Death by a Thousand Cuts
If the Constitutional Policing Unit really wanted to up their recap, there would be no bigger apple orchard than following around Internal Affairs as it conducts Boards of Rights and Administrative Appeals. The Public Safety Officers Procedural Bill of Rights and the Constitution of the United States govern these proceedings. And there is also the simple concept of fairness that we all learned as far back as our sandbox days.
While the Police Commission brags to the public about the transparency of the LAPD, Internal Affairs repeatedly refuses to provide evidence to accused officers and resists any attempt to get it by other means. For example, an employee representative assigned to defend an officer in an Administrative Appeal wanted to review officers’ logs at a traffic division to determine whether working out was routinely allowed. Denied. Another rep wanted to view the chrono log of the IA investigator who did the investigation of his officer. Denied. A League attorney defending an officer at a Board of Rights wanted to see the IA chrono log related to the service of a complaint on his officer. Denied. An Admin Appeal rep wanted to convene the hearing to request a continuance. Denied. An attorney wanted a Force Investigation Division report to defend his officer in an Admin Appeal. Denied. An advocate put on a witness to testify against an officer. The day ended before the representative could cross-examine the witness. The next day, the witness called in sick. The representative asked for a continuance until the witness was back on duty. Denied. The representative asked that the witness’s testimony on direct be stricken because the accused officer was being deprived of the constitutional right to cross-examine witnesses against him. Denied.
It goes on and on. Sometimes, the Board or hearing officer will order Internal Affairs to supply a document, but the next day the same denial will be made in another case. Challenging these numerous and unending denials of discovery, and other unfair actions, is time-consuming and expensive. For instance, after the chrono log was denied, the representative fought for a discovery hearing with the hearing officer. Finally, it was scheduled. League attorneys assisted the representative and a city attorney appeared to assist the advocate. A hearing was conducted and arguments were made by both sides. No confidentiality was asserted by the advocate, so secrets weren’t being spilled, just merely that since the Chief hadn’t seen the log, the officer wasn’t entitled to it. The hearing officer, after listening to the arguments, ordered Internal Affairs to produce the chrono log for inspection. This was done. The representative observed that it was a typed log obviously formally prepared. The Internal Affairs investigator stated that the log was created from notes made at the time and that to respond to a question he would have to look at those notes. The rep asked to see the notes. The IA investigator said he would check with the advocate. Denied. Now the representative has to schedule another hearing to ask the hearing officer to order those notes to be produced. Why? What are they hiding? What are they ashamed of? What is it about due process that they refuse to understand?
To avoid going to court hundreds of times over these continuing denials of discovery and other obstructive tactics, the League has filed and served one lawsuit seeking to solve all the problems. The complaint against the Department makes the following allegations:
“Commencing in or about 2010 and continuing to date, the Defendants and their agents and employees have approved, administered, perpetrated and engaged in a systematic pattern of implementing practices so as to deny the League’s represented employees their constitutional, statutory, municipal and/or administratively mandated rights to a full, fair and meaningful administrative hearing, including the right to administrative discovery and provision of related non-confidential investigative materials and/or other information that might aid in the employees’ defense, by engaging in unlawful and/or improper conduct so as to deprive, intimidate, interfere, discourage, vex, hinder, restrain, harass, annoy and/or retaliate against the employees represented by the League and/or their defense representatives for exercising their lawful rights in securing fair and meaningful administrative hearings. “Defendants’ unlawful and/or improper conduct denying, interfering or abridging the rights of employees represented by the League to full, fair and meaningful administrative hearings and the right to administrative discovery and provision of related non-confidential investigative materials and/or other information that might aid in the employees’ defense includes, but is not limited to: a.) refusing to provide discovery which relates to the administrative case; b.) providing untimely discovery; c.) refusing to permit defense representatives access to non-confidential documents or other information related to the investigation which might aid in the employees’ defense; d.) refusing defense representatives the opportunity to interview witness; e.) intimidation of defense representatives; f) restriction of issuance of administrative subpoenas of witnesses; g.) denial of issuance of administrative subpoenas for production of Department’s records; h.) intimidation of witnesses; and i.) exertion of pressure or influence on Los Angeles Police Department command staff presiding as hearing officers in administrative cases.”
The central theme of all this fancy legal talk is this: Why is it that the Department feels it cannot conduct an honest investigation, make a logical decision as to discipline and put the investigation on the table for inspection instead of constantly hiding facts, dodging discovery, blocking accused officers’ representatives and trying to rig the process against the officer?
I suspect it has a lot to do with ego and a need for control. These are the very things that the founding fathers of this republic sought to control through a history-changing style of government called democracy, which contained a system of checks and balances. The absence of checks and balances leads to an expansion of power, and unchecked power ultimately leads to corruption. This has been a well-traveled road throughout history.
The antidote is due process. That is what the League’s lawsuit is seeking to restore in our disciplinary process. It is unfortunate that we have to resort to this extraordinary and expensive process. There will be discovery, depositions, interrogatories and eventually a trial. It is telling that the League is not seeking any monetary damages. These are hard financial times for the City and the goal here is to simply force the Department to treat its employees fairly. The League has exhausted all efforts to correct the situation, and this lawsuit is a last resort.
The source of the problem is at the management level and does not, for the most part, lie with the case-carrying personnel complaint investigators, although the arrogance of power sometimes trickles down to the street. Officers will complain to us about things like interviews that are unequivocally ordered without regard for the officer’s schedule, or the officer’s attorney’s schedule. But the discovery violations and other machinations usually take place at a higher level of rank. The large majority of Internal Affairs investigators successfully do their job while honoring the officer’s rights.
So we head into this legal battle … or maybe people in high places within the Department could worry about the fair treatment and constitutional rights of officers as much as they do about the fair treatment and constitutional rights of the citizens on the street, and allow our officers to focus their energies on crime problems instead?
Be legally careful out there.
