Chicago was presented with a draft of a consent decree earlier this week that purports to be the foundation for comprehensive police reform in our city. It was written by the Mayor’s Office, the Police Department and Attorney General Lisa Madigan’s office, with input from Black Lives Matter, the ACLU and a number of community organizations and survivors of violent confrontations with police.
Jonah Newman of the Chicago Reporter has been following the story for years. He was on this week’s panel.
“And the back story is long and it is a history of black and brown organizing in Chicago,” he begins. “The more recent legal back story was a lawsuit that was filed in June of last year by a number of organizations, including Black Lives Matter. And that lawsuit was filed within weeks after it being leaked that the mayor, Mayor Rahm Emanuel, was negotiating an out of court deal with Jeff Sessions.
“And it was the potential of the Chicago Police Department being beholden to an out of court memorandum of agreement with Jeff Sessions that really motivated the black and brown communities that had been working on police accountability for so long to take the fight to court,” he continues. “And so that was the lawsuit that was filed. And [when] that lawsuit was filed the city made it very clear that it was going to fight that lawsuit tooth and nail. And it was only when the attorney general, Lisa Madigan, filed her lawsuit that a consent decree then became a possibility.”
Sheila Bedi is a Clinical Associate Law Professor at the Northwestern Law School and an attorney at the MacArthur Justice Center. She filed litigation that ultimately allowed the community organizations access to the consent decree process. “In other jurisdictions,” she explains, “I think some of the most important provisions have been about diversion. And when I say diversion what I really mean is ensuring the police officers have tools other than arrest to use when they are approaching people. So those can take the forms of citation programs, they can take the forms of pre-arrest diversion programs, community mediation.
“In many of the big consent decrees of the Obama era,” she asserts “—Ferguson, Baltimore, even New Orleans to some extent—those programs were a touchstone of the decree, and they’re really interwoven with a reduction in the use of force. They’re entirely absent here. And I think that’s a real problem.”
Diversion programs aren’t the only things our panelists lament being missing from the draft document. One of the most significant is gun use reporting. Activists want police officers to report in writing every time they draw their weapon and point it at a civilian. But while Attorney General Lisa Madigan wanted it, arguing that the data would help identify officers who are too quick to escalate an encounter, the City rejected the idea.
“That is something that the mayor and the police superintendent are fighting,” reports Newman. “They say it wasn’t a specific issue that was pointed out by the Justice Department in their investigation, although certainly they pointed out incidents where officers had pointed their guns at people, including children, and there’s plenty of lawsuits where that’s part of the facts of the case. So yeah, I mean, I think we’ll see if that becomes part of the consent decree or not.”
“Most of the other consent decrees have had this kind of language,” says Bedi. “It’s a very, very basic component of any kind of functioning accountability system. As well as what’s called an early warning system, where data’s collected on officers who may have a likelihood of engaging in excessive force. So the idea that there’s pushback on this is really, in some ways, incomprehensible. It’s a very, very basic thing.”
Mayor Emanuel is walking a tightrope between the community activists who are demanding more control of policing policy, and the police themselves – particularly the police union, which strenuously rejects it. And Superintendent Eddie Johnson seems to side reliably with the rank-and-file in rejecting calls for changes in operational policy. We ask the panel: is Eddie Johnson providing the kind of leadership that we’re going to need to get us out of this? Does he have the horsepower to help bring about serious reform?
“I mean, how would he? Is the simple answer, in my opinion,” replies Jonathan Projansky, representing Black Lives Matter Chicago. “Number one, when has he really broken rank with rank and file, meaning—I shouldn’t say rank and file as much as the FOP, right, in terms of what he’s called for. And number two, like every other step in the process of police accountability in our city, he’s appointed by the mayor. So it’s not like what he’s saying or what he’s putting out there is not also being in some way, shape or form approved by City Hall as well. So no, why would he? … When he was first presented, right, oh here’s this face that’s relatable, right, here’s a black man who is portraying himself to be everyday people, I’m one of you, I’ve had all this experience in the department … I know best, or we know best what’s best for you.
Meanwhile, the FOP has filed to intervene in the consent decree process. “And that would, at the very least, delay this process quite a bit”, asserts Newman, “and I think potentially derail it altogether.”
“There’s no question that that’s true if the FOP is successful in intervening,” Bedi agrees. “And it’s clear that some of the drafting in the decree was done specifically to ensure that the FOP doesn’t have an argument that its contract rights are being affected, so there is the provision that requires best efforts to renegotiate.
“There’s also a provision that basically says the decree, to the extent that any of the provisions of the decree bump up against the contract, the contract controls,” she adds. “And that is a very common provision. It’s in consent decrees all around the country. It creates a huge exception. But it also ensures that the FOP has a very limited argument in terms of being able to intervene.“
But that means that many critical issues, such as requiring the swearing of an affidavit before a complaint can be filed against an officer, and the 24-hour waiting period between a shooting incident and when the report must be filed – these issues remain soluble only through collective bargaining. And the Union has shown no interest in changing these practices. So that leaves some critical police reforms outside the scope of the consent decree. Nevertheless, Bedi asserts, the draft as it exists represents progress.
“We don’t know of any other police decree that allows communities to have the kind of power that’s allowed here,” she tells us. “It is enough? No. I mean, there’s no question that it doesn’t go far enough. But it does create an ability for organizations like Black Lives Matter, for mothers whose children have been murdered by the Chicago Police Department to have a platform in federal court. And that’s not nothing. It’s not enough, but it’s not nothing.”
And, she add, there’s a little-noticed provision in the draft. “And just on that point, I’ll say that the fact that the consent decree does not require the construction of a (police training) academy is a win for that campaign and is a win for the organizers who were running that campaign.
“What I hope” Bedi concludes, “is that the city and the state will recognize that this is an opportunity to truly transform the Chicago Police Department, to transform the relationship CPD has with black and brown communities.
And what that will require is to ensure that the decree has complete transparency, that folks most affected by police violence have the ability to access information about the police department, that the rights of people who have survived, for generations, the Chicago Police Department brutalizing their communities, occupying their communities, have the right to support and resources on par with those that are provided to police officers, and that police officers get tools other than arrests to use when they’re going into communities, that they can actually divert people from the formal justice system. That’s my hope, that’s my prediction, that we will get a consent decree that has those provisions when all is said and done.
Jonah Newman sees things a little differently. “I tend to be a little bit more skeptical. I think that when all is said and done, this is still a political process, it’s a political document. It comes at a political time, right? And there’s going to be a lot more politicking around this. It’s going to be…you know, and I do think it’ll be enacted—even once it’s enacted, it’s going to be decades before real progress is made.”
And BLM representative Jonathan Projansky concludes with a note of ambivalence. “I think until everybody in the city of Chicago feels that the police department is there to protect and serve them that we’re going to struggle to have any type of real reform. And I believe this consent decree is an opportunity for, on one hand, the city to actually do what’s right. Do I have confidence in that? Unfortunately, no.
“But on the other hand, (there is) some federal oversight that supersedes, or judicial oversight on a federal level that supersedes whatever opinions people at the city government level have. So it’s a real opportunity in that respect. Whether or not that takes place, we are going to continue pushing forward for what is needed in Chicago, which is true police accountability.”
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Listen to the audio here on Soundcloud.
Read a full transcript of the show here: CN transcript August 2 2018