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PALMER v. CITY OF CHICAGO

March 31, 1983

REUBEN PALMER, ET AL., SUBCLASS A PLAINTIFFS, AND EDWARD NEGRON, ET AL., SUBCLASS B PLAINTIFFS,
v.
CITY OF CHICAGO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Two sets of plaintiffs have filed this class action seeking, among other relief, a preliminary injunction. This Court has conducted an evidentiary hearing on the motion for preliminary injunctive relief. In accordance with Fed.R.Civ.P. ("Rule") 52(a) this memorandum opinion and order reflects this Court's findings of fact and conclusions of law. To the extent (if any) that matters stated in the "Conclusions of Law" section of this opinion contain factual statements, those statements shall be considered findings of fact as well. For the reasons stated in this opinion, plaintiffs' motion for a preliminary injunction is granted.

Findings of Fact ("Findings")

Parties and Proceedings

1. On April 16, 1982 plaintiffs filed this class action under 42 U.S.C. § 1983 ("Section 1983") on behalf of two subclasses of persons arrested by the Chicago Police Department and charged with felonies under Illinois law:

    (a) those persons convicted of criminal offenses in
  the Circuit Court of Cook County and sentenced to
  probation or imprisonment ("Subclass A"); and
    (b) those persons awaiting trial in the Circuit
  Court of Cook County ("Subclass B").

Defendants in this action are:*fn1

    (c) "City Defendants": City of Chicago ("City"),
  Superintendent of Police Richard Brzeczek
  ("Brzeczek") and Detective Division Area 2 Commander
  Milton Deas ("Deas"); and
    (d) "County Defendants": Cook County State's
  Attorney Richard M. Daley and various of his deputies
  and assistants: Chief Deputy William Kunkle
  ("Kunkle"), former Assistant in charge of the Felony
  Review Division Lawrence Hyman, and Assistants Daniel
  Locallo and James Varga.

2. Immediately on filing this action plaintiffs moved for an emergency temporary restraining order ("TRO") before the Honorable Thomas McMillen, to whom the case was originally assigned. After hearing arguments from all parties, on April 20, 1982 Judge McMillen issued a TRO that provided in part:

  Defendants shall preserve all police department
  investigative office or working files, sometimes
  known as "street files," together with all contents
  of such files. . . .

That TRO took effect upon plaintiffs' filing of the required bond April 26, 1982. By agreement of the parties, the TRO has been continued beyond its ten-day limitation and, as amended, still remains in force and effect.

3. In September 1982, after all parties had engaged in discovery, plaintiffs moved to amend the TRO, claiming (a) Chicago police detectives were violating both the letter and spirit of the TRO by maintaining investigative writings and files as their personal property and (b) that practice had been adopted and was being carried on to avoid the mandate of the TRO for preservation of such writings and files. On September 24, 1982 Judge McMillen amended the TRO to provide (emphasis added):

  Defendants shall preserve intact all police
  department investigative, office or working files,
  sometimes known as "street files," together with all
  the contents of such files, and all other papers and
  documents formerly put in such files. . . .

4. Shortly thereafter this action was transferred to the docket of this Court, which promptly scheduled and thereafter held a hearing on plaintiffs' motion for a preliminary injunction.*fn2 That hearing took place October 25-27 and 29, 1982 and (after a delay occasioned by the nature of Brzeczek's testimony — see Finding 18) was concluded January 3, 1983. All the remaining Findings are based on the evidence adduced at the hearing.

City and County Defendants' Practices and Procedures

5. City's Police Department ("Department") is responsible for investigation of crimes occurring within City and for apprehension of persons who commit such crimes. Department comprises the following Bureaus: Technical Services, Field Tactical Services, Community Services, Administrative Services, Operational Services and Investigative Services. Its Detective Division, within the Bureau of Investigative Services, is administratively divided into six geographical Areas, each headed by an Area Commander directly subordinate to a Deputy Superintendent. Each Area detective facility contains an Administrative Unit, a Property Crimes Unit and a Violent Crimes Unit.

6. Violent Crimes Units are responsible for the investigation of crimes against the person, such as homicide, rape, kidnapping, battery, robbery and assault. Members of Subclasses A and B have been charged with offenses as the result of such investigations.

7. Detectives investigating the types of crimes described in Finding 6 record the results of their investigations in documents that may be classified in two categories, "Unofficial Reports" and "Official Reports":

    (a) "Unofficial Reports" comprise documents usually
  prepared contemporaneously with the obtaining of the
  information (such as detectives' notes, typed witness
  statements or interviews, and major crime incident
  worksheets, normally prepared at the initiation of an

  investigation) and documents that convey information
  to or request assistance from another shift of
  detectives working on the same investigation (such as
  "To-From Memos," "To All Watch Memos" and "Memos").
    (b) "Official Reports" comprise standardized
  incident, opening, supplementary and closing reports.

Only the Official Reports were and are marked with the Records Division ("RD") number assigned to an investigation and were and are transmitted from the Area detective facility to the Records Division at Police Headquarters, 1121 S. State Street, for storage in the correspondingly numbered file.

8. Department has never provided its detectives or other personnel with directives or guidelines as to the extent to which Official Reports had to embody material obtained in the course of investigations and reflected in Unofficial Reports. City Defendants contend (Prop. Finding 17):

  At all times relevant hereto the policy of the
  Chicago Police Department has been that all official
  reports prepared in the course of a violent felony
  investigation must be complete and accurate; that is,
  such reports must contain all information known to
  the preparer(s) which pertains to the offense or to
  the person(s) accused thereof.

In practice, however, Official Reports have sometimes been prepared from the perspective of what fits the preparer's concept of the crime, so they omit information that — though highly relevant and sometimes exculpatory of the defendant charged with the offense — the preparer does not deem "Pertinent."*fn3 Retention of Unofficial Reports is essential so that all exculpatory material may be made available to criminal defendants in the regular course of discovery procedures. Consequently any failure to retain Unofficial Reports creates a serious potential of deprivation of defendants' constitutional rights. Such deprivations have in fact occurred in the past and were the subject of testimony during the hearing.

9. Existence of Unofficial Reports was well known throughout Department before the institution of this action.*fn4 However, before the promulgation of Detective Division Notice 82-2 ("Notice 82-2") on April 20, 1982:*fn5

    (a) Department took no official cognizance of and
  had no official policy concerning Unofficial Reports.
    (b) There was no uniform practice within Department
  as to the preparation, retention, use or storage of
  Unofficial Reports.

Unofficial Reports were regularly maintained at the Areas' detective facilities during the course of an ongoing investigation. Files containing Unofficial Reports during the course of investigation are variously referred to as "street files," "running files," "office files" or "working files" (for convenience these Findings and Conclusions will use the term "street files"). Because of the absence of any official policy or uniform practice:

    (a') At one Area headquarters Unofficial Reports
  were kept in a joint file with the Official Reports,
  while in others they were maintained in a separate
  file.
    (b') In some Areas and on some watches Unofficial
  Reports were considered the property of the
  individual detective, who could maintain them in his
  personal possession and retain them or discard them
  as he wished.

10. In addition to materials contained in the street files, other types of police reports are not given RD numbers and are not kept in the Central Record Division. Those include crime lab notes and writings, which are placed in files with crime lab rather than RD numbers. Similarly investigative reports generated at the Central Records Division, such as reports concerning internal investigations and firearm use reports, are not given RD numbers.

11. As a result of the procedures described in the preceding Findings, not all potentially exculpatory*fn6 information contained in the various investigative materials is necessarily included in the Official Reports. There has been and is no police rule, regulation, procedure or practice that specifically required all exculpatory information learned in a criminal investigation to be placed in Official Reports and transmitted to Central Records. Nor was or is there any satisfactory procedure for monitoring whether in fact all exculpatory information is transmitted to Central Records through Official Reports.

12. Officers of the Department do not charge a person with commission of a violent felony except with approval of the State's Attorney's Office, a procedure known as "felony review." At the felony review stage and at various other times before trial of a person charged with a violent felony, it has been and is the practice of Department to have officers meet with Assistant State's Attorneys to prepare a case for trial.

13. Before institution of this action both County Defendants and Assistant State's Attorneys engaged in the felony review procedure were aware that Department detectives investigating violent felony cases prepared and used documents of the kind encompassed within Finding 7(a)'s definition of Unofficial Reports. Awareness of that practice was established by substantial testimony during the hearings. However, evidence during the hearings was insufficient to prove County Defendants' awareness of the city-wide existence of street files as such.

14. Discovery efforts by criminal defendants in the Circuit Court of Cook County take two forms (either or both of which may be availed of by any defendant):

(a) subpoenas directed to Department and

    (b) discovery motions served on County Defendants
  and other members of the State's Attorney's Office.

Before institution of this action neither the existence of street files nor the separate maintenance (apart from Official Reports) of other potentially exculpatory materials was a matter of public knowledge, so that counsel for criminal defendants were wholly unaware of any need to draft requests for subpoenas and discovery motions broadly enough to encompass documents not contained with the Official Reports.

15. Before institution of this action Department and members of the State's Attorney's Office responded to discovery efforts by criminal defendants in the following manner (even though the language of a subpoena or motion may have been broad enough — such as a reference to "any and all" documents — to encompass Unofficial Reports and other documents not given RD numbers, such as the types of documents referred to in Finding 10):

    (a) In response to a defendant's subpoena,
  Department produced only the Official Reports
  maintained at Police Headquarters, 1121 South State
  Street, together with photographs and laboratory
  reports on analysis of physical evidence, and not (1)
  the Unofficial Reports maintained at Area detective
  facilities or in the possession of an individual
  detective

  or (2) the documents described in Finding 10 as not
  given RD numbers.
    (b) In response to a defendant's discovery motion,
  trial assistants in the State's Attorney's Office
  simply ordered by telephone the Official Reports
  maintained at the Central Records Division. They made
  no effort to inquire, of the individual detective
  Areas whether there were or had been investigative
  writings maintained there that were not included in
  the Official Reports. As for the documents described
  in Finding 10, (1) the information in crime lab files
  was neither revealed to nor produced for defendants
  during discovery unless an Assistant State's Attorney
  specifically requested that the crime lab write an
  official report incorporating its analysis and
  findings and (2) the other investigative reports were
  similarly neither revealed nor produced unless
  specifically requested by such an Assistant.

Department practice did not insure that the appropriate prosecutors would be informed of the existence of the undisclosed and unproduced documents, nor did the State's Attorney's Office's practices insure that they would make inquiry as to the possible existence of such documents. No Department procedure or regulation existed providing for the systematic retention or production of such documents even when they contained exculpatory material. These problems have not been corrected by any regularized procedures or requirements even today.

16. At the hearing plaintiffs established, by presenting Official and Unofficial Reports and other non-RD documents in 15 sample cases, that the exclusion of potentially exculpatory information from Official Reports was not a random or infrequent occurrence. Some examples were these:

    (a) In People v. Jones, a death penalty case in
  which the existence of street files was first
  publicly revealed, a substantial amount of
  exculpatory information never found its way into the
  Official Reports (and was therefore not disclosed
  during discovery). Such exculpatory information
  included the contents of a detailed factual memo
  written by investigator Detective Frank Laverty,
  suggesting that the wrong man had been charged and
  stating a persuasive basis for that view (in fact the
  charges against Jones were ultimately dropped as
  entirely unfounded).
    (b) In In re Baker the information contained only
  in Unofficial Reports consisted of an eyewitness
  identification of someone other than the defendant by
  a witness who knew the defendant, and who also told
  the investigators that the defendant was not present
  at the scene of the crime.
    (c) In People v. Williams information in an
  unofficial "File Note" was followed by the notation:
    "We did not put this in the supp. [Supplementary
    Report] because it would just cloud the issue."
  Information omitted from the Official Reports
  consisted of an eyewitness description of persons
  apparently fleeing the crime scene — a description
  dissimilar to the descriptions given by the
  prosecution witnesses.

By the City's own admission, over 300 additional street files still exist at the various police Areas.

17. In response to Judge McMillen's issuance of the TRO in this action, Notice 82-2 prohibited destruction of documents "maintained and stored under Detective Division control within a unit." Department personnel applied that directive in an improperly restrictive and grudging manner, under which detectives could consider their investigative writings as their personal property (and thus not "under Detective Division control") and therefore as outside the preservation requirements of Notice 82-2. At the hearing Area Commanders Deas and Stibich testified that under their interpretation of Notice 82-2, and despite the language of the amended TRO in this action, detectives were still free to destroy their own investigative writings under the guise of "personal property."

18. Immediately following the testimony referred to in Finding 17, Superintendent Brzeczek (Department's chief executive and administrative officer) testified for defendants. Brzeczek's testimony was candid and forthright and substantially undercut the testimony of his subordinates referred to in Finding 17, and particularly their improper reading of Notice 82-2:

    (a) Brzeczek specifically stated any failure to
  preserve all detective investigative documents (a
  concept that includes all items encompassed within
  Finding 7(a)) was improper.
    (b) Brzeczek also testified his interpretation of
  the TRO and the intent of Notice 82-2 (which was a
  major step taken to implement the TRO, and was
  intended to have the identical scope) was that all
  investigative documents become part of the
  investigative file and must be preserved.
    (c) Brzeczek further testified Notice 82-2 did away
  with any distinction between personal and
  departmental files, so that any detective who fails
  to retain any notes, or who retains any notes outside
  of ...

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