When Bill Bratton came on board as chief of police on October 27, 2002, his job was tough. On November 2, 2000, the Consent Decree had been signed by the City and DOJ and its implementation had not gone well. Chief Parks had received an overwhelming vote of no confidence by the rank-and-file members of LAPD and had been denied his second term in office. LAPD officers were making 100,000 fewer arrests per year in 2002 than they had in the pre-Rodney King period. In short, morale was in the toilet, and we all remember Chief Parks telling the media that he did not carry a morale meter.
Bratton hit LAPD management like a tornado. The command structure was shaken, rearranged, reshuffled and, for the most part, those left standing were the better choices. Although the road would not always be smooth, Bratton recognized that a relationship with the League would be a good thing. In 2003, he even addressed the delegates at their annual meeting in Palm Springs. “I have never seen a department that eats its own like this one,” he said, to a cheering audience. “Things are going to change.”
It looked like they would. The chief had put it in writing. This was his new policy. “We cannot let the corrupt actions of a few ruin the reputation of more than 9,000 honest, hard-working cops. But let me make it equally clear that the game of “Gotcha!” in this Department is coming to an end. If you are in the right, we will back you up — the benefit of the doubt goes to you. If you are wrong, we will retrain you. If you are corrupt, we will jail you.” (Beat, April 2003, emphasis added.)
After five years of discipline under Chief Parks, this seemed like a breath of fresh air. And over the years, some things actually did change. Almost 300 Boards of Rights per year dropped to less than 100. The League’s biggest task seemed to be to convince captains promoted and raised under a different system that “gotcha” was not the standard anymore. Sometimes we were successful, sometimes we were not.
According to a Harvard study released last year, everything seems to be improving. Since Bratton took over, arrests have steadily increased, citizens are happier and officers have greater job satisfaction than they did in 2002. The survey even interviewed arrestees and, would you believe it, even they are happier with LAPD performance!
The study does point out some problems, however. The problem germane to this article is stated on page 21 of the Harvard report. “The fear of being punished for making an honest mistake today is diminished, but still strong. More than 60 percent of sworn officers in 2009 said they fear being punished for making an honest mistake …”
This is a morale issue and Bratton did have a morale meter. Morale was important to Bratton, and it appears to be just as important to Chief Beck. Bratton made this evident at the 2007 delegates’ meeting. A concern of the League was the proliferation of video equipment in all of the police stations and patrol cars, and all of the other video sources now widespread in our society. Delegates were concerned about officers being allowed to view any videos before they wrote reports or were interviewed so they could be accurate. Videos of uses of force were specifically mentioned as a primary problem.
The chief called the deputy chief of Internal Affairs up in front of the delegates, and it was made clear that the age of “gotcha” was over. The delegates were told that officers would be allowed to view the videos prior to being interviewed. The delegates left the meeting feeling that the chief was backing up his words with action and that officers would be treated fairly.
This is a hugely important issue. Officers want to be accurate. To that end, they keep notes, tape record stops, take photographs, refresh each other’s memories and strive to avoid any inaccuracies in their reports. The consequences of an inaccurate report can range from allowing a guilty arrestee to go free to charges against an officer for perjury, not to mention huge City liability. This concern for accuracy would seem to be a good thing.
When there is a categorical use of force, in addition to everything else, the involved officer is now the focus of the investigation. Accuracy becomes even more important. The categorical-use-of-force protocol audits everything that the officer has done, and there are significant career consequences to the outcome of the investigation.
The officer involved in a categorical use of force is at a huge disadvantage. In addition to suffering from a massive adrenalin dump at the time of the incident, the officer is immediately separated from other officers and monitored by a supervisor. Hours later, and many times after being awake for 20-plus hours, the officer is subjected to a detailed interview — and that interview better be accurate. It will probably be the most important interview of that officer’s career.
The officer’s interview will be scrupulously torn apart by the Department, the Inspector General and plaintiff’s attorneys, if there is a lawsuit (and the majority of the time there will be one when the suspect is injured). When there is a video, the officer will have to explain the actions observed on the video.
The “gotcha” comes in when the officer is forced to do an interview without having seen the video. It is a medical fact that your senses cannot be trusted in a high-stress incident. This is understood by some and exploited by others. Any conflict between the video and the statement given by the officer gives the Department, plaintiff’s attorney or whomever the opportunity to allege that the officer is lying.
In today’s environment, even the allegation of being untruthful is career damaging. It becomes what is known as a Brady issue. It is also a fact that the more political a use of force becomes because of media attention, the more likely it is that conflicts will result in allegations of being untruthful. The officer becomes a pawn in a political power game. Witness what happened to the Metro officers at MacArthur Park, the Devin Brown shooting and the flashlight case, among many others.
This brings us to the point of this article. The Police Commission has approved a special order that not only gives an officer approval to view an in-car camera video before writing reports or being interviewed in a categorical use of force, it mandates it. Accuracy is of paramount importance to the Police Commission, as it should be.
Conversely, Bratton’s former policy — announced at the 2007 delegates’ meeting regarding viewing videos from other sources, such as news videos, surveillance cameras or personal video recorders, prior to a categorical-use-of-force interrogation — has been reversed. “Gotcha” is back.
The purported reason is to capture the officer’s memories before they are altered by viewing the video to judge the officer’s intent. This is baloney for several reasons. First, the District Attorney is not being deprived of evidence because he cannot use compelled statements against an officer. Therefore, any potential prosecution will have to arise out of other evidence. Second, the officers are ordered to participate in a walkthrough of the scene prior to the interview, which refreshes (alters?) the officer’s memory anyway. Third, for several hours the officers will be second guessing themselves and going through their memories a thousand times while separated and waiting for the interview — again unavoidably altering memories into what seems to make sense to the brain, which abhors a logical vacuum. And finally, what is the object here: an accurate interview about what happened or a memory test?
How does it help the officer, the Department or the civil liability of the City to put an officer in a position where an obviously incorrect opinion of what happened, formed under the rigors of a high-stress incident and sleep deprivation, is regurgitated onto a tape recorder for all to misuse as they see fit?
The object of an investigation is to arrive at the truth. The Department encourages officers to make notes in their field notebooks and to tape record traffic stops to ensure accurate reports and interviews. The officers must review reports they have written before they testify to satisfy their duty to be accurate. Preliminary hearing testimony is read by officers before jury trial to make sure trial testimony is accurate. Depositions are reviewed before testifying at civil trials. So why hide video evidence from the officer?
The officer is going to have to explain what is on the video at some point in time anyway, so why is a rigged credibility/memory test necessary? Unless, for political or philosophical reasons, someone wants to put the officer at every disadvantage. So what can be done?
Well, the League is exploring legal and other avenues to remedy this unfair situation, but that will not stop the Department from withholding the videos from officers in the meantime. It is dangerous to refuse to be interviewed because it might be upheld by a court as insubordination. The League has directed its roll-out attorneys to read the above statement into the record when a video is being withheld. It is hoped that this will help in defending the officer.
You might want to clip it out and carry it with you in case the same thing happens to you in a categorical-use-offorce interview. Hear warning bells when there is a video. Check www.warningbells.com for use-of-force investigation protocol and the physiological effects of high-stress incidents on perception and memory. Your career, or even your freedom, may be on the line. In the meantime, the League will be fighting for your right to be accurate.
Be legally careful out there.
