Chicago Police and the Law

August 31, 2016

REUTERS/Brett Coomer/Houston Chronicle/Pool

(Editor’s note: Jury Verdicts recently invited Professor of Law Kathleen Reagan to comment on police brutality cases in the Chicago area.)

Chicago has an ongoing police misconduct problem, as acknowledged by Mayor Rahm Emmanuel in December 2015. As a result, the Mayor has attempted to address the issue through various actions, including forcing the resignation of Chicago Police Chief Garry McCarthy, announcing a plan for better police training on the use of force and the increased use of alternative techniques such as Tasers. But are these issues unique to Chicago, and do other legal avenues provide a way forward? This article attempts to address this question and to examine recent cases involving interactions with on-duty officers and also off-duty officers in the Chicago area.

For searches deemed to be unreasonable and thus unconstitutional, the Exclusionary Rule under the Fourth Amendment to the United States Constitution has long applied and since 1961, Mapp. v. Ohio, 367 U.S. 634 (1961) has set a means to punish the wayward conduct of police, and to incentivize proper police procedures in a way that lawsuits and tort claims cannot.

The doctrine recently received a fresh look in Utah v. Strieff, 136 S.Ct. 2056 (2016). In Strieff, during an unconstitutional investigatory stop, the police officer involved learned of a valid arrest warrant, arrested defendant Strieff, and in the course of the search incident to arrest, seized incriminating evidence. A divided court (5-3) upheld the defendant’s conviction on the basis that the officer’s later discovery of the arrest warrant “attenuated” the connection between the initial unconstitutional investigatory stop and the evidence seized incident to the arrest. Critics of this decision decry erosion of the Fourth Amendment’s protections of the individual through the use of the Exclusionary Rule. See e.g., “Defense bar blasts high court roll back of exclusionary rule,” published July 25, 2015 by the Massachusetts Lawyers Weekly reporter, Pat Murphy. As one initial basis for the Exclusionary Rule was the inadequacy of tort remedies for police misconduct, the issue remains alive today.

In addressing the issue of police brutality nationwide, a recent study by Harvard professor Roland G. Fryer, “An Empirical Study of Racial Differences in Police Use of Force” published in July 2016, found that “on the most extreme use of force – officer involved shootings – we find no racial differences in either the raw data or when contextual factors are taken into account” (Abstract). This study looked at locations including Houston, Dallas, Los Angeles, and six Florida counties.

Additionally, the study reviewed data captured by the New York police as part of its “Stop, Question, and Frisk” program as well as the Police-Public Contact Survey, which are both publicly available. Fryer’s study also found that blacks and Hispanics are more than “fifty percent” more likely to experience some use of force in interactions with police than whites. Adding controls for context and non-compliant civilian behavior reduces “but cannot fully explain” these disparities. The study concludes with the observation that the results may be explained by the argument that “police officers face discretely higher costs for officer involved shootings relative to non-lethal force” and further, that the results may also be consistent with “mis-measured contextual factors.” In short, the blow back to officers that occurs when there is an officer involved shooting is enough to deter the action in most circumstances, resulting in an action that is rarely done, even if wrongly done on occasion.

Professor Fryer’s argument regarding the lack of consequence and data for non-lethal force is prophetic in the context of Chicago’s policing practices. A database for Chicago of 56,000 misconduct complaint records for more than 8,500 Chicago police officers was released by The Invisible Institute on Nov. 10, 2015. This database was compiled by the Citizens Police Data Project in collaboration with the University of Chicago Law School’s Mandel Legal Aid Clinic, and it covered five years of complaints against Chicago police officers. This study showed that complaints of police misconduct in Chicago are mostly the result of the actions of a small fraction of officers. Further, it showed that repeated complaints against particular officers rarely result in discipline or termination.

Successful lawsuits are also difficult to achieve even with plaintiffs and attorneys highly motivated by the prospect of taxpayer funded settlements. Three recent Chicago-area cases highlight the hurdles that plaintiffs face in concluding a successful tort action for officer misconduct. These observations should also affirm the critical importance of maintaining the doctrine of qualified immunity for city officials and municipalities, which allows city governance to survive in a litigious environment.

In this examination, a distinction must be drawn between cases such as Fuery v. City of Chicago, 2015 U.S. Dist. Lexis 18938, where an off-duty officer became involved in an altercation after three women were returning from a gay pride parade in Chicago, and traditional encounters with officers who are on duty, such as in Misael Padilla v. City of Chicago, 2011 WL 3793413, and Doe v. Clavijo, 72 F. Supp. 3d 910 (N.D. Ill.  2014).  The distinction is based on precedent that distinguishes cases of misconduct by officers who engage in constitutional violations while on duty and who thus give rise to a potential claim against municipal authorities (otherwise immune from tortious suit), under the doctrine of Monell v. Department of Social Services, 436 U.S. 658 (1977).

The off-duty/on-duty distinction’s importance cannot be overstated for plaintiffs seeking to be compensated for police misconduct, because plaintiffs who are dealing with off-duty officers have difficulty in showing that municipal practices amounting to a Constitutional violation lead to the misconduct in the first instance on the facts, and also will likely have to stay the course for two trials on the merits.

This conundrum befell the Fuery plaintiff.  She has not yet been allowed to have a trial against the city, because under the Monell doctrine of qualified immunity, the district court has mandated that before any such claim can proceed, the officer involved must FIRST be found liable before any such trial may occur.

Accordingly, Fuery’s claims against the City have been bifurcated and await a successful verdict in the underlying case against the off-duty officer. The court acknowledged the stresses that a separate trial would place upon the plaintiff but reckoned that bifurcation still should occur because, as the court put it, there would be an inconsistent verdict if the jury found the City liable based on de facto policies the plaintiff alleges resulted in her claim, but not the officer for his conduct.  The court acknowledged that the case had been pending for seven years in its ruling.

If and when such verdict is reached, the Fuery plaintiff alleges municipal liability based upon allegations that the City allowed Defendant Szura’s violations to occur through policies of concealing and suppressing officer misconduct, of investigating complaints against off duty officers differently than complaints against other citizens, failing to maintain accurate records of complaints, and allowing a so-called “code of silence” to exist.

An “officer on duty” case, such as Doe v. Clavijo, 72 F. Supp. 3d 910 (N.D. Ill. 2014) faces different hurdles. In this case, which alleges extreme misconduct, the facts of the case are these:  plaintiff, 22, claims that on the evening of March 30, 2011, she was on her way home when she encountered defendant officers Clavijo and Vasquez, who were sitting in a marked police car uniformed and armed.

Plaintiff Doe’s claim is that the two motioned her over to their police car and she obeyed because they were police officers. The officers then offered her a ride home, which she accepted. The officers asked her to sit on one of the officer’s lap in the front seat of the police car. The officers then drove to a liquor store, where she was left alone in the car with Clavijo, who sexually assaulted her. The other officer returned to the vehicle, and she was subsequently driven to her apartment, where both officers sexually assaulted her.  She broke free, ran down the apartment hallway screaming, which neighbors heard and responded to.  She was immediately taken to the hospital and treated, and shorty thereafter, she filed a report with the Chicago Police Department.

Additionally, Doe alleges that two weeks prior to the assault on her, Clavijo sexually assaulted another woman in an unrelated attack, and although this assault victim reported the rape, the Chicago Police allowed the two officers to retain their positions as officers. In May 2011, the Cook County State Attorney’s office approved charges of sexual criminal assault against both officers, and also approved charges against Clavijo for the March 11 incident.

In the first substantive motions filed by the City in Federal Court, the City took the position that it could not be held liable for state law claims for tortious conduct of officers under a theory of “respondeat superior.” Accordingly its motion for judgment on the pleadings under FRCP 12(c) sought finality on the state law portions of the case concerning the City’s liability for the officer’s actions as an employer. The City relied, to its eventual disappointment, upon state law precedent that held “sexual assault by its very nature precludes a conclusion that it occurred within the employee’s scope of employment under ‘respondeat superior’” (citing Doe ex rel. Doe v. Lawrence Youth Hall Services, 996 N.E. 2d 52, 62  (Ill. App. Ct. 1st Dist. 2012).

The Clavijo court declined to follow that precedent, quoting with approval, instead, Doe v. City of Chicago, 360 F. 3d. 667 at 671 (7th Cir. 2004) that observed that though the Illinois Supreme Court had yet to determine whether the scope of employment for a police officer should be interpreted more broadly when the employee is a police officer, that this doctrine has a “footing in other Jurisdictions and may well be the wave of the future.”

In Misael Padilla v. City of Chicago, 2011 WL 3793413, the United States District Court for the Northern District of Illinois considered the following claim: the plaintiff alleged that he was pulled over in his motor vehicle by two members of the “Special Operations Section” on South Tripp Avenue in Chicago. Padilla alleged that the two officers took money from him and then planted drugs and a gun on him. He was charged with a moving violation, drug possession and a weapons charge. The plaintiff alleged the officers subsequently made false statements about him concerning the incident, resulting in his being charged, prosecuted and incarcerated for sixteen months.

Ultimately the Cook County State Attorney’s Office nolle prossed the charges against Padilla and brought criminal charges against the two officers for their actions regarding the incident. It was a circumstance, noted the court, indicative of Padilla’s innocence. The court concluded that because the alleged false claims were never presented for trial in state court that the federal claim on this ground could not survive. The matter was disposed of through summary judgment, leaving the state law claims alive for future legal action.

These three cases illustrate the hurdles facing Chicago tort claimants seeking to deter police misconduct for Federal Constitutional violations. However, the foregoing studies and cases also suggest two possible strategies to address the problem going forward: avoid eroding the Exclusionary Rule in situations of known police misconduct, and further examining the reach of the doctrine of respondeat superior in the context of employer oversight and the duty to supervise employees. Both of these avenues deserve more scrutiny.  While the Exclusionary Rule will not deter good faith police conduct that does not knowingly violate constitutional rights, nor will it deter conduct that is unrelated to the policing function, these avenues avoid such problems while supporting good police practices. That is something everyone can agree on.