National Police Misconduct Reporting Project

Can an Officer’s Misconduct Record Possibly Be His/Her ‘Personal Business’ ?

Blog post from Jamie Kalven:

A drama is unfolding in Illinois courts that has profound implications for police accountability and governmental transparency. At the center of this drama is Kilroy Watkins, a prisoner serving a 55-year sentence for first-degree murder and armed robbery. A skilled jailhouse lawyer, Watkins has presented the state appellate court with a case that tests not only the meaning of the Freedom of Information Act but also the integrity of the judicial process.

Chicago police officers arrested Watkins in 1992 in connection with an armed robbery. The next day he confessed to committing a murder in a separate incident. He has consistently claimed his confession was coerced by Detectives Kenneth Boudreau and John Halloran, associates of disgraced Commander Jon Burge. Under Illinois FOIA, he sought access to the police misconduct complaints against Boudreau and Halloran. Known as “complaint register” files or CR’s, these documents contain the complaints filed against an officer and the substance of the City’s investigation of those allegations.

Watkins’ aim was to demonstrate a pattern of coerced confessions by the two detectives, in support of a post-conviction petition (since denied). In light of what we now know about police torture and coercion by officers under Burge’s command, this is a plausible argument. A Tribune investigation in 2001 reported that Boudreau had, as of that time, helped secure confessions from more than a dozen defendants in murder cases in which the charges were later dropped or the defendant was acquitted.

Watkins represented himself in his FOIA suit until last year when the law firm of Loevy & Loevy took him on as a client. (I too am represented by the Loevy firm in a FOIA case against the Chicago Police Department.) When the circuit court ruled against him, Watkins appealed to the Illinois Court of Appeals for the First District.

A central issue in this case — and in the long history of litigation over CR files — is whether such documents are public information or private personnel matters. In recent years, a number of judges in both state and federal courts have ruled that records related to police misconduct are quintessential public information.

In the leading Illinois case, Gekas v. Williamson, decided in 2009, the Court of Appeals for the Fourth District ruled that police misconduct files are not personal information, the disclosure of which would violate the officer’s privacy:

What [the defendant] does in his capacity as deputy sheriff is not his private business. Whether he used excessive force or otherwise committed misconduct during an investigation or arrest is not his private business.Against this background, the First District ruled in Watkins’ favor in a decision issued on December 27 of last year. Writing for the three-judge panel, Judge Mary K. Rochford (the daughter of former Chicago police superintendent James Rochford) relied squarely on Gekas and reaffirmed the principle that “a complaint against a [police officer] in the performance of his public duties ‘shall not be considered an invasion of personal privacy,’ even if contained within otherwise exempt personnel files.”

A week later, the same First District panel, with Judge Rochford again writing the opinion, withdrew its earlier order and denied Watkins’s motion on the ground that the court did not have jurisdiction because he had filed his appeal too early.

It would be generous to describe this decision as hyper-technical. It turns, in effect, on Watkins’ inability to provide from behind the thick walls of his incarceration, despite his best efforts, written documentation of the trial court’s oral announcement of its decision to dismiss his case several months before it issued a written opinion.

There is nothing on the face of the First District’s December 27 opinion that would have prompted second thoughts about jurisdiction. Moreover, the jurisdictional issue was never raised by the city. In fact, the city acknowledged throughout the appellate court proceedings that there was jurisdiction because the trial court did, in fact, announce a decision before Watkins filed his notice of appeal.

Did the First District yield to political pressure? The question must be asked, though it cannot be definitively answered, for the city has consistently sought in every possible way to resist the emerging judicial consensus that CR’s are public information.

In the legal equivalent of a Hail Mary pass, Watkins’ lawyers petitioned the Illinois Supreme Court for leave to appeal. Happily, on May 30th the Supreme Court acted. While it did not grant the request to appeal, it exercised its supervisory authority to send the case back to the Court of Appeals for a decision on the merits.

The logical outcome now is for the First District to reinstate its fine December 27 decision. In so doing, it will both strengthen Illinois FOIA and restore confidence in its judicial independence.

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