In the midst of an almost deafening national and local outcry over police abuses, the Illinois Supreme Court may order the city of Chicago to destroy all records of complaints against police officers that are more than five years old, potentially undermining attempts to identify problematic officers
A decision is scheduled to be issued Thursday in a legal challenge brought by the union representing Chicago police officers, asserting that their contract with the city requires the destruction of old complaints.
University of Chicago Law Professor Craig Futterman said the case is fundamentally about a question being asked all over the country, whether police unions and city governments should be able to bargain away the rights of the public to have effective oversight of police officers.
“If the Fraternal Order of Police has its way, hundreds of thousands of Chicago police misconduct records will go up in smoke like a great bonfire, destroying the very information that's needed to identify and stop police officers who've been engaged in patterns of abuse,” Futterman said. “And this reality should be particularly unthinkable and appalling to everyone in this moment where we have people in Chicago and around the world raising their voices to affirm that Black Lives Matter. … What's at stake is the reality that the very records that we need right now to … prevent more black pain and deaths at the hands of the police could disappear.”
Attorneys for the Chicago chapter of the Fraternal Order of Police, which represents about 12,000 rank-and-file Chicago cops, agree there may be important public policy reasons for preserving police complaint records, but argue that “as important as those concerns may be” they do not give the city the right to ignore the contract, which requires complaint records be destroyed after five years.
“Changes … must come through bargaining, not fiat,” a union motion reads.
In response, attorneys for the city of Chicago say they have unsuccessfully attempted to negotiate those changes for decades, and both state and federal courts have consistently ruled that the city is required to keep complaint records, regardless of the language of the contract.
Futterman has been at the center of the fight to preserve and make public Chicago police complaint records for years. His legal work helped create a public database of complaints. But Futterman said he was “shocked” when he heard the state’s highest court was considering the complaint files case, especially because judges had consistently ruled against the destruction of the police records.
“The Illinois Supreme Court actually had to go out of their way, I think, to decide, ‘Let’s take this case.’ And that's just worrisome,” Futterman said.
He believes the court is preparing to overturn the previous decisions. And that, Futterman said, would be disastrous.
“Among the things that we've learned from scandal after scandal in Chicago is that patterns occur over time,” Futterman said. “You think about every Chicago Police Department scandal in the past 50 years — from the [Jon] Burge torture crew to Jason Van Dyke’s murder of Laquan McDonald. Each and every one of them involved officers, often groups of officers, who accumulated patterns of complaints that went unaddressed in the city for years.”
And Futterman said this is not just about uncovering past misconduct.
“There are officers on the Chicago Police Department right now who've been engaged in patterns and practices of abuse, who haven't been identified and who haven't been addressed,” Futterman said. “You destroy these records, you destroy this knowledge. It prevents the ability to actually stop them and identify them.”
“Why should that stay in your file forever?”
John Catanzara, the recently-elected president of the Chicago chapter of the Fraternal Order of Police, which represents about 12,000 rank-and-file cops, said he “absolutely” supports destroying complaint records after five years.
“If you have a not-sustained complaint, why should that stay in your file forever?” Catanzara asked.
During oral arguments in March, union attorney Brian Hlavin said the city’s efforts to save the records focused on “the worst of the worst” incidents of police misconduct. But he said many complaint files involve minor infractions. Hlavin argued that the only way to make sure old allegations don’t haunt an officer for her whole career is to force the city to get rid of the records.
But the union is pushing to destroy all complaint records, not just those for small violations or those that were deemed unfounded.
And Futterman said with Chicago’s broken police accountability system, the determination that there’s no evidence of police misconduct should not be a basis for destroying the complaint.
“The city has engaged in a pattern and practice of covering up police misconduct. And so records that have been labeled unfounded, time and time again, we're seeing actually are not unfounded,” Futterman said.
Sharon Fairley, the former head of Chicago’s Civilian Office of Police Accountability which investigates complaints of police misconduct, said she understands why a police officer may not want to be forever followed by long-past complaints.
“The idea that officers should have the opportunity to … create a clean slate if they haven't done anything for a while, that's a concept that's pretty familiar to us [in the legal system],” said Fairley who is now a professor at the University of Chicago law school.
But Fairley said she is opposed to the destruction of police complaint records. She said there are a lot of legal and practical reasons why destroying them would be problematic.
One issue is that it would hinder the city’s ongoing efforts to develop an “early warning” system to identify bad officers and correct problematic patterns. Fairley called developing an early intervention system “an important reform.”
“The idea is to try to identify the officers that look like they're going in the wrong direction so that you can intervene and give them training and try to correct that behavior that's being observed,” Fairley said.
And erasing the city’s memory would make that effort more difficult.
“If you have a circumstance where you have repetition of the same type of conduct over a period of time, then you know that you have a bad apple,” said Illinois Attorney General Kwame Raoul, who submitted a brief in the case. “But if you’re destroying records, you take away the ability to have that assessment … and that’s a disservice to public safety. That’s a disservice to police officers who do the job the right way.”