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Law prof and journalist team up to hold police accountable for their actions

By Lydialyle Gibson

September 1, 2016, 4:30 am CDT

“I think this will be our Ferguson.”

Sitting in his office at the University of Chicago Law School just over a year ago, attorney and professor Craig Futterman was talking about a video almost no one had seen. It was a dashboard-camera recording of a white Chicago police officer killing a black teenager.

The details, then still unconfirmed, rang with an ominous echo of the police shooting of Michael Brown, whose death in a Missouri street sparked weeks of protest.

Futterman, who runs the university’s Civil Rights and Police Accountability Project, hadn’t seen the video yet either; but he’d been pushing the city to make it public for months, ever since a confidential source had called and described it to him. “An execution,” Futterman’s source had called it. He searched for his own words. Finally he said simply, “This kid, his name is Laquan McDonald.”

Soon nearly everyone would know that name. Late last fall, a year and a month after the October 2014 shooting, a Cook County judge ordered the video released following a Freedom of Information Act lawsuit brought by independent journalist Brandon Smith. Futterman was one of Smith’s lawyers. Released Nov. 24, the video showed what Futterman knew it would: a dark street on the city’s Southwest Side, a 17-year-old with a knife, boxed in by cops and squad cars and then, as he edges away from them toward a construction fence, an officer emptying his gun into the teenager’s body.

The furor was immediate. Protests disrupted Chicago’s posh Michigan Avenue retail district during the Christmas shopping season. The U.S. Justice Department announced an investigation into the incident andthe wider “patterns and practices” of the Chicago Police Department. Police Superintendent Garry McCarthy was fired within a week, Cook County State’s Attorney Anita Alvarez lost her job in this year’s March primary, and Mayor Rahm Emanuel found himself similarly imperiled as his approval ratings sank and protestors howled for his resignation. And the officer who killed McDonald, a 14-year veteran of the force named Jason Van Dyke, was charged with first-degree murder the same day the video went public. In the months since, the political landscape around Chicago policing has shifted dramatically, and an extensive overhaul of the system that investigates and disciplines misconduct is under way.

These watershed events sprang largely from the work of Futterman and journalist Jamie Kalven, whose yearslong investigations into police abuse have uncovered hard truths about many Chicagoans’ experiences with officers whose sworn job is to protect them.

Sparked by a nationwide firestorm of protest over alleged police misconduct, especially involving shooting deaths of black males, there’s been a movement among legal, government and media organizations to create databases that inform the public about misconduct allegations and shootings by officers. These databases also provide criminal defense attorneys with potentially valuable information. And the efforts of Futterman and Kalven represent a highly successful campaign using government records to expose the failure of those governments to hold law enforcement accountable for its actions.

TRUST issues

Futterman talks often about trust—and about how little of it exists between Chicago police and the citizens who, arguably, need their help the most: residents of the troubled neighborhoods on the South and West sides. Most are African-American or Latino, and their distrust is as old as the city’s problematic history with race and justice, but it’s also borne out by present-day grievances and revelations.

That situation was highlighted in April in a searing report by a mayoral task force created to assess the city’s police accountability system. Its executive summary calls for the police superintendent to publicly acknowledge “CPD’s history of racial disparity and discrimination,” and criticizes the city and the police union for turning “the [police] code of silence into official policy.”

As much as the release of the McDonald video ignited anguish and fury, it also points the way forward, says Futterman, who continues to sue for more records connected to the inquiry into McDonald’s death. He helped draft a proposed city ordinance that would require video from police shootings to be released within 48 hours.

“Trust begins with honesty,” he says. “It begins with transparency. If the problems are racism, institutional denial, secrecy, impunity and a lack of accountability, that’s where the solutions lie, too.”

That could serve as a summary of the past 16 years for Futterman, who founded the Civil Rights and Police Accountability Project, part of the university’s Edwin F. Mandel Legal Aid Clinic, when he joined the University of Chicago law faculty in 2000. A former public defender, Futterman had returned to his hometown, after a year teaching public interest law at Stanford University, his alma mater.

Bald and broad-shouldered with a basketball player’s wingspan and a slightly wounded smile, Futterman exudes a perpetual kinetic energy, like someone forever working at a knot.

The ideas he and his students wrestle with—inequality, racism, abuse—have never been abstract to Futterman. Growing up, he occupied two worlds. One was in Niles, Illinois, a suburb northwest of Chicago. There his parents lived and he went to school, where he was just another Jewish kid roaming the halls of Maine North High School.

The other world was his grandparents’ Auburn Gresham neighborhood. When white flight swept through, his grandparents stayed. Eventually they were the only whites on the block.

“Some of my closest friends who became like family—who were family—were African-American,” Futterman says. “People who looked after me like a son and a little brother, who kept me out of trouble.”

It was clear early on that the existence his black “play brothers” navigated was very different from his own. There were times, he knows, when his white skin saved him. “Like any kid, I was an adolescent. I didn’t do everything right,” he says. “But I was able to go on to college, was able to go on to law school. That wasn’t so … for virtually everybody I know from those neighborhoods. Many of those folks who I consider family didn’t make it.

“Some have been killed. Some got addicted to drugs, some got drawn into violence. Some are in jail, and some remain in jail,” he says. “And there were many who were equally, if not more, talented than I was, more intelligent. But I had opportunities they didn’t have. It’s just that simple.”

By the time he arrived at law school in 1988, there was a fire in him. Gerald López, now a professor at UCLA School of Law, was Futterman’s mentor at Stanford.

“He was filled with intense and joyous energy,” López recalls. “The things he regarded as injustices he was not going to stomach—and not going to have other people told they weren’t injustices and they should swallow it and get on with their lives.”

The author of Rebellious Lawyering, López helped found Stanford’s Lawyering for Social Change program. Futterman fit right in, López says: “When you get somebody like that, … you just want to help keep what’s inside him alive and help him understand how to make it productive, so that all that passion doesn’t turn on itself.”

FROM CLASSES TO CASES

At the University of Chicago, Futterman takes on a handful of second- and third-year law students each year and coaches them through the work of real cases with flesh-and-blood clients: suits on behalf of people alleging police abuse and civil rights violations, criminal defense for people falsely arrested and accused. The students, he says, are “learning how to use their legal reasoning, yes, but they’re also learning what it means to be a lawyer—what it means to be responsible for representing another human being.”

Increasingly the litigation Futterman and his students work on is aimed at prying loose the long-shut files of the city of Chicago and the police department.

Until last fall’s engulfing crisis, the case consuming Futterman was Kalven v. Chicago, a seven-year odyssey of a FOIA lawsuit that ended with a 2014 appellate decision opening Chicago’s police misconduct files to the public. It was a stunning ruling. In the Chicago Daily Observer, social activist Don Rose wrote: “It will stand with some of the landmark public-interest cases in the past half-century.”

Plaintiff Kalven is a writer and human rights activist in Chicago. By the end of 2014, he and Futterman had in their hands hundreds of documents pertaining to citizen complaints against officers—allegations of harassment and verbal abuse, illegal searches, excessive force and more. By the end of 2015, the two had 56,000 misconduct records; the files came in huge batches from City Hall, and they included investigations into every citizen complaint filed since January 2011.

It was Kalven who found a witness to the McDonald shooting soon after the incident and, with a FOIA request, obtained a copy of the autopsy report, which directly contradicted police accounts of the shooting (for that reporting he was awarded the 2016 Ridenhour Courage Prize in March).

According to the department, McDonald had lunged at the officers before being shot in the chest. That assertion seemed dubious even before the video came out: The city had approved a $5 million settlement with McDonald’s family before a lawsuit was even filed.

The autopsy report revealed McDonald had been shot 16 times. In a February 2015 story for Slate.com (which later won a George Polk Award in Journalism), Kalven enumerated each of McDonald’s gunshot wounds—bullets struck his arms, legs, torso, neck and back—and concluded, “The autopsy makes one thing clear: The account of the incident given by the police cannot be true.”

Eleven months later, the video offered a definitive refutation. And it showed, in grainy black and white, Futterman says, an important transformation. Before Van Dyke arrived, the other officers on the scene were following good procedure: surrounding McDonald, keeping their distance, calling for backup. “But then the cowboy shows up,” Futterman says, and immediately after the shooting, they begin to fall in line behind Van Dyke.

“That’s the code of silence,” says Futterman. “The killing is shocking, but what happened afterward was utterly routine and shows more than anything the systemic problems.”

STOPPiNG ‘THE GREAT BONFIRE’

Older police misconduct files, except those specifically named in Kalven, remain closed and contested: In October 2014, as city officials were preparing to release abuse allegations dating back to 1967, the Fraternal Order of Police, which represents Chicago’s rank-and-file officers, sued citing collective bargaining agreements that required discipline records to be destroyed after five years.

“The great bonfire.” Futterman calls the potential purge.

But the bonfire seems unlikely to happen. In July, an Illinois appeals court ordered all the records be made public, unanimously overturning an earlier injunction that had blocked their release. The panel concluded that the clause ordering their de-struction was “legally unenforceable.” The police union may still appeal the ruling to the state supreme court.

“I don’t see the need for these files to survive forever, like Spam,” says FOP’s president, Dean Angelo. “If Jamie Kalven and Mr. Futterman get their way, guess what? Every unsubstantiated complaint and administrative infraction is on your file, in your jacket, forever.”

Inside thousands of boxes of reports are documents dating to former police Cmdr. Jon Burge’s tenure at Area Two headquarters, where he and his detectives tortured dozens of black suspects during the 1970s and ’80s. And there’s the rise and fall of the department’s notorious Special Operations Section, disbanded in 2007 after an investiga-tion revealed that its officers were running a robbery and kidnapping ring. And there are untold numbers of ordinary complaints, which together might illuminate, Futterman says, the patterns and practices the Justice Department is investigating.

The already-unsealed misconduct files hint at the analytic possibilities of the full data set. The records from 2011 to 2015, plus the few from the early 2000s that were part of the Kalven lawsuit, are now fully public in a massive, searchable online database called the Citizens Police Data Project. The Invisible Institute, a journalism nonprofit Kalven founded and directs, undertook most of the work of assembling the data tool. (In January, the project won a $400,000 grant from the John S. and James L. Knight Foundation.)

The database offers a crisp picture, Futterman says, of “a broken system.” Kalven puts it another way: “The knowledge to reform the system exists within the system, within this data. The patterns of misbehavior are so highly concentrated that if you wanted to intervene and stop it, you could.”

Here are a few of those patterns:

• Despite the fact that since 2004, according to a Better Government Association report, Chicago has paid out more than $600 million to settle police-abuse lawsuits, officers are rarely punished. The rate of discipline is about 3 percent for the 56,459 complaints in the database.
• Out of 8,923 officers with at least one allegation against them, only 1,288 ever faced punishment, and usually that was light—a reprimand or a suspension of less than a week.
• More than half of the disciplined complaints stem from personnel violations such as “wearing the uniform wrong, insubordination, being late for work, not showing up for work,” explains WuDi Wu, a data analyst and former law student of Futterman’s who’s been sifting through the data for nearly two years. “They’re getting punished for those more often and with a harsher punishment than for something like false arrest or illegal search.”
• Black officers were more likely to be penalized, and more harshly, than white officers, and complaints by white citizens were more likely to be upheld; whites made up only about 20 percent of the total number of complainants, but roughly 60 percent of their allegations were found to have merit.
• Similarly, while the vast majority of complaints are made by residents of poorer neighborhoods, the ones that stick are more often made by those from wealthier areas. “So according to the city,” Futterman says, “the victims of police brutality mostly live in middle- and upper-income neighborhoods—white neighborhoods.”
• Dig a little deeper, and something else becomes clear: Abusive cops are a small fraction of the force. Many police officers go their whole careers without a single complaint; the average, Futterman says, is about 1½. In a force of about 12,000 officers, those with 10 or more complaints make up only 10 percent.

“Our data suggests that every day there are a huge number of unexceptional and constructive interactions with police,” Kalven says. Overlooking that would be a mistake.

But the bad guys really stick out. And some of their names are famous.

• Jerome Finnegan, a former Special Operations officer now in prison for corruption (and for ordering a hit on a fellow cop he believed was cooperating with investigators) tops the database, with 68 complaints. He was never disciplined for any of them.
• Ronald Watts, who went to jail for stealing money from drug dealers, had 22 complaints; only one, a personnel violation, was sustained.
• Van Dyke, now charged with murdering McDonald, had amassed 20 allegations, including for racial slurs and use of force. None were found to have merit, though a civil lawsuit against him alleging excessive force during a 2007 traffic stop was settled for $350,000.

“It’s as if the city put a great deal of energy into not connecting the dots,” Kalven says, “not seeing the patterns, not knowing things it had the capacity to know.”

In May, a Chicago Tribune investigation detailed how the police union had bargained away salary increases in exchange for greater protection from scrutiny and citizen complaints.

A PROJECT’S last days

Kalven and Futterman’s battles began in a corner of the city that has since vanished. In the early 2000s, Stateway Gardens, one of the high-rise projects along a 2-mile stretch of continuous public housing on South State Street, was in its last days, emptying of residents and close to demolition.

Kalven had been a fixture there for a decade. He grew up a couple of neighborhoods over, in Hyde Park’s academic enclave, the son of Harry Kalven Jr., a First Amendment scholar who taught for 30 years at the University of Chicago Law School.

Lean and winsome, Kalven radiates an easy and almost immediate intimacy.

Kalven arrived at Stateway in 1993, first as one of several community organizers holding monthly candlelight vigils against the neighborhood’s violence, and later as almost a neighbor himself. He started a project to turn vacant lots into gardens and parks and another to offer social services and job training. He made friends among the dwindling population, set up an office in an empty first-floor unit, served as a consultant to Stateway’s resident-led advisory council. The place became a kind of home.

All the while, he was collecting stories, as much a witness as a writer. And he set up a website, The View from the Ground (the Invisible Institute grew out of this project) to document the housing project’s waning days and the daily lives of its scattering inhabitants.

“I recruited reality,” he says. “It was a way of attacking the disconnect between official narrative about what was happening in places like Stateway and observable reality.”

His thinking went like this, he says: “If nobody goes to these places, and if the people who live there are presumptively unreliable and discredited as witnesses to their own experience, then this stuff can keep spinning and churning forever without ever being held accountable to reality.”

Doomed and isolated (the last buildings came down in 2007), Stateway was still full of community life, Kalven found. “The very fact of abandonment can create an intensity of community life and mutuality,” he says. But it was also a place where social problems implicit everywhere became concentrated and magnified.

Among those problems: police abuse. The View from the Ground described racial slurs and routine excessive force. It was common, Kalven wrote, for cops to plant drugs on residents and to shake them down for money.

“For years,” he wrote, “friends at Stateway have told me that certain officers could be counted on to show up at the development on the first and 15th of the month—on check day.”

It was there that he and Futterman formed a partnership. At Kalven’s suggestion, Futterman started bringing students to the housing project. Only 20 blocks or so from campus, Stateway was “10 minutes away and a world apart,” Futterman says. The original intent was to bear witness. Futterman and his students would record evidence of abandonment and neglect—leaking pipes, crumbling walls—in hopes of improving conditions for the remaining residents.

Pretty quickly, though, Futterman and his students turned their attention, as Kalven had, to the police. “Residents were regularly harassed, stopped, searched; put up against a wall, the police car, the buildings and spread-eagled,” Futterman says. “That was just normal.”

Deborah Pugh, an attorney in Illinois’ Office of the State Appellate Defender, was among those students who saw Stateway in the early 2000s. She remembers realizing that “the Fourth Amendment has a completely different meaning depending on what neighborhood you live in.”

“We were observing and documenting these bands of officers who seemed able to engage in some of the most callous cruelty with impunity,” Futterman says. “Over the next few years, he and his students sued the city and the police department on behalf of several residents.

One of them was Diane Bond, a public school janitor. She and other residents had been tormented for years by a group of elite tactical police officers known as the Skullcap Crew. In a dispatch called “Kicking the Pigeon,” Kalven reported that one night in 2003, as Bond stepped outside her door, Skullcap officers put a gun to her head and forced her back inside, where they cuffed her, slapped her and threatened to plant drugs. They tore her unit apart. One officer, she told Kalven, ordered her to disrobe in front of him. Then he and others hauled Bond’s son out of another room and commanded him to beat up a man they’d grabbed down the hall.

Kalven helped Bond file a complaint against the officers. In April 2004, Futterman and his students helped her sue the city and the police department. To establish a pattern of abuse, during discovery he asked for misconduct records on the officers involved. Among the documents he received was a list of 662 officers who had amassed 10 or more complaints between 2001 and 2006.

But it and the other misconduct records were sealed under protective order. As Bond’s attorney, Futterman could see them, but Kalven could not. So as Bond v. Utreras wound through the federal court system and toward a $150,000 settlement, Kalven petitioned in 2007 to intervene and make the complaint files public. Chicago city council members joined the petition. The Chicago Tribune and the Sun-Times, the Chicago Reader, the New York Times and the Associated Press filed an amicus brief.

Kalven’s lawyer in the petition was Samantha Liskow, then an attorney with Loevy & Loevy. (She has left full-time practice but remains involved with Kalven-related litigation). For years she had chafed at the protective orders keeping police misconduct files sealed, sometimes challenging the protective orders in court.

“From my perspective, to continually allow these documents to remain secret was to prevent any systemic change,” she says. “Or any real analysis of whether and how the city was responding to complaints.”

How to measure change

After a victory in the first round, the petition failed on appeal; and in 2009 Kalven, Liskow, Futterman and his students sued under FOIA in Illinois circuit court. Five years later, the appellate ruling opened the documents. (The Chicago corporation counsel’s office did not respond to attempts to get its comments on the litigation.)

When Futterman is asked about the “meaningful change” he hopes to see—in the city, the police department and the culture of policing—he’ll tell you about a project that has nothing to do with a courtroom. It’s headquartered in the Invisible Institute’s offices, a low brick building around the corner from the U of C’s steam plant.

There, for four years, Kalven, his staff and Futterman and his students have met with local black high school students to discuss and document their everyday experiences with police.

The initiative, the Youth/Police Project, began as an effort to educate black teenagers about their consti-tutional rights. But Kalven says, “Pretty quickly it became clear that we had a lot more to learn from them than we had to teach them. The center of gravity shifted.”

In videos, the teens describe police attention that is almost always unwelcome; for some, being stopped and searched and having their names checked for warrants happens almost daily. Many describe frightening encounters.

In a March working paper on their findings, Kalven, Futterman and project director Chaclyn Hunt wrote, “Students’ knowledge of unchecked police power informs every encounter between them and police. … Nearly every student with whom we spoke has a friend or family member who has been beaten, arrested, tased or shot at the hands of the police.”

The videos are affecting—all those young faces, hurt expressions and rueful smiles. Futterman and Kalven use them in police training sessions and show them to policymakers. Recently, Futterman says, President Barack Obama asked to have a copy sent to the White House.

When the pair ask the students if they would call 911 when in trouble, the answer is almost always no. “And these are the ‘good kids,’ ” Futterman says. “They’re not dropouts; they’re not out on the streets. And they’re experiencing that kind of alienation.”

The day the McDonald video was released, Futterman was in court on another case. When he went home that evening, he sat down on the couch next to his wife and cried.

“You know, as much as I’d fought for the truth to come out, pushing and pushing and pushing for a year,” he says, “it’s still a video of a kid getting shot to death. And it’s still an execution being broadcast around the world.”

He went to bed feeling devastated, torn about whether he’d done the right thing. He woke up the next morning feeling better—“still hurting, but at peace,” he says, “and remembering why, no matter how much it hurts, why we fought. And why we fight.”

This article originally appeared in the September 2016 issue of the ABA Journal with this headline: “Policing the Police: A law prof and a journalist team up to open records and drive more accountability in law enforcement.”

 

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Lydialyle Gibson is a freelance writer and former Chicagoan now based in Boston.