December 2018 – Warning Bells article

Use of force “Clarification” clear as mud


The Department’s “Clarification” notice issued on Jan. 22, 2018, says this: “The courts have held that Less-Lethal force are capable of inflicting significant pain and may cause serious injury. Therefore, consistent with the Department’s Use of Force Policy, Less-Lethal force options are only permissible when: An officer reasonably believes the suspect or subject is violently resisting arrest or poses an immediate threat of violence or physical harm. Less-Lethal force options shall not be used for a suspect or subject who is passively resisting or merely failing to comply with commands. Verbal threats of violence or mere non-compliance do not alone justify the use of Less-Lethal force.”

The notice, however, doesn’t say what you should do instead of what you now cannot do. The option that an officer formerly had, to use less-than-lethal force because a suspect was unsafe to approach, has been eliminated. An officer is now required to go “hands on” with a suspect, and less-than-lethal tools cannot be used until the suspect violently resists. When that happens, the officer may be hurt or disarmed and required to use deadly force.

For example: There is a broadcast of a “415 man with a gun” radio call. When the officers arrive, the suspect is standing on the street with his hands in his pockets. Repeated orders to show his hands are ignored. Now what? Approach? What if he is armed?

Or this example: There is a broadcast of an “ADW just occurred” radio call. When the officers arrive, the suspect is standing in the street, holding a bloody knife. He does not advance or retreat. Repeated orders to drop the knife are ignored. Now what? Approach? Take the first stab?

In both cases, any use of less-lethal force would be Administratively Disapproved because the subject is not violently resisting arrest and does not pose an IMMEDIATE threat of violence or physical harm.

For decades (including my Academy class in 1970), the Department has taught that less-lethal force could, and should, be used when “there is a reasonable expectation that it will be unsafe for officers to approach within contact range of the suspect.” An officer does not want to tie up with a suspect who may be armed or who is likely to fight, ending up in a tussle over who controls an officer’s weapon. The Taser and beanbag shotgun solved these types of problems from a distance.

This tactical philosophy was in writing at least through the December 2015 Use of Force-Tactics Directive, Electronic Control Device Taser (Directive No. 4.4), which states: “The TASER may be used on suspects who are violent, or who pose an immediate threat to themselves or others, when an officer reasonably believes: Attempts to subdue the suspect with other tactics have been, or will likely be, ineffective in the situation; or it will be unsafe for officers to approach within contact range of the suspect. Verbal threats of violence by a suspect do not alone justify the use of the TASER. Any threat must be a credible one.” [emphasis added] Although, violent and immediate
threat were required.

Then came the “clarification” followed by the July 2018 Use of Force-Tactics Directive, Electronic Control Device Taser (Directive No. 4.5), which significantly alters the previous policy on the use of the Taser by completely eliminating the unsafe-to-approach language. The directive states: “The courts have held that Less-Lethal force options are `capable of inflicting significant pain and may cause serious injury.’ Therefore, consistent with the Department’s Use of Force Policy, Less-Lethal force options are only permissible when: An officer reasonably believes the suspect or subject is violently resisting arrest or poses an immediate threat of violence or physical harm. Less-Lethal force options shall not be used for a suspect or subject who is passively resisting or merely failing to comply with commands. Verbal threats of violence or mere non-compliance by a suspect do not alone justify the use of Less-Lethal force. An officer may use the TASER as a reasonable force option to control a suspect when the suspect poses an immediate threat to the safety of the officer or others.” Unsafe to approach as a concept is gone.

What has happened is a Department overreaction to case law. The 9th Circuit Federal Appeals case Bryan v. MacPherson, 630 F.3d 805, (2010) is usually cited as the seminal case raising the use of the Taser to an intermediate level of force capable of inflicting significant pain and that may cause serious injury. Other cases bring other less-lethal tools
into the same category. But the raising of the categorization of the Taser, OC and beanbag to an intermediate level of force does not ban their use. It only means that the Graham v. Connor balancing test adds an increased weight to the use of the tools whose use can still be justified. The Department’s overreaction consists of banning these tools in place
of training officers to properly evaluate and articulate when the tools can be legally used.

This overreaction was completely unnecessary. When Bryan v. McPherson was decided in 2010, Councilmember Bernard Parks made a motion in City Council for “an evaluation of the Bryan v. McPherson case and its impacts on the City of Los Angeles and LA PD’s existing policy for the use of stun guns and whether this policy is within use-of- force guidelines.” The Department and the City Attorney evaluated the issue and reached this conclusion: “The Bryan v. McPherson court decision has no policy impact on the Department’s UOF policy. It is recommended that the Department make no changes to either its current training philosophy or training scenarios.”

And yet the July 2018 Use of Force Directives did just that, to your detriment. The good news is that there are elements in the command staff who are uneasy with the confusion that the clarification has caused. The League is not done with this issue either. We are talking to the Department with the hope that we can solve these issues, but should that fail, we will file an Unfair Labor Practice against the Department for failing to meet and confer before altering the policy and changing our members’ working conditions.

The policy should reflect the fact that less-lethal uses of force are subject to the Graham v. Connor balancing test. Officers should be trained that Tasers, batons, beanbags and OC are considered intermediate levels of use of force requiring a greater government interest to deploy, but it is still a fact-specific balancing test. The factors considered by the courts should be taught to the officers. The result would be that the 415 man with a gun suspect, and the suspect holding the bloody knife, would be tasered, or bean-bagged, within Department policy. No need for an officer to be shot or stabbed before less-lethal options could be deployed.

The bottom line is the safety of our officers and the public. Everyone should keep that in mind.

November 2018 Warning Bells article

Practicality meets science

I have been complaining about this for 23 years, since the League’s attorney rollout program started in 1995. Officers who have been in a shooting and have been awake for 24 hours cannot give accurate interviews. They should be allowed to sleep before being subjected to the most important interview of their careers. Scientific research supports this. The Department, however, has resisted the science in favor of the theory that officers who are sent home prior to the interview will make up a story and so must be “nailed down” to a version of events prior to their release. This attitude was reinforced by the Consent Decree requirements. Damn the science—full
speed ahead!

And now we have body cameras and in-car videos. Not to mention security
camera videos, citizen iPhone videos, news eye-in-the-sky videos and who
knows what other videos. The body-worn and in-car videos alone in the present-day officer-involved shootings require hours to upload and review. Not only must Force Investigation Division (FID) detectives review the videos so they can conduct comprehensive interviews of the officers, but the officers themselves must review their videos with their League attorney to assure accurate answers. These hours of preparation along with the normal snail pace of Categorical Use of Force protocols often push the officers into the world of sleep deprivation. Sleep deprivation only aggravates the inherent problems with the brain’s ability to deal with high-stress events.

I am writing this at the annual International Association of Police Chiefs Conference, where I attended a class called “The Six Critical Psychological Factors to Consider in Determining When to Do an Officer-Involved-Shooting Interview.” It was given by William Lewinski of the Force Science Institute. If you want to cut to the chase, the message was this: If you want accuracy, delay the interview. The six factors to consider took over an hour and a half to explain, but briefly they are: 1) the type of incident, 2) the experience of the officer, 3) attention and memory factors, 4) the emotional
response, 5) fatigue and exhaustion, and 6) the nature of the interview.

Shooting incidents unfold rapidly, can be extremely fast, visually, behaviorally and psychologically complex, and traumatic. An officer is flooded with adrenaline. This is good for the fight, but bad for the memory. Adrenaline interferes with memory consolidation. Adrenaline takes up to 10 hours to metabolize out of the blood. So for that period, there is a chemical in an officer’s blood stream actively inhibiting memory formation.
Sleep deprivation aggravates the problem.

Studies show that an officer awake for 14-18 hours is in the same mental state as a person with a blood alcohol level of .08. If the officer is awake for 20-24 hours, it is the same as a .10 blood alcohol level. If you can’t legally drive, you shouldn’t be allowed to participate in an interview this vital to an officer’s career, critical to a fair criminal prosecution of a suspect and
important to City liability.

Even without sleep deprivation, the brain requires at least one, and two would be better, sleep cycles to consolidate memory. Memory is a three-step process: encoding, storing and retrieval. All the information that an officer’s brain took in through the five senses during a high stress event swirls around in the brain until sleep allows the brain to organize it and store it. So, time is needed to dump the adrenaline, and then sleep is needed to consolidate the memory. Or from the scientific viewpoint, delay the interview if you are interested in accuracy to allow these necessary processes to happen.

Other factors to be considered are the personality of the officer, the training and experience the officer has and the degree of disassociation the officer is experiencing. What were the attention and memory factors impacting the situation, such as time to observe versus suddenness of the incident? Was there an extreme emotional response on the part of the officer either from fear of injury to one’s self, or misplaced guilt at terminating another’s life? Is there fatigue and exhaustion, either from a stressful physical struggle or length of time waiting for the protocol to play out, or both? Finally, is the nature of the interview going to be stressful? The answer will always be “yes” for the interview required by the LAPD protocol.

Here is where practicality meets science. The Department is realizing through experience that the lengthening of investigative time required at the scene of an officer-involved shooting caused by all the processing and reviewing of video makes a requirement that the interview take place prior to the officer going end of watch impractical. Besides, the Department reasons, science is on the side of delaying the interview. Consequently, there is a change of policy being worked out.

Unfortunately, the policy seems to be forming around the idea that the officer be subjected to a “short” interview prior to being released and then a detailed interview to follow in the next couple of days. This will not work for the following reasons. First, no League attorney will allow even a short interview without the officer being allowed to view their body-worn and
in-car videos, as they have a right to do. An inconsistency in a short interview is just as bad as an inconsistency in a long interview.

This means that the videos will have to be collected, processed and viewed by both the FID investigators and the officer and his or her attorney. Both FID and the officer will have to prepare for the interview. Therefore, no time is saved, and the protocol will not be significantly shortened.

Second, and I have personal experience in this, the so-called “short
interview” never is that. One question always follows another, and the answer to that question triggers further questions. Furthermore, the question of why the officer fired is sometimes not easily answered in a quick statement.

Third, science tells us that an interview conducted before the brain has time to organize, encode and store the information slammed into the mind by the senses in an intense experience, can confabulate the memories into forming false memories. Accuracy suffers, and accuracy is an officer’s most important product.

The fact is that the short interview is unnecessary. If it is based on the fear,
insulting as it is, that the officer will make something up if not nailed down
prior to going to end of watch, that reason disappeared with the advent of
body-worn and in-car cameras. The numerous videos “nail down” what
happened. They cannot be changed. The facts are the facts. The Department knows the basics of what happened without having to interview anyone. Besides, two interviews are always bad, especially when one is done under stress. The chance for inconsistencies are huge, and although sophisticated investigators will understand the reasons, the public, the police haters and plaintiff’s attorneys will not. It is better for accuracy for everyone to be prepared for the interview that will cover everything at one sitting.

This means that FID will have to review numerous videos to be able to know what questions to ask, and the officer will have had time to encode, store and retrieve accurate memories of the incident. The importance of a thorough investigation properly prepared for by both sides has increased exponentially. All videos, reports and scientific evidence surrounding an officer-involved shooting are now subject to being released to the public thanks to the bill the Governor signed that will take effect on Jan. I.

Everything the officer says, thinks and does will be endlessly parsed by those with an anti-police agenda. Let’s do it practically, scientifically,
fairly and right. Our officers deserve it.


Be legally careful out there.

October 2018 Warning Bells article

The war on police is alive and well

AB 931, a bill by Assembly Member Weber that would have radically changed the standard for uses of force from “objectively reasonable” to “no other reasonable alternative,” was narrowly defeated largely to the efforts of LAPPL Directors Rob Harris and TJ Tarjamo, the support of other California labor organizations, and an LAPPL lobbying team.

Rob and TJ banged on dozens of doors in Sacramento personally lobbying with the legislators and explaining why this bill would be disastrous to law enforcement. A Force Option Simulator was also transported up there and set up for legislators and staff to find out what officer-involved shootings were really like. That’s the good news. The bad news is that AB 931 will be back next year when the legislative year begins again.

More bad news is that, despite a valiant effort by our Directors and lobbyists, Senator Skinner’s SB 1421 bill did pass. It destroys a large piece of the confidentiality that previously existed in your personnel records. California Public Record Act requests will now be largely successful and plentiful as leaves on trees.

In 1974, in Pitchess v. Superior Court, the California Supreme Court allowed a criminal defendant access to certain kinds of information in citizen complaints against law enforcement officers. The natural result was that police departments started destroying their records. We can’t share what doesn’t exist! The natural result of this was that the state legislature mandated records be kept for at least five years. As a result, police departments demanded confidentiality measures.

In the end, 832.7 was passed in 1978. Personnel records were confidential unless there was a motion filed for disclosure under the Evidence Code. The famous Pitchess Motion was born.

SB 1421 will reduce the need for such motions in the future. In passing this bill, the legislature made several “findings.” It found that misuse of police authority leads to grave constitutional violations and public unrest. It found that the public has the right to know all about serious police misconduct. And it found that “the public has a strong, compelling interest in law enforcement transparency because it is essential to having a just and democratic society.”

These are not just pretty words. They will be used by the courts to interpret how SB 1421 is to be applied, and you’ll notice that “citizens have a duty to follow the lawful orders of a peace officer” is not part of their findings.

So, what does SB 1421 do? It adds an entire section to 832.7 PC that removes confidentiality for specified personnel records and makes them subject to release under the California Public Records Act.

What records are no longer confidential?

Any record relating to the discharge of a firearm by an officer or an incident in which the use of force by a peace officer resulted in death or great bodily injury. Any record relating to an incident in which a sustained finding was made that a peace officer engaged in sexual assault involving a member of the public. And any record relating to an incident in which a sustained finding was made of dishonesty directly related to the reporting, investigation or prosecution of a crime, or to any sustained finding of perjury, false statements, filing false reports, destruction, falsifying or concealing of evidence.

Note that for the use of force reports, there is no requirement regarding a finding. If it occurred, it is not confidential. For the sexual assault and dishonesty, a sustained finding is required before it loses its confidentiality. A sustained finding, if appealed to a Board of Rights or Administrative Appeal, is not conclusive until the Chief makes his final decision after the appeal has concluded.

What is meant by a record?

A lot. All investigative reports, photos, audio and video evidence, transcripts or recordings of interviews, autopsy reports, all materials compiled for the District Attorney to consider criminal filing or for the Department for purposes of discipline or administrative action, what corrective action or discipline was imposed, documents setting forth findings and recommendations of findings, copies of disciplinary records related to the incident including letters of intent to impose discipline, and documents reflecting modifications of discipline including letters of intent to impose discipline due to the Skelly or grievance process, letters indicating final imposition of discipline or other documentation reflecting implementation of corrective action.

Does this include releasing prior incidents?

No, unless a separate and prior investigation is independently subject to disclosure under this statute.

What about multiple officers with multiple allegations in an investigation?

If an allegation is not sustained against an officer, it will not be released. However, factual information about the action of an officer during an incident or the statements of an officer about an incident shall be released if they are relevant to a sustained finding against another officer that is subject to disclosure.

Can portions of the released reports be redacted?

Yes, but only to remove personal data, such as home address and phone number, or identities of family members. Or to preserve the anonymity of complainants and witnesses. Or to protect confidential medical, financial or other personal information that is an unwarranted invasion of personal privacy. Or where the personal privacy clearly outweighs the strong public interest in the records. Or where there is a specific, articulable and particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of a person.

When are reports supposed to be released?

When a California Public Records Act is served in writing on the Department, they have 10 days to decide if they are going to release the reports. If they are going to release them, it is supposed to be done 10 days henceforth.

Can the release of the use of force reports be delayed if there is a criminal investigation?

During an active criminal investigation, disclosure may be delayed for 60 days after the use of force occurred or when the District Attorney determines whether to file criminal charges, whichever occurs first. After 60 days, further delay can be had if the disclosure would interfere with a criminal enforcement proceeding against an officer. Written reasons are required, under seal, if necessary.

Can the release of the use of force reports be delayed if there is an administrative investigation?

The agency may delay the disclosure of records until the investigating agency determines whether the use of force violated a law or agency policy, but no longer than 180 days after the date of the use of force, or 30 days after the dose of any criminal investigation, whichever is later.

Are records of incidents that occurred prior to the passing of the act subject to disclosure?

Yes. No limitations as to date of occurrence exist in the act. Confidentiality for certain records are removed. Thus, when the request under the California Public Records act is filed, any record that meets the criteria, whenever created, must be disclosed. Not much need for Pitchess Motions anymore. The question is how will the Department satisfy the flood of Public Records Act requests that are about to hit them? For instance, a recent officer-involved shooting had hundreds of hours of BWV, DICVS and security camera video, all now subject to release. How many people will it take to put that together with the thousands of pages of reports, review it all for redaction and put it in a form to be released? And how many lawsuits will be filed when the Department releases something they should have withheld or redacted? The ACLU and its buddies in Sacramento are closing down law enforcement, but I guess that is the goal. Note: since this article was published, the League has obtained a TRO temporarily blocking the release of records prior to Jan 1, 2019. A hearing on the matter will be held on 2/5/19.

Be legally careful out there.

September 2018 Warning Bells article

Now they want you to think!

A document has hit the LAN regarding Uses of Force. It is a Training Bulletin called “Command and Control (Volume XLVII Issue 4, July 2018). It does not nec­essarily apply when you are under fire. When you are under fire, or about to be under fire, thinking is not going to happen. Physiology will take over and you will revert to muscle memory and training. But when there is time, the Department will be bringing out this new publication to judge your actions. This will be especially true when you are dealing with the mentally impaired armed with a knife or club.

With your chances of an Administra­tive Disapproval running much higher than 50 percent in any Categorical Use of Force, career survival mandates that you be familiar not only with the Use of Force policy and the Command and Control document, but also the De-es­calation Directive (Directive No. 16, September 2016), and the Use of Less Lethal Force-Clarification from OAS. Recent OISs concerning hostages and multiple officer shootings have amplified the debate on the number of shooters and the number of shots fired during an incident. This is not a new debate. The IG published a critical report in 2012. Because of the recent publicity, the issue has now reawakened, resulting in renewed emphases on command and control. Although this ultimately will rest on supervisors, it also impacts the first officer on the scene or the senior officer on the scene.

According to high-ranking command officers, they do not want Robocops felony proning everyone in the Report­ing District every time a hot call comes out because that is what the manual says. They want you to exercise judgment and planning (thinking). This, however, will require Department management to understand that not every decision has a happy ending, but I guess we will have to wait and see if they can rise to the occa­sion. Remember that an Administrative Disapproval is an official opinion that the officer’s actions “substantially devi­ated from Department policy or training without justification.” You can violate policy or training if you have a good enough reason, but be aware that you are on thin ice. Thinking can be dangerous. A necessary component to any deci­sion you make will be the ability to articulate why you made it. The simple formula of expressing “I saw-I thought-I did” should be the mantra you contin­ually repeat in all your interviews and reports. Articulation is your best friend and, next to being a good shot, is the most important skill you can develop. So here are the Department’s expec­tations of you. By the way, the word “expectations” is not mine, it is a heading in the Command and Control Training Bulletin. Reasonable, or not, this is the lens through which a Use of Force Review Board will view your action, or lack thereof, on every Categorical Use of Force. In fact, the bulletin requires any commanding officer who has the respon­sibility to evaluate or adjudicate uses of force to identify who was responsible for establishing command and control during the incident and compare their actions to the requirements of this bul­letin. There is a new microscope.

Let’s walk through a typical radio call that is likely to end up in being a Cat­egorical Use of Force, “415 man with a knife.” You are assigned, and you roll. The first question that will be asked is “did you and your partner discuss tac­tics on the way to the call?” The preferred answer is “yes.” PATROL is part of both the Command and Control Training Bulletin and the Tactical De-escalation Directive. You get a twofer for discuss­ing tactics on the way to the call because the Pin PATROL stands for “planning.” And the expectation is that you will start planning right away.

So, you arrive at the scene. Sure enough, there is a man standing there with a knife just outside a residence. “Drop the knife!” you shout several times. He does nothing. Just looks at you and neither advances nor retreats.

Now a whole bunch of Department regulations hit you. Number one: Rever­ence for life from the Use of Force PolicyG the Command and Control Training Bulletin and the Tactical De-escalation Directive. If you don’t shoot him, you get a three-fer! (Just kidding).

Number two: The A in PATROL stands for “Assessment.” You have gained situational awareness. You are now required to establish command and control and start making decisions. The senior person between you and your partner is now by default “incident commander” and is expected to express this position openly so responding offi­cers will know who is giving orders and who is carrying out orders. Until an actual supervisor arrives, you are “it.” Now two acronyms run your life. You are still running the PATROL require­ments and now add the Tactical Four Cs. Control, Communicate, Coordinate and Contain.

The T in PATROL tells you to play for “Time.” While thinking about how to do this, you must consider trying to “Con­trol and Contain” the suspect. Does he have an escape route? What if he tries to go into the residence behind him? Any citizens in immediate danger?

You are now at the R of PATROL; “Redeployment and/or containment.” “Communicate and Coordinate” from the four Cs also come into play. Tell your partner what to do. Try to establish verbal contact with the suspect. Is he capable of communi­cating with you or is he in a world of his own? Can you box him in?

O standing for Other Resources is next in PATROL. Request more units. Request an airship. Request a supervisor. Maybe MEU or a SMART team, if you have indications that you are dealing with the mentally impaired. Heck, if you have time, request the Chief. See how he likes being Incident Commander. In short, you will be judged on attempting to get enough resources to deal with the problem.

And now, hopefully, the resources arrive. Command and Control now kicks in big time. I predict that alloca­tion of the responding resources by the Incident Commander will bring about the highest danger of Administrative Disapprovals. Remember, in the opin­ion of the Police Commission, too many shooters and too many rounds fired is their major concern. This may be best illustrated by quoting directly from the Command and Control Training Bulletin.

“For example, officers arrive on scene where a single subject is threatening suicide with a handgun. Two officers are already at scene with lethal cover on the subject. The arriving officers must decide (unless given other direction) if the situation requires additional officers to provide lethal cover, or, if fulfilling an ancillary role (less-lethal options, traf­fic control, perimeter responsibilities, etc.) would better serve the overall goals of Command and Control and de-es­calation. In this example, the arriving officers decide they do not need to deploy additional lethal cover, but instead, assume ancillary roles.”

I can sum this paragraph up in one line: The days of multiple shooters are over.

Continuing with our example, you have dispersed your troops, limited your shooters, contained the subject (who is still just standing there glaring at you with the knife in his hand) and, thank God, a supervisor arrives.

OK, Sarge. The problem as it exists when you arrive is now yours. First, you must advise everyone that YOU are now the Incident Commander. The microscope now leaves our senior offi­cer and places you on the glass slide for study. Go down the PATROL and four Cs acronym for yourself to make sure that they have been complied with.

Now the next problem, what to do with a suspect who just stands there with a knife, refusing all commands. That brings up the Office of Admin­istrative Services’ Use of Less-lethal Force Clarification Notice. It says this: “Less-Lethal force options are only permissible when: An officer reasonably believes the suspect or subject is violently resisting arrest or poses an immediate threat of violence or physical harm.”

Unless you have this, according to the “clarification,” you cannot use OC spray, the baton, the TASER, the bean­bag shotgun or the 40mm launcher. The suspect will not violently resist arrest unless you send officers in to put hands on him. He is not an “immedi­ate” threat unless he advances on the officers or a civilian while holding the knife. You and your team have been effectively disarmed if he just stands there. This gets really complicated if the call was “415 man with a gun” and you have a suspect who is just standing there refusing to take his hands out of his pocket. Do you approach? Retreat? Leave?

The League requested a Meet and Confer with the Department when this “clarification” came out. The Depart­ment refused, saying that this was not a policy change, just a clarification. The Department promised to provide sce­nario training.

The only advice I can give you, for the man with the knife, is keep talking until he falls asleep, dies of old age or makes an aggressive move. The advice for the man with a gun? I think you use less lethal to gain compliance, and don’t forget to have lethal ready. The stakes are too high in that situation to take a chance. However, you may be Admin­istratively Disapproved by the Police Commission. Paradoxically, some­times you just may have to take one for the team. In this case, the team being your officers’ and civilians’ safety. The League, of course, will do everything possible to back your play.

The Department has promised a new round of training on these concepts. Not e-training or checkbox training, I hope, but real training with real scenar­ios taught by real experts. Stand by and pay attention when it comes. The career you save may be your own. It is getting crazier every day on the street.

The League is trying to put together a one-day school, similar to our Rep schools, to educate officers on making it through a Categorical Use of Force investigation. The Department seems receptive. The next best protection to a bulletproof vest is knowledge.

Be legally careful out there.

August 2018 Warning Bells article

Facebook and the First Amendment

I have joked in the past that an officer should be suspended for five days just for opening a Facebook account. Humor aside, what can happen to you while using the internet is no laughing matter. We see internet comments used in many Internal Affairs investigations. 

How can that be, you say, don’t I have First Amendment rights? Some, but you would be surprised how narrow they are. A recent case out of the Second Appellate District is instructive. It is not a published case that can be officially cited as prece­dent, but it lays out the parameters of how courts view statements on Facebook.

To start off, the First Amendment only has 45 words: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Govern­ment for a redress of grievances.” We are considering only six of those words here, namely “or abridging the freedom of speech.” Those six words have triggered hundreds of appellate cases.

There exists a wall of books interpret­ing the First Amendment, and entire courses in law school are dedicated to understanding it, so my intent here is not to make you an expert, but to walk you through a case as a practical exercise in how courts can look at Facebook com­ments. You will see similar comments (and far worse) in many of the exchanges on Facebook pages. I am not criticizing either party in any way, but “Warning Bells” need to be rung as to the possi­ble consequences of a Facebook post. Personnel records are confidential, but court opinions are public. The following is from the court’s opinion only.

The facts are simple. A Director posted a link on his Facebook page to a Daily News article about a lawsuit that had been filed. The Daily News article was titled “LAPD officer says she was harassed because of gender, religion, suing City of Los Angeles.” The same day, an off-duty officer posted the follow­ing comment on the Director’s Facebook page: “I was born Jewish, raised Mormon and married to a Catholic that is Japa­nese, Portuguese and German. NOW WHERE’S MY MONEY? Kiss my ass ya greedy house mouse!”

The Department charged the officer with misconduct (improper remark on Face-book) and administered recommended suspension days. The officer opted for a Board of Rights. The Board of Rights found him guilty and recommended an Official Reprimand. The Chief administered the OR. The officer appealed to the superior court in a writ, but the judge denied it. The officer then appealed to the Appellate Court. The Appellate Court upheld the judge’s decision

The officer’s attorney first pointed out that the Department at the time did not have a social media policy and that no manual section was presented at the Board of Rights that showed a violation. Due process requires that an officer be given notice of the standards by which his or her conduct is measured. No policy, no violation.

The court pointed out that the officer was not being punished for violating social media policy, which admittedly did not exist; he was being punished for violating the manual section that prohibits an officer from on- or off-duty conduct that brings discredit to the offi­cer, department or City. (1/210.35)

That issue being disposed of by the court, the claimed First Amendment violation was addressed. Here is where it gets tricky. The appellate court said this: “[T]he First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern. In determining whether a public employee’s speech is constitution­ally protected, we make two inquiries: (1) whether the employee spoke as a citizen on a matter of public concern and (2) if yes, whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are neces­sary for their employers to operate efficiently and effectively.” (citations omitted)

Putting it in plain language, it is a two-step process. First, is your speech about a public concern? If not, you have no First Amendment protection. But if it is, we proceed to the second question. Does the Department’s interest in effective opera­tions justify the restriction of the officer’s speech? In other words, if the Depart­ment’s effectiveness, or efficiency, is negatively impacted by the speech, even if about a public concern, the restrictions (punitive actions) are legal even if the speech is about a public concern.

So, how were these principles applied in this case?

Was the comment a matter of public concern? The court agreed that at least part of the statement was addressing a public concern about litigation against the City by an LAPD employee. The court struggled a bit with the house mouse section of the statement, but ulti­mately decided that although it appeared to be a personal insult, this did not inval­idate the status of the speech being about a public concern. So the first question as to being about a public concern was addressed and determined to be about a public concern. That, however, is not a win. It only allows you to move to the second question.

Now the house mouse comment was revisited. The court noted that “a police department has a substantial interest in developing discipline, esprit de corps, and uniformity.” Furthermore, no actual disruption needs to be shown. There is no necessity to require a department to allow events to unfold to the extent that the disruption actually occurs. The potential disruptiveness of the Facebook com­ment outweighs the First Amendment right. Since it was a Facebook page of an LAPPL Director and the officer’s Face-book page had photos of him in uniform combined with the fact that an actual complaint had been made, it was proven that the derogatory comment “impaired harmony among co-workers and caused potential disruption to department oper­ations.” Therefore, no First Amendment protection. The Appellate Court found that the Department was legally justified in imposing sanctions.

Courts can differ, but what is the basic lesson here? Dump your Face-book account is my recommendation, although I realize that this is not prac­tical advice. Be aware that posts can be viewed by thousands of people, not only your friends and relatives, but your ene­mies as well. Criminal defense attorneys routinely data mine Facebook posts for anything that can be twisted into use against you in court. Add to that the fact that the District Attorney’s ORWITS database can end up memorializing a careless post that may be shared with your arrestee’s attorneys in perpetuity. And, of course, Internal Affairs is always vigilant.

Before pressing the Enter key on your next post, ask yourself this-could this post be viewed as impairing harmony among my co-workers or be considered potential disruption to Department operations? If the answer is “maybe yes,” push the Delete key instead.

Be legally careful out there



July 2018 Warning Bells article

July 2018 – What if we just give them what they want?

The LAPD is required on July 1, 2018, to be subject to Assembly Bill 953 (now Gov. Code 12525.5, known as the Racial and Identity Profiling Act of 2015). You will be required to fill out a four-page document answering questions about every person you detain or search, no matter what the reason for the encoun­ter. And yes, any pat-down is considered a search. The 11 data fields that you are familiar with have been increased to 25 data fields, and a narrative has also been added where you must write the reason for the stop and the basis of any search. This includes detectives, patrol, task force and plainclothes assignments. If that is not enough, off-duty uniform assignments are also included, such as Dodger games, Staples Center events, USC or NFL football games, and MTA details. The Department is in the process of developing a phone app. Remember the pods?

There is a clear message here by those in charge. That message is “we don’t like detentions. After all, detentions are what lead to uses of force and to biased policing complaints. Uses of force and biased policing complaints would be steeply reduced if you darn cops would just stop stopping people.”

That is true. Unfortunately, reducing proactive policing (stopping people) results in higher crime rates because criminals get to carry their dope and guns around without interference. Then again, no one in government or the media gets upset over higher crime rates, only uses of force and biased polic­ing complaints.

Management wants you to be proac­tive but blows in the political wind if there is an excessive use of force alle­gation or biased policing complaint lodged against you. That puts you in an awkward position. You are engaging in an activity that those in power do not want you to do.

That four-page report you must fill out every time you detain someone will form a pie chart that can and will be parsed in many ways. Are you stopping persons of a certain race in a greater proportion than their population pro­portion in the city? Do you search a greater number of persons of a certain race more than persons of another race? What percentage of your searches actually result in the recovery of con­traband? And on and on.

If you are accused of biased policing, your pie chart will be marched out. If it is not balanced, you will be on the defense to explain why. This brings up an interesting question. If your pie chart is unbalanced, what does the Department want you to do?

First of all, an individual officer has no way of running his or her pie chart. Second, the Department does not have a mechanism of warning you if your pie chart becomes unbalanced. The IT system certainly has the ability to send you an email warning you that your pie chart is approaching an unbalanced state. If we are concerned about biased policing allegations, wouldn’t it make sense to warn an officer of an unbal­anced pie chart? Why wait until there is a use of force or personnel complaint to find out when it is too late?

Let’s say that your pie chart is unbal­anced through no fault of your own. What does the Department want you to do? Should you concentrate on stop­ping people of another race to balance your pie chart out? That would require you to make your stops on the basis of race. That doesn’t sound right. An unbalanced pie chart cannot be straightened out without being racist. Maybe you need to be removed from the field until the pie chart balances through the passage of time? Doesn’t sound good for your career, but neither is being a presumed racist by statistics.

How about just avoiding the problem by stop stopping people? That seems to be the only solution that will satisfy those in power and protect officers. New York and Chicago have already traveled down this road because of con­stant attacks accusing them of racism. New York went from 686,000 incidents of Stop and Frisk in 2011 to 12,000 in 2016, according to the National Review. A 98 percent reduction. Chicago officers in 2016 were required to fill out (only) a two-page report every time they stopped someone. Stops went down 80 percent. Chicago officers called it the “ACLU effect.” The media claims that neither of these statistics resulted in a higher crime rate. Hmmm … maybe we should test that theory out here in Los Angeles.

The bottom line is that Stop and Frisk walks you out on a limb, and there are a multitude of people out there walking around with saws looking for a chance to cut that limb off. The Department is not providing much of a safety net and, even when it does, the Police Commission is likely to overturn the Chief’s efforts.

So let’s return to the question, why not give them what they want? After all, this is a democracy, aren’t we supposed to do what the theoretical majority wants us to do? Shouldn’t our government be allowed to experience the results of its philoso­phy? Why should officers risk injury and career damage by doing something that the politicians are against? Good ques­tions. Think about it.

Be legally careful out there.

June 2018 Warning Bells article

June 2018 – Beware the ORWITS

It starts with a letter sent to you and the Chief of Police. “Dear Officer X: The Discovery Compliance Unit (DCU) of the Los Angeles County District Attor­ney’s Office (LADA) has been provided information regarding an alleged dis­crepancy between your report and the Digital In-Car Video (DICV) regarding the arrest of a suspect for possession of a firearm while being a felon.”

How did Officer X get in this predica­ment? It came from a memo written by the Deputy District Attorney assigned to prosecute Officer X’s arrest of an ex-con with a handgun. In short, Officer X observed a traffic violation, made a traf­fic stop, smelled and saw marijuana in plain sight, recognized the driver from previous contacts as being an admitted gang member who said he was on federal probation, asked him to exit the vehicle and observed and recovered a Beretta 96 .40-caliber semi-auto handgun fully loaded with one in the chamber. Great police work and one more armed gang banger off the street. But what does that have to do with it?

Officer X on the day of the arrest com­pleted an arrest report. Four months later, Officer X testified at the defendant’s preliminary hearing. His testimony was consistent with the arrest report. Then, a little less than four months after that (almost eight months after the arrest), he was questioned by another Deputy Dis­trict Attorney in preparation for trial. It turned out that the Digital In-Car Video had not been obtained by the DDA until several months after the defendant’s arraignment. The DICV turned out to be inconsistent with some statements in the arrest report and Officer X’s prelimi­nary hearing testimony. The DDA wrote a memo to his chain of command about the inconsistencies, and the result was the letter to Officer X and the Chief of Police. No surprise here, the Department initiated a 1.28.

Big mistake No. 1, Officer X, like all the other officers in his division, was pressed by management to limit over­time, so Officer X did not take the time to review his DICV before writing the arrest report. Big mistake No. 2, Officer X, four months later, did not review his DICV before appearing to testify at the preliminary hearing. He relied on the accuracy of his report and his memory of the stop. Neither the DDA nor the defense attorney had a copy of the DICV at that time, although Officer X did have access through Department computers if he so wished. Big mistake No. 3, the Los Angeles District Attorney implemented ORWITS. LAPD officers have enough Big Brothers watching over them. This system just drives another stake into the heart of law enforcement’s ability to deal with crime and puts a wedge, widening the gap, between the police and the prosecutor.

The LADA has long had a Brady system. Brady v. Maryland is a 1963 U.S. Supreme Court case, which along with Giglio v. U.S. and PC 1054.1, mandates prosecutors to provide exculpatory and impeachment information to the defen­dant in a case being prosecuted. When an officer was placed in that system, a letter was sent to the Department and the officer. The officer could appeal being placed in the system, and the appeal required the LADA to have “clear and convincing” evidence that the officer fit placement in the system under Brady. In early 2017, the LADA dropped that standard, and on March 14, 2018, the new Brady/ORWITS system was imple­mented. It consists of two data banks, one for Brady, one for ORWITS.

The Brady data bank contains information that must be disclosed to the defense. The ORWITS database contains infor­mation that may be disclosed to the defense. Both databases come under the umbrella of the Discovery Compliance System (DCS).

Information from what source, you may ask? LADA documents put it this way: “Potentially disclosable information or materials come from many sources, including Pitchess motions, observed courtroom conduct, or testimony, trial or hearing transcripts, police reports and recordings, official records (CII, NCIC, DMV, etc.), newspaper articles, internet searches and others.”

Translated, that means your text mes­sages, Facebook posts, comments made to or heard by a DDA, L.A. Times arti­cles, CYA DA rejects obtained by IA on personnel complaints, or, as in one recent case, YouTube videos, that come to the attention of the LADA, in whatever way, are entered into ORWITS. Once placed in ORWITS, the only appeal is that a mistake as to identity has been made, since the LADA isn’t saying the entry is true (and will not investigate to see if it is), only that the information exists. By the way, when the letter arrives at the Department, an investigation of the per­sonnel complaint that will undoubtedly be opened, will take place.

You need to be aware that when you are talking to a Deputy District Attorney, that attorney has the following mandate from his/her boss: “Deputies who learn of potentially impeaching information about a recurrent witness shall promptly inform their Deputy-in-Charge or Head Deputy.” DDAs are not your attorney. There is no attorney/client privilege. As you can see by the quote, there is a duty to report you if you say or do anything that could be interpreted as affecting your credibility.

Why is the LADA implementing this policy? For your own good, the LADA says. Although this might sound like trying to put lipstick on a pig, the rea­soning goes like this. The defendant’s attorneys may do research on your name in Google, Facebook or any of the hun­dred other sources of information to find out negative things about you so they can make you look bad in front of the jury. The prosecutor needs to know this infor­mation in advance to protect you. If the information is known by the DDA, he or she may be able to bring a 402 motion to the judge prior to the testimony in front of the jury, restricting the defense from asking questions on that subject.

All well and good, I guess, but why the letter to the Department? How often does this scenario of being surprised occur? Enough to gather information on 10,000 officers into a database that never forgets? Is the LADA killing an ant with a wrecking ball? Why gather informa­tion for the defense that the defense may not have discovered?

Well, maybe it won’t be shared with the defense. After all, it is the DDA’s option to disclose ORWITS material, unlike the mandatory duty to disclose Brady material. However, Rule 5-220 of the State Bar Rules of Professional Conduct and Penal Code section 1054.1 (e) can trigger a report to the State Bar for the failure to provide exculpatory and impeaching information. If you are the DDA, would you risk your Bar Card (and therefore your job) by not disclos­ing ORWITS information, or would you play it safe?

So, here’s how it works. When a case is filed, a witness list is entered into the LADA computer system for the generation of subpoenas. The subpoena system auto­matically checks the witness information with the Brady/ORWITS data. If there is a hit, the computer advises the DDA, who then is directed to enter the Brady/ ORWITS system and view the data.

The DDA is also required to run you through the Brady/ORWITS system before the preliminary hearing and again 30 days before trial, in case you’re a newbie in the system. Also, the filing DDA is supposed to run you before filing a case. A DDA who contemplates pre­senting your testimony before a grand jury must run you first. DDAs are also required to run you through the system if you are the affiant on a search warrant or signing a declaration in support of an arrest warrant. If there is a hit, they are told to recommend using another peace officer as a declarant or to include a sum­mary of the Brady/ORWITS potential impeachment material in the affidavit for review by the signing judge.

What to do? Since once you are in ORWITS it is impossible to get out, the strategy must be “don’t get in.” Unfor­tunately, that may not be possible, but you can reduce your chances. First, don’t post anything on Facebook, or text any­thing that you would not want on page one of the L.A. Times. Second, be wary of your interactions with prosecutors. Third, and most important, be accurate in your reports and testimony.

Accuracy is your most import­ant product (and best defense)! PREPARE-PREPARE-PREPARE! WATCH YOUR VIDEOS before you write a report to make sure it is accurate. WATCH YOUR VIDEOS prior to going to court or talking to the DDA. NEVER GUESS when asked a question. “I don’t know” and “I don’t remember” are per­fectly appropriate answers when you are not sure of something.

Being wrong can taint you as a witness for the rest of your career, or even end up with you being prosecuted, or sent to a Board of Rights.

The DDA has the responsibility to prop­erly prepare you before you testify. The Department has a responsibility to ensure that you provide accurate information in your reports and testimony. Caseloads and concerns about overtime respec­tively will bury those responsibilities. Most of the time, you will not be properly prepared by the DDA and you will not be relieved of the pressure to reduce over­time by the Department. You are on your own. Beware of ORWITS and insist on the preparation time to be accurate!

Be legally careful out there.

May 2018 Warning Bells article

May 2018 – Smile-You’re on Candid Camera

No one at the League thought posting videos of uses of force on the internet was a good idea. No one at the Police Commis­sion cared. It was going to happen. Period. End of story. The League was allowed to meet with the Commission and express our concerns. Some were listened to, some were not. On March 20, 2018, the Com­mission approved the policy, and some of your videos will be posted on the inter-net. Here is a review of what the policy dictates. Since I have already stated my opinions on this in the November 2017 and January 2018 Warning Bells articles, I will refrain from restating them and focus on telling you what the policy is.

Why?

The stated reason is to “increase trans­parency with respect to the operations of the LAPD and in doing so, foster greater public trust.” “The people of Los Ange­les have an undeniable interest in being informed … about how their police department conducts its business, espe­cially where officers use lethal force ….”

When?

The video will be released to the public within 45 days of the incident. However, the Chief of Police or the Commission may determine that an earlier release is in the public interest.

What?

The relevant video that depicts actions and events leading up to, and including, the critical incident will be posted. This includes audio footage. Relevant means anything that is typically considered by the Chief, Commission or a prosecutor to determine the propriety of an officer’s conduct during the critical incident.

What else?

The video will be accompanied by additional information to provide con­text based on the evidence available at the time of release. Apparently, it will include a narration similar to a “Cops” episode. Hopefully, the “Bad boys, bad boys. What you gonna do when they come for you” soundtrack will not be included. The League will be watching closely for any illegal postings of pro­tected compelled statements.

Critical incident?

What is a critical incident? Officer-involved shootings, whether a hit or non-hit. A use of force resulting in death or serious bodily injury requiring hospital­ization (LERI). In-custody deaths. And the one that swallows all the rules and allows anything they want: “Any other police encounter where the Commission or the Chief of Police determines release of video is in the public interest.”

Types of video?

All types. Body-worn video, digital in-car video, police facility surveillance video, drone video and any video captured by third parties in the Depart­ment’s possession.

Privacy protection?

Juveniles, victims of certain crimes and privacy interests of other indi­viduals will be redacted, edited out or blurred.

Delayed release?

Safety of the involved individuals, integrity of an active investigation, confidential sources or investigative techniques and the constitutional rights of an accused may result in the delayed release of a video. However, the reasons must have a factual basis and be specific to the individual case. Also, the delay can only happen with the unanimous decision of the Chief and the Commis­sion’s two designated liaisons for video release. Not unanimous? The video gets released. Any delay granted must be reviewed every 14 days. If delayed more than 28 days, the matter is to be placed before the entire Commission to decide if the delay continues. As soon as the reason for the delay has been resolved, it will be released.

Notifications?

They will make a “reasonable attempt” to notify the following people 48 hours before posting the video: the officers in the video; the subject on who the force was used or next of kin; if it’s a juve­nile, the parents or legal guardian; if the subject has legal counsel, the lawyer; the Protective League; and anyone else deemed appropriate.

How long?

It will be on the Department’s desig­nated website until 12 months after the Board of Police Commissioners adjudi­cates the incident. Since adjudications typically take 11 months after the inci­dent, you can expect that the video will be on the internet for nearly two years. Actually, once on the internet, nothing ever really disappears completely.

Effective when?

The policy goes into effect 30 days after approval by the Commission. It was approved on March 20, 2018, so on April 19, 2018, it is operational.

Some advice

Since your uses of force (and anything else) may someday be accessed and viewed by everyone in the world, including your mom, your kids, and all your neighbors, think about the optics. Watch your lan­guage, don’t pick your nose and always wear a smile, no matter how abusive the suspect behaves. The public expects Reed and Malloy crossed with RoboCop, and so does the Police Commission and the Department. You disappoint them at your peril. If you don’t belong to the Legal Plan, now might be a good time to join.

Be legally careful out there.

April 2018 Warning Bells article

April 2018 – What you need to know about Telematics

The first mention of Telematics being used in a personnel investigation has now crossed my desk, so I guess it is about time to ring a Warning Bell. Telematics is a device installed on your police car that captures informa­tion about the vehicle’s shop number, location, mechanical efficiency, vehi­cle performance and sensor data for such things as light usage, emergency equipment usage, seat belt usage, speed of travel and braking distance, that comes directly from the vehicle’s internal computer. That data is then transmitted over a cellular network, allowing for near real-time monitor­ing. In short, you are being watched, and notes are being taken.

Although useful information, like when to change the brake pads, and officer safety data, like your location in case you need help, are good things, the system can also be used to Big Brother you to death. Throw in the body-worn video, digital in-car video and thousands of citizen iPhones and security cameras out there-officers are probably the most monitored indi­viduals in the nation. That is why the League negotiated some protections into the Telematics orders, to which the Department reasonably agreed. Our primary concern was, of course, discipline based on Telematics data. The data is kept for at least a year. Were you speeding? Telematics knows not only your speed but the speed limit on the street that you were on. Hitting the hole? Telematics knows how long your engine was idling. Did you leave the division? Telematics knows your exact location over your whole watch. Is your log accurate? Telematics knows where you were and how long you were there. In pursuit? Telematics knows when your lights and siren came on and when they were turned off. Not wearing your seat belt? Telematics knows when it was buckled and when it was unbuckled.

In addition, Telematics can be a tattle­tale worse than your little brother. It is possible to program the system to recognize “trigger events” and to send a message to the watch commander. “Officer X has driven 25 miles per hour over the speed limit at 1512 hours on the 300 block of Figueroa Avenue.” Better have a good reason, and Telematics knows that your lights and siren were not on! You need to practice being perfect.

Perfection being rare below the rank of captain, the League tried to build in some rules to help you out. The first rule was that, for short of deliberate acts of misconduct, you have 60 days to get used to this new system. You are supposed to be trained on the capabil­ities of the system when it goes active. After the 60 days, you are on your own, but the Department should not be using a wrecking ball to kill an ant. This language was negotiated: “Once the transition period has passed, action taken by commanding officers as a result of audits, inspections, or compli­ance reviews of Telematics data should include positive reinforcement when behavior is consistent with Department policy and procedure, and training, counseling, an Employee Comment Sheet or a Notice to Correct Deficien­cies for deviations prior to initiating personnel complaints.”

Probably the most serious problem is the danger that your reports or testi­mony is contradicted by the Telematics data. When that happens, plaintiff’s attorneys, criminal defense attorneys and the Department have the option of calling you a liar, with all of the nega­tive things that follow that accusation. The League has negotiated your right to review the data prior to writing a report or submitting to an interview. Do it! It won’t be long before the attor­neys know where to drop a subpoena to get the data, and your reports, logs and statements need to be accurate.

The Department has approved the following language in the Telematics order. “When considering whether allegations of false and/or misleading statements are appropriate in any case involving Telematics data, the Depart­ment will consider the materiality of the discrepancy and factors that are reason­ably likely to affect the officer’s memory including the stress caused by the inci­dent, the time elapsed between the incident and the interview, and fatigue. Note: It is not the intent of the Depart­ment to initiate complaints or frame additional allegations of false and/or misleading statements for discrepan­cies between an officer’s memory of an incident and what is on Telematics data unless there is a material discrepancy.” This is encouraging language similar to the language in the body-worn video orders.

Be aware that audits will be con­ducted. Of special interest to the auditors are speed, location and the wearing of seat belts. However, the fol­lowing language was negotiated, “Point of Emphasis: Other conduct discovered in Telematics data connected with an audit, inspection, compliance review, personnel complaint, use of force inves­tigation or pursuit investigation should not become the sole basis for framing additional allegations of minor miscon­duct. Framing additional allegations is appropriate when the actions of the employee could be considered serious misconduct.” Therefore, investigations should not turn into wide-ranging audits of all of your conduct during an incident. The investigation should focus on the allegations.

Finally, Telematics may actually work to your benefit. The order says “Demonstrably False Allegations: Con­sistent with Department policy, all allegations of misconduct initiated by a member of the public must be recorded on a Complaint Form, Form 1.28. However, when Telematics data clearly proves that an allegation of misconduct is Demonstrably False as defined in the Department Manual, the allegation should be classified as Non-Disci­plinary-Demonstrably False. Under those circumstances, accused and wit­ness officers need not be interviewed regarding the Demonstrably False allegation(s).” Technology can be helpful. Telematics is like any tool in our belt. If properly used, it can make the Department and officers more effi­cient at providing the citizens of Los Angeles with the protections that they need. But if you use a hammer, not to pound nails, but to bang fingers, the value of it as a tool is lost. Telematics is the same as the hammer. May it be properly used.

Be legally careful out there.

March 2018 Warning Bells article

March 2018 – Time to Change the Officer-Involved-Shooting Protocol

The last of the Body-Worn Video (BWV) cameras will be deployed by the end of February. The buffer on both the Digital In-Car Video (DICVS) and the BWV has been increased to two minutes. The likelihood that every use of force will now be on video has increased substantially. This fact alone has changed the dynamics of the Officer-Involved Shooting (OIS) protocol.

Back in the bad old days, when LAPD was under the Consent Decree, the protocol demanded that all officers involved in a Categorical Use of Force be interviewed before they go home. It was a brash statement that the Consent Decree did not trust officers and suspected that they would get together and make up a story if they were allowed to leave before their statements had been recorded. This was not only insulting, but ineffective.

As Rafael Perez taught us, if officers were going to plant a gun and make up a story, it would be done before the help call was even put out. In fact, Perez and Nino Durden were separated and interviewed before they went home the night they shot Javier Ovando, paralyzing him for life and making him a millionaire. Since this was in 1996, over 20 years ago, maybe a short recitation of what happened is in order, since most officers on the street today were not yet on the job when this happened.

Perez and Durden worked Rampart CRASH. In 1996, they were on a stakeout inside an empty apartment overlooking a street infamous for drug sales. Javier Ovando, a gang member, not knowing they were officers, barged into the apartment, startling Perez and Durden, who both fired on him. He went down and they immediately found that he didn’t have a weapon. No matter, they had a spare. They went down to their car and retrieved a throwaway gun and placed it by Ovando. Then, after agreeing to their story, they put out a help call. The cavalry arrived, they were separated and interviewed before they went home.

Not only was the OIS deemed in policy, Ovando was sentenced to prison for attempted assault on police officers. Their story held until Perez was caught stealing cocaine a few years later and he revealed the true details of the shooting as part of a deal to reduce his sentence. My point here is that the protocol requiring officers to be interviewed before they go home will not prevent officers from planting guns and making up stories, if they are corrupt. Fortunately, those officers are few and far between. So, the result of the protocol rule is not the assurance that stories will not be fabricated; the result is that officers will be interviewed after they have been up 24 or more hours and under every disadvantage possible.

When an OIS occurs, the officers are separated and an assigned sergeant ensures that they are isolated. FID and the League are notified. In the meantime, the scene of the OIS is processed and the BWV and DICVS videos are collected, downloaded and viewed by the FID investigators. By the time all of this occurs, hours have passed, and if the OIS occurs later in an officer’s watch, it is likely that the officer will have been continuously awake for 24 hours or more.

Other departments, such as Las Vegas and Dallas PD, have a rule that officers involved in critical incidents will be sent home for 48 hours. Besides indicating that their management does not have a belief that all officers are liars, this is a recognition that there is well-established science that has determined that this is the way to get the most accurate statements. The International Association of Chiefs of Police also recommends a 72-hour delay before an officer is interviewed. First, anyone who has been awake for 24 hours is mentally and physically the equivalent of a legally drunk driver with a BAC of 0.10. That means you are being put through the most important interview of your life when you are not even in condition to legally drive. Second, science has shown that when a human being is subjected to an intense experience, it takes up to two sleep cycles for the brain to process and form accurate memories of what happened. Contrary to common belief, immediate interviews are less accurate than interviews conducted 48 hours after the incident. And accuracy is your best friend when you are involved in a use of force.

The proliferation of video cameras adds another reason to change the “interview before you go home” protocol. Force Investigation Division (FID) detectives are also effectively drunk by lack of sleep by the time they get to the interview because they now have BWV and DICV videos to watch prior to the interview so they can ask the relevant questions about the use of force. Often, there are hours of video to review. According to our rollout attorneys, follow-up interviews are becoming more and more common because FID detectives later discover something in a video that raises a question that they did not address during the interview when everyone was fighting fatigue. And, of course, if the use of force is on video, those who think officers will always lie should be comforted. If Perez and Durden had BWV the night they shot Ovando, planting the gun would not have been an option.

Plaintiff’s attorneys love the LAPD protocol. It almost guarantees that the officer’s interview will contain inconsistencies, inconsistencies that will be portrayed as lies in front of a jury. And in today’s anti-police atmosphere, these portrayals are likely to be believed. You would think that the Department, Police Commission and City government would insist on a protocol that will result in an officer being able to give the most accurate interview possible, and there is hope that this is happening. Yes, officers sometimes make mistakes, but admitting a mistake after proper contemplation is far better than being forced into an ambush interview where sober contemplation is impossible and uttering a statement that turns out to be inconsistent is inevitable.

The inconsistency will likely be used to make millions of dollars for some criminal. Someone should be concerned for the taxpayer. Science, videos and common sense must come to our officer’s rescue. Officers deserve the right to be accurate. FID needs ample time to review the video evidence and form relevant questions. Officers need time for their brains to form accurate memories from the required sleep cycles. And the taxpayers need officers to provide accurate interviews. And isn’t accuracy the fundamental goal of the entire protocol?

Be legally careful out there.