Four years of hell
On April 15, 2012, Officer Jonathan Lai and his partner made an observation stop that would be life-changing. A 13-second use of force would take nearly four years to adjudicate. First, he was restricted from field duty, then ordered home, and finally, relieved of duty without pay. It started out as a simple drinking in public arrest and ended up with Lai going through a criminal prosecution and a Board of Rights. The jury took only an hour and a half to return a not guilty verdict. The Department then insisted that Lai face a Board of Rights. The Board also found him not guilty. How could this happen? More important, can you be assured that it won’t happen to you?
Officer Lai had three and a half years on the Department at the time of the incident. Was he a discipline problem? No. He had never had a sustained complaint. Was he badge heavy? No. He had never used a baton on a suspect prior to this incident. He had been involved in one other use of force in his career and that involved body weight. Did the suspect insist on filing a complaint? No. He didn’t want to make a complaint. The complaint was Department-initiated. It was issued by a watch commander who saw the video three weeks later and formed the opinion that he was watching misconduct.
His patrol assignment was the Entertainment Detail in Central. The detail mandated that he and his partner react to quality-of-life crimes in the L.A. Live area. Drinking in public is one of those crimes that has to be addressed. And so, when he saw the suspect drinking a beer while standing in public, duty called.
The suspect was 6 feet 2 inches and weighed 220 pounds. He was 29 years old. Officer Lai was 5 feet 7 inches and weighed 160 pounds. His partner measured about the same. They pulled up to the suspect and ordered him to set down the beer. No reaction. More orders, and finally the beer was set down. Then the suspect’s hands went into his pockets. The officers commanded him to show his hands. Leisurely the hands came out, and then went back in.
The officers decided that the suspect had to be searched for officer safety. He started to walk away. They ordered him to go to his knees. He complied. Officer Lai approached him with the intent to handcuff him and perform the search for weapons. When Lai made contact, the suspect suddenly stood up and turned toward the officer with clenched fists and got into a fighting stance. Officer Lai ordered him back down, and when there was no compliance, hit him with an ASP (a collapsible baton). His partner fired a Taser at the suspect, but it had no effect. Officer Lai shouted more orders to the suspect, which were ignored. Lai focused on the suspect’s hands, which were balled into a fist. He delivered 11 blows with the ASP in rapid succession. The suspect went down on his knees, fists still clenched, then down to his back. Lai then gained some distance and put out a backup broadcast. The flurry of ASP blows took 13 seconds.
The officers were shouting for the suspect to get on his stomach. Lai’s partner moved in with the Taser and used contact mode. This worked, and the suspect turned over on his stomach. Backup arrived, and the incident was over.
Because it was a non-categorical use of force, a supervisor came and did an investigation. The suspect stated that he wasn’t hurt and “liked the treatment,” along with a few other unprintable observations. Most of the incident occurred under the Hooters’ security camera. Hooters, however, would not give the video to the sergeant without corporate headquarters’ permission. Lai was ordered to write the arrest report and detail the use of force without seeing the video. He did so.
They will call you a liar
A lot is heard from some in LAPD management, the ACLU, the district attorney, the Police Commission, plaintiffs’ attorneys, and others with an interest in not showing an officer a video before he/she engages in report writing or interviews. They routinely say, “Of course, we understand that there will be differences in the officer’s recollection and a video. It’s only human to make a mistake.” Baloney! When the chips are down and people want to win, for whatever reason, inconsistencies will be portrayed as lies. That is why the League fights so hard to give an officer the right to review a video before interrogation. The League wants accuracy, not a memory test.
Officer Lai wrote in his arrest report that after the suspect suddenly stood up when Lai was trying to search him, that is when he drew his ASP. However, by viewing reflections in the window of the video, it is apparent that Officer Lai actually drew his ASP shortly after he exited his vehicle as he approached the suspect. He also wrote that the suspect had his hands behind his head just before he stood up. The video showed that the suspect’s hands were behind his back, not his head. Are these inconsistencies a big deal? You bet, when someone wants to win.
He lied to you!” the prosecutor told the jury, pointing at then Defendant Lai. “He lied to you. The video tells the truth. He was trying to make himself look better.” Not to be outdone, the Department charged him with an allegation of writing a false report. That is a Brady issue. He has to be terminated, was the Department’s position. Hear warning bells.
Accuracy is your most important product. Use every tool to accomplish this. Videos, notes, audios, photos, whatever it takes to refresh your memory to make your reports, statements and testimony accurate.
Cowards or incompetent?
During the Rodney King trials, a commander was the district attorney’s witness as to whether an officer’s use of force was within LAPD policy or not. After all, it is LAPD management that makes policy and enforces it. Who better to testify on the issue of whether or not an officer has violated policy than a staff officer? Not so in Officer Lai’s criminal trial.
A sergeant assigned to Training Division was subpoenaed as the prosecutor’s witness against the officer. The sergeant
protested to no avail. No one from the Department of the rank of captain or above would agree to testify. Was it a fear of offending the rank and file or a fear of facing cross-examination on a subject that they knew little or nothing about? Whatever the reason, management was conspicuously absent during the criminal prosecution.
“There but for the grace of God go I?”
Uses of force are ugly. Period. It is often said that we lost the Vietnam War when, for the first time, the public was exposed to the reality of war every night on their television screens as technology brought the carnage into their living rooms. Public opinion turned on the military. A similar thing is happening to law enforcement. Everything is ending up on video, and, yes, force is ugly, whether justified or not.
The Hooters’ video was shot from above the incident in high definition. It was not from the street-level view of Officer Lai. It saw everything, while Lai was focusing just on the suspect’s hands. The video had no sound, thus making the ASP blows appear in a vacuum without apparent justification. In reality, Officer Lai was shouting orders to the suspect that were being ignored, creating an atmosphere of high tension and chaos that is not reflected in the silent video.
Those who would judge him were able to look at the video repeatedly in slow motion, freeze frame, backwards, frontwards and in the relaxed environment of an office. Officer Lai experienced 13 seconds of high-stress anxiety all at once. Videos do not present the officer’s reality during a struggle.
So what can you do to avoid the long odyssey that Officer Lai went through? Are you not subject to making a use of force decision in a matter of seconds that can affect your life for years? You bet you are.
Reducing the odds
Some would say that you should emulate what too many of your leaders have done. Get off the street as soon as possible. Run, don’t walk, to an inside job in the building before your package gets weighed down with personnel complaints or you make that decision that is second guessed by Monday morning quarterbacks examining the latest use of force caught on video. However, this may be one of the primary reasons the Department is in the fix that it is in: too many almost-cops in positions of power without a true understanding of what it is really like on
the streets.
Attorney Ira Salzman has some advice, and he should be listened to. He represented Officer Lai in the criminal trial and obtained the not-guilty verdict from the jury. He also represented Officer Lai in the subsequent Board of Rights. Again, the result was not guilty.
Ira says this: Know the use of force policy backward and forward. When you write your report or participate in an interview, articulate not only what you did, but why you did it. Just stating the facts is no longer enough. Relate your answers to the policy. If you are involved in an incident that has the possibility of becoming the subject of a criminal
filing, lawyer up quickly. Do not sit at home for over a year waiting; get an experienced criminal attorney engaged right away. The attorney can get with the District Attorney’s Office prior to the critical decision that is made to file charges against an officer and maybe have a favorable impact. Once charges are filed, everything changes. Good advice.
The League wants to thank Ira Salzman for his dedication to our members. Ira and the League want to thank the jury members for their attention, the Board of Rights members for their careful examination of the facts, the members of Internal Affairs who investigated this case in an objective manner, the advocate who put on a fair case, defense expert witness Ron McCarthy andthe candidness and honesty of the sergeant from Training Division.
It took all of them and four years of hell to straighten out this mistake. And thanks to Officer Lai for weathering the storm and waiving his right to privacy by opening his Board of Rights to the public so his fellow officers could learn from his experience.Welcome back, Jonathan.
Be legally careful out there.
