1 THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION WILLIAM CALLOWAY, ) ) Plaintiff, ) No: 18 CH 8965 v. ) ) HONORABLE JUDGE FLYNN CHICAGO POLICE DEPARTMENT, ) ) Defendant. ) DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant, the Chicago Police Department (hereinafter “CPD”), by and through its attorney, Edward N. Siskel, Corporation Counsel of the City of Chicago, hereby submits the following Motion for Summary Judgment pursuant to 735 ILCS 5/2-1005. UNDISPUTED FACTS 1. Plaintiff William Calloway’s Complaint is based on alleged violations of the Illinois Freedom of Information Act, 5 ILCS 140/1, et seq. (“FOIA”), concerning a FOIA request sent by Mr. Calloway to CPD on Sunday, July 15, 2018 (received during business hours on Monday, July 16, 2018). (See generally Plaintiff’s Complaint.) 2. In this FOIA request, Mr. Calloway stated: FILED 8/7/2018 1:25 PM DOROTHY BROWN CIRCUIT CLERK COOK COUNTY, IL 2018CH08965 FILED DATE: 8/7/2018 1:25 PM 2018CH08965
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THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY ... · In other words, the incident occurred on Saturday, July 14th, and CPD received Plaintiff’s FOIA request for materials concerning
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THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION
WILLIAM CALLOWAY, ) ) Plaintiff, ) No: 18 CH 8965
v. ) ) HONORABLE JUDGE FLYNN CHICAGO POLICE DEPARTMENT, ) ) Defendant. )
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Defendant, the Chicago Police Department (hereinafter “CPD”), by and through its
attorney, Edward N. Siskel, Corporation Counsel of the City of Chicago, hereby submits the
following Motion for Summary Judgment pursuant to 735 ILCS 5/2-1005.
UNDISPUTED FACTS
1. Plaintiff William Calloway’s Complaint is based on alleged violations of the
Illinois Freedom of Information Act, 5 ILCS 140/1, et seq. (“FOIA”), concerning a FOIA request
sent by Mr. Calloway to CPD on Sunday, July 15, 2018 (received during business hours on
Monday, July 16, 2018). (See generally Plaintiff’s Complaint.)
2. In this FOIA request, Mr. Calloway stated:
FILED8/7/2018 1:25 PMDOROTHY BROWNCIRCUIT CLERKCOOK COUNTY, IL2018CH08965
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I request all dash cam, body cam, surveillance cam footage collect as part of the investigation into the officer involves shooting that occurred Saturday July 14th, on 71st & Chappell in the South Shore neighborhood. [sic]
(Plaintiff’s Complaint, ¶ 23, and its unmarked attachment.) Plaintiff sent his FOIA
request to CPD the day after the incident.
3. Plaintiff filed the instant lawsuit on July 18, 2018.
4. The FOIA statute provides that a response or a request for an extension must be
submitted within 5 business days of receipt of a FOIA request. 5 ILCS 140/3(d). The fifth
business day after CPD’s receipt of Plaintiff’s FOIA request was July 23, 2018. On that day,
CPD notified Plaintiff that it required the statutory 5 business day extension provided in Section
3(e) of FOIA. 5 ILCS 140/3(e). CPD’s response then came due on July 30, 2018. On that day,
CPD denied Plaintiff’s FOIA request pursuant to Section 7(1)(d) of FOIA. 5 ILCS 140/7(1)(d).
5. Pursuant to COPA’s Video Release Policy, which was formulated from the
Recommendations of the Police Accountability Task Force in 2016, the City will release all
video and audio concerning the police-involved shooting within 60 days of the incident (or by
September 12, 2018), allowing for one 30-day extension in certain circumstances. (See Video
Release Policy, attached hereto as Ex. A.)
STANDARD OF REVIEW
“Summary judgment is appropriate when there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law.” Outboard Marine Corp. v. Liberty
Mutual Insurance Co., 154 Ill. 2d 90, 102 (Ill. 1992). Summary judgment should only be
granted when “the pleadings, depositions, and admissions on file, together with affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
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judgment as a matter of law.” Delaney Electric Co., Inc. v. Schiessle, 235 Ill. App. 3d 258, 263
(1st Dist. 1992).
In order for a party to prevail in a motion for summary judgment in a FOIA case, “the
defending agency has the burden of showing that its search was adequate and that any withheld
documents fall within an exemption to the FOIA.” BlueStar Energy Services, Inc. v. Illinois
Commerce Commission, 374 Ill. App. 3d 990, 996 (1st Dist. 2007). Furthermore, “[a]ffidavits or
declarations supplying facts indicating that the agency has conducted a thorough search and
giving reasonably detailed explanations why any withheld documents fall within an exemption
are sufficient to sustain the agency’s burden.” Id.
ARGUMENT
I. THE CLAIMS OF PLAINTIFF’S COMPLAINT ARE NOT RIPE, AS CPD HAD NOT DENIED PLAINTIFF’S FOIA REQUEST WHEN PLAINTIFF FILED HIS COMPLAINT. FOIA provides for a 5-business-day response period, with the opportunity for a 5-
business-day extension.1 As the statute states:
Each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request.
5 ILCS 140/3(d) (emphasis added). Section 9 of the Act provides for the methods by which a
public body may deny a FOIA request. As that section states:
1 FOIA provides for extended time periods for responses to requests made for a commercial purpose, requests by a recurrent requester, or voluminous requests, none of which is applicable here. 5 ILCS 140/3(i).
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Each public body denying a request for public records shall notify the requester in writing of the decision to deny the request, the reasons for the denial, including a detailed factual basis for the application of any exemption claimed, and the names and titles or positions of each person responsible for the denial.
5 ILCS 140/9(a). In other words, allowing for a 5-business-day extension, the Act provides for
only three possible responses to a FOIA request – (1) granting the request; (2) denying the
request in writing in the format provided in Section 9, quoted above; or (3) failing to comply
with the request within 5 business days, which is considered a denial.
Plaintiff’s Complaint does not allege any of these scenarios. Instead, Plaintiff alleges
only that “By July 18, 2018, CPD determined and announced that it will not release any
additional materials and that is leaving [sic] any further release to COPA,” (Complaint, ¶ 26),
and that “CPD has not responded to Calloway’s request, and thus has not satisfied its obligation
to ‘promptly’ respond.” (Complaint, ¶ 28.) In other words, the incident occurred on Saturday,
July 14th, and CPD received Plaintiff’s FOIA request for materials concerning the incident on
Monday, July 16th, rendering CPD’s response (or request for a five-day extension) due on
Monday, July 23rd. But because CPD had not yet responded by Wednesday, July 18th – only four
days after the shooting and two days after it received Plaintiff’s FOIA request – Plaintiff deemed
it denied, and filed the instant lawsuit that day, at 11:00 a.m.
The law is plain that a public body may deny a request in only two ways – timely
responding in writing, or failing to respond in five business days. Plaintiff has not alleged that
CPD did either of these things. And, the Act gives this Court jurisdiction only over FOIA
requests that have been denied. (“Any person denied access to inspect or copy any public record
by a public body may file suit for injunctive or declaratory relief,” 5 ILCS 140/11(a), and “The
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circuit court shall have the jurisdiction to enjoin the public body from withholding public records
and to order the production of any public records improperly withheld from the person seeking
access,” 5 ILCS 140/11(d).) Thus, Plaintiff’s Complaint does not state a claim upon which relief
can be granted, and summary judgment in favor of CPD on Plaintiff’s Complaint as written is
appropriate.
II. WHEN IT CAME DUE, CPD PROPERLY DENIED PLAINTIFF’S FOIA REQUEST PURSUANT TO SECTION 7(1)(d) OF FOIA. Should this Court choose to issue judgment on the substance of Plaintiff’s Complaint,
CPD is also entitled to summary judgment because it (eventually) properly denied Plaintiff’s
FOIA request. FOIA recognizes the strong public interest in ensuring the sanctity of a criminal
or administrative investigation, and recognizes that the public release of evidence connected with
such an investigation may handicap the investigation, or deprive someone of a fair trial or
impartial hearing. These interests are codified in Section 7(1)(d) of FOIA, which exempts, inter
alia:
Records in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would: (i) interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request; (ii) interfere with active administrative enforcement proceedings conducted by the public body that is the recipient of the request; (iii) create a substantial likelihood that a person will be deprived of a fair trial or impartial hearing[.]
5 ILCS 140/7(1)(d). The City Council has tasked COPA with the mission of working with CPD to reduce
incidents of police misconduct. As the Council has established by ordinance, COPA’s mission is
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to provide a just and efficient means to fairly and timely conduct investigations within its
jurisdiction, including investigations of alleged police misconduct and to determine whether
those allegations are well-founded, applying a preponderance of the evidence standard; to
identify and address patterns of police misconduct; and, based on information obtained through such
investigations, to make policy recommendations to improve CPD and reduce incidents of police
misconduct. (See MCC 2-78-110; see also Declaration of Brandon Crase, attached hereto as Ex. B, ¶2.)
By ordinance, COPA’s duties include, among other things:
(b) To conduct investigations into complaints against members of the Police Department alleging domestic violence, excessive force, coercion, or verbal abuse; (c) To conduct investigations into all incidents, including those in which no allegation of misconduct is made, in which, a Police Department member discharges: (i) a firearm in a manner that potentially could strike another individual, (ii) a stun gun or taser in a manner that results in death or serious bodily injury, or (iii) in the Chief Administrator's discretion, other weapons discharges and other use of Police Department- issued equipment as a weapon that results in death or serious bodily injury; (d) To conduct investigations into incidents, including those in which no allegation of misconduct is made, where a person dies or sustains a serious bodily injury while detained or in Police Department custody, or as a result of police actions, such as during attempts to apprehend a suspect; [and] (e) To conduct investigations into all incidents of an “officer-involved death,” as that term is defined in 50 ILCS 727/1-5[.]
(See MCC 2-78-120(b-e); see also Ex. B, ¶ 3.) In order to facilitate such investigations, the City
Council has mandated that City departments cooperate. As required by ordinance:
It shall be the duty of every officer, employee, department, and agency of the City to cooperate with the Office in any investigation undertaken pursuant to this chapter. Any employee or appointed officer of the City who violates any provision of this chapter shall be subject to discipline, including but not limited to discharge, in addition to any other penalty provided in this chapter.
(See MCC 2-78-140; see also Ex. B, ¶ 4.)
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Because the incident met the criteria of MCC 2-78-120, as set forth above, COPA is
undertaking an investigation into the July 14th shooting of Mr. Augustus. (See Ex. B, ¶5.) While
CPD had publicly released one segment of a body-worn camera video on the day after the
incident, COPA has publicly stated its objections to any further release of video connected with
the incident at this time, on the ground that the release of other videos would impede COPA’s
ongoing investigation. As COPA Chief Administrator Sydney Roberts stated to the Chicago
Police Board at its meeting of July 19, 2018, in part:
COPA is in the very early stages of this investigation. And it has been less than a week since the incident occurred. I want to assure the public that COPA has not reached a conclusion in this investigation. Many unanswered questions remain. Many facts are still unknown, witnesses to be identified, interviews and evidence to be examined and analyzed. I appreciate and empathize with the community’s desire for more information. And as the Chief Administrator, it is my duty to balance that need against the duty to ensure that actions are not taken that may compromise the integrity of this investigation. Publicly, on numerous occasions, we have stated that protecting the integrity of our investigations is paramount and must never be compromised. To that end, COPA must ensure that witnesses, civilian or sworn, do not intentionally or otherwise comport their interview statement to what they observed on video rather than their independent recollection. Further audio and video released prior to the interview of key witnesses creates substantial risk to the integrity of this investigation. COPA is committed to investigating this incident and all matters under its jurisdiction in a fair, competent and thorough manner, independent of outside influence, bias or prejudice. COPA is equally committed to transparency. To that end, we will release all video, audio, and 911 communications at the earliest point, while still
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preserving the integrity of the investigation, on no later than September 12, 2018, which is 60 days from the date of the incident as reflected in the City’s transparency policy.
(See Ex. B, ¶ 7, and its Ex. 2.) Chief Administrator Roberts further stated COPA’s position on
the release of further records concerning this incident in her letter of July 19, 2018 to CPD
Superintendent Eddie Johnson, in which Roberts expresses COPA’s disagreement with CPD on
its decision to release a segment of one video on the day after the incident. As Roberts states in
that letter, in part:
Furthermore, and of critical importance, publicly releasing video prior to COPA conducting key interviews creates a substantial risk that witnesses to an incident, civilian or sworn, may intentionally or unintentionally comport their recollection of the events with what they have seen in the video. Additionally, such unilateral public release does not allow COPA, as it is required to do under the City’s Video Release Policy, the opportunity to afford the deceased’s next of kin review of the video prior to the release. As a former law enforcement officer, I understand the need for public safety and the Department’s concerns and obligations in that regard; however, there are other methods of ensuring public safety that the Department could have – and has previously – used that do not risk undermining a subsequent investigation. * * * * * COPA therefore requests that the Department cease any further release of information in this case or other COPA investigations without the express concurrence of COPA.
(See Ex. B, ¶7, and its Ex. 1.) As COPA Senior Litigation Counsel Brandon Crase has attested
in his declaration, COPA objected to the release of further information at the time of Mr.
Calloway’s FOIA request, on the ground that the release of the material that he sought could
have impeded COPA’s ongoing investigation for the reasons set forth by Chief Administrator
Roberts in the sections quoted above. (Ex. B, ¶¶ 7-8.)
Because Chief Administrator Roberts and Senior Litigation Counsel Crase have
established that the release of the materials requested by Calloway in the weeks following the
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incident would have impeded COPA’s investigation, CPD has met its burden of demonstrating
that its denial under Section 7(1)(d) was justified. CPD must work in cooperation with COPA on
its investigations of CPD actions. (See MCC 2-78-140.)
For these reasons, CPD’s response to Calloway’s FOIA request was appropriate, and
summary judgment on behalf of CPD is warranted.
WHEREFORE, for the above stated reasons, the Defendant asks this Honorable
Court to grant its Motion for Summary Judgment or for such other relief as this Court
deems just and appropriate.
Respectfully submitted, By: ___\s\ Amber Achilles Ritter_______ Amber Achilles Ritter Amber Achilles Ritter Chief Assistant Corporation Counsel City of Chicago Department of Law Legal Information and Prosecutions Division 30 North LaSalle Street, Suite 1720 Chicago, Illinois 60602 (312) 744-0741 Attorney No. 90909
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RECORDS RELEASE POLICY
In 2016, Mayor Rahm Emanuel convened the Police Accountability Task Force ("Task Force")to review and offer recommendations on various matters concerning law enforcement, includingthe public release of videos, audio, and police reports related to police-involved shootings andother incidents. In February 2016, the Task Force issued preliminary recommendations on therelease of such material, and on April 13, 2016, as part of its report entitled Recommendationsfor Reform: Restoring Trust Between the Chicago Police and the Communities They Serve, theTask Force included revised recommendations on this issue ("Release Recommendations").
Since that time, the City has followed these recommendations, and has posted the material on apublic website previously maintained by the Independent Police Review Authority (IPRA),located at www.iprachicago.org/news publications/case portal/, and now maintained by theCivilian Office of Police Accountability (COPA). Included in the Release Recommendations isa provision for ongoing review of the proposed policy. As tie Task Force stated:
The provisions of this policy should be reviewed by the City after it has been ineffect for one year (or sooner if appropriate) in order to determine whetherexperience with its implementation and application supports revision of the policywith respect to any issue, including (but not limited to) whether the 60-day periodand the 30-day extension it provides for may be shortened or whether its scopemay be expanded to cover additional types of incidents.
(Release Recommendations, ¶ VI) The City is now codifying the Release Recommendationsinto a formal policy. This Policy incorporates the provisions of the Release Recommendations,as well as additional provisions that reflect guidance on topics not addressed in the originalrecommendations.
I. PURPOSE AND POLICY CONSIDERATIONS
As the Task Force noted in its recommendations, this Policy is intended to strike a balancebetween competing and sometimes conflicting interests of (a) the public in timely access to videoand audio recordings and particular related initial police reports pertaining to certain incidentsinvolving the use of force by police officers; (b) individuals who are the subject of the policeaction; and (c) units of local, state, and federal government (including agencies of the City)involved in investigating or otherwise addressing the consequences of those incidents. Theprivacy rights of citizens involved in the events are also an important consideration.
II. SCOPE
A. Incidents. Consistent with Municipal Ordinance Code Section 2-78-120(c) and (d), thisPolicy encompasses the following types of incidents: (1) those in which any CPDmember, while on-duty or off-duty, discharges a firearm in a manner that strikes, orpotentially could strike, another individual, even if no allegation of misconduct is made;(2) those in which any CPD member discharges a Laser or stun gun in a manner that
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strikes another individual and results in death or great bodily harm; and (3) those inwhich, as a result of the possible use of force by a police officer or other City employee,the death of, or great bodily harm to, a person occurs while that person is in the custodyof the CPD or during attempts by CPD police officers to apprehend a suspect. (Referredto hereinafter as the "Incident.") "Great bodily harm" means any injury that is seriousenough to require treatment in a hospital or similar facility located in a correctionalinstitution.
B. Recordings and Reports. This Policy applies to the following items that relate to anyIncident: all video and audio recordings related to the Incident, including tapes of 911calls, OEMC dispatch recordings, CPD radio calls, video and audio recordings from CPDdash or body cameras, video recordings from CPD or OEMC POD cameras or other City-controlled cameras, and any video or audio recordings made using cameras or equipmentnot owned or controlled by the City that come into the possession or control of CPD,COPA, or OIG; and any CPD arrest reports, original case incident reports, tacticalresponse reports (TRRs), and officer's battery reports (OBRs) related to the Incident.(Referred to hereinafter as the "Information.")
An audio or video recording "relates to" an Incident when it (1) depicts or captures anyportion of the Incident; (2) depicts or captures a CPD Department member activelyconducting law enforcement activity at the scene of the Incident; or (3) depicts orcaptures a CPD Department member's conduct while en route to the scene of theIncident. In the case of OEMC dispatch recordings, audio "relates to" an Incident whenit captures references to the Incident, or is otherwise relevant to the Incident based on theproximity of time or location, or the persons involved.
III. RELEASE OF INFORMATION
A. Timing of Release of Information. Any Information covered by this Policy shall bereleased to the public no more than 60 calendar days from the date of the Incident unlesseither a request is made to delay the release of any or all of the Information pursuant tothis Policy or the release of the Information is prohibited by court order. Where anyvideo or audio recording covered by this Policy made using cameras or equipment notowned or controlled by the City comes into the possession of the City after the date of theIncident, it shall be released to the public no more than 60 days after it comes into thepossession of the City, but the City shall make every effort to provide for the release ofsuch recordings simultaneously with the release of other Information related to theIncident.
B. Requests to Delay Release. Upon written request from a government entity specifiedherein, the City will delay release of Information for a period not to exceed 30 calendardays. Any such request shall be made in writing and shall be directed to the CorporationCounsel. The Corporation Counsel shall determine whether the requested delay iswarranted, and shall grant or deny the request within 5 business days of receiving such arequest. Where a request is received on the day of publication, publication shall be
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delayed until the Corporation Counsel renders his/her decision. Such a request may bemade by the United States Attorney for the Northern District of Illinois, the Cook CountyState's Attorney, the Attorney General of Illinois, COPA, or any other federal, state,county or local law enforcement agency. Any request must set forth with specificity thelength of the delay requested (not to exceed an additiona130 calendar days, except whenextraordinary cause is shown) and shall set forth as reasons supporting the requesteddelay one or more of the factors listed at 5 ILCS 140/7(1)(d)(i) through (vii). In addition,any such request must identify the specific items) sought to be temporarily withheldfrom release. The written request to delay release itself will be released to the publicimmediately upon receipt using a portal or website used for the distribution ofInformation subject to this Policy. The City will not honor any further requests to delayrelease beyond the initial request, and will not honor a request for a delay of release thatexceeds 30 calendar days. The City will honor a court order prohibiting the City fromreleasing Information, even when such an order results in a delay greater than the timeallowed for requests under this Policy. Nothing herein prevents the City from redactingor withholding records or portions of records pursuant to the exemptions set forth in 5ILCS 140/7(1)(d), or the mandates of other laws, including but not limited to the laws setforth in Section V(b) of this Policy.
C. Early Release of Information. Where doing so will not compromise an ongoinginvestigation, any Information covered by this Policy may be released before theexpiration of 60 calendar days, and may occur as soon as possible after the Incident.
D. Manner of Release of Information. The City shall create and maintain a publiclyaccessible website, dropbox or similar portal dedicated to the posting of the Informationcovered by this Policy.
IV. NOTICE TO AFFECTED PARTIES
Prior to the release of the Information, COPA will attempt to notify any person who was thesubject of the police action and is depicted in any video recording, or if that person is deceasedor otherwise unavailable, that person's legal representative and/or next of kin (the "affectedparties"), that the video recording and any related Information will be released and the date ofthe release. COPA shall also offer to promptly make available for review by such affectedparties the video and audio recordings) in which that person was depicted, in advance of itspublic release. COPA shall provide "affected parties" with information regarding the status ofany investigation underway by COPA at that 'time, to the extent that such information can beprovided without compromising any ongoing investigation.
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V. LEGAL CONSIDERATIONS
This Policy is intended to govern the conduct of the City and its agencies and officials withrespect to the matters it covers. It is not intended to create, displace, or supersede any legal rightor remedy available to any person or entity. It is also not intended to prevent or hindercompliance by the City with respect to any legal obligations, including (but not limited to):
(a) any order of court; or(b) any obligation to redact or withhold information from any item covered by this Policy
before its release to the public. This includes (but is not limited to) obligations under:
a. The Health Insurance Portability and Accountability Act of 1996 ("HIPAA").Material to be withheld under HIPAA includes audio recordings capturing thediscussion of Protected Health Information with the Chicago Fire Department,which is a Health Care Provider under that Act.
b. The Illinois Juvenile Court Act, 705 ILCS 405/1-1, et seq. Material to bewithheld under the Juvenile Court Act includes law enforcement records(including video and audio recordings) that relate to a subject who has been"investigated, arrested or taken into custody" before his 18th birthday, 705ILCS 405/1-7, unless a court order allowing for their release has beenobtained pursuant to 705 ILCS 405/1-7(c).
c. The Illinois Law Enforcement Officer-Worn Camera Act, SO ILLS 706/10-1,et seq. That Act prohibits the public release of certain body-worn camerafootage, including (but not limited to) where a subject of the recording has notbeen arrested and has a reasonable expectation of privacy.
d. The Illinois Identity Protection Act, 5 ILCS 179/1, et seq., which prohibits theCity from publicly posting or displaying an individual's Social SecurityNumber.
Further, it is not intended to prevent the City from exercising its right to redact informationexempt from production under the Illinois Freedom of Information Act, 5 ILLS 140/1, et seq.
The City's inclusion of an Incident or Information within this Policy, and the subsequent publicrelease of that material, in no way suggests that the City or any of the involved City entities havemade any determination regarding the conduct of any CPD member or other City employee, thecause of injury to or death of any individual, or, whether any released material bears any legalrelevance to a particular Incident. The City and its entities including, but not limited to theChicago Police Department, COPA and the Department of Law do not waive any rights availableto them under any law by including an Incident under this Policy.
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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOISCIVIL DEPARTMENT, CHANCERY DIVISION
WILLIAM CALL4WAY,
Plaintiff, )} Case No. 18 CH 8965
v. )
CHICAGO POLICE DEPARTMENT, )}
Defendant. )
DECLARA`T'ION OF BRANDON CRASE
I, Brandon Crase, state the following under oath:
1. I am employed by the City of Chicago Civilian Office of Police Accountability
{"COPA") as Senior Litigation Counsel. My job duties include overseeing any litigation
involving CODA and also managing COPA's FOIA responses. I have worked at CODA since
June 2017.
2. COPA was created by ordinance of the Chicago City Council. (See Chicago
Muziicipal Code ("MCC") 2-7$-100, et seq,) Pursuant to that ordinance, COPA's mission is to
provide a just and efficient means to fairly and timely conduct investigations within its
jurisdiction, including investigations of alleged police misconduct and to determine whether
those allegations are well-founded, applying a preponderance of the evidence standard; to
identify and address patterns of police misconduct; and, based on information obtained through
such investigations, to make policy recommendations to improve the Chicago Police Department
("CPD") and reduce incidents of police misconduct. (See MCC 2-?8-110.)
3. COPA's duties include, among other things:
(b) To conduct i~~vestigations into complaints against members of the ~'oliceDepartment alleging domestic violence, excessive, force, coercion, or verbal abuse;
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(c) To conduct investigations into all incidents, including those in which noallegation of misconduct is made, in which, a Police Department member discharges: (i)a firearm in a manner that potentially could strike another individual, (ii) a stun gun orLaser in a manner that results in death or serious bodily injury, or (iii) in the ChiefAdministrator's discretion, other weapons discharges and other use of Police Department-issued equipment as a weapon that results in death or serious bodily injury;
(d) To conduct investigations into incidents, including those in which noallegation of misconduct is made, where a person dies or sustains a serious bodily injurywhile detained or in Police Department custody, ar as a result of police actions, such asduring attempts to apprehend a suspect; [and]
(e) To conduct investigations into all incidents of an "officer-involved death," asthat term is defined in 50 ILCS 727/1-5[.]
MCC 2-78-120(b-e).
4. In order to facilitate COPA's investigations, the City Council has provided that
"[i]t shall be the duty of every officer, employee, department, and agency of the City to
cooperate with the Office in any investigation undertaken pursuant to this chapter. Any
ezxiployee or appointed officer of the City who violates any provision of this chapter sha11 be
subject to discipline, including but not limited to discharge, in addition to any other penalty
provided in this chapter." MCC 2-78-140.
5. Pursuant to its duties set forth in MCC 2-78-120, cited. in Paragraph 3 above,
CODA opened an investigation into the July 14, 2018 police-involved shooting death of Harith
Augustus. That investigation continues at this time. COPA's investigations involve, among
other things, gathering and reviewing documentary and physical evidence, gathering and
reviewing video/audio evidence, and interviewing wiEnesses.
6. It is my understanding that nn July 1 S, 201$, CPD released to the public one of
several videos in its possession from the body-worn cameras of the officers who were present at
the time of the shooting.
7. Because of COPA's ongoing investigation into the incident, COPA objected to
the release of additional materials from the incident at that time. It is COPA's position that the
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release of further material at that tinne could have interfered with COPA's ongoing investigation.
The reasons for this objection are set forth in a July 19, 2Q18 letter from COPA Chief
Administrator Sydney Robez~ts to CPD Superinteandent Eddie Johnson, attached hereto as Ex. 1;
and Roberts' remarks July 18, 2018 at a meeting of the Chicago Police Board, attached hereto as
Ex. 2 (see specifically pages 4-8).
8. It is my understanding that CPD received a Freedom of Information Act ("FOIA")
request from WXlliam Calloway dated Sunday, July 15, 2018 (zeceived by CPD on Monday, July
16, 2018) seeking dash cam, body cam, acid surveillance video collected as part of the
investigation into the shooting of Mr. Augustus. The release of the material that Mr. Calloway
requests could have impeded COPA's ongoing investigation for the reasons set forth in Ex. 1
and 2.
9. If called to testify as a witness, I can testify competently to the matters and facts set
forth herein.
Under penalties as provided by law pursuant to Sectzon 1-109 of the Code of Civil
Procedure, 735 ILCS 5/1-109, the undersigned certifies that the statements set forth in this
i~~strument are true and correct, except as to matters therein stated to be on information amd belief
and as to such matters the undersigned certifies as aforesaid that he verily believes the sanne to be
true.
Signed this 6th day of August, 2018.
c~~` '—
—,' ---~~~~~andc~ii K. Grasc
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•.INTEf, RITY r TRANSPARENCY w iNDEPENDEN CE • TIME:I.INESS
T~ia Electrnnrc Mail
July 19, 2018
Eddie T. JohnsonSuperintendent of PoliceChicago Police Department3510 S. Michigan AvenueChicago, Illinois 60653
Dear Superintendent Johnson:
I write regarding the Chicago Police Department's release of certain video footage related to theJuly 14, 2018 officer-involved death of Mr. Harith Augustus.
We are concerned that the Deparhnent's release of select —and edited —video from the incidentundermines the process for release of information carefully established by the City. Strayingfrom these established policies can frustrate efforts to restore trust and confidence in this City'saccountability system. The Department's decision to release certain video, but not other video oraudio from this incident has placed COPA in the untenable position of attempting to maintain theintegity of our investigation after the Department has already released some —but not all — ofthe relevant video. This piecemeal and arguably narrative-driven video release breedssuspicions, which may ultimately undermine COPA's ability to successfully investigateallegations of misconduct and officer involved shootings — an outcome inconsistent with theCity's efforts at reform.
Furthermore, and of critical importance, publicly releasing video prior to COFA conducting keyinterviews creates the substantial risk that witnesses to an incident, civilian or sworn, mayintentionally or unintentionally comport their recollection of the events with what they have seenin the video. Additionally, such unilateral public release does not allow COPA, as it is requiredto do under the City's Video Release Policy, the opportunity to afford the deceased's next of kinreview of the video prior to its release.
As a f~rnaer law enforcement officer, I understand the need for public safety and theDepartrr~ent's concerns and obligations in that regard; however, there are other methods ofensuring public safety that the Department could have —and has previously —used that do notrisk undermining a subsequent investigation. The Department elec#ing to release video in aneffort to quell public concern in this instance has the real potential to undermine theaccountability process by establishing a dangerous precedent in which video is released onlywhen it serves to justify the actions of Department members. That would be a step backward,not forward, for Chicago's transparency efforts. Public safety must be maintained even in
1615 WEST CHICAGO AVENUE, 5TH FLOOR, CHICAGO, ILLINOIS 60622312.743.COPA (COMPLAINT LINE) ~ 312.746.3609 (MAIN LINE) ~ 312.745.3598 (7lY) ~ WWW.CHICAGOCOPA.ORG
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instances in which there is no video appearing to provide justification for the Departmentmember's actions or, worse, when there is video that appears to undermine a Departmentmember's actions. To the extent the Department's decision addressed a real or perceived risk ofpublic safety, any short-term success in that regard comes with an increased risk to public safetyin the future should the Department make a different decision in the immediate aftermath ofanother incident. In short, any narrative-driven decision relating to release of information mayundercut COPA's ability to balance transparency with investigative needs, and may alsoundercut the long-term goal of public trust.
The City and its citizens will only come to trust the Department as well as the entire oversightsystem when there is trust in the system and the process. COPA therefore requests that theDepartment cease any further release of information in this case or other COPA investigationswithout the express concurrence of COPA.
Respectfully,
,- a~ ~ -/~~~~Sydney R. RobertsChief AdministratorCivilian Office of Police Accountability
cc: Walter Katz, Deputy Chief of Staff for Public Safety, Office of the Mayor