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Broken police oversight system rarely punishes cops

With his pledge to overhaul the city’s police oversight system, Mayor Rahm Emanuel has vowed to create something unprecedented in Chicago history: an agency that aggressively investigates abuse allegations and works urgently and independently to resolve them.

Now, a Tribune investigation reveals the scope of the challenge. Since its creation in 2007, the Independent Police Review Authority, the agency the mayor plans to replace, largely has failed at its main tasks — investigating police abuse and holding officers accountable.

The office has conducted investigations that were slow and superficial, and investigators have sometimes questioned officers briefly and given them deferential treatment, allowing police to avoid rigorous scrutiny. Often, that questioning took place months or years after an incident occurred.

IPRA has cleared officers in spite of physical evidence of misconduct, and recommended punishment in less than 4 percent of its cases. But even that rate is inflated by accidental weapon discharges that spurred little discipline; excluding those, the agency has upheld allegations in approximately 125 cases over the last four years, or roughly 30 a year out of the close to 2,000 cases it handles each year, the Tribune found.

That amounts to about 1.7 percent.

When it did recommend discipline, it often sought light punishment. And with many avenues for police to contest proposed punishments, IPRA’s recommended discipline often didn’t stick.

IPRA analysis: many cases, few officers disciplined

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Lewis complained to IPRA that an off-duty detective pointed his gun at him. An IPRA investigator found that the detective inappropriately pointed the gun at Lewis and gave a false statement about the incident. The investigator’s superiors disagreed, and the investigator wrote a new report clearing the officer of wrongdoing. The city later settled a lawsuit Lewis filed for $90,000.

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Fonder called police for help during an argument with his daughter. He said he was roughed up by the officers and filed a complaint. The officers were cleared of excessive force charges, while a supervising sergeant was disciplined for a minor violation of paperwork procedure through a mediation process. This means the case is considered sustained.

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Many of the Tribune’s findings could have been made about IPRA’s predecessor, the Office of Professional Standards, or OPS, which also was widely criticized for failing to hold officers accountable, even when it was clear that they had engaged in misconduct.

The Tribune investigation found, in fact, that IPRA has much in common with OPS. Many staffers stayed on from one version of the agency to the next. And while the first word in the agency’s name — the Independent Police Review Authority — was intended to emphasize its autonomy, IPRA has remained dependent on the Police Department to store records and emails and has sought advice from the Emanuel administration about communicating with the public.

Neither Emanuel nor his City Council allies have laid out the details of how they plan to reform the police oversight system. The mayor said in May that the plan would be spelled out by June, but the process has been delayed as the city absorbs blowback from a public skeptical of the administration’s desire for true reform.

In an interview, Sharon Fairley, named IPRA’s chief administrator by Emanuel in December, acknowledged the agency needed to improve its investigative techniques and become more independent, though some reform is already underway and could help IPRA achieve Fairley’s goals.

IPRA has reopened four previously closed cases and is reviewing about a dozen others to determine if they warrant reopening.

“I don’t want to speak for (past administrations), but I don’t see the level of digging,” Fairley said. “I don’t see investigators being challenged and charged with weighing credibility and assessing the plausibility of a narrative as much as I think should be done.”

The push to remake the police oversight system was prompted by protests over the release last year of a dashcam video showing the 2014 fatal shooting of 17-year-old Laquan McDonald by Officer Jason Van Dyke. A task force Emanuel formed in response to the protests, and to long-standing concerns over police accountability, recommended scrapping IPRA, which had replaced OPS following a series of scandals.

Now, IPRA is in a similar position, undergoing reform but poised to be replaced.

Not truly independent

When Mayor Richard M. Daley created IPRA, he brought in a new leader — an outsider from Los Angeles, lawyer Ilana Rosenzweig — and said he was so determined to make the agency independent from the Police Department that he made it part of its name.

Lawyers who specialize in police misconduct lawsuits say that, after OPS became IPRA, little changed.

“To me, they’re completely synonymous,” said Jon Loevy, a civil rights attorney who has won multimillion-dollar sums in lawsuits against the police. “It was the same employees, same attitude, same results.”

As of earlier this year, according to the city’s data, at least 24 of IPRA’s approximately 50 investigators were holdovers from OPS.

At least nine investigators or supervisory employees who were with the agency as of earlier this year had not played a role in upholding a case since at least 2012, according to a Tribune analysis of city data.

While IPRA reports to the mayor instead of the police superintendent, as OPS did, the agency has relied on the Police Department for key record-keeping tasks. IPRA has stored files at a police facility, and police staffers do some of IPRA’s record and data searches.

Fairley acknowledged IPRA’s dependence on the Police Department is a problem and said she plans to distance her agency from it.

Former IPRA Chief Administrator Scott Ando, who was forced out in December, declined to comment, as did Rosenzweig.

So far, Fairley said, City Hall has not interfered with her efforts to improve the agency.

IPRA leaders have said the agency hasn’t had the budget or personnel to effectively oversee the Police Department, and a report the city commissioned on the disciplinary system supported that finding, saying in 2014 that investigators’ heavy caseloads hampered their effectiveness. IPRA has about 90 employees and a 2016 budget of about $8.4 million; the Police Department has close to 12,000 sworn officers.

Little chance of discipline

An IPRA case faces rows of hurdles before triggering a recommendation for discipline.

One major obstacle is a matter of state law: a rule requiring complainants to sign a sworn affidavit. Many complainants decline to sign affidavits, some fearing harassment from police and others because they simply lose interest. The Tribune found that some 30 percent of IPRA cases since 2012 — more than 2,000 cases — were closed because complainants did not sign an affidavit.

IPRA’s chief administrator can override the requirement if an investigator finds evidence to support a claim but agency spokeswoman Mia Sissac said there’s no way to search how many times that happened under past administrations. Fairley has overridden the requirement in four cases.

Some cases closed without affidavits under past leadership involved serious allegations that ultimately proved costly to the city.

Matthew O’Brien was out for dinner and dancing one night in September 2013 when he had a dispute with a bartender at a tavern off Rush Street over drink recipes, and a bar worker battered him, he alleged in a lawsuit. O’Brien, then 24 and working for a health education nonprofit, tried to persuade police to take a report. When officers refused, he said, he tried to record a conversation with Lt. David Case, who, O’Brien alleged, then punched him in the face, putting him in a hospital’s intensive care unit for days.

O’Brien was charged with battery.

IPRA personnel came to O’Brien’s hospital room, he said, but they were so friendly with officers he assumed they worked together. Based on that experience and, later, his lawyer’s advice, he refused to sign an affidavit. In the end, the agency cited the lack of an affidavit or other evidence in closing the case in February 2015.

Meanwhile, O’Brien, who was cleared by a jury of the battery charges, filed a lawsuit. Four months after IPRA closed the case, the city agreed to pay him $200,000.

“There is no reason that the city should take responsibility for the mistreatment and injuries that I received, yet not hold Lieutenant Case accountable,” O’Brien wrote the Tribune in an email. “By doing so, they demonstrate that they condone irresponsible policing and protect the interests of dangerous police officers over the innocent people whom they target.”

Case declined to comment.

Fairley said she plans to make sure the agency isn’t closing cases when it should override the affidavit requirement.

Even when complainants and witnesses cooperate, the agency’s other shortcomings have led to weak, drawn-out investigations.

Since 2012, the agency has taken, on average, about six months to investigate a case, excluding those closed without an affidavit, data show. Ten cases that remained open as of June had already dragged on at least four years.

What’s more, investigators have waited months or years to do interviews with officers in shootings, giving time for memories to fade or for officers to square their accounts with those of colleagues. Among some 100 shootings since 2010 for which IPRA’s files listed the dates interviews were conducted, the average delay was nearly four months.

The Tribune identified 15 shooting cases in which investigators waited a year or more to interview officers.

Those interviews sometimes lasted 30 minutes or less, and in some the investigators failed to ask key questions and the interviews were far less aggressive than the examinations officers often have faced under oath as part of civil rights lawsuits, when every statement in a police report can be rigorously examined for inconsistencies.

After an officer shot an unarmed man as he ran from a car crash that followed a chase in 2012, for instance, IPRA waited more than two years before an investigator interviewed the officer. The interview lasted less than 20 minutes, and it elicited only vague information on certain key events leading up to the shooting. IPRA cleared the officer; the city later settled a lawsuit over the shooting for $78,000.

Shooting investigations have ended, in nearly every case, with the agency ruling the use of force justified. Of more than 400 police shootings of people since 2007, only three have been ruled to violate the city’s use of force policies, although some cases remain open, records show.

Fairley said the agency has sometimes waited to interview police until the state’s attorney’s office declined to file charges — which prosecutors have done in nearly every instance — and she said it makes sense to gather facts before rushing to interview the officers.

Investigators, Sissac noted, have undergone training in interviewing and evidence recovery, among other subjects, since Fairley took over.

With all the factors that have limited IPRA’s effectiveness, the agency upheld about 3.6 percent of all cases against officers from the beginning of 2012 to mid-June, excluding cases with no affidavit, according to a Tribune analysis. Not counting matters related to accidental weapon or Taser discharges, the agency has upheld just 1.7 percent of those cases.

Even when IPRA has found officers at fault, it often has upheld a less serious allegation and thrown out more serious complaints.

Of the roughly 200 cases in which an excessive force allegation was made and IPRA concluded some form of misconduct occurred, the agency found an officer culpable for a less serious offense in nearly half of the cases. In many of those cases, the agency determined officers committed such violations as using profanity or failing to complete reports, and dismissed the more serious charges of using excessive force.

Many other cases that IPRA upheld involved accidental weapon discharges, which typically lead to little discipline.

As a result, much of the discipline IPRA has recommended has been light, or virtually nonexistent.

Altogether, the Tribune reviewed 678 cases that IPRA sustained since its inception and for which it made records public. Of those, the agency recommended a reprimand or a violation notice in one-third of the cases, data show.

A violation notice disappears from an officer’s file after a year.

The median suspension length IPRA sought: five days.

IPRA has not had guidelines for determining appropriate discipline; Fairley, according to Sissac, is working with police administrators to standardize penalties. Fairley intends to begin seeking heavier punishment when investigators find misconduct, Sissac said.

But even in the rare cases in which IPRA has sought serious discipline, the recommendations frequently weren’t followed.

While IPRA recommends the discipline, the police superintendent can reject it, and officers have various avenues to appeal. Between 2008 and earlier this year, 43 cases in which IPRA recommended firing went before the Chicago Police Board, according to police board and IPRA data. The board agreed with IPRA that the officer or officers should be fired in 20 of those cases.

Cleared despite evidence

One case from the past that IPRA has reopened is the fatal shooting of Calvin Cross. The case illustrates the agency’s willingness to clear officers even when physical evidence raised questions about their conduct.

IPRA’s rules say it is supposed to use the same standard of proof employed in civil courts — preponderance of the evidence. That means even if the evidence in favor of wrongdoing is only slightly stronger than the evidence against it, an allegation against an officer should be sustained.

Civil attorneys contend IPRA has failed to follow this standard.

“People are convicted of crimes and sent away to prison on less evidence than the physical evidence in the Calvin Cross case,” said Torreya Hamilton, a lawyer for Cross’ family.

Cross, 19, was walking with a friend in the Far South Side’s West Pullman neighborhood just before 11 p.m. May 31, 2011, when a police car pulled up and three officers got out. In the chaotic moments that followed, Officers Macario Chavez, Matilde Ocampo and Mohammed Ali fired 45 shots and hit Cross five times.

The officers said they fired because Cross drew a gun and shot at them.

But the only gun police found at the scene was a Smith & Wesson .38-caliber revolver, records show, and the Illinois State Police determined that the aging revolver was both fully loaded and so plugged with grime that it could not fire. No useful fingerprints were found on it, adding to doubts that Cross had handled or fired the gun.

IPRA’s report, from investigator Daniel Kobel, noted the gun’s defects but nonetheless concluded that the officers believed reasonably they were in danger. The shooting was ruled justified.

“Officers Ali and Chavez both reported seeing Mr. Cross pointing and firing his weapon at the officers and they never saw him drop the weapon,” the ruling reads.

Cross’ family settled a lawsuit against the city for $2 million.

An IPRA spokeswoman said Kobel was not available for comment, and none of the police officers could be reached.

Cross’ mother, Dana, said she still wants the officers who shot her son punished.

She said she believes IPRA set out to clear the officers, no matter what the evidence, and the investigators “were just doing some paperwork to show that they tried to investigate.”

Changing findings

Repeatedly, IPRA investigators have determined police should face discipline, only to be overruled.

Lorenzo Davis, an investigator who was fired last year, said the agency grew resistant to upholding complaints during the tenure of Ando, a former Drug Enforcement Administration agent who became second-in-command at IPRA in 2011 and served as the chief administrator in 2014 and 2015. A onetime Chicago police detective, Davis has alleged in a Cook County lawsuit that Ando wrongly fired him for refusing to change findings in several cases in which Davis concluded that officers shot people without justification.

Emails sent by Ando to city officials – and obtained by the Tribune through an open records request — confirm he changed Davis’ findings.

“(Ando) said I was biased against police. He was biased in favor of police,” Davis said.

The overruling of misconduct findings extended beyond Davis’ cases.

Jimmie Lewis, a burly, gregarious bartender, was walking home one night in September 2013 when he arrived at an intersection along Irving Park Road near Pulaski Road around the same time as off-duty Detective Hector Matias, who was driving his SUV. Each man waved the other through the intersection, then exchanged words. Matias, according to Lewis, grew irate, got out of his SUV and rushed at Lewis, who started taking off his backpack so he could defend himself.

Lewis, then 39, said Matias raised his pistol and held it to Lewis’ face.

Witness Robert Ortiz said he was driving with his son just feet behind Matias. He corroborated Lewis’ version of events.

“I told my son, ‘Wait a minute, this guy’s going to kill this guy,'” Ortiz recalled.

Lewis said he called 911 as Matias drove off.

Matias gave responding officers a different account. He said Lewis crossed in front of his SUV, slammed his hands on the hood and took his backpack off, records show. Matias said he then jumped out, held his gun at his side and patted down the bag.

An officer who searched the bag found nothing more threatening than a corkscrew from work, records show.

Lewis was arrested on assault and reckless conduct charges, but the charges were dropped when Matias failed to show up for trial, court records show. Lewis then turned to IPRA. Investigator Darren Bowens found in June 2014 that Matias needlessly pointed his gun at Lewis and gave a false account to police.

“Detective Matias’ overall account of the incident is conflicting, non-credible and inconsistent,” Bowens wrote.

Nearly a year later, Ando’s top deputy, Steven Mitchell, told Bowens he felt Matias was justified, according to a sworn deposition Bowens gave after Lewis sued the police. So Bowens wrote a new report that used nearly identical language to summarize the facts but cleared Matias. The second report notes that an officer told Bowens that Ortiz had given him reason to doubt how clearly he saw the altercation, though Ortiz had told Bowens he saw what happened clearly.

Lewis said that finding out the officer had been cleared was “heartbreaking.” Months after IPRA closed his case, Lewis settled a lawsuit against the city for $90,000 — taxpayer money that did nothing to make him feel that justice had been done.

“I paid for myself getting a gun pulled on me,” he said.

Matias, Bowens and Mitchell — who has left IPRA — declined to comment.

Fairley said it is not inappropriate for an investigator and superiors to disagree, but she added it is problematic that the agency did not track such disagreements in the past. She has instituted a system to document disagreements.

As she has with other cases and IPRA practices from the past, Fairley acknowledged shortcomings in the agency’s handling of Lewis’ complaint.

“I think that this case would be handled differently under this administration,” Fairley said.

dhinkel@chicagotribune.com

jscohen@chicagotribune.com

jrichards@chicagotribune.com