Is police accountability in Illinois over before it began? Our review of HB 3443 found it weakens the SAFE-T Act significantly.
Introduction
Early in June, the Illinois General Assembly passed HB 3443, a trailer bill to the SAFE-T Act (IL PA 101-0652) that was signed by Governor Pritzker in February. The SAFE-T Act included the Pretrial Fairness Act, ending cash bail and making other criminal justice and police reforms. This trailer bill contains several changes to the reforms included in the SAFE-T Act — specifically, as explained below, it chips away at the pieces surrounding law enforcement accountability, such as standards for officer misconduct and the use of deadly force.
Since the passage of the SAFE-T Act, many law enforcement groups throughout the state have pushed back against these long-needed, common sense legal system reforms. Given the willingness of the trailer bill’s key sponsors and legislators to work so closely with law enforcement, the changes therein also threaten the other reforms in the SAFE-T Act, including the abolition of cash bail.
Law Enforcement Misconduct
Treatment of and response to law enforcement misconduct is one area in which the trailer bill significantly undoes much of what is mandated by the SAFE-T Act.
Language in the SAFE-T Act protects officers who make unintentional mistakes while also requiring they answer truthfully when asked about an incident that is under investigation. Specifically, the law says misconduct occurs when officers “knowingly and intentionally misrepresent…facts describing an incident” or withhold knowledge of another officer doing the same (SAFE-T Act, p. 105). This expectation should be the absolute bare minimum for public service workers, such as law enforcement officers; still, although truthful accounts of events are the foundation of any investigation, this was not a legislative mandate before the SAFE-T Act.
The amendments made in HB 3443, however, provide officers who may not wish to report on incidents truthfully the room to do so. The bill states that law enforcement officers will only be in violation of the law if they misrepresent “material facts,” meaning facts directly relating to the question or incident (HB 3443, p. 105). This loophole, and the legal confusion the word “material” is likely to create, allows officers to obscure important facts — or outright lie — in ways that might bar investigators from understanding the situation, the officers’ and victims’ states of mind, or even actions taken to cover up an incident. Issues will also arise when a peace officer and an investigator have differing views of what may be a “material” fact. It should be the investigators, not those being investigated, who determine what facts are material.
The trailer bill also has a nearly impossible ‘state of mind’ requirement. Law enforcement professionals would only be considered committing misconduct if they misrepresent these “material” facts “with intent to prevent the apprehension or obstruct the prosecution of defense of another person” (HB 3443, p. 105). This sentence allows officers to lie — even if their intention is to protect another officer — as long as they purport that they did not believe this lie would obstruct an investigation. So, if an officer believes an investigation is unnecessary or a prosecution is highly unlikely to occur, does that give them permission to lie about the facts of a case? This is extremely concerning, considering some evidence shows that at least 1-in-5 Chicago cops “lie routinely.” Data from Bowling Green State University shows that, as of 2014, about 6.3% of cases where police were arrested involved allegations of false reports or statements; about 25% of those cases also involved acts of police violence.
These revisions included in HB 3443 explicitly protect officers with ill intentions. The bill’s language allows law enforcement officers to substitute their judgement for that of the investigators, an idea which runs counter to the purpose of outside investigations. It is also very difficult to prove state of mind, giving officers that do commit misconduct, as defined in the amended bill, significant protection so long as they don’t openly admit their belief that they are obstructing an investigation. Even worse, they encourage officers with good or neutral intentions to make grave mistakes that threaten the ability of police misconduct to ever be investigated. This is the definition of a slippery slope, and leaves our communities in a worse position than before the SAFE-T Act passed. It also begs the question, why do officers want (or need) permission to lie? The addition of this language exemplifies the entrenched cultural problem within our systems of policing.
Use of Force
Another area that is significantly weakened by the trailer bill are the limits on uses of force.
The SAFE-T Act limits the use of deadly force by peace officers during arrests and escapes (SAFE-T Act, pp. 283-287) and the types of force that can be used (SAFE-T Act, pp. 287-288) and imposes a statutory duty on officers to intervene when another officer is using unlawful force (SAFE-T Act, p. 290). As we have witnessed time and again, the ‘code of silence’ and fear of retaliation by colleagues continually prevents police officers from interfering with another officer who is causing harm or perpetrating violence. The point of the bystander provision in the SAFE-T Act is to make these fears a non-issue, but the trailer bill blurs these lines and has the potential to create confusing situations for officers in determining what force is lawful to use or when witnessing the scene.
As stated, the SAFE-T Act limits use of deadly force to prevent escape, but the trailer bill introduces significant confusion as to when these limits apply. The use of deadly force to prevent escape is only permitted when a suspect has “just” committed a forcible felony or other dangerous act (SAFE-T Act, p. 284) — suggesting that something occurred at the scene officers are responding to or was witnessed by officers — or if the officer reasonably believes the person is at risk of causing great bodily harm to another and cannot be apprehended at a later date and (SAFE-T Act, p. 283). The trailer bill removes the word “just” (HB 3443 p. 93) and the language stating an officer must reasonably believe a suspect cannot be apprehended at a later time (HB 3443, p. 92) from the SAFE-T Act’s reforms, opening up a whole range of possibilities that may or may not allow for use of deadly force to prevent escape. Without this language, if police believe someone has committed a forcible felony, right or wrong, they will always be justified in using deadly force to prevent escape.
For example, what if something happened yesterday or last week? How can an officer possibly know, without witnessing on sight, that someone really did commit a crime? Take the recent killing of thirteen-year-old Adam Toledo in Chicago, for instance: Chicago Police were responding to a report of gunshots, and after chasing the little boy for a few seconds, shot and killed him while his hands were up. Yet, there is no evidence — and certainly none that was available to police upon arrival to the scene — that Adam Toledo had committed any act of violence. There was no reason to believe Toledo, a child, could not be apprehended at a later, calmer, and safer time. Taken together, the removal of these provisions allows police to continue using deadly force to prevent escape, even in cases where the crime was committed well in the past, or there is no immediate evidence that the crime was committed at all. The trailer bill inserts intentional confusion as to whether a report of something like alleged shots fired would satisfy the requirements for police to use deadly force on anyone within range, regardless of witnessing probable cause, to prevent them from running away, allowing unnecessary situations like this one and so many others to continue.
The SAFE-T Act also bans chokeholds and all “restraints above the shoulders with risk of asphyxiation” (SAFE-T Act, p. 287), but the trailer bill redefines chokeholds to expressly exclude “headlocks” (HB 3443 pp. 97-98). This definition blurs the already opaque line between headlocks and chokeholds in a way that allows peace officers to continue using physical “restraints above the shoulders [that hold the] risk of asphyxiation.” By including the word “headlock” as a permitted type of hold, the trailer bill makes it even more difficult for officers to carry out their affirmative duty to intervene when illegal force is used. Done incorrectly or on a person struggling, a headlock also restricts airflow. Any asphyxiating holds, and even those not intended to asphyxiate, can become deadly, and therefore cannot be justified as a lawful restraint method. Again and again we see situations where officers are allowed, and even expected, to act as judges, juries, and sometimes executioners by replacing the judgement of the court with their own judgement—something that creates cover for officers with bad intentions and is overall antithetical to the theory of justice in our legal system.
Analysis
The passage of HB 3443 means that other parts of the SAFE-T Act, including the Pretrial Fairness Act (PFA), are also in danger of being gutted. This trailer bill, HB 3443, passed the Illinois Senate 42-17 and the House 79-36. The bill was sponsored by Rep. Justin Slaughter (D – Chicago) and Sen. Elgie Sims (D – Chicago), who also sponsored the original SAFE-T Act (HB 3653). While both sponsors have stated that the changes in the trailer bill were intended as mere clarifications of original language, as recounted above, the trailer bill in fact significantly changes the extent to which the SAFE-T Act holds police accountable, a concerning indication that the other reforms in the SAFE-T Act may also be weakened with time.
It may be too late to save the sections of the SAFE-T Act that were changed by HB 3443, but it is not too late to revitalize awareness and political pressure around other aspects of the SAFE-T Act that are necessary to reduce harm in Illinois communities.
Passed as part of the SAFE-T Act, the Pretrial Fairness Act is set to end cash bail and promote a fairer pretrial system in Illinois starting in 2023. The police accountability measures in the SAFE-T Act, specifically those altered by the trailer bill, have received less attention than the PFA — a concerning fact for advocates like us and community partners who have fought for these specific changes for years. Opponents have alluded to future trailer bills that will continue to ‘clarify’ the SAFE-T Act, as many law enforcement lobbyists and union leaders were concerned with the language of the SAFE-T Act because it was passed without toadying to their input. Now, though, with key sponsors of the SAFE-T Act bending to pressure, we risk losing all of the progress the SAFE-T Act works toward.
Like other reforms included in the SAFE-T Act, the PFA is the result of a collaboration between numerous community leaders, members of the public, and advocacy groups in response to the inequitable and counterintuitive consequences of cash bail. While abolishing cash bail is a big change to the system, evidence — including an evaluation of New Jersey following bail reform in that state — continually supports it as a method to improve community safety and proves that the chance of an individual committing another offense or failing to appear in court when released without bond is minuscule. Detaining individuals pretrial for any reason increases instances of rearrest. This is exactly why the PFA, and the rest of the SAFE-T Act by extension, must be protected. Allowing exceptions and “clarifications” to a bill that has empirical backing and community support (in January 2021, 57% of Illinois voters supported bail reform) would threaten to perpetuate the already-present inequalities in the current system under the guise of “reform.”
We — legislators included — must prevent law enforcement and other system actors from undoing the good of the SAFE-T Act’s original reforms.
Our communities deserve and demand effective, restorative, and fair systems of justice. The SAFE-T Act was the first real legislative move in decades to promote community-informed, evidence-based change to law enforcement and the criminal legal system. In order to ensure that the reforms in the SAFE-T Act are anti-carceral and fair, it is essential that the original provisions, crafted by the communities most impacted, are guarded against future trailer bills. Without careful and ongoing advocacy and education in Springfield and in communities across the state, the undoing of these police accountability measures might just be the first step on the path to returning the Illinois criminal legal system to the status quo.
Contributors: Chicago Appleseed Interns Marc Motter, rising fourth-year Philosophy & Economics major at the University of Chicago, and Tessa Weil-Greenberg, rising 2L and incoming President of Chicago Appleseed’s student chapter, the Collaboration for Justice at Northwestern University Pritzker School of Law.