HARRY D. LEINENWEBER, District Judge.
Defendant City of Chicago, by its undersigned counsel, hereby moves for judgment as a matter of law, pursuant to Fed. R. Evid. 50(b). In support, the City states as follows:
Plaintiff failed to present sufficient evidence for the jury to find in his favor on his Monell claim. On October 18, 2017, at the close of Plaintiff's case, Defendant moved for a directed verdict pursuant to Fed. R. Civ. P. 50(a). The Court denied that motion in an oral ruling the same day. On October 26, 2017, the jury returned a verdict for Plaintiff based on two of his Monell theories, failure to maintain an adequate early warning system and failure to discipline, and found that these failures caused Patrick Kelly intentionally or with reckless indifference to shoot Michael LaPorta. Judgment was entered on the docket on October 30, 2017. (Dkt. 443.)
Rule 50(b) allows for a renewed motion for judgment as a matter of law, after the denial of a Rule 50(a) motion and within 28 days of the entry of judgment, on the ground that there was no legally sufficient evidentiary basis for a reasonable jury to have found for the non-moving party. The Court must determine whether the evidence, viewed in the light most favorable to the non-movant, is sufficient to sustain the verdict. Hammond Group., Ltd. v. Spalding & Evenflo Cos., 69 F.3d 845, 848 (7th Cir. 1995). Because there is no legally sufficient evidentiary basis for the verdict here, the City is entitled to judgment as a matter of law.
To prevail on a section 1983 claim, a plaintiff must establish by a preponderance of the evidence "(1) [that] plaintiff's harm was caused by a constitutional violation, and (2) if so, [that] the city is responsible for that violation." Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992). Here, Plaintiff claims that Kelly violated his Fourteenth Amendment substantive due process right to bodily integrity by shooting LaPorta. But it was undisputed at trial that Kelly — who was off duty, who was not acting as a police officer, and whose gun was his own personal property (Ex. A at 42, 224, 2271) — was not acting under color of law and was not a state actor at the time LaPorta was shot. As a matter of law, then, Kelly was a private actor, and his actions therefore cannot have violated the constitution. And without an underlying constitutional violation, the City is not liable. But even on Plaintiff's theory that there was a constitutional violation, the City is entitled to judgment as a matter of law because Plaintiff failed to adduce sufficient evidence to prove that Kelly intentionally fired his gun to inflict harm on LaPorta or acted with reckless indifference.
The Supreme Court has "emphasized time and again that the touchstone of due process is protection of the individual against arbitrary action of government." County of Sacramento v. Lewis, 523 U.S. 833, 845-6 (1998) (internal citation omitted) (emphasis added); accord Lugar v. Edmondson Oil Co., 457 U.S. 922, 924, 937 (1982) (only conduct "that may be fairly characterized as `state action'" can violate Fourteenth Amendment; for liability, person inflicting injury must be "a person who may fairly be said to be a state actor"). Due process protects against "the exercise of power without any reasonable justification in the service of a legitimate governmental objective." Id. The Supreme Court recognized a substantive due process right to bodily integrity in Rochin v. California, 342 U.S. 165 (1952), where the plaintiff alleged "conscience shocking" behavior, namely, having a criminal suspect's stomach pumped for evidence, by a police officer who was acting under color of law. Id. at 172. Plaintiff failed to prove such a violation here.
In this case, Plaintiff's theory of liability under Monell was that although Kelly was not acting under color of law, he injured LaPorta because the City, inter alia, lacked an adequate early warning system and failed to discipline its officers. (Ex. A at 176-177; 2147). But without evidence that the person inflicting the injury was acting under color of law or was a state actor, there is no constitutional violation and the government is not liable. That is because the Constitution does not require the government to protect individuals from harm inflicted by private actors. As the Supreme Court held in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1988), "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." Id. at 195. DeShaney involved a Monell claim against Winnebago County; as the Court explained, because plaintiff's underlying claims arose from acts of private violence by Joshua DeShaney's father, they did not implicate due process and the Court "ha[d] no occasion to consider . . . whether the allegations in the complaint are sufficient to support a § 1983 claim against the county and DSS under Monell." Id. at 202 n.10. In other words, because the act that harmed Joshua was private violence, there was no basis to hold the county liable, regardless of whether the county and its DSS had a municipal policy that caused his injuries. DeShaney thus illustrates that a plaintiff who cannot show that the actor violated the Constitution likewise cannot hold a local government liable for the actor's conduct. See also City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam) ("[i]f a person has suffered no constitutional injury at the hands of the individual police officer, the fact that [municipal wrongdoing is also alleged] . . . is quite beside the point"); American Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40, 52 (1999) ("[a]ction taken by private entities with the mere approval or acquiescence of the State is not state action"); Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 164 (1978) (rejecting notion that a private party's "action is properly attributable to the State because the State has authorized and encouraged it").
Wilson-Trattner v. Campbell, 863 F.3d 589 (7th Cir. 2017), further demonstrates these principles. There, the Seventh Circuit rejected section 1983 claims against a county officer and his superiors because the officer committed only acts of private violence against the plaintiff. See id. at 595. The court explained, citing DeShaney, that "[m]ere indifference or inaction" by a law enforcement agency when faced with acts of misconduct by one of its employees while off duty and otherwise not acting under color of law could not support the imposition of liability; and that was true even if that indifference or inaction emboldened the employee to engage in acts of violence that injured the plaintiff. Id. at 594-96. Among the claims the Seventh Circuit considered and rejected in Wilson-Trattner was a failure-to-train claim, which was brought against the county sheriff in his official capacity, see id. at 591, 593, and an official capacity claim is in effect a claim against the local government itself, see Walker v. Sheahan, 526 F.3d 973, 977 (7th Cir. 2008). In other words, the Seventh Circuit was presented with and rejected the plaintiff's effort to hold the local government liable based on its policies and practices because the plaintiff could not show that the government officer who injured her was a state actor. The court did so notwithstanding the fact that the plaintiff had argued, similar to the theory here, that a practice of ignoring allegations of misconduct emboldened the officer to abuse the plaintiff. See Wilson-Trattner, 863 F.3d at 596. Indeed, in dismissing this claim, the district court in Wilson-Trattner expressly ruled that it failed because Monell liability requires a showing that a municipal policy caused the deprivation of a constitutional right, and "[h]ere . . . there was no constitutional violation." Wilson-Trattner v. Campbell, 2016 WL 2894444, *7 (S.D. Ind. May, 18, 2016).
The holding of Wilson-Trattner is consistent not only with DeShaney, but with a long line of authority from the Seventh Circuit and elsewhere. See Latuszkin v. City of Chicago, 250 F.3d 502 (7th Cir. 2001) (Monell claim alleging municipal inaction toward unlawful activity by off-duty officers properly dismissed after finding the off-duty drunk driving officer was not acting under color of law); D.S. v. E. Porter Cty. Sch. Corp., 799 F.3d 793, 800 (7th Cir. 2015); Sallenger v. City of Springfield, Ill., 630 F.3d 499, 504 (7th Cir. 2010); Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir. 2007); Alexander v. South Bend, 433 F.3d 550, 557 (7th Cir. 2006); Malak v. Associated Physicians, Inc., 784 F.2d 277, 283 (7th Cir. 1986) (Monell "involve[s] the nature of the duty owed and the degree of causation required in a Section 1983 case against a governmental entity rather than the state action requirement of Section 1983"); see also Doe ex rel. Magee v. Covington County School District ex rel. Keyes, 675 F.3d 849 (5th Cir. 2012) (en banc); Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006).
Applying these principles here shows that the City is entitled to judgment as a matter of law. At all times during the events of January 12, 2010, Kelly was a purely private actor, not acting under color of law. He was engaged in private acts in his own home after a night out drinking. Thus, any injury he inflicted on LaPorta is not a constitutional violation because it was not state action. The evidence that Kelly was employed as a police officer when the shooting occurred is irrelevant: it is undisputed that Kelly did nothing to cloak himself in government authority and was not carrying out his official duties. Plaintiff's section 1983 claim fails.
In Gibson v. City of Chicago, 910 F.2d 1510 (7th Cir. 1990), the court allowed discovery on a Monell failure to train claim where an off-duty officer was not acting under color of law. That decision, which stressed the "unique" procedural posture of that case, id. at 1521, does not compel a different result here. The court explained that its decision was "compatible" with DeShaney because "at this point in the litigation," it was required to accept as true Gibson's factual allegations, which the court suggested could fall within the state-created danger exception that the Supreme Court articulated in DeShaney. Id. at 1521 n.19. In other words, there was still a possibility Gibson could prove state action. In contrast, there was not even a claim here that Plaintiff satisfied any exception in DeShaney. Thus, plaintiff offered no evidence at trial going to the applicability of any DeShaney exception, and did not request a jury instruction on any exception. Thus, in contrast to Gibson, here there is no basis to give Plaintiff the benefit of any pleading standard. Plaintiff's reading of Gibson, which would permit a municipality to be held liable under section 1983 without any showing that the individual who inflicted the injury was acting under color of law and without meeting any exception to DeShaney, has no basis in law and cannot support the verdict in this case.
Because Plaintiff failed to prove a constitutional violation, the judgment should be vacated and judgment should be entered for the City.
In the alternative, even if, as the Court ruled, Plaintiff could show a constitutional violation if Kelly intentionally or with reckless indifference shot LaPorta, Plaintiff failed to meet that burden at trial.
To the contrary, the evidence showed that Kelly and LaPorta were like brothers, and were best friends since childhood. (Ex. A at 1408-1409, 2139-2140, 2979, 3016-3017.) They visited two bars together and then returned to Kelly's house, where LaPorta intended drink more and stay the night. (Ex. A at 2341, 3007, 3009.) There is no evidence that at any point over the course of the evening Kelly displayed animosity, hostility or violent behavior generally or with respect to LaPorta. (Ex. A at 419, 543-547, 1793). There was also no evidence that Kelly was ever previously violent toward LaPorta, or of any preexisting animosity between the two. In fact, LaPorta's own brother, who was also like a brother to Kelly, testified that he did not believe Kelly would ever intentionally hurt LaPorta, let alone attempt to kill him. (Ex. A at 2117, 2119, 2131-2132, 2137-2139)
Plaintiff elicited testimony from LaPorta that he did not fire the gun, (Ex. A at 2327), and on cross examination he testified that he never saw a gun that night and never saw Kelly approach him from any direction before he was shot. (Ex. A at 2343-2344.) This does not remotely suggest intent or reckless indifference by Kelly. There was no testimony from LaPorta suggesting that Kelly brandished the gun, pointed it towards LaPorta, or otherwise handled it in such a way as to somehow support a finding of reckless indifference. Nor was there any evidence that Kelly had a motive to shoot LaPorta. LaPorta testified that Kelly was hitting his dog while LaPorta was praising it and that LaPorta "said, I'm leaving. And I went to — I went to leave, and then, uh, I went to leave, and then I saw [sic] the click." (Ex. A at 2326) No reasonable juror could conclude that this disagreement would supply any motive to shoot LaPorta in the head to cause him harm.
Kelly's assertion of his Fifth Amendment right to refuse to answer certain questions at trial relating to LaPorta's account of the incident also does not support a finding of intent or reckless indifference. Kelly did invoke his rights in response to questions about being the one to fire the weapon, beating his dog, and LaPorta wanting to leave, but Kelly was never asked whether he intentionally fired his weapon at LaPorta, or intended to cause him harm, or whether Kelly acted with reckless indifference. (Ex. A at 2262-2268) Thus, Kelly did not assert his Fifth Amendment right not to answer any such question, and there can be no adverse inference that Kelly would have answered such a question against his own interest in avoiding criminal prosecution or disciplinary action.
Nor did any of the testimony from forensic expert supply evidence of intent or reckless indifference. Indeed, neither of Plaintiff's forensic experts even knew of or took LaPorta's account into consideration when forming their opinions. (Ex. A at 642, 1927-1928). Mariusz Ziejewski, a biomechanical engineering expert, opined that Kelly's account of where LaPorta was standing when he was shot was not consistent with "science," because LaPorta was in the general vicinity but not facing the direction (toward the bedroom) that Kelly described. (Ex. A at 580, 613). This is not evidence that Kelly intentionally shot at LaPorta, seeking to cause him harm, or that he acted in the face of a perceived risk that his actions would violate the law. And although David Balash, a firearms examiner, opined that Kelly was the one who fired the weapon, (Ex. A at 1912), this also does not show that Kelly intentionally fired it at LaPorta seeking to cause him harm or that Kelly acted with reckless indifference. Additionally, it was undisputed that Kelly was highly intoxicated. (Ex. A at 1643-1644) There was evidence that Kelly's blood alcohol was between.169 and .246, more than three times the legal limit to operate a motor vehicle in Illinois. (Ex. A at 1644, 1838.) This extreme level of intoxication suggests that Kelly could not have had the capacity even to form the intent to shoot and harm LaPorta, see United States v. Reed, 991 F.2d 399, 400 (7th Cir. 1993) (voluntary intoxication falls within defense of "diminished capacity," which is applicable to specific intent crimes.), or to act even in the face of a known risk that he would violate the law.
In the end, then, the jury's verdict can be based only on speculation, which is not "a substitute for proof." United States v. Landry, 257 F.2d 425, 431 (7th Cir.1958); see also In re Cohen, 507 F.3d 610, 614 (7th Cir.2007) (speculation is not evidence). Without evidence of intent or reckless indifference, Plaintiff cannot establish that Kelly violated LaPorta's constitutional rights. The City is therefore entitled to judgment as a matter of law.
Plaintiff's theory was that the City was liable under Monell based on "a common practice that is so widespread and well-settled that it constitutes a custom or usage with the force of law even though it is not authorized by written law or express policy." Rossi v. City of Chicago, 790 F.3d 792, 737 (7th Cir. 2015). Plaintiff presented evidence and argument purporting to show five widespread practices: failure to maintain an adequate early warning system ("EWS"), a code of silence, failure to terminate, failure to discipline, and failure to investigate officer misconduct. (Ex. A at 176-177, 3436-3437; Ex. C Verdict Form). The jury found only that failures to maintain an adequate EWS and failure to discipline caused Kelly to shoot LaPorta. (Ex. C, Verdict Form). The jury also found widespread practice of failure to investigate officer misconduct but did not find that the widespread practice of failure to investigate caused Kelly to shoot LaPorta. Thus, this motion will address the evidentiary basis only for the EWS, discipline and investigate theories.
Plaintiff has never argued that the claimed widespread practices at issue are in and of themselves unconstitutional. And, indeed, the Constitution does not require the investigation of police misconduct, discipline for police misconduct or that a police department maintain an EWS. See, e.g., Wilson-Trattner, 863 F.3d at 594-95 (no due process right to enforcement of the law). Rather, the widespread practices the jury found here are those of "inaction," which may be problematic only if they cause constitutional violations. Where, as here, "municipal liability is predicated upon a failure to act, the requisite degree of fault must be shown by proof of a background of events and circumstances which establish that the `policy of inaction' is the functional equivalent of a decision by the city itself to violate the Constitution." City of Canton, Ohio v. Harris, 489 U.S. 378, 394-95 (1989) (O'Conner, J., concurring in part, dissenting in part); see also Connick v. Thompson, 563 U.S. 51, 61-62 (2011) (citing Harris, 489 U.S. at 395). Indeed, municipal liability premised upon policies that are not facially unconstitutional but that may instead "launch a series of events that ultimately causes a violation of federal rights" requires that "rigorous standards of culpability and causation" are applied "to ensure that the municipality is not held liable solely for the actions of its employee. Board of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 405 (1997); see also City of Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985) (Rehnquist, J. plurality opinion) ("[W]here the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the `policy' and the constitutional deprivation."). In particular, "it is not enough . . . to merely identify conduct properly attributable to the municipality, [t]he plaintiff must also demonstrate that through its deliberate conduct, the municipality was `the moving force' behind the injury alleged." Brown, 520 U.S. at 403 (emphasis in original).
As explained further below, these standards required Plaintiff to show that the two practices the jury identified were widespread, that the City's policymaker (the Chicago City Council) was deliberately indifferent to constitutional violations occurring as a result of the purportedly widespread practices, and that those same practices caused LaPorta's injuries. The evidence presented at trial was not legally sufficient to support any of these required showings.
The Seventh Circuit has not adopted "any bright-line rules defining a widespread custom or practice," Thomas v. Cook County, 604 F.3d 293, 303 (7
The evidence in this case was not that the City did not have an EWS at all or that it did not ever investigate or discipline officers for misconduct. Instead, Plaintiff's theory was that City's EWS, investigations and discipline were not good enough. Evidence that policies are "not good enough" cannot possibly suffice to satisfy the "rigorous standards" of culpability and causation required for municipal liability. In addition, beyond his allegations about his own circumstances, Plaintiff presented no evidence of any other specific incidents of constitutional violations attributable to these alleged policies. The City is therefore entitled to judgment notwithstanding the verdict.
Plaintiff's police procedure expert, Lou Reiter, explained that an EWS is a remediation-based, non-disciplinary, supervisory program used in law enforcement to identify officers not conforming to the expectations of the department. (Ex. A at 301, 355-356). He relied on the description of Donald O'Neill, the director of CPD's Human Resources Department from 2014 to 2016, of CPD's EWS program, which, while not actually called "EWS," includes the Behavioral Intervention System ("BIS"), Personnel Concerns ("PC"), and Fitness for Duty "FFD" programs. (Ex. A at 294-295, 324-325, 3207-3208). O'Neill explained that BIS and PC look at various relevant, vetted criteria, which include the frequency of not-sustained allegations of excessive force during a one-year time period, as a factor that may warrant the recommendation that an officer be placed in the BIS or PC programs. (Ex. A at 3210-3212, 3226). If BIS is not effective in bringing about change the officer's behavior that warranted inclusion in the program, the officer may then be placed in PC, which is a more rigorous remedial program that sets specific parameters unique to the officer's own reasons for entry into the program and which the officer must meet to avoid termination. (Ex. A at 329-330, 3209). Direct referrals to FFD can be made or a referral to FFD can be included as part of an officer's enrollment in BIS or PC. (Ex. A at 3215-3216.) The City pioneered the development of an EWS in the form of BIS and PC in the 1990s; even today, less than 10% of all law enforcement agencies have such systems in place. (Ex. A at 3130-3131, 3210). Reiter testified that CPD's written EWS policies were "adequate." (Ex. A at 324-325, 330, 374). Thus, the undisputed evidence in this case is that the City maintained, at least on paper, an adequate EWS system.
Reiter instead focused on Kelly alone and statistics in the Police Accountability Task Force ("PATF") Report to opine generally that the EWS program was not being "utilized" properly. (Ex. A at 363, 371, 374). But that evidence did not support his opinion. Reiter testified that Kelly should have been referred to CPD's EWS program in 2005 or 2006 because of the excessive force complaints against him (which included the two Brogan incidents
Reiter did speculate that an officer "might think" he could act with impunity if he knew, among other things, that he met the criteria for the EWS program but was not enrolled, but there was no evidence that this theory applied to Kelly or any other officer. (Ex. A at 305, 325-7, 329.) And Reiter's observation ignored that Kelly was enrolled in FFD in relation to the Brogan incidents. Further, Reiter provided no evidence that it would even be possible to show that adequate utilization of an EWS program reduces constitutional violations. Nor did Reiter offer any evidence that some other, differently maintained or utilized EWS would have identified Kelly as being at risk to commit acts of off-duty violence linked to alcohol abuse any better than FFD did, and influenced his future behavior in a way that would have prevented LaPorta from being shot. In fact, there was no evidence presented that any EWS system was ever found to have actually influenced future behavior.
Plaintiff's only other evidence in support of this theory was information contained in the PATF Report regarding enrollment in CPD's BIS and PC programs from the years 2007-2015. But rather than supporting Plaintiff's theory, the PATF data showed that from 2007-2010, the only timeframe during which an EWS could have impacted Kelly's behavior, the programs were being utilized. (Ex. A at 328, 3226-3227.) And there was no evidence that the numbers during the relevant timeframe were evidence of underutilization; instead, Reiter pointed to the numbers after 2010 as evidence of underutilization. (Ex. A at 328.) Evidence regarding the adequacy of the BIS and PC programs after 2010 is irrelevant to establishing its adequacy in 2010 and before. In addition, the PATF data utilized by Plaintiff did not include any FFD statistics, painting an incomplete picture of the EWS. (Ex. A at 2353.) The same holds true for the conclusory observations in both the PATF and DOJ Reports (on which Plaintiff also relied) that CPD's EWS is not functioning in a way that identifies officer in need of intervention. (Ex. A at 2238-2249 (reading DOJ Report); 2349-2361 (reading PATF Report)) Moreover, because those reports were published in 2016 and 2017, respectively, their observations about the "current status" of the program say nothing about the effectiveness of the EWS program during the relevant timeframe for this case.
Plaintiff also offered no evidence that any criteria exists by which to evaluate the efficacy or "adequacy" of utilization of an EWS program. Without evidence of any meaningful standard by which to judge these programs, there was no basis for a jury to conclude CPD's program fell short. In the end, the only reasonable interpretation of the evidence is that CPD did have a EWS program that, as Plaintiff's police practices expert acknowledged, met law enforcement standards; that it was being utilized between 2004 and 2010, which is the only timeframe during which such a program could have influenced Kelly's conduct; and that Kelly was, in fact, referred to and participated in the program. Plaintiff therefore failed to prove the existence of a widespread practice of failing to maintain an "adequate early warning system."
As Plaintiff made clear in his opening statement and throughout the trial, his failure to discipline claim was based solely on evidence relating to Kelly — specifically, "whether the City . . . should have disciplined Patrick Kelly for his repeated acts of misconduct before so that he knew that there were consequences for punishment [sic] for his misconduct." (Ex A at 177).
A single officer's disciplinary record is a legally insufficient evidentiary basis from which to find a widespread, entrenched practice in a police department with more than 13,000 officers. (Ex. A at 929) "[T]he gravamen [of a Monell claim] is not individual misconduct by police officers (that is covered elsewhere under § 1983), but a widespread practice that permeates a critical mass of an institutional body. In other words, Monell claims focus on institutional behavior; for this reason, misbehavior by one or a group of officials is only relevant where it can be tied to the policy, customs, or practices of the institution as a whole." Rossi, 790 F.3d at 737. Thus, a plaintiff needs evidence of a pattern of conduct "sufficiently widespread in terms of duration and/or frequency" to give rise to an inference of actual or constructive knowledge on the part of the municipality; without that, the municipality is not liable. McLin, et al. v. City of Chicago, 742 F.Supp. 994 at 997-98 (N.D. Ill. 1990); Gill, 850 F.3d at 344. Accordingly, discipline, or lack thereof, for one single officer, even over the course of six years, does not come close to establishing a widespread practice of failure to discipline.
In addition, as this Court recognized in its summary judgment ruling, the failure to discipline claim focused on the adequacy of discipline. (See Dkt, 405 at 12). That claim necessarily requires proof that upon a finding of misconduct (as opposed to upon receiving an allegation of misconduct, which was an issue covered by the failure to investigate claim), the City failed to impose discipline or imposed inadequate discipline. Plaintiff offered no such evidence with respect to Kelly. For the one complaint against Kelly that was sustained, the LaPorta incident, Kelly was disciplined. IPRA sustained allegations against Kelly for failing to secure his weapon, intoxication off-duty, and for his conduct toward Sgt. Kielbasa. (Ex. A at 837-1842.) He received a 60-day suspension without pay. (Ex. A at 3205-3206).
With respect to the other allegations of misconduct against Kelly, Plaintiff presented evidence tending to show that only one of them — the 2005 Brogan domestic violence incident — should have resulted in discipline. In fact, although over the course of his career Kelly was the subject of other allegations of misconduct, Plaintiff did not present evidence that any of those complaints should have been sustained or that Kelly should have otherwise been disciplined. While Plaintiff presented evidence about Kelly's other CRs through Reiter and other witnesses, he did not elicit any opinion from Reiter, or offer any evidence from any other source, that any CR other than that pertaining to the 2005 Brogan incident should have been sustained. (Ex. A at 371-373.) Without that evidence, evidence regarding other allegations of misconduct relating to any CR other than Brogan's cannot support a finding that there existed a widespread practice premised on failure to discipline.
In contrast to the paucity of evidence showing a policy of failing to discipline, there was evidence of CPD disciplinary records showing that complaints involving violations of Rule 14 (which prohibits false statements or reports) and domestic violence incidents were sustained and disciplined was imposed during the relevant timeframe of 2004 to 2010. (Ex. A at 3315-3316, 3318-3319, 3327-3328). Plaintiffs identified no evidence to suggest that this discipline was inadequate. Similarly, while Plaintiff's expert, Dr. Rothman, testified about statistical data contained in CPD annual reports about sustained rates and ranges of discipline imposed, he did not opine that more complaints should have been sustained or that the discipline imposed was inadequate. (Ex. A at 2210-2213). As for Reiter, he offered no opinion regarding Dr. Rothman's analysis, and, like Dr. Rothman, he provided no opinion regarding the adequacy of the City's discipline for sustained complaints. In fact, Reiter could not even say whether, over the course of his 25 years of experience opining on the City's police practices, any of the thousands of CRs he reviewed should have been sustained but were not, let alone whether any discipline was imposed or was inadequate. (Ex. A at 371)
Specifically, while the jury heard conclusory statements from the DOJ Report about "rare instances" of sustained complaints and "haphazard and unpredictable discipline," (Ex. A at 2238-2249), this evidence does not support Plaintiff's failure-to-discipline theory because it does not contain any of the actual "examples of other . . . police officers taking actions similar to those complained of here" required to prove a Monell widespread practice. Gill, 850 F.3d at 344. In addition, the DOJ Report reached its findings based on CPD materials dated between 2011 and 2016, (Ex. A at 2239-240), and therefore those findings do not address the timeframe relevant to this case. Similarly conclusory evidence from outside the relevant timeframe was introduced from the PATF Report. (Ex. A at 2349-2361). Because neither Report provides any specific evidentiary basis for its conclusions, much less specific examples dating from the relevant timeframe, the findings contained in those Reports are not evidence of a widespread practice of failing to discipline.
In short, Plaintiff adduced evidence of, at most, a single instance in which the City failed to impose adequate discipline — the 2005 Brogan incident — which occurred more than four years before the LaPorta incident. An isolated instance is legally insufficient to establish a widespread practice of failing to discipline. See Palmer v. Marion Cty., 327 F.3d 588, 596 (7th Cir. 2003) ("[T]wo incidents of misconduct . . . in a period of one year certainly fails to meet the test of a widespread unconstitutional practice . . . that is so well settled that it constitutes a custom or usage with the force of law."). Moreover, no evidence linked a practice of failing to discipline to any constitutional violation. The complete lack of an evidentiary basis supporting a widespread practice of failing to discipline warrants judgment as a matter of law for the City on Plaintiff's failure-to-discipline theory.
For the many of same reasons discussed above, the evidence elicited at trial was insufficient to establish a widespread practice of failing to investigate. First, Plaintiff's reliance on Kelly's disciplinary history (see e.g. Ex. A at 316-20), is, for the reasons discussed above, a legally insufficient evidentiary basis from which to find a widespread, entrenched practice in a police department with more than 13,000 officers. Plaintiff's additional reliance upon Dr. Rothman's testimony that 46 percent of complaints made between December 31, 2004 and January 12, 2011 are categorized as "no-affidavit" and not investigated, (Ex. A at 2199-2202, 2211-14), does not cure the deficiency in Plaintiff's almost exclusive reliance upon Kelly's disciplinary history. "No Affidavit" complaints are designated as such because Illinois State law requires that in order for a misconduct complaint to proceed against a member of law enforcement it must be accompanied by an affidavit attesting to the veracity of the complaint. See Uniform Peace Officers Disciplinary Act, 50 ILCS 725/3.8. A municipal policy cannot be premised upon compliance with an obligation imposed by Illinois State law, otherwise it would be placed in the untenable position of being forced to violate state law to avoid Monell liability. Moreover, Dr. Rothman's testimony that complaints were sustained 5 percent of the time during the same time period cannot be relied upon to support Plaintiff's widespread practice theory of failing to investigate. Rothman made clear that he did not compare CPD's sustained rate to any other law enforcement agency sustained rate. (Ex. A at 2214.) And, Dr. Roberts, the City's expert, testified that the City's sustained rate was not statistically different than other comparable police departments. (Ex. A at 2817). Accordingly, the evidence Plaintiff relied upon was insufficient as a matter of law to show a widespread practice of failing to discipline.
Plaintiff's only other evidence in support of this theory was the observations contained in the PATF Report and the DOJ Report discussed above. The flaws discussed with respect to the reliance upon these Reports in support of Plaintiff's failure to discipline theory doom Plaintiff's reliance upon this theory as well. Specifically, conclusory statements from the DOJ Report about "rare instances" of sustained complaints and "haphazard and unpredictable discipline," (Ex. A at 2238-2249), does not support Plaintiff's failure-to-investigate theory because it does not contain any of the actual "examples of other . . . police officers taking actions similar to those complained of here" required to prove a Monell widespread practice. Gill, 850 F.3d at 344. Additionally, the timeframe of the CPD materials relied upon by the DOJ (2011 to 2016) do not address the timeframe relevant to this case. Similarly conclusory evidence from outside the relevant timeframe was introduced from the PATF Report. (Ex. A at 2349-2361). As discussed above, neither report provides any specific evidentiary basis for its conclusions or specific examples dating from the relevant timeframe, and therefore, the findings contained in those Reports are not evidence of a widespread practice of failing to investigate. Moreover, no evidence linked a practice of failing to investigate to any constitutional violation. Thus, the complete lack of an evidentiary basis supporting a widespread practice of failing to investigate warrants judgment as a matter of law for the City on Plaintiff's failure-to-investigate theory.
Municipal liability under section 1983 attaches only where "a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Pembaur v. City of Cincinnati, 475 U.S. 468, 483 (1986). Deliberate indifference requires proof of both awareness of a pattern of constitutional violations "substantially certain" to result from the policy, and acquiescence to the pattern. City of Canton, 489 U.S. at 397 (O'Connor, concurring in part and dissenting in part); see also Connick, 563 U.S. at 61. But as the Seventh Circuit put it, "[f]ailing to eliminate a practice cannot be equated to approving it. Otherwise every inept police chief in the country would be deemed to approve, and therefore become answerable in damages to all the victims of, the misconduct of the officers under his command—indeed might (contrary to DeShaney[]) be deemed responsible for all the murders and robberies that he had through his carelessness failed to prevent." Wilson v. City of Chicago, 6 F.3d 1233, 1240 (7th Cir. 1993); see also Moore v. City of Chicago, No. 02 C 5130, 2007 WL 3037121, at *11. (N.D. Ill. Oct.15, 2007) (evidence of City Council's failed efforts to change its alleged practice of ignoring police misconduct did not demonstrate deliberate indifference).
Here, there was legally insufficient evidence from which a reasonable jury could find that the City's policymaker was deliberately indifferent to a widespread practice of failing to maintain an adequate EWS and/or failing to discipline.
The only evidence purporting to relate to deliberate indifference to the lack of an adequate EWS was introduced through two questions to Alderman Joseph Moore, a Fed. R. Civ. Proc. 30(b)(6) witness who testified on behalf of the Chicago City Council. He was asked to confirm that the 2017 DOJ Report: (1) "criticized the lack of an early warning or early intervention system," and (2) "warned that the lack of having an early warning system could lead to repeated acts of abuse against the citizens leading to constitutional violations." (Ex. A at 903). Even if the findings in the DOJ Report pertained to the timeframe relevant to this case, which they do not, those findings could not establish deliberate indifference by the City Council to a purportedly widespread practice of failing to maintain an adequate EWS.
Even Reiter conceded that the City's EWS system was, on its face, an adequate system, (Ex. A at 374), and there was no evidence that the City's EWS, as it existed between 2004 and 2010, was improperly utilized such that it would have been was plainly obvious to the relevant policymaker that it would cause a deprivation of constitutional rights by officers. Further, the only evidence elicit from Alderman Moore regarding EWS was that City Council was made aware of that CPD's EWS had been "criticized" in the recent 2017 DOJ Report. (Ex. A at 903, 933). But that is not evidence that can even be considered with regard to deliberate indifference here because the Report does not reflect, and there was no other evidence to establish, that at any time before 2017, the City Council was aware of any inadequacies of CPD's EWS during the relevant timeframe of 2004 to 2010, nothing in the Report establish anything about the EWS being "plainly obvious," or that the Report reflected factual findings or conclusions relating to EWS during that timeframe. Nor would that evidence be sufficient even it was relevant because it fails to establish the Council engaged in "a deliberate choice to follow a course of action . . . among various alternatives." Pembaur, 475 U.S. 483. In short, there was no evidence that the City Council knew, during the relevant timeframe of 2004 to 2010, that CPD's facially adequate EWS system was nevertheless inadequate because it purportedly was not being utilized properly, and then acquiesced in that practice with the knowledge that the practice was substantially certain to result in constitutional violations. Without such evidence, which is needed to establish deliberate indifference, Plaintiff's Monell claim premised on a policy of maintaining an inadequate EWS fails and the City is entitled to judgment as a matter of law on that claim.
Again, Plaintiff relied only on Kelly's disciplinary history (and, even then, only on the 2005 Brogan incident) to establish a widespread practice of failing to discipline. But there was no evidence that the Chicago City Council was aware of the allegations of misconduct against Kelly, much less of the failure to discipline him for the Brogan incident. Likewise, there was no evidence that City Council was aware that constitutional violations were occurring or substantially likely to occur because one of its 13,000 police officers was not disciplined for one incident in 2005.
"A custom of failing to discipline police officers can be shown to be deliberately indifferent if the need for further discipline is so obvious and disciplinary procedures so inadequate as to be likely to result in the violation of constitutional rights such that a jury could attribute to the policymakers a deliberate indifference to the need to discipline the police force." Czajkowski v. City of Chicago, 810 F.Supp. 1428, 1439 (N.D.Ill.1992) (citing Tapia v. City of Greenwood, 965 F.2d 336, 338 (7th Cir.1992)). Here, there was, at best, meager evidence to establish a practice of failing to discipline, and none to establish that the City's policymaker knew about and was deliberately indifferent to the need for more discipline or that without it, officers were likely to violate the Constitution.
If anything, there was substantial evidence that the City Council was not deliberately indifferent. For example, Alderman Moore testified that the City Council passed an ordinance in 2007 that created IPRA to replace OPS in response to public criticism that CPD's disciplinary system was not effective enough at addressing police misconduct. (Ex. A at 840-846, 914-916). This ordinance made IPRA completely independent from CPD and subject to direct oversight by the Mayor and City Council. Id. at 840-846. Alderman Moore further testified to the City Council's oversight of CPD and how it regularly holds hearings focused on the issue of police accountability. (Ex. A at 914-916). Those hearings included but are not limited to annual budget hearings, which are also "accountability" sessions during which the Council scrutinizes the work of CPD and IPRA. Id. The Council sought out and hired highly qualified individuals to run IPRA, who made improvements to the accountability systems and who were held accountable for their work during the regular hearing held by the City Council. (Ex. A at 918-922). He explained that despite finite resources and the need to balance the various financial needs of CPD, IPRA (and now COPA), the City Council allocates all the resources it can to addressing an issue it takes very seriously — police accountability. (Ex. A at 916-918, 925-929, 946.) On that point, he further stated that "I would not doubt that there are also incidents where officers escape being disciplined, and that's why it's important to increase the resources for the body charged with conducting those sort of investigations." (Ex. A at 877).
In addition, Alderman Moore testified that when the Illinois General Assembly was considering legislation that could impede misconduct investigations, the City lobbied against the legislation. (Ex. A at 882-885). After losing that fight, the City continued to negotiate this issue with the unions, and ultimately was successful in obtaining concessions relating to that legislation. (Ex. A at 883-884). Alderman Moore also testified about the City Council's efforts to ensure that the City is transparent on matters relating to police discipline. (Ex. A at 922-923.) Both IPRA and CPD publish annual reports that are available to the public and contain data and statistics regarding police discipline. (Ex. A at 908-909, 922, 936-937). Similarly, there was evidence at trial that the Police Board reports to the public about police disciplinary matters. (Ex. A at 3202-3203). To be sure, Alderman Moore acknowledged that the City Council is aware of criticism that the City's systems for identifying and disciplining police misconduct are not robust enough or could be better, (Ex. A at 851); however, this is not evidence of deliberate indifference. See Wilson, 6 F.3d at 1240 (explaining that "failing to eliminate a practice cannot be equated to approving it")
In the end, to find deliberate indifference on these facts would substitute conjecture and principles of mere negligence for the "rigorous standards" of culpability the Supreme Court requires to hold a municipality liable on a Monell claim. Brown, 520 U.S. at 405. As the Court has explained, "a finding of culpability simply cannot depend on the mere probability that any officer inadequately screened will inflict any constitutional injury. Rather, it must depend on a finding that this officer was highly likely to inflict the particular injury suffered by the plaintiff." Id. at 412; accord Wilson v. Cook County, 742 F.3d 775, 783-84 (7th Cir. 2014). No reasonable jury could conclude based on the evidence presented here that the City Council should have known that because CPD had an adequate but purportedly improperly utilized EWS and/or because CPD had an alleged practice of failing to discipline that Kelly would shoot his longtime friend in the head and was deliberately indifferent to this known consequence.
There also was insufficient evidence presented at trial tying the incident involving Kelly and LaPorta to any widespread practice of the City. "Causation is a standard element of tort liability, and includes two requirements: (1) the act must be the `cause-in-fact' of the injury, i.e., `the injury would not have occurred absent the conduct'; and (2) the act must be the `proximate cause,' sometimes referred to as the `legal cause,' of the injury, i.e., `the injury is of a type that a reasonable person would see as a likely result of his or her conduct.'" Whitlock v. Brueggemann, 682 F.3d 567, 582 (7th Cir. 2012) (citing Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 640 n.1 (7th Cir.2008); see also Ruiz-Cortez v. City of Chicago, 2016 WL 6270768, at *22 (N.D. Ill. 2016). ("[B]oth but-for and proximate causation" must be established to link the challenged action to the constitutional deprivation.). The existence of "[a direct causal link between a municipal policy or custom and the alleged constitutional deprivation" is exceedingly difficult to prove. City of Canton, 489 U.S. at 385. The "fact that a municipal `policy' might lead to `police misconduct' is hardly sufficient to satisfy Monell's requirement that the particular policy be the `moving force' behind a constitutional violation. There must at least be an affirmative link between the . . . inadequacies alleged, and the particular constitutional violation at issue." City of Oklahoma City, 471 U.S. at 824 n.8 (emphasis added). Plaintiff failed to satisfy this rigorous standard here.
The evidence presented at trial suggested, at most, a general environment that could possibly lead to misconduct among officers, none of which is necessarily tied to any specific type of misconduct. But that is not enough. As explained, Supreme Court precedent required Plaintiff to present evidence of a direct causal link between any practice of failing to have an adequate EWS and/or failing to discipline, on the one hand, and, on the other, Kelly shooting his friend after night out of heavy drinking. Absent such evidence, the shooting cannot be "affirmative[ly] linked," id., to any failure to discipline or maintain an adequate EWS.
With regard to the adequacy of the EWS, the only evidence relating to causation came from Reiter. He testified that the failure to have an adequate EWS "could or might cause an officer such as Patrick Kelly to act with impunity." (Ex. A at 319, 325-326) But, again, the Supreme Court has foreclosed liability on this basis, holding that Monell's causation requirement is "hardly satisfied" by evidence that a municipal policy "might" lead to unspecified police misconduct. City of Oklahoma City, 471 U.S. at 824 n.8; see also Craft v. Flagg, No. 06 C 1451, 2010 WL 5363914, at *2 (N.D. Ill. Dec. 13, 2010) (citing City of Canton, 489 U.S. at 391-92) ("Evidence that a municipality could have done something more or better is insufficient to establish causation in a § 1983 [Monell] claim."). And there was no evidence at all tending to establish that any practice by the City of failing to discipline was the but-for cause of LaPorta's shooting. In fact, Plaintiff's failure to appreciate his burden of proof regarding causation is exemplified by his counsel's closing argument: in closing, Plaintiff's counsel argued that he had to prove merely that LaPorta's injuries were a "foreseeable consequence of the City's actions." (Ex. A at 3440, 3460, 3479.) As explained above, however, Plaintiff had to prove not only that a City policy was the proximate cause of LaPorta's injury, but also that it was the but-for cause. In particular, to show but-for causation, Plaintiff had to show the following:
The evidence presented here was not sufficient to establish any of the elements in this attenuated causal chain, much less all of those elements. The evidence did not show, for example, that Kelly's off-duty drinking, and resulting violent acts, were the result of his purported belief that he would not be disciplined by his employer for those acts, rather than his own personal issues, including alcoholism and a tendency to engage in acts of violence. Indeed, if the evidence presented at trial were sufficient to establish causation for purposes of Monell liability here, it would be sufficient in any case in which any person the City employs as a police officer engages in any act of misconduct. That is not the law. To the contrary, the Supreme Court has made clear that there must be a robust and direct causal link between the claimed municipal policy and the specific conduct at issue to impose liability on a municipality.
Although Plaintiff's failure to present sufficient evidence that the City's purported practices were the but-for cause of LaPorta's shooting alone entitles the City to judgment as a matter of law, Plaintiff also failed to present sufficient evidence to establish proximate causation — that is, that this is the type of injury that a reasonable person would see as a likely result of any failure by the City to maintain an inadequate EWS or to discipline its officers for misconduct. Plaintiff presented no evidence of any other instance where any remotely similar tragedy happened that could have put the City on notice that its policies were likely to cause its police officers, while off duty and not engaged in any law enforcement activity, to shoot their friends because they believed they could get away with it. Therefore, the City is entitled to judgment as a matter of law for two reasons: Plaintiff failed to show that but-for the City's allegedly inadequate EWS and disciplinary practices, Kelly would not have shot his friend in the head, and Plaintiff further failed to show that it was a likely and foreseeable result of those supposed practices that Kelly would do so.
WHEREFORE, for all of the reasons discussed above, the judgment on the jury's verdict should be vacated and a directed verdict pursuant to Rule 50(b) should be entered for Defendant City of Chicago.
weapon belonging to Patrick Kelly, an off-duty Chicago police officer. The plaintiff, Mr. LaPorta, contends that he was shot by Officer Kelly.
Plaintiff also contends that the City of Chicago is responsible for the actions of Officer Kelly even though he was off duty at the time because the City of Chicago had widespread policies and practices that sought to protect police officers who commit violence against citizens while they're off duty so that they are encouraged to believe that they can commit such violence with impunity.
The City of Chicago contends that Mr. LaPorta shot himself. It also contends that it had no such policies or practices so that it is not responsible for the actions of the police officers while they're off duty. The plaintiff claims to have suffered severe damages as a result of the shooting.
That's what this case is generally about. Again, that's my personal conclusion of what the case is about so the parties, to the extent that I might be misinformed slightly on some of the facts or contentions, that is not — neither party is bound to accept my complete statement there.
The participants in this case, Mr. — plaintiff is represented by Mr. Antonio Romanucci. Would you represent — excuse me, introduce the people at your table?
MR. ROMANUCCI: Yes, your Honor.
Good morning, ladies and gentlemen. My name is explanation about the phone records where you see the duration after the 911 calls of zero. Those are text messages being sent. So the zeros are text messages. And then you can see that there are calls being made to and from his phone over a certain period of time all the way into the 5:00 o'clock morning hour.
And that is the web that began by Patrick Kelly. He's in the middle. I don't have a pointer here, but he's in the middle right there. And those are just the phone calls that were made by Patrick Kelly to and from.
And then Melissa Spagnola is the girlfriend, and you can see that one phone call made out at 5:01 a.m. from Patrick Kelly then resulted in all of those calls made by her to him and then out into the web.
So this case has many issues for you to decide, but there are five main categories which it rests upon. And I'm going to give you those — those broad — broad scope categories right now so you can keep these in mind as the case progresses.
The first one is whether the City had an adequate mechanism to detect police officers who were not fit to be police officers, the one that we're referring to as the early warning system.
The second one is whether the City had a code of silence, which was the cause of this needless harm. The third was whether the City should have terminated Patrick Kelly at any time before January 12, 2010, so that he could not have had a gun or bullets to shoot with.
Four, whether the City should have been disciplined —
or should have disciplined Patrick Kelly for his repeated acts of misconduct before so that he knew that there were consequences for punishment for his misconduct. And five, whether the City should have investigated Patrick Kelly for those repeated acts of misconduct.
Ladies and gentlemen, we are very confident that we have overwhelming evidence that Patrick Kelly shot Michael LaPorta. But we are going to show you that it was the City's actions based upon these issues here which caused this needless harm.
This is all the moving force is because you're going to hear that term used throughout this case. You're going to hear the City say to you, we were not the moving force in the cause of these injuries, but indeed, the opposite is true. We will show you that the moving force is nothing more than a direct link. It is the cause for something to occur.
The City's policies of not disciplining and not having an early warning system ultimately were the moving force behind this tragedy and the link which led to Michael LaPorta being shot. So simply, had Patrick Kelly been disciplined or caught as one of these repeaters, had the City been transparent in its responded, you'll hear their testimony. You'll hear that the crime scene was protected. You'll hear that Pat Kelly never was allowed to go back in the house. You'll hear that immediately after Pat Kelly left the house, everything remained as it was so that forensic investigators could come out and collect whatever the evidence was and take the photographs.
You will hear that detectives arrived on the scene because whenever there's an incident involving a police officer, there's two types of investigations that could get initiated. There's obviously a criminal investigation because a police officer, they're accused of criminal activity. The police department investigates that. But police officers also are subject to a different type of investigation: An administrative investigation. And that administrative investigation happens for any type of allegation of misconduct against a police officer, whether it's criminal or not.
When you have an incident that involves a police officer's weapon — which this was Pat Kelly's weapon that was used in this incident. It was a weapon that he purchased. The Chicago Police Department does not purchase weapons or ammunition for any of its police officers. When they start in the academy, one of the prerequisites for starting in the academy is for them to purchase their own gun and get their ammunition from a prescribed list. There's — they don't get latter part. Investigator Querfurth, I believe. And I've seen his name ever since the '80s. He's been a long-term investigator with OPS and now IPRA. Officer Bowen, who was an investigator of one of the CRs involving Officer Kelly;
Mr. O'Neill, who came back as a civilian and is now head of the human resources division for Chicago Police Department.
Q. What is it about Mr. O'Neill's deposition, for example, that would stand out to you? Why is that relevant, one that rises to the top of the list?
A. I think he explains how the two early warning systems — in Chicago, it's either called a BIS or a PC. BIS stands for Behavioral Intervention System. PC stands for Personnel Concerns. Those are their form of early warning system. He identified how they should work.
He also, I think it was him and several of the others, said that the philosophy of the Chicago Police Department is that if you lie, you will more likely than not be terminated. They couldn't keep you on the job.
Q. Is that the Rule 14 violation?
A. Yes.
Q. So is Rule 14 the "lie, you die" rule violation?
A. Well, it's the lie. In Chicago, you don't die. We use, lie, if you lie, you die, which means if you lie — we can cut — we can handle most anything, but if you lie during an administrative investigation, because you're compelled to tell the truth, from an integrity standpoint, we can't keep you on the job anymore. And that's pretty much the general trend throughout law enforcement.
Q. Did Mr. O'Neill have anything to say about Patrick Kelly as to whether or not he lied?
A. Yes. And he reviewed the information from the investigation, I believe, and the information from Querfurth and Broderdorf, I believe, was the investigator from internal affairs that conducted the chemical — the breathalyzer test of Officer Kelly after the LaPorta incident. And he, O'Neill, said, in his opinion, Officer Kelly was not truthful.
Q. And you mentioned also Querfurth who has been, as you said, around for a long time. Did Mr. Querfurth, an IPRA investigator, have any opinions about Mr. Kelly's truthfulness?
A. Yes.
Q. What were —
A. In his opinion, he was not truthful in the interview that was conducted with Wordorf, I believe it was, about —
Q. Can I just say, is it Broderdorf, Ray Broderdorf?
A. Broderdorf, yes. And it was really about his drinking. And that was the essential element he looked at. In addition, I believe he referenced, Querfurth also was aware of Boden's CR involving the Frances Brogan incident that occurred in 2005. Yes, 2005. And he agreed with Boden that in that case, Officer Kelly lied about drinking and lied about battering that you can see.
In addition, it could be that an officer who is not conducting himself reasonably is protected by other officers who won't come forward and, as a consequence, that officer can led to believe — can be led to believe that he or she can do police work as they see fit whether it's constitutional or not.
Q. So along those same lines then, what are the dangers of not having an adequate early warning system? How do — how does that pattern and practice lead to that constitutional violation, if any?
A. The early warning system is really a supervisory system designed to alert supervisors to officers who are doing something different than their fellow officers. So it could be that if you are garnering more citizen complaints than another officer, it could be that your attitude, behavior, and performance is deficient and/or you're being abusive in your policing tactics and you're abusing the rights of the people you're stopping. So you want to make sure that that's not happening.
Another reason you want an early warning system is to identify officers who may believe that numbers and arrests and seizures are more important than the means by which you get those. That's a continuous trend in law enforcement, that we hire proactive officers. We expect them to go out there and
MR. ROMANUCCI: Just on that portion?
THE COURT: Yes, the subjective motivation.
MS. ROSEN: I move to strike that testimony, your Honor.
THE COURT: I'll strike that based on the ruling in limine.
BY MR. ROMANUCCI:
Q. Sure. What's the message that's being sent to an officer who has 18 CRs, different allegations of misconduct, and only one of them result in an interview?
A. In my belief, it's going to send a message to a reasonable officer that, "We're really not intent on doing a professional investigation that would meet generally accepted practices in law enforcement and, more likely than not, you won't be sanctioned."
Q. And could or might that lead to the feeling of impunity?
A. Absolutely.
Q. And why?
A. Well, if you know your department might get a complaint and they're not going to hold you accountable for it and not do a reasonable investigation and you know that more often than not, your buddy is going to stick up for you because of the code of silence and they're not going to look at the objective physical evidence that might come from the investigation and use that against you, an officer can believe
Q. Mr. Reiter, I'd like to move on a little bit to the early warning system or early intervention system, as we've used those two terms interchangeably here. Can you tell us whether or not during the time period of 2004 to 2011 whether the City of Chicago had in place an early warning system and, if you believe it did, tell us whether or not you — your opinion as to whether or not it was adequate?
A. They did have a system, and they've had for years. They had the Behavioral Intervention System which really focuses in on things like anger management, substance abuse, chronic tardyism, prescription abuse, domestic misconduct, but it could also be for other things as well.
And then they had what they called Personnel Concerns. And by the way, the BIS said that if an officer had, in a 12-month period, two sustained CRs or three not sustained CRs, they would — they would be recommended by their commanding officers to participate in this BIS, or the Behavioral Intervention System.
Q. So is what you're saying that an officer does not have to have a sustained CR in order to be placed in the Behavioral Interventional System?
A. Right. The order says you can have both. And you can have three not sustained within a 12-month period. We know with Officer Kelly in '05, he had five, and in '06, he had six.
Q. So if we were to use the '06, technically, if the Behavioral Intervention System, which is the early warning system, was being applied adequately, he should have been referred to that system twice within one calendar year?
A. Yes.
Q. And, in your opinion, was he referred to Behavioral Intervention?
A. For sustained — for not sustained CRs, never. And, in fact, the Police Accountability Task Force said that, I forget if it's human resources or IPRA, didn't begin tracking CRs until 2014. So they had no method to even identify who might be eligible for that BIS program.
Q. So could or might then the fact that an officer who should have been eligible, such as Officer Kelly, to be placed in the Behavioral Intervention during a year such as 2005 or 2006 for non-sustained CRs, not being placed in there when he should have, could or might that cause that officer to feel impunity?
A. In my opinion, absolutely, because the department wasn't even following its own guidelines that are designed to help officers and protect citizens.
Q. So specifically with Officer Kelly, in 2005-2006, you stated he was not entered into Behavioral Intervention; is that correct?
A. That's true.
Q. And could or might that cause him to continue to act with impunity?
A. In my belief, that could be one of the causes, yes.
Q. Was he ever entered into Behavioral Intervention in 2007, 2008, or 2009 for any reason?
A. He was.
Q. When?
A. I don't remember the exact years, but it was after the Brogan incidents, the domestic misconduct-related incidents. Investigator Bowen recommended, advised him to seek counseling and advised him to go to Father Murphy House. I believe it's Father Murphy House or St. Murphy House.
There's no indication that he did either of those. And that was only a recommendation. But there is an indication that on two times, BIS was implemented with Officer Kelly stemming from the domestic-related incidents with the Brogans.
Q. Is Behavioral Intervention System considered a disciplinary action?
A. No.
Q. Why?
A. Well, it's really — it's a supervisory personnel issue. What you're trying to do is help the employee overcome their attitude, behavior, or performance problems that created the necessity for them to be referred to them.
Private sector, we use the term "employee assistance
A. It talks about the number of officers in the behavior intervention and Personnel Concerns Program combined.
MR. ROMANUCCI: Your Honor, may I publish?
THE COURT: Any objection?
MS. ROSEN: No objection.
THE COURT: You may.
(Plaintiff's Exhibit 51 received in evidence.)
MR. ROMANUCCI: Thank you, your Honor.
By MR. ROMANUCCI:
Q. Just one moment. It's the year 2017, but technology sometimes doesn't want to cooperate with us, so we can do it the old-fashioned way.
Why don't you tell us what that graphic reads and what it says. And if we get it working before then, we'll continue on.
A. It discusses a number of officers who were in the BIS or the Personnel Concerns. And in 2007, it was 276. In 2008, 219. 2009, 134. 2010, 82. 2011, 22. 2012, 13. 20' — I might have missed one. The next year, it's zero, and then in '14, it was seven officers, and in '15, 15 officers. A significant decrease.
Q. So what was happening to those numbers then over time?
A. It was not being used. And it had such a drastic decline, I mean, to a point where we are talking about 12,000 officers. You've got 22, 13, zero, or seven in it. The odds of you it's a department member involved in a domestic violence situation, a supervisor must be dispatched to the scene.
There's another section that talks about if he's subject to a protective order. That's the only thing that has any reference, that if the suspect of the domestic violence is a department member, there's something special that has to be done.
Q. And does this special order specify that if Patrick Kelly were charged or convicted of domestic violence that he would be separated?
A. No.
Q. Did you review the other Brogan incident regarding her brother Patrick?
A. I did.
Q. And can you tell us what your review of that file indicated?
A. That occurred just short of one year of the incident with Frances Brogan. It occurred back at their house, the house that she shared with Patrick Kelly. It was four months after her case was adjudicated as not sustained.
Patrick Brogan and Frances got involved in a verbal argument at the house, and at some period of time, Patrick Kelly threw a TV remote at him, and Mr. Brogan said it broke his nose and lacerated his — gave him a laceration above one of his eyes.
A Yes.
Q So a SPAR investigation under your understanding of the Chicago Police Department's framework for conducting investigations, is that force complaints?
A No, not a force complaint. It's when an officer uses force and has to identify. It's my understanding that is like a supervisory. It's not a force complaint, no.
Q So it's — I'm not understanding what you think it is with respect to the use of force.
A I think it has to do with an officer reporting that they used some degree of force or used, I believe that also covers OC spray, it covers baton, and I believe it covers pursuits.
And over the period of time '04 to 2011, there were 30,000 of those. So that's a large amount of data of field performance that it wasn't captured in any form of early warning system.
Q Since you brought up early warning systems, early warning systems are not disciplinary; isn't that correct?
A They are not.
Q So the fact that Chicago's BIS and PCP program are not disciplinary — are not disciplinary in nature is not unusual or different from other early warning systems across the country, correct?
A Correct, it's not.
Q And they're not intended to be, right? They're designed to remediate is I think what you said.
A Yes.
Q Now, I just want to talk a little bit about your background. You retired from the Los Angeles Police Department in 1981; is that correct?
A Yes.
Q And you've since 1981 never been an active law enforcement officer; is that correct?
A True.
Q And when you retired, you retired at the age of 42; is that correct?
A Yes.
Q And at some point in time after your retirement, you started doing the consulting work that you do now; is that correct?
A A couple years after.
Q Okay. And that includes doing expert review like you're doing for this case, audits and the training that you talked about; is that correct?
A Yes.
Q And by the way, the expert review that you do, that's for compensation, right?
A Well, it's all for compensation, yeah. My time is — there are different, different amounts, but yes.
Q Okay. So you are being paid for the review that you did in doing administrative investigations, you want to collect all the information that you can before you interview the police officer, correct?
A Yes.
Q And I believe you testified earlier that you have no criticisms about the written procedures of the Chicago Police Department other than your criticism as it relates to the domestic violence issue, correct?
A Yes.
Q Now, with respect to the CRs that you reviewed in this case, you reviewed all of Pat Kelly's CR's that you were provided, correct?
A I did.
Q And that was 28, I think you said, CRs?
A I believe it is 28.
Q And over the course of the 25 years that you have been reviewing the Chicago Police Department, you've reviewed approximately a thousand CRs, correct?
A Yes.
Q And that dates back to the 1990s, correct?
A Actually into the '80s, yes.
Q Into the '80s, okay.
And the bulk of the CRs that you reviewed comes from the time period of the late '90s to the early 2000s, correct?
A Yes. proof that she would need to sustain an administrative allegation as it relates to domestic violence?
A I'm not sure she answered that question about what the level of burden of proof was and that there was a difference. I don't recall that.
Q Okay. Now, you talked a little about the federal statute that would prevent an individual from possessing or carrying a weapon if they've been convicted of domestic violence, correct?
A I did.
Q And you're not giving any opinion here today, are you, that had Officer Kelly been charged for that particular domestic violence incident that he would have been convicted, correct?
A I don't have an opinion there, correct.
Q And you're aware, correct, that after this incident and the one with Ms. Brogan's brother that Pat Kelly was referred for BIS, behavioral intervention, correct?
A Yes.
Q And, in fact, he was actually referred to a fitness for duty evaluation, correct?
A Yes.
Q And that was offered by the Chicago Police Department?
A Yes.
Q And he completed that review and, in fact, was originally found unfit for duty, correct?
A Correct.
Q And then under the processes that are provided, he was able to, after a period of time, get that finding overturned through the regular process that's provided to a police officer if they want to grieve a finding like that, correct?
A He did.
Q And you saw no indication in that process that the Chicago Police Department or the City of Chicago simply laid down and allowed Officer Kelly without a fight to grieve that finding that the department originally made?
A You know, I don't have any information one way or another on that.
Q Let me back up. Other than the thousand CRs you've reviewed over the last 25 years that you've had occasion to review CRs from the Chicago Police Department, you have no opinion regarding that precise number of those investigations that were deficient, correct? You can't tell us how many were deficient?
A No.
Q In fact, with respect to all the thousand plus CRs that you reviewed during the course of your 25 years, you can't sit here and tell us that CRs that were not sustained should have been sustained, correct?
A Not as I sit here today. I know when I was involved in the case, I would do the same kind of workup matrix to capture my perceptions as I read it, so at one time I probably could. But no, today I can't.
Q Okay. But you currently recently reviewed Mr. Kelly's CRs, right?
A I did.
Q The 28. And of the 28, there's only two, right, that you disagree with, the two Brogan ones that you think should have been sustained that were not?
A No. I also disagreed with the process, you know, the fact that ten of them were simply dropped for no affidavit and nine of them were simply to/from, and he was only interviewed on one. But beyond that, I didn't go into the validity of each one, correct.
Q And the 10 that were just disregarded, that's because there was no affidavit, correct?
A That was the notation, yes.
Q Well, there was no signed affidavit in the CR, right?
A There wasn't.
Q The form was blank? Wasn't there a blank form? It's a form, right, and it details the state law?
A Yes.
Q And so each of the forms that were in those 10 CRs, they were unsigned, and pursuant to state law, they were closed?
A I believe they were.
Q And while you were critical of the process, you have no opinion on whether or not the rest of them were meritorious complaints, correct?
A Correct. I didn't look at it from that point of view.
Q And you agree, don't you, that the number of complaints a police officer can receive differs — can differ based on their assignment, right?
A It could.
Q And you would agree that certain geographical assignments, but also work assignments could drive the number of CRs police officers get, correct?
A It could.
Q And I think it's your opinion that the way to assess those CRs and the number is to look at CRs for officers in a comparable unit or the same unit, right?
A Yes.
Q You're aware that Pat Kelly was assigned to the 9th District, correct?
A I don't specifically recall which precinct. I think he was on a task force at different times.
Q He was a tactical officer.
A Tactical officer.
Q Do you know what a tactical officer is within the Chicago Police Department?
A My understanding in Chicago, it's basically a directed patrol where they're not answering regular calls for service. And they're out there making suspicious person stops, and they may be assigned to a specific crime area.
Q And did you do any comparison between the number of complaints Pat Kelly got during the time frame to the other officers that were assigned to his unit?
A No.
Q With respect to the early warning systems, you agree that the written policies of the Chicago Police Department are sound policies, correct?
A They're adequate, yes.
Q They're adequate. And your quarrel is with respect to the way that they're utilized, correct?
A Or not utilized, yes.
Q Have you reviewed, other than the graphic that was included in the Police Accountability Task Force report, any documentation from the Chicago Police Department about the use of either the BIS or PCP programs?
A I don't believe I have.
Q Now, let's talk just for a second about the code of silence.
It is your opinion, is it not, that the potential exists in all police departments across the country?
A Yes.
Q From the smallest to the largest police departments?
A Yes.
Q And it's your opinion that every major metropolitan police
A Yes.
Q It's to Detective Weber from Joe LaPorta. Who is Joe LaPorta?
A My uncle.
Q What relate, what . . .
A He's my father's younger brother.
Q And if we go a little bit further down, it says he would like you to call him. And then it says — and I will highlight this area — "Joe states Kyle LaPorta, Mike's cousin, dropped off Mike and Pat at Pat's house before the shooting. Joe thinks Kyle should be interviewed. Joe thinks Mike and Pat may have argued over Mike's ex-girlfriend Kelly, who is Pat's little sister." Do you see that?
A I do, yes.
Q Now, you were confronted with that information by Detective VanWitzenburg a day later, correct?
A Yes.
Q And you've testified that there was no altercation that you witnessed or no argument between Pat Kelly and Mike LaPorta on January 12th, 2010, correct?
A Correct, nothing that I witnessed.
Q If we look, we continued down this page, it says, Joe states Mike is right-handed and does not make — go to the next page. Your Honor, we will publish this as well. This is the second page of this exhibit. It's Bates label RFC LaPorta
MR. ROMANUCCI: Page 34. You're there?
MS. LONGION: Yes.
BY MR. ROMANUCCI (Reading):
Q. Do you remember talking at all with Mike LaPorta?
A. I don't know.
Q. So you don't recall any specific conversations with Mike LaPorta?
A. No.
Q. How were he and Mr. Kelly interacting?
A. Nothing sticks out in my head, so fine.
Q. Do you recall any types of arguments between Mr. Kelly and Mr. LaPorta?
A. No.
Q. Do you recall if Mr. Kelly arguing with anybody that evening in the bar?
A. No.
Q. You then stayed there until closing time, correct?
A. I don't remember.
Q. Approximately what time did you leave McNally's?
A. I really don't remember.
Q. Do you recall how much you had to drink while at McNally's?
A. No.
Q. If I told you that you told the Independent Police Review Board that you had two or three Miller Lites, would you disagree with that?
A. No.
Q. And I believe you told the Independent Police Review Board that you left at closing time. Do you know what time closing time is for McNally's?
A. No.
Q. What time was closing time if you had stayed until closing time in the past at McNally's?
A. I would be guessing that it would be closed at 2:00.
Q. Okay. So your best guess is that you were at McNally's from roughly midnight until 2:00?
A. Yes.
Q. What were you — what were you guys all doing in McNally's; just sitting around talking or —
A. Yes.
Q. — were you playing darts or watching a game or just conversing?
A. From what I remember, yes.
Q. Do you remember what you were talking about?
A. No.
Q. Do you have any specific recollection of Mr. LaPorta making any physical complaints of pain or injuries or anything like that?
A. I don't remember.
Q. Did he make any comments or have any discussion about problems he was having with his girlfriend?
A. I don't remember.
Q. Did he mention his girlfriend at all?
A. I don't remember.
Q. What is it that you specifically do remember about that evening at McNally's?
A. Nothing.
Q. Nothing? Okay. So nothing was of consequence?
A. No.
Q. You then decide to leave McNally's, correct?
A. Yes.
Q. You decide to go to Brewbakers?
A. Yes.
Q. Where is Brewbakers located?
A. Roughly 103rd and Western.
Q. Had you been to Brewbakers before that early morning hours of the 12th?
A. Yes.
Q. How many times?
A. A couple.
Q. What are their hours? What are their license hours, if you know?
A. I know they are later than the normal bars, which is why I'm assuming we went there, but I have no idea what time they close.
Q. When you arrived at Brewbakers, did you have anything further to drink of an alcoholic nature?
A. I believe I had a beer.
Q. Did you witness or see Mr. Kelly have anything further to drink while at Brewbakers?
A. No.
Q. How long were you at Brewbakers?
A. I don't remember.
Q. Do you remember telling the Independent Police Review Board you were there until 3:30?
A. Yes.
Q. And that you specifically recall getting home sometime before 4:00 a.m., correct?
A. That's what I stated to them, yes.
Q. So are you saying you just don't remember whether or not Mr. Kelly drank, or are you saying he didn't drink in the two hours or so you were at Brewbakers?
A. I'm saying I don't remember the hours specifically. I don't know if anyone had anything to drink at — I don't know if anyone had anything else to drink because April and I were off on our own when we were at Brewbakers. I don't know what the guys did.
Q. So when you walked in to Brewbakers, you went into a separate section than the guys?
A. No. We sat — I guess you could say, yes, we sat at a table, and they went, I guess which would be behind us to play bean bags.
Q. When they were playing bean bags, did you see any of them going to the bar to purchase alcoholic beverages?
A. I don't remember. I wasn't paying attention.
Q. Did you see Mike LaPorta drinking at Brewbakers?
A. I don't remember if any of them were drinking at Brewbakers.
Q. Did you ever stop and watch them play bean bags, or did you and April just kind of stay to yourself?
A. We were having girl talk.
Q. I'm going to show you a copy of your statement to the independent police authority. I believe it was taken January 1st of 2010.
A. Yes.
Q. So that's roughly ten days from the incident?
A. Yes.
Q. And just glancing, that bears your signature on the bottom of each page, correct?
A. Correct.
Q. And again, you signed this with your full knowledge and consent, correct?
A. Yes.
Q. And everything contained in that report, if I'm correct, in reading it today is more accurate than today because it's true?
A. Correct.
Q. And were all of those relevant to you when you reviewed them?
A. Everything is relevant. As long as provided to me, I review it. Obviously, there's a lot of repeated information. That's okay. As a background information, I read all of it. Some things, I agree. Some things, I might not, depending on — the results from my analysis is based on objective science.
Q. Was there anything — if we were to look at a scale, if we were to hold a scale, was there anything that was more relevant than other things in items that you have reviewed?
A. Sure. In this particular case, you specifically asked me to review the statements and deposition of Officer Kelly and look at the statements and description from scientific perspective and see whether or not they're consistent with science. So this was specific assignment in this case, which is a little bit different than the majority of other legal cases.
Q. So in this case, if I can try and synopsize it, if I say it wrong, you can please correct me, we had asked you to analyze as much data as possible. You looked at the statements of Patrick Kelly, and you determined whether or not his statements or his deposition were consistent with the body
A. Here's the opening. So you have to position the body that will be consistent with the left-hand side pointing in the direction, in the area where you have the blood. So you're not facing north. You're actually facing south.
Some small correction, remember the tissue on the frame? It got there. So, in my opinion, it is south and a little bit west because the part of the tissue went over there.
And if you want to understand how the tissue got there, look at the puddle again. When somebody steps in a puddle, right, the water will just flow. Imagine there are some connective tissue in the skull that eventually will separate and just carry through to the location. But you have to have a part of the — of the wound in line with those locations. The objects during the flight don't turn corners. It doesn't happen. You have to have some kind of external force to change the path. If you launch something, laws of physics take care of it. It doesn't turn corners.
So, in my opinion, he was facing south, a little bit to the west, and during the gunshot, part of the skull went into the window frame and the couch.
Q. I'm going to move the gun for the moment because we know that it wasn't there at the time that the gun discharged — or at least at the time that the gun fell to the floor or was dropped to the floor. accident cases, too?
A. Yes.
Q. And were those recent, or were those a little bit further along?
A. Well, definitely it wasn't the last couple of years. It was older than that.
Q. In this case, you were asked to render an opinion, I think you've already testified to, regarding Patrick Kelly's version of events against the physical evidence when you were retained by Romanucci's office, correct?
A. Correct.
Q. You were never given any access to statements by the plaintiff about Michael LaPorta's version of how he was shot prior to drafting your report, correct?
A. Correct.
Q. And prior to giving a deposition in this case back in November, correct?
A. That's correct.
Q. Consequently, it's fair to say that you were never asked to render an opinion regarding Michael LaPorta's version of events in connection with the physical evidence in this case?
A. Correct.
Q. I'd like to look a little bit at your opinions. I think we've discussed the trajectory. I think you've told me today that you didn't conduct any measurements on the trajectory.
Q That was not their sole responsibility, true?
A No. Their responsibility was all matters pertaining to police and fire issues.
Q Alderman Moore, you are the chairman of the north side subcommittee of the joint committee hearing testimony on recommendations that were made for changes to the Independent Police Review Authority?
A That's correct.
Q And indeed changes were made to the Independent Police Review Authority; is that correct?
A That's correct.
Q You were sitting under Mayor Richard M. Daley in 2007 when IPRA was recommended for — when IPRA was recommended to replace the Office of Professional Standards, true?
A That's correct.
Q The Office of Professional Standards was recommended dissolved in 2007; is that correct?
A Well, we made a — we made a decision to dissolve the Office of Professional Standards and replace it with the Independent Police Review Authority, that is correct.
Q And the reason that the Office of Professional Standards was recommended dissolved because the community had lost the trust that the Office of Professional Standards could adequately oversee police accountability, true?
A Well, we — we, as members of the City Council, together with the mayor, felt that — that the confidence of the residents and citizens of the City of Chicago was failing because — the confidence in the police department and the ability of OPS to independently investigate allegations of misconduct. And we felt it was important to bring in and create an agency that was more independent of the police department.
Q Because indeed OPS was actually part of the Chicago Police Department, correct?
A It was under its jurisdiction, yes. It was part of the police department.
Q Office of Professional Standard employees were actually employees of the Chicago Police Department?
A Right.
Q The budget item, when you're creating the budget for the Chicago Police Department, their budget was actually the CPD's budget, correct?
A In terms of the organizational structure, they came under the Department of Police, yes, it did.
Q And at that time, OPS had lost the entire trust of the City of Chicago in its independence in the ability to oversee police misconduct, true?
MS. ROSEN: Objection, foundation as to the entire City of Chicago's —
THE COURT: Overruled.
MS. ROSEN: — trust.
THE COURT: Overruled.
THE WITNESS: There were concerns on the part of members of the City Council in responding to our concerns expressed to us by our constituents that OPS was not independent enough to enjoy the confidence of a majority of our residents.
BY MR. ROMANUCCI:
Q And that's because when there were investigations of police misconduct, OPS was basically investigating their own, correct? A Well, given that that certainly was — that was the appearance, given the fact that they were under the jurisdiction of the Chicago Police Department.
Q How long had this appearance been going on with OPS?
A Well, I guess it would depend on whose opinion you asked. People had various opinions about it. But certainly my own personal opinion was that this was a measure that was long overdue and that — and that there were certain incidents that brought the independence of OPS into question and that we felt it was important to restore public trust, if you will, in the independence of an agency investigating the misconduct by creating a separate agency that was separate and apart from the Chicago Police Department.
Q By the time OPS was dissolved in 2007, you would agree, sir, that police accountability in the City of Chicago was failing its citizens, true?
A There were concerns expressed by many of us in the City Council and members of the public at large that there needed to be a greater degree of independence to ensure the integrity of oversight over police misconduct.
Q Would the answer to my question be a "yes," sir? Would it be yes?
A I think I answered your question, sir.
Q Is that the best that you can answer it?
A Yes. As I said, we're a city with a diverse population with a diverse number of viewpoints. And clearly there were concerns expressed by many that OPS was not sufficiently independent of the police department, and we needed to — I felt and many of my colleagues felt that it was important to establish an agency that was separate and apart from the police department in order to ensure the citizens that investigations were independent and had integrity.
Q Those failings in independence, Alderman Moore, do you agree that they were leading to the constitutional rights of the citizens of this city being violated?
A There are instances where — clearly where constitutional rights of a number of citizens had been violated by — by the police — police, and — and we wanted to make sure that those incidents were as infrequent as possible.
Q And those instances of citizens' rights being violated by officers who had been committing misconduct with this lack of independence of OPS and their lack of oversight had been going on for years, sir; is that correct?
A Well, the — some incidents, high-profile incidents brought this all to a head.
Q And when I say years, OPS had been in existence for more than 10 years; had it not?
A And I'm not — I don't entirely recall when it was created, but it had been in place for quite a long period of time. Q It had been in place for at least 15 years before 2007, true?
A Yes.
Q And those high-profile incidents you're talking about that led to this idea of dissolving OPS and then creating IPRA, one of those instances is known as the Obrycka v. Abbate case; is it not?
A That's correct.
Q And that case was the one where the off-duty police officer went behind a bar, beat a bartender; is that correct?
A Yes, a very — a young female bartender who had — with short physical stature. She was a very tiny woman.
Q And after he beat her, there was a coverup; is that correct?
A Those were the allegations.
Q Well, that case went to trial, did it not, Alderman Moore?
A Yes, sir.
Q And you know what happened in that case, correct?
A Yes.
Q The evidence established that there was indeed a coverup in that case?
A And there were —
MS. ROSEN: Objection, foundation.
THE COURT: Well, I'll sustain the objection. It seems to me. . .
BY MR. ROMANUCCI:
Q You know what the outcome of that case was, right?
A Well, there was a lot of media coverage because there was videotape of the incident, and so that brought a lot of public attention to this issue.
Q And you hit the nail on the head, Alderman Moore.
There was a videotape of that incident, correct?
A There was indeed.
Q If there wasn't a videotape, whose story would we have believed then?
MS. ROSEN: Objection, your Honor.
THE COURT: Objection sustained.
BY MR. ROMANUCCI:
Q So you understand that before the Abbate incident, there were other very high-profile incidents of police misconduct that were going on in the City of Chicago; do you not?
A Yes, there were.
Q Do you recognize the name "Commander Burge"?
MS. ROSEN: Objection, your Honor.
THE COURT: Objection sustained. I think we're getting a little beyond.
BY MR. ROMANUCCI:
Q Well, the point is, Alderman Moore, that besides the Abbate incident, there were other instances of police misconduct that were occurring within the City?
A Sadly, that is the case.
Q But the Abbate incident, because it was on videotape, really brought it to the top of the crest and people started crying out for change?
A Yes.
Q And the Chicago City Council at that time finally then brought that change to the citizens of the City, true?
A That's true. But those in comm and the members of the City Council working with the mayor's office, yep.
Q So when we are now that we're in the year about 2007, the City Council dissolved the Office of Professional Standards and brought forth IPRA, which we've heard, Independent Police Review Authority?
A That's correct.
Q Now, my understanding — and you can correct me if I'm wrong. I know I say this to a lot of witnesses, but I don't with the citizens of the City of Chicago in accounting for police misconduct?
A. Well, I wouldn't say I personally thought I had it, quote/unquote, nailed when IPRA was created, but the hope was that — that we would — that IPRA would professionalize the investigatory methods of the City of Chicago, that we would have more professional investigations of police misconduct involving — involving unlawful use of force, which was primarily IPRA's charge. And I do believe we had made progress but, clearly, it was not enough progress.
Q. So, Alderman, with regard to the length of OPS and now the term of IPRA, that's 25 years, you would agree that's 25 years where this city has lacked independence in police accountability. Do you agree with that?
A. As I indicated, I believe IPRA was a significant improvement over OPS, but clearly, there's more work to be done, and that's one reason why — why the COFA — or COPA office was created.
Q. So this is another attempt at independence in police accountability?
A. Yes. With more resources, broader investigatory authority, increasing the number of types of misconduct that can be investigated including an inspector general who — within the office of civilian police accountability who will be charged not only with investigating allegations of
A. Yes.
Q. And you would agree that the city council of our city was charged with accountability over IPRA; is that correct?
A. We created IPRA because we recognized that things weren't working under OPS.
Q. So the responsibility for whether IPRA was either broken or not broken, year after year when you appropriated money to IPRA to pay the people who did their job for police accountability and oversight, was the city council?
A. City council and the mayor.
Q. And every year, you gave money to a broken system that could not account for itself and police accountability for not violating the constitutional rights of citizens, true?
A. We funded an organization that was making significant progress, that was reducing the backlog of investigations. But was it moving fast enough? Was it improving fast enough? Clearly, not.
Q. Well, it states —
A. Which is why we stepped in and created an organization that has much more funding, much greater breadth of investigatory authority and has — and it's charged not only with investigating individual acts of misconduct but also broader policy issues and patterns in Chicago Police Department.
Q. Well, you know, Alderman Moore, interestingly, IPRA, the imagine they're not going to readily acknowledge that just as any other profession isn't going to readily acknowledge a code of silence in their respective professions.
Q. Part of the healing process would be to accept and admit that a code of silence exists in order to root out the problem, agreed?
MS. ROSEN: Objection, your Honor, to "the healing process," relevance.
THE COURT: He can answer. He doesn't have to — again, you don't have to —
BY THE WITNESS:
A. Well, I think it's important that — to the healing process that we all acknowledge that we are imperfect. And our — you know, our mission in life is to try to — while acknowledging we'll never be perfect, to try to move closer to that goal of trying to be as good as possible.
BY MR. ROMANUCCI:
Q. Alderman Moore, it states — it continues on by stating that "The CBAs discourage reporting misconduct by requiring affidavits, prohibiting anonymous complaints, and requiring that accused officers be given the complainant's name early in the process."
With respect to that line that I just read to you, would you agree that that was a recurring element in those contracts, over contract over contract period, true?
A. Yes. And that's actually kind of one of the challenges that — that we as city officials, that union negotiators face, because that requirement that we can't investigate an allegation of misconduct without a signed affidavit was something that was put into place by the Illinois General Assembly. We are required by the Illinois General Assembly to require affidavits before we're able to investigate complaints of misconduct. That's something that we didn't want to do.
And, in fact, the City lobbyist worked — tried to work hard to prevent that law from being enacted in Springfield. And, in fact, quite honestly, we tried to avoid it as much as possible to the point where we had — you know, we had the union file a grievance against the City for trying to do that. So we did everything we could to prevent that requirement of an affidavit from being actualized, but unfortunately, our hands were tied.
Q. So your —
A. I thought it's kind of — sort of unfair of the report to blame the City for something that we had no control over. And we're in full agreement that — that the anonymous complaints are important because not everyone has the courage to sign their name to an affidavit.
Q. And that's because —
A. And —
Q. — of fear and because of retribution for signing an affidavit, true?
A. That's certainly — that's certainly what people believe in.
Q. But you —
A. But the fact of the matter is, the Illinois General Assembly put that requirement into state law, and we are obligated to follow that state law.
Q. But, Alderman Moore, you agree, as you sit here today, and you're well aware that there are exceptions to that affidavit requirement, correct?
A. There are exceptions in what way?
Q. Well, if there's a crime that was committed by a police officer, the exception to the affidavit is that someone else other than the complainant can sign the affidavit, right?
A. I'm sorry. In order to file a complaint, it has to be — someone has to sign the affidavit.
Q. Right. And that affidavit —
A. But it can't be an investigator.
Q. So your understanding is that an investigator is never authorized to sign an affidavit when there's a crime committed by a police officer?
A. That's my understanding, but if you have a copy of the law, I'd be happy to take a look at it. Do you have a copy of the law?
Q. Yes. We're getting it for you.
A. Okay.
MR. ROMANUCCI: I can't see that page. Thank you.
THE COURT: In the meantime, you can proceed with other portions.
BY MR. ROMANUCCI:
Q. On Page 71, we put that up on your complaint there — on your screen, and it states that, "without a signed affidavit, there is generally no investigation at all."
Do you see that? It's in the first full paragraph. Do you see that, sir?
A. Yes.
Q. Okay. So without a signed affidavit, there is generally no investigation.
Now, let's skip to the next paragraph where it says:
A. Yes.
Q. That was part and parcel of the affidavit requirement during all those contracts, wasn't it?
A. I would like to — again, I'd like to look at the actual
MR. ROMANUCCI: If I may have a moment, I actually could be done, please.
THE COURT: All right.
(Pause.)
BY MR. ROMANUCCI:
Q. The last questions. And we're not even going to put the documents up. You recall — or you know that in July — in January of 2017, the Department of Justice issued its report on the City of Chicago?
A. Yes.
Q. And without going — laboring into it, would you agree that the Department of Justice also agreed that the City of Chicago had a longstanding culture with the code of silence?
A. I don't remember if they used that term, but they clearly — the City had — the Chicago Police Department had some issues regarding police misconduct for sure.
Q. And they also criticized the lack of an early warning or early intervention system?
A. Absolutely.
Q. And the Department of Justice also warned that the lack of having an early warning system could lead to repeated acts of abuse against the citizens leading to constitutional violations?
A. Yes.
MR. ROMANUCCI: Thank you very much.
A. Yes. He's at the University of Chicago, and he's also a member of the plaintiffs' bar.
Q. Okay. And so as a member of the plaintiffs' bar, he, too, is looking at the issues he's bringing to the city council through the lens of his role as a plaintiff's attorney in litigation that he has brought for years and years and years against Chicago police officers and the Chicago Police Department and the City of Chicago?
A. Yes.
And both of them have done quite well for themselves financially.
MR. ROMANUCCI: Objection, your Honor. Move to strike.
THE COURT: I'll sustain that.
BY MS. ROSEN:
Q. Okay. With respect to — you were asked some questions about the research that Mr. Futterman did with respect to the sustained rate his research claimed to find with respect to allegations of police misconduct. Do you remember those questions?
A. Yes.
Q. Now, you're aware, aren't you, Alderman, that the Chicago Police Department for many, many years, up until maybe 2013, produced an annual report?
A. Yes.
Q. And the annual report contained all kinds of information related to the operations of the Chicago Police Department, correct?
A. That's correct.
Q. It had crime statistics. It had personnel statistics. It had crime trends, all kinds of information about the year preceding the publication of the report, correct?
A. That's correct.
Q. And included within the annual report, you know, Alderman, don't you, that there is also information about the number of complaints that are brought every year against the Chicago Police Department, right?
A. That's right.
Q. And there's also the numbers of the sustained rate or the number of complaints that were sustained in any given year in that report, correct?
A. That's correct.
Q. And you are aware, aren't you, Alderman, that the sustained rate based on the data that is contained in the annual report differed significantly from Mr. Futterman's 2 out of 1,000; isn't that correct?
A. Yes. And I was at a disadvantage, you know, sitting here on the witness stand that I could not access those reports.
Q. Okay. And you have no idea, when Mr. Futterman came to city council to express his concerns and reported the (Proceedings heard in open court. Jury in.)
THE COURT: Please be seated.
Good morning. Alderman, you're still under oath from yesterday. Do you understand that, sir?
THE WITNESS: Yes. Yes, your Honor.
THE COURT: Ms. Rosen, you may continue with your cross.
MS. ROSEN: Thank you, your Honor.
JOSEPH MOORE, PLAINTIFF'S WITNESS, PREVIOUSLY SWORN CROSS-EXAMINATION (Resumed)
BY MS. ROSEN:
Q. Okay. So, Alderman Moore, yesterday, we left off talking about a myriad of topics. This morning, we'll start with the testimony that you gave yesterday regarding incidents that led to the creation of IPRA and then more recently incidents that led to the creation of the new independent police accountability entity, COPA.
Between — in the years leading up to 2007 before any of these incidents that occurred that sort of crystallized the concerns and that were brought to the attention of the council, did council on a regular basis monitor in any way the operations of the Chicago Police Department and the Office of Professional Standards?
A. Yes, on a regular basis.
Q. Okay. And can you just describe as it relates to the Chicago Police Department what kind of oversight the council exercised as it relates to operations of the Chicago Police Department?
A. Well, I can divide it into three different categories.
One would be just when an issue arose involving the police department or anything regarding public safety, we could convene hearings on that matter.
Whenever a new police superintendent was appointed, of course, we would have hearings on that to determine whether we should confirm the mayor's appointment. But certainly on a regular basis, the committee on finance considered settlements in matters involving allegations of police abuse of authority, so-called Section 1983 cases.
And so the city council would on a regular basis deliberate over the recommended settlements. The law department would reach a settlement with the plaintiffs' attorneys, and then we would consider that settlement. And in the course of those discussions, we would often question both the law department and, occasionally, officials from the police department about what measures they were undertaking to prevent these matters from occurring in the future.
Now, obviously we knew that just because you settle a case doesn't mean that the officer was necessarily guilty but, occasionally, the facts seemed pretty clear that if it had gone to trial, we would have lost. And so we were —
MR. ROMANUCCI: Objection, your Honor. Leads to a conclusion.
THE COURT: Overruled. He can continue.
BY THE WITNESS:
A. And so that would give us an opportunity to ask the City administration what efforts they were taking in terms of training, in terms of holding police officers accountable.
And then, finally, on an annual basis, we consider the budget for the entire city of Chicago. And each department in the city, including the police department, comes before the council, and we ask questions, not only about the budget, but also any other matter pertaining to that department. They are generally accountability sessions, if you will, on an annual basis.
And so that also provided us with a regular opportunity to grill the police superintendent and his team about all issues pertaining to the police department, be they budgetary issues or issues involving concerns about overtime or, indeed, police training and instances where there may be concerns about police brutality.
BY MS. ROSEN:
Q. And with respect to the budget hearings specifically, during the budget hearings when you would call in, say, let's talk about the police department, and you bring in people from the police department to discuss the budgets that are being time within which investigations were started and completed was — was shortened considerably.
Q. And how did she —
A. And the backlog was decreased as well.
Q. So when she took over, there was a significant backlog?
A. Significant backlog, and cases went on for years. It was really an intolerable situation.
Q. Okay. And then with respect to the reporting requirement, so if there were cases that went beyond the six years —
A. Six months.
Q. Six months. Sorry.
— six months, she would have to create a report and send it to city council so that city council would be aware?
A. That's right, and to the public as well.
Q. Okay. And then when you say "to the public," how was that?
A. There were annual reports issued by — by IPRA that, you know, gave all statistics, how many complaints were filed, how many complaints were resolved, what is the nature of those complaints. The transparency of the investigatory process increased tremendously under her — under her tenure, which is why —
(Cell phone ringing.)
THE WITNESS: Oh, I'm so sorry. Sorry about that. My apologies.
So —
BY MS. ROSEN:
Q. Transparency.
A. Yes. Transparency increased, which was very important in attempting to restore an element of — a degree of trust in the process.
There were also, IPRA also made considerable efforts to reach out to the community, to engage and to hold community meetings, to have — give people an opportunity to express their concerns about allegations of police brutality in general, and express — you know, look for ways of how the police department and the community could begin to restore a sense of trust and communication, and particularly in communities of color where there had been, you know, to say the least, strained relationships for a long time between the police department and the residents of the community.
Q. Did IPRA also have a website that it maintained?
A. They did maintain a website, again, as a way of increasing transparency that contained all the information that was posted in their written — written reports and given an opportunity for people to file complaints. They didn't have to go down to the police station. They could do it online from the comfort and safety of their home.
Q. Okay. And then, as we know, recently, other issues have brought this to the forefront again, an incident that Mr. Romanucci referenced in 2015. And changes, again, were know, that we know is that police officers can't do their job without having the trust of the community. If people don't trust police officers, they don't share information. If police officers don't have this kind of information, they're not able to, number one, solve crimes and, number two, prevent crimes from occurring in the future.
So we factor in that as well, that it's not only a good thing from protecting people's rights point of view to make sure that police officers are trained well and that they know that they are being monitored, but it's also good policing. More professional police officers make for safer communities.
Q. And can you tell us, Alderman Moore, you talked about — that you talked yesterday about the percentage of the entire city budget that is taken up by police and fire, and you told us the percentage of that particular budget that was devoted to personnel. How many police officers does the City of Chicago employ?
A. Over 13,000. I'm going to guess around 13,500, to the best of my recollection, which is — per capita, the city of Chicago has more police officers per capita than the city of New York and twice as many police officers as — per capita as the city of Los Angeles. It's hard to believe, but that's — that's, in fact, the case.
Q. And with respect to the new agency that's been created, do
A. Well, when did the incident occur?
Q. January 12, 2010.
A. Okay. And it was investigate — and was an investigation opened at this time, at the time right after the incident occurred, or did it happen later on?
Q. Well, the investigation opened at 9:00 a.m. that morning.
A. Okay.
Q. The notification — the notification from Lieutenant McNicholas, who testified yesterday, went to IPRA at 9:00 a.m. that morning. So you can fairly assume that on the same day that this shooting occurred, IPRA was notified that there was a problem.
A. That's right. And I think one of the reasons we're here today, I would assume, is because this is a very big and complicated case. I think I indicated in my testimony earlier that six weeks — six months was the goal, but that doesn't mean that all investigations were completed in six months and that there are some cases that are outliers, particularly what they call heater cases, as this one undoubtedly is, a controversial case with a lot of contradictory facts and — and conflicting testimony from various witnesses.
Those investigations are complicated and take longer, and it's better to conduct an investigation thoroughly and carefully than abide by some artificial deadline.
Q. True. Now, you are aware that — strike that.
You told us that on an annual basis, IPRA was to submit what's called an annual report. Do you agree?
A. Yes.
Q. And that should have started in 2007 — or the first full year, 2008, correct?
A. That's correct.
Q. And you agree that in those annual reports, the statistics were contained for each CR that was open and what the status is, correct, sir?
A. Yes.
Q. And you agree that after 2010, IPRA stopped submitting annual budgets, correct, sir?
A. Reports.
Q. Annual reports. Is that correct?
A. There was a period — there was a year within which they did not issue a report, but then the subsequent year, to the best of my recollection, they issued a report for both years.
Q. You would agree that the reason that IPRA stopped issuing annual reports was because of lack of funds, correct, sir?
A. I do not know the reason.
Q. Well, you gave a deposition in this case, didn't you?
A. I did.
Q. And in your deposition, you said that the reason that IPRA stopped issuing annual reports was because of lack of funds.
A. Well, the deposition was taken over a year ago, so I was
Q. And in none of those cases was Patrick Kelly ever disciplined, right?
A. Again, you're asking me to just generalize.
Q. If I — are you aware of Patrick Kelly ever being disciplined for any CRs directed against him between 2005 and 2009?
A. During my services in the 9th District, no, sir.
Q. Now, the jury has already heard about several of these CRs, and I'm just going to briefly touch on a few of them. Okay? You're familiar with a CR directed against Patrick Kelly for allegedly beating his girlfriend, Frances Brogan, correct?
A. Yes.
Q. And you're aware of the allegations that he had physically choked her and he had punched, kicked, and hit her with a fan, correct?
A. Correct.
Q. And you're aware that the Office of Professional Standards investigated that CR directed at Patrick Kelly, right?
A. That is correct.
Q. I'm going to direct your attention to another document here, sir.
MS. ROSEN: What page?
MR. GOULD: It's FCRL 1369.
BY MR. GOULD:
A. Is that a question?
Q. Yes. Can you tell if that's Fran Brogan's signature?
A. I can tell that it looks like "Fran Brogan." Whether or not she signed it, I have no reason to doubt, but I have no personal knowledge of whether she signed that or not.
Q. All right. What's contained in these three pages of writing, multiple lines, 20, 30 lines per page? What's contained in Frances Brogan's statement that she initialed and signed that you believe is not consistent enough so that you found that you could not sustain charges against Patrick Kelly? List all the reasons for us.
A. My finding of "not sustained" for this case was not limited to a particular document, particular item. It was based on my experience both as a human having life experiences and my review of the file, as being a State's Attorney, and everything, so it was not just one particular thing.
From my recollection of this case, it was found not sustained, which does not mean it didn't happen. It means that there was not evidence on either side sufficient for it to be a finding of sustained. My recollection is that there were credibility issues on both sides, and based on the fact that there were credibility issues on both sides and my review of everything that was available, that's what the finding of "not sustained" was based on.
Q. Did you find that Frances Brogan picked up that fan and beat herself with it?
A. No.
Q. Did you find that Frances Brogan threw herself to the ground and caused herself to bleed?
A. I found based on everything that was known to me at the time along with my life experiences, my experience as an Assistant State's Attorney, human nature, everything that was available, that based on that, there was not enough evidence to sustain the finding.
That does not mean it did not happen. That does not mean that it happened one way in particular or another way. It means that based on the evidence that was available that I found that it should not be sustained.
Q. Well, I've asked you to give us, list all the specific reasons for why you didn't sustain it. Can you do that?
A. I — specifically, based on my knowledge, my human knowledge; based on my experience, life experience; based on my experience of assessing people's credibility; based on everything, that is why.
Now, when you're asking particulars, my understanding was at a particular point that she had said something inconsistent with something else. Now, specifically, I do not remember, but I know that there were inconsistencies in some of the statements that she gave.
Q. That's exactly what I'm asking you. What — what is it that would call into question Ms. Brogan's credibility.
Q. Right.
A. As I sit here today, I do not recall that.
Q. Okay. Fair enough.
Can you go to RFC 21284, please?
A. Do I have that up here?
Q. You will in a moment.
A. Oh, okay.
Q. And you can just highlight the top half since the bottom half is empty. And what's the plaintiff's exhibit number?
So I'm showing you what's marked as 236-F2. Once again, do you see your signature at the bottom there?
A. I see somebody has signed on my behalf, yes. That's why the initial is there.
Q. That's your signature block that has the full power and effect of you signing it, correct?
A. Yes. It's not — it doesn't look like it's a stamp. It looks like somebody actually wrote my name and then put their initials by it.
Q. And this is a to/from memo to the superintendent of police; is that correct?
A. Yes.
Q. And you told us earlier what his name was, Phil Cline?
A. Yes.
Q. And the subject is, "Sustained override." Do you see
A. Pat Kelly was two grades lower than Mike.
Q. But they were at the high school at the same time for a couple years?
A. At the same time, but I don't remember Pat Kelly during Brother Rice years.
Q. Okay. But you knew that they were friendly during high school, correct?
A. Yes.
Q. Okay. And then when they — when your son and Pat Kelly went to SIU, they were college roommates, right?
A. I really don't know if they were college roommates or if — because Chris was also a roommate. So he did have a bedroom there, but I'm not too sure. I don't remember that they were actual roommates. Garden apartments, I think is where they lived.
Q. While they were attending SIU?
A. Yes.
Q. So they shared an apartment?
A. Right.
Q. So when you're saying you don't think they were roommates, you mean like in a dorm?
A. A dorm, correct.
Q. But you know they shared an apartment while they were at SIU?
A. Right.
Q. And you know that after they both graduated from college, they remained friends, correct? A. Yes.
Q. And that he was — Mr. Kelly was at your house all the time, correct?
A. Correct.
Q. And he would come to family parties, correct?
A. Correct.
Q. And you knew that your son and Mr. Kelly socialized together, right?
A. Yes.
Q. You knew they went to bars together, correct?
A. Yes.
Q. They remained friends, correct?
A. Yes.
Q. And then once your son moved to Sandwich, you didn't see Mr. Kelly all that often —
A. No.
Q. — correct?
And isn't it true that at some point in time, your son dated Pat Kelly's sister Jane?
A. She was an on-and-off date.
Q. Okay. And you know Jane, right?
A. Correct.
Q. And you know Pat Kelly's mother, correct?
I believe you.
Q. Yeah. And that you actually asked for an extrapolation, did you not?
A. Yes, sir. I wanted to find out what his blood alcohol level was at the time of the incident.
Q. And the blood alcohol at the time of the incident — let's see. At the time he was tested, about eight hours later, .093, agreed?
A. If you say that's what it is in there.
Q. Yes.
A. Okay.
Q. And the extrapolation, you agree, was .169 to .246 at the time it happened.
A. I know it's a range. That seems about right for the math, yeah.
Q. Does that seem right to you?
A. It seems about right. I haven't checked the numbers. I don't remember the numbers, but —
Q. So you would agree that if Mr. Kelly was driving a vehicle, this was two to three times the legal limit of intoxication?
A. He was super intoxicated.
Q. Two to three times the level of intoxication. Did you take that into consideration when Patrick Kelly was giving you his statement that he gave to you one year later after this
A. Yeah. I did say that yesterday.
Q. Okay. And how would you describe what they all reported to you about the events of that night?
A. They described a night out with coworker, you know. It was unexceptional.
Q. Did anyone report any altercations or animosity between Kelly and Mr. LaPorta?
A. I don't recall anybody saying that.
Q. Did you ask questions of all of those officers about whether or not Kelly had his gun while he was off duty that night?
A. I don't think I did. I think I missed one or two of them.
Q. Okay. Why don't you —
A. Sorry.
A JUROR: I can't —
MS. BENJAMIN: Still?
THE WITNESS: Sorry.
BY MS. BENJAMIN:
Q. Did you ask — why don't you turn to FCRL 148. And it's Officer Coughlin's statement. Do you see that?
A. Yes, ma'am.
Q. Did you ask generally the same questions? Like, do you kind of write them out before you conduct interviews like this?
A. I usually produce an outline. I did have information that No. 1?
A. I sustained that allegation.
Q. Okay. And what was that allegation again? Just remind us.
A. That Patrick Kelly was intoxicated while off duty.
Q. Okay. And what is the basis in your report for why you made that conclusion?
A. Because he submitted to a breathalyzer test where his blood alcohol content was .093, and then a back-extrapolation of those results indicated that his blood alcohol content at the time of the incident was between .169 and .246.
Q. All right. And I'm just —
A. Also —
Q. — going to put on the screen, this is FCRL 44. And you also describe evidence that you obtained from witnesses on the scene?
A. Right. Every officer at the scene said that he displayed signs of intoxication.
Q. Okay. The breathalyzer alone was enough, though?
A. Yes.
Q. And with regard to allegation No. 2, this was the failure to secure his weapon. What was the basis of your conclusion for sustaining that allegation —
A. Let's see.
Q. — recommending that it be sustained? trigger on the gun on the night of January 12, 2010, sometime after 4:00 o'clock in the morning in Patrick Kelly's home?
A. I have come to an opinion on that.
Q. What is your opinion?
A. Considering the location and direction of the fired bullet and damage to Mr. LaPorta, the fired cartridge case remaining fully within the chamber, the position that I'm being told by Mr. Kelly that Mr. LaPorta was in at the point in time that the weapon was discharged, that I feel it's impossible for Mr. LaPorta to have had a self-inflicted gunshot wound as being described by Mr. Kelly. And Mr. Kelly is the only other person in the room. Therefore, he would had to have been the one doing the shooting.
Q. Can you tell us in conclusion what all the bases of your opinions are with respect to why it was Patrick Kelly who discharged the gun that evening?
A. Well —
Q. And that's — may I preface it because I need to, your opinions are all based upon a reasonable degree of certainty within the fields of your expertise of firearms, guns, armory, and, I think you said, bomb squad, also; is that correct?
A. Correct. Well, all of the reasons I just gave you, and you can couple that with the fact that it — that it is Mr. Kelly's gun to begin with. It was in his home. It was never owned by that. You would understand where it was at.
A. I do.
Q. Why don't you take a look at the first page of your report that's dated June 8th of 2017.
A. Correct, I have it.
Q. Okay. So if you look at —
A. Pardon me.
Q. Sure. If you look at the first page of the report, this indicates that basically, it sounds like you were retained around May 8th of 2017; is that fair?
A. Correct.
Q. All right. And then subsequent to that, a couple of days later, you received a batch of documents from the plaintiff, correct?
A. Correct.
Q. And then about six days after that, on May 18th, you received even more documents, correct?
A. That is also correct, yes, sir.
Q. And the documents that were provided to you, you didn't request those documents; those were decided upon by the plaintiff to give to you. Is that fair to say?
A. Yes.
Q. All right. And you can appreciate the fact that you haven't been provided with all of the documents in this case, right?
A. After having seen this, absolutely correct, I wouldn't have had all the documents. That is correct.
Q. And you'd also agree that of the documents you were provided with on this list, you didn't look at everything either, right?
A. That is correct. There's specifically one that had 9700 pages that I did not — I glanced at a few of them, but I certainly couldn't have the opportunity to have gone through them.
Q. When you say you glanced at a few of them, you didn't glance at any of them before you drafted your report, right? You didn't even open the file?
A. No, I did open the file. Once I realized how large it was, that's what I mean, I glanced at a few of them but did not go through that file. It would not have been possible for me to do that.
Q. So as you sit here today, you can't tell me what was contained in those 9700 pages, right?
A. That would be correct, sir.
Q. So you don't know if there's any document that was contained within those 9700 pages that would have affected your opinions and conclusions that you gave in this case; isn't that true?
A. I guess there could be something in there that might have affected it, that's true.
Q. There was some discussion on Friday about the type of gun
Q. When you first started talking to Pat Kelly, what did you say to him?
A. I recall being, like, really upset because at the time, Pat was kind of like — kind of like an older brother to me but, you know, in between my brother and me, so middle brother, you know, but — I'm sorry. What was the question?
Q. What did you say to Pat when you had the opportunity to finally talk to him after this?
A. I just wanted to know, I asked him what — what happened because at this time, I didn't really have any kind of answers or anything.
Q. When you asked him what happened, what did he first say to you?
A. He asked me — he didn't ask. He said, started to say that, "You know how your brother is depressed, right?" And that's not how Pat would talk at all to me. So it kind of felt like — and it was only me and him in the elevator. Just, something didn't feel right about him asking me that or saying that.
Q. So I want to take you back a couple of steps. So the members of the jury have heard an audio recording of you discussing this conversation, and I believe your response to that statement by Pat Kelly may have been clipped.
So when he said to you, "You know how your brother is depressed," what was your — what was your response to that? he started to begin to say, you know, that they were out drinking and they went back to his place and then he seen —
he seen my brother go into the bathroom and then was taking a while. He'd come out of the bathroom, and he had Pat's gun in his hand.
And Pat, I guess, said that it happened quick. And he jumped up and he — my brother pulled the trigger and then cocked it back — I guess it went "click," and he cocked it back to pull it again, and that's when the gun went off. And by the time he, I guess, could get to him, he was already falling to the floor, is what Pat said.
Q. So what is Pat Kelly's demeanor like as he's giving you this account?
A. Well, we're — we were like brothers right then, so I'm an emotional wreck, crying kind of, you know, and he was like cold, almost like somebody was telling him just to say these — say words.
Q. You said a moment ago that he was using words that you didn't commonly use with each other. I think I'm paraphrasing you. But could you explain what you meant when you said that?
A. More like — like street talk. Like, I just — you know, he didn't — he was saying everything that was — it just sounded — everything sounded coached or something, you know. It wasn't, like, how we normally talked to each other.
Q. Now, I want to walk you through the things that Patrick my brother."
Can you recall having said that, if not to this specific officer, then to some officer while you were at Christ Hospital?
A. I do.
Q. I want to be clear. This document wasn't written by you, correct?
A. Written by me?
Q. Yes. Did you write this document?
A. No.
Q. Do you see your signature anywhere on it?
A. No, I don't.
Q. Okay. But it is safe to say that you said something similar to an officer?
A. Yes.
Q. Okay. Can you recall what you meant when you said, "I also know Pat, and he would never hurt my bro"?
A. I do.
Q. You can recall what you meant by that?
A. Yes.
Q. Could you explain to the members of the jury what you meant when you said that to the officers?
A. I'm going to say that at this time, I was still, you know, in shock with everything, and I didn't want to make any kind of assumptions. So I know that, you know, my brother would never do it to himself, and I — I know that Pat would never premeditated any kind of, like, intentions to do any of this, I would hope.
Q. So what you meant by that was that you didn't think that Pat would premeditate —
MS. BENJAMIN: Objection to form, leading.
THE WITNESS: Yes, that he wouldn't — he wouldn't intentionally — he didn't have it planned. I didn't — as far as — I don't think he would have done it and had it planned out to do it, you know.
BY MS. WARD:
Q. So at this point, this is about three days after the shooting happened; is that correct?
A. Yes.
Q. Did you know what to make of everything that had happened at that point?
A. No.
Q. I want to — it's a little wide, so I'm going to take you to a third statement. If I'm able to read this, it says, "Has always seen Pat with his gun off duty. He always has revolver and takes it off and lays it down in his house next to him," and then in parenthesis, "within reach."
Is that your reading, also, what those words say?
A. I'm sorry. Can you repeat that?
Q. I read that out loud. Is that your reading, also, of what
BY MS. BENJAMIN:
Q. Hello, Mr. LaPorta. The — do you know what your cousin Kyle's phone number is?
A. I — no, I can't recall it.
Q. You don't have it in your phone today?
A. I do.
Q. Would you look for us?
A. Sure — oh, I left my phone in the other room.
Q. Okay. All right. Now, you told us earlier that you are, is it, three or four years younger than your brother?
A. Three.
Q. But actually, you were four years apart in school, right?
A. Yes and no. I mean, like, my brother took off in college. He actually stayed back a year or skipped a year so that I could be a freshman and he could be a senior.
Q. Okay. So but in high school, by the time you were starting high school, he was already gone?
A. That's correct.
Q. And you knew that Pat Kelly and your brother were good friends in high school?
A. Yes.
Q. And then when you started at — was it Brother Rice?
A. Yes.
Q. Okay. When you started at Brother Rice, Pat Kelly kind of acted like a surrogate older brother to you because you didn't have your brother there, would you agree?
A. Yes.
Q. And the Kelly family lived just a couple of blocks away from your family's home?
A. That's correct.
Q. He attended family parties and other activities and was generally part of your life?
A. Yes.
Q. Now, when your brother went to Southern Illinois University for school, do you recall what he was going to study?
A. Veterinarian.
Q. And Pat Kelly followed him to Southern Illinois, right?
A. I — I'm not positive on that.
Q. But it's your understanding that after Pat graduated high school, he went to Southern?
A. Yes. Oh, yes.
Q. And they were friends when they were at school?
A. Yes.
Q. Your brother and Pat?
A. Yes.
Q. And then you came down?
A. Yes.
Q. I think you said, what was it, 2003 or '4?
A. '4.
Q. Okay. And that is when the three of you lived together in an apartment?
A. Correct. I mean, I actually lived on campus, but for the most part, I stayed there.
Q. So your dorm room pretty much stayed empty, and you got to stay with your brother?
A. Yes.
Q. Now, when you were in college, that was when you actually became closer with Pat Kelly than you had been in high school, right?
A. Yes.
Q. And I think earlier, you described your relationship as being close?
A. Yes.
Q. In fact, you would describe it as being like brothers. You were living together?
A. Yeah.
Q. Okay. And your brother shared that same closeness with Pat Kelly?
A. Yeah.
Q. Okay. In fact, Pat Kelly and your brother were like brothers all the way up until your brother was shot?
MS. WARD: Object to speculation, your Honor.
THE COURT: Overruled.
THE WITNESS: I'm sorry. Can you repeat the question?
BY MS. BENJAMIN:
Q. Sure. Your brother and Pat Kelly were like brothers, their closeness, all the way up until the time your brother was shot?
A. Yeah.
Q. Now, you were not living at home when your brother and Pat Kelly returned to the Chicago area, correct?
A. Correct.
Q. You stayed down at Southern Illinois for a couple of years to continue on with school or an internship, correct?
A. Uh-huh, yes.
Q. So you never again lived with your brother, right?
A. No.
Q. By the time you came back to Chicago, he was already living in Sandwich, Illinois?
A. That's correct.
Q. All right. And do you remember when it was that he moved in — when he moved to Sandwich, when was that?
A. You know, I don't recall exactly when he moved.
Q. He'd been living down there for at least a couple of years in January of 2010, though, right?
A. I would — I think it was, like, maybe two years.
Q. And who was he living there with?
A. Julie.
THE COURT: Mr. Romanucci?
MR. ROMANUCCI: With respect to No. 12, I think there's been evidence placed in the record that would support the asking of that question. I don't see that there's any prejudice to the defendant, City of Chicago, by me asking whether or not Pat Kelly placed and received phone calls and text messages before and after he placed the 911 call.
With respect to 16 through 20, those go to the heart of the investigation as to whether or not the investigations were complete. One of our allegations is that the City failed to investigate, the City failed to discipline. And whether or not Mr. Kelly responds to these, I think, goes to the heart of our issues, your Honor, as to whether or not they did either one.
If he admits to beating Fran Brogan, that clearly goes to the heart of what we're saying, is that they did not investigate and that they didn't discipline him for it. The same with Patrick Brogan, the same with Jesus Rios, and the same with the Turner matter which is — relates to Question No. 20.
With respect to 21 and 24, I don't know what their objection is other than those — those questions go strictly to bias and motive and code of silence. That's what those questions go to.
And then 28 would be my same response that I gave to above this threshold, whether or not their assignments required them to, for example, deal with a particular gang in a particular area on — for a year or two or three?
A. I do not.
Q. Do you know whether or not gang members make it a habit or as part of their interaction with police officers to make complaints in order to take the heat off?
A. Well, whether it's take the heat off or otherwise, I have no knowledge of how complaints are generated by members of the community.
MR. GOULD: Objection, your Honor. The expert is not a police policies and procedures expert.
THE COURT: I think that's true. So I think he's not an expert in police. So these are questions which would, I assume, be directed to one who is. So I'll sustain the objection.
MS. ROSEN: I'll move on.
BY MS. ROSEN:
Q. With respect to the comparison that you made with Officer Kelly to the other population, you have no idea the nature of any of the complaints that were made against Officer Kelly, correct?
A. Well, they're all called CRs.
Q. Other than that, you don't know what they are?
A. No.
Q. And with respect to the other complaints that you compared Officer Kelly's complaints to, you don't know the nature of those complaints either?
A. That's what I said, yes.
Q. Okay.
A. That's correct.
Q. Now, let's talk about the second chart that you talked about, when a citizen complaint is filed and what its likely outcome is. So again, you looked at the December 31, 2004/ January 12, 2011, time period; is that correct?
A. Correct.
Q. Okay. And you were looking at CRs for sworn officers with five or more CRs. That was the data that you were looking at?
A. That's correct, yes.
Q. Okay. And from that, you identified that 46 percent of those are no — categorized as no-affidavit complaints, correct?
A. That's correct.
Q. And on your chart there, underneath there, it says "not investigated." Do you see that there?
A. Yes.
Q. What's your basis for saying that no affidavit — the complaints that fit in the no-affidavit category are not investigated?
A. Well, it certainly came up in my deposition. When you asked me a similar question, I — there was no investigation of these other than perhaps calling people several times to see if they would fill out an affidavit.
Q. Have you ever —
A. But beyond that, I know nothing about the nature of the finding.
Q. And you've never looked at any — an actual CR to look at the amount of work that's done in a complaint that's ultimately categorized as "no affidavit" to determine whether or not it's accurate to say that it was not investigated?
A. Right. It had nothing to do with the amount of work that was done or how extensive they went about seeking an affidavit, but we found that there were no findings subsequent to "no affidavit."
In other words, if somebody had a CR directed at them and no affidavit was attached, as far as I know, there were no findings that led to a suspension or any action against those individuals. And it's with respect to that that I'm suggesting that there was no investigation because there was no action —
Q. Well, there —
A. — that resulted in it.
Q. So should there have been an action?
A. I don't know. I don't know. I'm not here to testify as to the quality of these decisions, simply what the data said.
Q. And then you identified in the chart here that of the total CRs that you reviewed, 54 percent of the affidavits then fit in the other category that's not the "not affidavit" category, correct?
A. That's correct, yes.
Q. And of those 54 percent, you identified 95 percent that fit into the category of "not sustained, unfounded, and exonerated," correct?
A. That's right. The other 5 percent resulted in "sustained," yes.
Q. And I think when you were testifying on direct, you said on multiple occasions that it was only 5 percent that were sustained; is that right?
A. That's correct.
Q. What — how many should have been sustained?
A. Well, I don't know, but here I'm — if you look at the title of the slide, it says, "When a citizen complaint is filed, what is the likely outcome?" And it was with respect to that 5 percent, that 1 in 20, 1 in 20 of them led to some finding with a potential penalty. 19 out of 20 resulted in no such finding, right. So it — that's a rather rare outcome.
MR. GOULD: Your Honor, I'm just going to object again. The expert made it clear that he's not here to talk about police procedures, policies, the meaning of the discipline — reports, but I don't have a short witness, so to speak.
THE COURT: All right. Why don't you do that.
MR. ROMANUCCI: Read?
THE COURT: Yes. Proceed.
MR. ROMANUCCI: So at this time, your Honor, plaintiff would introduce and read from the investigation of the Chicago Police Department, the United States Department of Justice, Civil Rights Division, and the United States Attorney's Office, Northern District of Illinois, from January 13, 2017. And we're starting on Page 21, Subparagraph F.
"The CPD investigation addressed CPD's and IPRA's system of accountability both as they relate to use of officer force and officer misconduct including the intake investigation and review of allegations of officer misconduct and the imposition of discipline or other corrective action.
"CPD's unions correctly note that the investigation — investigators can override the requirement for a sworn affidavit, and we agree that IPRA and BIA should make more use of the override option. IPRA investigators we interviewed relayed that overrides are not encouraged, and no training was provided on how to obtain one. And not surprisingly, this override provision was used only 17 times in the last five years."
This is on Page 67, Subsection 9, which is entitled, "Superficial investigation documentation and investigative bias in favor of officers."
This is on Page 75, and it's entitled "Code of Silence."
THE COURT: Yeah, I would think so. He's a member of the public, so from that standpoint.
MR. MONACO: Thank you, your Honor.
(Proceedings heard in open court. Jury in.)
THE COURT: Please be seated.
Call your next witness, please.
MR. ROMANUCCI: Your Honor, plaintiff calls Patrick Kelly.
THE COURT: Okay. Mr. Kelly? Please raise your right hand.
(Witness sworn.)
THE WITNESS: I do.
THE COURT: Please be seated.
THE WITNESS: Good afternoon, your Honor.
THE COURT: Good afternoon.
Mr. Romanucci, you may question the witness.
MR. ROMANUCCI: Thank you, your Honor.
PATRICK JAMES KELLY, PLAINTIFF'S WITNESS, SWORN DIRECT EXAMINATION
BY MR. ROMANUCCI:
Q. You are Patrick Kelly?
A. Yes, sir.
Q. State your full name, spell your last name, please.
A. Patrick James Kelly, K-e-l-l-y.
Q. Mr. Kelly, on January 12th, 2010, you were employed as a sworn police officer for the city of Chicago's police department, true?
A. Yes.
Q. Are you taking instruction from anyone in this courtroom,
Mr. Kelly, on your answers?
A. No, sir.
Q. As you sit here today, you remain employed by the Chicago Police Department, correct?
A. On advice of my counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. On January 12th, 2010, at approximately 4:25 a.m., you were intoxicated to a level two to three times over the legal limit for driving a motor vehicle in Illinois, true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. You are an admitted alcoholic; isn't that true, sir?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. Mr. Kelly, you were with Michael LaPorta alone in your home on the date of January 12th, 2010, at 4:25 in the morning, true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. You and Michael LaPorta got into an argument that evening on that date and time, true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. Michael LaPorta wanted to leave your home; isn't that true, sir?
A. On the advice of counsel, I exercise my constitutional amendment to remain silent per the Fifth Amendment.
Q. You were beating your dog that night, weren't you, Mr. Kelly?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. You removed the P226 from its holster on the TV stand, that is the gun that you own, held it in your hand, and you pulled the trigger on the gun causing the bullet to discharge and strike Michael LaPorta on the side of his head and enter his brain, true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. You never told anyone at any time during any statement that you gave, sworn or otherwise, that Michael LaPorta used his thumb to pull the trigger on your service weapon, true?
A. On the advice of counsel, I exercise my constitutional — excuse me. I'm sorry. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. You don't know how much time passed by after the gun discharged and when you called 911 emergency, true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. You placed and received phone calls and text messages before and after you placed the 911 call, true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. You took photographs of your bedroom and nightstand prior to your deposition in May of 2012 and never turned them over to a police — to the police at any time, correct?
A. On advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. Michael LaPorta dated your sister, Jane, in the past, true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. Mr. Kelly, as you sit here today, as an employee of the Chicago Police Department, you have a total of 26 complaint registers lodged against you since you were sworn as a member of the City of Chicago Police Department, true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. One of those allegations was that in 2005, you beat Fran Brogan, your girlfriend, bloody causing her to go to the hospital and being injured, true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. You were arrested for battery in 2006 for throwing a TV remote control at her brother, Patrick Brogan, true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. You were never prosecuted for that incident, true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. Mr. Kelly, in 2007, you beat Jesus Rios, who was 5 foot 4 and 140 pounds, in front of his daughter while you were on duty because he allegedly resisted arrest, true?
A. On the advice of my counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. In 2013, you tased a pregnant woman, Alana Turner, during a traffic stop while you were on duty; isn't that true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. You have never been disciplined or lost a day of pay ever for any allegation lodged against you by a citizen of the city of Chicago, true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. Your father is a retired City of Chicago police officer, true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. Your brother-in-law is a City of Chicago police officer, true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. Melissa Spagnola comes from a family of Chicago police officers who all knew you prior to Michael LaPorta being shot, true?
A. On the advice of counsel — excuse me. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. You urinated on your hands at 6:43 a.m. on January 12, 2010, just ten minutes prior to the forensic investigators coming to swab your hands for GSR on that morning, true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. Based upon police department protocol, you were aware that you were likely to get your hands tested for GSR after Michael LaPorta was shot since you were the only two witnesses, true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. You requested that your Sig Sauer P226 service weapon be returned to you before the end of this civil case despite the fact that it still had blood on it, true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. You erased the text messages that were on your cell phone prior to approximately 5:30 a.m. on January 12, 2010, after your phone was returned to you by the Chicago Police Department; isn't that true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. You held Michael LaPorta after he was shot, true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. You knelt by his side after he was shot, true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. You touched his body and clothing after he was shot, true?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
Q. Mr. Kelly, isn't it true that you removed evidence and/or biological material from your hands and clothes after Michael LaPorta was shot and before you were placed into custody on January 12th, 2010?
A. On the advice of counsel, I exercise my constitutional right to remain silent per the Fifth Amendment.
MR. ROMANUCCI: Your Honor, at this time, I would like to declare that this witness be made unavailable for purposes of trial.
Q. And did you complete your probation?
A. Yes.
Q. You were hired as a full-time officer, correct?
A. Correct.
Q. And what was your first unit of assignment within the Chicago Police Department after you completed the academy?
A. The 9th District.
Q. And from mid-2004 through January 2010, did you have any other districts you were assigned to besides the 9th?
A. No.
Q. You were only assigned to the 9th District?
A. Correct.
Q. And were you assigned as a beat officer?
A. For the time, yes.
Q. At any time before January 10, 2010, did you own a gun?
A. Yes.
Q. Can you give me the make and model?
A. Sig Sauer P226.
Q. When did you purchase the weapon?
A. Exact date, I don't know. Sometime when I was in the police academy.
Q. Was that a new purchase or an old purchase?
A. A new purchase.
Q. Where did you purchase it?
A. I don't remember exactly where I purchased the gun.
I was a veterinarian before I was a, like, a construction worker, like — not construction worker. I had a business.
Q. What happened when you were praising the dog and Patrick Kelly was hitting the dog? Do you remember next?
A. I said, "I'm leaving," and I went to — I went to leave and then — uh, I went to leave, and then I saw — the "click."
Q. Hold on, Mikey. You said you heard or saw a click?
A. Yeah.
Q. Did you pick up a gun at any point in Patrick Kelly's house?
A. No.
Q. Did you take a gun out of his holster?
A. No.
Q. Mikey, did you ever pick up a gun while you were inside Patrick Kelly's house and point it at your head?
A. No.
Q. Mikey, did you pick up a gun while you were at Patrick Kelly's house and wave it around and made the gun click and let — and made the bullet discharge from the gun?
A. No.
Q. Did you ever point — pick up a gun with your left hand?
A. No. I — well, yeah, but not — not today or not this day. I didn't even know he had a gun until, uh, he shot — I didn't know he had a gun.
Q. Did you hear anything besides the click? home.
Q. To Pat's house?
A. To Pat's. But Kyle didn't even stay. He was just —
he — he drove us home and then parked the car at his parents' house and took the — and I don't know what he did after that.
Q. So did you go with Pat Kelly from McNally's to Brewbakers in your car?
A. Yeah.
Q. And then you went from Brewbakers to Pat Kelly's house with Kyle, with Kyle driving, is that what you said?
A. Yeah.
Q. Because Kyle wasn't drinking at all?
A. No.
Q. And then Kyle dropped you and Pat Kelly at Pat's house, right?
A. Yep.
Q. And your plan was to stay at Pat's house?
A. Yep. But, uh, I didn't like that he was yelling.
Q. At the dog?
A. Yeah.
Q. All right. We'll get to that in one second. When Kyle left, he took your car; is that right?
A. Yeah.
Q. And did you — did he tell you where he was going with your car?
A. I don't know. I don't know because I — I don't know.
Q. Okay. And then when you went to Brewbakers, did you drink?
A. I had a beer.
Q. And then when you went back to Pat's, did you have any beers?
A. Like, two minutes or, like, 20 minutes before, before the — I was yelling — or I was yelling at Pat to — because he was yelling at the dog. He was hitting the dog. So I just — I don't even know if I had a beer.
Q. Okay. When you were at Pat's, you never saw the gun, right?
A. No.
Q. You never saw Pat with the gun?
A. No.
Q. You never saw Pat shoot you?
A. No. I seen him — or I heard him click, and then I remember — because I was dead.
Q. You heard the click?
A. Yeah.
Q. Where were you standing when you heard the click?
A. Like, in the — in, like, the, like, living room type, like — like living room. Yeah, like the living room. It was, like —
Q. In the living room?
A. Yeah. Like living room, front room kind of.
Q. And you never saw Pat come up behind you or anything?
A. Uh . . .
Q. So he wasn't in front of you?
A. Uh-uh.
Q. He wasn't to the side of you?
A. Uh-uh.
Q. He wasn't to your right?
A. No.
Q. He wasn't to your left?
A. No, I don't think he was any — I don't know.
Q. Okay. I just want to ask you a question — some questions, just a few more questions. You had some spine surgery, right?
A. Yeah. I had C5 and 6.
Q. And you were in the hospital for that, right?
A. Uh-huh.
Q. And do you remember how you got hurt?
A. I — I picked up a boulder that was — but I picked up a heavy thing with my — my back.
Q. You hurt your back?
A. Uh-huh.
Q. And —
A. My neck.
Q. Your neck. That caused you a lot of pain, right?
THE COURT: All right. That's it for today; is that right?
MR. ROMANUCCI: Yes, your Honor.
THE COURT: All right. Members of the jury, have a nice evening.
MS. ROSEN: Before you excuse the jury, can we just do one quick sidebar?
THE COURT: All right.
(Proceedings heard at sidebar:)
MS. ROSEN: If you could just admonish them not to pay attention to the media tonight. There were tons of media here in the courtroom.
(Proceedings heard in open court:)
THE COURT: Members of the jury, please — I've told you before, and I haven't been keeping up with it, but please don't read newspapers or listen to television, any mention of this particular case. It's not — as I've pointed out earlier, what you hear on television, what you read in the newspapers is hearsay. It's not admissible, and you should not consider it.
So have a nice evening. We'll see you tomorrow at 10:00 o'clock.
(Proceedings adjourned from 4:52 p.m. to 10:00 a.m.)
I, Judith A. Walsh, do hereby certify that the foregoing is a complete, true, and accurate transcript of the proceedings had in the above-entitled case before the Honorable HARRY D. LEINENWEBER, one of the judges of said Court, at Chicago, Illinois, on October 17, 2017.
jurisdictions who had zero to nine full-time patrol officers, there were 183 of them, and on average, 7.1 percent of the complaints that were evaluated in those police jurisdictions were sustained. And so that's how you read this table, going down for police departments of different size, what percent of complaints were sustained in 2002.
So just to hit the takeaways, for me anyway, the row there, 1,000-plus, says that for the 13 police departments that responded to this survey that had 1,000 or more full-time patrol officers, the average number of — average percent of complaints sustained was 4.8 percent, which actually is exactly the same — to that level of precision is the same sustained rate that the City of Chicago reported for that same time period.
So the takeaway there is that at least for this type of complaint in this time period, Chicago was not — Chicago Police Department was not different than other comparable police departments in terms of how — what percentage of complaints were sustained.
Q. Okay. And you said that the survey that you used to create this table, Chicago actually participated in that —
A. Yes, they did.
Q. — survey? All right.
And then finally, the fourth opinion that Professor Rothman offered was also assisted by a demonstrative exhibit Illinois University?
A. Not yet. We weren't friends yet.
Q. Did you know of him generally? It was a friend of your brother's?
A. Yes, I think so, yes.
Q. Was he one of your brother's close friends? How would you describe their relationship, high school and in college?
A. They were good friends in high school, and I think that's when their relationship blossomed, when they were both at Brother Rice.
Q. Okay. And then do you know if they lived together in college?
A. Yes, they did. They were roommates.
Q. All right. Did you at some point develop a better relationship with Michael LaPorta?
A. Yes.
Q. All right. Why don't you tell me about when that was.
A. It was my third year of college. I went away, and I came back. I enrolled at Eastern Illinois University in 2003. And during that time, I would come back to Chicago and stay at my parents' house during the holidays and summer vacation.
So between, you know, 2003, 2004, I started to hang out and talk to Michael more, and that would be when we really started talking more frequently and hanging out and doing things together.
Q. Was there anybody else in the truck with you when you left McNally's and went to Brewbakers?
A. Kyle.
Q. Okay. Kyle was driving your truck?
A. Well, after Brewbakers.
Q. After Brewbakers?
A. Yeah.
Q. Why was Kyle driving?
A. Because he didn't drink at all, and I was going to drink and I was go — I was going to Lance's. I was going to — I was going to drink at Pat's, and I was going to walk home.
Q. You were going to drink at Pat's house?
A. Yeah.
Q. Okay.
A. And then walk home. And Lance was going to — I was going to Lance's for — to go to because he was going to — or Lance, or I was going to go to — Lance was going to go to my house to go goose hunting.
Q. So Kyle drove your truck from Brewbakers to Pat Kelly's house?
A. Pat Kelly's house.
Q. Did he —
A. Because he — he was — it was me, him, and Pat Kelly, and he wanted to go home, so he went to Pat Kelly's house, dropped me off, and dropped — and dropped Pat Kelly off, and he went
Q. Okay.
A. But it was — Kyle was driving because he didn't have a drink. He didn't have — he was sober. He was sober. So he was driving. And I want to say Pat Kelly was there, but I don't know.
Q. You don't remember?
A. No, I don't remember.
Q. Okay. Why were you going to Pat Kelly's house?
A. Because we were going to get some beer and — or Pat Kelly had beer, and I was going to drink and tell stories about the good old days.
Q. The good old days, when; college?
A. Yeah.
Q. Did you see Pat Kelly at McNally's?
A. No, I don't think so.
Q. Did you see Pat Kelly at Brewbakers?
A. Yeah, but I wasn't — I was with — I was with, I want to say, Lane and, like, Kyle. And me and Kyle were there. Like Pat Kelly was earlier, I think, because that's what I remember.
Q. So you were with Kyle and Lane?
A. Yeah, and a whole bunch of other people that I don't know. I don't have a clue now.
Q. Okay. You don't remember?
A. Yeah, I don't remember.
Q. But you weren't with Pat Kelly, you weren't meeting him at
A. No.
Q. No? Okay. Did you ever have any conversation in the days leading up to the incident that happened on your dad's birthday with any of Julie's family members about any concern you might have had about Julie and her use of sleeping pills?
A. No.
Q. Okay. I want to talk to you a little bit about Pat Kelly.
Okay?
A. Yeah.
Q. We talked a little bit about that you went to high school together and he was your roommate in college. I've heard people describe your — or read about people describing your relationship with Pat Kelly as being one of like brothers. Would you agree with that?
A. Yeah.
Q. And in the months leading up to the incident that happened at Pat Kelly's house, would you have considered him to be like a brother to you?
A. Yeah.
Q. Were you guys very, very close?
A. Yeah.
Q. Okay.
A. We were, like — well, his dad and ma, they were like two blocks down from us. Well, they still are, like, 109th and — 107th and — or 109th and Fairfield.
Q. Okay.
A. We're 107th and Talman.
Q. Okay. So you had been to Pat Kelly's parents' home as you were growing up?
A. Oh, yeah.
Q. Okay. All right. And at any point in time up until the night that you were injured, did you and Pat Kelly ever have any kind of falling-out?
A. No.
Q. You were good friends?
A. Yeah. We were best friends.
Q. Did you know any of Pat Kelly's brothers and sisters?
A. Yeah. Jane, which — Jane and John. I knew them both. I knew them all.
Q. Okay. And was there a time that you dated Jane?
A. Yeah.
Q. How long were you and Jane dating?
A. I don't — I don't know.
Q. Was it, you know, a couple of months, a couple years?
A. Like a year maybe.
Q. And do you recall when that was?
A. I don't know.
Q. You don't remember?
A. No.
Q. Was that while you were still in college or after you terminated.
Q. Thank you. Now, I want to switch gears a little bit and talk about what's been referred to as either early warning system or early intervention system. Are you familiar with those concepts?
A. Yes.
Q. And what are those?
A. It's a system that tries to identify employees who may engage in some kind of problematic behavior and to get them counseling to correct their behaviors or whatever the concerns are. It's — these are not disciplinary systems. They're very separate. This is not part — this is purely a counseling program where an employee may be identified as being at risk for certain kinds of behavior.
And the organization has a big financial investment in their employees. We've spent a lot of money to hire them and get them through the academy. And if we can give them some sort of counseling that helps them to overcome whatever issues they may have — and, you know, we all — we hire people, and people have personal issues and other issues on the job. It's a counseling program.
Q. And through your review of the Chicago Police Department data and orders, does the Chicago Police Department have in place early intervention systems of some kind?
A. Yes, they do. They have BIS and Personnel Concerns and fitness for duty programs.
Q. Okay. And can you tell us how those programs compare to programs around the — similar programs around the country?
A. Well, first, very few other agencies around the country, probably about 10 percent or so agencies around the country, have any type of early intervention system in place. So, you know, they're among that small minority of agencies that are taking steps. I find that their policies and procedures to be reasonable.
Q. Okay. Now, I want to talk — just sort of generally, we've looked at all of these different issues that fit under the umbrella of police accountability. Through your review of the information in this case, through your review of information in other cases, do you have an opinion on whether or not a reasonable police officer who is a part of the Chicago Police Department and subject to all of these rules and regulations would have a reasonable belief that they could act with impunity?
A. No, I don't think a reasonable police officer could believe that they would have — that they can act with impunity because there are policies and systems in place and because people are actually being disciplined.
Q. Okay. And now I want to talk just a little bit about Patrick Kelly specifically. You — you've already indicated that you've reviewed his CR files, and I just want to talk union alleging that we did not have just cause to implement the discipline.
Q. Okay. Why don't we take a step back. We've talked about the process actually with the previous witness with a misconduct investigation, and there's an investigation. Then it goes through a command channel review, and then it goes to where; the superintendent?
A. Well, to command channel review, then it goes back to the head of IAD who writes a report, submits it to the superintendent, and then it goes to the superintendent for his approval —
Q. Okay.
A. — or rejection.
Q. So the point at which the superintendent either approves or rejects — if the superintendent approves, is that the point where a police officer is notified that they have a sustained CR?
A. Yes, it is.
Q. Okay. So at no time earlier in that process is that provided to the officer who is under investigation?
A. Correct. Only at the point where it's going to be sustained and they're going to implement discipline.
Q. Okay. And I think you mentioned there's a grievance route. We also heard from the previous witness about the police board. Can you explain the difference between why some cases would go to the police board — or you know what, why don't we start with, what is the police board?
A. The police board is a board appointed by the mayor to handle — ostensibly, to run the police department, to make the final determinations on termination cases within the police department, but they handle all discipline for FOP members from above 365 up to and including separation cases.
Q. Okay. And you mentioned they are members appointed by the mayor. Are these citizens from the city of Chicago or —
A. Yes. There are no law enforcement. They're leaders of the community, leaders of the business community.
Q. Okay. And then for cases that are less than 365 days or pending termination, that can be taken in a grievance route if a police officer disagrees with the sustained finding?
A. Yes. It would be handled through the grievance procedure.
Q. Okay. And can you tell me a little bit about what that procedure, what the steps are?
A. The officer would be notified that the CR number, the complaint register number, has been sustained, and the superintendent is going to suspend that officer for a period of days, 30, 60 days. And the officer has to make the election whether they're going to accept that penalty or he is going to challenge it through the grievance process.
Q. Okay. And the grievance process is something that's laid out in the collective bargaining agreements?
A. Correct.
Q. Okay. And what did your department do in response to this grievance?
A. We would have provided a written response to his grievance.
Q. Okay. And do you recall what that grievance — what that response said?
A. Yes. It was denying his grievance.
Q. Okay. And the basis for that was what?
A. That we had just cause to initiate the discipline.
Q. Okay. And then what happened? What was the next step?
A. Then the ball is back in the union's court, whether they're going to proceed to arbitration or whether they're going to settle the dispute.
Q. Okay. Would arbitration delay the process of actually suspending a police officer?
A. Yes, it would.
Q. Okay. And what happened in this case?
A. In this case, we had discussions with the FOP. They wanted a reduced penalty. Our position was that we had just cause and that 60 days was the appropriate penalty.
Q. Okay. And how did those negotiations end?
A. They agreed to take the 60 days with no changes in the discipline.
Q. Okay. So if there's a settlement agreement in this file, it's not really a settlement, correct?
MR. BLANDIN: Objection.
BY THE WITNESS:
A. Correct.
MR. BLANDIN: Leading, your Honor.
THE COURT: Overruled.
BY MS. BENJAMIN:
Q. Okay. Did Mr. Kelly essentially withdraw his grievance?
A. Essentially, he withdrew his grievance.
Q. Okay. And in this file, let me direct your attention to the last page, RFC 22748. I want to ask you a few questions about this page. At the top, it says "Suspension notification," and it's for Officer Patrick Kelly. Do you see that?
A. Yes, I do.
Q. Okay. What does this document tell us?
A. I'm sorry. Could you —
Q. What does this document tell us about his suspension?
A. It tells us that he was — would serve the suspension from October 16th, 2014, until December 14th, 2014, a 60-day suspension.
Q. Okay. And did he, in fact, serve that suspension?
A. Yes, he did.
Q. Okay. And during that suspension, what types of employment-related actions were taken? Was he paid?
A. He was not paid.
Q. How about any other benefits that he receives as being a police officer?
A. He — he would turn in his star, his ID, would have no indicia of being a police officer. He would not be a police officer. He would still be required to take appropriate police action, which would be dial 911 if he saw something going on, but he would get no pay, get no benefits. He wouldn't get health insurance coverage. He's unemployed for this period of time. He would lose his seniority. It would impact his vacation and his compensation.
Q. Okay. All right. Now, I want to move on to another area of your work with the department, and this is in relation to your work as both the commander and then the civilian director of the department of human resources. Okay?
A. Yes.
Q. When you were leading up that department, did the Chicago Police Department, to your knowledge, have in place, like, between 2004 and 2010 different types of programs that would recognize whether a police officer was meeting the expectations of the department?
A. Yes, they did.
Q. Okay. And what were those programs that the department had?
A. They had Behavioral Intervention System and performance — I'm sorry. Behavioral — Personnel Concerns.
Q. You use acronyms, right? You use BIS, PCP?
A. Yes.
Q. Okay.
A. And we also had fitness for duty evaluations.
Q. All right. The witness before you talked a little bit about these programs, but I want to show you Defendant's Exhibit 31 and ask you what this document is.
A. Okay. This is an employee resource, E05-06, which is a general order. These are the documents that dictate how you do things in the police department.
Q. Okay.
A. And this is the one for Personnel Concerns Program.
Q. Okay. So does this order essentially lay out the entire program for all persons in the department to know what it is?
A. Yes.
Q. Okay. And could you just read for us what the policy is behind this program?
A. The policy is:
Q. Okay. So is the purpose of this program, the Personnel Concerns Program, disciplinary in nature, or is it something else?
A. It is not disciplinary in nature. It's to change behavior.
Q. Okay. There's another program you mentioned, the Behavioral Intervention System, Defendant's Exhibit 30. I want to ask you a few — how does this program correlate with the Personnel Concerns Program?
A. It's — Behavioral Intervention is usually the first step in identifying behavior. It — again, it's an opportunity to support the member experiencing problems. If the member is not responsive under Behavioral Intervention System, they would go to the Personnel Concerns Program.
Q. And the policies and general information behind it are similar to the Personnel Concerns Program?
A. Yes. It's about supporting their work performance and offering them counseling assistance and other resources to assist them in becoming a better employee.
Q. Okay. So in this case, we've heard the terms "early warning system," "early intervention programs," and those types of phrases. What types of programs are these from the police department's perspective?
A. These are early intervention systems, early warning programs. The Chicago Police Department was the first to actually get into this area in the '90s to identify the people that were having problems that could potentially become bigger problems, and they identified a list of incidents that were precursors to other employees getting fired and having problems, and let's get to those problems before they become bigger problems.
Q. Okay. So let me ask you this: Is there any program that you in your time with the department has ever been aware of that can predict the way a police officer will act in the future? Do those kind of warning systems exist?
A. No. There's no crystal ball out there. I mean, this is an attempt to find — you know, from past experience, if a person had trouble going to court who was repeatedly missing court, is that an indicator that there's other problems? And we think there is.
And other early warning systems also identified tardiness, absent without permission, excessive force complaints, general complaints from citizens.
Q. And then through this program, are those types of actions or activities looked at to see the source of the problem?
A. Yes, they are.
Q. Okay. And I'm going to — you had mentioned that there were some criteria that were developed back in the '90s that probably have evolved over time to, I think this — this particular order is dated 2005. Are there predecessors —
A. Yes, there are.
Q. — to — okay.
So on Page 2 of this document, there are indicators listed under Section B. Do you see that?
A. Yes, I do.
Q. Okay. And does that identify the types of factors that might put somebody into this program?
A. These are indicators that should be looked at, yes.
Q. Okay. And describe for me how it is that — so a police officer could be enrolled into Behavioral Intervention.
A. The process would be that a commander or chief administrator of IPRA, OPS, or the head of the Bureau of Internal Affairs would make a recommendation to the head of human resources, and the head of human resources acts as a gatekeeper to put people into the program.
Q. Okay. And I see at the bottom of this list — so there's nine different factors with some sub-factors identified under Section B, but there are reference to a certain number of either sustained complaint registers or, for instance, three not sustained excessive force complaints within 12 months.
How does that get communicated to the commanders or the various people you just mentioned?
A. The Bureau of Internal Affairs, they create a quarterly report to indicate how many people fall into this category of having two or more sustained complaint register investigations or three not sustained excessive force complaints in 12 months.
Q. Okay. And then what's the expectation of what they would do with that report once they receive it?
A. It goes to the commander of the unit who would review it, look at the factors that were involved. These will stay on a person's record for five years. So if you had two or more in a 12-month period, it could keep coming back up, but they should be — the commander would look at it, should know the factors involved in the sustained or the allegations, what the — and they would write a request to enroll the person in Behavioral Intervention to the head of HR.
Q. Okay. And are — is somebody automatically enrolled, or is this something that the commander would look into?
A. This is something a commander would look into. These are indicators that a — there could be something going on here. You're more familiar with the employee and his behavior through your sergeants, lieutenants, captains. Is there a need for Behavioral Intervention —
Q. Okay.
A. — or Personnel Concerns or fitness for duty evaluation, for that matter.
Q. Now, I want to ask you a couple of questions. We heard, actually many moons ago now, from Mr. Reiter about the fact that Patrick Kelly should have been enrolled in the Behavioral Intervention Program. And looking at these criteria, I want to ask you first about — he mentioned something about not sustained CRs. Do you see that?
A. Yes.
Q. In Paragraph — or Subsection 7, three not sustained excessive force complaints within a 12-month period?
A. I do see it.
Q. Okay. So how would that typically be determined? Would you look at a complaint history for an officer?
A. Yes. You would look at the individual officer's complaint history for a period of five years.
Q. Okay. This is your Exhibit 86-B. MR. BLANDIN: Can I just see what it is? MS. BENJAMIN: Sure.
BY MS. BENJAMIN:
Q. Plaintiff's Exhibit 86-B. All right. Let me make it bigger. It's awfully small print. Okay.
All right. So if we're looking at this document in order to determine if Mr. Kelly fit within the criteria of three not sustained excessive force complaints within a 12-month period, that's something you can easily tell, correct, because — what does the number 05 —
A. 05 is the category for excessive force.
Q. Okay. And I see letterers after 05. I see an A, a K, a P, an H.
A. That — that is a breakdown tracking system within the Bureau of Internal Affairs to see if different subcategories, from applying handcuffs too tight, to punching somebody, to shooting somebody.
Q. Okay. So actually, do you know if it goes all the way, A through Z?
A. I think it does go all the way A through Z.
Q. Okay. So there's a wide range of force that would be encompassed by an 05 category?
A. Yes.
Q. Okay. And looking at this document, if we start with January 2, 2005, and go through the next date in April of 2006, so we have to go back before that — okay. So within that one-year period, how many not sustained force complaints does Mr. Kelly have?
A. During that period of time, he would have had two not sustained excessive force complaints.
Q. Okay. And then there is another one that is a sustained — or is an excessive force complaint, it's an 05 category, but the finding is exonerated.
A. Correct.
Q. So that wouldn't fall within the BIS program, right?
A. Correct.
Q. Okay. And then looking at the rest of the document, I'll represent to you that the 033096 is the LaPorta incident. So putting that aside for the moment, were there any other "not sustained" force complaints?
A. No, there were no other "not sustained" force complaints.
Q. Okay. Now, we heard a little bit from the previous witness about fitness for duty. What is that in relation to Behavioral Interventions and Personnel Concerns?
A. A fitness for duty is a request to have a person evaluated, an employee evaluated medically, including psychological examination, to see if there's an underlying problem that needs to be addressed.
Q. Okay. And what sorts of things can prompt a fitness for duty evaluation?
A. We've had it where a person's work performance had changed drastically, their ability to track what was going on and respond to incidents. We sent the individual for a medical examination. He was in the early stages of Alzheimer's disease. Other people could come back with high blood pressure issues, narcolepsy, different medical conditions that could be affecting their work performance behavior, but it's not a willful, malice, bad behavior. It's medical conditions that they might not have been aware of that need to be addressed.
Q. Okay. How about off-duty-related incidents? Can they prompt a fitness for duty evaluation?
A. Yes, they can.
Q. In what circumstances have you seen that happen?
A. Domestic violence issues, is there something going on with this individual that's changing their behavior, that a person that didn't have a propensity for violence now appears to be having a violent tendency; is there something that changed with him physically or psychologically that needs to be addressed.
Q. Okay. And if — in terms of psychologically, what does a fitness for duty look at in terms of psychologically?
A. We would refer the person or require the person to go to see Dr. Dawkins at the Center for Applied Psychology who would do a battery of tests and a personal interview and determine whether the individual was psychologically fit to be a Chicago police officer.
Q. Okay. And is that a licensed psychologist in the state of Illinois?
A. Yes, she is.
anything, was done in relation to this request?
A. Yes. There was a sergeant, Mary Connelly, who contacted Tisa Morris and the investigator to find out — to gather more information to see if there was something else to support a need for a fitness for duty evaluation.
Q. Okay. And at that point, was a fitness for duty evaluation conducted?
A. No.
Q. And there's no — nothing in the file that tells us what transpired or what type of documents they obtained?
A. They obtained no documents.
Q. Okay. And then I want to ask you about when Mr. Kelly actually did receive a fitness for duty, and this is Defendant's Exhibit 44, Page 21490. This document is a similarly looking document that we just saw, correct?
A. Yes.
Q. Okay. But at the top, it says "personnel division," and the previous memo says "Office of Professional Standards"?
A. Yes.
Q. Okay. So what does this document tell us about a request for a fitness for duty evaluation for Mr. Kelly?
A. Well, this ties together with the Tisa Morris request, but now it provides more documentation. Sergeant Kelly Lewison was in the — supervisor in the Behavioral Intervention, Personnel Concerns Program. She had gained knowledge that Officer Kelly was involved in another domestic violence incident which established a pattern of two events. And Sergeant Lewison put in a request to have the officer evaluated through a fitness for duty evaluation at that time.
Q. Okay. Does a fight with a brother of your girlfriend qualify under the domestic violence statute in Illinois as a domestic violence incident?
A. Probably not, but it's close enough that we'll treat it as such. It's a family-related matter. It happened at the home. There was some discussion whether he was staying there at the time, could it fall into it. So it was probably a gray area.
Q. Okay. But in human resources, you want to err on the side of caution, right?
A. Yes.
Q. Okay. So these — those two incidents were combined to cause concern within the personnel department to request a fitness for duty evaluation. Did that need to be approved by anybody else?
A. Approved by Brad Woods, the commander of human resources and personnel division, but that's the extent of it.
Q. Okay. And it was approved, correct?
A. Yes.
Q. Okay. And tell us what you know about what happened in relation to that fitness for duty evaluation.
A. After that, the individual officer gets called in to the performance section of human resources, Behavioral Intervention, Personnel Concerns, fitness for duty. He's relieved of his police powers, is placed on the medical roll, and is ordered to report for physical and psychological evaluation, and he's also required to take a drug screening, submit a urine sample for evaluation.
Q. In your review of the file, did Mr. Kelly comply with all of those requirements?
A. Yes, he did.
Q. Okay. And in relation to the evaluation as well as treatment that was ordered, did it come to light in that fitness for duty that Patrick Kelly was already receiving counseling even before this fitness for duty?
A. Yes.
Q. Okay. And what did the — what did you learn?
A. That he had taken advantage of internal counseling through our employee assistance program and was meeting with Dr. Socol on a regular basis.
Q. Okay. And do you know if that counseling was related to relationship issues with his girlfriend?
A. I think it was, but we only get a very little bit of information. It's a confidential program, and the officer has to release the information to us, but yes.
Q. Okay.
THE COURT: Counsel, how much longer do you have?
(Proceedings heard in open court. Jury in.)
THE COURT: I always have to count because sometimes I miscount and then, wait a minute, they're not all here yet.
You may question the witness.
MS. BENJAMIN: Thank you, Judge.
DONALD O'NEILL, DEFENDANT'S WITNESS, PREVIOUSLY SWORN DIRECT EXAMINATION (Resumed)
BY MS. BENJAMIN:
Q. I think before we broke for lunch, we were talking about the referral for fitness for duty for Patrick Kelly in June of 2006, to get you back to where we were. The human resources department, would they receive all of the reports related to the various testing including psychological testing?
A. As far as what the tests were and how they were done, no. We get a summary of what it is and the conclusions of the doctors, but we don't get the individual tests.
Q. Okay. So you get the actual psychologist's interpretation of all of that data?
A. Correct.
Q. Okay. And in the materials that you reviewed in relation to this fitness for duty that took into account both of the off-duty incidents that Patrick Kelly was involved in in 2005 and then in 2006, did you note that the psychological testing showed that he had — there were no indications of any type of serious mental problems or anger management problems in any of the testing that was conducted?
A. Correct.
Q. Okay. And he was receiving counseling, though, in relation to relationship issues with his girlfriend from Dr. Socol?
A. Yes.
Q. Okay. Now, the end result of that fitness for duty was what?
A. Of — I'm sorry. Which fitness —
Q. The 2006 fitness for duty evaluation, how did that — it went to a three-panel?
A. A three-panel — yes. So if they want to challenge whether they should have been subject to a fitness for duty evaluation, they have the option of going to an outside medical professional to have a second opinion. If the second opinion doesn't concur with our doctor's evaluation, it goes to a panel of three medical professionals to make a determination if the person was fit for duty and at what point that individual became fit for duty.
Q. Okay. And in Mr. Kelly's situation, what was the result?
A. The result was that the doctors determined that he was never unfit for duty.
Q. Okay. And just so I understand, how does BIS work in relation to fitness for duty? Are there programs within the BIS program that would — might be taken into account with fitness for duty?
A. Part of Behavioral Intervention would normally include a fitness for duty evaluation, but it's a different part of it so . . .
Q. Okay. And the Behavioral Intervention program, is that just a set set of programs that are in place, or are they individualized for —
A. They're individualized. If a person is having problems with tardiness, there's no reason to recommend he go have relationship counseling. That's not where the area of concern is. So we try to identify what the issue is. If the individual's behavioral problem is they don't attend court, maybe it's a matter of getting them the right tools to track what their court schedule is. If the problem is relationship issues, then we should have them go see Dr. Socol or some other professional to address those concerns.
Q. Okay. So would you agree that every behavioral intervention is tailored to an officer's unique situation?
A. To correct those particular behavioral problems.
Q. Okay. Now, talking generally about the Behavioral Intervention and Personnel Concerns program, we've seen a chart from the Police Accountability Task Force's report that lists — or identifies enrollment in the program for a period of time kind of being stabilized in the 200 range, and then there's a drop-off after, I think, 2011 or 2012. Have you ever seen that chart?
MR. BLANDIN: Objection to the characterization as "stabilized," leading.
THE COURT: Overruled.
BY THE WITNESS:
A. I have seen that chart. It's been a while but, yes, I saw it.
BY MS. BENJAMIN:
Q. Okay. Do you have any understanding of why the numbers dropped off the way they did on the years that are reflected in that chart?
A. There's a lot of reasons. One of the reasons were they were doing more fitness for duty evaluations, not enrolling people in Behavioral Intervention. There was also a spike in the number of people enrolled in a — under Phil Cline as a superintendent, his administration. They took a group of people and put them in the program, and by the parameters of the general order, they weren't eligible for enrollment. They didn't have the indicators. So that would cause a spike. It was something like 100 people were enrolled suddenly.
There was also more of a role of addressing these concerns on a lower in-district level, encouraging supervisors to manage people before it got to this point through different management initiatives and training programs. So — and there were less people requesting enrollment. The commanders
A. He had gotten into — at the scene, he had gotten into an altercation with the supervisor on the scene. He was arrested at the scene. He had a high level of alcohol in his system, and it was a very serious incident that brought into question whether he was fit to be a police officer or not.
Q. Okay. And in the fitness for duty evaluation, before that even began, did he — was he receiving intensive counseling?
A. I believe he was still going to counseling at that point.
Q. Okay. And was he found unfit after that incident?
A. I believe initially, he was found unfit for — after that incident.
Q. Okay.
A. As far as —
Q. And was there a period of time where he remained unfit and then was reevaluated and deemed fit?
A. Yes. After going to counseling and therapy and enter into a program, there was — he was also found to be fit for duty.
Q. Okay. And that is not unique to Pat Kelly; that has happened with other police officers with the Chicago Police Department, correct?
A. That's really the objective of Behavioral Intervention, fitness for duty, is to get people to be fit for duty and to have their behavior changed.
Q. And talking generally about alcohol abuse, is that an immediate separation condition within the Chicago Police
Is that something that is something you're familiar with in statements given by either department members, sworn or unsworn?
A. Yes.
Q. Okay.
A. It happens — it happens all the time.
Q. Okay. And is that the acknowledgement by law enforcement who are being questioned or anyone else who's subject to compelled statements that they appreciate that this is a compelled statement and —
A. Correct, on the administrative side.
Q. Okay. All right. Now, in there, in her statement and in the rights, the list of rights that we saw, there's reference to Rule 14, also. That's unique to the Chicago Police Department, correct?
A. It is.
Q. Okay. And Rule 14 is what to you?
A. It's the prohibition or the prohibitation of providing a false statement, whether oral or written.
Q. And that is — was there a similar rule when you were with the FBI?
A. Yes. But it wasn't Rule 14, but we had a very similar —
Q. Okay.
A. — rule.
Q. Now, we've heard a lot about in this trial a code of silence and whether or not what people define it as or what it means or whether you're trained on it. Is that something that you in law enforcement have ever utilized in either your training or your conversations with fellow officers?
A. I have never used the term "the code of silence." It's not something we talk about in our vocabulary that we're using the term "code of silence."
Q. Okay. Are you saying you're ignoring that term, or are you just — it's not part of your regular daily speech?
A. Yes. There is no official definition of the code of silence, whether it's in the FBI or in the Chicago Police Department. I understand what it is being referred to when people say that, but it's not a term that we use on a day-to-day basis.
Q. Okay. And what is your understanding?
A. My understanding is we have certain rules and regulations that would fall under the code of silence. There's the Rule 14, Rule 21, and Rule 22 for the Chicago Police Department. Rule 14, as I said, is the — prohibits you from providing a false statement, whether it's written or oral.
21 and 22 is the rule that states that a department member is to — supposed to report criminal misconduct and misconduct that is in violation of our policies and rules and regulations of the Chicago Police Department.
Q. Okay.
when there's a sustained finding. The — if I understood your question right is, if someone calls in and said, this is a false report, that's a little bit harder to extract, okay, because at that point, there's not a rule violation. It's just an allegation.
Q. Okay. So earlier today, we heard about excessive force complaints get an 05 code, and then there is A through possibly Z of different scenarios under which the allegation might fall. Is that your understanding generally, that there are multiple types of allegations that can be made but then they are then linked to a rule and regulation?
A. Yes. Once an investigation occurs and you have a sustained finding, then a rule violation has to be attached. Okay? That's when that occurs, after there's a finding that's sustained.
Q. Okay. So you could only pull reports that reflected sustained findings for us then?
A. Correct.
Q. Okay. I'm going to show you Defendant's Exhibit 67. At the top of that, you see on the left-hand corner, "Internal affairs, analytical section," that's what you were just talking about. And could you just identify what this report is?
A. Yes. It says on the title, "Members with sustained violations of Rule 14 or 22" — 14 is false report, 22 is a failure to report — "from the time period of January 1, 2004, to December 31st, 2011."
Q. Okay. And for this, it's a 35-page report. And on the final page, there's a total of employees with that sustained finding. Do you see that number?
A. Correct.
Q. Can you tell us what that is?
A. Yes. 2,003.
Q. 203?
A. I mean, excuse me, 203.
Q. An extra zero.
A. 203 employees.
Q. Okay. And I'm just going to point out a couple of pages. For instance, on Page 26068, there's a — originally coded as an 05K, a domestic altercation incident, off duty, and then — but it's — let me slide that over a little. But it is a Rule 14 rule violation once it's been sustained.
And I see here this action taken, 700, court reinstated. What would something like that mean?
A. Yes. Without looking further into that investigation, what has happened is you have a sustained finding, so the officer either was given a large penalty, a suspension, or was up for separation. It's given the code 700, court reinstated.
It's highly likely that the police board ruled in favor of the department to either discharge or give a large
Q. Okay.
A. And it's something that the supervisors have observed.
Q. Okay. And correct me if I'm wrong, it's the supervisors who have to make the report against the officer?
A. That's correct.
Q. Okay. And then looking to the last page of this report, how many SPARs were given out in that timeframe of 2004 to 2011?
A. 30,705.
Q. I want to ask you a few questions about domestic battery complaints. That is not something necessarily IAD would investigate, correct?
A. Correct. By city ordinance, IPRA/COPA investigates those.
Q. Okay. But because your — you keep this data and you can produce these reports to people like myself, did I ask you to see if you could prepare a report relating to domestic battery or domestic violence complaints?
A. You did.
Q. Okay. And I'm going to show you Defendant's Exhibit 69. In looking at this, again, the same timeframe, 2004 to 2011, do you see that?
A. Yes.
Q. Okay. And we've already gone — I think we know what some of these headings are, but do they reflect possible outcomes of the CR?
A. Yes.
Q. Okay. So exonerated, not sustained, sustained, unfounded.
I think maybe "NA" is the only one we might not know right now.
A. That's "no affidavit."
Q. Okay. And so during this timeframe, this total, 968, what does that number reflect?
A. That's the total of complaints that were filed against the department members for domestic battery during that time period.
Q. Okay. And of that, how many are sustained?
A. 169.
Q. Okay. And looking through this report, what's provided are things like the penalty that is assessed?
A. Correct.
Q. And, for instance, for a sustained domestic altercation, here is one for one day's suspension?
A. Correct.
Q. Okay. And then here's another one a couple lines above that for resigned?
A. Correct.
Q. And then I think there's a suspension up top of that document.
A. That's a separation.
Q. Oh, I'm sorry. I didn't read it correctly. Thank you.
So would you agree that based on your review of this and over and over again who aren't dealt with in a meaningful and reasonable manner. And it's because of those police officers that constitutional rights are denied.
Do you remember Joseph Moore, the alderman? I remember — I can't say word for word. I leave that to your memory better than mine, but I asked Joseph Moore that isn't it true that the widespread custom-wide practice of violating constitutional rights leads to failures in discipline and termination, code of silence. Each and every one of those issues that I asked him, his answer was "yes." And those are the issues that belong in this case.
So there was intent and meaning when I asked those questions. They weren't random. I asked those specific questions specifically because they apply to the issues in which his Honor will instruct you on at a later time. He will read to you what your instructions are. Just like the police department has general orders or special orders or the police officers themselves have rules and regulations, his Honor will give you your rules and regulations, how you will decide this case.
So what are those five factors? As you've learned throughout this trial, code of silence is the detriment of all, whether it's police — whether it's citizens or police officers, especially those officers trying to do their job the right way. The City fails to investigate. It fails to discipline, fails to terminate, fails to maintain an early warning or intervention system. Those are the five factors that his Honor will tell you that you have to decide if you answer other questions first.
And I'm going to show you, I'm going to lead you down that path as to what questions you will be required to ask in order to determine — or what questions you will be required to answer in order for you to determine whether or not Mikey LaPorta is entitled to compensation as a result of the harm caused by the City.
It is our contention that we have proven to you by a preponderance of the evidence that these five factors were the cause behind Officer Kelly shooting Michael LaPorta, harboring in Patrick Kelly the mentality that he could get away with it. That's the word "impunity" that we talked about. These five factors allowed for brutality and misconduct to exist for years within the Chicago Police Department without any fear of repercussion.
Ladies and gentlemen, you are the last line of defense. You can, and will, tell the Chicago Police Department if you believe that we've met that burden of tipping the scale. That's all we need to do. That is how you will determine whether or not the City is liable. Did we bring you enough evidence from that witness stand and from the documents that you've seen on your — on your TelePrompTer time that he can wear the badge and shield. By failing to discipline and strip him of his ability to possess his service weapon, suspend or terminate his employment, the City created the highly predictable risk.
Remember, in opening statement I told you that everything that Patrick Kelly did was predictable because it was foreseeable. It's a pattern. Once he got that badge and shield, he became a tough guy, and he became a tough guy to the detriment of people that he either knew or people that he policed.
The City's policies instilled a mindset and attitude of invincibility in Officer Kelly, one where he knew he would not be investigated, charged, disciplined, or suspended or even terminated in any way, shape, or form following his acts of misconduct.
Patrick Kelly, the one thing I can't bring to you, as much as I would like to, who his guardian angel is. Somewhere, someone out there was looking out for him. And it really wasn't just one person looking out for him. It may have been more than one person. And you know what? It may not even have been a person because it was the culture that was looking out for him, a decades-long culture.
And that's — those aren't my words. These are the words of informed people who investigated the City of Chicago for months, used CPD data, and they're the ones — they're the It's not over here. If Mikey LaPorta had shot himself the way Patrick Kelly says he would, where is the blood? Now, this is not to scale. It's not perfect. This is near the door, because this is the holster over here. The holster is here.
Give me the holster, Bryce.
It's over here. But that's about the best I can do for you, ladies and gentlemen. Thank you.
So next we move on to the focus of the case, what the City did or failed to do which caused this constitutional violation. You're going to hear Judge Leinenweber instruct you in a few moments that the City's policies had to cause Michael LaPorta's injuries. I used a phrase in opening with what we described as moving force, and that's just going to make it confusing. You're going to be instructed on the word "cause" instead of "moving force."
So simply put, it's causation. That's what it is. Were Michael LaPorta's injuries a foreseeable consequence of the City's actions? And the answer is, absolutely. Can we point to the City causing Michael LaPorta's injury on the morning in question, is what you'll need to answer. And, again, when you're asked that question when you're deliberating, you will see that the preponderance of the evidence is "yes." And that is in the instructions that his Honor will give you.
So let's walk through it. I showed you in opening I'm not, I promise you the judge will, and you're going to have them as words on paper, and those instructions will be in front of you when you deliberate.
But deliberate indifference is about officers acting with impunity because of the City's deliberate indifference, a conscious disregard, a blind eye. That's going to be the last instruction his Honor will read to you. He will tell you that the City had to know about these problems, did nothing about them, and that that's what happened, and what happened here was foreseeable.
The City knew. The City did nothing. And what happened to Michael LaPorta was the predictable outcome of decades of this mindset of apathy that has existed. That is what deliberate indifference is about, that they knew and they did nothing about it.
And again, using the words of Joe Moore, remember those intelligent, informed people that would testify before the city council and tell him that if you don't do what we're telling you when you create IPRA, that IPRA will be doomed to fail. And they were right because they did not implement those things that people who had the community in mind. And the community includes police officers. They didn't do it.
So once you've decided one of the five claims or all of the five claims apply, then you can move on to the verdict form which is — oh, I think we need to switch over now.
