While debate rages regarding the establishment of a civilian board to oversee the Chicago Police Department, the underlying police accountability system deserves greater attention. Unless we get this system working the way it should, adding a civilian board to oversee the Police Department will be mere window dressing.
Let me explain. From late 2015 until the fall of 2017, I led the city agency that investigates incidents involving deadly force by Chicago police officers, which in its present incarnation is the Civilian Office of Police Accountability, or COPA. COPA is part of the city’s overly cumbersome and often biased system that deals with police misconduct. What many Chicagoans don’t realize is that when COPA recommends an officer be fired for an unjustified use of deadly force, the process doesn’t end there. The case moves on to the Chicago Police Board because that is the only city entity with the legal power to fire an officer.
Since January 2016, the Police Board has ruled on four cases in which COPA recommended that an officer be fired either because the officer used deadly force without justification, or was accused of lying about an unjustified use of deadly force. But, the board has yet to fire a single officer in these cases.
Thus, Chicago Police Board: 4, COPA: 0.
One of the four cases involved the 2012 fatal officer-involved shooting of 15-year-old Dakota Bright. The teen was shot in the back of the head as Officer Brandon Ternand chased him through the backyards of a South Side neighborhood. The investigative agency found Ternand’s use of deadly force unwarranted and recommended that the officer be fired. After a hearing, the Police Board cleared Ternand and reinstated him with full police powers.
A review of the proceedings in Bright’s case and others indicates that Police Board procedures may not be as fair and neutral as they should be.
To address this, there are a few key changes the city of Chicago and the Police Board should make right away.
First, city lawyers must allow COPA to take greater ownership of the litigation of COPA matters before the Police Board. In the Bright matter, despite the fact that the city’s lawyers had defended the city in a lawsuit filed by Bright’s family, the city’s lawyers, not COPA’s, were the ones who drafted the formal charges against the officer and oversaw the lawyers who litigated the disciplinary proceedings before the Police Board. The fact that four fully-vetted COPA cases resulted in no officers being discharged raises concerns about how vigorously these matters are being prosecuted before the Police Board under the direction of city lawyers. Indeed, there is an inherent direct conflict of interest when city lawyers defend the city and/or the officer in a civil case by denying misconduct, then turn around and seek to fire the officer in proceedings before the Police Board.
Second, the Police Board should stop allowing the presentation of character evidence before the board determines whether the officer is guilty of the alleged misconduct.
In the Bright case, several character witnesses, including Ternand’s wife and childhood friend, testified about what a great guy the officer was. In its final report, the board actually mentioned this testimony when discussing why the board found the officer not guilty. That makes no sense.
The board rules should preclude the presentation of character evidence before the board has decided guilt, allowing it only when the board is deciding what penalty to impose. That is when such evidence is most appropriately considered.
Third, the board should allow victims of police misconduct to be heard. The current process provides no opportunity for victims to participate in board proceedings, other than those who are called on to testify as fact witnesses. This is antithetical to our justice system. The board should allow victims to provide written statements or oral testimony before the board finalizes a case. Dakota Bright’s mother, Panzy Edwards, was shocked when she learned from the news media that the Police Board had decided not to fire the officer who shot and killed her son. This is unfair and unfeeling. The board should notify victims of police misconduct when the board plans to meet to decide their cases.
As the city contemplates how to reform the police accountability infrastructure, these are a few important but easy fixes that could go a long way toward enhancing the fairness and neutrality of the police accountability system.
Sharon Fairley is currently a professor from practice at the University of Chicago Law School. Fairley is a former federal prosecutor and the former chief administrator of the Civilian Office of Police Accountability.