The Edge of Remarkable, Chicago’s City Council Wants to Say “No”

Most often, the Chicago City Council is an unremarkable legislative body that does as it is instructed to do by the reigning mayor. On Friday, the council’s Public Safety Committee was expected to rubber stamp the mayor’s selection of Andrea Kersten, as the permanent head of the city’s Civilian Office of Police Accountability (COPA). However, in a rare Chicago moment, the council is poised to say “no” to the mayor on a key city appointment. Ms. Kersten is currently the interim head of COPA, a low-regarded oversight agency, and she was previously its chief investigator. She is most notorious for her November 2021 release of an investigation that included a recommendation to suspend slain Chicago Police Officer Ella French.

Estimated reading time: 21 minutes

What Was Supposed to Happen in the City Council on Friday

The priority item on the agenda for Friday’s Public Safety Committee meeting was a vote to approve the nomination of Andrea Kersten as the permanent Chief Administrator of COPA. From there, the nomination was supposed to be scheduled for final approval by the full city council. The fact that the committee was to actually vote on Kersten’s nomination was made clear in the opening comments from the committee chair, Alderman Chris Taliaferro (29th Ward). The intent to vote on the nomination was further punctuated by an exchange between the chairman and Alderman Jason Ervin (28th Ward). This exchange occurred at the beginning of the debate on the nomination and before Ms. Kersten addressed the committee.

Clip 1 From COC Video: City Council Committee Chairman makes clear a vote on the COPA Chief Administrator nomination to occur at the conclusion of the session’s debate. The full video of the Public Safety Committee meeting held via Zoom on 21 Jan 2022 is available here.

Background on COPA and Its Previous Agency Iterations

For those who do not intensely follow the “policing in Chicago” discussion, a key point bears noting. COPA is the 2017 re-invention of its failed agency predecessor, the Independent Police Review Authority (IPRA). IPRA was itself a 2007 reinvention of another failed predecessor civilian investigative body, the Office of Professional Standards (OPS). All three versions of the agency have been tasked with conducting investigations into serious allegations of police misconduct – particularly with respect to the use of force. What many do not remember is that from 2002 to 2004 Mayor Lori Lightfoot was the head of OPS. That part of her resume is rarely highlighted.

OPS, IPRA, and COPA have not only been found to be lacking by police reform advocates, police officers and officials have also long held the agency in low regard (by whatever name of a “rose”). On the whole, these agencies have lacked core competencies relative to the policing profession. Investigative files have often been found lacking during the command channel review process, and the cases that result in sustained findings have at times suffered from a combination of randomness and associations with local politics. There is also a long history of OPS/IPRA/COPA penalty recommendations being reduced or overturned by the city’s Police Board. Some investigators from these agencies have held an anti-police bias, and there have been instances of leaking case information to others – including the media and attorneys seeking civil suits against the city. Chicago’s Inspector General (IG) found evidence of such misconduct in a 2016 IG examination of an IPRA investigation.

What also is not widely known? While COPA holds itself above the Chicago Police Department (CPD), as the successor to IPRA, COPA is under the same consent decree that established federal court monitoring over CPD. It has long been said that justice delayed is justice denied. This is true both for wronged citizens, as well as falsely accused police officers. Investigations assigned to COPA (aka, IPRA and OPS) regularly linger many months, and cases open for years are not uncommon. Such non-urgent responses extend long past the six-months investigative standard established by city ordinance. Long-lingering IPRA (and now COPA) investigations were among the criticism of the U.S. Department of Justice in their 2016 patterns and practice investigation of policing in Chicago. Mayor Lightfoot is even among those critical of COPA’s continuing case delays. Ms. Kersten was forced to acknowledge this long history of backlogged cases at OPS/IPRA/COPA in a July 2021 “Chicago Tonight” interview.

Background on the Kersten Nomination

Even before Friday’s committee meeting, opposition within the city council to Kersten’s nomination was widely known. Also known is that while Mayor Lightfoot has tried to shove this nomination through the council, Kersten’s nomination was previously shoved onto the mayor herself. In May 2021, the Chicago Sun-Times reported on how Ms. Kersten came to be appointed by Mayor Lightfoot as the interim head of COPA. The Sun-Times described Kersten’s appointment as the mayor “bowing to pressure from police reform advocates.” The pressure reportedly came from both among staff within COPA and externally among activists.

Ms. Kersten was appointed as the interim head of COPA by Mayor Lightfoot in May 2021. The 17 November 2021 timing of the mayor’s formal appointment of Ms. Kersten, requiring council approval, is interesting. One might even say it sufferers from “the height of tone deafness.” Such is the exact same criticism the mayor leveled against Ms. Kersten just days earlier.

The mayor’s criticism of Ms. Kersten came in the aftermath of the release by COPA of a three-day suspension recommendation for Police Officer Ella French, who had been murdered in August 2021. The release and the manner of that release was overseen by the mayor’s interim head of COPA – Andrea Kersten. Additionally, Ms. Kersten had previously approved the investigation that held this flawed recommendation while she served as COPA’s Chief of Investigative Operations.

FOX 32: Lightfoot outraged over COPA suspension recommendation for slain officer | Posted 12 Nov 2021

In the immediate aftermath of COPA’s “tone deaf” defiling of a slain officer’s memory, 20 of the city’s 50 alderman sent a letter to the mayor. In that 16 November 2021 letter, the alderman made clear their assessment that Ms. Kersten should not continue to lead COPA. Secure 1776 salutes these members of the city council who wrote in part:

“In these days of civil unrest and rising crime, we need someone at the helm of COPA who possess the emotional and practical intelligence to navigate the many volatile situations that they will face in this role.”

“Interim Chief Administrator Kersten does not have what it takes to be at the helm of COPA as demonstrated by her release of this report. To name her Chief Administrator of COPA would be not only detrimental to our City and its people, but an insult to the memory of Officer French and her brothers and sisters in blue.”

And yet – the very next day – Mayor Lightfoot sent the council her formal nomination of Ms. Kersten to lead COPA permanently. If not “tone deaf,” the mayor’s dismissive response to the concerns of 20 council members was clearly arrogant.

Why is Mayor Lightfoot’s Criticism of COPA’s Handling of the Officer French Incident Particularly Relevant?

Well because Lori Lightfoot was previously the head of OPS. In that role she became intimately aware of a process known as “command channel review.” When an OPS/IPRA/COPA investigation is completed it is forwarded to the CPD Superintendent for review. In most cases, prior to review of the superintendent, the investigative file is first sent to the chain of command within CPD that is responsible for the accused members. It is not uncommon for that process to recommend additional investigation, alternate investigative conclusions (findings), or alternate penalty outcomes. Such is a core component of the due process rights of the accused officers.

A key defense offered by Ms. Kersten, to her “tone deaf” debacle of a suspension recommendation for a murdered police officer, was she had “no choice.” Ms. Kersten sought to deflect from the criticism by a sleight of hand using the calendar. The COPA investigation (into a February 2019 incident) ended in April 2021. Officer French was murdered on 7 August 2021. However, at the time of her murder, Officer French had not yet been served notice of COPA’s findings against her. The review and notification processes of the investigation had not yet been fully completed. COPA did not release the investigation and suspension recommendation until 10 November 2021. Additionally, Mayor Lightfoot took specific note that Ms. Anjanette Young, the victim in the larger misconduct case, spoke in defense of the now deceased Officer French. There was time, and there were ways, to avoid defiling the reputation of a martyred police officer – if such had been a priority of Ms. Kersten. The mayor said as much in her remarks to the media on 11 November 2021.

So What Did COPA Say Officer French Did Wrong?

In February 2019, Officer Ella French had the misfortune to be sent to assist officers conducting a search warrant. That search warrant was being executed by 11th District Tactical Unit civilian-dressed personnel, who were seeking an illegally possessed firearm and evidence against a known felon. At that time, Ella French was still a probationary police officer (PPO), and not long past her field training. She had no involvement in the securing of the search warrant, and was not tasked with verifying its underlying information. She and Police Officer Jose Villa were working beat patrol, and shortly before the search warrant’s execution they were then assigned to assist the tactical team. The role assigned to Police Officer Villa and Probationary Police Officer French was to provide a visible uniformed presence. Such is a required safety procedure during such search warrant execution under CPD policy.

The tactical officers were acting on information from an informant, who it was only later learned had given the police the wrong address. It bears noting that the source of the information swore to the truthfulness and accuracy of the information before a Cook County judge. Nonetheless, it was Chicago police tactical officers who executed the faulty warrant and forced entry into the home of Anjanette Young. Ms. Young was naked at the time. Body-worn camera video of the February 2019 raid drew extensive media attention and widespread criticism. Ms. Young was not involved in any criminal activity, and the felon in question lived on the next block. It is fair to interpret that by December 2020, pressure was being applied by the mayor on COPA to reach findings and penalty recommendations responsive to the criticism.

COPA Anjanette Young Investigation: From Page 8 – Allegations Against Then P.P.O. French.

Secure 1776 highly recommends reading our detailed post from 12 November, which covers the failed search warrant, as well as what turned out to be an unrelated encounter behind Ms. Young’s residence. That post provides our full examination of COPA’s investigative summary file. From that review, it is clear that the investigative findings against Officer French absolve her of all allegations of misconduct directly related to Ms. Young. Additionally, the sustained findings involving Officer French related to a police encounter behind Ms. Young’s residence and consisted of two relatively minor procedural infractions.

COPA’s Investigative Findings Relative Officer French:

COPA’s investigative summary indicates their contention that Officer French committed one minor equipment infraction, as well as one documentation infraction. However, both of these conclusions merit further consideration. First, both of these findings stem from an encounter with an “unknown male subject.” Tactical officers initially thought this subject may have been the person that was the target of their search warrant. This was not the case, and Officer French was not the officer who actually stopped the “unknown male subject,” nor did she actually interact with this person. Additionally:

  • COPA’s own investigation confirmed that once within the Young residence, Officer French did properly utilize her body-worn camera (BWC).
  • As noted in the COPA summary, the manner in which Officer French came to be in proximity to the stop of the “unknown male subject” was unexpected. Given Officer French’s level of inexperience and likely first-time assistance in a search warrant, her delay in starting her BWC was most likely an oversight, and not deliberate misconduct.
  • Relative to the completion of an Investigatory Stop Report (ISR) for this encounter, a tactical officer (Michael Donnelly) by his own statement was responsible for ensuring the completion of the ISR. He admitted he failed to do so. Fixing “blame” for Officer Donnelly’s failure on P.P.O. French is unreasonable. She is not described as playing any active role in the stop, and she was not Officer Donnelly’s partner. Further, P.P.O. French could have reasonably concluded the tactical personnel (particularly Officer Donnelly) intended and would subsequently properly document the encounter.
  • The then unknown male subject never alleged any misconduct by the police during the encounter. Secondly, even after COPA identified this person, he made no complaint and did not cooperate with the COPA investigation.
  • Further, this encounter was only indirectly related to the allegations actually involving Ms. Young. Had the Young residence been the correct address, these lesser procedural and documentation accusations involving Officer French would have received far less notoriety.

Secure 1776 contends COPA should not have recommended any sustained finding against Officer French for Officer Donnelly’s failure to complete an ISR. As such that would leave only a need for a penalty recommendation relative to the timeliness of Officer French’s BWC activation that night. Based upon the totality of the circumstances, had Officer French not have been murdered, the matter could have been resolved with a reprimand. Such would have been an appropriate recommendation for any probationary officer with no disciplinary history – who was still alive at the time any approved penalty was to be implemented.

In 2019, such minor BWC activations were generally handled by counseling. In short, the suspension recommendation for the minor infraction involving Officer French was unreasonable. As noted in Friday’s committee meeting by Alderman Anthony Napolitano (41st Ward), COPA has a demonstrated propensity for seeking disciplinary outcomes that are disproportionate to the conduct of the involved officers. Given Ms. Kersten’s leadership role within COPA over the past four years, she bears more than some responsibility for such overreach.

Among the interesting exchanges during Friday’s committee meeting dealt with body cameras. Alderman Silvana Tabares (23rd Watch) questioned Ms. Kersten about her own experience with use of force (UOF) simulation training, as well as the wearing and activating of a body camera. Given COPA’s focus on the judgments made by officers in UOF situations, as well as how consistently officers – including Officer French – activate their BWC’s consistent with the law and department policy, Secure 1776 finds these questions particularly insightful. As it turns out, Ms. Kersten has no experience with either technology. She has not participated in any UOF simulation training. Additionally, she has never been trained in the use of a BWC and has never worn or activated one. It would seem she is neither an expert in the decision making of when to use force in real-life or simulated UOF situations, nor is she knowledgeable in the actual operation of body worn camera technology.

Clip 2 From COC Video: Questioning to Andrea Kersten by Alderman Silvana Tabares regarding Ms. Kersten’s Use of Force Simulator and Body Worn Camera experience. The full video of the Public Safety Committee meeting held via Zoom on 21 Jan 2022 is available here.

Given the many simultaneous demands on field officers, it is reasonable to question as to whether Ms. Kersten is qualified to assess whether Officer French engaged in misconduct or simply made an error in her delayed BWC activation in February of 2019.

So What Else Happened at Friday’s City Council Committee Meeting?

In Ms. Kersten’s opening statement to the Public Safety Committee, she sought to get those council members opposed to her nomination to move past her mishandling of the Officer French suspension recommendation. Ms. Kersten indicated that to “build trust” she must be willing to “take responsibility” for her actions. She acknowledged that there was council opposition to her nomination. She identified that much of the opposition was based upon her handling of the Anjanette Young case and COPA’s release of their investigative report recommending a suspension for fallen officer Ella French. Kersten stated she has “profound sadness” that the “work of our agency has in any way hurt the French family and those who mourn for her.” She added: “There is more that COPA could have done to message publicly the timeline of the investigation and the circumstances of Officer French’s inclusion in our report.” Ms. Kersten left unstated as to what taking “responsibility” consisted, as she remained committed to seeking appointment as COPA’s Chief Administrator.

Clip 3 From COC Video: Regarding Officer French from the opening statement by Andrea Kersten to the committee on her nomination to serve as COPA Chief Administrator. The full video of the Public Safety Committee meeting held via Zoom on 21 Jan 2022 is available here.

It bears restating that Ms. Kersten’s concern for the French family, and the memory of a slain and heroic police officer, came only after widespread condemnation of her and her agency relative to this incident. On 10 November 2021, the press release issued by COPA, regarding the release of its findings in this matter, made no mention whatsoever of Officer French.

COPA: 10 November Press Release Relative to the Anjanette Young Investigation.

Continued Counsel Challenges and Opposition

While expressing regret, Ms. Kersten continued to assert that the release of the report, with the suspension recommendation, was unavoidable. Such remains a disputed assertion. Nonetheless, she offered the city council no explanation as to why in November she did not then at least provide obvious additional context, nor why no outreach to the French family was attempted. Several actions were clearly possible. As Ms. Kersten now acknowledges, COPA could have attempted to meet with Officer French’s family prior to the public release of their investigative summary and findings. Additionally, COPA’s press release could have included:

  • Acknowledgement of the fact that Officer French was cleared of all allegations dealing directly with Ms. Young, as well as a clarification that she played only a minor role in the “behind-the-residence” brief encounter where COPA did sustain findings against her.
  • An indication that Officer French was murdered before her due process appeal rights had been exercised, and that as such, no penalty from the investigation will ever be placed in Officer French’s disciplinary record.
  • A statement honoring the sacrifice of Officer French, who had her life stolen from her in willing service to the citizens of the City of Chicago.

Challenging the “Nothing Could Be Done” Narrative

Alderman Tabares appeared to directly challenge Ms. Kersten’s after-the-fact claims of concern. In her questioning of Kersten, Alderman Tabares remarked: “What I am hearing is that you didn’t look at any potential options to spare (the French) family any grief from this debacle, knowing this report was on the horizon.”

Alderman Patrick Thompson also pushed back on Kersten’s claim that nothing could have been done about the report’s findings and release. Kersten sought to convince Alderman Thompson that COPA’s report “in no way impugns the hero that she is or the legacy she leaves behind for the city.” Kersten provided an additional assertion, in an apparent attempt to minimize the damage COPA caused with respect to Officer French. She said: “Good officers make mistakes, and they take responsibility, and they move on in their careers to do better and do it differently. That’s what we are asked to do at COPA. That’s what Officer French did in this situation.” Given that officer French was murdered before she was served with COPA’s findings and penalty recommendation, it is implausible that Kersten’s assertion here applied.

Alderman Notes Pattern of COPA Overreaching

Alderman Napolitano made clear his opposition to the nomination. He stated his determination that Ms. Kersten’s approach to discipline – particularly her frequency to recommend termination – was disqualifying for the position. Alderman Napolitano expressed that he “gets why” COPA was created. He sees the mission of the agency as being to “seek justice” and address “wrongdoing.” However, he believes “this appointment (of Ms. Kersten) is more of a hatchet, cutting off the head of the police department.” The alderman expressed his fear that COPA is killing officer morale and discourages new applicants from becoming police officers. According to the alderman, the message being projected by COPA is one that says, “no matter what you do in that uniform, you are going to be pushed for termination.” The alderman cited two cases of particular concern.

  • The first case stemmed from a 2018 use-of-force incident – not long after the city expanded its BWC program. In that incident, Police Officers David Taylor and Larry Lanier responded to a call of a “man with a gun.” Upon the officers locating the armed subject, that individual refused to drop his firearm, threatened, and fired at the officers. The officers subsequently shot and killed the offender. Even though the officers were found to have been justified in their use of deadly force, Ms. Kersten signed-off on COPA’s recommendation to terminate the officers for having failed to properly activate their BWCs. CPD Superintendent David Brown did not concur with COPA’s termination recommendations, indicating their violations merited reprimands only. It bears noting that in September 2021, Federal Judge Joan Lefkow dismissed a federal suit against these officers in this case based on the fact their use of deadly force was lawful.
  • The second case involved Officer Eric Stillman and the highly-publicized and tragic shooting death of Adam Toledo, then 13-years-old. Officer Stillman and his partner in March 2021 responded to a SpotSpotter alert. POD Camera and private video make clear that Toledo was with another subject, later identified as Ruben Roman, a 21-year gang member with a history of weapons violations. At about 0235 Hrs, Roman fired multiple shots at a passing car. Roman subsequently passed the firearm to Toldeo, and both subjects fled, as Officer Stillman and his partner arrived on the scene. Following a foot pursuit, Toledo was shot once, as he was turning toward Officer Stillman, and a literal fraction of a second after Toldeo tossed the pistol from his hand. BWC video shows a clearly devastated Officer Stillman following the shooting. Alderman Napolitano reported that COPA continues to hold this case in a “pending investigation” status, and suggested that there are political pressures seeking a termination recommendation in the case.
Clip 4 From COC Video: Remarks by Alderman Anthony Napolitano regarding the nomination of Andrea Kersten to serve as COPA Chief Administrator. The full video of the Public Safety Committee meeting held via Zoom on 21 Jan 2022 is available here.

The Community Commission for Public Safety and Accountability

In his final comments, Alderman Napolitano also questioned the appropriateness of moving forward with the Kersten nomination outside of the revised police accountability process approved by the city council in July 2021. While the city is behind the 1 January 2022 target date established by city ordinance, a new interim Community Commission for Public Safety and Accountability has been created. Going forward, it is the new commission, not the mayor, that is tasked with appointing the Chief Administrator of COPA, subject to the city council’s approval.

It is interesting, that a mayor who campaigned on creating such a commission does not seem eager to implement that approach.

Parliamentary Gamesmanship

As the committee meeting progressed, it became clear that Ms. Kersten’s nomination was in trouble. Following the questioning from his fellow council members, Chairman Taliaferro announced a five-minute recess. When the committee was back in session, fearing the nomination was headed to a defeat, the vote on the nomination was canceled. There was no debate on the chairman’s maneuvering to shelter Ms. Kersten and Mayor Lightfoot from an on-the-record rejection.

Earlier in the session, Alderman Sposato (38th Ward) made clear that he would do all that he could to gather 26 votes (a council majority) to defeat the nomination. With the voting blocked, he vehemently objected to the chairman’s unilateral action. Speaking to Alderman Taliaferro, Sposato challenged: “Chairman, this is not right. We … I’ve been in meetings all day. Been in this meeting an hour and 45 minutes. Now, we know what’s going on. Now, we know we don’t have the vote and this is what we’re gonna try to do. This is wrong. I’m very disappointed in the whole process here. Everybody is behind this. This is wrong. We should be voting now. … Now, after an hour and 45 minutes, we’re gonna hold this because we don’t have the votes. I’m sorry. I’m pissed off. This is wrong.”

Clip 5 From COC Video: Alderman Nicholas Sposato’s objection to the committee chair blocking the committee’s vote likely rejecting the nomination of Andrea Kersten to serve as COPA Chief Administrator. The full video of the Public Safety Committee meeting held via Zoom on 21 Jan 2022 is available here.

The objection from Alderman Sposato was noted, but the committee’s vote on the nomination was tabled by Chairman Taliaferro without further discussion.

We Have Seen This Movie Before – Not Remarkable Is Most Likely

Last fall the Chicago City Council also acted as if it would assert its theoretical power to say “no.” Twice in October 2021, opposition among city council members sought to end Mayor Lori Lightfoot’s city employee ultimatum of forced Covid-19 vaccination or termination. Both times, in the end, the city council proved itself to be unremarkable, and a majority of the members acquiesced to the mayor’s position. While a court-ordered stay of the mayor’s mandate is currently in effect, the court has only compelled the city to follow the arbitration process with the CPD’s sworn member unions.

What is the most likely outcome following the mayor’s committee chairman having tabled the Kersten nomination? Well if the votes to confirm the nomination appear, it will rocket forward very quickly. But, if the votes are not there, do not expect the vote on the nomination to ever be called. In that event, it is most likely that the mayor will retain Ms. Kersten indefinitely as an interim appointee – at least through spring or whenever the new Community Commission for Public Safety and Accountability actually takes form.

Relative to Chicago’s politics, it is always more likely that we will experience the “spectacle Chicago” outcome, rather than the “remarkable Chicago” one. We sincerely thank the alderman who continue to push for the remarkable.

Do the complications in Ms. Kersten’s appointment perhaps provide any insight into another key personnel matter? Well, that question falls within the “cops ask questions” realm. The Kersten nomination could explain how David Brown continues to serve as police superintendent. It seems the mayor is in no hurry to begin a new and uncertain selection process for the next superintendent.

We are interested in your thoughts, and invite you to comment below.

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