Several months after the fatal police shooting of 17-year-old Laquan McDonald on the streets of Chicago, and nine months before release of video footage of the incident precipitated a political implosion that continues to reverberate, I observed that the fate of McDonald had become entwined with that of Mayor Rahm Emanuel. Three-and-a-half years later, this formulation is even more apt, as several processes set in motion during those turbulent days converge to create a fateful moment for the city of Chicago and its mayor.
The trial of Officer Jason Van Dyke for the murder of McDonald is scheduled to begin September 5 and promises to be a major media spectacle. It is all but certain that the city will await the verdict in the same state of collective tension that attended release of the video and with the same uncertainty about the consequences.
Concurrently, a consent decree negotiated by the Illinois attorney general and the Emanuel administration — a blueprint for police reform to be overseen by a federal judge — is moving toward being entered this fall. A draft of the decree was released on July 27. Although the period for public comment runs only until August 17, various provisions are destined to be debated for years.
A number of provisions in the consent decree were conditional on changes in the contract of the Fraternal Order of Police, which expired over a year ago. Under the terms of the decree, the city is to “use its best efforts” to negotiate changes in the collective bargaining agreement. The union is seeking to block implementation of the consent decree, which its president has characterized as “legally invalid” and “politically motivated.” So the prospects for constructive negotiations seem dim at best.
The next mayoral election is not until February 26, 2019 (and in the likely event of a run-off, April 2), but the campaign is fast gathering momentum. Among those challenging Emanuel are Garry McCarthy, his former police superintendent, and Lori Lightfoot, whom he appointed as chair of the police board and later, head of his Police Accountability Task Force. Given the presence of these two candidates in the field, policing and public safety issues will be central throughout the campaign.
Taken together, these developments ensure an extended period during which fundamental issues of racial justice will be intensely debated in multiple forums. A great deal turns on the quality of those debates. Will civil society and government voices sustain the public arguments necessary to realize the historic opportunity for fundamental change at hand? Or will the blood sport of the mayor’s race, the media circus of the Van Dyke trial, the complexity of the consent decree, and the intransigence of FOP yield a bruising, confusing public discourse that ultimately leaves Chicagoans more polarized, entrenched, and demoralized than they currently are?
A City Defined by a Killing
The city where these parallel processes are unfolding is on edge. Over the weekend of August 3, 74 people were shot in the city, 12 of them fatally. And several weeks earlier, community members and police clashed in a South Side neighborhood following the fatal police shooting of a resident, prompting anxious speculation about what will happen if Jason Van Dyke is acquitted.
The spasm of violence in early August dramatized the fundamental tension that shapes the discourse about police reform in Chicago. Over the several years that the city has been focused on curbing police abuse, there has been a spike in homicides and shootings in particular low-income black and brown neighborhoods, giving rise to an ongoing argument between those who claim reform measures impede the police and those who argue that accountability is a necessary condition for the police to be effective.
All of this is playing out against the backdrop of the narrative that now frames Chicago’s civic life: the police killing of Laquan McDonald. The centrality of that story is in some respects a mystery. Why this particular incident? This particular victim? A partial explanation is that the horror of the incident was compounded by the institutional response to it — by the knowledge that the city knew what happened and withheld that information from the public for over a year, while maintaining a patently false official account of the shooting that ultimately collapsed, exposing the machinery of the code of silence.
Whatever the reasons, the public narrative of McDonald now bears comparison to that of another child of Chicago, Emmett Till. The footage of McDonald curled in fetal position on the ground as Van Dyke fires again and again and again — 16 times — is akin to Till’s open casket: a portal through which the mutilated body of a child becomes the focal point for perceptions of underlying systemic pathologies.
The public narrative of Laquan McDonald now bears comparison to that of another child of Chicago, Emmett Till.
The cascade of events that followed the McDonald revelations — the firing of the police superintendent and the head of the Independent Police Review Authority, the mayor’s appointment of a task force on police accountability, the electoral defeat of the state’s attorney, and the intervention by the U.S. Department of Justice — was animated by the widely shared recognition that what had been exposed was intolerable and that fundamental reform was imperative.
On December 9, 2015, at the height of the political firestorm following the video’s release, Emanuel gave a speech to a special session of the Chicago City Council. It was arguably his finest moment as mayor. Visibly traumatized, he spoke with emotion and moral urgency. Chicago, he said, faces “a defining moment on the issues of crime and policing and even the larger issues of truth, justice, and race.” He acknowledged that a code of silence exists within the Chicago Police Department. And he committed his administration to a sustained process of reform, asking, in effect, that Chicagoans — and history — judge him by that single measure.
Addressing a shaken city, the mayor evoked a crisis of the civil order that demands we break with business as usual. What is required, he declared, is that we embark on a process of becoming a different kind of society — one, as he put it, in which a black child would be treated no differently by the police than his own children.
Chicago’s Path to a Consent Decree
The mayor has not consistently projected the sort of leadership he showed that day. Frequent wobbles and pivots have left him looking reactive and defensive. More often than not, he has appeared intensely tactical in the absence of a strategy. As a result, he has not told the story of reform in such a way that the public can clearly see particular measures as elements of a coherent larger plan.
At each successive stage in the reform process, the mayor’s first impulse, his political instinct, has been to balk. Then, as political pressure builds, he ultimately moves forward. This is not inspiring leadership, but it is a reasonably predictable political dynamic that advances the process, so long as sustained public pressure is applied.
Substantial progress has been made over the last three years. Among other things, a new agency — the Civilian Office of Police Accountability — has been established to investigate police shootings and allegations of excessive force, and the Inspector General of Chicago has been empowered to monitor the police department. Yet the reform process has often seemed becalmed and adrift, making it hard to assess progress. There are no firm coordinates. The sensation is akin to swimming across a large body of water and not being able to see either shore.
That will almost surely change now that the draft consent decree has been released. The complex, 233-page document includes provisions dealing with use of force, crisis intervention, supervision, accountability, transparency, hiring and promotion, and officer wellness. (According to the parties, the one outstanding issue they have not yet been able to resolve is whether officers will be required to file a report when they point a gun at someone.)
In order to grasp both the promise of the consent decree process and the challenges it faces, it is important to understand its history.
After Donald Trump was elected, the Civil Rights Division of the Department of Justice pushed to finalize the report on its investigation of the Chicago Police Department, releasing it a week before the inauguration. Once the new administration assumed office, it quickly became apparent that Attorney General Jeff Sessions had no intention of negotiating a consent decree on the basis of the report. He condemned such decrees as “politically expedient” measures “that will cost more lives by handcuffing the police instead of the criminals” and declared that Department of Justice would no longer enter into them.
Soon after the inauguration, Emanuel reached out to Sessions and sought to negotiate a nonbinding memorandum of agreement to govern police reform in Chicago. When word of the MOA negotiations leaked, it was widely derided as toothless, and the process ran aground.
The Chicago Police Department engages in an unconstitutional pattern and practice of excessive force, including deadly force, primarily against people of color.
In light of the new realities, civil rights lawyers at the University of Chicago and Northwestern University law schools developed a community-driven legal strategy for rebooting the consent decree process. In June 2017, they filed a class-action suit — Campbell v. City of Chicago — on behalf of a group of individual and organizational plaintiffs extending across the spectrum, from Black Lives Matter organizations to the NAACP and Urban League. They argued that their clients were at high risk of having their constitutional rights violated by the police and sought widespread injunctive relief and police oversight under the supervision of a federal judge. (Colleagues at the Invisible Institute provided statistical analysis for the Campbell lawsuit.)
The Campbell suit received immediate public support. It was endorsed by editorials in both Chicago newspapers and the New York Times and by various institutional players such as Chicago’s Inspector General. The American Civil Liberties Union subsequently filed a parallel suit seeking a consent decree on behalf of people with disabilities.
The Emanuel administration, however, declined the invitation to negotiate and sought to have the suit dismissed. It argued that the plaintiffs lacked standing and that a consent decree was unnecessary because the city was in the process of implementing the desired reforms.
That was the context in which, two months after the filing of the Campbell suit, Lisa Madigan, the state attorney general, sued the city seeking a consent decree on the basis of the patterns of unconstitutional policing documented in the DOJ report. And that was the context in which Emanuel took a step he had initially resisted and agreed to negotiate.
At that point, the process ceased to be public and became a matter of lawyers brokering an agreement behind closed doors. The Campbell and ACLU attorneys were not at the table, and so did not participate in crafting the decree. They did, however, succeed in securing a memorandum of agreement with the city and the attorney general under which their clients have a significant role in enforcing the terms of the decree.
The consent decree is a dense document. In assessing its provisions, it’s important not to allow the complexity of the prescription to obscure the stark simplicity of the diagnosis: The Chicago Police Department engages in an unconstitutional pattern and practice of excessive force, including deadly force, primarily against people of color. These patterns of unconstitutional police violence are enabled and shielded by systemic deficiencies in supervision, accountability, and training, and by the code of silence within the department.
That is the heart of the matter, the core problem that the array of reforms is designed to address. The sheer number of discreet measures invites a checklist approach that sees police reform as a matter of ticking off boxes on a long list. Such an approach fails to comprehend that some reforms have priority because they are foundational and must be securely in place for other measures to be credible and effective.
These patterns of unconstitutional police violence are enabled and shielded by systemic deficiencies in supervision, accountability, and training, and by the code of silence within the department.
One such area is use of force policy. Defining appropriate and excessive uses of force provides the basis for developing training, supervisory, and disciplinary systems. The section of the draft on use of force is a significant improvement over past policy and provides a sound foundation on which to build.
Equally fundamental to the operation of the decree is transparency with respect to the disciplinary process. Here the draft disappoints. Significant progress has been made in this area in recent years. The draft embodies those advances, but it misses an opportunity to go beyond them and build proactive transparency into the architecture, the DNA, of the reform process. The internal systems for managing disciplinary information are significantly improved. There is, however, no affirmative commitment to make that information publicly available. The public will be given aggregate numbers but not access to the underlying data.
This information is public under current law and can be accessed under the Freedom of Information Act. Why not then make it universally available? Against the background of the catastrophic suppression of public information in connection with the Laquan McDonald incident, a robust transparency regime of this nature would represent a dramatic institutional commitment to community participation in the reform process.
It is important to remember how we got here. The struggle for police reform has at every stage been driven by civil society energies moving against the undertow of official resistance. Central to that struggle has been the fight for access to information.
Just as information control is a tool of power, transparency is a way of redistributing power and so enabling community members to monitor the reform process and engage in joint problem-solving. To put the point another way, a measure of democratic renewal is essential, if we are to realize this historic opportunity. Only a process that exemplifies the qualities it seeks to institutionalize will establish true accountability and restore institutional legitimacy. In that sense, process is reform.
The Promise and Challenge of the Consent Decree
Whatever its strengths and limitations, the consent decree is a watershed. Christy Lopez, the lawyer in the Civil Rights Division who led the investigation of the Chicago Police Department (as well as the police departments in Ferguson, New Orleans, and a number of other jurisdictions), has hailed it as “a police reform milestone of unprecedented promise for Chicago” and “a beacon for people across the country who care about police reform and are discouraged by the federal government’s current refusal to protect people from abuse.”
If this promise is to be fully realized, both the public and police must engage with and invest in the effort over a period of years. The process thus hinges on two great questions.
What is the role of the public — especially the communities most affected by patterns of abuse — in police reform?
It is critically important that the institutionalization of reform via the consent decree not sideline participation of civil society, that the bureaucratic process not derail the political process. If Chicago can be said to be in the midst of a prolonged crisis of the civil order — reflected in the loss of legitimacy of key institutions, public distrust of civil authority, an intolerably high homicide rate, and an abysmally low police clearance rate in homicides and shootings — then the consent decree is best seen as an opportunity to reconstitute the relationship of Chicago residents to their government and its agents.
From one perspective, the document reflects this aspiration. Its central theme is “community policing.” Yet it is relatively silent on two critical conditions for effective community involvement in the process.
First, it affirms the need for some form of civilian oversight, but provides no parameters on what a civilian oversight board might look like and how it would be selected. This is a vexing issue that has divided activists. More guidance would have been welcome.
Second, to return to a theme touched on above, robust transparency is a necessary condition for community members to participate fully in the process. The consent decree draft falls short in this respect and so misses an opportunity for a paradigm shift in the stewardship of public information.
The years since the Laquan McDonald implosion have seen a remarkable upsurge of civic engagement with fundamental issues of racial justice in Chicago. Civil society — community groups across the spectrum, civic and religious organizations, philanthropy, and, of course, the civil rights bar — has mobilized on multiple fronts. It’s sometimes hard to see this in proper perspective, because engagement takes the form of challenging and criticizing each other, as well as the embattled Emanuel administration, which is precisely the point in a democratic polity.
There is now an opportunity for these energies to cohere around the consent decree process — for necessary arguments to advance within the framework it provides. If, however, the process does not make good on the promise of community inclusion, it will only deepen alienation in the neighborhoods most affected by both police abuse and violent crime, while inducing other concerned and mobilized Chicagoans to disengage. Moving forward on the long slough of reform under the consent decree, civic morale is a precious and highly perishable resource.
What impact will the stance of the Fraternal Order of Police have on the reform process?
It is essential that police reform, if it is to be effective, have buy-in from the police. Yet the FOP’s posture is one of blanket opposition to accountability measures as impediments to effective law enforcement.
In an effort to derail the consent decree process, the FOP has filed a motion to intervene in the case and a second motion challenging the role of the Illinois attorney general. Offered a memorandum of agreement granting enforcement powers such as the Campbell plaintiffs and the ACLU entered into, the union declined. When the attorney general’s office, in the course of developing the consent decree, reached out to officers to take part in focus groups, FOP discouraged them from participating.
Assuming the FOP is unable to legally block the consent decree process, it retains power to veto the implementation of certain provisions. The collective bargaining agreement — to use an unnerving verb in this context — trumps the consent decree. A number of desirable reforms in the draft decree can only be implemented if the FOP agrees to changes in the relevant provisions of its contract.
Perhaps the most disheartening thing about the FOP’s scorched-earth approach is that it denies the process the benefit of the perspectives, insights, and suggestions of the rank-and-file officers the union purports to represent. The effort to institute realistic, workable reforms would be greatly enriched, if those voices were audible, but they are largely displaced by the megaphone wielded by FOP’s leadership.
The public voice of the union is on a rhetorical offensive — demonizing Black Lives Matter groups, attacking the civil rights bar as the “wrongful conviction industry,” and assailing the press as purveyors of “fake news.” It is utterly uncompromising and projects an air of confidence that it’s on the right side of history. In May, Trump, for whom Chicago has long been a favorite target, tweeted support for a demonstration against Emanuel organized by FOP:
Chicago Police have every right to legally protest against the mayor and an administration that just won’t let them do their job. The killings are at a record pace and tough police work, which Chicago will not allow, would bring things back to order fast…the killings must stop!
— Donald J. Trump (@realDonaldTrump) May 25, 2018
In view of Session’s open hostility to police reform, it’s not inconceivable that the Department of Justice will intervene in the consent decree case on behalf of the union. Whether or not that happens, the terms of engagement have been set. The argument is not over how best to address an acknowledged problem; it’s over whether a problem exists at all. Considered in light of massive documentation by the Obama DOJ and others of grave constitutional harms, the position the FOP — and the Trump administration — are pressing, though they wouldn’t phrase it quite this way, is that the only form of effective policing is unconstitutional policing.
That is the charged setting in which the trial of Jason Van Dyke for the murder of Laquan McDonald will take place. In the protracted run-up to the trial, we have seen previews of the defense team’s strategy, which will be to portray the murder charge against Van Dyke as the result not of his actions, but of an anti-police media campaign. (I figured in one of those previews, when the defense served me with a subpoena in an effort to compel me to reveal a key source for my reporting on the incident.) Thus, for a period of weeks, the FOP worldview will be presented by the defense and amplified by media coverage intent on maximizing the melodrama of the trial.
It’s all but certain that tension and polarization will build in the city as the trial proceeds toward a verdict. For many, the only true measure of progress in police accountability will be a guilty verdict. If that verdict is not forthcoming, the city will face a test under the pressure of the centrifugal forces released by an acquittal or a hung jury. Will the center hold, as it did after the release of the video in 2015, when activists channeled outrage into inspired Black Friday demonstrations in the Michigan Avenue shopping district, and the police protected the exercise of their First Amendment rights?
Claiming the Society We Need
As I have tried to bring the state of the city at this fateful moment into focus, my mind has returned again and again to a scene described to me by a friend.
On July 15, a police officer shot and killed Harith Augustus, a neighborhood barber, on 71st Street, a major commercial street in the South Shore neighborhood. The officer who shot him was on foot patrol with other officers in response to neighborhood concerns about gun violence. According to a CPD spokesperson, they observed a man “exhibiting characteristics of an armed person” and questioned him, at which point — note the passive tense — “a confrontation ensues and he is shot.”
Almost immediately, alerts went out via social media, and protesters appeared at the scene. My friend, a young African-American woman who grew up on the South Side, was alerted to the shooting by a text message from the Black Youth Project 100, an organization of which she is a member, and immediately went to the site of the shooting.
She described a tense scene, as demonstrators faced off with police. Standing opposite a cordon of officers, many of them black, she and others shouted out questions. “Why are you all doing this?” “What’s the name of the officer who did this?” “Shame on you. We don’t want you here. Why don’t you leave?”
She noticed two officers, both black, standing side by side. One was pumped up, handling his baton with keen anticipation like a batter in the on-deck circle. He would later strike a female protester. The other had tears streaking his face.
For me, this scene encapsulates the promise and peril of the current moment in Chicago. The officers on foot patrol to prevent gun violence who ended up committing gun violence — perhaps justified, perhaps not. The demonstrators who mobilized in a matter of minutes to bear witness. The police on the scene to preserve order, but also to protect the First Amendment rights of the protesters. The officer for whom what couldn’t be expressed issued as tears. The razor’s edge between violent disorder and civic dialogue.
The situation on 71st Street, a close observer of the South Side later remarked to me, was “one thrown bottle away from a riot.” No doubt. Such an outcome is all too easy to imagine. Can we also imagine a society in which those frozen in this tableau could sustain a conversation with each other, could argue with each other and learn from each other, a society in which their exchanges could enrich the larger discourse? It’s up to us, at this defining moment, to claim full citizenship in that society.