Photo by Max Herman

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Had Laquan McDonald somehow survived the volley of 16 bullets fired by Chicago police officer Jason Van Dyke, he would have been charged with aggravated assault of a police officer.

The charges would have been based on reports from officers at the scene on the night of Oct. 20, 2014, who said McDonald raised the knife over his shoulder in “an aggressive manner,” forcing the officer to shoot the 17-year-old in self-defense. Those reports were refuted by the infamous dashcam video and three of the officers who filed them are set to go on trial next month for conspiracy, obstruction of justice and official misconduct.

That trial and Van Dyke’s conviction earlier this month for second-degree murder and aggravated battery with a firearm are exceedingly rare. Much more often, it’s the person on the other end of police force that ends up arrested, charged and convicted.

A Chicago Reporter investigation has found a troubling pattern of Chicago police officers charging people they’ve assaulted with aggravated battery to a police officer, aggravated assault of a police officer, or resisting arrest. Defense attorneys call these “cover charges” and say it’s a way to cover up bad behavior or justify their excessive use of force.

Two out of every three times a CPD officer reported using force since 2004, they arrested the subject on one of these charges.

Being arrested on these charges can have a profound impact on a person’s life, including spending days or even weeks in jail, losing a job, borrowing money to pay for legal fees, and ending up with a violent offense on your record.

Cover charges are alleged in nearly one in five of the 1,112 police misconduct lawsuits paid out by the city between 2011 and 2017, making it among the most common types of misconduct leading to a settlement.

This type of misconduct has cost Chicago taxpayers more than $33 million in legal settlements since 2011, according to the Reporter’s database of police misconduct payouts. That figure does not include millions of dollars more in legal defense fees and the interest that accrues when the city borrows money to cover settlement payments.

Cover charges are filed in police shootings, as in the case of Alfontish “Nunu” Cockerham, a 23-year-old who was shot five times by CPD officer Anthony Babicz in South Shore in June 2015. As he lay in a hospital bed with bullets lodged in his buttocks and right thigh, a judge found probable cause for aggravated assault to a police officer with a weapon charges, based on Babicz’s account that Cockerham pointed a gun at him. He died in the hospital the next day. Video footage later showed Cockerham running away from the officer, raising doubts about the officer’s account.

But more often they are filed in routine interactions between police and the public, the kind that occur on a daily basis in black and brown neighborhoods in Chicago. For example, an 18-year-old girl stopped by two officers for holding a 40-ounce bottle of King Cobra malt beer on a sidewalk in Englewood. When she didn’t give them her ID, the officers tackled her to the ground and forced her into their squad car, then arrested her for aggravated assault to a police officer and resisting arrest, along with underage drinking. The charges were later dropped.

The ‘holy trinity’ of cover charges

Police in Chicago also routinely arrest people for the singular charge of resisting arrest—a phenomenon experts say is concerning, and could mean the problem is far more expansive than the settlement data indicate.

Chicago Police made more than 1,300 arrests between 2012 and September 2016 where the only charge was resisting arrest, according to a Reporter analysis of Cook County court data. More than half of these cases were ultimately dismissed.

“What was the person resisting if there’s no underlying charge?” said Samuel Walker, a professor emeritus at the University of Nebraska and a national expert in police accountability. “That’s just a gigantic red flag that the officer probably used force and is using this resisting arrest charge to provide cover or an explanation.”

Other times cover charges arise from low-level offenses—traffic stops, marijuana possession—that escalate when an officer feels disrespected, said Christy Lopez, a former U.S. Department of Justice official who helped lead the department’s investigation into CPD and wrote a paper about this kind of police misconduct.

“What the police are doing is essentially being bullies,” Lopez said. “I’m going to use force against you because you made me mad.”

Excerpt from 1972 report of the Metcalfe Commission, "The Misuse of Police Authority in Chicago."

This phenomenon is a decades-old pattern. In 1972, U.S. Rep. Ralph H. Metcalfe, who chaired a Blue Ribbon Panel on Chicago police abuse, noted that three charges—disorderly conduct, resisting arrest, and battery to a police officer—were so commonly used as cover for misconduct that lawyers referred to them as the “holy trinity.”

Forty-five years later, the U.S. Department of Justice found that the problem persists.

“We heard from numerous advocates and individual victims of police abuse that officers who engaged in force against a civilian routinely file baseless police assault and battery charges against the victim and other witnesses to the misconduct,” DOJ officials wrote in their scathing 2017 report on CPD’s pattern of using excessive force. “Filing false charges not only constitutes an independent civil rights violation, but is a powerful discouragement to potential complainants and witnesses regarding police misconduct.”

CPD is not the only department where this happens. News organizations have identified the use of cover charges in cities from Seattle to San Jose to Washington, D.C. And the Justice Department noted the problem in civil rights investigations in Los Angeles, Detroit and New Orleans.

In many of the cities where the DOJ has negotiated consent decrees, it has required police to begin tracking these arrests and conducting more thorough supervisory reviews to weed out bogus arrests, though it remains to be seen if tracking these arrests is enough to discourage them.

But in Chicago, nothing has been done to stem this practice or even to track it. The consent decree negotiated by Illinois Attorney General Lisa Madigan and Mayor Rahm Emanuel and released last month makes no mention of these cases.

The police department referred questions about cover charges to the mayor’s office.

Walter Katz, the mayor’s deputy chief of staff for public safety, said the city is focused on reforms that will reduce the use of excessive force, rather than looking at what he called the “back end” issue of the charges that are filed after force is used. He pointed to reforms the city has already made, including body-worn cameras, new use of force guidelines, and a force review unit, as well as the additional force reporting that will be required by the consent decree.

“From our perspective, those sets of reforms actually address that issue at the front end, to make sure the force that is used is appropriate,” he said.

“Just too aggressive”

Jeffrey Smith had spent the rainy day in early October 2015 like he did many days: hanging out at his grandparents’ house in North Lawndale, where he grew up.

Smith, then 26 years old, was about to accompany his younger sister to the corner store around 9 p.m., when two plainclothes Chicago Police officers appeared outside the gate to the front yard and ordered him to put his hands up.

Photo by Max Herman

Jeffrey Smith stands at the gate outside his grandparents’ house, where he was falsely arrested for aggravated battery to a police officer. Once able to laugh with the police officers he worked alongside as a security guard at Chicago’s Navy Pier, now he says he gets shaky anytime he sees a cop.

Smith was scared. But he knew he hadn’t done anything wrong, so he asked the officers for an explanation. The officers just kept repeating their commands, he said. They would later say they saw Smith’s hands near his waistband and they thought he might have drugs. In fact, he was putting on his belt.

It escalated quickly. One of the officers pushed Smith, tripping him. The officers wrote in their reports that Smith was yelling and swinging his arms. They said he pushed them and elbowed one of them, but Smith denies it. The officers called for backup.

“How they approached me was just too aggressive,” Smith said. “I didn’t know what they were trying to do.”

Out of the corner of his eye, Smith saw a female officer approaching. The next thing he knew his body was frozen, two Taser probes sending a pulse of electric current through him. The officers tackled his incapacitated body and handcuffed him.

Smith was taken to the police station and then to the hospital to have the Taser barbs removed. It wasn’t until the next morning, when he appeared in bond court, that he found out he was being charged with resisting arrest and aggravated battery to a police officer, a felony that carries three-to-seven years in prison.

Of the three most common types of cover charges, aggravated battery to a police officer is the most serious. It is a class-two felony, akin to burglary, arson, or kidnapping.

Chicago Police filed 2,883 aggravated battery to a police officer cases between 2011 and September 2018, a rate of more than one per day. The Reporter found that black men, like Smith, are disproportionately likely to be charged.

After he was arrested, Smith spent 10 days in Cook County Jail and lost his job as a security guard at Navy Pier. He picked up odd construction jobs during the 14 months his case was pending to try to care for his 6-month-old son.

“I needed to take care of him, and I could barely take care of myself,” Smith recalled. “You go from being able to take care of yourself comfortably, to not even knowing where your next dollar is gonna come from. Or when you’re gonna be able to work again. Or even if you’re gonna be locked up.”

After more than a year, a jury acquitted Smith of all the charges against him. He settled a lawsuit for excessive force and false arrest with the city in August. The city agreed to pay him $75,000, adding yet again to the tab for taxpayers for this type of police misconduct.

State’s attorney’s office accused of protecting cops

File photo by Sebastián Hidalgo

Cook County State’s Attorney Kim Foxx defeated incumbent Anita Alvarez in a 2016 primary election that became a referendum on how the office had failed to prosecute police officers for misconduct.

It’s not always so easy to spot the questionable charges from among the legitimate ones. Cases like Smith’s, where the person is acquitted, make up just under 3 percent of aggravated battery to a police officer cases, or about 60 cases since 2011, according to a Chicago Reporter analysis of Cook County State’s Attorney’s data. Another 100 cases were dismissed. More than 80 percent of aggravated battery to a police officer cases end in a plea deal, by far the most common outcome for cases in criminal court, though not always an indication of guilt.

“Often people will plead or take a deal because they want the court case to be over, because they can’t go about their life anymore with these charges hanging over their head,” said Joey Mogul, a veteran civil rights attorney with the Chicago-based People’s Law Office.

In almost half of the cases defendants pleaded guilty to aggravated battery and in more than one-third of cases they pleaded guilty to a lesser charge.

Civilian Office of Police Accountability

A photo taken by investigators from Chicago’s police oversight agency shows drops of blood on the sidewalk where an off-duty Chicago police officer punched and kicked 19-year-old Nathaniel Taylor in 2015.

Among them was Nathaniel Taylor, a 19-year-old with severe cognitive delays who was walking home from school with his younger brother in September 2015 when they walked through the yard of an off-duty police officer. He later said he was trying to find a place to urinate. The officer, Matthew Jackson, punched and kicked Taylor, and stuck his gun in Taylor’s mouth, according to a lawsuit and a complaint filed with the city’s police oversight agency. The officer claimed part of Taylor’s body had struck his torso, though he couldn’t say what part. The blows sent Taylor to the hospital and required stitches. But it was Taylor who ended up charged with aggravated battery to a police officer, while Jackson went unpunished.

The aggravated battery charges against Taylor were eventually dismissed, and he pleaded guilty to trespassing, a misdemeanor. But not before he spent a week in Cook County Jail and six months on electronic monitoring, fighting the case.

Richard Dvorak, who represented Taylor’s family in the lawsuit, and other civil rights attorneys said prosecutors are partly to blame for pursuing charges even when they know the evidence is flimsy. If a person pleads guilty to aggravated battery or resisting arrest, it is much harder to win a civil rights lawsuit or file a successful excessive force complaint.

“The state’s attorney’s office is being used as an arm of the police department to protect the cops,” he said.

Aside from narcotics cases, most felony arrests are reviewed by an assistant state’s attorney before being formally presented in court, a process called felony review. So far this year, State’s Attorney Kim Foxx’s office has approved close to 95 percent of aggravated battery to a police officer cases brought by CPD, according to a Reporter analysis of felony review data. By comparison, Foxx’s office has approved just under 80 percent of other felony cases.

Even under reformer Kim Foxx, who became Cook County State’s Attorney in December 2016, the office has approved almost all of the aggravated battery to a police officer cases brought by Chicago Police. Source: Reporter analysis of Cook County State’s Attorney data

The top criminal prosecutor in Foxx’s office strongly denied claims that her prosecutors pursue charges to protect police officers from civil liability.

“When we’re looking at these types of cases, we’re reviewing them based upon the evidence that we have,” said Risa Lanier, who heads the State’s Attorney’s criminal division. “It has nothing to do with any sort of contrived relationship between the State’s Attorney’s office and the Chicago Police Department. We approach every single case, no matter who the victim is, the same.”

Cover charges could be red flag for aggressive officers

Theric Patrick was among the tiny minority whose arrests for aggravated battery were denied felony review by the state’s attorney’s office.

Patrick was sitting on his cousin’s porch on a warm morning in May 2016 playing a video game on his iPad when two officers approached from the street. One of them, Brandon Ternand, demanded to know Patrick’s name. When the 22-year-old didn’t answer quickly enough—and talked back, asking why the officers were bothering them—Ternand slapped the iPad out of his hand, according to a lawsuit filed last year.

Ternand then pulled Patrick off the porch by his dreadlocks and tackled him, while other officers helped him twist Patrick’s arm behind his back to handcuff him and pushed his head into the ground. Then the officer arrested Patrick for aggravated battery, claiming in a report that Patrick punched him in the left side of his head.

A detective assigned to review the case discovered a bystander video that disputed Ternand’s account. Patrick spent the night in lockup. The next morning, the state’s attorney’s office denied the felony charge and Patrick was released. Records show Ternand has not been disciplined for the incident. (The detective, meanwhile, was moved to a midnight shift and is now suing the department for retaliating against her in violation of the Illinois Whistleblower Act.)

Ternand, who joined CPD in 2007, has used force more than 99.9 percent of his fellow officers, according to data compiled by the Invisible Institute. In less than nine years on the job, he amassed 47 documented uses of force. The average Chicago police officer documented less than one use of force every two years. Earlier this month, Ternand was cleared by the Chicago Police Board for fatally shooting 15-year-old Dakota Bright in 2012, one of three times he shot his service revolver in a two-year period.

The Reporter reviewed data from more than 2,200 aggravated battery and aggravated assault to a police officer arrests made by CPD between January 2015 and July 2018, and found officers who made the most arrests on these charges also use force far more often than average.

There are more than 12,000 sworn officers on the force, and most of them made no arrests for these charges in that three-and-a-half year period. But the Reporter was able to identify 23 officers who made five or more arrests for aggravated battery or aggravated assault to a police officer. Nearly all of them were in the top two percent of Chicago police officers for using force. On average, these officers used force more than 7.5 times as often as a typical officer.

“This is not something unique to Chicago,” said Katz, the mayor’s public safety deputy who used to be the independent police auditor in San Jose, Calif. “Those two indicators do follow each other relatively closely.”

Of course, policing is a perilous job that can bring officers into contact on a daily basis with people who are agitated or angry, at best, and dangerous, at worst. The fatal shooting of Commander Paul Bauer in downtown Chicago last February is a tragic, but rare, example of what can happen when officers confront armed suspects.

But in more than 90 percent of battery and assault of a police officer cases, the suspect was unarmed.

Brian Burg and Bryan Zydek, former partners in the Englewood District who came up in the same recruit class in 2007, are among the 23 officers with the most arrests for potential cover charges. Their arrests are emblematic of how officers escalate relatively minor situations, use force to make an arrest, then file charges that seem to justify their conduct.

Together, they arrested five people for aggravated assault to a police officer and resisting arrest between June and December 2015. Zydek arrested another person for aggravated assault that December, two more people for aggravated battery to a police officer the following March, and yet another person for aggravated assault in March 2017, bringing his total number of arrests for these charges to nine in three-and-a-half years.

The narrative of an arrest made by officer Brian Burg and Bryan Zydek show how a simple drinking ticket escalated into an aggravated assault of a police officer and resisting arrest charge.

Three of these arrests started when the officers stopped someone for drinking on the public way, a simple municipal code violation. When the person didn’t immediately comply with the officers’ commands, Burg and Zydek moved to arrest them, escalating the situation.

In two cases, the arrestees had to be taken to the hospital for injuries suffered during the arrest. In four of the cases, all of the assault and battery to a police officer charges were ultimately dropped. In the others the defendants pleaded guilty, mostly to less serious charges.

Lopez, the former DOJ official, said if CPD reviewed these types of arrests, it could help the department flag officers who are using too much force too often. She said supervisors should be closely reviewing the types of arrests that are typically used as cover charges and take immediate corrective action against officers if they bring charges that aren’t backed by evidence.

“I think this is actually one of the easier problems in policing to change, because it’s readily identifiable and you can easily send the message to officers that it’s not acceptable,” she said. “It will flourish where it’s tolerated, but where it’s not tolerated, you can put an end to it.”

But she also knows her prescription may not sit well with officers.

“Officers have to understand that some people are going to be obnoxious and are going to be big jerks to you, and part of being a police officer is taking that,” she said. “That’s something that a lot of officers have trouble with.”