BY ELEANORE CATOLICO
Very few police misconduct complaints see the light of day. Only about 7 percent are sustained, and only 2 percent result in officer discipline, according to the City of Chicago’s own data. What most troubles people looking to enhance police accountability, including Mayor Rahm Emanuel’s handpicked task force, is that the majority ofthe complaints never get investigated.
Of the 17,700 civilian complaints filed from 2011 to 2014, investigators didn’t open cases on 58 percent of them. Why? They were marked “no affidavit.” Due to a state law and police union contract rules, civilians must sign sworn affidavits to accompany their official complaints.
After a blistering 200-page task force report detailed the alleged failures of the Police Department, Emanuel and the city’s new top cop Eddie Johnson say that they’re ready to tackle police accountability and transparency. One way to regain the public trust, as suggested by groups as diverse as state lawmakers, policy researchers, civilian advocacy groups and the Independent Police Review Authority, is to nix the affidavit requirement and start investigating more claims.
The affidavit requirement is enshrined in the current police union contract—and it became a state law in 2004, after the city’s police union lobbied for it. Proponents of the law argue that it’s a deterrent for false claims and helps make the investigative process fair for police officers. Fraternal Order of Police President Dean Angelo told the Chicago Tribune last year that the law protected officers from biased or unfounded misconduct allegations.
But opponents of the requirement, including the Police Accountability Task Force, appointed by the mayor, say the law has a chilling effect.
“The affidavit requirement keeps people from bringing complaints and helps some police misconduct remain hidden from view,” the task force report reads. “[M]any citizens lack faith in the oversight structure or broader legal system and may think that even if their complaint is justified, signing an affidavit could put them in legal jeopardy.”
And there’s some merit to that, though IPRA spokesperson Mia Sissac couldn’t name a particular instance where an affidavit was used against a complainant in court. The reality is that the signed, notarized document could be used against complainants under suspicion of perjury, which is a Class 3 felony in Illinois.
Another reason the affidavit presents a barrier is the requirement that complainants sign the form in the presence of an IPRA employee.
“Either the affidavit is signed at HQ or the investigators have to go to the complainant to have the paper signed,” says Bocar Ba, a doctorate student at the University of Chicago Harris School of Public Policy who has conducted research on the affidavit requirement. “In both cases, distance is an important factor.”
Right now, it’s up to the rapid response investigators to collect the affidavit within 30 days of the complaint filing or the complaint will get marked “no affidavit,” according to IPRA’s intake and rapid response manual. Investigators coordinate with complainants to get these sworn testimonies on the books.
“Overall, the investigators will make every good faith effort — visiting homes, hospitals, jails, etc. — to obtain an affidavit at the same time they are taking a statement,” Sissac said.
But, according to the task force report, this practice has waned in recent years. IPRA has no clear guidelines on when an investigator is sent to retrieve a signed affidavit from a complainant.
“Investigators used to actively seek out the affidavits, sometimes even knocking on doors,” the report reads. “Investigators now play a much more passive role and have placed the burden on the complainant.”
Ba found that the proportion of affidavits signed dropped by 15 percent after IPRA moved its headquarters from its South Side location on 35th Street to the Goldblatt’s Building at Chicago and Ashland avenues in late 2011. The new, nondescript location currently lacks clear outdoor IPRA signage and sits nearly a mile from the nearest L station.
African-Americans saw the highest drop in affidavits signed as compared to other minority groups following IPRA’s move to the North Side.
Ba emphasizes that dropping complaints without affidavits doesn’t just hurt the complainant, it also hurts the Police Department — even if investigators rule that the complaint is not sustained.
“[I]f the affidavit is not signed, nothing will appear on the disciplinary history of the officer,” Ba said. “So essentially, the complaint is not binding and it is not a credible threat. If it’s fully investigated and we know that the officer was innocent, it provides useful information.” With the affidavit requirement in place, the complaint is ignored completely, he said.
In very rare cases, investigators can bypass the affidavit. If the complaint alleges criminal misconduct and the information provided proves “sufficiency based on objective verifiable evidence” — for example, video footage — then an investigator can request an override affidavit exception. The commanding officer of the Internal Affairs Division has the final say for IPRA cases, according to the FOP’s collective bargaining agreement with the city. But the “override process” is under-used, the task force found. Twenty-two “no affidavit” complaints that accuse officers of criminal misconduct never got an override request between 2011 and 2015, according to the Citizens Police Data Project. Four of those complaints accuse officers of criminal sexual assault and were never investigated.
The Commission on Accreditation of Law Enforcement Agencies (CALEA), which developsnational standards for public safety and law enforcement agencies, has joined the chorus of organizations that don’t consider the affidavit law best practice.
“[A]gencies should investigate all allegations of misconduct, regardless of their source,” CALEA recommends. “The agency [should] carefully review each complaint for validation before disregarding it for lack of a credible complainant” in the case of anonymous complaints.
In an open letter posted on IPRA’s website, Chief Administrator Sharon Fairley said that the agency had begun implementing some of the task force’s recommendations, including new case review procedures that will improve the quality of investigations and the implementation of guidelines for when an override of the affidavit requirement can be used.
Illinois legislators are taking action to reform the law that requires affidavits at the state level. In January, State Rep. Mary Flowers, D-Chicago, introduced HB 4476, which, among other things, seeks to eliminate the need for the affidavit requirement.
“HB 4476 will not require a public employer to investigate every complaint of alleged police officer misconduct,” Flowers said. “But it will prevent a public employer from using state law as justification for its failure to do so.”
Right now, the bill is being stalled in the Rules committee.
“We need to all be working on these issues,” she said. “Millions of dollars are paid out and so many lives are affected. It’s incumbent upon all of us to make sure this system works for everyone.”
This report was produced in partnership with The Chicago Reporter.