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In many police cases, Rahm Emanuel administration chooses secrecy

A new MSNBC review of police misconduct cases finds Chicago officials routinely maximize secrecy – going far beyond what the law requires.

The crisis facing Chicago Mayor Rahm Emanuel shows no sign of abating, with protesters rejecting his new apology for police shootings and some state legislators proposing a plan to recall the mayor. 

Beyond Emanuel’s recent firing of police leaders, critics say the city needs more systemic reform to address the secrecy, cover-ups and lax accountability that define police oversight in the city. As for transparency policies, a new MSNBC review of police misconduct cases finds Chicago officials routinely maximize secrecy – going far beyond what the law requires, and pursuing arrangements to keep evidence secret when settling cases with victims of police brutality.

In the dispute that began the current firestorm, for example, Chicago paid $5 million to the family of Laquan McDonald, the 17-year-old shot 16 times by police last year. That settlement deal did not simply avoid a public lawsuit, however, it also required the crucial video of the shooting remain secret. 

Under the deal, the city required McDonald’s family and lawyers “not to publically release, disclose or disseminate” the video until all of the pending criminal investigations were complete, which can take years. 

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“It’s absolutely hush money,” said David Yellen, Dean of Loyola Law School in Chicago. 

“Police organizations are working to shield their officers,” added Yellen, who was appointed by a local judge to review cases of torture by Chicago police. 

In basic legal disputes between private parties, it is fairly common for settlements to include an agreement that both sides will keep details confidential. When one side pays to end a legal battle, part of what they’re “paying for” is an end to the controversy in and out of court.

But that’s a far cry from cases alleging police misconduct, where the defendants are not the ones paying for the settlement. 

It is Chicago taxpayers who spent a whopping $521 million on police settlements in the 10 years through 2014 – more than most other cities. 

Civil rights lawyers say that while individual families may have good reason to accept money and move on, the collective result is that many cases of misconduct remain shrouded in secrecy.

“For many clients, it's a matter of agreeing to keep it quiet or lose the money," said Flint Taylor, a prominent Chicago attorney who has represented victims of police brutality.  

“We try to fight it and we absolutely don't agree with it,” he told MSNBC, “but sometimes clients just want closure -- even though they know what they have could expose a police brutality.” In his lawsuits against the police, Taylor said the city pushes hard for secrecy clauses, and that’s often the bargaining chip that his clients have to give up.

WATCH: Chicago Mayor apologizes for Laquan McDonald shooting

Taylor says the element of “keeping it under wraps" is often the main bargaining chip that the city is willing to pay for – the payment is to avoid the potential public embarrassment of a trial.

Under Chicago’s approach, that potential embarrassment is curtailed as much as possible. In about 160 police misconduct cases last year, fewer than 10 were actually resolved in open court before a jury. 

While courts may issue protective orders keeping video evidence confidential, which was the case for a period of time in the Johnson case, there is no law requiring blanket secrecy. 

The recent reversals by Emanuel and prosecutor Anita Alvarez to back the release of some videos of shootings in open cases illustrate the point that it is often up to city officials to decide whether to hold or release key information in case.

Still, whatever officials decide, defenders of the confidentiality clauses say police should be able to advocate for their interests in a settlement like any other litigant. 

Police sources stress that settlements are, by definition, voluntary, two-sided arrangements. In other words, if victims of police brutality prefer to take their case to open trial, they don’t have to settle for money early. 

Chicago officials also argue the road to settlements is a public process -- even if the evidence is secret.

“Police settlements of more than $100,000 are discussed in an open meeting of the Committee of Finance, and then presented to the full City Council for approval,” said Bill McCaffrey, a spokesman for the Chicago Law Department, which represents police and city officials.

“These meetings are open to the public and routinely covered by media,” he told MSNBC, emphasizing that there is no attempt to prevent open debate of the settlement proposals themselves.  

The mayor's office did not respond to MSNBC's request for comment.

Indeed, it is that very process that has come under increasing scrutiny in the current dispute. Mayor Emanuel even took the step of outlining why the McDonald settlement was “in the city’s best interests,” and not a “cover-up,” in an op-ed last week

Jamie Kalven, the writer who originally sued for release of McDonald’s autopsy, says the public interest in transparency should trump the interests of individual defendants in settlements. "These agreements are self-serving,” he said, “they are used to make the case go away, which supports the institutional conditions that keep enabling brutality."

Kalven also argues that a process which ensured release of evidence would serve the majority of police officers better, because it would reduce the internal pressure on other officers to cover up police misconduct.

“If correct information comes out in a timely fashion,” Kalven told MSNBC, “then there is no false narrative and an ensuing cover-up." 

That problem allegedly arose in several of the current controversies, where officers who did not pull the trigger in the actual shootings later provided false statements about them. Several police statements in the McDonald and Johnson case, for example, have now been contradicted by the released video. In addition, prosecutor Anita Alvarez took the highly unusual step of announcing, at her press conference regarding the Johnson case, that people should not believe statements about police conduct made by their union spokesman, an apparent reference to Pat Camden. 

That unusual, public sniping between the top prosecutor and police – who are usually closely aligned – suggests how the mounting pressure is scrambling business as usual in Chicago. Some law enforcement sources suggest that while Superintendent Garry McCarthy took the fall for the handling of the McDonald case, the buck should stop with Emanuel.

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Bernie Kerik, a former NYPD Commissioner who oversaw McCarthy, said he doesn’t believe “McCarthy concealed the video from the Mayor.” Kerik told MSNBC McCarthy “would not do something like that.”

As for policy reforms, Emanuel has largely pointed to his new task force, which will submit ideas next year. But he could change Chicago’s secrecy policies now, unilaterally, since it’s primarily his administration’s lawyers who push for secrecy clauses in settlements.

Paul Butler, a former federal prosecutor, says the mayor “could set a new policy” on his own to limit or completely ban secrecy agreements.

Illinois State Rep. Mary Flowers, who introduced a proposal to recall Mayor Emanuel Wednesday, listed his approach to settlements among her reasons for opposing the mayor.  “He wants to spend the taxpayer’s dollars without any accountability,” she said. “The five million we paid for Laquan,” she added, “could have been to put more teachers in the classroom.”