A proposed settlement would broadside police accountability. That should never happen.
I was in the City Council chamber on April 13, 2015, when former Mayor Rahm Emanuel’s corporation counsel, Steve Patton, presented to the Finance Committee the city’s proposed settlement with Laquan McDonald’s family. The $5 million payout sped through the council, later raising questions about the administration’s motives. One alderman called it “hush money.”
At the time, the basic facts of the case were well-known. I had broken the story of the circumstances surrounding McDonald’s death two months earlier in an article headlined, “Sixteen shots.” Patton’s presentation to the committee was detailed. Yet the settlement was approved first by the committee and then two days later by the full council with virtually no discussion.
Let’s hope members of the Finance Committee are more attentive on Monday, when Mayor Lori Lightfoot’s administration presents the proposed settlement of a case with even larger implications for police accountability. Aldermen should reject it in its current form.
The name of the case is Green v. Chicago Police Department. Earlier this year, Cook County Circuit Court Judge Alison Conlon issued an order in Green directing the city to make public the entire archive of police misconduct investigations going back to 1967. It appears that the Lightfoot administration may be now trying to wriggle out of complying with that order.
The extraordinary opportunity Judge Conlon’s order represents for Chicago is the byproduct of the 35-year effort of plaintiff Charles Green to clear his name. Convicted in the 1980s as a 16-year-old of a quadruple murder and sentenced to life without parole on the basis of a confession he claims was coerced by detectives, Green has, according to his attorney Jared Kosoglad, suffered multiple miscarriages of justice. In 2009, a judge reduced his sentence and released him from prison on the basis that eyewitness testimony that could have helped his defense was not allowed to be heard at his trial. In the years since, Kosoglad and his client have pursued every avenue open to them in their effort to establish Green’s innocence.
At this point in the story, Green’s quest with the legal campaign to break down the walls of official secrecy around police misconduct investigations.
In 2014, the Illinois Court of Appeals ruled in Kalven v. Chicago, a case in which I was the plaintiff, that completed investigations of police misconduct probes are public information in Illinois. In the wake of the Kalven decision, there were two major developments.
First, my colleagues at the Invisible Institute set to work and created the Citizens Police Data Project (CPDP), a public database containing the disciplinary histories of Chicago police officers.
Second, the Fraternal Order of Police launched a legal counterattack in an effort to limit the scope of the Kalven precedent. It argued that its collective bargaining agreement with the city required that misconduct investigations be destroyed after five years.
That was the context in which Green made a Freedom of Information Act request in 2015 seeking all completed investigations of police misconduct since 1967. He did so to establish his innocence; and he did so on behalf of others wrongfully convicted for whom these documents are critical, if they are to have any chance of successfully petitioning to have their convictions reconsidered.
One of the FOIA exemptions that survived the Kalven decision is undue burden. By any measure, Green’s request was burdensome. According to the city, it encompasses 175,000 files, some of them hundreds of pages. CPD, however, failed to respond to Green’s request, thereby forfeiting its ability to invoke the undue burden exemption under Illinois FOIA.
Over the years, Kosoglad doggedly pursued the case, while the city created a record that reflected poorly on its commitment to transparency. Late in 2019, the judge presiding over the case retired and was replaced by Judge Conlon. After she reviewed the record, she issued a scathing opinion in which she found that the CPD had “willfully and intentionally failed to comply” with FOIA and ordered it to produce the files at issue by the end of this year.
The Lightfoot administration has responded on two fronts. It has appealed Conlon’s order. And it has proposed a settlement agreement with Green under which he will receive $500,000 in exconverges change for waiving his claim to the documents. Green is indigent and in poor health. He is not in a position to reject the city’s offer.
The same is not true of the City Council. It should break with the city’s long-standing practice of buying its way out of accountability. It should separate the question of reparations for Green from the fate of the documents. And it should press the administration to embrace the opportunity to create a national model of transparency in law enforcement.
Curated by CPDP, these documents would constitute an unprecedented human rights collection illuminating the lived experience of those who have suffered from police misconduct.
On June 18, the Illinois Supreme Court rejected the FOP’s argument that investigations more than five years old should be destroyed. Had the court ruled in the union’s favor, the result would have been akin to burning down a library containing an irreplaceable human rights archive. Yet it remains the case that a citizen who wants to access documents in that library must do so via the dysfunctional apparatus of the Freedom of Information Act. (One example, among many, of dysfunction: Requests for investigative files are routinely denied on grounds of “undue burden” because the particular officer has too many complaints.) The time has come to throw the doors of the library open to the public.
The city might object that the cost of making necessary redactions in the documents is too great. At this watershed moment in American life, how are we to calculate the value of full public acknowledgment of our history of abusive policing? What is it worth to us to dismantle the machinery by which government exercises information control as an instrument of power and to redistribute that power to self-governing citizens?
Ultimately, what is at stake in the Finance Committee’s review of the proposed Green settlement is the public’s right to the truth.
Jamie Kalven is executive director of the Invisible Institute, which focuses on accountability and transparency in public institutions.