April 2016 Warning Bells article

Another damn reason not to cuss!

Potty mouth used to be cured with a bar of soap clenched in the offender’s teeth for a period of time calculated to impress on the youngster the joys of cleanliness both in body and speech. Nowadays that punishment would result in potential criminal charges and a visit from Child Protective Services. Maybe that is why the f-bomb is far more commonly used in today’s speech patterns than in the 1950s. In 1939, Clark Gable scandalized society when he told Vivien Leigh, “Frankly, my dear, I don’t give a damn.” Go to any action movie today and see how far the movies have come in not giving a damn about profanity.

The Digital-In Car Video system and the body-worn video cameras have highlighted the speech patterns of our modern-day officers in high-stress (and not so high-stress) situations. We call it “tactical language.” In truth, tactical language has been in the toolbox of officers for untold decades, but it has only recently been prolifically video recorded and made widely available on YouTube. That has made it a subject about which management has become concerned.

A Tactical Operations Roll-Call Briefing sheet says this: “In some situations, ‘street language’ or profanity may be used to emphasize and/or stress the importance of compliance. However, profanity should only be used when needed, as it may escalate the situation, since it can be interpreted as unprofessional and disrespectful. When profanity is utilized in a tactical situation, officers must be able to articulate why the use of profanity was reasonable under the circumstances.”

Different bureaus have different levels of tolerance for tactical language and different expectations of the speech levels an officer must go through to reach the level where tactical language is permissible. In other words, when you cuss, you take your chances because in some bureaus, “it ain’t tactical, it’s just cussing.” this is when the Department starts hitting you with various forms of discipline.

OK, so your mom doesn’t want you to cuss because it’s not polite, and the Department doesn’t want you to cuss because it’s not professional. It could be said that I am living in a glass house so I shouldn’t throw stones, but I don’t want to throw a stone. I want to ring a warning bell.

I have recently sat through criminal trials with officers for defendants, where profanity is used against the accused officer for a completely different purpose: state of mind. Offering evidence of profanity against the officer is a twofer for the prosecutor because it has a double impact on the jury. First, every juror knows that Reed and Malloy, no matter how abused by a citizen, never used rough language. Neither did Joe Friday. He just wanted the facts. Therefore, when they hear that the officer was tossing f-bombs, or other profanity, they consider it unusual and unprofessional. That opens up their minds to the second impact. “This officer was obviously out of control! Listen to that language!” the jury will be told. “that is why the officer beat the victim; anger. Listen to that language!” Or “ that is why the officer falsified the report; for payback. The officer was so upset he referred to him as an ***hole!”

Profanity can be used against you for a litany of reasons, all to make an officer look bad in front of civilian jurors. It is an uphill battle after the profanity is paraded all over the courtroom to convince the civilian jurors that the actions you were taking were for only professional reasons.

State of mind can be important. You can count on this approach being used in a civil trial as well. Not to mention the Department running down this same road when profanity exists in conjunction with driving or uses of force. So my advice is to quit cussing, dammit!

Accuracy, accuracy, accuracy

The other thing that struck me in those trials where officers were being prosecuted is the importance of accuracy in reports. This includes things omitted from reports. The cross-examination from the prosecutor is brutal. Each box checked, or not checked, becomes a point of contention. Each fact testified is followed up with “where is that in your report?” If it is not there, “don’t you think that was important? Aren’t the judge and prosecutors who have to make up their minds on whether to file charges entitled to that information?” “What were you trying to hide?”

One report is compared to another. The probable cause report is compared point by point with the arrest report as well as the property report. Mountains   are made out of molehills whenever a potential conflict in facts can be alleged between two reports or between a report and a video. It is especially important that partner officers read each other’s reports for accuracy.

Another point used against officers is when the report reads that “we” observed some fact or did something. Make sure you and your partner both observed it. Otherwise, the prosecutor will be using that against you. “Your partner just testified that he didn’t see that. It makes a better case when there are two witnesses, doesn’t it officer? Is that why you put that untrue statement in the report? To make your case look better?”

Criminal prosecution will never happen to you, you say? Unfortunately, the national effect of Ferguson, being fanned by the media and exploited by anti-police groups, has resulted in a higher likelihood today of officers being prosecuted for on-duty conduct, such as uses of force and false reports or testimony. Witness the fact that your Chief jumped on the bandwagon and publicly recommended that an officer be criminally prosecuted for an officer-involved shooting. Who needs a District Attorney’s opinion anymore?

Your every action is under scrutiny, and politics are whipsawing you back and forth. You all recently went through a day of training called “A National Discussion on Public Trust and Preservation of Life” (nicknamed operation stand-down or operation hug-a-thug by some).

Now the crime rate is going through the roof. You are now being told to get out there and stop those predators from committing robbery, rape or murder. At the same time, the Police Commission is apoplectic over the fact that uses of force have dramatically increased. Not, in their opinion, because propositions have passed that released thousands   of criminals from prison, and because many felonies have now become misdemeanors, but because you are somehow  not taking de-escalation seriously. So be nice, grab those predators, but don’t use force! And don’t cuss, either!

Police work is a serious business that can have catastrophic consequences on your life, not only from potential injury, but from national and local political pressure to prosecute more cops. Don’t be a feather in someone’s hat. Know what you are doing. Proceed carefully. Watch your videos before writing or testifying, and take that report you have to write seriously. Accuracy is your best defense.

Be legally careful out there.



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