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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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60 COMMENTS

  1. Look at all the transparency following the raid on home of POTUS DJT. After all the years of concocted slander and libel against POTUS DJT and you are LE and you proceed to participate in a such despicable democRat filth you are not worth spit and have no place in LE whatsoever. May the day come you are shown the door and handed a sign that says, Will work for food.

      • Maybe it’s me, but I don’t see a single spelling error in your post.

        And your point is well made.

    • Concocted libel and slander? I think not. If all the libel and slander stories were anywhere near true don’t you think one of most litigious human beings on the planet would be suing people left and right? Even his pet media mouthpieces have not declared war on the, supposed, libelers and slanderers who gladly use their media soapbox to defend their meal ticket. If you, and any other of the “Orange One’s” enablers would look to see past the media circus that the “Orange One” basks in you would be sliding through the “Swamp” that he, supposedly, was to drain. Go back in time, pick your decade, 80’s, 90’s, 00’s and even up to his candidacy, you can read and hear about him, “The One Who Shall Be Not Be Named” what a wouldbe autocrat sounds and acts like. He is not ” The Art of the Deal(er)” that he or his followers believe he is, i.e., Trump University, Trump Steaks, Trump Water, Trump Vodka (BTW he doesn’t drink)and Trump Shuttle. However, he is a master of the lawsuit, bankruptcy courts and, in general not a very nice person. Read about how he single-handedly pretty much destroyed Atlantic City, family businesses and how his “business” acumen took down the XFL. If you’ve gotten this far you show the patience needed to go behind the curtain, so to speak. By the way, I am no fan of Biden or what he so obviously beieves in. But, I have been a resident of NYC and NY State and I’ve seen, read and heard his woe is me defense when, almost literally, he gets caught with his hand in the cookie jar. Notice how he takes no responsibility for any errors or mistakes he had a hand in.

      • Regardless of the past actions of the man, the point here is more transparency is good for everyone. And, as Debbie implied, should be evenly applied regardless of politics. All levels of government should have more transparency. It might make them pause before taking actions that should not be taken.

      • I had discussion with a retired officer about officers lying on the witness stand about probable cause. He just astounded me with his defense of perjury in drug cases to establish probable cause. Here was a guy whom I had known for several years and considered a friend and a straight shooter and he strongly defends official lying on the witness stand to bolster making an arrest. I could hardly believe my ears. I was stunned. I know it happens frequently because some of the excuses for probable case were so weak that only a judge who was deaf, dumb (emphasis on dumb) and blind could fail to realize the the probable cause was highly improbable.

        With that background, having worked in court for 25 years, it doesn’t astound me that officer would also be able to justify in their minds lying about the circumstances surrounding a questionable action by another police officer.

        Why not let all the evidence come out in under 10 days. Certainly the greatest bulk of the evidence has been gathered in the first ten days. You can bet the detective squad is out within hours scouring all possible sites for video, either to exonerate the officers involved or to suppress evidence that would incriminate them.

        Oh, oh, oh, we might taint the jury pool. There is an answer provided for that problem of tainted jury pool. It is called change of venue.

        In addition, there should be some significant civil penalty for news media that only show a portion of a tape. It should be compelled to show all of the tape or none of the tape. It isn’t really censoring the media, it is making the media do what it is supposed to do, relate the news, all the news and only the news. If they want to editorialize, that should be in a separate section called, interestingly enough, “The Editorial Page.”

      • If all the libel and slander stories were anywhere near true don’t you think one of most litigious human beings on the planet would be suing people left and right

        Probably missed the lawsuits against CNN and HILLDABEAST dincha’…. OBTW: More to follow

  2. In my estimation, we have all the transparency we need. We can see perfectly well where all this is going. It has become so very crystal clear that police leadership along with federal,state, and local officials are working together to destroy anything that resembles law and order. That is in fact what has so many people so angry. We ALL see it. It could not be any more transparent.

    It is completely absurd to put all your faith in government and then complain when government shows you how self-serving they are.

    • I see an apocalyptic scenario playing out. The boyz n girls in blue ain’t your friend! I figured that out 50 years ago when a friend went to prison for a bag a of Mexican pot…

      • MADDMAXX August 14, 2022 At 10:38
        Your comment is awaiting moderation
        What a fucked-up way to start the day, first post MODERATED” for WHAT? “racists?, or just “because”? growing very tired of this bull shit…

        bag a of Mexican pot…
        Fukin racists, your boy should have bought American pot. Oh wait 50 years ago ALL marijuana was illegal and the cops did NOT put your friend in prison they just followed laws made by the US Congress since most drug laws are Federal. The COURT system put your friend in prison based on guidelines determined by “yep” the Feds so, yeah cops are NOT our friend we don’t hire cops to be our friends, we hire cops to enforce laws made by those people that were elected to represent us and make laws “presumably” to maintain order and keep us reasonably safe. Right wrong or otherwise we put those people in charge of determining our fate and I don’t expect special treatment if I’m caught breaking the laws that I gave someone else the authority to impose upon me. Pretty sure your friend was aware of the consequences for getting caught with that bag of pot (I knew a guy got caught with a “roach” in his ashtray and got 10 years) but chose to ignore that.

      • Fuck it, I’ll try AGAIN… Last reply was “MONITORED” four hours ago, and I am assuming tripped some ones fucking trigger… TOO bad.

        bag a of Mexican pot… Perhaps your friend should have bought AMERICAN pot… No wait, ALL pot was illegal 50 years ago and it was the court system that sent him to prison according to Federal guidelines. You are correct “COPS” are not our friends, we hire cops to enforce laws and hopefully maintain some sense of order NOT to be our buddies. Cops “arrested” your friend because he was in violation of a federal law (possession of a controlled substance) and right, wrong or otherwise that was against the law 50 years ago. I’m pretty sure he KNEW he was breaking the law and unless he was just wasted ALL the time probably understood the consequences of his actions and found them acceptable since he chose to partake in the illegal activity anyway. It’s called PERSONAL responsibility for a reason.

        • OBTW: IF the original does get out of jail it says pretty much the same thing so just deal with it or send your complaints to someone that gives a fuck… HINT, no one really gives a fuck…

  3. “The agency found that the officers had no legal basis to stop Augustus in the first place. And it found that Fleming had no reason to seek to physically restrain Augustus, who was being cooperative.”

    Was this the video above?

    In that video he was being co-operative, *up to the point he became un-coperative* and began to panic and try to flee, as it appears to me.

    Anyways, back to lying cops –

    What are the chances we could get a law that makes it a crime if a cop lies to someone in the course of their police duties? Meaning, says something they know is not true to build a case against someone or someones?

    • About the same chance as getting a law that removes faithless politicians from office. (Saying they’ll support policy X on the campaign trail but doing the opposite once elected.)

  4. In the 1980s the Great Chief Reuben Greenberg (Charleston SC PD) made a comment following a less than perfect use of deadly force.
    to paraphrase

    “Its always really nice that a bunch of people in nice safe offices can dissect for weeks the actions that literally took seconds to occur. To be able to draw conclusions on evidence both seen and sensed by the officer and to combine all the years of training and experience, including funerals for officers that made a bad choice, is an incredible statement to these civilians doing the oversight.”

  5. My old man explained it to us as:
    “Thin Blue Line my ass! It’s a Thick Blue Soup that you don’t ever want to taste. “

    • Agreed – and I’m sure they use the same recipe from ResumeSpeed, Nebraska to New Yoyk, NewYoyk.

  6. When I was younger I use to think cops were trustworthy. At this point in my life I would put the percentage of honest cops just above the number of honorable politicians. Of course some agencies like the FBI really bring the average down.

  7. I subscribe to The Intercept. I don’t always agree but they work hard at research and being objective and nonpartisan. Anyone with more than a few spare minutes should read the entire piece which includes links to 12 videos mentioned in the article.

  8. With all the best will in the world this was three or four years ago! It really should by now be dead and buried along and what ever action was taken Wh bring it now/ I suspect thatvthere is growing shortage of suitable news items out there for the wannabe Rambos of the Gun Supporter Lobby

  9. ARE YOU KIDDING ME!…A fake narrative?…If the scum had a permit he had to COMPLY WITH LAWFUL ORDERS!…The media is this nation is trying to force racial strife…He was attempting to pull his gun on the police!…GOOD SHOOT!!….Those Officers were trying to help an officer that just used deadly force calm down…SICK SICK LIBERAL/RADICAL HACK MEDIA!

  10. I’m not real impressed with her demeanor after the incident. I also can’t understand why the police surrounded him as he was walking like they did having only watched the one video above.

    That being said, it did appear like he was trying to draw for the last couple seconds before being shot.

  11. They had no legal reason to stop or detain him. Wouldn’t that make his actions self defense and the cops guilty of murder?

    • BS! …the cops saw his poorly concealed weapon!… they had a 100% right to detain him… it was chicago.. not a free state… If he had a foid card, he had to fully cooperate until they saw his card/ permit…. the THUG killed himself.. suicide by cop…

      • The post says that the cops had no legal reason to stop or restrain him.

        Maybe you forgot the sarcasm tag?

        • Regardless of whether the stop is good, there you can’t run. Accept the stop and fight it in court. Anything coming of it would have been thrown out. Don’t fight. Don’t argue. Don’t flee. Don’t draw on police.

  12. QI + Incarcerate on a whim = American Cities on fire

    For every city that the Left refuses to see being burned to the ground, there’s a Drug War policy the right refuses to take responsibility for. Remind me again what the circumstances were at the time NFA was legislated…

    Look at every single American LEO perjure their oath to the 18A/5A right to property because a lawyer said it was ok. It seems personal responsibility is not a calling card of conservatives, after all.

    • And sadly The Intercept has gone woke, Greenwald is no longer involved there. Looks like that cop needs to be behind bars but I wouldn’t trust anything TI says about it

    • It’s also not even a very good example of the contents. Out of context it makes the article seem unfocused when it’s actually a pretty good read.

  13. I open carry around with the cops looking at me. My hands on a grocery kart. Smiling all the time. I’ve even spoken to them for up to 15 minutes. We have very nice conversations. If you are legally carrying a gun why not talk to the police???

    As a law-abiding citizen you are equal to the police. They open carry. You open carry. If the cops stop you, talk to them. Was this guy carrying a gun legally in Chiraq? Squaring up your shoulders is what you do before pulling out your gun. That’s in the video.

    So the police had no legal reason to stop him. Ok. That happens a lot. But most people don’t get shot by the cops either. Because they don’t act like they are going to shoot a cop.

    • Those police you have the “nice conversations” with are planning on how to kill you while chit chatting. “Be polite, be professional, have a plan to kill everyone you meet”–taught in every police academy in America.

      • The reality is the police must be taught, that they might have to kill anyone that they interact with. If they are to stay alive.
        How many children with guns have killed cops??? Grandmothers have killed cops. Single mothers kill cops.

        I don’t remember the city or most of the details. But a 15 year old boy with a gun, walked into a police station and killed 7 male and female cops. Before they killed him. He wanted to prove he was a loyal gang member.

        Please Stop believing in this utopian bullsh*t.

      • btw
        I asked a cop for directions. He put his hand on his gun and gave me the correct directions. I was in my car. So he didn’t see my gun.

        • He put his hand on his gun and gave me the correct directions.

          If this was a recent interaction based on the raging anti-cop sentiment in the country coupled with the increased number of cops that have been wounded and killed in seemingly innocuous situations, you should at least admit that cops have REASON to be more alert and warry of all contact with the general public. If I am stopped by a cop my plan is to place my hands behind my head as I inform the cop that I am armed giving him/her the location of the firearm and asking him/her how he/she would like to proceed and being very careful to follow whatever instructions he/she imparts especially when I’m on my Harley… Being a statistic really sucks.

    • I’m for transparency in deadly use of force incidents

      I’m not for the way that the media and politicians play games with it.

      All you have to do is ask where the calls for transparency were when an unarmed woman was shot dead on January 6th.

      I’m not making a judgement on whether that shooting was legal, here- but boy it sure seems weird that all these actors demanding transparency didn’t bat an eye when the police decided they did nothing wrong in that case and didn’t even release the name of the shooter in the report.

  14. Ahhhh, how many times have I been called a “librul” for saying that American cops are the most corrupt in the developed world…

    • Even a stopped clock is correct twice a day.

      Something tells me that there are many other reasons that you’ve been called a “librul.”

  15. I’m sure the IRS will give this a very, very thorough reading and take every recommendation to heart.

  16. Whenever an old lady is shot by police on her doorstep, there follows a solemn press event where it is mournfully revealed that the old lady was shot in full compliance with departmental policy.

    Officer safety, dontchaknow.

  17. Guys, please correct me if I am wrong, but reading about many of these shootings, it starts with LEO stopping someone for some reason (valid or not). Then during the interaction the ‘suspect’ decides to quit following LEO LEGAL orders and start fighting or running. These actions change the dynamics of the encounter for the LEO. Are these people unaware of how to interact with an LEO. As one commentor said, keep your hands in plain sight, if you are carrying legally, let the LEO know and ask how they want to proceed (this shows willingness to cooperate). I will repeat any order given and will move very slowly to comply with that order. There are bad cops out there.. I’ve run into a few over the years but most of them have been friendly but professional.

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