In an effort to help a West Morgan Park man have his historic jury award reinstated by an appellate court, two former police superintendents released a statement saying they would have fired the officer accused of shooting his friend.
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CHICAGO-In an effort to help a West Morgan Park man have his historic jury award reinstated by an appellate court, two former police superintendents released a statement saying they would have fired the officer accused of shooting his friend long before the incident but the city’s procedures prevented them from removing problematic cops from the force.
Former Chicago Police Department leaders Garry McCarthy and Jody Weis blasted the city for what they said was failing to punish bad officers and instilling a sense of impunity among their ranks. The pair also said the city’s argument that it cannot be held responsible for an officer’s off-duty behavior is both legally and morally untrue.
McCarthy is working as a paid consultant for victim Michael LaPorta’s attorneys as they push an appellate court to restore his $44.7 million award against the department. McCarthy asked his predecessor Weis, who said he has no financial relationship with LaPorta’s team, to join him in signing the letter.
“When called out, (the city) shields itself by characterizing its off-duty officers as monsters out of their control,” the statement says. “Yet, they ignore the reality that they created and unleashed these monsters by stripping the power away from those who have the means to stop them. The City, just like those officers, must be held to task.”
McCarthy was fired in late 2015 as part of then-Mayor Rahm Emanuel’s damage control efforts following the public release of video showing Chicago police Officer Jason Van Dyke killing Laquan McDonald.
Weis was superintendent in January 2010, when the city’s independent investigators say Officer Patrick Kelly shot childhood friend LaPorta with his service weapon after a night of heavy drinking. McCarthy was superintendent in July 2013, when Kelly repeatedly shocked a pregnant woman with a Taser. The woman, who lived in the Back of the Yards neighborhood, suffered a miscarriage and later settled a police misconduct lawsuit against the city for $500,000.
Neither McCarthy nor Weis had the power to fire Kelly for those incidents, and the city’s police oversight agencies did not recommend he be terminated at that time. Both men put or kept Kelly on desk duty at some point during their tenure, one of the few options available to them.
Weis told the Tribune on Monday that police chiefs in most major cities are incapable of firing bad officers, leaving them hamstrung to confront systemic misconduct.
“I would go to the Major Cities Chiefs Association conferences and, at every single one, somebody would bring up the frustration of being (unable) to fire problematic officers,” Weis said.
Kelly’s lawyer fired back at the former superintendents, calling their statement “unprecedented” and accusing them of interfering with Kelly’s pending termination case, which went before the Chicago Police Board last month. Attorney Laura Morask, a former Cook County prosecutor, noted that McCarthy signed off on a 60-day suspension for Kelly after the city’s independent review agency cited the officer for failing to secure his gun, off-duty drunkenness and conduct unbecoming an officer the night of the LaPorta shooting.
“I am extremely disappointed that such notable experienced former superintendents would write what essentially amounts to a ‘hit piece’ of unsubstantiated allegations that were not and are not of record in the pending matter before the Police Board,” Morask said. “What disappoints is exacerbated by the fact they must have known this well-publicized matter was tried (by the Police Board) a few weeks ago and their ‘letter’ could be seen as an attempt to get their opinions and unproven claims in front of the trier of fact.”
McCarthy’s newfound involvement comes after a two-judge appellate panel overturned the award in LaPorta’s civil case against the city in late February. LaPorta’s attorneys now are asking the entire appellate court to weigh in on the case.
In keeping with a federal rule that describes such requests as “not favored,” the 7th U.S. Circuit Court of Appeals rarely grants those petitions.
A 24-page opinion written by Chief Judge Diane Sykes and joined by Judge Michael Kanne held that while LaPorta suffered grievous, life-altering injuries, the “legal theory for holding the city liable is deeply flawed.”
“When Kelly shot LaPorta, he was not acting as a Chicago police officer but as a private citizen,” the opinion stated.
McCarthy and Weis argue that it’s impossible to separate a cop’s on-duty and off-duty behavior. As long as the courts refuse to hold the city accountable, officials will continue to look the other way and true police reform will never occur, the former superintendents wrote.
“Without accountability on those with the authority, there is no incentive for change,” they wrote. “Waves of officers like Kelly will continue to act with impunity, public confidence in the police will continue to erode, and all of us in the community will continue to suffer in the wake.”
In his consultant role, McCarthy helped coordinate an amicus brief — a legal document voicing support for LaPorta — from three former law enforcement executives. But Sykes, who reportedly was on then-President Donald Trump’s U.S. Supreme Court shortlist, rejected it, as well as a joint brief from the Chicago Alliance Against Sexual Exploitation, Illinois Coalition Against Domestic Violence and Women’s All Point Bulletin.
The denial, McCarthy said, led to his decision to speak out.
The domestic violence organizations had argued Sykes’ ruling will give cities an excuse to ignore officers who engage in violent behavior when not in uniform. City attorneys did not oppose the briefs’ submission, court records show.
“The outcome of this case implicates whether and to what extent municipalities are liable for policies and practices that cause off-duty officer violence, including officer-involved domestic violence,” the domestic violence groups wrote in urging Sykes to allow their voices to be shared with the entire court. “As the brief points out, a consequence of the panel decision will be to immunize police departments for policies and practices that enable and promote off-duty domestic violence.”
LaPorta’s attorneys wanted the supportive briefs to be allowed as they ask for the entire appellate panel to review the decision that tossed out the lawsuit verdict. In that request, LaPorta’s attorneys argue that Sykes’ decision overturned previous precedent and needs to be considered by all the judges.
“It would have been optimal if both amici had been accepted, so that the 7th Circuit could understand the breadth of the issue that they are facing,” LaPorta’s attorney Tony Romanucci said. “I trust, with or without the amici briefs, the 7th Circuit will be fair and just when it considers the issues that are before it.”
A spokeswoman for the city’s Law Department could not be reached for comment.
A 2017 Tribune investigation found Kelly has been declared mentally unfit for duty twice during his turbulent career, arrested two times, received about 20 misconduct complaints and was accused of beating a girlfriend. He received a 60-day suspension for off-duty drunkenness, failing to secure his gun and conduct unbecoming an officer the night LaPorta was shot.
The city — which has paid attorneys millions of dollars over the past decade to argue LaPorta shot himself near the back of his head with Kelly’s gun — now says Kelly pulled the trigger and is trying to fire him. The Chicago Police Board is weighing its decision.
“If given the opportunity and the authority, we’d have terminated Kelly long before shooting LaPorta,” wrote McCarthy and Weis, the former superintendents. “Instead, the City’s investigative agency ... overturned a disciplinary recommendation after Kelly beat his girlfriend with a box fan in 2005 and never once disciplined him prior to the shooting. Now, 11 years after shooting LaPorta … the process of merely disciplining an abusive officer has become a decadelong, bureaucratic nightmare.”
In 2017, a federal jury awarded LaPorta $44.7 million — the largest award for a police misconduct case in Illinois history — after determining that the department failed to discipline or identify Kelly as a problem before he shot his friend. LaPorta survived a bullet that splintered and ricocheted around his brain, though he can no longer walk and requires round-the-clock care.
Kelly denies the allegations, including that he was drunk that night. He repeatedly has testified he only drank four light beers over several hours. The Illinois State Police determined that he was two to three times the legal limit when the shot was fired.
©2021 Chicago Tribune. Visit chicagotribune.com. Distributed by Tribune Content Agency, LLC.
On Friday morning, Vox’s election-calling partner, Decision Desk, called that Joe Biden has won the state of Pennsylvania — and that he therefore has won enough electoral votes to win the presidency.
Other election-calling operations, such as the Associated Press and those at the major television networks, have not yet done the same.
“The race is over, as far as our call is concerned, because of the vote totals coming out of Philadelphia this morning,” Drew McCoy, the president of Decision Desk, tells me in an interview. “It became pretty obvious that as the remaining votes across the state and in Philadelphia are counted, Biden’s lead will continue to grow.”
That’s for a few reasons. First, according to the state, there are at least 30,000 mail ballots in Philadelphia remaining to be counted (and potentially more in-person Election Day votes there as well). “Biden’s consistently winning Philly’s vote with 80-plus percent, sometimes as much as 87 percent in some drops,” McCoy says. On top of that, there are another 30,000 mail ballots in Allegheny County that remain to be counted, and mail ballots there have also gone heavily to Biden so far.
Decision Desk HQ projects that @JoeBiden has won Pennsylvania and its 20 electoral college votes for a total of 273.
Joe Biden has been elected the 46th President of the United States of America.
Race called at 11-06 08:50 AM EST
All Results: https://t.co/BgcQsEyt3j
“But it’s not simply just the locations or the numbers, it’s the types” of votes remaining to be counted, McCoy continues. That is: much of what’s left to count are mail ballots. And so far, mail ballots in Pennsylvania have favored Biden — even in pro-Trump areas.
Considering all that, McCoy says, he is “confident” that when all is said and done, Biden’s lead in Pennsylvania will be above the 0.5 percent margin that would trigger an automatic recount. He estimates Biden will end up winning the state by “probably in the 1 to 2 percent range,” but adds “there’s some margin of error in that.”
Why Pennsylvania isn’t like Georgia (or Arizona)
The call of Pennsylvania for Biden is notable because Decision Desk has not called either Georgia or Arizona — two other states where Biden leads.
“Georgia flipped overnight, but it’s not simply a case of a trailing candidate suddenly leads and we can make a call,” McCoy says. “It’s a very different situation in Georgia.”
The reason: Pennsylvania has tens of thousands more ballots to be counted that we have every reason to expect will only expand Biden’s currently small lead. But in Georgia, the count is nearly — but not quite — done, and Biden’s lead is even smaller (a little over 1,000 votes).
PA Presidential Election Results - Called for Biden (D)
Biden (D): 49.48% (3,297,553 votes)
Trump (R): 49.29% (3,290,989 votes)
Biden Margin: 6,564
Estimated: > 95% votes in
More results here: https://t.co/BgcQsEyt3j
McCoy points out that thousands of overseas and military ballots in Georgia could still remain, as well as provisional ballots. (These are ballots for which there’s some sort of problem with the voter’s information: “Sometimes they’re counted, sometimes they’re not; they’re going to have to be adjudicated,” McCoy says.)
“There’s a real possibility the state could swing back to Donald Trump,” McCoy says. “So that’s not a state we’re going to call. It’s a question about what’s out there.”
Then there’s Arizona, where Biden currently leads by about 1.5 percentage points, and which Fox News and the Associated Press called for Biden days ago. Decision Desk has not yet done the same.
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Vox live results: Joe Biden wins the presidency
“Arizona is a really interesting case,” says McCoy. “What we have counted obviously benefits Biden, but as we’ve seen over the course of two days, the margin has shrunk somewhat. It’s simply a question of wanting to see more. We know that there are substantial ballots out, but they’re different. Maricopa County is not the same as some of the other counties in the state.” (I spoke to McCoy at 10 am Eastern, before Maricopa County released updated vote totals Friday morning.)
An issue here is that unlike in states that dramatically expanded mail voting this year (where Republicans were more reluctant to vote that way), Arizona Republicans had a history of voting by mail and many did choose to do so — but many also seem to have returned their ballots late, and those are being counted now. This is simply not a dynamic evident in Pennsylvania.
McCoy says the numbers in Arizona “are right on the edge, and we think it will be a close race, so given that, we are not in a rush to call it.” He adds that the calls for Arizona from Fox and the AP are “certainly defensible” and that “these folks are professionals,” but that “applying our benchmarks, our tools, we’re saying we need to see more.”
Why recounts are very unlikely to swing the election to Trump
With Georgia and Arizona still uncalled, Biden needs to hold on to both Pennsylvania and Wisconsin to be sure of topping the 270 electoral votes he needs for victory. (Michigan looked close on election night, but the outcome is no longer in question, Biden leads by 2.5 percentage points — nearly 150,000 votes.)
GA Presidential Election Results
Biden (D): 49.39.% ( 2,450,117 votes)
Trump (R): 49.37% ( 2,448,538 votes)
Biden Margin: 1,579 (+483)
Estimated: > 99% votes in
More results here: https://t.co/xlHf7GZUxJ
As mentioned, McCoy and Decision Desk feel “confident” that Biden’s final margin of victory in Pennsylvania will be above the 0.5 percent that would trigger a recount. But what about Wisconsin, where Biden currently leads by 0.63 percent of the vote, and where the Trump campaign has said it intends to ask for a recount? (The campaign has the legal right to request this, though state law says the campaign must pay for it if the final margin is outside 0.25 percent.)
The problem for Trump, McCoy says, is that Biden’s lead in Wisconsin is about 20,000 votes. “That would be an astronomically large number to overturn in a recount.” Asked whether such a thing has ever happened, McCoy responded, “Not that we could find.”
Generally, according to McCoy, if a race is decided by 1,000 votes or fewer, that’s about the “outer reach” of the sort of shift we might expect during a recount. In Wisconsin specifically, the presidential race was recounted in 2016 and the outcome only shifted by 131 votes. (Notably, even Republican former Gov. Scott Walker tweeted that “20,000 is a high hurdle” to overcome in a recount.)
Again, Georgia is a different story — Biden’s lead there is just over 1,000 votes, too close to be totally comfortable. But Biden’s lead in Wisconsin appears large enough to withstand a recount, and his lead in Pennsylvania is highly likely to end up there too.
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