Chicago Law Department Is Sanctioned Again for Withholding Police Shooting Record

By Stacy St. Clair and Jeff Coen, Chicago Tribune

05 January 17

 

ayor Rahm Emanuel's Law Department again has been sanctioned for withholding records involving a fatal police shooting, marking the eighth time in recent years a federal judge has formally punished the city for failing to turn over potential evidence in a police misconduct lawsuit.

U.S. District Court Judge Joan Gottschall on Tuesday ruled that the city acted in "bad faith" when it ignored a court order and made little effort to provide documents to the lawyer for the family of 20-year-old Divonte Young, who was shot and killed by an officer in 2012.

In a sharply worded 24-page order, the judge criticized the city for its approach to discovery, the legal process that allows the two sides in a lawsuit to uncover relevant facts through the exchange of documents, the taking of depositions and other disclosures. When the process breaks down, plaintiffs can find themselves at a disadvantage, their lawyers uncertain they are working with all of the evidence.

"The City's cavalier attitude toward the discovery process … warrant findings of willfulness, fault and bad faith," Gottschall wrote.

In imposing her punishment, Gottschall took an admittedly "harsh" step and stripped the city of legal protections that would have allowed its lawyers to withhold some documents from the Young family's lawyer. Specifically, the city had argued that it could withhold some records because they were part of the "deliberative process" during the investigation. Now, the city has until Jan. 10 to turn over all the records.

Gottschall also will consider whether the city should pay the Young family's attorneys' fees for the discovery battle later this month.

A Law Department spokesman disputed the significance of the court's finding but said the city would comply with the judge's order. City officials also disagreed that the judge's ruling — which she repeatedly referred to as a "sanction of waiver" — constitutes a sanction.

"The City believes it has fully complied with the subpoena in this case," spokesman Bill McCaffrey said in a statement. "However, it will promptly comply with the current order and produce the documents that were previously withheld as non-responsive. We believe the production will demonstrate that these documents were properly withheld, and therefore sanctions in the form of an award of attorneys' fees should be denied."

The punishment marks the city's third sanction by a federal judge in a police misconduct lawsuit in six months, and the eighth since Emanuel took office in 2011. It also renews questions about how the Law Department handles potential evidence in such cases, which are often high-profile, controversial and potentially costly for taxpayers.

As part of reforms announced last year, the city sent about 60 cases — including Young's case — to an outside attorney for review of discovery practices. The Young case received "a clean bill of health" from the outside attorney last February, according to McCaffrey.

That diagnosis, however, now appears premature. Gottschall specifically rebuked the city for engaging in "bad faith foot dragging" while the outside review was taking place.

Attorney H. Candace Gorman, who represents Young's mother, LaShawnda, said she offered to meet with the outside lawyer reviewing the Young case, but he declined.

"It was a rubber stamp for the corporation counsel," she said.

A Tribune investigation last year that analyzed nearly 450 cases alleging police misconduct since Emanuel took office found that a federal judge had to order the city to turn over potential evidence in nearly 1 of every 5 cases.

The issue came to a head in January 2016, when a federal judge sanctioned one city lawyer for intentionally concealing evidence and another for failing to make a reasonable effort to locate key records in a lawsuit stemming from the fatal 2011 police shooting of Darius Pinex.

The judge took the rare step of tossing out a jury verdict in favor of the city and ordering a new trial.

In the days following the ruling, Emanuel tapped former U.S. Attorney Dan Webb to lead a review of the Law Department's handling of police misconduct cases. Webb found no pattern of intentional misconduct among city attorneys, but he also recommended more than 50 reforms to address problems in the office. Stephen Patton, Emanuel's corporation counsel, instituted those reforms, along with several other measures he made immediately after the Pinex ruling.

The city settled the case with Pinex's family last month for $2.37 million and agreed to pay an additional $1 million to the plaintiff's attorneys in the case.

In the most recent sanction, Gorman, the Young family's lawyer, has been seeking documents from the Independent Police Review Authority, the city agency that investigates all officer-involved shootings and other misconduct allegations.

A plainclothes officer fatally shot Young after authorities alleged Young opened fired on two people in West Englewood in August 2012. Police never located a gun.

According to Gottschall's order, Gorman was initially told by a Law Department attorney that he could not ask IPRA for the documents because the agency operated separately from the city. An IPRA official, however, then refused to give Gorman the records and said she had to go through the city Law Department.

"To say that it has been frustrating would be an understatement," Gorman told the Tribune in an interview Wednesday. "If I hadn't filed the subpoena and fought for the documents, I can't imagine how anyone could be sure that they have everything."

In her ruling, Gottschall noted that IPRA was a city agency and concluded that Gorman had been given the runaround.

"From Gorman's perspective, discovery became a game here. The City apparently waited six months during discovery negotiations to tell her that she needed to take additional steps to obtain IPRA documents," the judge wrote. "She subpoenaed IPRA, and IPRA produced nothing and sent her back to the corporation counsel's office. The City then agreed to the entry of an order enforcing the subpoena and took an additional month to communicate its intent to prepare a privilege log."

The judge also noted that the IPRA battle wasn't the first time Gorman fought to obtain documents in the 3-year-old case.

In February 2014, Gorman asked the city to turn over videos of witness statements in the shooting. She asked again in September. And again in December.

Each time, court records show, the city said it had turned over all the records provided by the Police Department, and Gorman might never have known otherwise if she had not noticed a reference to a witness statement buried in the records she did receive. The statement was given at a police station, which meant it was likely recorded on video.

The Police Department eventually provided that video of the witness' statement, but Gorman wanted more. She asked for a summary of all interviews with another witness and that witness's last-known address. City lawyers made several requests for the information, but the Police Department never responded, according to a Law Department memo obtained by the Tribune. A month later, the Police Department turned over a document showing the witness had given another statement seven months after the shooting and had backed off his initial claims that he saw Young shooting a gun shortly before an officer fired on him.

City officials had said "the failures to timely provide responsive materials in this case" would be avoided in the future through a plan that gives city attorneys direct access to Chicago police records.

Gorman, however, said she has not seen much improvement despite the recent reforms. Her case, she said, is proof of it.

"This is not an outlier," Gorman said. "This is the way that the city plays."