The Black and the Blue

by Matthew Horace

  Cross and a friend, Ryan Cornell, were two blocks from Cross’s house in the West Pullman neighborhood in 2011 when a police cruiser slowed nearby. Cross had just returned to Chicago from a Job Corps work assignment in southern Illinois, where he had earned a certificate for bricklaying. He had signed up for the Job Corps program, his mother said, because he had learned that his girlfriend was pregnant with a boy, and he needed a skill to support them. The officers in the cruiser—Mohammed Ali, Macario Chavez, and Matilde Ocampo—were members of the Mobile Strike Force Unit, charged with making gun and drug arrests in high-crime areas.

  The officers claimed in their report after the incident that they stopped Cross because they saw him “making movements with his hands and body” that suggested he had a gun. The officers ordered Cross and Cornell to show their hands. Cornell, who had been stopped numerous times by the police, did. Cross started walking faster and then bolted across a field. In their final report, two of the officers said that Cross fired three shots as he broke into a sprint. “I saw him bring the weapon towards us,” one of the officers said later, “and I saw a muzzle light, shooting out at least three times.” That was impossible. Cross didn’t have a gun. A six-cylinder Smith & Wesson revolver was found more than 30 feet away from his dead body, but it was fully loaded. It had not been fired. In fact, it couldn’t have been fired. It was so caked with dirt and grime, an Illinois State Police lab said, that it was inoperable. Additionally, there were no fingerprints on the gun, and Cross had no gunpowder residue on his hands. The only shell casings found at the scene belonged to the police officers.

  When Cross ran, Chavez opened fire with the department-issued assault rifle he kept strapped to his chest. Ocampo let loose with his 9mm pistol, as did Ali. When they did, it was clear in that moment that Cross’s black life did not matter.

  There was another way to take him into custody without taking his life. He was running away, so he wasn’t a threat. His friend, who knew his family and where he lived, was already in custody. Cross could have been apprehended that night or the next morning. Nor did the officers care about other black lives in the neighborhood as their torrent of gunfire tore into trees and parked cars, and, fortunately, no people.

  Cross’s mother heard the shooting from inside her home and wondered what was going on. She had no idea her 19-year-old son was being killed by police. The officers stopped shooting for a moment and found a wounded Cross lying among bushes in a vacant lot. When he moved slightly but failed to show his hands, the police said, Chavez fired three more times with his assault rifle, emptying his clip with shots 26, 27, and 28. Chavez then switched to his 9mm Beretta and fired three more times. Ali also reloaded and fired at Cross as he lay prone. In all, the three officers fired 45 times. The medical examiner reported that the shot that killed Cross struck him in the face, between his nose and his right eye. After examining all the facts in the incident, the Independent Police Review Authority’s investigation concluded that the officers were justified in killing Cross, because “the officers were reasonable in their fear” that Cross “posed a threat.”

  There was no reason to believe that what happened in the Cross shooting wouldn’t be repeated in the death of Laquan McDonald. But there was something quirky about the McDonald shooting almost from the start. The official story of the shooting that night, first by the police officers’ union representative and in further official police department reports and explanations, was that Van Dyke fired after McDonald, brandishing his knife, lunged at Van Dyke. The officer then fired in self-defense, police said. According to the official report, Van Dyke told investigators, “[McDonald] was swinging the knife in an aggressive, exaggerated manner.” Van Dyke ordered McDonald to “drop the knife” multiple times. McDonald ignored Van Dyke’s verbal instruction to drop the knife and continued to advance toward Van Dyke. When McDonald got to within 15 feet of Van Dyke, McDonald looked toward Van Dyke. McDonald raised the knife across his chest and over his shoulder, pointing the knife at Van Dyke.

  According to the police’s internal investigation report, “Van Dyke believed McDonald was attacking Van Dyke with the knife and attempting to kill Van Dyke. In defense of his life, Van Dyke backpedaled and fired his handgun at McDonald to stop the attack. McDonald fell to the ground, but continued to move and continued to grasp the knife, refusing to let go of it. Van Dyke continued to fire his weapon at McDonald as McDonald was on the ground as McDonald appeared to be attempting to get up, all while continuing to point the knife at Van Dyke. The slide on Van Dyke’s pistol locked in the rearward position, indicating the weapon was empty. Van Dyke performed a tactical reload of his pistol with a new magazine and then assessed the situation. McDonald was no longer moving, and the threat had been mitigated.”

  Van Dyke’s partner, Joseph Walsh, repeated the story in his statement to investigators. “When McDonald got to within 12 to 15 feet of the officers,” Walsh said, “he swung the knife toward the officers in an aggressive manner… Van Dyke continued firing his weapon at McDonald. McDonald continued moving on the ground, attempting to get up, while still armed with the knife.” Officer Daphne Sebastian said she “heard the officers repeatedly order McDonald to ‘Drop the knife!’ McDonald ignored the verbal directions and continued to advance on the officers, waving the knife.” Officer Janet Mondragon said, “McDonald got closer and closer to the officers, continuing to wave the knife.” Officer Arturo Becerra said “as he approached the scene of this incident, he observed a black male subject, now known as Laquan McDonald, in the middle of the street, flailing his arms.”

  Officer Dora Fontaine said, “McDonald ignored the verbal direction and, instead, raised his right arm toward officer Van Dyke, as if attacking Van Dyke.” Officer Ricardo Viramontes said he “heard Officer Jason Van Dyke repeatedly order McDonald to ‘Drop the knife!’ McDonald ignored the verbal direction and turned toward Van Dyke and his partner, Officer Joseph Walsh. At this time, Van Dyke fired multiple shots from his handgun. McDonald fell to the ground but continued to move, attempting to get back up, with the knife still in his hand. Van Dyke fired his weapon at McDonald continuously, until McDonald was no longer moving.” The officers said that, at most, Van Dyke fired seven or eight shots. The official police statement said McDonald was struck once in the chest.

  If all their statements were true, many wondered, why did the city offer McDonald’s mother and his 15-year-old sister $5 million just six months after his death? Yes, a settlement was in line with the city’s normal procedure. Chicago had spent more than $500 million settling wrongful death and police abuse cases filed against the police since 2004, the vast majority of which the department ruled as justified. But city attorneys had taken the unusual step of offering the family money before the family’s attorneys had even filed a lawsuit. And why did the 47-member Chicago City Council, with Mayor Rahm Emanuel presiding, unanimously approve the payment in a mere 36 seconds without a single word of public discussion or debate?

  The answer was simple: Because the city council, the police department, and a handful of other city officials knew the real story. They knew how damaging the police officer’s dashcam footage of the event was, showing what had really happened that night. Whether they had seen the video or just been briefed about it, as the mayor said he was before he proffered the settlement, they knew it exposed the previous descriptions of McDonald’s death as egregious lies. So, they remained quiet and rubber-stamped the settlement, and by their silence and approval of hush money to McDonald’s mother and sister, they had become participants in a cover-up to keep the truth hidden from the people of Chicago. Bit by bit, however, the tale police had woven, and city officials had tried to keep from becoming public, began to unravel. Its undoing began a little over two weeks after McDonald’s death.

  On November 7, 2014, McDonald’s mother, Tina Hunter, hired attorneys Jeffrey J. Neslund and Michael D. Robbins to investigate her son’s death. Neslund and Robbins were already handling the case of two African-Amer
ican brothers and their sister who had been wounded by a Chicago cop who fired 11 shots into their back door on New Year’s Day at the beginning of the year. Robbins claimed that Hunter heard about his firm “by word of mouth,” but that is highly unlikely. It’s more probable that someone the attorneys knew sought her out and set up the meeting. Hunter signed an agreement to give the attorneys 40 percent of any settlement or judgment they obtained for her.

  Initially, Robbins was skeptical: “I didn’t think there was a case, if he had lunged at a police officer,” the attorney said. Neslund issued subpoenas to the police department for all police videos, reports, and all records and audio dispatches related to the shooting. Once the materials started coming in, Robbins said, “We knew there was something wrong with the official explanation.” First, the attorneys saw the autopsy report. McDonald hadn’t been hit once by the seven or eight shots police on the scene said he fired. Instead, McDonald’s body was riddled with 16 bullets. He had been shot in the left neck, the left chest, the right chest, the back of his left elbow, the back of his right arm, his left wrist, the front of his right hip, the rear of his left shoulder, the rear of his left elbow, his right shoulder, the back of his right arm, the back of his right wrist, the back of his right hand, his right buttocks, the back of his right thigh, and there was a graze wound on the top of his head.

  By December, the media began talking to each other of a possible police dashcam video of the shooting. Chicago police officers are required by department regulation to turn on the cameras on their dashboard for such stops. The same month, Mayor Rahm Emanuel’s administration knew the shooting could pose a problem. On December 8, Scott Ando, then the head of the Independent Police Review Authority, sent an email to Janey Rountree, deputy chief of staff for public safety, linking to a press release in which two local watchdogs suggested video might contradict the police union’s claims that the officer’s life was in danger. By the beginning of 2015, rumors of what was in the police reports and on the video began to filter out of the police department. Craig Futterman, a University of Chicago law professor who studies police accountability, said he was tipped off about the existence of a video from a source inside the department. He said his source told him, “This is really horrific. This looked to at least some people in the department that it may be an execution. That people hadn’t seen anything like this, and that there was a videotape of what occurred—that video of the shooting was caught on police in-car cameras, and that those videos would show the truth. That there was a situation that appeared to be under control, and there wasn’t any immediate risk of human life, and that an officer then just got out of his car and shot Laquan when he was cornered between a construction fence in a pretty deserted area, and then after being on the ground the same officer unloaded his gun multiple times.”

  In February 2015, activist and writer Jamie Kalven wrote the first article casting widespread doubt on the police account. Kalven, an author and freelance journalist, had received a copy of McDonald’s autopsy and published an article in the online magazine Slate, confirming that McDonald had been shot 16 times. Meanwhile, Neslund and Robbins continued working behind the scenes to reach a settlement. On March 3, they requested the videos and other police records with a promise to keep the material confidential until the deal was finalized. They were pushing to bring the deal to a close. Based on what they already knew about what had happened, they believed Van Dyke could be indicted at any minute. A criminal case could delay for years any settlement the family might get in the future.

  Three days later, Neslund and Robbins sent a letter to the city outlining the reason the city needed to pay McDonald’s family. They made it clear that they now knew what the city and the police were hiding. Aside from the fact that McDonald was shot 16 times, they noted, “This horrific and shocking event was witnessed by a number of civilian witnesses as well as police officers. More importantly, the entire shooting was captured by the dashcam video of a responding unit… Contrary to the false statements the City allowed the [police union] spokesman to spin to the media, the dashcam confirms that Mr. McDonald did not ‘lunge’ toward the police. This case will undoubtedly bring a microscope of national attention to the shooting itself as well as the City’s pattern, practice and procedures in rubber-stamping fatal police shootings of African-Americans as ‘justified.’ This particular shooting can be fairly characterized as a gratuitous execution as well as a hate crime.” The lawyers argued that a public trial “would show a ‘code of silence’ to cover up wrongdoing in the police department. We hereby demand $16,000,000.00 to resolve all claims on behalf of the estate of Laquan McDonald,” they wrote, $1 million for every bullet he took. The lawyers insisted on a response within seven days.

  Ten days later, they met with city attorney Thomas Platt and City Hall’s chief lawyer, Stephen Patton. As they negotiated on behalf of McDonald’s mother and sister, Neslund and Robbins compared settlements in other police shootings, including the 2011 shooting of Flint Farmer, part of which was caught on video. Flint Farmer, 29, was unarmed when he was shot and killed by then-Officer Gildardo Sierra in June 2011. It was Sierra’s second fatal shooting and third shooting. Sierra fired at Farmer 16 times, hitting him with seven shots, three of them in his back. Despite video suggesting that Sierra stood over Farmer as he shot him in the back, Cook County State’s Attorney Anita Alvarez declined to charge Sierra criminally. She said the officer reasonably mistook a cell phone for a gun pointed at him on a dark South Side street. Even though Alvarez’s office never bothered to question Sierra about the incident, she said she did not think her office could show that the shooting was unreasonable. Alvarez was still the state’s attorney when McDonald was shot, and by now she had seen the video of the McDonald shooting, but had not brought charges. Farmer’s family filed suit against the city and was awarded more than $4 million.

  Neslund and Robbins also discussed the shooting of Rekia Boyd. Boyd, 22, was in an alley laughing and having fun with friends when Officer Dante Servin came out to complain about the noise. Servin, who was off duty, got into a heated argument with one of the men in the alley, pulled his weapon, and fired five shots into the crowd. He claimed he thought someone had pulled a gun. No one in the group was armed. Boyd was hit in the head and killed. Servin was found not guilty of involuntary manslaughter by Cook County Judge Dennis Porter in a bench trial. Boyd’s family was awarded more than $4 million in a subsequent settlement.

  The meeting ended and in a follow-up letter a few days later, Neslund and Robbins noted, “None of the cases discussed involve a graphic video which depicts, in vivid detail, a 17-year-old being shot multiple times as he lay helpless on the street.”

  In a letter to Platt dated March 23, 2015, Robbins reprimands city officials for sharing with the police department information in their letters and then goes on to say they have found that police falsified citizens’ accounts of the shooting. “One witness whom the police reports alleged did not see the shooting in fact told multiple police officers that he saw the shooting, and it was ‘like an execution,’” the attorney said. “Civilian witnesses have told us that they were held against their will for hours, intensively questioned by detectives, during which they were repeatedly pressured by police to change their statements. When the witnesses refused to do so, the investigating officers simply fabricated civilian accounts in the reports.” Robbins wrote that if the city won’t settle soon, he and Neslund will sue.

  By April, the parties were close to an agreement. They swapped settlement proposals and Robbins objected to the city’s requirement that the dashcam video be kept secret until criminal charges were concluded, if they were ever filed. The pace of the agreement quickened as Platt agreed to drop a section that said releasing records could interfere with the criminal investigation, but Robbins and Neslund, on a gentlemen’s agreement, had no intention of releasing the video. On April 8, the city and McDonald’s mother agreed on $5 million. Five days later, as the mayor’s chief attorney, Pa
tton urged the Chicago City Council Finance Committee to approve the deal. “Attorneys for the estate will argue that Mr. McDonald did not pose any immediate threat of death or great bodily harm to Officer A and that instead McDonald, as I mentioned before, was walking away from police when he was shot, and they will argue that the videotape supports their version of events,” he said. “This is kind of a unique case where we had the original two officers who arrived at the scene follow Mr. McDonald for some number of blocks and manner of minutes and never saw fit to discharge their weapons.”

  Two days later, the full City Council approved the agreement 47–0. McDonald’s mother, Tina Hunter, was to receive 45 percent of the money, $2.25 million, in monthly payments for 20 years. Her attorneys were to receive 40 percent of her share, $900,000. McDonald’s sister was to get 55 percent of the settlement, $2.75 million, in monthly payments until 2060. Neslund and Robbins received a third of her share, $916,667. The nature of the McDonald settlement, the rumors about the shooting, and just plain sense signaled the media and anyone who had been paying attention that a police dashcam video existed of McDonald’s death. The media, activists, and community leaders, particularly those in African-American communities, clamored for its release. The city’s corporation counsel, Stephen Patton, refused. Instead, he promised to release the potentially incendiary video at the “appropriate time,” but not while an “active federal and state criminal investigation” was ongoing.