May 2014 Warning Bells article

A cautionary tale

It was a nothing beef. An ordinary, routine, everyday vehicle stop resulting in a ticket and an RFC. As so often happens, it resulted in a biased policing and discourtesy complaint. The Department found no biased policing and no discourtesy, and yet an officer was fired and a superior court judge affirmed the Department’s action. How this could happen is worth telling. It is a warning bell for any officer that takes any law enforcement action.

The ticket was for no registration, and it was undisputed that the registration was not current.  The RFC was for less than an ounce of marijuana and there was no dispute that the violator had marijuana – she admitted it. There was no dispute about the legal recovery of the marijuana; again, the violator freely admitted she was in possession and admitted that she told the officer that she had the marijuana. The only sustained complaints against the officer came from the Department as a result of the personnel complaint interview.

The agreed upon facts are simple. At 0920 hours, our officer (Officer A) and his partner (Officer B) saw a vehicle without current registration and pulled it over. It had two female occupants. Officer A approached and got identification from the driver. There was an odor of marijuana coming from the vehicle. The passenger voluntarily admitted having a vial of marijuana (less than an ounce) in her pocket. It was recovered and she was given a Release From Custody (RFC) ticket for possessing less than an ounce of marijuana. The marijuana was booked by Officer A.

The possessor of the marijuana went to the station and made biased policing and discourtesy complaints that were ultimately not sustained by the Department. However, because of the allegations, Internal Affairs interviewed Officer A and B. Officer A’s termination was based on the issue of how the vial of marijuana came into his possession. Under any of the versions, it was
properly and legally recovered and belonged to the person who received the RFC. The legality of the search was not the issue. The sole issue was that there was conflict between the versions of where the marijuana was recovered.

Officer A made the mistake of not taking the interview seriously. He was a member of the League’s Legal Plan, so he could have had an attorney to represent him during the interview. “I didn’t think I did anything wrong,” he said. “I didn’t review any reports. I asked one of the guys at the division to represent me and spent about two minutes with him before the interview started.”

It had been five months since the traffic stop. It would turn out that this personnel complaint interview would lay the groundwork for his dismissal.

During the interview, Officer A was asked where he recovered the marijuana. He stated that it was from inside the car. The investigator had already interviewed Officer B and the person who had the marijuana and knew that they both had said that the marijuana had been taken out of her left front pocket by Officer A. This was never told to Officer A.

The interview continued about details of the stop for another hour. Officer A struggled with his memory, saying “I don’t
remember,” “I think,” “If I remember right,” and other indications of uncertainty. Then he remembered that he had completed a property report.

The interview was stopped and the property report was retrieved. It said: “I contacted the front passenger who advised me that she
was in possession of a small amount of marijuana. The passenger then produced an orange plastic bottle from her left front pants pocket containing less than one ounce of marijuana. I recovered the bottle from her and cited her for 11357(b) H&S on an RFC.”

This caused more questioning. Officer A said that when the passenger said she had the marijuana, she pulled it out of her left front pocket and he told her to set it down and exit the vehicle. He later retrieved it from the vehicle. Again, the investigator went into many details and the officer again indicated he was “not sure.”

Then came the killer question: “Okay. So with all the information now, are you absolutely positive that you did not give her a pat-down and that you did not reach in her pocket to retrieve the marijuana?” Six years of service to LAPD without ever receiving a sustained complaint went up in smoke with one word. “Yes,” Officer A responded.

Anytime you have a conflict in evidence, the Department has the option of calling you a liar instead of allowing you the luxury of only “making a mistake.” After seeing the entire investigation, including the statements of his partner and the marijuana possessor, Officer A allowed that he may have been mistaken, but it was too late.

Officer A’s commanding officer did have an appreciation of the difficulties of memory on a routine stop among hundreds of other enforcement actions during an interrogation five months later. The commanding officer recommended that the inaccurate property report allegation be sustained with a penalty of an admonishment. The false statement about the location of the
marijuana made during the personnel complaint interview was classified as “Non-disciplinary, Employee’s Actions Did Not Rise to the Level of Misconduct.”

The Bureau and the Chief of Police had other opinions. The Chief made it a Board of Rights, recommended penalty of termination for one count of inaccurate report and one count of false statements to Internal Affairs. A Board was held and Officer A was terminated.

In hindsight, Officer A should have written a more detailed report. He should have shown it to Officer B, who could have corrected anything in the report that he saw as inaccurate. He should have taken the personnel complaint interview far more seriously and prepared extensively for it with an attorney. And above all, when an Internal Affairs investigator asked him if he was “absolutely positive” about something, warning bells should have been ringing loud enough to cause an earthquake!

Officers are often in a situation in court, in depositions, and in personnel complaint investigations when they are being questioned in detail about events that have happened months before. There is no shame in refusing to give details about something you are not sure about if that is the truth. No matter how many times you are asked.

Yes, Officer A did appeal his termination in a writ to the superior court. Let me end this article with a quote from the judge’s decision. This is what you are up against when the Chief of Police charges you with false statements and/or inaccurate reports. Officer A is referred to as the petitioner.

“[T]he credibility and honesty of an officer are the essence of the function.” Ackerman v. State Personnel Bd., (1983). A law enforcement officer’s job “is a position of trust and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer. Honesty, credibility and temperament are crucial to the proper performance of an officer’s duties. Dishonesty is incompatible with the public trust.” Kolender v. San Diego County
Civil Service Com’n, (2005). Here, the Board weighed Petitioner’s otherwise positive work history and the favorable testimony of Petitioner’s character witness against the gravity of Petitioner’s misconduct. Despite Petitioner’s personnel history, the Board determined that Petitioner’s conduct undermined the LAPD’s policy of maintaining integrity among all of its officers. Specifically, the Board determined that Petitioner’s drafting of an inaccurate report and making false statements during an official investigation undermined the public’s trust in Petitioner as an LAPD officer and created a risk of exposing the LAPD and the City to liability had Petitioner been called to testify in a court proceeding. “Had this matter gone to a court of law the potential for false testimony by Officer ______ could have posed liability for the City and the Department, and he would have in essence committed perjury. The Court finds that the penalty of discharge is supported by the findings and the LAPD’s official policy of maintaining integrity among its officers. As such, Respondents did not abuse their discretion by firing Petitioner for his misconduct.”

Be legally careful out there.

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