No. 14?3834. 15-0162 (consold) IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT FRATERNAL ORDER OF POLICE. CHICAGO LODGE NO. 7. PIaintiff-Appellee, and THE CHICAGO POLICE SERGEANTS ASSOC. PBPA UNIT THE CHICAGO POLICE CAPTAINS ASSOC. PBPA UNIT and THE CHICAGO POLICE LIEUTENANTS ASSOC, PBPA UNIT I563. Appellees v. CITY OF CHICAGO and DEPARTMENT OF POLICE OF THE CITY OF CHICAGO. Detendants-Appellanls and CHICAGO TRIBUNE COMPANY. AppeIIant. Interlocutory Appeal Pursuant To Ill. Sup. Ct. R. 307(a) from the Circuit Court of Cook County. Illinois County Department. Chancery Division. No. 2014 CH 17454 The Honorable Peter Judge Presiding AMICUS BRIEF OF JAMIE KALVEN, JOHN CONROY, AND THE BETTER GOVERNMENT ASSOCIATION, IN SUPPORT OF DEFENDANTS-APPELLANTS Craig B. Futterman Matthew Topic Mandel Legal Aid Clinic Loeyy Loevy 6020 S. University 312 N. May St.. Suite I00 Chicago, IL 60637 Chicago. IL 60607 (773) 702-9611 (312) 789-4973 Attorney No. 91074 Attorney No. 41295 Attorney for Jamie Kalven Attorney for Better and John Conroy Government Association POINTS AND AUTHORITIES Pages STATEMENT OF INTEREST .. ARGUMENT ..2 5 ILCS 140i] .. 3 I. The trial court erred by subordinating FOIA to a private contract. ..3 5 ILCS 140i3(a) .. 4 5 ILCS l40i7(3) .. 4 Fagei v. Dep?i of Trump. 2013 IL App (lst) 121841 ..4 Pritza v. Village ofLansing, 405 Ill. App. 36 634 (lst Dist. 2010) .. 4 HI. Educ. Ass v. Hi. State Bd. ofEduc., 204 Ill. 2d 456 (2003) .. 4 Poiice Benevolent Protective Ass '11 Unit No. 5. No. I3-CH-904 .. 4 AFSCME v. Dept. ofCeni. Mgmt. Saws, 174111.2d 299 (1996) .. 4 Chicago Fire Fighters Union Local No. 2 v. Ch)? of Chicago, 323 111. App. 3d 168 (lst Dist. 2001) .. 5 County ofDe Wit: v. American edn. ofSIare, 298 Ill. App. 3d 634 (4th Dist. 1998) .. 5 ILCS I40i1 .. 5 Alexander v. Gardner-Denver 0., 415 US. 36 (1974) .. 5 II. The trial court disregarded this Court?s repeated rulings that police misconduct records must be produced under FOIA. .. Gekas v. Williamson, 393 Ill. App. 3d 573 (4th Dist. 2009) .. 6 Watkins v. McCarthy, 20121L App (lst) 100632 .. 6 Kalven v. City of Chicago, 20141L App (lst) 121846 .. 6 5 ILCS 140i] .. 6 5 140/12 .. 7 8201LCS 40/11 .. I 1 The trial court?s ruling was inconsistent with the purpose of FOIA and ignored the public interest in police misconduct transparency. ..11 Bond v. Utreras, 2'00?l WL 2003085 (ND. 111. Jul. 2, 2007) .. 12 United States ex. real. Manvell v. Gilmore, 3? F. Supp. 2d 1078 (ND. 111. 1999) .. 14 Craig Melissa Mather, Melanie Miles, The Use of Statistical Evidence to Address Police Supervisory and Disciplinary Practices: The Chicago Police Department?s Broken System, 1 DePaul J. for Soc. Just. 251 (2008) .. 15 Tom R. Tyler, Enhancing Police Legitimacy, 593 Annals ofthc Am. Soc. of Polit. Soc. Sci. 84 (2004) .. 16 Jason Sunshine 8: Tom R. Tyler, The Role of Procedural Justice and Legitimacy in Shaping Public Supportfor Policing, 37 Law Soc'y Rev. 513 (2003) .. 16 Better Gov't Ass 'n v. Blagojevicli, 386 111. App. 3d 303 (4th Dist. 2003) .. 17 Kevin King, E?iectively Implementing Civilian Oversight Boards to Ensure Police Accountability and Strengthen Police-Communist Relations, 12 Hastings Race Poverty 91 (2015) .. 17 ii Doe v. Marsalis, 202 F.R.D. 233 (ND. 200]) .. 18 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..18 STATEMENT OF INTEREST Jamie Kalven is ajournalist and human rights activist who has reported extensively on patterns of police abuse in Chicago. He was the plaintiff in Kalven v. City of Chicago, in which this Court ruled that police misconduct records are subject to release under the Illinois Freedom of Information Act (FOIA). Mr. Kalven also has a pending FOIA request for police misconduct data that has been denied on the basis ofthe trial court?s ruling here. John Conroy is ajoumalist who has covered the Chicago police torture scandal for more than two decades. He is currently the Senior Lecturer and Director of Investigations at the DePaul Legal Clinic, DePaul College of Law, in Chicago. The Better Government Association is a 92-year-old Chicago-based civic organization that works to advance transparency, accountability, efficiency, and honesty in state and local government. BGA relies upon public records to investigate allegations of government wrongdoing in Illinois and in Chicago and recommend reforms. Amici ask this Court to reverse the trial court?s grant of a preliminary injunction and allow Defendants to disclose the requested misconduct records, thereby enabling amicr' and the rest of the public to scrutinize the public acts of public of?cials using the historical information necessary to understand and address potential patterns of police misconduct. Contrary to the law of this state, the trial court and Plaintiffs contend that a collective bargaining agreement (CBA) and an inapplicable statute concerning employee performance reviews create FOIA exemptions for police misconduct records more than four years old. They do so despite this Court?s clear and consistent rulings that police misconduct records are subject to disclosure. They do so despite the well-documented and powerful public interest in discovering and addressing long-term patterns of police misconduct. They do so despite the radical precedent that would be set, allowing private parties and trial courtjudges to create new 01A exemptions?something that has always been in the exclusive province of the General Assembly. And they do so deSpite the repeated admonishment by the General Assembly and this Court and others that government secrecy is bad public policy and rarely justi?ed under FOIA. ARGUMENT At stake in this appeal is the right of the public to access information about its government, and speci?cally, to discover and analyze allegations of misconduct made against police of?cers and how those allegations are handled by those in power. The public has a compelling interest in this information well established under the law, regardless of how many years have passed. Illinois courts have repeatedly recognized the critical public need for police misconduct records, and the trial court?s ruling runs contrary to this Court?s precedent, Illinois statutes, and the public interest. In purporting to prevent Defendants* disclosure of these records, the trial court deprived the public of its ability to understand, evaluate, and?as citizens, taxpayers, and public advocates?participate in the oversight and monitoring of the Chicago Police Department (CPD) to ensure that it is operating in the public interest by investigating long-term trends requiring access to historic information. The decision cannot be reconciled with the text of or its purpose: ?to enable the people to ful?ll their duties of discussing public issues fully and freely, making informed political judgments and menitoring government to ensure that it is being conducted in the public interest.? 5 l40i?l. Amie-i join in the Defendants? arguments that the trial court erred in granting Plaintiffs? motion for preliminary injunction and in denying Defendants? motion to dismiss. In addition, amici highlight three fundamental errors of which they have specialized knowledge in relation to their work on police accountability, Open government, and FOLA, including the litigation of the very issues in this case before this Court. First, the trial court committed reversible error in subordinating FOIA to an agreement between the CPD and police union regarding the disclosure of police misconduct records: public bodies and private interests may not bargain away the public?s right to information mandated by Second, the trial court disregarded this Court?s consistent line of precedent that police misconduct records must be produced under FOIA. Finally, the trial court?s ruling undermines the very purpose of and the public interest in police accountability. I. The trial court erred by subordinating FOIA to a private contract. The trial court lacked any legal basis to enjoin the release of police misconduct records under FOIA in favor of an arbitrator?s review of a contract dispute between the CPD and the police union. The very idea that a public body could enter an agreement with its employees or anyone else to deny public access to records under FOIA would be a radical departure from the statutory text and longstanding Amici agree with and join the Defendants? argument that they did not breach the CBA by retaining police misconduct records. We do not re-argue that point here. As representatives of the intended bene?ciaries of FOIA, amici emphasize here that irrespective of whether Defendants breached the CBA, the trial court committed legal error in holding that a public body?s agreement with private interests could limit the government?s disclosure obligations to the public under FOIA. 3 caselaw?a bold invasion into the General Assembly?s exclusive authority to create FOLA exemptions. 5 ILCS l40i3(a) (?Each public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act?); 5 l40i7(3) (?This Section does not authorize withholding of information or limit the availability of records to the public, except as stated in this Section or otherwise provided in this Act?); Fagel v. Dep't of Transp, 2013 1L App (Ist) 121841, 1i 35, appeal denied, 996 12 (Ill. 2013) fear of manipulation or misuse of the information is not an exemption under section ?7 of FOIA upon which could justify withholding the unlocked version of the Excel spreadsheet. We decline to create such an exemption"), citing Prirza v. Village of Lansing, 405 Ill. App. 3d 634, 645 (lst Dist. 2010) (the court cannot legislate but must interpret the law where the language of the statute is plain and certain); see aiso, e. g. Iii. Educ. Ass ?n v. State Rd. afEdac., 204 Ill. 2d 456, 463 (2003). In addition to violating FOIA, any collective bargaining agreement provision that contracted away FOIA obligations and restricted the public?s rights would be invalid as violating the public policy necessary for a well-?tnctioning democracy. See Police Benevolent Protective Ass ?n Unit No. 5, No. 3-4; see also American Fea'n. ofSiate. County, and Man. Empires. AFL-CIO v. Dept. of Cent. Mgmi. Serve, Ill. 2d 299, 307 (1996) (?As with any contract, a court will not enforce a collective-bargaining agreement that is repugnant to established norms of public policy. Likewise, we may not ignore the same public policy concerns when they are undermined through the process of arbitration?). Illinois courts have particularly emphasized public policy over con?icting CBAs in the context of public employers charged with the safety of the public. See, cg, AFL-CIO v. Cent. Mgmr. Serve, 173 Ill.2d 299; Chicago Fire Fighters Union Local No. 2 v. City of Chicago, 323 Ill. App. 3d 168, 18] (let Dist. 200]); County ofDe Witt v. American chn. of State, 298 Ill. App. 3d 634 (4th Dist. 1998). Any contractual provision that decreased a public body?s obligation to disclose records to the public otherwise required by FOIA would violate this important policy. See 5 ILCS 140/ I. Further, and in any event, even if the General Assembly had granted public bodies authority to create new exemptions under private contract and even if secrecy around police misconduct allegations was good public policy, the arbitrator still cannot resolve the questions of law at issue here. An arbitrator?s ?source of authority is the collective bargaining agreement.? Alexander v. Gardner-Denver Ca, 4 5 US. 36, 53-54 1974). An arbitrator ?has no general authority to invoke public laws that conflict with the bargain between the parties? and only ?has authority to resolve only questions of contractual rights.? Id. The parties to the CBA, including Plaintiffs, have recognized this in the CBA itself: the Savings Clause in Section 33 subordinates the CBA to changes made necessary by legislation orjudicial action, and the document retention policy in Section 8.4 subordinates the CBA to litigation. July 1, 2007 Collective Bargaining Agreement, attached to Plaintiffs? Verified Complaint as Exhibit A. The arbitrator lacks authority to interpret FOIA or any attendant questions of public policy and there is no basis in FOIA for public bodies to create exemptions through contract, an arbitrator, or thejudicial process. Regardless of the outcome of the grievance arbitration, the arbitrator?s award will have no bearing on whether the requested documents must be disclosed under FOIA. To hold otherwise would turn decades of FOIA caselaw on its head and do violence to the clear statutory text and purpose. II. The trial court disregarded this Court?s repeated rulings that police misconduct records must he produced under FOIA. The Illinois Appellate Court has consistently enforced the General Assembly?s policy dictate that the purpose of FOIA is to permit public scrutiny into matters of public interest. To that end, the Appellate Court has three times ruled that records of police misconduct, and Specifically Complaint Register (CR) ?les, are not exempt and must be produced under FOIA. The Appellate Court?s decisions in Gekas v. Williamson, 393 App. 3d 573 (4th Dist. 2009), Watkins v. McCarthy, 2012 App (1 st) 100632, and Kalven v. City of Chicago, 2014 IL App st) 121846, enforce the steadfast view that 01A exemptions were ?never interpreted to exempt a public body?s investigations into citizen complaints of police misconduct.? Kalven, 2014 IL App (1 st) 121346 atil 17'. The trial court disregarded this precedent and erred in granting an injunction in favor of Plaintiffs. In enacting the legislature declared that the public is entitled to full access to government records in order to ensure that the government is acting in the public interest: Pursuant to the fundamental philosophy of the American constitutional form of government, it is declared to be the public policy of the State of that all persons are entitled to full and complete information regarding the affairs of government and the of?cial acts and policies of those who represent them as public of?cials and public employees. 5 ILCS ll?iOlr I. The 2010 amendments to 01A were intended to strengthen the public policy of open government by declaring a strong presumption in favor of disclosure, and setting the high bar of ?clear and convincing evidence? for exemption that a public body must meet. 5 ILCS 140! 1.2 (??Presumption. All records in the custody or possession of a public body are presumed to be open to inSpection or copying. Any public body that asserts that a record is exempt from disclosme has the burden of proving by clear and convincing evidence that it is exempt?). Under this statutory framework, the Illinois Appellate Court has consistently held, in Gekas, Watkins, and Kalven, that records of police misconduct allegations must be available to the public, and do not qualify under any of the narrow exemptions to FOIA. The Appellate Court ?rst addressed the right of public access to police misconduct records in 2009 in the Gekas case. The plaintiff had ?led a misconduct complaint against a deputy sheriff, and made a FOIA request for all complaints against the deputy sheriff when the police department?s internal investigation declared that the plaintiff had not been mistreated. Gekas, 393 Ill. App. 3d at 574. The sheriff argued that misconduct allegations that were deemed ?unfounded? by internal police investigations were exempt from FOIA. Id. The Appellate Court disagreed, holding that if ?the Act allowed a public body to deny access to complaints that it deemed to be unfounded, defeating the Act would be as easy as declaring a complaint to be unfounded.? Id. at 585. The court emphasized that access to these records was a necessary cornerstone of a citizen?s public duty to monitor government: To monitor the Sangamon County sheriff's office to ensure it is being conducted in the public interest, citizens might want to see whether the Division is performing a fair and objective investigation of complaints. They might want to see whether complaints that the Division determined to be unfounded are really unfounded. Obviously, citizens cannot perform this critique (which section 1 calls nothing less than the people's ?duty?) if so- called ?unfounded? complaints are exempt from disclosure for the tautological reason that the public body decided they were unfounded. Such an exemption would throw a cloak over potential wrongdoing and insulate of?cials from political accountability. Id. As a result of this public need, the Gems court held that misconduct allegation records, whether founded or unfounded, bear on the o?icer?s duties as a police officer, and therefore disclosure would not invade the of?cer's personal privacy. Id. Just three years later, in Watkins, this Court reiterated that police misconduct records are not exempt under OIA and thus must be produced. A prisoner appealed the denial of his FOIA request for misconduct records against certain police detectives that the prisoner accused of torturing him to confess to a crime he did not commit. Watkins, 2012 IL App (I st) l00632 at 1-3. This Court confirmed its earlier ruling in Galena that police of?cers lack personal privacy interests in investigations into their misconduct because those records bear on their public duties. Id. at 24-25. In addition, the Court rejected the argument Plaintiffs bring here?that misconduct records are exempt under the Illinois Personnel Records Review Act (IPRRA) through the 01A exemptions applicabie to records speci?cally prohibited from disclosure by other state laws?holding in no uncertain terms that ?les are not protected from disclosure under the Personnel Record Review Act.? Id. at 7, 45. In doing so, this Court affirmed, once again, the bedrock principle that ?the purpose of FOIA is to open governmental records to the light of public scrutiny.? Id. at 11 14. This Court con?rmed its ruling that records related to police misconduct complaints are not exempt, and must be produced under FOIA, for the third time in the [Calvert case in 2014. It held that CR5 and litigation-generated ?repeater lists? of officers repeatedly charged with misconduct, covering misconduct allegations that dated back thirteen years, were not subject to the adj udicatory proceedings exemption under Section because are instead part of an investigatory process that is separate and distinct from disciplinary adjudications.? 2014 App (lstreaching this decision, this Court rejected the argument that the 20l 0 amendments to FOIA were intended to override the Gekas decision and conceal these police misconduct records from public scrutiny: There is no indication in either the text of the statute or its legislative history that the change was intended to affect the meaning of the section as it related to employees. When it amended FOIA the legislature made no reference to Gekas, which implies that the amendments were not intended as a response to our decision in that case there is no basis to conclude that this amendment, enacted approximately one month alter Gekas was decided, was an effort to br0aden the scope of the adjudication exemption for public employees, and certainly not to exempt CR register documents. Moreover, defendants' interpretation is at odds with the purpose of 01A, which is to open governmental records to the light of public scrutiny. Defendants? interpretatiOn [would] render a broad category of public documents immune to public scrutiny. That is contrary to the intent of FOIA. Id. at 17-19 (internal citations and quotations omitted). It also rejected the argument, like Plaintiff?s argument here, that repeater lists are not subject to FOIA production because they should not have existed in the ?rst place: Defendants contend that the [repeater lists] were therefore not created in the ordinary course of business, and are thus not disclosable because they are not encompassed by de?nition of ?public records.? Defendants? narrow interpretation of what constitutes a public record is not supported by the plain language of the statute[.] [The repeater lists] are subject to FOIA and must be disclosed unless an exemption applies. Id. at 28?29. As in Kat'ven, the CPD possesses and control the records requested here. Also as in Kaiven, the requested records are not exempt under FOIA. The trial court clearly erred in enjoining their production. Indeed, the Kalven court made a special point of addressing this issue ?[g]iven the likelihood of further litigation on this issue." Id. at 26. Knowing the public interest at stake in police misconduct data over long periods of time, this Court ordered disclosure of records such as the information at issue here. Despite the clear line of authority mandating broad transparency into police misconduct records, the trial court undertook a strained reading of the statutory language and the Watkins decision to rule that the public has no right to see police misconduct records more than four years old if an arbitrator says so. To do so, the trial court con?ned Watkins to the pro?201 0 amendments of the various statutes at issue and claimed that the Illinois legislature?s amendments to FOIA and IPRRA in 2010 overruled the Watkins decision. Amtet' agree with the thorough and detailed arguments by Defendants and Intervenor Chicago Tribune demonstrating why the trial court erred, but offer a few points of particular signi?cance in light of the broad issues at stake in this appeal. First, contrary to this Court?s repeated rulings that complaints of police misconduct, founded or otherwise, bear on of?cers? public duties, the trial court?s ruling was grounded on the erroneous premise that police of?cers have privacy interests in misconduct complaints against them. Record on Appeal, Vol. 3, 00061.2 Second, this Court has rejected the trial court?s mistaken notion here that the IPRRA takes precedence over 01A requests when it comes to these precise records: 2 The trial court had similarly refused to follow the Geitas decision four years earlier in another case. See Transcript, Oct. 26, 201 O, in Drank Driving Defense Lawyers v. try of Chicago, I24, attached hereto as Exhibit A, at 40 (?Just in case somebody might be unclear about how I feel about this, I earnestly believe that to the extent it applies to unfounded complaints of wrongdoing, the Gekas opinion is pernicious and manifestly wrong. Gekas was, however, decided by the appellate court, and as is well known, the appellate court tells me how to think?); at 44-45 conclude that an unfounded CR is not information that bears on the public duties of public employees for that reason I don?t think FOIA was intended to play into that sort of mentality, that's not the purpose of the statute?). l0 Defendant ?rst claims that disclosure is prohibited under state law in that the CR ?les are ?records of disciplinary action? under the Personnel Review Act and, therefOre, are protected from release under section 8 of the Personnel Review Act. We do not agree. Watkins, 2012 IL App (lst) 100632 at ll 4] (internal citations omitted). Nothing in the 2010 amendments undercuts this principle, and the argument that minor technical changes in the 2010 amendments overruled priorjudicial interpretations has already been rejected in Kat'ven. Third, the trial court ignored that this Court held in Kalven that the purpose of the 2010 amendments was to eXpand FOIA, not contract it, and certainly not to create a sea change in the law of access to police misconduct files through technical amendments to the FOIA provisions creating exemptions for records prohibited from disclosure by other laws (a requirement already in place at the time of Watkins). Finally, and in any event, IPRRA, as amended, made plain that the only records that it protected from disclosure under were performance evaluations. 320 ILCS 40r11 (?This Act shall not be construed to diminish a right of access to records already otherwise provided by law, provided that disclosure of performance evaluations under the Freedom of Information Act shall be prohibited") This Court has conclusively determined that misconduct allegations and investigation records are not ?performance evaluations,? and so IPRRA is irrelevant entirely. Watkins, 2012 IL App (1 st) 100632 at 1 22. This Court should not countenance the trial court?s disregard of binding precedent and should therefore overturn the injunction below. trial court?s ruling was inconsistent with the purpose of FOIA and ignored the public interest in police misconduct tranSparency. The public interest in this appeal is the right to know how the Chicago Police Department and City of Chicago have addressed complaints of police misconduct over time. Public access to historic records of police misconduct allows the public to examine patterns of abuse, which reveal themselves over time periods longer than merely four years. At issue is the public?s right to access information, past and present, about its government?the very essence of FOIA. The trial court failed to give any weight to this profound public interest when interpreting the relevant statutes and entering a preliminary injunction purporting to prevent omici from obtaining and analyzing critical information about police misconduct. The public interest in the documents at issue here is not abstract or conjectural. Front page articles, editorials from Chicago?s leading new5papers, an omicus brief by major national media organizations in federal litigation, and the intervention in that litigation by a majority of the Chicago City Council urging release of these records all testify to the intensity of the public interest here. See Af?davit of Jamie Kalven from Kolven litigation, attached hereto as Exhibit B, at 133?36; Editorial, A Welcome Ray of Sunshine at the Police Department, Chi. Sun-Times, Jul. 21, 2014; Editorial, Prying Open Police Misconduct Files, Chi. Trib., Jul. 14, 2014; Editorial, Chicago Should Turn Over Police Files, Chi. Trib, Mar. 24, 2014; Editorial, Stop Hiding Names in Cop Complaints, Chi. Sun-Times, Oct. 19, 2007; Editorial, Eliminating Rogue Cops, Chi. Trib., Jul. 22, 2007; Bond v. Utreros, 2007 WL 2003085 (ND. Ill. Jul. 2, 2007), rev?d on other grounds, 585 F.3d 1061 (7th Cir. 2009). Today, people in Chicago and across the United States are calling for increased public scrutiny into allegations of police misconduct. Jennifer Steinhauer and Elena Schneider, Thousands More}: During a Day of Protest Over Police Conduct, NY. Times, Dec. 13, 2014, at Wesley Lowery, How Many Police Shootings Year? No One Knows, Wash. Post, 12 Sep. 8, 2014 (criticizing lack of any comprehensive database or record of police shootings over time). In the summer of 2014, the City of Chicago recognized this public interest when it adopted a policy of releasing investigative ?les relating to allegations of police misconduct as part of a ?continued effort to enhance transparency and police accountability.? July 13, 2014 Press Release, http:f?mmvcityofchicagoorgf 0RoomfPress%20Releases/20 I 4fluly/07Among the City officials who have expressed the need for broader disclosure of these police records are Mayor Rahm Emanuel (calling the new policy a step forward in the effort to ?build trust and partnership between residents and the Chicago Police Soperintendent Garry McCarthy (the policy will allow ?the Chicago Police Department [to] further demonstrate that it takes allegations of police misconduct seriously?), and Chicago Corporation Counsel Stephen Patton (?it will serve a greater public good to allow these investigations to be subject to open records laws?) Id. at 2-6. These records are critical for many reasons, but chief among them is to address one of the most troubling chapters in Chicago history: convictions procured through false confessions obtained through torture. In 2009, the state legislature created the Illinois Torture and Relief Commission for the purpose of reviewing convictions, some dating back more than thirty years, that may have been obtained through a confession coerced by Jon Burge or officers under his command. State of Illinois Torture Inquiry and Relief Commission, Mission and Procedures Statement (2009). Highlighting the importance of examining misconduct complaints that date back more 13 than Four years, the Commission?s primary means of ful?lling its mission (a mission equally shared by the public generally in furtherance of its duties to monitor government using FOIA) is to examine the sorts of documents at issue here, including complaints that date back to the 19?Us??records that, under the trial court?s ruling, apparently could be destroyed if an arbitrator says so. Its work is but one of many examples of why it is of utmost importance to preserve police misconduct ?les, and there are no interests in secrecy worthy of serious consideration when compared to the public interest in combating police torture. Indeed, even the United Nations Committee Against Torture is ?particularly concerned at the reported current police violence in Chicago,? and Specifically noted how dif?cult it was ?to hold police of?cers and their employers accountable for abuses? due to ?the lack of statistical data available on allegations of police brutality and the lack of information on the result of the investigations undertaken in respect of those allegations.? November 2014 Report, Shared?VaZODocuments/USAHNT_ at 26. See also United States ex. real. Maxwell Gilmore, 37 F. Supp. 2d 1078, 1094 (N .D. Ill. 1999) (?It is now common knowledge that in the early to mid-19805 Jon Burge and many of?cers working under him regularly engaged in the physical abuse and torture of prisoners to extract confessions. Both internal police accounts and numerous lawsuits and appeals brought by suspects alleging such abuse substantiate that those beatings and other means of torture Occurred as an established practice, notjust on an isolated basis?); Tanya Simon et al., Of?cer Herrera Goes Pabiic, CBS 60 Minutes, Feb. 11, 2009; Jennifer Chen et al., Hidden?om Pubiic View, Chi. Rep, Oct. 19, 2007. I4 Consistent with FOIA and democratic principles, it is thejob not only of government-appointed torture commissions, but also of journalists, public interest organizations, and the public at large to investigate and rectify patterns of police misconduct: The simple act of restoring this information to the public sphere will have immediate bene?ts. It will reduce the spaces in which abusive of?cers can operate with impunity. It will enable citizens and their elected representatives to better perform their roles. It will restore public trust, thereby contributing to the community-police relations on which effective law enforcement depends. It will relieve the Chicago Police Department of the costly, depleting, and self- defeating effort not to know what it has the power to know about patterns of police abuse, thereby enhancing the quality of law enforcement it provides the citizens of Chicago. Above all, it will restore to its proper place a core principle of democratic accountability embodied in the Illinois Freedom of Information Act. Exhibit at 40. in contrast, Plaintiffs? and the trial court?s attempt to withhold the documents at issue from the public in?icts multiple harms. First, secrecy enables the small percentage of the force who have been repeatedly charged with misconduct to believe that they can engage in abusive practices with impunity. Craig Futterman, Melissa Mather, Melanie Miles, The Use cfSratisticn! Evidence to Address Police Supervisory and Disciplinary Practices: The Chicago Police Department '5 Broken System, 1 DePaul for Soc. Just. 251, 289 (2003). Seventy-?ve percent of of?cers charged with the most abuse in the CPD were never subjected to discipline. Id. at 279. Allowing more transparency and greater public scrutiny into how the CPD handles investigations against of?cers charged with misconduct creates greater accountability and lifts the veil of secrecy that facilitates abuses. Second, secrecy regarding police misconduct costs Chicago taxpayers millions of dollars each year in compensation to victims of abuse and legal fees. ?Over the past 15 decade, the City of Chicago has spent more than $500 million on police-related settlements, judgments, legal fees and other costs.? Andrew Schroedter, Beyond Barge, Better Gov?t Ass?n, Apr. 3, 2014, Wrongful convictions in Illinois have resulted in 926 years of imprisonment of innocent people and have cost Illinois taxpayers over $214 million. Police misconduct is the most common cause of wrongful convictions. John Conroy and Rob Warden, The High Costs of Wrongful Convictions, Better Gov?t Ass?n, Jun. 18, 201 l, _1.aspx. The majority of these wrongful convictions? 55 out of 85?originated in Chicago. id. Third, secrecy hampers the police in solving crime. As former Seattle Chief of Police Norman Stamper explained, withholding information about police misconduct makes communities less safe by diminishing public trust in law enforcement, straining community-police relations, and making citizens less likely to cooperate with, provide information to, and come to the aid of the police. A?idav it of Norman Stamper, attached hereto as Exhibit C, at 1 1-13; see also Tom R. Tyler, Enhancing Police Legitimacy, 593 Annals of the Am. Soc. of Polit. Soc. Sci. 84, 35 (2004); Sunshine Tom R. Tyler, The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing, 3? Law Soc?y Rev. 513, 517 (2003) (Concluding that perception of police legitimacy predicts compliance with law as well as willingness to both cooperate with and empower police officers??if they [the police] are not viewed as legitimate, their actions are subject to challenge, their decisions are not accepted, and their directives are ignored?) Wrongful convictions also compromise public safety: 85 innocent Illinois residents were incarcerated for at least 14 murders, ll sexual assaults, 10 kidnappings and over 60 other felonies, while the real perpetrators remained at large. Conroy, The High Costs of Wrong?il Convictions. Finally, efforts to hide public records of complaints of police abuse undermine the essential monitoring role of the public envisioned by the General Assembly. The Appellate Court has recognized that the desire of public of?cials for secrecy?here the members of the various police unions?is pervasive and pernicious and must be met with transparency through FOIA: We are not surprised that governmental entities . . . generally prefer not to reveal their activities to the public. If this were not a truism, no FOIA would be needed. Our legislature enacted the FOIA in recognition that (I) blanket government secrecy does not serve the public interest and (2) transparency should be the norm, except in rare, specified circumstances. The legislature has concluded that the sunshine of public scrutiny is the best antidote to public corruption, and courts are duty-bound to enforce that policy. Better Gov'tAss'n v. Blogojevich, 386 Ill. App. 3d 808, 818 (4th Dist. 2008). Civilian involvement in police accountability through access to historic misconduct records is a necessity, in part, because criminal and civil litigation proceedings are slow and rarely have any bearing on police of?cers personally. Kevin King, Effectively Implementing Civilian Oversight Boards to Ensure Police Accountability and Strengthen Police? Commnnity Relations, 12 Hastings Race Poverty LJ. 91, 96-97 (2015). In fact, approximately 20% of internal investigations take more than two years to complete. Safer et at, Preventing and Discrpiining Police Misconduct, attached hereto as Exhibit D, at 42. Dramatizing the public need for the information here, the plaintiffs have made no secret that their ultimate goal is to destroy these records to ensure that they will never be available for public review. C. 00045-46. As one federal court observed in ordering the public release of CR records: ?The only way to end [police abuse] is to 17 evaluate and reevaluate past practices. Unfortunately, the City cannot accomplish this on its own. Some of these issues require public debate and appropriate media scrutiny.? Doe v. Marsalis, 202 F.R.D. 233, 238 (ND. Ill. 2001). And as Federal District Judge Joan Humphrey Lefkow noted: The public has a signi?cant interest in monitoring the conduct of its police of?cers and a right to know how allegations of? misconduct are being investigated and handled. 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, [police] simply cannot be permitted to operate in secrecy. Bond v. Utreras, 2007 WL 2003085 at rev?d on other grounds, 585 F.3d 106] (7th Cir. 2009). These are the critical issues at stake in this appeal. Amici respectfully ask this Court to uphold its longstanding precedent and reverse the trial court?s decision. Respectfully Submitted, T?pzn (Scar) One of Amicus Curiae?s Attorneys Craig B. Futterman Mandel Legal Aid Clinic 6020 S. University Chicago, IL 60637 (773) 702-96l Attorney No. 91074 Attorney for Jamie Kalven and John Conroy 18 Matthew Topic Loevy Loevy 312 N. May St., Suite 100 Chicago, IL 60607 (312) 789-4973 Attorney No. 41295 Attomey for Better Government Association CERTIFICATE OF COMPLIANCE WITH RULE 341 I certify that this brief conforms to the requirements of Rules 341(a) and The length of this brief, excluding the pages containing the Rule 341(d) cover, the Rule 34l(h)(l) statement of points and authorities, the Rule 341(c) certi?cate of compliance, the certi?cate of service, and those matters to be appended to the brief under Rule 342(a) 1 is 18 pages. Reapectfully Submitted, Tm (00 One of Amicus Curiae?s Attorneys Craig B. Futtennan Matthew Topic Mandel Legal Aid Clinic LoeVy 3L Loevy 6020 S. University 312 N. May St., Suite 100 Chicago, IL 60637 Chicago, IL 6060? (7'13) 702-9611 (312) 739-4973 Attorney No. 91074 Attorney No. 41295 Attorney for Jamie Kalven Attorney for Better and John Conroy Government Association l9 Exhibit A Deposition of 10/26f2010 STATE OF ILLINOIS SS: COUNTY OF IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT - CHANCERY DIVISION DRUNK DRIVING DEFENSE LAWYERS, Plaintiff, VS. NO. 10 CH 1124 CITY OF CHICAGO, a Municipal Corporation, Defendant. REPORT OF PROCEEDINGS at the hearing of the above?entitled cause before the Honorable JUDGE PETER Judge of said court, on October 26, 2010, commencing at 9:59 o'clock a.m. APPEARANCES: KOMIE AND ASSOCIATES, by MS. SARAH E. TONEY (One North LaSalle Street, Suite 4200 Chicago, Illinois 60602) appeared on behalf of the plaintiff; HONORABLE MARA S. GEORGES CORPORATION COUNSEL, by MS. ANNA M. STRANGE Assistant Corporation Counsel {30 North LaSalle Street, Suite 800, Chicago, Illinois 60602w2402) appeared on behalf of the defendant. Page 1 i Urlaub Bowen Associates, Inc. 312?781-9586 Deposition of MOTION, 10/26/2010 Page 40. to a degree far greater than seems to me to be remotely warranted in order to preserve the public interest. Just in case somebody might be unclear about how I feel about this, I earnestly believe that to the extent it applies to unfounded complaints of wrongdoing, the Gekas opinion is pernicious and manifestly wrong. Gekas was, however, decided by the appellate court, and as is well known, the appellate court tells me how to think. I am bound to follow Gekas unless I can find contrary authority to Gekas, either in the Supreme Court or in other appellate court decisions. Lieber v. Board of Trustees of 'Southern Illinois University, 176 Ill.2d.401 arguably supports Gekas by holding that a court cannot make an independent determination regarding whether disclosure under the statute would amount to a clearly unwarranted invasion of personal privacy. On the other hand, Gek- or Lieber undercuts Gekas to the extent that Gekas would I. - 1.: r. 2 .c 95.4w .34 . .- and?; -. ??bmh- a . J: . Urlaub Bowen Associates, Inc.312?781?9585 or. -- i-e-h-h. .. H. Deposition of MOTION, 10/26/2010 Page-41 1 apply to material which is otherwise appropriately 2 in the personnel file of a public officer or police 3 officer. So one might say that Lieber goes in both 4 directions with regard to Gekas. Lieber's per se 5 approach is Gekas?like. Its determination of the 6 legislature meant what it said about the 71(b} 7 exemptions is not Gekas-like. 8 Copley Press v. Peoria Terminal 9 Star, 359 ll.App.3d.321, on the other hand appears 10 to this Court to be contrary to Gekas, at least to 11 the extent that the Copley court is concerned that 12 FOIA not override protections found elsewhere, 13 either in FOIA itself or in the general law. 14 Stern V. Wheaten Warrenville 15 Community Unit School District 200, 233 Ill.2d.396 16 is the most recent expression that I am aware of by 17 our Supreme Court of how FOIA is to be interpreted. 13 In my View, Stern is contrary to Gekas; although, 19 the subject matter in Stern is different from the 20 subject matter of Gekas in that Stern concerned an 21 employment contract and Gekas concerned a 22 complaint. 23 What Stern does is, I think, three 24 things. -First, Stern sensibly recognizes that Urlaub Bowen Associates, Inc.312r781-9586 Deposition Of MOTION, 10/26/2010 Page 42 . the fact that a given document, in this case an employment contract, may be physically maintained within a public employee's personnel file does not per se insulate the document from disclosure, which is really no different than saying that a client cannot make his documents privileged by handing them to his lawyer and saying, Here, keep these, which we all know is true. But what Stern does is to apply that refusal to accept that anything in the personnel file is automatically exempt. In the context of a careful review of what exactly we?re looking at, Stern says that the key test, the underlying test, is that the disclosure of information that bears on the public duties of public employees shall not be considered an invasion of personal privacy and because the act says that one cannot take such information, that is information that actually bears on the Public duties of public employees, and exempt it by sticking it in a personnel file, which I think is perfectly sensible. The holding in Stern expressed at pages 413 and 14 of 233 Ill.2d that, quote, In the present case, the district simply failed to Urlaub Bowen Associates, mm? -. -: sumac-.33.; - Deposition Of MOTION, 10/26/2010 Page 43 establish that the per se exemption for personnel records encompasses employment contracts, end of quote, represents, I believe, a finding by the court a two?step finding by the court. I Step one, the employment contract is manifestly information which bears on the public duty of the public employee; and, therefore, two, sticking the employment contract in the personnel file, even though otherwise appropriate, does not exempt it. The same point is made in different wording at page 411 of 233 Ill.2d. Applying the Stern analysis here, I conclude that a CR which was determined.to be founded, that is to say accurate, qualifies as information that bears on the public duties of public employees. And I think that is so whether the ultimate result of the CR is the imposition of a disciplinary sanction or not. For instance, let us suppose an extreme hypothetical where a citizen asserts that an officer broke his arm during a traffic stop. The circumstances are somewhat murky, but the appropriate police authorities conclude that, Yep, Urlaub Bowen Associates, - Deposition of MOTION, 10/26/2010 Page 44 i the officer broke the citizens arm; but on the - whole, they?re going to let it go this time. No sanction is imposed against the officer. That CR, in my View, is still a public record because the facts which it describes have been determined to be valid or determined not to be untrue. If on the other hand somebody files a CR that says that Officer So-and-So beat turns out that Officer So?and-So was at that very time 24 miles away on the other side of the City arresting a robbery suspect, the notion that that utterly false CR constitutes any sort of public record is, to my way of thinking, silly. It's public dissemination would serve, at best, only to defame the officer. And the circulation of false statements about public officials, although is something that, it being an election year, I suppose we see a lot of, neither enriches our public discourse nor helps the public official who can't possibly respond to every false statement. I conclude that an unfounded CR is not information that bears on the public duties of public employees for that reason. My comfort Urlaub Bowen Associates, Deposition of MOTION, 10/26/2010 Page 45 9 with that conclusion is buttressed.by the strong suspicion that if there were a general rule that wrongdoing complaints filed against police officers were always and everywhere disclosable to the public under FOIA, there are a number of groups in this City who would undertake to target police officers with the filing of frivolous complaints. I don't think FOIA was intended to play into that sort of mentality, that's not the purpose of the statute. Hence, I repeat, there is, in my view, a big distinction between founded and unfounded CRs. And to repeat once again, for purposes of these cross motions, my definition of founded is not having been determined to be factually inaccurate. I don't think it is necessary to a determination that a GR is founded that a particular disciplinary sanction has been imposed. For that reason, I'm going to continue r~ well, what I'm going to do, I guess, is I'm going to find for purposes of Code Section as in David, that FOIA covers CRs which -.. . I .- -.: . an.? - .- . . Urlaub Bowen Associates, Deposition of MOTION, 10/26/2010 Page 46 are not unfounded, and I'm going to enter and continue the motions so that counsel can determine with regard to the CRs listed in the materials that I have which of them, if any, falls in the not unfounded category. If there is a dispute about whether a particular CR does or does not fall within the unfounded category, counsel will advise the Court of the dispute; the Court will review the particular CR or CBS in camera and make a determination. This is an attempt to deal with genuinely important policies on both sides of this question. And as nuanced a way as the Court can, consistent with the Court's understanding of existing authority and the language of FOIA, and although I have arrived at a position resembling the current wording of FOIA by another route and although the position I have arrived at arguably is a little bit broader in terms of disclosure than the 2010 version of FOIA, I'm comforted that the legislature is thinking along approximately the same lines, or appears to be. So thank you both. I appreciate the Urlaub Bowen Associates, Inc.312?781?9586 Exhibit IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTIWENT, CHANCERY DIVISION JAMIE KALVEN Plaintiff, V. 09 CH 51396 THE CITY OF CHICAGO, THE CHICAGO POLICE DEPARTMENT, Defendants STATE OF ILLINOIS SS. COUNTY OF COOK AFFIDAVIT OF JAMIE KALVEN 1, Jamie Kalven, having been duly sworn and under oath, state: 1. I am a writer and a consultant. 2. I requested certain documents from the Chicago Police Department under the Illinois Freedom of Information Act. These documents bear on matters of deep public interest: the names of police of?cers who have accumulated the most citizen complaints and the handling of such complaints by the Chicago Police Department. 3. When the City denied my request. I brought this lawsuit. 4. In order to focus the issues in the case, I agreed to narrow the litigation to the City?s denial of the following documents: three lists of police of?cers charged with the most abuse during the period 2001-2006 (Bond repeater lists); two lists of police of?cers charged with the most abuse during the period 2002 to 2008 (Moore repeater lists); and COrnplaint Register files of ?ve of?cers charged with a pattern of racial abuse in Chicago public housing (Bond CR files}! 5. My decision to limit the litigation to these documents was based on two considerations. First, I tailored my claims to materials I know the City can readily produce. Second, I have direct knowledge of the strong public interest in these documents. 6. This af?davit provides my relevant expertise, background, and experience; (ii) the bases for my opinions; and my professional opinions about the nature and strength of the public interest in the requested documents. Expertise, Background, and Experience 7. My work centers on two areas: the legal tradition of freedom of speech; and issues of violence, public safety, and law enforcement. 8. I am the editor of A Worthy Tradition: Freedom of Speech in America (Harper Row, 1988) by my late father, Harry Kalven, Jr. 9. I am the author of Working With Available Light: A Family '3 World A?er Violence (W. W. Norton, 1999). 10. I have reported extensively in national and regional publications (among them, the Chicago Tribune. Chicago San~Times, State, and in These Times), in the web publication The View From The Ground,2 and on public radio about conditions in public 1 In my FOLK requests I refer to the Bates number stamped on the requested documents produced by the Chicago Police Department in the Band and Moore cases, to make the information as easy as possible to identify and retrieve. My request. though, is for the information contained in those lists, which I understand the Chicago Police Department maintains in its electronic data bases for storing police misconduct complaints. I am happy to accept this information in paper or electronic form, whichever is easiest for the Department to produce. 2 housing and about patterns of police abuse and impunity. I have also made it a practice to helpjoumalists doing stories on these subjects by providing background and access to sources.3 1 1. From 1998 to 2006, I served as technical advisor to the Local Advisory Council (LAC) at the Stateway Gardens public housing representative body elected by residents and recognized by HUD. In that capacity, I worked closely with the resident leadership and participated in negotiations with the Chicago Housing Authority (CI-IA), HUD, and private developers. A major concern in the context of these negotiations and in direct meetings with the Chicago Police Department was public safety. I also deveIOped a ?grassroots public works? initiative designed to extricate young men from gangs and the criminal economy. 12. Since 2005, have served as consultant to the Homer Residents Committee, which represents the plaintiff class?residents of the Henry Homer Homes public housing development?under the consent decree in Henry Homer Mothers Guild 1.2. CHA and U114 Among my responsibilities is to represent residents on a committee that meets to address security concerns in the Homer-Westhaven neighborhood. Other members of the committee include representatives of the CHA, the developers, and the commanders of the I 1th, 12th. and 13th Police Districts. 13. From 1994 to 1997, I was co-director of Turn A Lot Around, a program of the Resource Center. Undertaken in partnership with the City of Chicago?s Department of 3 This aspect of my work was described in a story titled ?Man on the Street? on the NPR program On the Media, November 8, 2002 I 1/08f03). 730 F. Supp. 51 1, 516 (ND. 111. 1991) the Environment, this program brought together volunteers from across the city to work together with residents of South Side neighborhoods to transform vacant lots into community gardens, parks, and playgrounds. The aim of the program was to use such neighborly activity to build relationships and to displace anti-social activities.5 14. In 1994, I co-founded Vigil Against Violence with Dr. Sokoni Karanja of Centers for New Horizons and Rev. Susan Johnson of Hyde Park Union Church. The purpose of this initiative was to make visible community resistance to violence. From 1994-1993, a group gathered on the ?rst Sunday of each month at the corner of 35th and State Streets on the grounds of Stateway Gardens to read aloud .the cumulating names of homicide victims on the South Side that year.6 Each month the Chicago Police Department provided us with the names of homicide victims; and on a number of occasions police of?cials, including the Superintendent and Deputy Superintendent, participated in the vigils. Bases for my opinions 15. It is my professional opinion that the requested documents are of compelling public interest. The bases for this opinion and the information I considered in forming it are described below. 16. As technical advisor to the Stateway Gardens LAC, one of my functions was to work to build more constructive relations between the community and the police. I met 5 The program was the subject of a PBS documentary??Tum-A-Lot-Around: Rebuilding Our Comm unities?win a Series titled ?Making Peace? on grassroots anti ?violence initiatives that aired in 1995 ?5 See ?Vigil Against Violence? (a photo essay by Patricia Evans), The View From The Ground, October 6, 2002 violencehtml). repeatedly with successive Chicago police commanders of the Public Housing South unit about resident concerns and had frequent informal contact with officers who came on the grounds of the development. I encouraged residents to attend CAPS (Chicago Alternative Policing Strategy) community police meetings and to ?le complaints with the Of?ce of Professional Standards (OPS) or the lntemal Affairs Division when they felt they had been subjected to abuse. 17. My role as technical advisor to the Stateway Gardens LAC also included an ombudsman function: residents came to me with their concerns about, among other things, what they felt to be instances of police abuse. Over time, I became increasingly aware of the degree to which a small number of abusive of?cers can subvert the best intentions of both the Chicago Police Department and the community. On multiple occasions, I witnessed how traumatized residents were in the aftermath of violent encounters with abusive of?cers. Having closely observed and written about the impact of violent crime in other settings, I saw many of the same patterns among Stateway residents; among them, hyper-vigilance, residual fear, dif?culty navigating a world suddenly rendered unpredictable, and the collapse of strategies for feeling safe. In addition, victims of police abuse at Stateway often expressed a heightened sense of exposure and vulnerability clue to the fact that the abuse had been in?icted by those to whom they looked for protection. 18. In a number of cases brought to my attention in my role as advisor to the Statevvay LAC, police abuse had severe consequences not only for individual victims but also for their families and the community as a whole. I have seen innocent people lose their freedom as a result of being falsely arrested. I have observed young men and women struggle with dif?cult challenges, as they return to their families and community a?er false imprisonment. And I have witnessed the damaging impact of false arrests on the family of the individual arrested?the loss not only of income but also of emotional support essential to the family?s well?being. in some instances, I have seen false arrests result in the loss a home to an entire family through the application of ?One Strike? policy? 19. Because I worked continuously to counteract it, 1 was acutely aware of the dynamic by which individual instances of police abuse shape community attitudes. Stateway residents were disinclined to call the police for assistance or to cooperate in police investigations. This made it much harder for the police to solve crimes. Over the years, I had a number of conversations with officers about how frustrating and demoralizing it was for them to be seen by residents in the same light as abusive of?cers. 20. In many instances 1 observed, the impact of police abuse on individuals and the community was compounded by the failure of the Chicago Police Department to hold the of?cers involved accountable. For Stateway residents, these systemic failures were not abstractions but were manifest daily in the continued presence in their community of officers whom they had repeatedly witnessed committing crimes. Many residents did not report such crimes, because they were afraid of reprisals andfor because they believed the Office of Professional Standards, the agency tasked with investigating civilian complaints of misconduct, was ineffectual. But some did report abuse by of?cers. Yet nothing Under ?One Strike? policy, the family may be evicted if any family member or a guest is arrested for drug-related activity. A conviction is not necessary to trigger eviction proceedings. Even if the individual is acquitted in the criminal case or the case is thrown out, it is possible for the eviction to go forward. Thus, a false arrest can have the grave consequence of loss of housing. happened. As a result, residents frequently expressed a sense of abandonment and vulnerability. 21. One example among many: On uly 9, 2001, dozens of people, myself among them, witnessed an incident in which a Chicago Police Department squad car struck a man named Nevles Traylor as he rode a bicycle across the grounds of the deveIOpment. Mr. Traylor was pinned against a fence by the squad car. The driver?Of?cer Raymond Piwnicki of the Special Operations Unit?jumped out of the car and struck him repeatedly in the head. Among the witnesses were several of?cers from Public Housing South who were as outraged by the incident as the resident witnesses. One of them exchanged sharp words with Of?cer Piwnicki and intervened to extricate Mr. Taylor from under the squad car- Mr. Traylor was falsely charged and jailed with two felony drug possession counts. Months later, a Circuit Courtjudge dismissed the charges and found that Piwnicki and his partner had arrested him without probable case in violation of his constitutional rights. Piwnicki proved to have accumulated ?fty-six citizen complaints during the seven years prior to the incident, only one of which had been sustained by OPS. Despite the presence of dozens of witnesses (including police of?cers) to an incident that occurred half a block away from their of?ce, OPS investigators found the complaint of police misconduct in the Traylor incident ?not sustained.? The Skullcap Crew 22. Against this background, I undertook to document patterns of police abuse in public housing. I focused my reporting on a team of gang tactical of?cers from Public Housing South who was a daily presence at Statcway. Known as ?the Skullcap Crew? (because they often wore knitted wool caps), they were ?gures of legend on the street. According to residents, these ?ve of?cers routinely committed a wide range of crimes. They were reputed to prey on the drug trade?extorting money, drugs, and guns from drug dealers?in the guise of combating it. They were also said to hold intensely racist views under as one resident described them), to indiscriminately beat residents and to take particular pleasure in harassing women and children. Members of the crew, residents reported, would tell them, ?We?re the real police.? 23. For several years, I collected stories about the Skullcap Crew and investigated incidents in which they were said to be involved. Then, in 2005 and 2006, I wrote a series of seventeen articles under the title Kicking the Pigeon.2 24. Kicking the Pigeon told the story of Diane Bond, a Stateway resident who alleged that she was repeatedly subjected to abuse by the Skullcap Crew in 2003 and 2004. Among other things, she reported, the officers invaded her home, beat her and her teenaged son, forced her to disrobe and expose her genitals, destroyed religious objects sacred to her, subjected her to verbal abuse, threatened her with false arrest, and forced her son to beat another resident for their amusement. 25. Central to Kicking the Pigeon were questions about the impunity of abusive of?cers. It was clear on the ground that a small number of of?cers were reSponsible for most of the abuse. Yet the Chicago Police Department?s systems of supervision, monitoring, and investigation seemed incapable of detecting these bold patterns. Why? What underlying conditions made it possible for abusive of?cers to operate with impunity? a 26. In 2005, civil rights attorneys from the Edwin F. Mandel Legal Aid Clinic ofthe University of Chicago Law School brought a federal civil rights suit against the Chicago Police Department on behalf of Ms. Bond. 27. A stark picture of institutional dysfunction emerged from the Chicago Police Department data that came to light in the Bond case. For example, during 2002-2004, citizens ?led 10.149 complaints alleging police abuses in the categories of excessive force, illegal arrest, illegal searches, and racial and sexual abuse. Only 124 of these complaints were more than 1 percent. 1f "meaningful discipline" is de?ned as a suspension of 7 days or more, only 19 of the 10,149 complaints resulted in "meaningful discipline"?a rate of less than 2 per 1,000 complaints. Groups of officers like the Skullcap Crew who accumulated extraordinary numbers of' complaints of of?cial misconduct were not disciplined or even identified for monitoring by the Chicago Police Department, raising serious public questions about its systems for investigating and addressing abuse. For example, certain of?cers had earned more than 50 of?cial misconduct complaints within just a 5-year period without any discipline or notice by the can.9 28. The Court in Bond entered an agreed protective order in order to enable the parties to freely exchange information in the course of discovery. This order limited public dissemination of, among other things, the CR ?les of members of the Skullcap Crew and lists of of?cers charged with the most abuse during the period 2001 to 2006. On March 15, 2007, soon after the Bond parties agreed to settle, I filed a motion to intervene in the case for the purpose of challenging that protective order. 9 Craig Futterman, Melissa Mather, and Melanie Miles, The Use of Statistical Evidence to Address Police Supervisory and Disciplinary Practices: The hicogo Police Department ?5 Broken System, 1 DePaul Journal for Social Justice 251 (Spring 2008). 29. On July 2, 2007, Judge Lefkow granted my motion. She found that "good cause? did not exist to keep the documents secret. In reaching that conclusion, she rejected the City's argument that the privacy interest of the of?cers outweighs the public interest in the disputed documents. A?er noting that I had agreed to the redaction of private information such as addresses and Social Security numbers, she also rejected the City's contention that the documents are part of employee personnel ?les and thus protected from disclosure: That information, though personal, has a distinct public character, as it relates to the defendant of?cers' performance of their of?cial duties. Without such information, the public would be unable to supervise the individuals and institutions it has entrusted with extraordinary authority to arrest and detain persons against their will. With so much at stake, the defendants simply cannot be permitted to operate in secrecy. 30. At the time of Judge Le?tow?s ruling, the Chicago City Council was debating proposed reforms of the City?s system for investigating complaints against Chicago police of?cers. The documents at issue in Bend were directly relevantto their deliberations. On July 9, 2007, the City appeared before Judge Lefkovv seeking a stay of her Order to enable it to prepare an appeal to the US. Court of Appeals. I argued that members of the City Council needed access to the Bond documents, in order to perform their legislative role on a matter of great public importance. Judge Le?tow responded by lifting the protective order with respect to the City, so that it would not be legally constrained from providing the documents to any alderman who requested them. 31. On July 16, 2007, the U.S. Court of Appeals for the Seventh Circuit issued a stay pending the City's appeal of Judge ruling. 1" Bond v, Utreras, 2007 WL 2003035, at *3 July 2, 2007), rev'd on other grounds, 535 F.3d 106] (7th Cir. 2009). 10 32. On July 17, 2007, two days before the City Council?s vote on the proposed ordinance, Mara Georges, the corporation counsel, conveyed to all ?fty aldermen copies of the lists described above with the names of the officers redacted.H 33. The City's pursuit ofa stay ofJudge Lefkow's Order and its release ofthe redacted documents to the City Council provoked a massive public outcry. A headline in the Chicago Sun-Times asked "?What Are They Hiding?" and both the Sun-Times and Tribune published editorials calling for the release of the documents at issue. The extensive coverage of the controversy by the local and national media power?rlly demonstrated the intensity of the public interest in the documents at issue. '2 34. The redacted lists provided evidence of how the public interest would be served, if the City did not withhold the names of of?cers accused of abuse from the public. Although the of?cers? names were redacted on the lists provided the alderman, their unit assignments were provided. This enabled journalists to determine that the top three of?cers on the list of those with the most citizen complaints against them were members of the Special Operations Section-the unit, since disbanded, in which a number of of?cers had been indicted on charges that included racketeering, kidnapping, and murder for hire}15 List of of?cers with more than ten complaints in a ?ve year period codespdf); list of of?cers with more than ten complaints in a ?ve year period assigned to Public Housing South list of of?cers with more than ten complaints in a ?ve year period referred to CPD ?early intervention? programs '1 A partial listing of press coverage is provided on The View From The Ground It does not include the extensive radio and television coverage. '3 Frank Main, ?Among the Worst," Chicago SundTimes, October 7, 2007. ll 35. The public interest in the information at issue was powerfully embodied by the fact that a majority of the Chicago City Council?28 of 50 alderrnenuultimatelyjoined my position in the case before the Seventh Circuit. They were represented by, among others, Judson Miner, former corporation counsel, and Matthew Piers, former deputy corporation counsel. The aldermen asserted ?an even more pressing need for this information than the general public?: The Aldermen are actively engaged in ongoing efforts to improve police oversight in Chicago in furtherance of their duty as elected of?cials and public trustees. . . . it is imperative that the City Council have access to documents that may disclose patterns of illegal activity within the Police Department so that it can investigate and prOperIy discharge its oversight responsibilities. 36. The public interest was also dramatized by an amicns brief in support of my position submitted by major media companies, including the New York Times, Chicago Tribune, Chicago Sun- Times, Los Angeles Times, Associated Press, and the Gan nett and Copley chains, which asserted that the information at issue is ?of vital interest to their readership."15 37. On November 10, 2009, the United States Court of Appeals for the Seventh Circuit overruled Judge Lefkow's decision on the grounds that I lacked standing to '4 Petition of 28 City of Chicago Aldermen for Leave to Intervene and Motion to Obtain Access to Certain Documents Regarding Oversight of the Chicago Police Department, Bond v. Utrerns, Case No. 04-2617, Dkt. 285 (Oct. 22, 2007). Brief Amieus Curiae in Support of Af?rmance of Order in Favor of lntervenor-Appellee Jamie Kalven, The Associated Press, CL Chicago, Inc., The Sun-Times Company, Chicago Tribune Company, GateHouse Media lnc., Gannett Co.. Inc, The Illinois Press Association, Lee Enterprises Inc., and the New York Times Company, Bond 11. Uireras, Case No. 07-265] in US. Court of Appeals for the Seventh Circuit, at p. ix (Dec. 3, 2007}. 12 intervene in Bond. It did not reach the substantive issues in the case. The Le?cow decision has been followed by various district courtjudges.? 38. The Court of Appeals noted that its ruling did not prevent me from seeking the documents from the City under the Illinois Freedom of Information Act.? In doing so, I am continuing the effort I began more than four years ago to gain access to public information improperly withheld from the public. Opinions 39. On the basis of my professional expertise and experience, I believe the documents at issue in this case are quintessential public information. It is a ?rst principle of our democracy that public of?cials possessing great powers are subject to a high degree of public scrutiny. We vest police of?cers with the power to detain, to arrest, to use force, and, under certain circumstances, to kill. With these powers comes public accountability. 40. The simple act of restoring this information to the public sphere will have immediate benefits. It will reduce the spaces in which abusive of?cers can operate with impunity. It will enable citizens and their elected representatives to better perform their ?5 See v. City ofChicago, No. 06 5462, 2009 WL 2501393, at 1-2 (ND. 111 Aug. 14, 2009) (.I. Shadur); Goidhamer v. Nagode, No. 07' 5286, 2009 WL 3680201, at *2 (.I. Grady); Fuiier v. City ofChicago, No. 09 1672, 2009 U.S. Dist. LEXIS 125727, at *2 (ND. Ill. Nov. 20, 2009) (1. Hibbler}; Clark v. Gay ofChicago, No. 10 1303, 2010 WL 3419464, at *1 (J. Der-Yeghiayan); Range! v. City of Chicago, No. 10 2750, 2010 WL 3699991, at *3 (.1. Lefkow); Keys City ofChicago, No. 09 4162, Dkt. 67 Dec. 1'7, 2009) (J. Leinenweber); Macias v. City ofChicago, No. 9 1240, Dkt. 62 at 2 (ND. Ill. March 3, 2010) (J. Valdez); Beach Debois, No. 9 6688, cht. 65 at 5 (ND. 111. May 21, 2010) (transcript of April 21, 2010 proceedings) (3. Castillo). '7 Bond v. Uireras, 585 1:30 1061, 1076 n.10 (7th Cir. 2009) I3 roles. It will restore public trust, thereby contributing to the community-police relations on which effective law enforcement depends. It will relieve the Chicago Police Department of the costly, depleting, and self-defeating effort not to know what it has the power to know about patterns of police abuse, thereby enhancing the quality of law enforcement it provides the citizens of Chicago. Above all, it will restore to its proper place a core principle of democratic accountability embodied in the Illinois Freedom of Information Act. I attest that the above statement is true and correct to the best of my knowledge and belief. Jamie Kalven SIGNED and SWORN to before me this day of 2011 Notary Public 14 Exhibit IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION JAMIE KALVEN Plaintiff v. 09CH51396 CITY OF CHICAGO, THE CHICAGO POLICE DEPARTMENT, Defendants ST ATE OF SS. COUNTY OF SAN JUAN WW I, Norman H. Stamper, having been duly sworn and under oath, state: I. I was a police of?cer for 34 years. the first 28 in San Diego, the last six (1994?2000) as Seattle's police chief. I held police leadership or management positions for 31 years of my career. Since my retirement from law enforcement, I have served as writer, Speaker, consultant, trainer, and expert wimess. Expertise and Background 2. A true and accurate copy of my Curriean Vitae is attached as Appendix 1 to this af?davit. 3. Highlights of my particular expertise and experience in police leadership and management follow. 4. As Chief of Police of the Seattle Police Department I was responsible for executive leadership of the l?OO?member organization. and all policies, practices, and priorities of the agency. 5. During the last ?ve years (1939-1993) of my tenure with the 2,800-member San Diego Police Department (SDPD), I served as the Executive Assistant Chief of Police. In that capacity, I was charged with running all day-to?day operations of the agency, including activities relevant to the issues addressed in this a?idavit: internal affairs, media relations, labor relations, legal liaison, and community relations. 6. Prior to my appointment to the seconddn-cornmand position of was one of four deputy chiefs. At that rank, I headed, successively, each of the agency's bureaus: Management Services, Field Operations (all uniformed of?cers), Personnel Services, and Criminal Investigations. 7. From 1977 to 1982, I was SDPD's Ombudsman and Special Adviser to the Chief of Police. this capacity, in addition to internally-focused duties (con?ict resolution, facilitation of problemusolving workshops, work-related employee counseling), I worked with local and national media, and with citizens and police of?cers to help resolve media-relations issues and community-police tensions. Opinions 8. Throughout my police career, including oil-site observations of numeroos American law enforcement agencies, I witnessed the effects of organizational ?hansparency? or a lack thereof, on public safety, internal accountability, and the community-police relationship. 9. In my professional experience, most police departments habitually rebuff efforts to convince, or cause, them to release information about internal discipline. They object particularly to the release of the names of of?cers who have engaged in patterns of excessive force, racial or other forms of discrimination, or other abuses of authority. 10. In my professional opinion, this resistance is shortsighted in the extreme. The police department is the most visible, arguably most important face of city government, If it operates or is perceived to operate in secrecy, refusing to share vital information with the people it exists to serve, it courts widespread misunderstanding, suspicion, and mistrust within the community. 11. I have observed that, throughout the country, a small number of police of?cers do, in fact, accumulate far more citizen complaints and sustained allegations of misconduct than their peers. The behavior of these few of?cers has a deleterious, disproportionate impact on public safety, organizational effectiveness, ef?ciency, officer saer and morale, and the community-police relationship. I have personally witnessed and studied these effects. I have also observed how the timely release of the offending of?cers? names, in concert with swift and appropriate disciplinary action, makes a huge difference in the public?s trust in and respect for the local police agency. 12. A public?s lack of trust in its police department, particularly in neighborhoods with historically strained conununity-police relations, invariably produces deeply damaging effects. I have observed that mistrustful residents are far less likely to call the police when they have boon victimized by crime, or are in need of other emergency services. They are less likely to provide witness information, inform the poiice of the whereabouts of criminal suspects, report a dishonest or abusive police o?icer, join in community-police efforts to prevent crime and violence, or come to the aid of a police of?cer in trouble. 13. In my experience. refusing to release the names of abusive police of?cers produces a major credibility gap for the city and its police department. Not only does it lead to complaints of a ?cover up,? or raise questions about ?what else they might-be hiding it reduces overall citizen con?dence in and support for the City in general. 14. In San Diego and Seattle, my colleagues and I routinely released or disclosed the names of officers involved in of?cial misconduct. This policy and practice was informed by a fundamental conviction that policing is the public's business, that the public has a right and a need to know how its police department works to prevent and to handle citizen complaints of of?cial police wrongdoing. This policy generated little controversy, and became an accepted way of doing business, resulting in greater public trust. 15. I am in full accord with policies designed to withhold information contained in open personnel investigations, and to refuse to release home addresses, phone numbers, and social security numbers of affected personnel. 16. We grant enormous discretion to our police of?cers. They choose when to stop a person, write a citation, make an arrest, pull their firearms, take a life. Ideally, we select our of?cers carefully, train them well, equip them to do the job properly and safely, and hold them to reasonable standards of performance and conduct. When something goes Wrong?from discourtesy to excessive force to discriminatory or criminal behavior?the entire system suffers. Of inestimable value in preventing this kind of behavior is an informed public. 17. It is my professional opinion that the Chicago Police Department?s release of the material requested by Mr. Kalven would strongly promote the public interest, improve police accountability. and ultimately enhance public safety in Chicago. 18. I was asked by Mr. Craig Futterman to provide this affidavit. In preparation for the af?davit I reviewed the complaint in this case, along with the attached Freedom of Information Act requests and the Chicago Police Department's responses to them. I also reviewed Mr. Kaiven?s affidavit, and no other case materials. 19. My rate is $400 per hour, and I have billed the Mandel Legal Aid Clinic $1,200 for my time on this case- I attest that the above statement is one and correct to the lacst of my howledge and belief. SIGNED to before - . methis dayofi?m?ml a . wok 5 4pm., . 3a; 30:2 Notary till a OELIC fie; ?gkt'mlt. a Go": Exhibit Preventing and Disciplining Police Misconduct An Independent Review and Recommendations Concerning Chicago?s Police Disciplinary System By Ron Safer, Managing Partner, Schiff Hardin LLP, Kish Khemani, Partner, and James O?Keefe, A.T. Kearney DECEMBER 2014 TABLE OF CONTENTS I. INTRODUCTION AND EXECUTIVE SUMMARY .. A. Prevent and Discourage Misconduct Before It Happens .. 4 B. Make the Disciplinary System More Timely, Transparent, Ef?cient, and Uniform .. 6 II. SUMMARY OVERVIEW OF THE PRESENT DISCIPLINARY SYSTEM .. ll A. Filing Complaints about Police Misconduct .. 1 B. Investigating Complaints .. 12 C. Decisions Regarding Disciplinary Action .. 13 D. Challenging Disciplinary Recommendations .. [5 E. The Grievance Process .. 17 F. Appeals to the Chicago Police Board .. [9 RECOMMENDATIONS .. 21 A. Prevent and Discourage Misconduct Before It Happens .. 21 1. Adopt Discipline Guidelines .. 22 2 Implement Education-Based Discipline .. 25 3. Improve Supervisory Accountability and Effectiveness .. 27 4 Utilize Regular Training to Refresh and Recommit Of?cers on Procedural Justice, and Check for Warning Signs of Of?cer Misconduct .. 36 5. Explore the Feasibility and Effects of Equipping Of?cers with Bodyuvvorn Cameras .. 37 B. Improve the Disciplinary System to Make it More Certain, Timely, Transparent, and Ef?cient .. 39 1. Across Entitiea .. 4O 2. Independent Police Review Authority .. 46 3. Chicago Police Department and the Bureau of Internal Affairs .. 51 4. Police Board .. 53 IV. CONCLUSION .. 54 APPENDIX .. SS EXHIBITS .. 71 CHICAGO POLICE DEPARTMENT DISCIPLINARY ASSESSMENT I. INTRODUCTION AND EXECUTIVE SUMMARY A police department?s disciplinary system must encourage good conduct by police of?cers. The process for investigating and resolving complaints alleging police misconduct should align with this objective. In recent years, there have been both external and internal concerns about how complaints of misconduct by members of Chicago Police Department (CPD) are investigated and disciplined. Allegations of a ?code of silence? among Chicago police of?cers reveal the public?s concern with the current disciplinary system. And there are concerns within CPD about the uncertainty that surrounds police discipline, including the length of time it takes to resolve misconduct complaints and a perceived lack of uniformity across punishments for similar violations. In particular, alleged incidences of misconduct by members of the CPD are investigated, and discipline is administered, pursuant to a complicated, time?consuming process. disciplinary system includes three separate City agencies~each created at a different time and for a different purpose?that are tasked with investigating and resolving alleged incidences of police misconduct: the CPD, including its Bureau of Internal Affairs the Independent Police Review Authority and the Poiice Board. As a result, responsibility for identifying misconduct and administering discipline can be fragmented. In addition, historically multiple opportunities to appeal andi'or grieve disciplinary decisions from one body to another at multiple stages in the process lengthened the time between the complaint and resolution, creating uncertainty surrounding the administration of discipline. The City?s collective bargaining agreements (CBAs) with the unions of Department members limit the ways in which misconduct may be investigated and disciplined, further complicating the process. A more efficient, consistent system would bene?t the public, the Department, and the accused individual. The disciplinary system utilized by the CPD is evolving and much progress has been made on this front. For example, as discussed in the body of our Report, some of our concerns about the grievance process and the CBAs have been addressed by new CBAs that were recently approved by the unions. Against this evolving backdrop, AT. Kearney], a leading global management consulting firm headquartered in Chicago and Schiff Harding, 3 national law ?rm also based in Chicago, were asked by the City to conduct an independent review and assessment of what the Department is doing to prevent and address police misconduct and, specifically, to suggest ways the Department can improve. A.T. Kearney and Schiff Hardin agreed to undertake this project pro 50:10, at no expense to the City and it taxpayers. The review and assessment had two primary goals: 0 to determine what more can be done to prevent police misconduct from occurring in the ?rst place; and to ensure that when misconduct occurs, it is reported, thoroughly investigated, and apprOpriately and effectively disciplined. To reach our recommendations, we: 0 studied the current police disciplinary system in Chicago; 1 AT. Kearney is a leading global management consulting firm with of?ces in more than forty countries. Since l926, A.T. Kearney has been trusted advisers to the world's foremost organizations. Afl". Kearney is a partner- owned ?rm, committed to helping clients achieve immediate impact and growing advantage on their most mission- critical issues. For more information, visit: mvwatkearneycom. 2 Schiff Hardin LLP is a general practice law firm representing clients across the United States and around the world. Schiff Hardin LLP has of?ces located in Ann Arbor, Atlanta, Chicago, Lake Forest, New York, San Francisco, and Washington, DC. Schiff Hardin attorneys are strong advocates and trusted advisers - roles that contribute to many lasting ciient relationships. For more information, visit 0 studied the statutes, ordinances, collective bargaining agreements, and other legal requirements that de?ne the current disciplinary system; 0 analyzed data including the number and types of misconduct complaints, and the amount of time it takes to resolve these complaints provided by the three entities charged with investigating and resolving allegations of police misconduct: the CPD, including BIA, IPRA, and the Police Board; - interviewed a wide cross section of people who participate in and/or are affected by the police disciplinary system, such as: current and former CPD members, including senior leadership, bureau chiefs, commanders, lieutenants, sergeants, and rank-and-?le police officers; IPRA leadership, including its chief and deputy chief administrators; Police Board leadership; other public of?cials; and community representatives, ministers and other members of the faith community and representatives from organizations focused on police misconduct and accountability; I analyzed best practices in other municipalities and jurisdictions; I consulted subject matter experts, including Darrel Stephens of the Major Cities Chiefs Association and Merrick Bobb of the Police Assessment Resource Center; and - undertook a thorough review of the relevant literature. Our recommendations fall into two categories. First, we propose changes to prevent misconduct from occurring in the ?rst place, primarily by focusing on guidelines, education and training. We also suggest ways to make the consequences of misconduct more consistent, as well as to more effectively involve direct supervisors in the prevention and detection of misconduct. Second, we suggest improvements to the system for addressing the misconduct that does occur. We offer ways to make IPRA more accessible and transparent for complainants, as well as to accelerate the time from complaint to resolution; recommend adjusting the jurisdictions of BIA, JPRA, and the Police Board; and make suggestions for streamlining processes where possible. A. Prevent and Discourage Misconduct Before It Happens. As is explained in greater detail in the body of our report, to prevent and discourage misconduct before it happens, we recommend that CPD: I Adopt discipline guidelines. The Department would be well served to put officers on notice of the consequences of misconduct, and thus deter more misconduct, by adopting discipline guidelines with a specified range of consequences for each type of misconduct. The severity of the consequence ultimately imposed would depend on factors such as the seriousness of the offense and the officer?s disciplinary record. Adopting discipline guidelines would also address internal concerns among of?cers about uncertainty surrounding the disciplinary process and a perceived lack of uniformity and fairness in the punishment imposed for similar violations. 0 Discharge any of?cer engaging in a ?Code of Silence.? Allegations of police cover-up are an area where the bene?ts of certainty of punishment are so pronounced that there should be little room for ?exibility. Accordingly, the discipline guidelines should make clear that any of?cer found to have deliberately concealed or failed to disclose information about a fellow officer's non-ministerial acts of misconduct will be dismissed. By putting of?cers on notice that any of?cer who intentionally deceives investigators or deliberately withholds information to cover up for a fellow of?cer runs the risk of sacri?cing his job, we believe that the Department will incentivize of?cers to be forthcoming during investigations, rather than to hide behind an actual or perceived ?code of silence.? Implement education-based discipline. At present, education and supplemental training are not disciplinary options within CPD. While traditional punishments may convey the message that an officer?s choice was wrong, such punishment may not address the underlying cause of the of?cer?s misconduct (and thus prevent it from being repeated). Moreover, the punishment may be accompanied by resentment that can last long after the incident. Education-based discipline (EBD) provides an alternative that, for certain offenses and certain offenders, may be a more constructive response to police misconduct because it teaches of?cers how to make better decisions in the future. Improve supervisory effectiveness and accountability. Currently, detecting and addressing misconduct is too often viewed as the exclusive responsibility of those involved in the disciplinary process (BIA and This ignores the critical role and responsibility of direct supervisors in preventing misconduct from occurring in the ?rst place, and when misconduct does occur, taking steps, such as providing counseling and training, to prevent it from recurring in the future. Our suggestions for improvement in this area include: (I) implementing a patrol squad system; (2) expanding the Field Training Of?cer program; (3) enhancing the program for hiring, training, and promoting of?cers; and (4) establishing a supervisor mentoring and evaluation program. Each of these suggestions will make supervisors more directly responsible for and thus more invested in their subordinates? conduct. - Explore the feasibility and effects of equipping of?cers with body-worn cameras. One recently publicized method for addressing concerns about police misconduct is to require patrol and other of?cers who interact with the public face-to?face to wear body cameras. These cameras have many potential bene?ts, including improving relations between the police and the public and reducing instances of police misconduct. But body-worn cameras raise challenges as well, in terms of cost, privacy concerns, and operational and legal implications. For these reasons, we recommend that CPD carefully study the feasibility of body cameras, including by piloting their use by a small number of officers, before implementing this type of program Department~wide. B. Make the Disciplinary System More Timely, TranSpar-ent, Efficient, and Uniform. Our recommendations for addressing misconduct after it occurs center on making the disciplinary system more transparent and uniform and, most importantly, shortening the time between complaint and resolution, thus making discipline more effective when administered. Here we categorize our recommendations by entity (IPRA, BIA, and the Police Board). Once again, each of these recommendations is explained in detail in the body of our report. Across All Entities. Historically, many misconduct investigations have dragged on for years, and, if discipline is recommended, it takes even longer to implement because of the myriad of grievance and appeals opportunities available. That IPRA, BIA, and CPD supervisors use different case management systems adds to the inefficiency and makes it difficult to track and monitor of?cer conduct. We recommend: (1) establishing an 18-month deadline for CPD (including BIA) investigations to be completed, subject to only limited exceptions, and holding whose investigations tend to be more complex and reliant on external witnesses, and thus more time- consuming, to a goal of completing its investigations within 24 months by 2016; (2) streamlining the appeals and grievance processes; and (3) implementing a single off-the-shelf case management system for use by IPRA, BIA, and the Department?s supervisors, and automating the review of disciplinary ?ndings and recommended punishments within this universal system. Independent Police Review Authority. Since 2007, a civilian agency that is independent of CPD, has investigated many of the most serious allegations of police misconduct, including excessive force allegations. To increase credibility and accessibility to the community, we recommend that IPRA create a Community Advisory Board, pilot satellite offices where residents can ?le complaints, and take steps to communicate more clearly the status of investigations. We also have speci?c recommendations for shortening the length of investigations, including by creating a more streamlined process for obtaining af?davits, assigning investigations according to their complexity, and developing periodic deadlines. We would reduce caseload by limiting its review of settled cases to those where either the City Council or chief administrator speci?cally requests review. Finally, we recommend increasing resources so that it can better manage its caseload. Bureau of Internal Affairs. BIA currently invostigates a large number of operational and personnel violations that would be more appropriately and more ef?ciently - handled at the district level. We recommend reducing BlA?s caseload by allowing BIA to transfer these less serious allegations to the district where the accused of?cers are assigned for investigation and resolution. To further increase ef?ciency, we would improve technical systems, including the Department?s performance review system, by updating the system?s interface to make it more user-friendly and geared toward supervisors? needs; encourage mediation of cases; and consolidate appeals into one binding track. To increase transparency, we recommend that BIA issue comprehensive annual reports similar to the reports IPRA releases. Finally we support the Department?s decision to increase the number of personnel assigned to BIA, particularly sergeants, to avoid having of?cers investigate fellow of?cers. Chicago Police Board. To streamline the appeals process, we recommend that the jurisdiction of the Police Board be adjusted to limit its reviewing authority to cases involving the most serious allegations of police misconduct or cases where the recommended discipline falls outside the established guidelines. The Police Board should continue to provide hearings and decisions in separation cases. However, it should not be an avenue of appeal for of?cers to contest discipline that does not involve separation. instead, a single binding track of appeals through the Department, culminating in review by the superintendent, should be the only means for officers to appeal lesser discipline, including suspensions. Finally, we recommend lengthening the disciplinary history of an of?cer that can be considered by the Board from the current five years to ten years. The recommendations that flow from this study are ours alone. They re?ect our judgment, as informed by our research and interviews with individuals who participate in and are impacted by the police disciplinary system. As independent consultants, we were not constrained by the practical realities under which those who operate in the present disciplinary system labor. For example, some of our recommendations require amendments to statues or ordinances. We did not consider the political prospects for these changes. Some recommendations cost money to implement. We did not consider the competing demands on Chicago?s limited ?nancial resources. Some recommendations require changes to collective bargaining agreements. We did not consider whether these changes are feasible. Some recommendations may be subject to challenge based on existing Illinois precedent de?ning due process requirements. We did not consider the likelihood of our recommendations surviving judicial review. Finally, we made our recommendations assuming continued involvement by all organizations that participate in the present disciplinary system. We did not consider whether 1PRA, BIA, or the Police Board should or should not exist. We assumed their existence and continued roles in the disciplinary process. Thus, we do not expect, nor should any reader of this report expect, that all of our proposals will be implemented. At the same time, even during the course of our study, progress has been made toward remedying some of the de?ciencies we identi?ed. The City announced that it will increase transparency by making internal investigation ?les into alleged police misconduct open to public scrutiny. IPRA opened its ?rst satellite of?ce, ?lled vacant positions, converted ?ve intake aide positions into investigator positions, is in the process of hiring an additional mediation attorney, and addressed turnover in its ranks. All police bargaining agreements have been amended to limit and streamline the options for challenging a disciplinary recommendation. CPD made promotions to the rank of Field Training Of?cer (PTO) to provide support and guidance for the surge of cadets who joined the force starting in 2013. CPD also improved training, including training of supervisors: more than 9,500 CPD personnel were trained in ?Procedural Justice? and more than 1,100 FTOs and supervisors received the ?True North" leadership course. BIA signi?cantly augmented its staff. IPRA and BIA changed their procedures to allow investigators to interview accused of?cers earlier in the investigation. in 2014, CPD began piloting a patrol squad system in several districts. Finally, the new CBAs help streamline the disciplinary and grievance process. As discussed in greater detail below, we support the decisions to pursue these initiatives. 10 II. SUMMARY OVERVIEW OF THE PRESENT DISCIPLINARY SYSTEM The disciplinary system as it existed during the course of our review provides the backdrop for our recommendations, particularly those relating to making that system more transparent, uniform, and expeditious. Here, we provide a summary of that system. A more detailed description of the current system is provided in the Appendix of this report. As discussed above, there are three separate agencies that are tasked with investigating or resolving allegations of police misconduct CPD, including and the Police Board. In addition, City ordinances, collective bargaining agreements, and CPD procedures provide multiple opportunities to appeal or grieve disciplinary decisions. A. Filing Complaints about Police Misconduct Each year, there are on average 9,000 complaints of misconduct logged against CPD members. IPRA, which was established in 2007 and operates independently from the Department, is responsible for receiving and logging these complaints. Complaints may come from the community, from internal CPD referrals, or from public reports such as civil lawsuits. After logging a complaint, IPRA assigns the complaint to either itself or the Department to investigate. Where the complaint may involve criminal wrongdoing, refers the case to, and works with, the State?s Attorney?s Office, the FBI, or the US. Attorney?s Of?ce, as appropriate. By ordinance, IPRA is responsible for investigating complaints involving allegations of excessive force, domestic violence, coercion, and bias-based verbal abuse. When a complaint alleges multiple violations, if one alleged violation is within jurisdiction, IPRA retains the entire complaint. IPRA also conducts an investigation any time an officer discharges his or her weapon (including stun gun or Taser) in a manner that could strike someone, a person suffers death or injury in police custody, or an extraordinary or unusual situation occurs in lockup, even if no police misconduct is alleged. IPRA transfers complaints that are not within its jurisdiction to Bureau of Internal Affairs. BIA investigates complaints involving more serious types of misconduct, such as criminal misconduct, bribery or other forms of of?cial corruption, drug or other substance abuse, and driving under the influence. Complaints transferred by IPRA to the Department but not investigated by BIA are investigated and disciplined at the district level, through the accused of?cer?s chain of command. Department directives de?ne 34 categories of less serious allegations, ranging from violating medical roll procedure to tardiness in reporting for duty, that the Department handles at the district level. As of 2012 (the most recent year for which data had been collected at the time of our analysis), IPRA took on average 328 days to resolve a complaint, BIA averaged 215 days, and the districts averaged 142 days. SE Exhibit A. In part, these times re?ect the relative complexity of the complaints handled by each entity: IPRA handles use of force investigations which by their nature tend to involve external parties; BIA focuses primarily on corruption, misconduct, and severe operational issues; and the districts generally handle routine operational and administrative matters. Beyond case complexity, numerous issues impact case duration, including the availability and quality of resources and infrastructure. B. Investigating Complaints With respect to complaints investigated by IPRA or BIA, the investigator contacts the complainant and any witnesses to obtain their statement; questions CPD members other than the accused who may have knowledge of the alleged misconduct; and obtains other relevant evidence, such as police medical reports, videotapes, audiotapes, and forensic evidence. Under state law, IPRA and BIA are required in most cases to obtain a sworn af?davit from the 12 complainant averring that the complaint is true before they can question the accused officer.3 Where the complainant has provided such a sworn af?davit, or where an exception to the sworn affidavit requirement applies, IPRA or BIA will interview the of?cer. In cases that BIA transfers to the districts, the accused officer?s unit commander designates a supervisor within the of?cer?s district to conduct the investigation.4 C. Decisions Regarding Disciplinary Action After completing the investigation, the IPRA or BIA investigator prepares a ?nal report that includes a preliminary ?nding of ?Sustained,? ?not sustained,? ?unfounded,? or ?exonerated.? ?Sustained? means the complaint was supported by suf?cient evidence to justify disciplinary action. ?Not sustained" means the evidence was insuf?cient to either prove or disprove the complaint. ?Unfounded? means the facts revealed by the instigation did not support the complaint the complained-of conduct did not occur). And ?exonerated? means the complained-of conduct occurred, but the accused of?cer?s actions were proper under the circumstances. If the investigator sustains one or more allegations of misconduct, the investigator (or in cases investigated by the investigator?s supervisor, subject to review by a deputy and chief administrator) will recommend discipline. The recommended discipline which must be reasonably related to the seriousness of the offense, and must take into consideration the accused of?cer?s complimentary and disciplinary history may be 3 Under the Uniform Peace Of?cers? Disciplinary Act, 50 ILCS 7'25/1 et seq., and the collective bargaining agreements, a signed, sworn af?davit is required unless the complaint involves allegations of criminal conduct, a violation of the medical policy, or a residency violation; the reporting party is a Department or IPRA member; or there is a sworn af?davit override approved by either IPRA's chief administrator or chief, as appropriate. 4 The accused of?cer's immediate supervisor will be assigned to conduct the investigation unless that supervisor initiated the investigation, witnessed the incident that resulted in a compiaint being ?led, is on extended medical leave, or is on furlough. l3 ?violation noted? no discipline recommended), a reprimand, suspension of up to 365 days, or separation. If a case investigated by IPRA results in a sustained ?nding, chief administrator may recommend discipline to the police superintendent. ?ndings and recommended discipline (other than in separation cases) go through command channel review - during which designated supervisors in the accused of?cer's chain of command have an opportunity to provide comments, and must state whether they concur with the ?nding and recommendation before it is sent to the superintendent. The superintendent then has 90 days to respond or the discipline is deemed accepted. The superintendent is free to impose more severe discipline than the chief administrator recommends; however, if the superintendent wants to impose a iesser amount of discipline (or no discipline at all), she must explain in her response letter why she would depart from the chief administrator's recommendation. The superintendent and the chief administrator then must meet within ten days of receipt of the response letter to discuss the superintendent?s reasons for imposing a different level of discipline and to seek agreement on the proper level of discipline. If the superintendent and chief administrator cannot agree, the chief administrator refers the matter to the Police Board, where the superintendent has the burden of overcoming the chief administrator?s recommendation. The Police Board then assembles a three-person panel to review the case and decide whether the superintendent is justi?ed in departing from the chief administrator?s original recommendation. If a BIA investigator sustains a complaint and recommends discipline, the investigator?s report likewise goes through the command channel review process in non-separation cases. The reviewing supervisors in the command channel provide comments, if any, and state whether they concur with the investigator?s recommended diSposition and discipline. The BIA chief reviews 14 these materials and makes a ?nal recommendation, which is sent to the superintendent for a ?nal decision. D. Challenging Disciplinary Recommendations Alter IPRA or BIA recommends discipline, the accused officer has a range of options depending on the duration of the recommended discipline. Although the police bargaining agreements were recently amended to limit and streamline the options for review, traditionally these options have afforded of?cers an opportunity to signi?cantly delay or prevent implementation of punishment. In 20l2, following the ?ling of a grievance, the average case took 1,029 days, or almost three years, to reach a final diSposition. What follows is a description of the various options to challenge a disciplinary recommendation in effect until just recently, followed by a description of the improvements realized through recent negotiations. In cases where BIA or recommended a suspension of 15 days or less, it used to he that the of?cer could appeal that recommendation through the Discipline Screening Program (DSP). In DSP appeals, the Department and the Fraternal Order of Police (FOP) would meet and attempt to agree on a punishment. In IPRA cases, an IPRA representative also attended the meeting, and any agreement was subject to the approval of chief administrator. If agreement was reached, and if the of?cer accepted the recommended punishment, the of?cer signed a waiver of her right to use the grievance procedure. The recommendation was then sent to BlA?s assistant deputy superintendent to implement. If the Department and the POP failed to reach an agreement or agreed but the of?cer rejected their recommendation, the superintendent would resolve the disagreement. The superintendent could decrease, but not increase, the originally recommended punishment. If the of?cer disagreed with the superintendent?s recommendation, the of?cer could grieve the superintendent?s decision. If the superintendent 15 recommended a six- to fifteen-day suSpension, the of?cer could ask the Police Board to review the superintendent?s recommendation. In cases where BIA or recommended suspension between 16 and 30 days, the officer previously had four options. First, the officer could accept the recommended punishment, which would be forwarded to the superintendent to impose. The superintendent, in turn, could increase or decrease the recommended punishment. If the superintendent increased the recommended punishment, the of?cer could appeal to the Police Beard or through the grievance procedure. Second, the accused of?cer could appeal the recommended punishment to the superintendent by ?ling a written report and offering new or additional evidence. The superintendent then decided upon and imposed a punishment. Third, the of?cer could use the grievance procedure, which is described below. Fourth, the of?cer could obtain Police Board review. Critically, if the officer chose the second, third, or fourth options and was dissatisfied with the result, the officer could then pursue additional, alternate methods of review. In cases where BIA or recommended suspension between 31 and 365 days, the accused of?cer had the same four options (and the same ability to pursue more than one method of review), although the grievance process and proceedings before the Police Board were more elaborate, as we explain below. Police Board review traditionally has been and continues to be mandatory (and the grievance process unavailable) in cases where separation is recommended. As a result of the recent contract negotiations, the Discipline Screening Process and direct appeal to the Superintendent have been eliminated, and the other options for challenging a disciplinary recommendation have been modi?ed. Going forward, in cases where IPRA or BIA recommends suspension of ten days or less, the of?cer may either accept the recommended penalty or challenge the recommendation through a streamlined, binding summary opinion 16 process. If the recommended suspension is between 11 and 30 days, the of?cer has three options: she may (1) accept the penalty, (2) use the binding summary opinion process, or (3) ?le a grievance. (Only if the FOP declines to advance the grievance to arbitration may the of?cer elect Police Board review.) If IPRA or BIA recommends suspension between 3] and 365 days, the of?cer again has three options: (1) accept the penalty, (2) ?le a grievance, or (3) seek Police Board review. Perhaps most important, of?cers may no longer pursue more than one method of review. Once they select a method for challenging the recommended discipline, that election becomes the exclusive review mechanism. Finally, for investigations conducted at the district level in cases that result in a sustained ?nding, the review process is unchanged. The investigating supervisor imposes discipline by preparing a summary punishment action request (SPAR), which explains the incident, the accused officer?s record, and the recommended penalty. The accused officer may either accept the punishment or request a hearing, and then appeal through her chain of command. If summary punishment is administered more than three times within a twelve-month period, the of?cer may contest the fourth and any subsequent application of summary punishment using the appeal and grievance processes available to challenge BIA and decisions. E. The Grievance Process Under both the prior and current collective bargaining agreements, the grievance procedure consists of four steps, although the new contracts make meaningful changes to the fourth step, the arbitration process. First, the of?cer submits a grievance to her immediate supervisor within the shorter of seven working days or 35 calendar days after the events giving rise to the grievance. Second, the immediate supervisor forwards the grievance to the unit?s commanding of?cer. The two then discuss the matter with the accused of?cer in an attempt to resolve the issue outside of the formal grievance process. If this fails, or if the complaint is of a 17 certain nature (such as one alleging discrimination based on gender, age, or race), the unit?s commanding officer makes a recommendation regarding punishment and forwards the recommendation to the Department?s Management and Labor Affairs Section (MLAS). Third, if either the officer or the FOP is dissatisfied with the commanding officer?s recommendation, either the FOP (on behalf of the of?cer) or MLAS, or both may request that the case be mediated. Fourth, if mediation is unsuccessful, either party may demand arbitration. There are two forms of arbitration: full and expedited. Under the full arbitration procedure, a neutral third party is chosen to resolve the dispute, and the arbitrator?s decision is binding (meaning the of?cer serves any punishment ordered by the arbitrator immediately). A recommended punishment of 3] to 365 days is eligible for full arbitration only. For cases involving suspensions of 30 days or less, the prior collective bargaining agreements gave the FOP the option to choose expedited (or fast-track) arbitration as an alternative to full arbitration. Cases submitted for expedited arbitration were first screened using the summary opinion process. The parties selected one arbitrator, who reviewed the relevant materials and recommended a punishment. The parties could agree to accept the summary opinion. If either party rejected the summary opinion, the case was submitted to a different arbitrator for expedited arbitration, under rules agreed upon by the FOP and the Department, and the second arbitrator?s recommended punishment became binding. Thus, in cases where the POP chose expedited arbitration, the of?cer would not serve any punishment ordered until either the parties accepted the ?rst arbitrator?s recommendation or the second arbitrator reached a binding determination. Under the new contracts, by contrast, the summary opinion process has been revised to result in a binding determination, and is available as an option for the disposition of cases involving suspensions of up to 30 days. Further, an expedited (and binding) arbitration 13 procedure is available for grievances challenging a recommended suspension greater than ll days. F. Appeals to the Chicago Police Board The Chicago Police Board is an independent body made up of nine private citizens, appointed by the Mayor with the City Council?s consent. In addition to resolving disciplinary disputes between the police superintendent and chief administrator, the Police Board also serves as an avenue of appeal and review of cases involving serious police misconduct; considers applications, conducts interviews, and submits to the Mayor a list of three candidates for the superintendent?s position when that position is vacant; and adopts the rules and regulations governing the Department. If the superintendent wishes to discharge an officer or suspend her for more than one year, the superintendent must file charges against the of?cer with the Police Board, and the officer is automatically entitled to a Board hearing. An of?cer who has been suspended for a period of 31 days to one year is not automatically entitled to a hearing, but she may request one. The superintendent must then ?le charges with the Board, and the same hearing process follows. A Police Board hearing is similar to a trial. After the superintendent files charges, the case is assigned to a hearing officer, who sets an initial status date. Generally, the of?cer obtains an attorney, and the City?s Law Department represents the superintendent. Both parties engage in discovery and otherwise prepare for an adversarial evidentiary hearing. A hearing o?icer presides over the hearing much like a judge and traditional legal rules of evidence apply. The superintendent has the burden of proving the charges against the accused officer by a preponderance of the evidence, and the officer is innocent until proven guilty. The hearing is open to the public, a court reporter transcribes the proceedings, and witness testimony is 19 videotaped. The transcript and the videotaped testimony are then sent to the Police Board members for their review. Meeting in executive session closed to all but Board members and staff), the Board ?rst determines if the accused of?cer is guilty. If the Board finds the of?cer guilty, the Board determines the appropriate penalty by examining the of?cer?s complimentary and disciplinary history. The Board then issues a written decision, noti?es the of?cer and the superintendent, and publishes the decision on the Board?s website. The time from start to ?nish for Police Board review can be for example, the Police Board takes an average of six months to review a separation case. Officers suspended for between six and 30 days may also request Police Board review. While this review is not as involved as a Police Board hearing, it still requires Board participation. The accused of?cer submits a written statement and any supporting documents to the Board; a hearing of?cer prepares a written report based on the accused?s statement, the BIA or IPRA ?le, and any rebuttal from the superintendent or chief administrator; and the Board receives the hearing of?cer?s written report, as well as an oral report, at the Board?s meeting. Based on this information, the Board decides whether to sustain some or all of the allegations and, if necessary, determines the penalty. In determining a penalty, the Board cannot exceed but may reduce the penalty approved by the superintendent. The Board then issues a written decision, which it sends to both the officer and the superintendent. If either the accused of?cer or the superintendent disagrees with the decision of the Police Board, she may appeal by ?ling a petition for administrative review in the Circuit Court of Cook County. Pursuant to the Administrative Review Law, the circuit court?s decision is appealable as of right to the Illinois Appellate Court and then, through a successful petition for 20 leave to appeal, to the Illinois Supreme Court. Alternately, the accused of?cer may challenge the decision of the Police Board through the grievance procedure. RECOMMENDATIONS A police department?s disciplinary system must encourage good conduct by police of?cers. The process for investigating and resolving complaints alleging police misconduct should align with this objective. current disciplinary system is evolving and much progress has been made on this front. Work remains to be done, however, and our analysis identi?ed the following areas for improvement: 0 The consequences of misconduct should be made more certain. - Discipline should be designed to discourage future misconduct. - The time from complaint to resolution should be as short as possible, without sacri?cing thorough investigation. It Supervisors should be held accountable for the actions of their subordinates. - Officers? conduct should be tracked and monitored. With these goals in mind, and the present disciplinary system as the we reached two sets of recommendations. The ?rst set implementing discipline guidelines and complaint-based training and improving the supervisory framework - is designed to prevent misconduct. The second set focuses on addressing misconduct when it does occur by making the disciplinary process more uniform, timely, transparent, and ef?cient. This involves, among other improvements, adjusting the jurisdictions of the three entities that deal with complaints about police misconduct CPD (including BIA), IPRA, and the Police Board and streamlining their processes. A. Prevent and Discou rage Misconduct Before It Happens Here, we propose changes to prevent misconduct from occurring in the first place. 21 1. Adept Discipline Guidelines Currently, the Department does not use formalized discipline guidelines. Instead, decision makers within CPD and IPRA rely on historical precedent or a sense of what seems just under the circumstances to decide how much, and what type of, discipline to impose in individual cases. Historical precedent is not always accurately applied, however, and different actors may have different views about whatjustice requires in a given circumstance. As a result, there is a perception among Department members that discipline for similar infractions varies from district to district and from shift to shift. This perception is aggravated by what many view as a lack of transparency in the process by which discipline is imposed. Because there is a common belief that similarly situated police of?cers who engage in misconduct are not uniformly disciplined, both officers and the public lack con?dence in the disciplinary system, and that system, in turn, is vulnerable to charges of discrimination and favoritism. To address these problems, we recommend that the Department and IPRA deve10p and implement formal discipline guidelines similar to the Federal Sentencing Guidelines. Speci?cally, we recommend that the Department and adopt discipline guidelines with a matrix specifying a range of possible penalties, and available aggravating and mitigating factors, for each type of misconduct. Through these guidelines, the Department and IPRA will bring consistency and transparency to the disciplinary process and, in addition, reduce the time and effort required to impose discipline in individual cases. The advantages of consistency and transparency must be balanced against the bene?ts of case-specific discipline, however. Accordingly, we recommend that the Department and IPRA have the ability to consider aggravating and mitigating factors when assessing, from within a range of penalties, the appropriate amount and type of discipline. Those factors might include: (1) the of?cer's motivation (evidence that the officer acted for personal gain, in anger, or with 22 prejudice might favor an enhanced penalty, for example, while evidence that the of?cer acted to protect the public interest might favor a lesser penalty); (2) whether the of?cer engaged in knowing misconduct or committed an unintentional error; (3) the amount of harm, actual or threatened, the officer?s misconduct caused; and (4) the officer?s prior disciplinary record. As long as the penalty ranges are relatively narrow, the Department and IPRA will gain the bene?ts of certainty and uniformity while maintaining the flexibility to impose discipline that ?ts the individual characteristics of each offense and offender. Allegations of police cover-up should be an exception to this approach, however. This is one area in which the bene?ts of certainty are so pronounced that there should be little room for ?exibility. Accordingly, we recommend that any of?cer found to have deliberately concealed or failed to disclose information about a fellow officer?s non-ministerial acts of misconduct be dismissed. By putting police on notice that any officer who intentionally deceives investigators, or who deliberately withholds information from them, to cover up for a fellow officer runs the risk of sacrificing his job, we believe that of?cers will be incentivized to be forthcoming during misconduct investigations, rather than hide behind an actual or perceived ?code of silence.? To be sure, developing, re?ning, and gaining approval for discipline guidelines with penalty ranges that are narrow enough to promote consistency but broad enough to account for case-speci?c factors will be a laborvintensive endeavor. And implementing guidelines will falter without the buy-in of all stakeholders. But the Department has made progress on this front, having already implemented a ?schedule of penalties? for matters handled at the district level through summary punishment. In addition, since our review began, both BIA and IPRA have begun (and, in case, completed) drafting discipline guidelines for matters within their respective jurisdictions. We recommend that these guidelines be reviewed and implemented. 23 Other municipalities, including Denver, Vancouver, and Tucson, as well as Baltimore County and the State of Washington, have successfully adopted guidelines for disciplining police misconduct that would provide useful benchmarks for Chicago. Adopting discipline guidelines will have the additional benefit of providing a means to give the police superintendent a more meaningful role in determining discipline in cases investigated by IPRA. At present, for violations that are within jurisdiction, chief administrator provides an initial discipline recommendation to the superintendent. If the superintendent disagrees with the chief administrator?s recommendation, and the superintendent and the chief administrator cannot agree on a different level of discipline, the matter goes to the Police Board, where the superintendent has the burden of overcoming the chief administrator?s recommendation. Historically, the Police Board has more often than not sided with the chief administrator. This division of authority is controversial. On the one hand, the superintendent, as the head of the police force, is accountable for how of?cors conduct themselves. A system like the current one that deprives the superintendent of ?nal authority over discipline undermines her ability to implement reforms, effectuate constructive change, and lead the Department effectively. On the other hand, however, was established to address the widely perceived need for an independent, civilian body to both investigate allegations of police misconduct and provide an opinion regarding the appropriate discipline in individual cases. In lieu of the current system, we propose that in cases where IPRA sustains a complaint in a matter within its jurisdiction, IPRA should have authority to make a recommendation to the superintendent regarding the applicable guideline level and the presence of aggravating or mitigating factors. If the superintendent agrees with recommended guideline, she would 24 have authority to select a punishment within that guideline?s penalty range. If the superintendent and IPRA do not agree, the matter will go to the Police Board for resolution. We believe this approach will strike an apprOpriate balance between preserving the superintendent?s ability to effectively manage the police force and maintaining critical role as an independent arbiter of complaints about police misconduct. Indeed, under our recommended approach, IPRA will remain unique in its ability to recommend discipline; although other municipalities, including New York City, have conferred authority to investigate and make ?ndings about alleged misconduct on civilian boards analogous to IPRA, the decision about what discipline to impose in individual cases rests entirely with the police superintendent in these municipalities. Not only would our recommendations preserve independent role while protecting the superintendent?s authority, but our proposal also would create signi?cant ef?ciencies. Under the current division of authority, the back-and-forth between the superintendent and and the referral of all disagreements to the Police Board, often prolongs the time between complaint and discipline. By contrast, we would make intervention by the Police Board an option only in cases where the superintendent and chief administrator cannot agree on the applicable guideline level. By limiting the number of matters referred to the Police Board, the time from complaint to discipline should be shortened in many cases. 2. Implement Education-Based Discipline A disciplinary system should be designed to encourage proper conduct. Punishing misconduct does not always accomplish this goal. For example, some infractions occur because the of?cer lacks the tools to deal with a situation or an understanding about how to select appropriate options when faced with dif?cult circumstances. In these situations, the traditional punishments of reprimand or suspension run the risk of making the offending of?cer bitter without helping her to perform her responsibilities more effectively. In other words, punishment 25 merely relays the message that the of?cer?s choice was wrong. Education-based discipline (EBD) goes further: it teaches the of?cer to make better decisions in the future. To be sure, certain violations (such as covering up a fellow of?cer?s misconduct) are so egregious that education is not an appropriate option, and certain of?cers, such as repeat offenders, are not candidates for EBD. However, for other offenses and offenders, education can be the most productive response to police misconduct because it directly addresses the infraction?s root cause. In addition, because EBD is imposed pursuant to a voluntary agreement between the of?cer and the employer, EBD provides an opportunity to streamline disciplinary proceedings, conserve investigatory resources, and reduce the time between complaint and discipline. At present, education and training are not disciplinary options within the Department. Accordingly, we recommend that the Department adopt a program of complaint-based training. Chicago would not be a trailblazer in this regard. Beginning in 2008, the Los Angeles County Sheriff?s Department (LASD) instituted a EBD program, and other cities have followed suit, adopting EBD programs tailored to their speci?c needs. Today, the Las Vegas, Nevada Metropolitan Police Department; the Newport News, Virginia Police Department; the Sacramento, California Police Department; and the Seattle, Washington Police Department all use EBD to address police misconduct in appropriate circumstances. Chicago could learn from the experience of these municipalities when designing and implementing a EBD program, and the LASD has offered to serve in an advisory capacity. Although any EBD program Chicago adopts should be tailored to the Department?s specific needs, there are several basic principles we believe will work well in Chicago. Speci?cally, education should be offered as an alternative to punishment to any of?cer accused of misconduct punishable by suspension of ?ve days or less, unless the alleged offense is a repeat violation of 26 an offense for which the of?cer has already elected to receive EBD or an offense deemed unavailable for EBD.5 The accused of?cer would be offered the education option at the time she is informed of the complaint against her. When accepting EBD as an alternative to traditional punishment, the of?cer would be required to admit the alleged misconduct, waive her right to ?le a grievance or appeal, and participate in appropriate training. The of?cer?s commanding of?cer would select appropriate training from a recommended set of classes available at the police training academy or an outside entity, and/or alternate training such as community engagement. The challenge in implementing a program would be to ensure that the Department has the necessary classes available and the resources to deliver them. We believe the Department is well-positioned on this front. The Department?s Education and Training Division offers many classes comparable to those taught in the LASD program. For example, the Education and Training Division also currently offers classes focusing on problem solving and self-management, skill enhancement, boundary recognition, substance misuse and abuse awareness, and character reinforcement all critical components of an effective EBD program. 3. Improve Supervisory Accountability and Effectiveness Effective supervision is one of the most important means of monitoring and improving officer conduct. Sopervision is critical not only for detecting misconduct after it occurs but also for preventing misconduct before it happens. One of the observations that came out of our conversations with current and former police officers and command staff, however, is that discovering and addressing misconduct is too often viewed as the responsibility of IPRA and BIA, and not of the offending officer?s immediate supervisor and chain of command. This is 5 is not available in the LASD program for the offenses of excessive force, domestic abuse, sexual harassment, and relations with subordinates. 2? perhaps not surprising given the past emphasis on independent investigations of misconduct and the elaborate process that has developed over the years for addressing disciplinary issues. In our view, however, this attitude is misguided and must be changed. Immediate supervisors and the chain of command should be the primary means of monitoring of?cer conduct and addressing misconduct, thereby collectively ensuring that subordinate of?cers perform at their best and most professional. This means, among other things, that supervisors should be held accountable for the conduct of the of?cers under their command. We have several suggestions for enhancing supervisory accountability and ef?cacy. 3. Implement a Patrol Squad System We recommend using a ?patrol squad system? pursuant to which each patrol sergeant is responsible for developing and monitoring a designated group of officers. The patrol squad system gives sergeants the opportunity to get to know, to coach and mentor, and to monitor the officers in their squad, and the of?cers gain the benefits of consistency in supervision. Equally important, a patrol squad system creates a single point of accountability, the of?cer?s patrol sergeant, who is ultimately responsible for the conduct of each of?cer under her command. In the current ?rotational system,? by contrast, each CPD of?cer may have multiple patrol sergeants as supervisors, limiting the sergeants? ability to develop the officers under their command and creating inconsistencies in management styles and expectations. Equally problematic, there is no single point of accountability. Because no one sergeant is reSponsible for monitoring a given officer, it is much more dif?cult to hold a supervisor accountable if that of?cer engages in misconduct. We acknowledge that moving the Department from a rotational system to a patrol squad system may require changes to the sergeant-of?cer ratio and may add complexity to scheduling. However, we believe the bene?ts associated with moving to a patrol squad system 23 management consistency and a single point of accountability outweigh any detriments. The Department began piloting a patrol squad system in three districts at the beginning of 2014, and we encourage the Department to continue this initiative. b. Improve the Field Training Of?cer Program After completing classroom training at the Academy, each new CPD of?cer serves a probationary period during which she is paired with a series of Field Training Of?cers (FTOs) for three 23-day rotations through one district. In this way, new of?cers gain exposure to each of the three time shifts within a district. The FTOs monitor the new officers and prepare daily performance reports for the of?cers under their charge, evaluating them on driving, reporting, communication skills, and demeanor. Ideally, FTOs are assigned to new of?cers on a one-to?one ratio. The FTC) program thus provides new of?cers with their first exposure to full-time police work, and FTOs are vital to training new of?cers. Our interviews with current and former police of?cers con?rmed how instrumental FTOs are in translating what recruits learn at the Academy to how they conduct themselves as of?cers. If FTOs undermine rather than reinforce the behavior and values taught at the Academy and send the message through their words and actions that the way things are ?actually? done in the ?real world? differs from what they learned at the Academy, then those ?real world? behaviors and values may be the ones that probationary officers embrace for the remainder of their careers. However, the PTO position historically has been understaffed, there has been no FTO training since 2007, and FTOs are not formally evaluated on their performance as FTOs. Moreover, although FTOs receive a higher salary than others at the rank of police officer, being an FTO is not looked upon as a part of the path to promotion. Given the 29 importance of the PTO program to the success of new of?cers and, in turn, to the Department?s success, we recommend a number of changes to improve the program. First, we support the Department?s decision to grow the pool of FTOs which was signi?cantly increased in 2013 to address that year?s influx of 1,000 recruits to 150 of?cers. This will ensure an effective FTO-to-trainee ratio. Moreover, we recommend that the Department maintain its PTO pool at a level of 150 going forward to accommodate any future increases in new recruits. Second, to incent of?cers to apply to become FTOs, we recommend that the Department make prior service as an FTO a requirement, or at least a factor to be considered, in determining whether a police officer is promoted to sergeant. Not only will this encourage quali?ed of?cers to seek out the PTO position, it also will help to improve the pool of candidates for sergeant. Third, we recommend that police of?cers be selected for promotion to FTO based on a combination of interviews, recommendations, merit, and test scores rather than through the current practice of relying exclusively on test scores. In particular, we recommend that district supervisors be consulted when determining whether an of?cer under their command will be promoted to FTO. This will strengthen the PTO selection process. Fourth, we recommend that FTO training be improved, both by updating the PTO training materials and by instituting regular training. As noted, the Department has not conducted FTO training since 200?. ?Training the trainers? should pay dividends to the fledgling officers under the tutelage of these FTOs. Finally, we recommend that the Department create a process for evaluating the performance as FTOs. At present, sergeants regularly evaluate the of?cers under their command, yet performance as an FTO is not a subject for evaluation. The Department should 30 identify criteria, including any patterns in performance of charges, for sergeants to use when assessing FTOs. We believe that this change, which can be accomplished within the current evaluation system, will help to ensure that FTOs diligently ful?ll their duties and thus improve the FTC) program. e. Improve the Hiring, Training, and Promotion of Supervisors We have several recommendations for improving the efficacy of CPD supervisors, which we believe will, in turn, enhance the supervisors? ability to monitor and prevent misconduct. First, we recommend that the Department institute a sergeant mentorship program similar to, but more informal than, the PTO program. Currently, newly promoted sergeants receive training at the Academy but no formal ?on-the~job? training. Our interviews with current and former sergeants suggest that this is an area ripe for improvement. One of the most challenging transitions in any police career is from of? cer to sergeant, because new sergeants are required for the ?rst time to supervise and monitor other of?cers. With only classroom training to prepare them for these important duties, the Department members we interviewed commented that they felt ?thrown to the wolves? on first assuming their role as sergeant, and that they would have bene?tted from mentorship by one of their more experienced counterparts. Any sergeant mentorship program need not be overly formal or Instead, we recommend instituting a requirement that each new sergeant shadow a senior sergeant?selected for this role by the district commander for one month. This would provide an opportunity for new sergeants to observe their more senior counterpart as they perform the tasks for which sergeants are responsible, including initiating and imposing SPARs, participating in BIA investigations, and managing prisoner intake. The promotion from of?cer to sergeant requires signi?cant adjustment by the new sergeant to her new role and responsibilities, and a sergeant 3! mentorship program could help new sergeants assume these responsibilities more quickly and effectively. Second, we recommend increasing the number of sergeants and lieutenants within the Department. Maintaining a healthy ratio of sopervisors to subordinates is critical to ensuring proper supervision. Yet current ratio of sergeants to police of?cers and lieutenants to sergeants is low, particularly when compared to other large police departments across the country. For example, Chicago has approximately 9.2 police of?cers per sergeant, as compared to Los Angeles (6.0 of?cers per sergeant), New York (4.9 officers per sergeant), Houston (4.4 officers per sergeant), and San Francisco of?cers per sergeant). 0f the cities benchmarked, only Philadelphia, with 14.0 of?cers per sergeant, has more officers per sergeant than Chicago. The disparity between Chicago?s lieutenant-sergeant ratio and that ratio in other cities is similar. In most major cities, including Philadelphia, the ratio of sergeants to lieutenants is approximately 4: 1; in Chicago it is 10:1. Worse still, these numbers do not tell the whole story: because many of the Department?s supervisors are stationed at CPD headquarters, there is a greater disparity in the number of supervisors per officer that are assigned to the patrol bureau than there is across the Department as a whole, leading to an even greater burden on these patrol supervisors. We recommend decreasing the officer-sergeant and sergeant-lieutenant ratios. Particularly at the officer-sergeant level, maintaining a healthy ratio of supervisors to subordinates is critical to ensuring proper supervision of each of?cer. The Department has in place a Performance Evaluation and Performance Recognition System (PRSIPBS), and each supervisor is expected to regularly use this system to evaluate their direct reports, record discipline, and recognize good performance. The resulting of?cer histories are useful when making transfer, promotion, and discipline decisions. But the PRSIPES system is under-utilized 32 and does not ful?ll its desired purpose, in part because frontline supervisors lack time to use it. Similarly, while the SPAR process through which supervisors in an of?cer?s chain of command administer summary discipline for infractions too minor to warrant elevation to BIA or IPRA is a useful tool for supervisors to monitor their subordinates? conduct, using the SPAR process itself is labor intensive and time consuming. Because mentoring and coaching police of?cers, not to mention identifying and remedying misconduct, requires a substantial amount of supervisory time and effort, we recommend that there be no more than ten police of?cers per sergeant on every watch at each district. Third, to ensure an adequate number of candidates for sergeant and lieutenant, we recommend that the Department administer promotional tests more regularly. At present, promotions to sergeant and lieutenant are being made from the results of a test administered in 2006 (although a more recent sergeant exam was administered, in two parts, in late 2013 and early 2014). We recommend that the Department administer promotional exams every four years. In addition, although test scores are important, and critical to ensuring transparency and confidence in the promotional process, taken alone, they are not the most reliable indicator of supervisory ability. Accordingly, when making promotional decisions, the Department should consider other objective criteria for identifying management skills, such as service as an PTO (for of?cers seeking promotion to sergeant) and service in a sergeant mentoring program or within BIA (for sergeants seeking promotion to lieutenant). So long as the Department relies on stated, objective criteria, it will maintain the transparency that is essential to avoid charges of favoritism. Finally, we recommend that the Department improve supervisor training by offering courses in leadership to all sergeants, lieutenants, and captains on a regular basis. The 33 Department?s Education and Training Division has made substantial strides on this front, having already developed and implemented several leadership courses. During our review, more than 1100 FTOs and supervisors received the Department-developed ?True North? leadership course. This course teaches concepts necessary to successful leadership, including the need to know one?s authentic self, to empower others to lead, and to establish trusting relationships. And, to ensure a sustainable and ongoing leadership program, the Department recently developed a second course that supplements the lessons learned in the True North course. We recommend that leadership courses be made available to all supervisory personnel. in addition, we recommend that the Department offer a course in ?Progressive Coaching? to all police supervisors. In this course, which other major urban police departments have used to great effect, police supervisors engage in role playing to learn how to effectively manage and mentor subordinate of?cers through coaching, counseling, and disciplining. By offering Progressive Coaching and other leadership classes to all supervisors, the Department will improve the supervisors? engagement with their subordinates and help them to manage and lead more effectively. (1. Evaluate Supervisors Based on Their Subordinates? Performance As explained above, the Department has a system in place, and the Department expects supervisors to routinely evaluate the performance of their subordinates. Currently, however, supervisors are not evaluated based on the performance of the officers who report to them, in part due to the lack of patrol squad structure. To bolster accountability, this should change. If there is evidence that a supervisor is robustly monitoring and appropriately disciplining subordinates, this should be recorded and considered when making promotion decisions. Likewise, where there is evidence of inadequate supervision (such as a pattern of 34 subordinate misconduct that the supervisor fails to identify or address), this should be documented and evaluated as well. The end goal here is to strive for rigorous but fair supervision of subordinates and to reward those supervisors who achieve this goal. e. Increase and Formalize District Command Review Meetings Our interviews with current and former police personnel demonstrated the importance of regular meetings between a district?s senior officers and the frontline supervisors under their command. The individuals we interviewed observed that when frontline supervisors lack regular access to district command staff to subordinate of?cer conduct and other issues, the districts tend to be reactionary rather than proactive in their approach to solving problems. Currently, however, there is no Department-wide requirement that each district?s command staff meet with the frontline supervisors on a regular basis, which increases the risk that higher-level supervisors in a district are not informed of percolating issues (including possible misconduct) early on, when there is the greatest opportunity to address these issues. Accordingly, we recommend that the Department formalize the district command review meeting schedule. First, the Department should encourage ad hoc meetings between district station supervisors (DSSs), or other members of district leadership, and the sergeants on their given shifts to discuss officer conduct and other patrol issues that may need to be escalated to the district commander or executive of?cer.6 This will encourage frontline supervisors to bring any alleged officer misconduct to the immediate attention of the district?s command staff, and, in turn, will give these senior of?cers an opportunity, in cases where the alleged misconduct is serious, to immediately meet with the accused officer?s direct supervisor, thereby providing yet 6 The role of the district station supervisor was established in January 2012 at the same time that the Department discontinued the roles of district watch commander, district manager, and desk sergeant. DSSs are responsible for managing in-station operations, including personnel and material resources, and directing the work of watch supervisors, consistent with plans and strategies established by the district commander. DSSs are accountable for enforcing all laws and ordinances and the conduct and appearance of all on-duty Subordinate personnel. 35 another means of encouraging robust supervision by holding supervisors accountable for the misconduct of their subordinates. In each district, there may be several 0883 who rotate in and out of the roll. Because there may be a different DSS from one day to the next, the Department should make clear that the onus falls (1) on each DSS to escalate issues brought to her attention and (2) across DSSs to jointly ensure that these meetings occur as needed but not so often as to be burdensome. Second, the district commander andfor executive of?cer should meet with 0885 and all sergeants under their supervision to discuss current issues, priorities, and management expectations. Third, the district commander and executive of?cer should meet quarterly with DSSs to establish goals, targets, and plans to achieve accountability in the district. These latter two meetings, especially, will help to align the goals and priorities of the Department?s command staff and the frontline supervisors. 4. Utilize Regular Training to Refresh and Recommit Of?cers on Procedural Justice, and Check for Warning Signs of Of?cer Misconduct In 2012, Education and Training Division introduced a Procedural Justice Police Legitimacy course with the goal of providing it to all of?cers by 2013. Policing based on procedural justice rests on the assumption that people form assessments of police legitimacy based on how of?cers exercise their authority, and, in particular, that when police are objective and reapectful, they gain the trust of the citizenry. More than 9500 CPD personnel have been trained in Procedural Justice, and the Department is close to ?nalizing a second-phase course the builds on the principles of Procedural Justice and incorporates scenario- based components. While these are meaningful steps, continued training should reduce misconduct by reinforcing lessons learned. To this end, we recommend that the Department develop and implement a mandatory seven-hour refresher class and require that of?cers take it 36 every two years. The class should cover topics including, but not limited to, the Fourth Amendment, use of force, vehicle pursnits, discipline, and current hot topics. Moreover, because at present no one is responsible for ensuring compliance with required in-service training, we recommend that the Department?s Audit Division be tasked with ensuring such compliance. In addition, because a negative credit check can serve as an early warning sign of possible misconduct, the Department should perform a credit check on Department members assigned to the Organized Crime Division (0CD) every two years. Currently, Department members undergo a credit check before entering the 0CD, so our recommendation would merely require that the Department expand on an initiative already in place. Finally, because we learned from members of the public that complainants about and witnesses to alleged instances of police misconduct can find it dif?cult to identify of?cers from dated photographs, we recommend that the Department require of?cers to update their photographs in the CPD system every five years. 5. Explore the Feasibility and Effects of Equipping Of?cers with Body- worn Cameras Real-time recordings of incidents of alleged police misconduct may provide invaluable information to investigators. One means of acquiring such evidence is through the use of body- worn cameras. They are lightweight, water resistant, rugged, and typically capture video in full color. Their small size does not restrict an of?cer?s range of movement. A 20M report by the United States Department of Justice's Of?ce of Community Oriented Policing Services (COPS Of?ce) and the Police Executive Research Forum (PERF) described both the bene?ts of these devices and the challenges associated with them. This report, entitled ?Implementing a Body? Worn Camera Program: Recommendations and Lessons Learned,? provides a good summary of recommended best practices and should be considered prior to adopting and implementing a body-worn camera program. 37 Among the bene?ts associated with body-worn cameras is the possibility of deterring police misconduct. The results of a recent field experiment in Rialto, California suggest that equipping of?cers with a body camera may reduce incidents of misconduct. The presence of a camera during a police-citizen encounter may also modulate the behavior of citizens and reduce the number of use?of~force complaints. In addition, use of cameras may allow complaints about police misconduct to be resolved more quickly, by providing clear and readily available evidence of what occurred. Cameras also are a means to preserve witness statements and other evidence that is not otherwise available to police officers focused on securing the scene or assisting victims, and thus they may assist with investigations. Finally, body-worn cameras provide a means for police supervisors to identify problem behavior, and for trainers to provide situational illustrations to modify and mold officer conduct. While body-worn cameras have many potential benefits, they are not a fail-safe means of either discouraging misconduct or providing irrefutable evidence when misconduct is alleged. Body-worn cameras raise a number of challenges that must be considered and addressed before they are made a regular part of policing. First, implementing a body-worn camera program presents financial challenges. Equipping all patrol and other of?cers who interact with the public face to face with body-worn cameras is a costly endeavor. Cameras and infrastructure to store data will have to be purchased, and space for collecting and maintaining video recordings at both headquarters and the districts will have to be designated. Moreover, given the consistently evolving technology and large outlay of expenses required, a long-term sustainment program should be developed. Second, body-worn cameras present operational challenges. A number of questions will need to be answered about when the cameras should be used and what should be recorded. For 38 example, the Department will need to decide whether officers should turn the camera on at all times or only during service calls, and whether officers will have discretion to turn the camera off in circumstances where a victim or informant is hesitant to be recorded. The Department will also need to decide how it will store the data collected and for how long. We recommend that, unless a recording is needed as evidence, the data collected be destroyed after between 60 and 90 days. Finally, there are legal challenges associated with body?worn cameras. Although the public may embrace body-worn cameras as a means of identifying and deterring police misconduct, use of these cameras raises a number of legal issues related to privacy and public disclosure laws. For examples, questions about who will have access to the data collected, and whether it must be disclosed pursuant to requests under the Illinois Freedom of Information Act, will have to be answered. In addition, implementation of any body-wom camera program will need to comply with Illinois laws addressing the consent required prior to recording another person. In principle, we support the use of body?worn cameras. Like in-car cameras, they provide an additional source of data and, as discussed, they are a potential means of identifying and deterring police misconduct, as well as false allegations of misconduct. Given the ?nancial, operational, and iegal challenges body-worn cameras raise, however, we believe that CPD should pilot their use and otherwise carefully study their feasibility and effects before implementing them Department-wide. B. Improve the Disciplinary System to Make it More Certain, Timely, Transparent, and Ef?cient We next suggest improvements to the processes in place for addressing misconduct after it occurs. Because the discipline guidelines we describe above to discourage misconduct before 39 it happens also provide a means of making the disciplinary system more tranSparent and uniform, we reiterate that recommendation here. In addition, we provide the following recommendations, which we have organized by entity. 1. Across Entities Several of our recommendations are directed at more than one of the entities within the disciplinary system. These recommendations include: establishing an 18-month deadline for CPD (including BIA) investigations to be completed, with limited exceptions, and setting benchmarks for IPRA to complete its investigations within 24 months by 2016; (2) streamlining the appeals and grievance process; and (3) implementing a single case management system for use by IPRA, BIA, and the districts, and automating the review of findings and recommended punishments within this universal system. a. Establish Deadlines for Completing Investigations Historically, a subset of cases investigated by IPRA and the Department has dragged on for years. We acknowledge that there may be many reasons for this, including a lack of resources and complexity of investigations. Nevertheless, as explained in greater detail below, we believe that with process changes and additional resources, investigations can be completed in a more timely manner. Accordingly, we propose that investigations conducted by CPD, either by BIA or at the district level, be completed within eighteen months of the ?ling of the complaint, with narrow exceptions. Through more timely administration of discipline, CPD should be able to more effectively deter future misconduct and, in addition, will demonstrate to complainants and the broader community that the Department takes police misconduct seriously. Timely administration of discipline also will bene?t accused officers, by allowing them to move forward with their lives and careers without the shadow of an open investigation hanging over them. 40 CPD already has made important strides on this front. The recently-negotiated collective bargaining agreements between the City and the bargaining units for CPD sergeants, captains, and lieutenants require for the ?rst time that all disciplinary investigations (whether conducted by CPD or IPRA) be concluded within eighteen months of initiation, unless the Department can demonstrate to the arbitrator Selected to resolve the merits of any grievance from the disciplinary decision that there was a reasonable basis for the investigation to take longer. The arbitrator may ?nd a reasonable basis if, for example, (1) the accused Department member or a critical witness was unavailable, (2) the delay was attributable to the accused member or her attorney, (3) the matter under investigation is unusually complex, (4) new claims or new evidence arose in the course of the investigation that required investigation, and (5) there is or was a pending a criminal or civil investigation involving the matter under investigation. We recommend that the Department extend this requirement to all investigations conducted by CPD, whether by BIA or the districts. Approximately 90% of all complaints are lodged against police of?cers (rather than police supervisors), and BIA and the districts investigate more than 60% of all complaints. Accordingly, our recommendation should ensure timely resolution of the majority of complaints. IPRA is subject to different constraints than CPD, however, and thus we would not extend the eighteen-month requirement to IPRA investigations. Some of delay in closing cases is attributable to the backlog inherited when it was established in 2007. IPRA has made substantial strides toward reducing that backlog in 2012, backlog shrank for the ?rst time, with more cases closed than opened, and in 2013 IPRA closed nearly 600 more cases than it opened, to bring its caseload to a 6-year low of approximately 1,300 at the start of 2014 but work still remains to be done. In addition, complaints investigated by IPRA are different from complaints investigated by CPD: IPRA investigates some of the most serious 41 forms of police misconduct, meaning that its investigations often are more complex and time- consuming than CPD investigations, and, moreover, investigations tend to rely more on external witnesses, who can be difficult to locate or unwilling to cooperate, at least at the outset. Our recommended process improvements and additional resources should help IPRA further reduce its backlog and accelerate the timeframe for resolving cases, but we would not want IPRA to sacri?ce thoroughness for speed, or for any of?cer who engaged in misconduct to evade discipline because IPRA was unable to complete its investigation in time. In recognition of the unique constraints under which IPRA operates, we recommend that IPRA aSpire to meet certain benchmarks over time, with a long-term goal of resolving all new complaints within 24 months. Currently, completes approximater 60% of its investigations within one year, and approximately 80% within 24 months. We recommend that seek, by the end of 2015, to complete 90% of its investigations within 18 months and 95% within 24 months. further goal should be to complete 90% of its investigations within 12 months and all investigations within 24 months Simplify the Grievance and Appeal Process Officers traditionally have been provided with myriad opportunities to challenge a finding of misconduct and a recommendation regarding discipline. For example, if it was recommended that an officer be suspended for ?fteen days or less, the of?cer could challenge the discipline through the Discipline Screening Program, pursuant to which the Department and the FOP (and IPRA, in cases investigated by I PRA) attempt to agree on a recommended punishment, which the of?cer may reject, appeal to the superintendent, and grieve or seek Police Board ?paper? review_ If a 16-30 day suspension was recommended, the of?cer could challenge the discipline through an appeal to the superintendent, followed by a Police Board paper review and 42 grievance, with appeal rights in state court. Any grievance could give rise to both mediation and arbitration. Suspensions of more than 30 days and discharges received a full Police Board hearing? As a result of the length of the appeals and grievance processes, and the many entities involved, uncertainty has surrounded the administration of discipline. In some cases, by the time that discipline was ?nally administered, the misconduct occurred so long ago that the discipline?s ef?cacy may have been undermined. The changes achieved pursuant to the recently negotiated collectively bargaining agreements should go a long way toward reducing the delay between a recommendation for and the implementation of discipline. The Discipline Screening Process and non-binding summary opinion process have been eliminated, and expedited arbitration is available for grievances challenging a recommended suspension of greater than 11 days. Perhaps most important, of?cers no longer may pursue more than one method of review: once they select a method for challenging the recommended discipline, that election becomes the exclusive review mechanism. Going forward, in cases where IPRA or BIA recommends suspension often days or less, the of?cer may either accept the recommended penalty or challenge the recommendation through a streamlined, binding summary opinion process. If the recommended suspension is between ll and 30 days, the of?cer has three options: she may (I) accept the penalty, (2) use the binding summary opinion process, or (3) file a grievance. (Only if the FOP declines to advance the grievance to arbitration may the of?cer elect Police Board review.) If IPRA or BIA recommends suspension between 31 and 365 days, the of?cer again has three options: (I) accept the penalty, (2) file a grievance, or (3) seek Police Board review. Again, unlike in the past, the method We provide a more complete description of the accused officer's options for further review in Part of the Appendix, and a chart oftiiose options as Exhibit C. 43 selected becomes the exclusive review mechanism, eliminating the multiple Options for challenging a disciplinary recommendation in a single case. We applaud these changes, which should help to ensure that when misconduct is identi?ed, discipline is and effectively administered. We would go one step further and, in non-separation cases, eliminate or, to the extent not possible because of union and administrative due process constraints, streamline Police Board review. We also recommend that both and BIA should place additional emphasis on mediation (plea bargaining) to resolve cases quickly and fairly. Here, again, recent contract negotiations produced favorable results: the prior agreement limited the use of mediation to the period prior to the accused of?cer giving a statement, but the new agreement includes no such limitation. Finally, we recommend offering education-based-discipline (EBB) in certain cases, and requiring of?cers who accept EBD to waive their rights to appeal and to file a grievance c. Implement a Single Off-the-Shelf Case Management System for Use by BIA, IPRA, and the Districts Currently, BIA, IPRA, and the districts each use a different and, in the case of BIA and the districts, out-of-date case management system to log and track complaints and investigations. Thus, cases investigated by BIA and are tracked in the CLEAR system from intake until an investigator is assigned. At that point, however, BIA switches to the CRMS system to document the cases BIA investigates. The districts document their investigations using a paper- based system, and then rely on BIA to enter that information into the CLEAR and CRMS systems. This use of distinct systems not only is inef?cient, but it also makes it difficult to track and monitor the conduct of individual of?cers. To address these de?ciencies, we recommend purchasing an off-the-shelf case management system for use by BIA, IPRA, and the districts. 44 To enhance its effectiveness, any case management system purchased should include certain elements. First, it should showcase information in a dashboard format to provide management the ability to identify issues and track trends. Second, the system should have the ability to track the progress of cases, including by issuing reminders when milestones are due to be met. This should extend through command channel review. For example, by providing a reminder that the ten-day limit for command channel review of disciplinary ?ndings and recommended punishments is about to expire, the case management system will help ensure these reviews are completed in a timely manner. Third, the system should provide ready access to each of?cer?s performance evaluations and disciplinary history. This will involve integrating the case management system with the system CPD supervisors use to evaluate their subordinates? performance. At the same time, the PRSEPES system should be updated to make it more user-friendly, including by allowing supervisors to enter feedback about of?cers outside their unit. Fourth, the system should include a process for electronically submitting SPARS. At present, SPARS are filed both digitally and on paper, which is redundant and wasteful. Using a single system will free up supervisors? time and make it easier to keep track of an officer?s prior SPARS. Finally, the case management system should provide a platform to enable the exchange of communication in a consistent manner and provide appropriate access to necessary information. Through a single, integrated case management system, the Department and IPRA will increase coordination among discipiinary bodies, reduce unnecessary paperwork, and eliminate a shortcoming of the current system the inability to track an of?cer?s conduct throughout her career. To ensure that any case management system purchased is utilized to its greatest effect, 45 moreover, we recommend that the Department and IPRA provide suf?cient training on how to use the system. 2. Independent Police Review Authority Since 2007, some of the most serious allegations of police misconduct, including excessive force allegations, have been investigated by a civilian agency that operates independently from CPD. It was clear from our conversations with community leaders, however, that independence from CPD is not widely known and, in addition, that procedures are difficult to understand. Moreover, at its inception, IPRA inherited a large number of cases, which on top of its new cases has mired investigators in a backlog that has taken years to resolve. As a result, our recommendations for IPRA center around making it more transparent, accessible, and credible to both police of?cers and individuals impacted by police misconduct, and to making investigations more ef?cient, thus reducing the time between complaint and discipline. To accomplish these goals, we also recommend that jurisdiction be adjusted to reduce its caseload and, in addition, that resources be increased. an. Increase Visibility in the Community As the independent investigator of some of the most serious forms of police misconduct, should be accessible to residents and trusted by them to swiftly and fairly investigate misconduct. Even during our review, IPRA has taken a number of steps to increase its credibility with and accessibility to the community. created a permanent Community Advisory Board to provide counsel going forward; established a satellite of?ce on Chicago?s West Side to make investigators more accessible to residents and make clear that residents do not need to go to a police station or interact with CPD personnel to ?le a complaint; improved its investigators? communications with 46 complainants about the status of their complaint; began hosting community meetings to explain how police misconduct is investigated; and revised its informational brochures to include a ?Frequently Asked Questions" document that explains IPRA and its procedures in plain English. In addition, in a landmark reversal of past practice, the City announced that it will make internal investigation ?les into alleged police misconduct open to public scrutiny. These initiatives should raise public awareness about existence, independence, and services, and we urge that they be continued. b. IPRA Should No Longer Be Required to Investigate Claims in All Civil Litigation Settled by the City At present, IPRA conducts an investigation into the conduct underlying civil complaints alleging police misconduct any time that the City settles a case without a trial. This is a drain on resources: of?cials stated that lawsuit review occupies the investigative time of between one and two investigators each year. To reduce this demand on resources while making sure that no matter involving substantial allegations of police misconduct goes uninvestigated, we recommend that IPRA limit its lawsuit review to cases where either the chairman of the City Council?s Committee on Finance requests that IPRA conduct an investigation or chief administrator decides further investigation is warranted. This should free up investigators to focus on investigating complaints. c. Change Processes to Reduce the Length of Investigations All parties to the disciplinary system agree that it is optimal to have the shortest time possible between the incident and the conclusion of the disciplinary process. Although has made great strides toward reducing the backlog that it inherited when it was established (in the last eighteen months, for example, IPRA reduced its backlog by we have several recommendations that should further increase ef?ciency. 47 Enable IPRA to Close More Cases, No-Affidavit Cases Especially, More Quickly and to Take Action Against Complainants Who File False Complaints Our interviews showed that IPRA investigators and their counterparts at expend substantial resources seeking af?davits from complainants, often without successfully securing a signed af?davit. [n 2012, for example, IPRA and BIA closed more than 40% of all cases because they were not able to obtain an af?davit. We propose that IPRA and BIA adopt a standardized, 30-day process to obtain af?davits. This process is designed to ensure both that all complainants have ample opportunity to provide the af?davit that Illinois law requires, and that and BIA are able to act ef?cientlon cases where no af?davit can be obtained. At present, if the complainant ?les the complaint in person, intake personnel will attempt obtain an af?davit that same day, if the complainant is willing. We recommend IPRA continue attempting to obtain an af?davit on the same day. If the complainant submits her complaint by telephone, intake personnel should explain the af?davit requirement and schedule an interview within the next few days to obtain the af?davit. If by day ?ve no af?davit has been obtained, the investigator should call the complainant to set up a time to obtain the af?davit. If by day ten there still is no af?davit, the investigator should visit the complainant in person to obtain the af?davit. On day twenty, a certi?ed letter should be sent to the complainant informing her that the investigation will be terminated if the af?davit is not obtained ?nal phone call should be placed to the complainant and the ?le closed if no af?davit has been obtained. if there are special circumstances that preclude the signing of an af?davit within 30 days, the investigator should be able to request an extension of time from his supervisor. Finally, the BlA?s chief and chief administrator, as appropriate, may decide that the investigation sh0uld proceed even in the absence of an af?davit if there is independent objective evidence that substantiates the allegation. Thus, our proposal should free investigators to work on live 48 complaints rather than chasing complainants who are not interested in pursuing the investigation or swearing to the claims set forth in the complaint but at the same time ensure that meritorious complaints are investigated. Second, intake personnel should continue the practice of educating potential complainants about allegations that do not rise to the level of a rule violation. By making available approved educational documents to provide guidance to complainants and instructing intake personnel to err on the side of caution, any appearance of unfavorable treatment of complainants should be avoided. Third, we recommend that in at least some cases, refer complainants who submit a false af?davit to the State?s Attorney's Office for prosecution. Our interviews established that, in some instances, complainants knowingly make false allegations, for example, to discourage an of?cer witness from testifying in a criminal case. These false complaints are not only a burden on the accused of?cer; investigating them is a waste of resources. Given the State?s Attomey?s existing caseload, she is unlikely to prosecute all false complainants. Thus, we recommend that only certain false complainants those who ?le either multiple false complaints or a single, particularly egregious, false complaint be referred to the State?s Attorney and face consequences for their actions. (ii) Make Intake Procedures and Investigations More Ef?cient Next, we recommend a number of changes to streamline intake and investigation processes, and thus enable to more rapidly close cases. Based on our interviews with IPRA personnel, we observed two flaws in the current system: IPRA lacks a formal plan for investigators to prioritize their cases according to the severity and complexity of the allegations, and investigators sometimes engage in inefficient multitasking to balance the competing 49 demands of their heavy caseloads. To address these de?ciencies, we recommend that IPRA adopt a tiered framework for cases within its jurisdiction, that IPRA supervisors use this framework to make case assignments according to the complexity of each case, and that supervisors then work with the assigned investigator to deveIOp a step-by?step investigative plan with periodic deadlines for each case. d. Increase Resources Compared to the civilian police disciplinary boards in other cities, investigators carry high caseloads. We have two recommendations for reducing those caseloads and allowing investigators to work more ef?ciently. First, IPRA should hire a second mediation attorney. In recent years, use of mediation (or plea bargaining) to close cases quickly and fairly has increased exponentially: successfully mediated two cases in 2010, 15 in 2011, 61 in 2012, and 128 in 2013. Hiring an additional mediation attorney would allow IPRA to mediate more cases, and thus help IPRA to reduce its backlog by closing cases more quickly. To further encourage mediation, the accused officer should be allowed to enter into mediation both before and after the of?cer?s interview. We understand that IPRA is currently in the process of hiring an additional mediation attOrney, and we support this initiative. Second, we applaud efforts to increase its pool of investigators. At present, budget allows for 54 investigators and 12 supervisors. During our review, IPRA converted ?ve intake aid positions into investigator positions, raising its headcount to 59 investigators. Based on historic caseloads, these ?ve additional investigators should be able to increase case closure rate by approximately 200 cases per year. 50 In short, through steps to reduce caseload, streamline its intake procedures and investigations, and increase resources, will be able to reduce the time from complaint to resolution. We estimate that our recommended process improvements will increase annual closure rate by between 140 and 320 cases, and adding five investigators will increase the closure rate by approximately 200 cases. 3. Chicago Police Department and the Bureau of Internal Affairs The challenge of extended case duration is not unique to The time it takes for the Department and BIA, speci?cally, to bring a complaint to resolution is also far longer than it might be. We have a number of suggestions in addition to the cross-entity recommendation we make above for making BIA's disciplinary process more ef?cient, including by empowering BIA to transfer more complaints to district supervisors for resolution through the SPAR process, by extending the discipline available through the SPAR process from a maximum of three days? suspension to ?ve days, and by increasing sergeanti?lieutenant headcount. We also suggest that BIA increase its transparency by issuing an annual report similar to the quarterly report IPRA now issues. a. Empower BIA to Transfer More Cases to the Districts BIA currently handles a large number of operational and personnel violations that would be more appropriately resolved at the district level by the accused of?cer?s direct supervisor. Transferring these cases from BIA to the districts would also be more efficient, because brings the average case from complaint to resolution in 215 days, while in the districts a SPAR is assessed and Summary punishment administered in only 142 days, on average. BIA has proposed, and is in the process of, transferring a larger number of its cases to the districts, and we concur in recommendation that it be authorized to transfer the following 51 categories of violations: (1) minor on?duty operational and personnel violations; (2) non-bribery traf?c violations; (3) violations of procedures pertaining to prisoners? property; and (4) weapon irregularities (not including weapons discharges). Not only are these violations often mere appropriately handled by an accused officer?s immediate supervisor, but expanding the districts? SPAR authority would allow BIA to focus on more serious matters by reducing the number of cases BIA handles by approximately 15% (or approximately 650 cases annually).? In recognition of the districts? expanded authority, the collective bargaining agreements should be renegotiated to allow the imposition of up to ?ve (rather than three) days of suspension as summary punishment. However, BIA should continue to investigate violations that can result in one- to ?ve-day su5pensions but are more serious than the above infractions, such as complaints about searches and search warrants. b. Add to Resources Like IPRA, BIA would obtain signi?cant bene?ts by augmenting its resources. First, headcount decreased between 2009, when it had 116 employees, and 2012, when it had 79 employees. In 2013, BIA requested that it be allowed to increase its headcount to 120, primarily by hiring more sergeants to conduct investigations, and this request was largely honored. Today, BlA?s assigned headcount is 102, and includes 17 more sergeant investigators than in 2013. We support this change, and recommend that the Department continue to increase the number of BIA investigators. Not only will hiring more investigators enable BIA to complete investigations more quickly, but the use of sergeants as investigators will enable BIA to move police of?cers away from investigating their fellow of?cers. BIA should continue to use police of?cers in a A signi?cant majority of the cases transferred would involve minor on-duty operational and personnel violations. Between 2008 and 2012 (that is, before BIA began transferring more cases to the districts), there were on average each year 54] Operational and personnel violations, 4? non-bribery traffic violations, 45 prisoner property violations, and 18 weapons irregularities that we believe qualify for transfer to the districts. 52 support roles to ef?ciently handle its caseload, including to follow up with the districts regarding ongoing investigations. Second, BIA historically has struggled to recruit of?cers and sergeants into its ranks because some Department members view assignment to BIA as career limiting or they do not desire to investigate fellow Department employees. To reduce the stigma associated with BIA, would-be detectives should be required to rotate through BIA, and CPD should create incentives for high?performing officers to work in BIA. c. Increase TranSparency Each quarter, IPRA prepares and makes available to the public a report detailing the numbers of complaints opened, closed, and pending; whether the closed complaints were sustained; the number of complaints referred to other agencies and the identity of those agencies; and the number of complaints filed in each district and against each individual of?cer in each district (without identifying the officers). We recommend that BIA prepare and release a similar report, perhaps on an annual (or even a quarterly) basis. By releasing this information, BIA would increase transparency, and also would put Department members on notice regarding the number and types of cases that are investigated and disciplined, which we believe will improve of?cer conduct. 4. Police Boa rd To streamline the appeals process, we recommend that the jurisdiction of the Police Board be adjusted to limit its reviewing authority to cases involving the most serious allegations of police misconduct. The Police Board should continue to provide Full hearings and decisions in separation cases, but the Board should not be an avenue of appeal for of?cers to contest their suspensions. Instead, as explained above, a single binding track of appeals within the Department should provide the only means for of?cers to contest discipline. We also 53 recommend lengthening the time frame for admitting evidence of an of?cer?s prior misconduct from ?ve to ten years, following the Federal Rules of Evidence. The current limitation interferes with the Department?s ability to bring a comprehensive case to the Police Board. In addition, consistent with our recommendation that the Department adOpt discipline guidelines, we recommend that the Board continue to act as arbiter between the superintendent and chief administrator when they disagree on discipline. However, the Board would become involved in these disagreements only in cases where the superintendent and the general administrator disagree on the applicable guideline level. IV. CONCLUSION Complaints about misconduct by Chicago police of?cers are investigated, and discipline is administered, through a complex system comprised of a number of different entities and actors governed by myriad constraints. Based on our comprehensive and independent review, we have presented recommendations that we believe will both help prevent misconduct before it happens and improve the system for addressing the misconduct that does occur. 54 APPENDIX OVERVIEW OF THE PRESENT DISCIPLINARY SYSTEM The disciplinary system as it existed during the course of our review provided the context for our recommendations. As explained in our report, however, the system is not static: even during the course of our study, improvements were made that we would have recommended. The following thus provides a description of the disciplinary system as it existed during the time in which we prepared our recommendations. I. INTRODUCTION The Chicago Police Department?s disciplinary system involves three entities, each created at a different time and for a different purpose: the Department itself, including the Bureau of Internal Affairs the Independent Police Review Authority and the Police Board. State statute and municipal ordinances de?ne the authority of IPRA and the Police Board. The collective bargaining agreements between the City and Department members also dictate how allegations of misconduct are investigated and discipline is imposed. Each year, there are on average 9,000 complaints logged against CPD members.g IPRA investigates approximately 30% of these complaints, while BIA investigates approximately 40% and transfers the remaining 30% to the accused member?s district for investigation and 9 A ?Log Number" is assigned to every incident involving a Department member that is reported to the Department and subject to investigation. When a Log Number is converted, it is classi?ed as a ?Complaint Register? (CR) number. If a CR number investigation results in a sustained ?nding, that ?nding will be reported in the Department member's disciplinary history. Log Number investigations also may subsequently be classi?ed as an (an extraordinary incident, e. a death in custody, a suicide in custody, or an attempted suicide in custody); an ?Info? (an incident that has not been converted into a Compliant Register number due to the reporting party?s failure to assigned a sworn af?davit); a ?Notification? (an incident where a sworn Department member discharges a ?rearm at a person and the person is not injured or killed; a weapon discharge incident involving the destruction of an animal: an Oleoresin Capsicum discharge; the ?eld deployment of a Taser; the use of a chemical-dispensing, smoke- dispensing, or distraction device; or another miscellaneous incident); or a (an incident wherein a sworn Department member discharges a ?rearm and another person is injured or killed, or wherein a sworn Department member suffers a self-in?icted gunshot wound). 55 disposition. $33 Exhibit A. As of 2012 (the most recent year for which data was available at the time of our analysis), IPRA takes on average 328 days to resolve a complaint, BIA averages 215 days, and the districts average 142 days. Exhibit A. In part, these times reflect the relative complexity of the complaints handled by each entity: the districts generally handle routine operational and administrative matters; IPRA handles use of force investigations, which by their nature tend to involve external parties; and BIA focuses primarin on corruption, misconduct, and severe operational issues. Each entity uses different systems to log and track complaints and investigations: IPRA uses the Citizen Law Enforcement Analysis and Reporting (CLEAR) system, BIA uses the CLEAR system and CRMS, and the districts use a combination of automated and paper-based systems.? THE INDEPENDENT POLICE REVIEW AUTHORITY In 2007', then-Mayor Richard M. Daley and the Chicago City Council created IPRA in response to concems about how the Department was investigating allegatioos of police misconduct. replaced the Of?ce of Professional Standards (OPS) and operates independently from the Department. IPRA serves two core functions: (I) IPRA receives and registers all complaints of misconduct against Department members and assigns them to the proper entity (IPRA itself, BIA, or the districts) for investigation and disposition, and (2) IPRA investigates specific categories of complaints and recommends discipline in those cases. chief administrator serves as its chief executive of?cer and is appointed by the mayor, subject to City Council approval. '0 Because IPRA was established in 2007, it is unsurprising that it uses a different tracking system than the other entities. As explained in the report, however, the absence of a universal tracking system prevents easy access to an of?cer's complete disciplinary history. 56 0n receiving a complaint about misconduct by a Department member (whether lodged by a member of the public, the City of Chicago?s Law Department, or by someone within CPD), IPRA gives the complaint Complaint Register number and logs it into the CLEAR system.ll IPRA then decides whether to investigate the complaint itself or, if the complaint does not fall within jurisdiction, to transfer the complaint to the Department for investigation. Pursuant to its enabling ordinance, IPRA must investigate all complaints in the following categories: (I) domestic violence, excessive force, coercion, or verbal abuse directed at a person based on that person?s actual or perceived race, color, sex, religion, national origin, sexual orientation, or gender identity; (2) discharge of an of?cer?s firearm, stun gun, or Taser in a manner that potentially could strike an individual; and (3) death or injury sustained by a person while in police custody or where an extraordinary or unusual occurrence occurs in a lockup facility.12 IPRA forwards nearly all other complaints to CPD, where they are investigated either by BLA or at the district level. When a complaint alleges multiple categories of allegations, IPRA retains the entire complaint if one allegation is within its jurisdiction. When IPRA was established, it inherited more than 1,000 open cases from OPS, its predecessor organization. In addition, opens between 2,500 and 3,200 new cases each year. From its inception, therefore, IPRA was saddled with a backlog of cases, and it lacked suf?cient tools and resources to address both existing cases and new complaints. Since 2011, however, IPRA has taken a number of steps to make its investigations proceed more efficiently, Our mandate was limited to - and our recommendations center on improving the disciplinary process after complaints are received. We observe, however, that the process for receiving complaints could be improved as well. IPRA's existence is not widely known among the public. As a result, many members of the public believe that complaints must be ?led at the police department, and at least some are likely to be reluctant to go to a police station to complain about police misconduct. Thus, as discussed in the report, IPRA should consider publicizing IPRA's existence and its role as the recipient ofal] complaints. 12 IPRA has interpreted this provision to require to investigate any discharge of a weapon, including a Taser, whether or not the diScharge oculd strike an individual. 57 including training staff, replacing obsolete infrastructure, and mediating cases, and IPRA has successfully reduced both the time it takes to complete an investigation as well as its backlog of existing cases. Notably, in 2012, backlog shrank for the first time, with more cases closed than opened. Exhibit B. More profoundly, in 2013 closed nearly 600 more cases than it opened to bring its caseload to a six~year low of approximately 1,300 open cases at the start of 2014. Exhibit B. Under state law, IPRA is required in most cases to obtain a sworn affidavit from the complainant averring that the complaint is true. State law does not require an affidavit where the complainant is employed by CPD or IPRA, or the complaint involves allegations of criminal conduct, a violation of medical policy, or a violation of the City?s residency requirement. Even absent an affidavit, moreover, an investigation may go forward without one if both chief and the chief administrator agree that the evidence presented warrants additional investigation, and either the chief or the chief administrator as appropriate completes a sworn af?davit to that effect. Based on data analyzed, and BIA close between 40% and 60% of their investigations because they cannot obtain an af?davit. Both entities, and IPRA in particular, spend considerable time and resources trying to obtain af?davits from complainants. enabling ordinance provides that if IPRA does not complete an investigation within six months, chief administrator must notify the Mayor?s Office, the City Council?s Committee on Police and Fire, the complainant, and the accused officer of the nature of the complaint and the reasons for failure to complete the investigation within six months. Similarly, for CPD-led investigations, if the investigation takes longer than 30 days, the assigned investigator must submit a progress report and seek approval for an extension of time from his commanding of?cer. 58 lf IPRA sustains a complaint, its chief administrator may recommend discipline to the police superintendent. If he does, the superintendent has 90 days to respond or the discipline is deemed accepted. The superintendent is free to impose more severe discipline than the chief administrator recommends; however, if the superintendent wants to impose a lesser level of discipline (or no discipline at all), she must explain in her response letter why she diminished or rejected the chief administrator?s recommendation. The superintendent and the chief administrator must meet within ten days of receipt of the response letter to discuss the superintendent?s reasons for imposing a different level of discipline (or no discipline at all) and to seek agreement on the preper level of discipline. If the superintendent and chief administrator cannot agree, the chief administrator refers the matter to the Police Board, where the superintendent has the burden of overcoming the chief administrator?s recommendation. The Police Board then assembles a three-person panel to review the case and decide whether the superintendent is justi?ed in departing from the chief administrator?s original recommendation. At the conclusion of each investigation, the assigned investigator prepares a summary report that includes the number assigned to the investigation; the name of all officers involved; the of?cers? injuries (if any); the name of all private individuals involved and their injuries (if any); a description (cg, shots ?red) and summary of the incident, including its date, time, and location; the details of the investigation; and the investigator?s ?ndings and conclusion. Under the Freedom of Information Act, summary reports for closed investigations are available to the public, although certain information in the reports (such as personal and private information) may be withheld. In addition, each quarter, IPRA prepares a report for the Mayor?s Of?ce, the City Council?s Committee on Police and Fire, the Office of the City Clerk, and the Legislative Reference Bureau detailing the numbers of complaints opened, 59 closed, and pending; whether the closed complaints were sustained; the number of complaints referred to other agencies and the identity of those agencies; and the number of complaints ?led in each district and against each individual of?cer in each district (without identifying the of?cers). quarterly reports are also published on its website and otherwise made available to the public. THE CHICAGO POLICE DEPARTMENT IPRA transfers alleged incidents that are not within its legislative jurisdiction to Bureau of Internal Affairs. BIA, in turn, investigates complaints involving allegations of misconduct that carry more serious consequences for the accused officer, the Department, or the public. BIA transfers complaints involving less serious allegations (such as minor operational issues) to the accused officer?s unit supervisor or to a district commander for investigation. Each incident logged by IPRA and referred to BIA has already been assigned a Log Number. Some incidents are brought to attention other than by IPRA, such as DUIs and drug or substance abuse allegations. BIA gives these allegations 3 Log Number at the outset, but will assign a Complaint Register number if BIA subsequently concludes that a full disciplinary investigation is warranted. A. Investigation by BIA In cases where BIA decides to investigate rather than transfer the complaint, BIA supervisors first assign an investigator to the case. The investigator, in turn, must: contact the complainant and any witnesses to obtain their statements; question CPD members other than the accused who may have knowledge of the alleged misconduct; and obtain any additional material evidence, such as police and medical reports, videotapes, audiotapes, and forensic evidence. (At present, BIA does not have subpoena power.) The investigator also will question the accused of?cer in cases where the complainant has provided a sworn affidavit (or an exception to the 60 sworn af?davit requirement applies, including because BlA?s chief and chief administrator have agreed to an af?davit override). Investigations must be completed as soon as possible, and if an investigation will take longer than 30 days, the investigator must submit a progress report to her commanding of?cer and seek an extension of time. After completing the investigation, the investigator will issue a finding of ?sustained,? ?not sustained,? ?unfounded,? or ?exonerated.? A finding of ?sustaine means the complaint was supported by suf?cient evidence to justify disciplinary action. ?Not sustained? means the evidence was insuf?cient to either prove or disprove the complaint. ?Unfounded? means the facts revealed by the investigation do not support the complaint the complained-of conduct did not occur). And ?exonerated? means the complained-of conduct occurred but the accused of?cer?s actions were proper under the circumstances. On determining that a complaint is unfounded, exonerated, or not sustained, the investigator must prepare a ?nal investigation report called a summary report digest. If the investigator sustains one or more allegations of misconduct, the investigator will obtain the of?cer?s complimentary history and disciplinary history. The investigator?s supervisor then considers this information and makes a recommendation regarding discipline. Under the applicable collective bargaining agreements, however, the supervisor cannot recommend additional training. In all cases?unfounded, exonerated, not sustained, and sustained?the investigator must submit the ?nal investigation report to her commanding of?cer, or the commanding of?cer?s designee, who will review the investigation and submit it to command channel review. B. Command Channel Review Following or issuance of ?ndings and recommendation of discipline, a command channel review occurs. First, the top?level exempt command staff member in the 61 accused of?cer?s chain of command a unit commander) reviews the ?nal investigation report for its adequacy and timeliness, the soundness of the investigator?s ?ndings and conclusions, and the appropriateness of any disciplinary recommendation. This ?rst command staff member may then reject the report and order further investigation, disapprove the ?ndings andfor recommendation, or approve the ?ndings and recommendation. In addition, if the investigator issues a sustained ?nding, and the command channel reviewer determines that this ?nding indicates culpability on the part of supervisory personnel for the violation that gave rise to the initial investigation, the command channel reviewer must initiate a separate investigation of the supervisory personnel by obtaining a separate Log Number. Upon completion of command channel review by the ?rst exempt command staff member, the ?nal investigation report is reviewed by a second, higher-ranked exempt command staff member in the accused of?cer?s chain of command a deputy chief). If the report involves any ?nding other than a sustained ?nding, and the two command staff members concur, the report does not go through an additional level of review, unless it involves one of the special circumstances discussed below. The report is then returned to BIA or IPRA as appropriate. assistant deputy superintendent or chief administrator reviews the report, and approves the ?nding. Then, the ?rst deputy superintendent or chief administrator noti?es the officer of the ?nding. Even when the two command staff members concur, if the report involves a sustained ?nding, the report must be reviewed further and submitted up the chain of command to the bureau deputy superintendent. Upon review of the report by the bureau deputy superintendent, the report is submitted to IPRA or BIA as appropriate. After considering any comments of the command channel reviewers, chief administrator or assistant deputy 62 superintendent may approve or disapprove the ?nding and increase or decrease the recommended discipline. The chief administrator or assistant deputy superintendent noti?es the of?cer of the ?nding and recommended discipline. If, however, the second command staff member does not agree with the ?rst command staff member?s determination, a third review will be done. BIA will identify a third exempt command staff member to review the report. Finally, bureau deputy superintendent reviews all ?nal investigation reports where: a second-level command channel review exempt member is not available in the accused member?s chain of command; (2) suspension of 16 or more days is recommended; (3) the complaint asserts that the accused member engaged in criminal conduct; (4) the complaint includes an allegation that was, or could have been, made to the Equal Employment Opportunity of?cer; (5) the accused is an exempt member; (6) the accused is assigned to a unit under the Of?ce of the Superintendent; or (7) the investigation is resubmitted through command channel review a?er an initial non-concurrence. C. Investigation at the District Level BIA transfers less serious complaints to the districts for resolution within the accused of?cer?s chain of command. There are 34 categories of these transgressions, ranging from violating medical roll procedure to tardiness in reporting for duty. Available punishments range from verbal noti?cation to a three-day suspension (but cannot include training). A?er conducting the investigation, the designated supervisor initiates summary punishment by preparing a summary punishment action request (SPAR) explaining the incident, the accused officer?s record, and the recommended penalty. These reports are maintained digitally and on paper. The supervisor also must satisfy the requirements of any applicable collective bargaining agreement, including by providing the accused of?cer with a copy of all investigatory reports 63 and statements concerning the investigation. The accused of?cer then must choose between accepting the recommended penalty or rejecting it and requesting a summary punishment actionfpenalty appeal hearing, or, in some cases, ?ling a grievance. (The grievance process is described in Appendix If the accused of?cer wishes an appeal hearing, she must make her request before the end of her next tour of duty or within 96 hours, whichever is shorter. If the accused of?cer accepts the recommended punishment, her unit commander must review the SPAR and, if she approves the SPAR, submit it into the automated SPAR system. If the accused of?cer rejects the recommended punishment and requests a summary punishment actionr'penalty appeal hearing, that hearing will be conducted by the unit commander who will review all relevant facts with the accused and render a decision including an explanation of her reasons for accepting or altering the initial recommendation before the end of the hearing. If the accused is still dissatis?ed, she may appeal the secondary finding by requesting a second hearing, again by the end of her next tour of duty or within 96 hours, whichever is shorter. If she requests another hearing, a higher-ranking staff member in the accused?s chain of command will conduct the hearing. If the accused requests a further hearing, the SPAR is forwarded directly to BIA, where the report will be reviewed and an appropriate command staff member will be designated to conduct a third hearing. That there are three levels of potential appeal for these administrative decisions speaks volumes about the status quo. IV. APPEALING AND GRIEVING DISCIPLINARY DECISIONS After IPRA or BIA recommends punishment, the accused of?cer has a range of options depending on the duration of the recommended punishment. Although the police bargaining agreements were recently amended to limit and streamline the options for challenging a disciplinary recommendation, traditionally these options have afforded officers an opportunity to signi?cantly delay or prevent implementation of punishment. In 2012 (the most recent year for 64 which data was available at the time of our analysis), the average case took 1,029 days, or almost three years, to reach a ?nal disposition following the ?ling of a grievance. Below, we describe the Opportunities for challenging a disciplinary recommendation that used to be available, as well as the changes realized through recent contract negotiations. A. Appeals Available Based on Duration of Punishment According to the Department?s Special order governing summary punishment, of?cers may challenge summary punishments; Speci?cally, after summary punishment has been administered three times within a twelve-month period, an of?cer who wishes to contest the application of summary punishment on a fourth occasion within the last twelve months may contest the fourth and any succeeding application of summary punishment by a challenge through the Complaint Register process or grievance procedure. The recently negotiated collective bargaining agreements do not change this process. In cases where BIA or IPRA recommends a suspension of 15 days or less, the of?cer could, under the prior collective bargaining agreements, appeal that recommendation through the Discipline Screening Program (DSP). In DSP appeals, the Department and the Fraternal Order of Police (FOP) would meet and attempt to agree on a punishment. ln cases, an IPRA representative also attended the meeting, and any agreement was subject to the approval of chief administrator. if agreement was reached, and if the of?cer accepted the recommended punishment, the of?cer signed a waiver of her right to use the grievance procedure. The recommendation was then sent to assistant deputy superintendent to implement. if the Department and FOP failed to reach an agreement or agreed but the of?cer rejected their recommendation, the superintendent would resolve the disagreement. The superintendent could decrease, but not increase, the recommended punishment. If the of?cer disagreed with the superintendent?s recommendation, the of?cer could grieve the 65 superintendent?s decision. If the superintendent recommended a six- to ?fteen-day SUSpension, the officer could ask the Police Board to review the superintendent?s recommendation, as we explain in Appendix VB. In cases where BIA or IPRA recommends punishment between 15 and 30 days, the of?cer had four options. First, the of?cer could accept the recommended punishment, which was fonvarded to the superintendent to impose. The superintendent, in turn, could increase or decrease the recommended punishment. if the superintendent increased the recommended punishment, the of?cer could appeal the punishment to the Police Board or through the grievance procedure. Second, the accused officer could appeal the recommended punishment to the superintendent by ?ling a written report and offering new or additional evidence. The superintendent then decided upon and imposed a punishment, and the of?cer, in turn, could grieve the superintendent?s decision. Third, the of?cer could use the grievance procedure. Fourth, the of?cer could obtain Police Board review. If the of?cer disagreed with the punishment recommended by the Police Board, she could then also use the grievance procedure. In addition, if the of?cer chose the second, third, or fourth options and was dissatis?ed with the reSult, the of?cer could then pursue additional, alternate methods of review. The of?cer had the same four Options in cases where BIA or IPRA recommended suspension between 31 and 365 days, although the grievance process and proceedings before the Police Board were somewhat different, as we explain in Appendix and Appendix V. Finally, the Police Board must review every case in which either discharge or suspension for more than one year is the recommended punishment. As a result of the recent contract negotiations, the Discipline Screening Process and direct appeal to the Superintendent have been eliminated, and the other options for challenging a 66 disciplinary recommendation have been modi?ed. Going forward, in cases where IPRA or BIA recommends suSpension of ten days or less, the of?cer may either accept the recommended penalty or challenge the recommendation through a streamlined, binding summary opinion process. If the recommended suspension is between 11 and 30 days, the of?cer has three options: she may (I) accept the penalty, (2) use the binding summary opinion process, or (3) ?le a grievance. (Only if the FOP declines to advance the grievance to arbitration may the officer elect Police Board review.) If or BIA recommends suspension between 31 and 365 days, the officer again has three options: (1) accept the penalty, (2) file a grievance, or (3) seek Police Board review. Perhaps mom important, of?cers no longer may pursue more than one method of review: once they select a method for challenging the recommended discipline, that election becomes the exclusive review mechanism. B. The Grievance Procedure Under both the prior and current collective bargaining agreements, the grievance procedure consists of four steps. First, the of?cer submits the grievance to her immediate supervisor within the shorter of seven working days or 35 calendar days of the events giving rise to the grievance. Second, the immediate supervisor forwards the grievance to the unit?s commanding of?cer. The two then discuss the issue with the accused of?cer in an attempt to resolve the issue outside of the formal grievance process. If this process fails, or if the complaint is of a certain nature, such as one alleging discriminatory treatment based on gender, age, or race, the unit?s commanding officer makes a recommendation regarding punishment and forwards the recommendation to the Department?s Management and Labor Affairs Section (MLAS). Third, if either the accused of?cer or the FOP is dissatisfied with the commanding officer?s recommendation, either the FOP on behalf of the of?cer or MLAS, or both may request that the case be mediated. If mediation is requested, the POP and MLAS split the cost. Fourth, if 67 mediation is unsuccessful, either party may demand arbitration. There are two forms of arbitration: full and expedited. Under the full arbitration procedure, a neutral third party is chosen to resolve the dispute, and the arbitrator?s decision is binding (meaning the of?cer serves any punishment ordered by the arbitrator immediately). A recommended punishment of 31 to 365 days is only eligible for full arbitration. For cases involving suspensions of 30 days or less, the FOP may choose expedited (or fast-track) arbitration as an alternative to full arbitration. Under the prior bargaining agreements, cases submitted for expedited arbitration were ?rst screened using the summary opinion process. The parties selected one arbitrator, who reviewed the relevant materials and recommended a punishment. The parties could agree to accept the summary opinion, but the summary opinion was not binding. If either party rejected the summary opinion, the case was submitted to a different arbitrator for expedited arbitration, under rules agreed upon by the FOP and the Department. The second arbitrator?s recommended punishment became binding. Thus, in cases where the FOP chose expedited arbitration, the of?cer would not serve any punishment ordered until either both parties accepted the first arbitrator?s recommendation or the second arbitrator reached a binding determination. Under the new contracts, by contrast, the non?binding summary opinion process has been revised to result in a binding determination, and is available as an option for the disposition of cases involving suspensions of up to 30 days. Further, an expedited (and binding) arbitration procedure is available for grievances challenging a recommended suspension greater than 11 days. V. THE CHICAGO POLICE BOARD The Chicago Police Board is an independent body made up of nine private citizens, appointed by the Mayor with the City Council?s consent. In addition to resolving disciplinary disputes between the police superintendent and chief administrator, the Police Board also 68 serves as an avenue of appeal and review of cases involving serious police misconduct; considers applications, conducts interviews, and submits to the Mayor a list of three candidates for the superintendent's position when that position is vacant; and adopts the rules and regulations governing the Department. A. Discharge and Suspension for More Than 30 Days: the Hearing Process If the superintendent wishes to discharge a Department member or SUSpend him for more than one year, the superintendent must ?le charges against the of?cer with the Police Board and the member is automatically entitled to a Board hearing. A member who has been suspended for a period of 3] days to one year is not automatically entitled to a hearing, but she may request One. The superintendent must then ?le charges with the Board, and the same hearing process follows. A Police Board hearing is similar to a trial. After the superintendent ?les charges, the case is assigned to a hearing officer, who sets an initial status date. Generally, the Department member obtains an attorney, and the City?s Law Department represents the superintendent. Both parties engage in discovery and otherwise prepare for an adversarial evidentiary hearing. A hearing of?cer presides over the hearing much like a judge, and traditional legal rules of evidence apply. The superintendent has the burden of proving the charges against the accused of?cer by a preponderance of the evidence, and the of?cer is innocent until proven guilty. The hearing is open to the public, a court reporter transcribes the proceedings, and witness testimony is videotaped. The transcript and the videotaped testimony are then sent to the Police Board members for their review. Meeting in executive session (closed to all but the Board members and staff), the Board ?rst determines if the accused of?cer is guilty. If the Board ?nds the of?cer guilty, the Board determines the appropriate penalty by examining the of?cer?s history, both complimentary and 69 disciplinary. The Board then issues a written decision, noti?es the of?cer and the superintendent, and publishes the decision on the Board?s website. The time from start to ?nish for Police Board review can be sizeable; for example, separation cases that the Police Board reviews take an average of six months. B. Suspensions of Between Six and 30 Days Department members suspended for a period of between six and 30 days may also request that the Police Board review their suspension. This review not as involved as a Police Board hearing, but it still requires Board participation. The accused officer submits a written statement and any supporting documents to the Board; a hearing of?cer prepares a written report based 0n the of?cer?s statement, the Complaint Register investigation ?le, and any rebuttal from the superintendent or and the Board receives the hearing of?cer?s written report, as well as an oral report at the Board?s meeting. Based on this information, the Board decides whether to sustain some or all of the allegations and, if necessary, determines the penalty. in choosing a penalty, the Board cannot exceed but may reduce the penalty chosen by the superintendent. The Board then issues a written decision, which it sends to both the of?cer and the superintendent. C. Appealing Police Board Decisions If either an accused of?cer or the superintendent disagrees with a decision of the Police Board, she may appeal by ?ling a petition for administrative review in the Circuit Court of Cook County. Pursuant to the Administrative Review Law, the circuit court?s decision is appealable to the Illinois Appellate Court and then, through a successful petition for leave to appeal, to the Illinois Supreme Court. As explained above, the accused of?cer can also grieve the decision of the Police Board. 70 EXHIBIT A Exhibit A Case: by Investigative Body Average case length {days} Investigative Sm 3.24: had? pe Operations! ?2 or manual Corruption or 21 5 misconduct Executive a 328 2008 2005 2010 201 1 2012 NA 5 Elm-mu n? Internal Affairs Is indemnch Reva-w Mhtun- F'mumlauus may nul [Mr due In rounding Hm dam mlqtu Ihr-?J duff: AT Kan-"pr "mm 71 Exhibit IPRA Caseload 2008?2013 5500? 5000? 4500- .1003- 3.500- 3.000? 2500- 2000- 1500 - Sur?ng Mm urn-r - "mind can Gum yur - Taser widely issued ivy-p" 1 H1 Clul?ld use: cans caseload cam Saturn 1000- 500 2am 2m: 2008 2009 2009 2009 201i! 201!) 2010 2011 21311 2011 2012 2012 2012 2013 2013 2013 2014 Simian mm mend sumo Inmalnd Chas-d Siam-In Inland Cloud Slam-nu Inmate-fr Clnud Shauna Minot-d Cloud Slamng Inn-ma Chou-d Sumng can: cudoud can: can unload cm: can: caumu cam tun cmlond cm: can cation-d I lndupandarl Patna Hm Aulnuttv AT Kuhn!" avian-s": 72 EXHIBIT Exhibit Current Appeal and Grievance Options - Grievance Recommended disCIpllne to ram ummary Settlement . . opinion conference Am't'at'on D- to 5-day suspenlion I 6? to 15-day suspension 16. to 30-day suspension 31- to sea-day suspension Separation Z?w? I'iusvluws Frale'lrdl O'Jul ui tokmtw bilge-nus: agree-man Nice Boa II: annual Ir?mm 73