On Tuesday, Mayor Lori Lightfoot reiterated her commitment to police reform by announcing a set of specific directives to Chicago police Superintendent David Brown that should be implemented as quickly as possible.
Her fervor and sense of urgency is palpable. As a former member of the Chicago Police Board and former head of the Police Accountability Task Force, she knows the challenges we face all too well.
Her acknowledgment that implementation of the consent degree has been too slow was important. Police reform is hard and takes a lot of political courage on the part of police officials and city administrators. Too many cities that were dragged into police reform pursuant to a consent decree have languished under court oversight for more than a decade. Today, we don’t have the luxury of ambling our way toward reform. The pain and frustration that have boiled over into protest cannot be assuaged if we move merely at “all deliberate speed.”
The initiatives highlighted by the mayor are important and necessary. But there is more we must do right now to address the issues that confront us.
First, we should ensure that the Chicago Police Department’s use-of-force policy clearly prohibits the kind of police behavior that resulted in George Floyd’s death. The department’s directives, updated in February, include provisions that prohibit certain tactics that can lead to asphyxia. This is a good start. But perhaps they should be more explicit. We should make sure that all department members receive clear and adequate training on this issue, immediately.
Next, we should make sure Chicago police officers are held accountable for improper behavior during the management of the recent protests. In addition to investigating specific complaints of misconduct and excessive force arising from the protests, the Civilian Office of Police Accountability also should conduct a pattern or practice investigation to assess whether department members engaged in proper use-of-force practices and adhered to the department’s policies regarding their policing. By ordinance, COPA has the power to do both.
Longer term, the public safety inspector general should consider auditing body camera footage. Such an audit could be used to assess: (1) whether officers reported use-of-force incidents accurately; and (2) whether officers fulfilled their duties to report misconduct and to intervene when a colleague was engaged in the use of excessive force.
We also must address the Illinois statutes related to policing. They are, in a word, terrible.
The Illinois law enforcement officer bill of rights creates numerous impediments to accountability. The Illinois statute governing the use-of-force by law enforcement tracks very closely to the constitutional rule established by the Supreme Court — an extremely low standard. The state law should be revised to more closely reflect current best practices by emphasizing that an officer’s use-of-force is only reasonable when it is necessary to address the law enforcement goal in that moment, whether that is placing someone under arrest or protecting the officer or someone else from threatened harm. And the statute should be revised to permit the use of deadly force only when the officer faces an imminent threat of death or serious bodily injury to himself or someone else, and only as a last resort.
Similar changes in state use-of-force laws have been accomplished in California and Washington state. In Washington, the change was largely due to the diligence and perseverance of community activists whose grassroots efforts were successful in getting a referendum on the ballot. Over the objections of police leadership and unions, Washington voters overwhelming passed the ballot initiative, and the state legislature codified it into law last year. Unfortunately, the Illinois Constitution does not allow us to follow that path, so we must rely on our political leaders to legislate away the legal impediments to police accountability.
Two additional legislative initiatives are warranted here.
First, to encourage and allow for more civilian oversight of police, the state law requiring independent investigations of officer-involved death incidents, enacted in 2015 pursuant to the Police and Community Relations Improvement Act, should be revised to clarify that these independent investigations may be conducted by qualified civilian investigators working for an oversight entity with the proper legal jurisdiction. Second, state law should prohibit the destruction of police disciplinary records under most circumstances.
We must push Gov. J.B. Pritzker, Attorney General Kwame Raoul and our state legislators to focus on these as legislative priorities. This will require them to stand up to the police unions who are sure to push back against such reforms. Although the new head of Chicago’s Fraternal Order of Police may acknowledge that George Floyd’s death was the result of an inappropriate use of deadly force, under his leadership the FOP’s strong opposition to police reform for Chicago is likely to continue unabated.
Lastly, we need everyone in the Chicagoland community to start paying attention and to hold our political leaders to account when they are slow to enact necessary reforms.
Sharon Fairley is a professor from practice at the University of Chicago Law School. She is a former federal prosecutor and the former chief administrator of the Civilian Office of Police Accountability.
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