No Directive for Disclosure

 /  May 14, 2018, 3:35 p.m.


Brett_CALEA

The Gate has obtained exclusive access to the University of Chicago Police Department’s official operating policies. Please go to the end of this article to read the relevant General Orders published in part. This article discusses some of these uncovered protocols and HB 3932, an Illinois law that likely would have made them public.

Less than 22 hours after Charles Thomas, a fourth-year student in the College, was shot, the University of Chicago Police Department released footage of the incident. Those several minutes, watched and re-watched by thousands of concerned students, depicted what even Craig Futterman—the UChicago Law professor behind the release of the Laquan McDonald tape—called a “more restrained use of force” than he typically ever sees.

Earlier that day, President Zimmer had quickly reassured the campus community that the officers involved were “following protocol” when they entered the scene. Chicago media agreed and concluded that the bodycam and dashcam footage effectively exonerated Officer Twardak.

What might have sweltered into a significant PR disaster for the University fizzled once everyone was able to bear witness to the events of that night. Speaking about the incident, Futterman said “the University deserves credit” for how it was handled. While some had come looking for a greater cause to rally around, the videos showed perhaps the most clear-cut example of a vindicated officer-related shooting.

But, what if it hadn’t? What if the footage showed the officer carrying out an unreasonable use of force? Would the University have held off and informed a waiting audience without the centerpiece of evidence?

They certainly could have.

At a free speech event two days after the incident, Zimmer brushed aside a student’s question about the UCPD’s disclosure of its Use of Force policy by repeating that he’d “take a look” at the issue and that he wasn’t even sure “if it’s public or not.”

If the President of the University didn’t know, the obstacle may be too great for the average student.

Knowing whether Officer Twardak acted according to procedure and whether the public reserves the right to know are in fact guaranteed by the same standard of disclosure. We hold public police forces (access CPD’s General Orders) to this standard. We hold intelligence agencies (file a request with the NSA) to this standard. But even while state government has handed the UCPD “the authority to execute [a search and arrest] warrant anywhere within the state of Illinois,” that same standard of disclosure wasn’t also extended (GO 101.3).

The campus community remains unaware of how the UCPD operates and—by virtue of this unclarity—if they’re operating properly. No productive conversation about the UCPD’s role in the community can be had without this information. How this disparity of openness managed to occur is almost an accident of history and concerns the short and fraught life of House Bill 3932.

Students stroll to class under the watchful eye of the UCPD

How would we know?

The Stone Report, the University’s guiding statement on free expression, declares that “without a vibrant commitment to free and open inquiry, a university ceases to be a university. The University of Chicago’s longstanding commitment to this principle lies at the very core of our University’s greatness.”

When illiberal forces wanted to suppress the free exchange of ideas and information, former presidents like Hutchins, Edward Levi, and William Rainey Harper rebuffed them and brought forth a campus community centered around comprehensive analysis and openness.

Fifty years ago, these very same ideals were enshrined in federal law as the Freedom of Information Act. Speaking on the House floor just before the bill’s passage, John Moss, its chief sponsor, made clear his bill’s philosophical foundation: “Inherent in the right of free speech and of free press is the right to know.”

Moss and every other voting member of the House recognized that open discourse and rigorous inquiry are empty if the public is shrouded in ignorance.

Almost fifty years later, Representative Barbara Flynn Currie realized that FOIA and its Illinois rendition weren’t meaningfully applying to her constituents. Currie, whose Hyde Park-centered district is patrolled heavily by the UCPD, began hearing complaints in the fall of 2014 about the Department’s patrol activities.

More than twenty years before then, Currie (along with every other member of the Illinois state House) had voted to endow the UCPD and other private police forces within their jurisdictions with the powers of the state—affording them the ability to search, question, ticket, and detain. Looking back on that vote, she remembers nobody “ever thought in 1990 that university police forces would hold such sway over large areas that were not specific to the campus.” But ever since they were granted authorization, “the activities of this university's police department have expanded pretty dramatically.”

Only 16,000 students attend the University, but its police force wields full police powers from 37th to 64th Street between Cottage Grove Avenue and Lake Michigan, covering over 56,000 Chicagoans. Any of these residents can be subject to the UCPD’s “authority to make warrantless arrests,” but no law yet guarantees that information related to that arrest be made public (GO 101.3).

Currie saw how “agitated” this legal peculiarity was making members of the community and introduced HB 3932 in February, 2015. “If you’re acting like the Chicago Police Department then you ought to be held to the same standards of accountability and transparency,” she says, reciting her bill’s central mantra.

Specifically, traffic stops, directives, arrest reports, and crime data could be subject to inspection by a member of the public and appealed to a Public Access Counselor in the Attorney General’s Office if the University denied the request. The Public Access Counselor would then issue a binding opinion to a circuit court judge and—depending on the verdict—the campus police department would have needed to immediately comply and initiate a release of records.  

Using a similar means of retrieval, Futterman and a team of lawyers and activists trudged through the appellate court system for seven months, guided by FOIA’s power of judicial review. And at first, Currie remembered the University “did a good job trying to figure out how we could do this in ways that were not going to subject them to all manner of frivolous complaints and lawsuits.”

All the while, in the weeks leading up to the bill’s eventual abeyance, the University unveiled a set of new policies for its police force. It agreed to “publicize additional background information related to current UCPD practices,” “provide more specific information regarding traffic stops and field contacts,” and “provide upon request arrest record information, similar to the information provided by public law enforcement agencies.” Although this pronouncement borrowed the spirit of HB 3932, who decided when which information would be released to whom was left up as a matter of discretion. And that discretion was indisputable.

“We thought we should do more,” Currie says of her reaction to the University’s reform, and her legislative colleagues agreed.

Her bill sailed through the House. Not one member voted against it. Two months after its introduction, the bill had arrived in the Senate and was assigned to the Judiciary Committee. Senator Kwame Raoul, the bill’s chief sponsor in the Senate, chaired the Judiciary Committee and shepherded the bill to a unanimous May 5th vote among the committee members. The bill was ready for a breezy Senate floor vote and destined for the Governor’s desk. But then, Currie recalls, “things fell apart of their own weight.”

Nine days later, Raoul introduced an amendment that gave the bill’s molars a jagged set of canines. The bill’s new language granted the Attorney General the power to subpoena any individual or department with knowledge of an approved request if they refused to comply. And, if the Attorney General’s Office moved too slowly, “the requester may file suit” in circuit court.  

All of a sudden, “there was a question about going to court,” Currie retells. “And the University was not real keen on the idea that people who didn’t like the outcome could go to court.”

Then, senators began caricaturing her bill as the first step down a slippery slope towards statewide nationalization. Conversation between senators turned to whether more and more rules and regulations would eventually erase the separation between the private and public sphere. Currie, looking in from the Capitol’s other chamber, reimagines the floor discussion as if “suddenly, a light bulb went off and someone said, ‘Oops! Is this the beginning of the end of the idea of private institutions?’”

Currie couldn’t help but think it was all a mischaracterization, but what she saw as an overreaction really “spooked the members of the committee.” A few days later, the bill failed to pass a committee vote, only retaining two of its original 10 supporters.

Senator Michael Noland—one of the bill’s two consistent committee supporters (the other being Raoul)—who was present as the developments were unfolding, believes a different obstacle came in their way. “The universities and colleges as well as all law enforcement may have filed a witness slip opposing the bill that caused members of the committee to yield to those who would oppose it,” he stated in an email.

Members of the Campaign for Equitable Policing, an activist group that held demonstrations in front of Levi Hall during the bill’s proceedings, gather that the University’s obstinance to their cause only confirms Noland’s intuition.

Nico Aldape, an affiliated first-year in 2015, believes “the University…definitely lobbied against the bill.”

Brianna Tong, an associated Chicago activist, vaguely remembers the “U of C did send people to lobby against the bill.”

The University was unable to respond to The Gate's request for comment prior to publication.

Currie, who retires this term, is hopeful that her legislation will eventually become law. She believes the forces imposing unreasonable opposition to her bill three years ago are no longer present. And any suggestion of erasing the line between public and private schools? “There’s no longer an effort to do that,” she says with a pinch of optimism.  

Curtis Tarver II, who won the primary for Currie’s seat, says that he would sponsor and even introduce a similar piece of legislation. “I am in support of pushing for as much transparency as possible with public and private police forces as long as the information does not adversely affect the integrity of investigations and discovery in criminal cases,” he added in an email.

The community’s ability to compel the UCPD to release information met a premature end with the demise of HB 3932. “The responsiveness and accountability of the legislative function are diminished if the most controversial issues are too often seen as beyond the reach of legislative action,” Edward Levi, former President of the University turned US Attorney General, once said.

As it stands, “The Department will not release copies of recordings in response to requests made by other third parties.” Other third parties meaning the average individual. “However, the Associate Vice President of Safety, Security and Civic Affairs (or designee) may, at their discretion and using reasoned judgment, and in consultation with the University’s Office of Legal Counsel, make recordings available to the public.” (GO 529.17)

Debate has ended. Everyone has moved on. The University still independently decides who gets the facts when the UCPD uses its state-sanctioned powers. The incident on April 3rd thankfully averted greater tragedy. But that shouldn’t keep us from thinking: what if next time we aren’t so lucky?

A sticker on a nearby park bench

What do we know?

“Following our standards will allow an agency to have the documentation to protect themselves,” Dan Shaw, the Great Lakes Regional Program Director for CALEA, promises. “They’re sound. They’re defensible in court. They’re the international best practices for our profession.”

CALEA, the Commission on Accreditation for Law Enforcement Agencies, is the ‘gold standard in public safety’ and gave the UCPD its first accreditation award in 2014. There are 47 CALEA-accredited departments in Illinois, only nine are larger than the UCPD’s 110-officer force.

An agency earns accreditation when CALEA’s assessors determine that it has complied with their list of standards. An initial assessment costs $11,400 and the annual fee is $4000. The standards are often open-ended, usually calling on an agency to include a “written directive” for  a certain topic rather than specifying what directive should be written.

Some are even optional (e.g. CALEA Standard 54.1.1, authorizing release of information).

A reassessment for the UCPD, which occurs every four years and costs $5,400, took place last year. Afterwards, the Department received its second certificate of advanced accreditation. Shaw, whose job it is to make sure agencies stay on top of their compliance, began overseeing the UCPD in 2014 and has never “received any phone calls or complaints regarding the agency.”

Perhaps, this is because the UCPD’s Professional Standards Officer is Commander Ernie Knight, the chair of the Illinois Police Accreditation Coalition. “I know that he’s on top of things for the agency,” Shaw states with assurance. “Commander Knight and I talk probably once a month.”

But when asked—half a month out—whether he has brought up in conversation the first officer-involved shooting the Department has experienced since 1983, Shaw replies, “I have not.”

To be fair, Shaw planned to talk to Knight about the matter at a meeting the next day, but more than two weeks out from the shooting, he admits, “To tell you the truth, I just saw a blurb about it over the weekend.”

While the UCPD won’t face CALEA assessment on their compliance during this incident until 2021, Knight and Shaw were both so equally certain that compliance had been followed that they hadn’t found a reason to contact one another.

But before we can determine for ourselves whether the officer was in compliance, we must determine whether Thomas was a “passive resistor,” an “active resistor,” or an “assailant” according to UCPD’s predefined categories. If Thomas had been passively resisting arrest, then non-lethal force would have been preferable even though General Order 108.4 states “there is no requirement to consider or utilize lesser force options.”

According to UCPD’s written directives, a passive resistor is “a person who fails to comply (non-movement) with verbal or other direction.” Officers are instructed to utilize holding techniques, pain compliance techniques, or oleoresin capsicum spray to subdue the subject.

An active resistor is defined as “a person whose actions attempt to create distance between them and the officer’s reach. This type of resistance may include evasive movement of the arm, flailing arms, and/or full flight by running.” A stun gun or oleoresin capsicum spray are the primary methods.

An assailant is “a subject whose actions are aggressively offensive with or without weapons. This type of assailant is one who places an officer in reasonable apprehension of receiving a battery.” Officers are instructed to punch, kick, or use a baton to apprehend such an individual.

Of these three types, Thomas’s condition would place him in the third category. However, because the officers believed his actions may have caused “death or great bodily harm to another” human being, he became something more dangerous than a simple assailant and the officers then became authorized to use deadly force.

General Order 108.6 Deadly Force is reproduced below in part:

  1. An officer is justified in using force likely to cause death or great bodily harm only when he or she reasonably believes that such force is necessary:
  2. To prevent death or great bodily harm to the officer or another person, or:
  3. To prevent an arrest from being defeated by resistance or escape and the person to be arrested:
  4. has committed or has attempted a forcible felony which involves the infliction or threatened infliction of great bodily harm or;

NOTE: Forcible felonies include offenses which are NOT covered by this statute (720 ILCS 5/7-5). Deadly force may only be used for those including the infliction or threatened infliction of great bodily harm.

  1. is attempting to escape by use of a deadly weapon or;
  2. otherwise indicates that he or she will endanger human life or inflict great bodily harm unless otherwise arrested without delay.

Was Officer Twardak’s use of deadly force justified according to this GO? Certainly. There is reason to believe that “great bodily harm” could have been inflicted upon him had Thomas moved fifteen more feet and struck him with the iron tent stake.  

It has been reported that Thomas’s defense lawyer will argue that he was exiting the alley and trying to get away. But this would fall under section 2 part a’s provision that use of deadly force is also permitted if the subject is “attempting to escape by use of a deadly weapon.”

If one reads these directives closely, perhaps the only fault one could find with Twardak’s discretion is his dismissal of several departmental orders related to mental health crisis response. Before he exited his squad car, Twardak repeated “he’s a mental” into his radio, clearly acknowledging that Thomas was experiencing a psychotic episode. Twardak had undergone 40 hours of crisis training and mental health training and would certainly have been familiar with GO 517.5 Crisis Intervention Training/Dealing with the Mentally Ill:

  1. Take steps to calm the situation. Where possible, eliminate emergency lights and sirens, disperse crowds, and assume a quiet non-threatening manner when approaching or conversing with the individual. If violent or destructive acts have not occurred, avoid physical contact and take time to assess the situation.
  2. Move slowly and do not excite the person. Provide reassurance that the police are there to help and that he/she will be provide with appropriate care.
  3. Communicate with the individual in an attempt to determine what is bothering him/her. Relate your concern for how the person is feeling and allow the person to express his/her feelings. Do not dispute delusions or pretend to see or hear hallucinations; simply communicate empathy about how they are affecting the person.
  4. Do not threaten the individual with arrest or in any other manner as this will create additional fright, stress, and potential aggression.

Although Twardak was ultimately in his right to discharge his weapon, how thoughtfully he approached the situation is much murkier. “Hey, stop there, stop there. Don’t come at me,” he shouted as he exited his squad car. Then, “come on.” And a few seconds later, he raised his gun and shouted “Hey, put down the weapon!” Officer Twardak “moved slowly” and backwards in an attempt to de-escalate the situation, but any assurance that he was there to help or provide Thomas with “appropriate care” was absent.

Body-Camera footage from the night of the Charles Thomas shooting. Video courtesy of The Chicago Maroon.

However, this amounts to no more than suggestions because of the sentence that prefaces it: “Personnel shall remember that their personal safety and that of others is paramount and all necessary measures shall be employed to resolve any conflict safely utilizing the appropriate force” (emphasis added). An overarching authorization such as this one essentially nullifies any of the suggested responses detailed after it, particularly if the subject has already been labeled as an assailant.

In the days that followed, thousands of students debated the justification of the shooting without any sense of their campus police department’s operating procedures. Without departmental openness, students couldn’t even be sure if they were asking the right questions.

Former President Levi, speaking to a group of university students, once asserted: “Educational leaders in America…are agreed in faith that education should be a fearless search for truth; that the truth, honestly proclaimed, will make life on earth better and better; and that the best way to discover and proclaim truth is to open to all who can use them the fullest resources of learning.”

This University has never been known to shy away from bringing the relevant facts into a debate. But when the topic concerns our immediate surroundings, why now do we limit our intellectual curiosity?

Awards hang on the walls inside UCPD Headquarters. Two CALEA awards, numerous Departmental recognitions, and a memorial for Officer Steven Mitchell—the only UCPD officer to have died in the line of duty.

Where should we go from here?

“The police, in short, are both minders and reminders of community—a producer of significant messages about the kind of place that community is or aspires to be,” Ian Loader, a preeminent professor of criminology, once wrote.

In the eyes of many Hyde Park residents, the UCPD excels at forging that very bond. Although Currie wishes the Department were more “sufficiently transparent and accountable,” she cannot help but admit that her constituents are often the ones asking the UCPD to expand its jurisdiction. An observation she frequently hears: “If somebody’s breaking into my house, they often get there quicker than does the Chicago police.”

I’ve spent the last month talking with officers, learning about their training, and typing out word-by-word their printed directives. And as I read page after page of well-reasoned directives, I felt reassured by their presence. 

But, that isn’t to suggest that we should let down our guard. Jacqueline Collins, one of HB 3932’s sponsors in the Senate, is still passionate about the bill’s purpose because “the police we empower to patrol and protect those campuses are as human and as fallible as you or I.” 

Orders were obeyed on April 3rd but the outcome was still tragic and left many students worried. Before there is a next time, let’s make sure students know what to expect from their police. 

Students and community members deserve to know the laws which govern the lawmen. Tonight, Student Government will propose such a modest resolution, requesting that the written directives of the UCPD be easily accessible online. It is reasonable that the administration is hesitant to permit outside legal recourse to any requester, but now that the representatives of the student body are calling on them to act—one thing is certain. It’s time to release the GOs.

Read a selection of UCPD’s GOs relevant to the Charles Thomas incident.

Brett Barbin is a Senior Writer at The Gate. The opinions expressed in this article do not necessarily reflect those of The Gate. All photos are courtesy of the author unless otherwise noted.

This article was updated on May 14th, 2018, at 4:42 PM. The line "The UCPD excels at forging that very bond" was changed to "In the eyes of many Hyde Park residents, the UCPD excels at forging that very bond," to better reflect the author's intentions. 

Following this article's publication, the University issued the following statement: "The University has taken significant steps in recent years to increase transparency of UCPD activities following extensive consultation with local residents, elected officials and stakeholders across campus. UCPD currently makes available to the public detailed information about traffic stops and field interviews, arrest records, general orders, and a daily crime and fire log, among other things. The University's goal is to ensure the transparency of law enforcement activities while upholding our obligation to maintain the privacy of other university and student educational records. We will continue to engage with public officials and members of our community on the transparency of UCPD activities." 


Brett Barbin

Brett Barbin is a third-year Public Policy and Political Science double-major, interested in American history, geography, and political rhetoric. Last year, he served as the Deputy Political Director for Senator Mark Kirk’s reelection campaign and previously acted as a research intern for the Michael Smerconish Program. On campus, Brett is the secretary of College Republicans and a member of the Political Union. He enjoys exploring Chicago, collecting books, and reading way too much into public opinion polls.


Search

None