Failing to anticipate the unexpected is misconduct
“Patrol morale is way down” I was told when I queried officers on how they felt about a recent Board of Rights over charges brought against an officer because of a traffic collision. This was a hearing that meant a lot to the officers working the street. Twenty officers appeared as observers on their off-duty time to watch portions of the hearing in support of the accused. When the officer was found guilty, there were a dozen character witnesses waiting outside the board room to testify on his behalf, and over 50 officers were en route to testify about the hard work and dedication to the community he exhibited. The Board heard a few of the witnesses and stipulated to the rest. It had an effect because the recommended penalty from the Chief was halved, but the guilty verdict was still imposed although the civilian board member filed a minority opinion for not guilty on one of the counts.
Why this interest? Officers are disciplined every day, but this one caught a lot of officers’ attention. What happened to this officer was widely perceived as just plain unfair.
The facts are simple. The accused officer and his partner were on patrol in their black and white. A back up request was broadcast, and the responding officers could tell that the requesting officer’s voice was stressed and labored. Fearing that the requesting officer was in a fight, the accused officer, who was driving, responded to the call. With lights and sirens operating, he entered a major intersection at 54 mph in a 45 mph zone. He was 1.5 seconds behind another black and white that also went through the same intersection in the same direction. An unlicensed driver, who claimed not to have heard the siren of his vehicle after pausing for the first black and white, made a left-turn in front of him. The officer swerved to avoid the collision, but the illegal left turner crashed into the driver’s side of the black and white sending it into another vehicle and then a pole. The black and white was equipped with a Digital In Car Video camera that captured the incident.
The usual traffic investigation was conducted and a report was prepared and submitted. Pursuant to the procedures negotiated with the League in Special Order No. 45, the traffic accident was adjudicated as nonpreventable. That decision, according to Special Order No. 45, is to be made by the officer’s commanding officer and forwarded to the Traffic Coordination Section (TCS). Special Order No. 45 specifically states “not to the Bureau or next higher level in the chain of command.” The officer has an appeal process that goes directly to TCS for final adjudication, but why would an officer appeal a non-preventable?
So far, so good. So how does one end up at a Board of Rights? Well, nearly four months later, Bureau decided to military endorse the non-preventable and make it preventable and, to add insult to injury, give the officer suspension days. This flies directly in the face of the agreed protocol in Special Order No. 45. What happened?
Speculation is required here, but after the non-preventable adjudication, another more serious traffic accident occurred where a black and white was involved, and traffic accident prevention became the disciplinary flavor of the month. In addition, Bureau became aware of private comments made between our two officers just prior to the illegal left turner causing the accident.
The accused officer and his partner engaged in a conversation that higher management did not like and felt reflected on the cause of the accident. This, of course, ignores another special order regarding the DICVS. Special Order 45 states “The Digital In Car Video System is being deployed in order to provide Department employees with a tool for crime documentation and prosecution and not to monitor private conversations between Department employees.”
In discussing this with upper management, I was told, “these officers should realize that we are just trying to save their lives.” Unfortunately, the message that is being sent is that officers have to follow the rules, but not upper management. Hypocrisy, not safety, is what is being relayed to those working on the street.
Back to the Board. The Department called a traffic expert with truly impressive credentials. She had years of experience, was a court-qualified expert and an instructor in traffic investigation. The problem for the Department was that, in her opinion, the cause of the accident was the person who made the illegal left turn in front of the police vehicle; that the speed of the police vehicle was not reckless and did not contribute to the collision and that the accused officer was proceeding safely into the intersection. In other words, the accident was non-preventable. She testified that the unlicensed driver’s left turn violation, 21801 (a) VC, was the primary cause of the accident along with 21806 (a) VC, failure to yield for an emergency vehicle. Her opinion agreed with the opinion of the officers who wrote the traffic investigation report.
The Department provided another witness on training who testified that officers are now trained to anticipate the unexpected, although there was no evidence that the accused officer had ever received that training.
Nevertheless, the accused officer was found guilty because he failed to drive the police vehicle with due regard for the safety of all on the roadway, the Board ruled. The illegal left turner was the primary cause of the collision, they admitted, but the officer’s speed and failure to exercise defensive driving skills when entering the intersection contributed to the collision. And, by the way, the League director who had been called by the defense to explain that the negotiated protocol had not been followed was not allowed to testify.
What you need to know for career survival is that the Department now expects you to expect the unexpected. You can also expect that the Department will disregard any of its rules that it finds inconvenient. That, too, is expecting the unexpected. Expect this: If you get into an accident, you will probably be found at fault. Whatever unexpected thing happens, the Department expects that you should have anticipated it. I anticipate that there is too much expecting going on.
Be legally careful out there.
