Such information must be available to the public, she wrote, so we as citizens can hold accountable the public officials we have entrusted with the powers to detain, arrest and use force.

The City appealed Lefkow's ruling to the Seventh Circuit of the U.S. Court of Appeals. It has been pending there for more than two years. For much of this period, the public conversation has been frozen in a state of suspension.

In the meantime, the legal struggle over official secrecy has continued unabated. If anything, it has intensified. It is being waged on multiple fronts. The City has worked tirelessly to maintain its regime of secrecy. And civil rights attorneys have countered with strategies to force greater transparency.

Now this struggle is about to re-emerge into full public view. For another federal judge has ruled that the complaint files of a group of officers who served in the Special Operations Section -- disbanded in 2008 in the midst of a metastasizing scandal involving charges of racketeering, kidnapping and attempted murder for hire -- may be made public.

* * * *

The inevitable defense offered by police departments charged with brutality, as by governments charged with torture, is that the abuses were the work of "a few bad apples." There is a degree of truth in this. It is generally agreed that the vast preponderance of abuse is committed by a small percentage of officers -- less than 5 percent of the force. The image of "a few bad apples" is fatally flawed, however, in two respects. It does not capture the scale of the harm a handful of abusive officers can inflict on individuals, communities and institutions of government. And it is designed to deflect attention from the systemic failures that allow abusive officers to operate with impunity.

Those systemic failures are the central focus of so-called "policy and practice" civil-rights suits, such as Bond, in which defendants include not only the individual officers charged with abuse but also the superintendent and other supervisory personnel, as well as the City itself. In such cases, attorneys for the plaintiff seek to show how the machinery of institutional denial works -- to demonstrate how the City, by not connecting the dots, goes about not knowing things it has the power to know about patterns of abuse. As a direct result of the City's de facto policy of failing to properly supervise, monitor and discipline police personnel, they argue, abusive officers know they can act without fear of punishment.

In order to build their case, attorneys routinely request during pre-trial discovery that the City provide them with information about the police department's internal investigatory practices and outcomes. The City almost invariably resists these requests. Then when ordered by the judge to produce the documents in question, it protracts the process as much as possible. Finally, it provides the documents subject to what is called a protective order.

To understand what is at stake, some background is necessary. While it is assumed as a general matter that what happens in the courts is public, there are limited exceptions to this broad principle. In civil law suits, the parties and the judge sometimes agree to protective orders that govern the exchange of information deemed sensitive. Under the terms of the order, the parties can designate material as confidential: the opposing attorneys can make use of it in developing their case, but they cannot disclose it more broadly.

In the normal course of events, neither party is likely to have occasion to challenge abuse of a protective order, so long as the other side is providing them with the material they need to represent their client effectively. In order to ensure the "confidential" stamp is not used to keep public information secret, there is a procedure by which a third party may intervene on behalf of the public.

In 2007, I intervened in Bond, a case I had reported on extensively, and argued that particular documents produced by the City under a protective order -- among them, the complaint files of the individual officer defendants and the list of officers with the most citizen complaints in a five year period -- were public in nature. These documents had been the basis for an analysis by a statistician retained by Bond's attorneys that yielded a startling portrait of official impunity.

Judge Lefkow granted my motion and lifted the protective order with respect to the documents, at which point the City appealed. (On appeal, my position was joined by a majority of the Chicago City Council and supported by major media companies, including the New York Times, Chicago Tribune, the Associated Press and the Gannett chain.)

With its Bond appeal pending, the City retrenched. In case after case, it has invoked the pending appeal as a rationale for not complying with routine discovery requests from plaintiffs (a gross misrepresentation of the issue on appeal, which turns on whether certain documents can be made public). Ever resourceful in its efforts to enlarge the domain of secrecy, the City has tried to use Bond, a case it lost in district court, as a tool for crippling the effectiveness of civil-rights litigation in exposing official abuses.

In a particularly telling episode, the City sought contempt sanctions against the statistician who served as an expert for the plaintiff in Bond. The City argued that he had violated the protective order by drawing on his Bond findings in preparing an expert report in another civil rights case. Both reports presented only aggregate numbers; no names or other data that could be construed as private were disclosed. The City claimed that he had violated the order, because some of the statistics he presented could only be derived by correlating lists of names -- an argument that comes perilously close to asserting that a protective order not only bars you from publicly disclosing the names but also from thinking about them and, having thought about them, from remembering what you learned. Judge Lefkow denied the motion, but it remains a striking instance of how voracious the logic of official secrecy becomes when unrestrained by a decent regard for the public interest.

The underlying logic of the City's secrecy campaign became explicit earlier this year, when police superintendent Jody Weis defied Judge Robert Gettleman's order to provide plaintiffs in a civil-rights case with a list of officers with more than five abuse complaints against them since 2000. The City went beyond its position in Bond that such lists should not be made public to assert that they should not be made available under a protective order to plaintiffs in civil-rights suits. Judge Gettleman was incredulous. He characterized the City's stance as a radical departure from long-standing practice -- he noted it had turned over similar documents on at least 29 occasions -- and held Weis in contempt.

Several days later, Weis and the City backed down and provided the documents. Following Weis' appearance before Judge Gettleman, Mara Georges, the Mayor's chief lawyer, responded to reporters' questions. She acknowledged that the City's stance arose from its concerns about the Bond case:

In the past we have turned over discovery under protective order thinking that protective order was going to stay in place and was going to protect the identities and other private information of the men and women of the Chicago Police Department.

But in Bond, she said, a journalist sought the list, a judge granted the request, and "we learned that those protective orders may not provide the protections that we hoped they would provide."

In the context of Weis' histrionic gesture, this is an extraordinary statement. The lifting of the Bond protective order was not some sort of legal derailment. It was an instance of the system working as it is designed to. I intervened on behalf of the public, according to the prescribed federal procedures. Judge Lefkow, having heard full arguments from both sides, concluded the documents had been improperly stamped "confidential" and were public. Viewed against this background, the clear implication of Georges's remark is that the City believes its power to impose secrecy should be unlimited and beyond scrutiny -- that it should be the sole arbiter of what is and is not public information.

* * * *

While Bond remains pending in the Seventh Circuit, other courts, both state and federal, have handed down decisions that emphatically counter such sweeping assertions of official secrecy.

In July, the Illinois Court of Appeals issued an opinion in Gekas v. Williamson, a freedom of information case in which the plaintiff sought files of complaints against a Sangamon County sheriff's deputy. The court directly addressed two propositions essential to the City's claims to secrecy.

It flatly rejected the argument that under Illinois law police officers' disciplinary files are personal information the disclosure of which would violate the officers' privacy:

What he does in his capacity as deputy sheriff is not his private business. Whether he used excessive force or otherwise committed misconduct during an investigation or arrest is not his private business. Internal-affairs files that scrutinize what a police officer did by the authority of his or her badge do not have the personal connotations of an employment application, a tax form or a request for medical leave.

The court then turned to the argument that it would be improper to release information about investigations in which the complaint was determined to be "unfounded." It noted that citizens might want to see whether the sheriff's office is conducting "a fair and objective investigation of complaints" and to assess whether complaints it "determined to be unfounded are really unfounded." It sharply rejected the circular argument that a complaint can be removed from public scrutiny because the sheriff's office has found it "unfounded":

Obviously, citizens cannot perform this critique . . . if so-called "unfounded" complaints are exempt from disclosure for the tautological reason that the public body decided they were unfounded. Such an exception would throw a cloak over potential wrongdoing and insulate officials from political accountability.

In a dramatic, parallel development, Judge Milton Shadur ruled last month in federal district court in Padilla v. Chicago that complaint files against Special Operations Section officers are public documents, once personal information, such as addresses and Social Security numbers, are redacted. (He excluded from disclosure the complaint files of SOS officers under indictment.) As many as 70 to 80 complaint files -- thousands of pages of documents -- may be released. In reaching this conclusion, Judge Shadur cited the Illinois appellate court's interpretation of state law in Gekas.

The stage is now set for the imminent release of the SOS files. This may happen within a matter of days; it will almost surely happen within the next several weeks. However fragmentary, these documents will contribute to the process of assessing internal investigations of abuse complaints. And they will interact in revealing ways with information already in the public domain. Perhaps most important, their release will demonstrate how over-the-top the City's predictions of harm are.

This is an important moment in the fight for government transparency and accountability in Chicago. In the face of the City's assertions of boundless secrecy, the Gekas court and Judge Shadur have restored to us a measure of our power as citizens by upholding the core principle articulated by Judge Lefkow in Bond:

Without such information, the public would be unable to supervise the individuals and institutions it has entrusted with the extraordinary authority to arrest and detain persons against their will. With so much at stake, defendants simply cannot be permitted to operate in secrecy.