Chicago Police DepartmentSpecial Order S02-02-01
Investigations Directed at First Amendment-Related Information
Issue Date:15 September 2017Effective Date:15 September 2017
Rescinds:01 May 2015 Version
Index Category:Human Rights and Community Partnerships
I.Purpose
This directive establishes the responsibilities and procedures for:
  • A.the special approval and authorization required for permissible First Amendment information gathering investigations.
  • B.documenting investigations of public gatherings.
  • C.the retention of documents related to First Amendment information gathering.
NOTE:
Department members will refer to the General Order titled "Investigations Directed at First Amendment-Related Information" for examples of permissible and impermissible First Amendment-related investigations.
II.Special Authorizations Required for Permissible First Amendment Information Gathering Investigations
  • A.Approvals and Authorization
    • 1.First Amendment-Related Investigation Initiation Report
      A member who seeks to conduct a First Amendment-related information gathering investigation will submit to his or her exempt commanding officer a To-From-Subject report, addressed to the Superintendent of Police, Attention: General Counsel, and containing an approval line for the member's exempt commanding officer and the chief of the member's bureau. The report will contain the following information:
      • a.Date and time the investigation will be initiated;
      • b.Basis of initiating the investigation and the reasonable law enforcement purpose of the investigation;
      • c.Methods of investigation sought to be employed and why these methods are likely to be more effective than less invasive investigative methods;
      • d.Amount of time the investigation is expected to last.
    • 2.Exempt Commanding Officer Approval and the First Amendment Worksheet (CPD-11.440)
      • a.The exempt commanding officer who receives a To-From-Subject report initiating a First Amendment-related information gathering investigation will approve the request only if he or she determines that the investigation is in accordance with the Department policy expressed in the General Orders titled "The First Amendment and Police Actions" and "Investigations Directed at First Amendment-Related Information."
        NOTE:
        In the absence of an exempt commanding officer, the exempt commanding officer of the next higher rank will assume this responsibility.
      • b.If the exempt commanding officer approves the investigation, he or she will:
        • (1)complete a First Amendment Worksheet, assigning a proper First Amendment Investigation tracking number to the worksheet using the following formula:
          • (a)the requesting unit number will appear first, followed by a dash;
          • (b)the calendar year will appear second, followed by a dash;
          • (c)the last number in the series will be the sequential number of the First Amendment-related investigation for that unit, as evidenced by that unit's First Amendment Investigation Unit Log.
            EXAMPLE:
            A number of 188-2017-03 will designate the third First Amendment-related investigation for Unit 188 in the year 2017. This number will be recorded on the First Amendment Worksheet in the upper right-hand corner.
        • (2)provide written authorization for the investigation to the initiating member in the form of a copy of the completed First Amendment Worksheet containing the date on which the authorization will expire and any limits on the use of investigative methods.
        • (3)submit the approved To-From-Subject initiation report and the completed First Amendment Worksheet to the chief of his or her bureau.
    • 3.Chief Approval
      A chief who receives an approved To-From-Subject report initiating a First Amendment-related information gathering investigation will approve the request only if he or she determines that the investigation is in accordance with the policy expressed in the General Orders titled "The First Amendment and Police Actions" and "Investigations Directed at First Amendment-Related Information." If approved, the chief will submit the To-From-Subject initiation report, the First Amendment Worksheet, and any other pertinent materials to the General Counsel to the Superintendent.
    • 4.General Counsel Concurrence
      The General Counsel will determine if the investigation is permitted by the First Amendment and Department policy and ensure that the investigation does not duplicate another ongoing, approved First Amendment-related investigation. The General Counsel will review the submitted materials and either:
      • a.sign a concurrence on the First Amendment Worksheet where indicated, based upon the information provided, and return the original To-From-Subject initiation report and First Amendment Worksheet to the submitting chief.
      • b.if not in concurrence with an authorization, contact the affected chief in an attempt to resolve any concerns. If such concerns cannot be resolved, the matter will be submitted to the First Deputy Superintendent for a decision. If the First Deputy Superintendent determines that the investigation shall be initiated, the First Deputy Superintendent will sign the concurrence in place of the General Counsel.
    • 5.Notwithstanding the requirement of special authorization, a member may initiate and conduct a First Amendment-related information gathering investigation without prior special authorization, provided:
      • a.it is impractical to submit the required paperwork prior to initiating the investigation;
      • b.an exempt commanding officer has verbally approved the investigation, however, the use of an infiltrator may be approved verbally only by the Superintendent; and,
      • c.all required paperwork is submitted as soon as practicable but in no event later than twenty-four (24) hours after the initiation of the investigation.
  • B.Additional Authorization Necessary For Use of Infiltrator
    Any use of an infiltrator requires the prior approval of the Superintendent. A request to use an infiltrator will be submitted in a separate To-From-Subject report in the form of a First Amendment-related investigation initiation report, in accordance with the requirements of such a report as indicated in Item II-A-1 of this directive, with an additional approval line for the Superintendent.
  • C.Continued Monitoring
    Members will continually assess the authorized use of undercover methods and determine whether the use of these methods remain warranted in light of the information generated by these methods. Members conducting the investigation will submit to their exempt commanding officer To-From-Subject reports detailing the progress of the investigation at thirty-day (30) intervals or at shorter intervals as directed by the exempt commanding officer. The exempt commanding officer may revoke his or her approval at any time for good reason and will, upon such revocation, notify his or her chief. A chief may revoke his or her approval at any time for good reason. Upon the revocation of either approval, the investigation will be terminated.
  • D.Time Limits on Authorizations of Investigations
    • 1.Authorization to conduct First Amendment-related information gathering will be in effect for a period not to exceed one hundred twenty (120) days and may be approved in increments not to exceed one hundred twenty (120) days in order to ensure that the investigation remains in accordance with the First Amendment and Department policy and procedure. Prior to the expiration of the initial or succeeding authorized periods, application may be made for an additional period of up to one hundred twenty (120) days, beginning upon the expiration of the preceding period, in a To-From-Subject report to the chief of the bureau containing the investigative unit. If the authorized period expires without proper approval of an extension, the investigation is automatically terminated.
    • 2.Authorization to employ undercover methods will be in effect for a period not to exceed thirty (30) days and may be approved in shorter increments in order to ensure that the investigation remains in accordance with the First Amendment and Department policy and procedure. Prior to the expiration of the initial or succeeding authorized periods, application may be made for an additional period of up to thirty (30) days, beginning upon the expiration of the preceding period, in a To-From-Subject report to the chief of the bureau containing the investigative unit. If the authorized period expires without proper approval of an extension, the investigation is automatically terminated.
    • 3.Continued use of an infiltrator after the expiration of the initial authorized period also requires application for an extension for up to thirty (30) days, in the form of a separate To-From-Subject report to the chief, with an additional approval line for the Superintendent.
  • E.Terminations
    Upon termination of the investigation, by expiration or otherwise, the exempt commanding officer of the investigating unit will complete a First Amendment Worksheet detailing the basis for and the date of the termination of the investigation and submit that Worksheet to his or her chief for forwarding to the General Counsel. All members involved in the investigation will be notified of the termination, and all documents will be retained and/or forwarded as indicated in Item IV of this directive.
III.Public Gatherings and First Amendment Conduct
  • A.Documenting Investigations of Public Gatherings
    Information obtained during the course of such a preliminary investigation will be made the subject of an Automated Information Report, in order to facilitate future assessments of resources and public safety. That report, along with pertinent attachments, will be forwarded through the chain of command to the chief of the bureau of the member and to the First Deputy Superintendent. The Automated Information Report will be treated, maintained, and retained in accordance with Department policy for non-First Amendment-related investigations.
  • B.Video Recording, Audio Recording, and Photographing Public Gatherings
    Video recording and photographing of events on the public way are generally appropriate and may be conducted for any proper law enforcement purpose, including documenting violations of law, monitoring police conduct, defending against allegations of police misconduct, aiding in the future coordination and deployment of police resources, and training. Furthermore, audio recording may be authorized at the discretion of an exempt commanding officer as circumstances warrant, including documenting the issuance of police orders, warnings, or notices.
    • 1.If done for any of the above reasons, video recording, audio recording, or photographing a public gathering is not an investigation directed toward First Amendment-related information within the meaning of this directive, and the retention and disposal of such video recording, audio recording, or photographs will follow the restrictions outlined in Item III-B-4 of this directive.
    • 2.If video recording, audio recording, or photographing is done as part of an First Amendment-related information gathering investigation, the retention and disposal of such video recordings, audio recording, or photographs will follow the restrictions outlined in Item IV of this directive. Each video recording, audio recording, or photograph will be identified by its own unique tracking number.
    • 3.Video recording, audio recording, and photographing public gatherings must be approved by an exempt commanding officer. The exempt commanding officer will determine, based upon operational needs, who or which unit will conduct the video recording, audio recording, or photographing. The officer in charge of the event will ensure that the video recording, audio recording, or photographing equipment is available and used appropriately.
    • 4.Retention of Video Recordings, Audio Recordings, or Photographs Taken at Public Gatherings
      • a.As soon as practicable, the unit which conducted the video recording, audio recording, or photographing will send a To-From-Subject report to the persons listed below, indicating the nature of the video recording, audio recording, or photographs, the fact that they will be held within the unit for ninety (90) days, and requesting a written signature acknowledging that there is no known reason to retain them past the ninety-day time period. Reasons for retention of the video recording, audio recording, or photographs include future training or planning purposes or allegations of criminal conduct or officer misconduct arising out of the event for which the video recording, audio recording, or photographs may be useful.
        • (1)Office of the General Counsel;
        • (2)Chief, Bureau of Detectives;
        • (3)Deputy Chief, Education and Training Division;
        • (4)Chief, Bureau of Organizational Development;
        • (5)Commander, Special Events Unit
        • (6)Chief Administrator, Civilian Office of Police Accountability.
      • b.If the persons listed above all sign an acknowledgment that there is no known reason to retain the video recording, audio recording, or photographs, then the unit retaining the video recording, audio recording, or photographs will dispose of them but retain the signed acknowledgments in unit files. If any person listed in Item III-B-4-a-(1) through (6) requests that the video recording, audio recording, or photographs be retained due to future training or planning purposes or due to allegations of criminal conduct or officer misconduct arising out of the event, then the person requesting retention will direct the unit where to send the video recording, audio recording, or photographs. The sending unit will document the transfer of the video recording, audio recording, or photographs in a To-From-Subject report, which will be signed by a member at the accepting unit to indicate receipt of the video recording, audio recording, or photographs. The To-From-Subject report will be retained in original unit files.
IV.Retention of Documents Relating to First Amendment-Related Information Investigations
  • A.The exempt commanding officer of the investigating unit will retain the documents, video recordings, audio recordings, or photographs related to a First Amendment-related information gathering investigation until the latter of:
    • 1.the time that the documents, video recordings, audio recordings, or photographs cease to serve a proper law enforcement purpose (for instance, the information becomes stale); OR
    • 2.the investigation is closed.
  • B.Upon the later expiration of the two preceding events, the exempt commanding officer will forward all documents, video recordings, audio recordings, or photographs related to this investigation, including all copies, to the Chief, Bureau of Organizational Development, with a To-From-Subject report indicating the action taken and the reason for the action (i.e., that the information is no longer relevant or that the investigation closed on a date indicated in the report). A copy of this report will also be directed to the Commander, Inspection Division.
  • C.Upon receipt of documents, video recordings, audio recordings, or photographs from the exempt commanding officer, the Chief, Bureau of Organizational Development will retain them until the next internal First Amendment audit, at which time the Chief, Bureau of Organizational Development will turn over the materials to the Inspections Division. The Chief, Bureau of Organizational Development will address a To-From-Subject report to the Commander, Inspections Division, indicating the date that the documents, video recordings, audio recordings, or photographs are turned over. The report and the related materials will be hand-carried to the Inspections Division, where a member of that division will sign a copy of the To-From-Subject report to indicate receipt of the materials. The Chief, Bureau of Organizational Development will retain that signed receipted copy of the To-From-Subject report for a period of three (3) years.
  • D.The Inspections Division will maintain and preserve the documents, video recordings, audio recordings, or photographs from First Amendment-related investigations received from the Chief, Bureau of Organizational Development, for a period of three (3) years from the close of the investigation.
    NOTE:
    This retention schedule will ensure that the documents will be available to defend any First Amendment-related lawsuit (such lawsuit being required to be filed within two years of the incident). Upon learning of the filing of any such lawsuit, the Inspection Division will suspend any destruction of relevant documents without regard to the retention schedule described above.
  • E.The General Counsel will maintain a copy of all First Amendment Worksheets for a period of three years from the close of the investigation.
  • F.Notwithstanding anything in this directive, the exempt commanding officer of the investigating unit or the respective chief may forward a copy of a report detailing information gathered in an investigation governed by this directive to the Deployment Operations Section, if appropriate, to serve a reasonable law enforcement purpose. The exempt commanding officer of the investigative unit will document the forwarding of the copy of such information to the Deployment Operations Section in a To-From-Subject report containing the action taken, the date of such action, and the reason for the action.
  • G.Notwithstanding anything in this directive, the exempt commanding officer of the investigative unit or the respective chief may forward to the appropriate unit(s), copies of any information gathered in an investigation governed by this directive which relate to a threat to the physical safety of a dignitary or to a public gathering.
Authenticated by: KC
Kevin B. Navarro
Acting Superintendent of Police
17-097 KT