HISTORIC VERDICT IN CHICAGO POLICE CODE OF SILENCE CASE

By G. Flint Taylor

                                On November 13,  2012 an all-white Federal jury found that off duty Chicago police officer Anthony Abbate was acting pursuant to a widespread and persistent police code of silence when, in 2007, he brutally beat a diminutive female bartender named Karoline  Obrycka.[1] The beating was caught on videotape, and it captured the public’s attention. Former Mayor Richard M. Daley and the Chicago Police Department, already on the defensive because of the continuing police torture scandal, made some cosmetic changes to the police disciplinary system with the hope that the controversy over police brutality would subside. Now, five years later, the jury’s verdict in the Obrycka case has rekindled public outrage, and should have sent a message to Mayor Rahm Emanuel, his hand -picked Police Superintendent, and the City’s Corporation Counsel that fundamental and systemic reform, from the top down, is required in order to change the police culture that has made the police code of silence a Chicago institution.

Extreme police brutality, unfailingly followed by police silence, lies, and cover-up, has been an all too frequent reality in Chicago for the past 45 years. The rampant brutality that marked the 1968 Democratic Convention was followed by false denials in testimony from untold numbers of Chicago police officers and supervisors. The next year Black Panther Party leader Fred Hampton was murdered in his bed during a pre-dawn police raid, and the entire command structure of the CPD, working in unison with the Cook County State’s Attorney, perpetrated a massive cover-up that spanned a decade and further illuminated the code of silence. Only three years later, Jon Burge started a torture ring at Area 2 detective headquarters, and the documented cases of Burge related police torture, now some 117 in number, followed him as he rose to Commander during the next two decades.  His meteoric  rise, as well as the systemic torture itself, was made possible by a code of silence so widespread that it not only has kept scores of detectives silent to this day, but has also extended to several successive Police Superintendents and former Mayor Richard M. Daley himself.

A few Chicago police officers have risked their lives and careers by breaking the code. Former Area 2 Detective Frank Laverty is the most shining example. In the early 1980’s, Laverty came forward to save the life of an innocent black teenager who was on trial for a murder he did not commit.  Laverty had uncovered the real perpetrator of the crime, but Laverty’s commander and several fellow detectives had hidden the evidence in a secret “street file” that was routinely kept by detectives.  Laverty’s heroic act freed the teenager and exposed the CPD’s illegal “street file” practice, but earned him physical threats from Burge and several of Laverty’s fellow detectives, and a demotion to the job of watching police recruits give urine samples. See, Jones v. City of Chicago, 856 F. 3d 985 (7^th Cir. 1988)

This example of the code of silence at work was not lost on the police rank and file.  In 1989, when a fellow Area 2 detective came forward to detail for the first time the systematic and racist nature of Burge’s torture ring, he did so in anonymous letters to lawyers representing torture victim Andrew Wilson, saying that he wanted the letters to remain private because he “did not wish to be shunned like Officer Laverty has been since he cooperated with you.”  This Burge colleague has never been identified. Several African-American Area 2 detectives who had general knowledge about the torture ring remained silent until their retirement two decades later.  In 2008, one white Area 2 detective, when threatened with indictment, reluctantly told the Federal Grand Jury about witnessing Burge torture a black suspect, but the code of silence again reared its ugly head when he attempted to retreat from his prior testimony during Burge’s 2010 perjury trial. No other officer has ever come forward. Instead close to fifty officers have denied any knowledge of the torture ring, and, more recently, a majority of them has chosen to invoke the Fifth Amendment. The Obrycka case is but the most recent extreme example of a police code of silence so embedded within the Department that it permeates nearly every complaint of police brutality and misconduct.

For the past 25 years, the code of silence and the related failure to properly discipline  Chicago police officers has been the repeated subject of numerous Monell de facto practice and custom claims brought under 42 U.S.C. Sec. 1983 against the City of Chicago. Most often these practices are raised in serious excessive force, police torture, and wrongful conviction cases.[2] Over the years, the evidence of these practices has been documented, again and again, through hard fought discovery that has been contested at every stage by the City’s lawyers. Now and in the recent pase, the City regularly tries to avoid discovery and trial on these embarrassing claims by moving to bifurcate the Monell claim from the underlying constitutional violation in order to postpone discovery and trial until after the underlying case is tried.

The Mayor and his Corporation Counsel have shown, to date, little interest in taking the decisive steps required to change the police culture that perpetrates the code.  Instead they continue to defend torture, wrongful conviction, and other police misconduct cases by employing the implicated officers’ use of the code to deny responsibility.  Similarly the police disciplinary agency, (IPRA) ignores the code of silence, almost always taking the word of the accused officer and his confederates over the victim, in order to absolve the accused from discipline. The  police code of silence  is so embedded within the Department that it permeates nearly every complaint of police brutality and misconduct.

In the Obrycka case, her lawyers focused on her Monell  claim because the City refused to indemnify Officer Abbate, who was  off duty and judgment proof.  Confident that it could defeat the Monell claim, the City refused to make a settlement offer, choosing instead to go to trial in a case where the evidence of extreme brutality, official cover-up, police lies, and refusal to discipline was compelling.

After years of highly contentious pre-trial litigation,[3] and a 12 day trial, the evidence of a widespread, top to bottom, police code of silence and failure to discipline has now been confirmed by the jury’s verdict in the Obrycka case.  The City, however, immediately issued a statement that it “strongly disagreed with the verdict” and vowed to appeal. A few weeks later, it was publicly revealed that the City and Obrycka’s lawyers had entered into a deal whereby the City would forego an appeal, immediately pay the judgment, and negotiate the lawyers’ attorneys’ fees in exchange for the Plaintiff joining the City’s motion to vacate the judgment.

This deal further inflamed public opinion. Seen as an obvious attempt by the City to avoid political and legal responsibility, both daily newspapers editorialized against the motion, and public interest lawyers moved to intervene, arguing that the judgment should not be vacated because it could have preclusive  effect  against the City in future Monell cases. When the motion was argued before the trial judge, Amy St. Eve, on December 7, 2012, the parties revealed that the City had agreed to forgo an appeal and promptly pay the Plaintiff no matter whether the Judge granted the motion to vacate or not, thereby  removing the major rationale for vacating the judgment – – -the Plaintiff’s interest in prompt, certain and complete payment. The Judge promised to rule promptly on the motion.

Rather than to move decisively to eradicate the code of silence, the City has shamelessly attempted to erase the jury’s judgment  from the books.  Unfortunately, it appears to be “business as usual” when it comes to police brutality, the code of silence, and official cover-up in Chicago.