Kalven: Robust Transparency is the Antidote to Police Departments’ Attempts to Create Self-Serving Narratives Following Shootings By: Dan Zimmerman

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As was widely expected, [the Civilian Office of Police Accountability] found “Halley’s use of deadly force was consistent with Chicago Police Department policy.” Although Augustus’s movements were ambiguous and could plausibly be interpreted in different ways (Was he perhaps trying to stabilize his holster while he ran?), COPA concluded that it was reasonable for Halley to have perceived an imminent threat.

We are thus left with the official finding that this gratuitous killing of a Black man by the police, at once tragic and absurd, was lawful and within policy. Given the prevailing paradigm embodied in the U.S. Supreme Court’s unanimous 1989 ruling in Graham v. Connor that great deference must be shown to an officer’s perceptions of risk and judgments within the temporal frame of the “split second,” that dispiriting conclusion was perhaps inevitable. It should not, however, be allowed to obscure the several ways in which the COPA report enlarges the analytic frame beyond the narrow focus on the split second.

The agency found that the officers had no legal basis to stop Augustus in the first place. And it found that Fleming had no reason to seek to physically restrain Augustus, who was being cooperative. It recommended that she receive a 60-day suspension.

Of equal importance is its analysis of police actions following the shooting. In order to prevent officers from colluding to construct a common narrative, [Chicago Police Department] policy dictates that, following the discharge of a firearm, the officers involved are to refrain from discussing details of the incident with one another, and supervisors are to ensure that involved officers remain separated and do not communicate with one another.

COPA found that Ward, the senior supervisor at the scene in the immediate aftermath of the shooting, failed to separate Halley and Fleming and to restrict their communication with each other. It recommended a 30-day suspension.

By assessing police actions leading up to and following the moment of deadly force, the COPA report begins to shift the paradigm. It demonstrates, in effect, that the Supreme Court’s split-second logic in Graham v. Connor need not dictate the outcome of administrative disciplinary processes.

The report also does something else. The breadth and quality of the COPA investigation makes clear the need to overhaul the video release policy adopted at the height of the political maelstrom provoked by the police murder of Laquan McDonald. In that case, the city withheld video footage of the incident for 13 months, until forced to release it by a judicial order and a surging mass movement.

Among the first reforms adopted in the wake of the McDonald debacle, the current policy — touted at the time as the most progressive in the country — provides that “all video and audio recordings relating to” an incident in which use of force by a police officer results in death or great bodily harm shall be made public no more than 60 days after the incident.

In most instances, COPA implements the policy by posting videos and other materials deemed relevant on its website. Yet much of the video footage described above is, to this day, not available to the public on the COPA site, raising questions about the basis on which the agency is making editorial judgments as to relevance.

The time has now come, in light of experience, to overhaul the policy in two fundamental respects.

First, the 60-day timeline should be shortened to no more than a week, absent a compelling showing of why it is necessary to extend it. Second, COPA should not make editorial decisions as to “relevance.” Rather, all body camera footage of all officers at the scene (not only the officers directly involved in the incident), as well as all video from other sources, should be released in its entirety. As the COPA investigation of the Augustus killing shows, once analysis is no longer limited to a narrow focus on the split second, it is not possible to determine relevance until the full investigation is completed, a process that routinely takes a year and often longer.

At the most fundamental level, the principle — with respect to categories of information acknowledged to be public — should be to release it all, and let the public determine what is in the public interest.

Such an expansion of transparency would operationalize a central insight of the era after Laquan McDonald’s killing: In cases such as these, we are not dealing with discreet “cover-ups.” That is the wrong frame for understanding the phenomenon. What we are dealing with is standard operating procedure.

For those acting within this gravitational field, lying is not an isolated act but a state of being. The police account of what happened and why it was justified begins to form instantly. The process by which it then hardens into the official narrative is fluid and dynamic — less a matter of deliberate conspiratorial deception than an expression of the institution’s fundamental orientation.

For the CPD at every level, the question is not: What happened? It is: How do we justify what happened? That orientation affects perception — what one sees and does not see — and it shapes interactions that in turn shape the narrative. At bedrock, the assumption is: It is justified because it happened.

This culture has proved difficult to capture in legal categories. A case in point is the failed prosecution of three officers charged with conspiring to protect Officer Jason Van Dyke after he killed Laquan McDonald. Van Dyke was ultimately convicted of second-degree murder. And there were grave political consequences for a number of officials — including former Mayor Rahm Emanuel — who withheld public information from the public in order to maintain a false narrative. Yet the officers charged with conspiring to cover up the McDonald murder were acquitted on all charges. While the judge in the case has been widely criticized, the paradox remains that the more pervasive the code of silence is as a culture, the more elusive it is as a matter of law. Conspiracy requires agreement, but there is no need to agree when everyone knows what they are expected to do.

Given the nature of the problem, there is no more effective antidote than robust transparency that honors the compelling public interest in access to information about what happens in the seconds and minutes and hours that follow the split second in which the police shoot someone.

— Jamie Kalven in In the Aftermath of a Police Killing, the Justifications Begin Immediately