July 2017 Warning Bells article

Outside the LAPD box

We have our hands full with local LAPD problems and there is not much time to think about the law enforcement problems across the nation, but every once in a while, it is good to escape the LAPD bubble and look at what is happening nationally to other law enforcement agencies. Consequently, I ended up attending the Law Enforcement Summit on Transparency and Accountability put on by JMS Associates. Other perspectives on our common problems were presented across two days of back-to-back speakers. It was interesting and, without necessarily espousing the views of the speakers, let me broaden your world as mine was broadened.

Matt Puckett, the executive director of the Florida Police Benevolent Association, who is a lobbyist for legislation on behalf of its 25,000 members, saw a flurry of legislation across the nation. They were caused by two inflection points: the Ferguson incident and the murders of five officers in Dallas. Ferguson caused legislation on law enforcement accountability and transparency, more diversity on hiring officers, de-escalation training, body cameras for all officers and civilian oversight of departments. Then the five officers were murdered. Another flurry of legislation swept the nation. This time it was a “back the blue” and “blue lives matter” support, the need for more officers and best practices for body cameras. Race relations are at the center of these debates. He advises for unions to get involved in politics.

NAPO will take that advice. Michael McHale, president of the National Association of Police Organizations with 241,000 sworn members, told of their efforts to get federal legislation. They have four priorities: increased protection for law enforcement officers, improving officers’ benefits, returning local law enforcement’s access to surplus military equipment and protecting officer’s social security benefits.

On the first goal, NAPO is promoting three bills that will establish increased sentences for violence against police officers and a new law for an interstate flight from killing or attempting to kill a law enforcement officer.

The second goal has almost been accomplished. A bill has been passed and sent to the president to sign that will improve the Public Safety Officers’ Benefits Improvement Act to give a presumptive benefit standard to officers’ death or disability and increasing the transparency of the status of claims.

The third goal is an attempt to reverse the Obama directive that restricted law enforcement from access to surplus military equipment. Riot helmets, riot shields and armored personnel support vehicles are defensive equipment and save officers’ lives. Negotiations are ongoing with the Trump administration.

Finally, the fourth goal is to repeal the Government Pension Offset and Windfall Elimination Provisions that reduces officers’ benefits under Social Security.

Additionally, McHale met with Attorney General Sessions. Sessions wanted officers to know that there will be a shift in federal support for officers away from the political agenda of the previous administration. Sessions wants officers to know that “he has their backs.”

“I promote ‘right.’ It doesn’t have a color,” said Archbishop Corey Wilson. He and Houston PD Officer Ray Hunt are actively involved in the “thumbs up” movement in Texas. It is a coalition between the Houston PD union and the association of black clergy that passes out “Pray  Police” bands and demands accountability as a two-way street between officers and the community. Supporters display a thumbs up when they see officers. The movement promotes cooperation between officers and the community.

“Comply, then complain,” Wilson tells his community members. Both officers and community members want to live to go home, he tells hem. Officer Hunt, in return, keeps the community leaders up to date on the information concerning incendiary incidents that happen between Houston officers and the community. Facts need to replace false news. The system works. Houston has had no riots.

Sheriff Wayne Ivey of Brevard County, Florida, does it his way. After the San Bernardino terrorist attack, Sheriff Ivey put out a video advising the citizens in his district who were licensed to carry firearms to do so because evil people need to be confronted and they may be the only person at the scene who can immediately act. The video went viral on YouTube and has over 29 million hits. The liberal community, of course, immediately went nuts.

Sheriff Ivey doesn’t care. He is a staunch believer in the use by law enforcement of all the media techniques of communication with the people in his district. It is the only way to bypass the negative mainstream media. He utilizes YouTube, Facebook, Twitter, local radio spots and paid advertisements in papers. Communication with the community is the key.

He has 87,000 followers on Facebook. He maintains strong and frequent contacts with community leaders and gives them facts about incidents before the press can spin it out of control. All of this builds up trust between his officers and the community.

He holds a weekly show where he puts the top 10 fugitives on a wheel and spins it to see who will be the focus of law enforcement for the week. The program is extremely popular, and about 80 percent of the “winning” fugitives are caught.

He promotes parental responsibility by hosting a website entitled itstimetobeaparentagain.com. It promotes parenting and spells out what is legally permitted and what is not. He believes social media is a valuable tool.

On the flip side, there was Natalie Kato of the ACLU. She explained that the ACLU is not anti-police. The ACLU wants the scary people in jail too. There is just a big difference in who is scary and who is not. The ACLU priorities are sentencing reform, increasing diversion programs, bail reform and reducing corrections and criminal justice spending and reinvesting in strategies to decrease crime and strengthen neighborhoods. She wants data and open dialogue with law enforcement leaders to ensure that good policy that promotes public safety while protecting individual rights is formed.

Dr. Lorenzo Boyd, Chair of the Criminal Justice Department at the University of Maryland, spoke on race, diversity and police legitimacy. He said that it is not black crime, it is poor people crime. Stereotypes destroy trust. What do people want? “Respect is the currency of the street,” he says. The community wants to be treated with respect.

Police must convince the community that they have the legitimate authority to tell them what to do. This means acting fairly with justice. The police accept responsibility for too many things, thereby handicapping themselves. Mental health problems should be handled by mental health facilities, economic problems should be handled by elected government officials, etc. The politicians and organizations responsible for these problems should be forced to handle them, not dump them on police officers.

Attorney Benjamin Crump represented Trayvon Martin and Michael Brown, two of the most publicized cases criticizing law enforcement in this decade. I asked him about something that has always puzzled me. “How does law enforcement get blamed for the shooting of Trayvon Martin when it was a non-law enforcement citizen who was the shooter, not a cop?” His answer was that the shooter was not arrested by law enforcement after the shooting as, the community believed, the shooter would have been if he were black.

Crump believes that if there is personal contact between officers and members of the community, they would get to know each other, and the perceived threat level would drop. “Ignorance is dangerous to all of us,” he says.

Ron DeLord has been representing unions for over 40 years. He has so much to say he wrote a book. “Law Enforcement Police Unions, and the Future” is recommended reading.

Republicans in power, he thinks, is a mixed blessing. Republicans will buy you equipment, but don’t think you need a pension. Democrats think you need a pension, but second-guess every use of force decision you make.

Ron wonders if police organizations have the financial strength to deal with crises after crises. He does not see that there will be any significant reductions in poverty, homelessness, mental illness or unemployment in the next 10 to 15 years. Also, the media, politicians and community activists will never be satisfied. All drains on law enforcement.

The good news? Wages will rise because recruits cannot be attracted at current wages. Police are respected in most communities. Union memberships are secure if only for legal protection. Management and labor will embrace reforms and force politicians to put up funds for training.

My thanks to Jim Spearing of JMS Associates for putting this training together. Now, back to our problems….

Be legally careful out there.

June 2017 Warning Bells article

Fantasy-based policing

On May 2, 2017, the Police Commission adopted the recommendations of the Inspector General (IG) in a report titled “Review of National Best Practices.” This report compared LAPD to two documents that purported to be the latest, greatest views on policing. The first was the “Final Report of the President’s Task Force on 21st Century Policing,” which was put together and published in 90 days by a committee of police executives and college professors at the direction of President Obama. The second was “Guiding Principles on Use of Force” published by the Police Executive Research Forum (PERF), an East Coast think tank. Conveniently ignored in the IG report is the fact that this PERF report was roundly criticized by the International Association of Chiefs of Police, the California Peace Officers’ Association, the California Police Chiefs Association and the California State Sheriffs’ Association, among others. Nevertheless, these reports are taken as the gospel to be followed in changing the LAPD. It would take a book to comment on all of the contemplated changes envisioned by the Police Commission based in these recommendations, but let me hit some of the highlights, both good and bad, that will directly affect the day-to-day job of being a police officer in Los Angeles.

Training, training, training

We are going to need another 1,000 police officers to patrol the streets to cover for all of the training that will take you off patrol. Not that training is bad, it’s just that it is a fantasy to believe that this much training can be mandated without directly affecting deployment. Entire probation classes are going to be brought back for two weeks of training in their 11th month, then again in their third year. A series of four-hour training sessions on implicit bias will be given to all officers. Fair and impartial policing training will be put into recruit training, FTO training, Supervisor School and command development training. More cultural diversity training is contemplated. Because of the new proposed policy to administer first aid after a use of force, everyone will be put through recertification in first aid training.

If you do actually get on the streets, there will be a new emphasis on stop data with new fields required to be filled out. The Department is in the process of building applications into phones. Non-categorical use of force investigations will be prolonged and complicated by requiring individual statement forms to be filled out. And there will be a new emphasis on making sure officers are engaged in community activities.

You are all biased, if not racist

The Police Commission is still in disbelief that Internal Affairs cannot convict at least one officer of racial bias. Efforts from the Constitutional Policing Unit will continue working on that, but the newest effort will be on exposing and curing implicit bias (bias that you don’t know you have). The IG noted that resistance to the bias training currently being given by the Department was occurring in the more tenured officers. The recommendation is for the Department to ensure that the selection of FTOs be from those who demonstrate “cultural and community sensitivity.”

Hear warning bells, FTOs! The report says this: “The Department should consider whether FTOs who reject or are otherwise unable to satisfactorily complete the Fair and Impartial Policing component of the recertification course, or who demonstrate a lack of community or cultural sensitivity, should continue to train new officers.” Furthermore, sergeants are going to be given training and direction in how to detect bias. “For supervisors, strategies include ways for them to identify and address potentially biased policing in their subordinates. Indications of possible bias may be found in statements made by the officers, the use of boilerplate language or conclusions that do not appear to be well supported, or the application of a ‘standard operating procedure,’ whether positive or negative, when interacting with a certain group.”

These standards are so vague that anyone on the Department with a dislike for an officer can find some incident, phrase or report that can be twisted to allege bias. FTOs stand in particular danger when they “unsat” a probationer who perceives that they may be about to lose their job, as do supervisors who use any kind of negative discipline against an officer. The first shot back will all too often be an allegation of bias. How does one disprove such an allegation when the Department position is that everyone is biased?

The anti-bias policy is also going to be expanded to include immigration status, housing status, occupation and language fluency. Sounds like filling out an FI card can be career suicide. It won’t be long before the suspects on the street realize how much damage they can cause by alleging bias on each stop. We will be spending so much time investigating each other that the criminals on the street will get a free pass.

Internal procedural justice

This should be a ray of sunshine in an otherwise cloudy sky. The IG’s report recognizes that the concept of procedural justice applies internally to the Department as well as externally to the citizens. “A person’s belief that they have been treated fairly during an encounter or proceeding is often more important to establishing a sense of legitimacy than is the outcome of that encounter or proceeding.” That applies to officers too, the IG says. “Similarly, the way an officer is treated during a disciplinary process may have more of an impact on their perception of the system’s fairness than does the ultimate outcome.”

The message from the League has finally got through after years of lawsuits, grievances and, now, even a Charter change. The IG recommends: “The Department should conduct an in-depth evaluation of the disciplinary system, to include an employee survey, and identify ways to improve procedural justice internally.” The League will be watching this one closely. Will the same zeal be applied here by the Department and the Police Commission as to the other recommendations?

Gang member wants to know the name of officer who shot his buddy?

No problem. It’s online. Transparency is the watchword, and internet is the answer, according to the IG report. Our
manual, special orders and training information will be online. No sense in surprising the bad guys with our tactics and procedures. Also, all the bad stuff about us over the years, such as the Christopher Commission Report, the Rampart Report and the Consent Decree, will be posted online.

The most troubling is that a new web page has been developed and is now online for all shootings. It gives the suspect’s name, report number, location and contains links that will connect to a detailed report of what happened, the officers’ names, and the Police Commission’s ruling on the appropriateness of the tactics, drawing and exhibiting, and use of force. Nowadays, the officer’s home address is not that hard to find on Google, so this is a major concern.

Data piled on more data

We don’t collect enough data, according to the IG report. For instance, no one tracks misses when we use the bean bag and Taser. Also, stop data is not being properly used. “The Department should develop, in consultation with the Commission and the OIG, systems and mechanisms for the analysis of stop and search data to identify potential evidence of disparate treatment, implicit or explicit bias, differential enforcement practices, or Fourth Amendment concerns. As part of this process, it shall present the findings of the recent evaluation of the TEAMS II Early Warning System to the Commission and discuss the extent to which stop data could be incorporated into its framework, along with other tools for analysis.” (emphasis added in bold)

The importance of stop data is going to be elevated to a new level. Beware! “The data could also assist in identifying officers or units that disproportionately conduct searches based on reported probable cause that do not yield contraband.”

You should be aware of your stop data results. The Department should (but won’t) send each officer a stop data summary each month so that an officer becomes aware that he or she is stopping too many persons of one minority or another, or is doing too many searches, or any other problems that raw statistics can be twisted into showing. Then take action to balance your profile. Once you have crossed some imaginary statistical threshold, you will be on the defensive, and it’s too late.

Just to be sure nothing is missed: The raw data is going to be posted online on the City’s Open Data website. If the Department doesn’t analyze the data enough, you can be sure the ACLU will.

What next?

As each of these recommendations are rolled out, the League will be demanding meet and confers (and maybe filing lawsuits). To its credit, the Police Commission has recommended that the League be involved in the conversations, and so does the IG report. You can be sure that we will be involved to the max. In the meantime…

Be legally careful out there.

May 2017 Warning Bells article

Lemonade

 

The Police Commission handed officers a lemon in November of 2015 when newly appointed Police Commission President Matt Johnson decided that uses of force must go down and changing our policy was the way to accomplish that goal. The Inspector General filed a report in March of 2016 that recommended incorporating de-escalation into the Use of Force Policy, among many other things. So, how do we turn a lemon into lemonade?

The fact is that the Police Commission has the power to set policies for use of force as part of their role as the head of the Department. Yes, if they decided that squirt guns were better than the Glock pistol, they have the power to impose that on you. Fortunately, however, state law requires them to meet and confer with the League on things that affect our working conditions. Use of Force Policy changes do that, and so the meet and confer process had to be vetted before the policy change could be implemented.

Unfortunately, the meet and confer process is not the panacea that you may think. It requires that the parties (League and Department) meet in good faith and try to resolve their differences. There is no requirement that those differences be actually resolved. If agreement cannot be reached, an impasse is declared. A Fact-Finder is then appointed and listens to evidence presented by both sides. The Fact-Finder issues a decision based on this evidence, but the Department is not bound by that decision. After the hearing, the Department can unilaterally implement their last best offer. In other words, no matter how the Fact-Finder ruled, squirt guns could replace Glock pistols.

This is exactly what happened to the League when we went through the meet and confer process over the Penalty Guide. We won the Fact-Finder hearing after an impasse was declared, but the Department imposed its last best offer, and the guide came out with the Department’s language despite the Fact-Finder’s decision. So, with that specter hanging over our head, we went through the meet and confer on the effects of changing the Use of Force Policy.

After a lot of head banging, arm wrestling and wordsmithery from both sides, we hammered out changes in the policy and safeguards in the use of force adjudication process that both sides could live with. Assistant Chief Jorge Villegas and President Matt Johnson both exhibited an understanding and concern for the League’s positions, and Inspector General Alex Bustamante was instrumental in smoothing out some of the bumps in the road. Retired Commander Rick Webb, who wrote the original 2009 Use of Force Policy, was also a big help. That being said, what did we end up with?

There are two aspects to the change in policy. The first is the change in the Use of Force Policy itself. One phrase was added and one phrase was modified. The second is the change in the adjudication policy of uses of force used by the Department in Use of Force Boards. Several modifications were made to make the process fairer for the officer.

The change in the Use of Force Policy

 

The adding of specific language relating to de-escalation to the Use of Force Policy was the main issue for the Police Commission and the Department. The League’s view was that de-escalation was something that LAPD officers had always done and there was no need for change. The two changes finally agreed upon are as follows. This language was added to the preamble to the Use of Force Policy. “Officers shall attempt to control an incident by using time, distance, communications and available resources in an effort to de-escalate the situation, whenever it is safe and reasonable to do so.” Note that you need not jeopardize your safety or the safety of others to comply with this section.

Under the “Factors Used to Determine Reasonableness” section, the phrase “The time available to an officer to make a decision” was changed to “The amount of time and any changing circumstances during which the officer had to determine the type and amount of force that appeared to be reasonable.”

That is it in terms of changes to the Use of Force Policy. As you can see, and as you have already felt, there is a new emphasis on de-escalation as previously highlighted in previous Warning Bells articles.

 

The change in the adjudication process

 

Although LAPD officers have practiced de-escalation for decades, our fear was that changing the Use of Force Policy would result in increased disciplinary actions against officers. We wanted an improved adjudication process that brought more balance to the process. The Commission and the Department were responsive to our concerns. Several changes were made.

The basic system, in brief, that has been in place since 1979 is that after Force Investigation Division (FID) finishes its report, it is submitted to a Use of Force Board. The Board is comprised of four staff officers and a peer member. The Board conducts a hearing and reviews the FID report and takes recommendations from the officer’s commanding officer after an FID Power Point presentation on the details of the use of force. The Board then makes a recommendation that goes to the Chief of Police. The Chief of Police then reviews that recommendation and makes his own recommendation to the Police Commission. The Commission then makes the final adjudication on the use of force. Through the negotiation process, the League and the Department agreed to make the following changes in the use of force adjudication procedure.

First, clarification was made to the Hayes language in the adjudication process. The Hayes language was added to the Use of Force Policy in 2014 and says this: “The reasonableness of an officer’s use of deadly force includes consideration of the officer’s tactical conduct and decisions leading up to the use of deadly force.”

Adjudication confusion resulted. For instance, in one case, the failure to discuss edged weapon tactics and the failure to remove a beanbag shotgun from the trunk prior to responding to a female with a knife call were tactical elements that made a use of force out of policy. We agreed to clarification language in the adjudication documents to more specifically determine when the Hayes language should apply. It states: “In all categorical use of force incidents involving deadly force, the CO should consider, as part of the totality of the circumstances, the officer’s pre-force conduct in evaluating the reasonableness of the officer’s ultimate use of deadly force. Pre-Force conduct may render a use of deadly force unreasonable in those instances where the tactical conduct and decisions leading up to the use of force are directly connected with the use of force and unreasonably created the need for the use of force.” Emphasis added. From now on, tactical mistakes must not only be directly connected with the use of force, but must also have unreasonably created the need to use the force to make that use of force out of policy because of faulty tactics.

 

Second, the peer member participation was expanded. Peer members of the same rank as the officer being reviewed are to provide the Board with insight at a level of expertise equal to the rank of the officer who is being judged. It seemed fair to establish a list of peer members that was static and from which the next person up on the list was assigned to the next Board without favoritism. This was meant to protect those who might have a different view from being eliminated from future Boards. Twice a year the Department will request new peer volunteers, train them and provide them with the literature needed to participate in the Board. They can only be removed from the list for cause. PLEASE, get on this list. Your fellow officers need your input, and you will gain valuable experience about uses of force. Participation should also look great in your package for promotional orals.

Third, any documents that go to one Board member must go to all Board members with sufficient time to review them prior to the Board convening. This will ensure that all members have access to all the documents distributed.

Fourth, an officer who receives a recommendation by the Board of Administrative Disapproval (out of policy) will have the ability to prepare a response that will go to the Chief of Police for review prior to his recommendation to the Police Commission. The officer’s response will also be supplied to the Commission. To assist with this, a member of the Officer Representation Section will attend all Use of Force Boards. Access to the entire FID investigation and PowerPoint will be made available to the officer and his/her representative to prepare this response. The officer’s viewpoint and arguments can, therefore, be presented to the Chief and to the Police Commission if desired.

Fifth, no last-minute changes to the FID PowerPoint can be made without the commanding officer of FID’s approval.

Sixth, if there is a minority opinion, the author or authors of the minority opinion have the option to personally appear at the time of the presentation of the recommendations to the Chief of Police so that they may explain their reasons and answer any questions the Chief may have.

Conclusion

 

Once given the mandate by the Police Commission in March of 2016, the Department was tasked with carrying out the Commission’s directions. A year of negotiations with the League has taken place. We now have the result. Overall, the two changes in the policy and the six changes in adjudication policy balance out to be a net gain for the street officer. The key is to realize how de-escalation has risen in importance in the adjudication of a use of force.

As Warning Bells has previously pointed out, you have been engaging in de-escalation your entire career. Now it is vital that you articulate it. More than articulate it, brag about it! In your interviews, describe in detail everything that you did to avoid using force. Memorize the “Tactical De-escalation Techniques” (Directive No. 16, October 2016) and the Use of Force Policy. Be sure to address as many points as possible in your interviews. Show them you know what you are doing, and…

Be legally careful out there.

April 2017 Warning Bells article

Another reason not to use your personal cellphone for work

On March 2, 2017, the California Supreme Court gave police officers another reason to leave their personal cellphones in the locker when they suit up and head out to the streets. Now your personal cellphone might be subject to a California Public Records Act (CPRA) request along with being subjected to subpoenas for criminal and civil cases.

In 2009, Ted Smith, a community activist in San Jose, thought there might be some shenanigans going on within city government about a proposed downtown development. He filed a public records request for all documents concerning communications between city officials regarding this issue. The city coughed up a bunch of documents but balked when Smith wanted text messages from city employees’ private cellphones.

Eight years later, we have the California Supreme Court case of The City of San Jose v The Superior Court of Santa Clara County, S218066. Ted Smith will get his messages. This case isn’t limited to cellphones. If you use your private iPad, personal computer or any other personally-owned electronic devices for City business, they are also included.

Why? According to the Supreme Court, government transparency pretty much trumps employee privacy. “Openness in government is essential to the functioning of a democracy,” the court said. Accountability requires that individuals have access to government files. “Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.”

The Supreme Court did recognize that there are privacy rights, even for public employees. As with other clashes of government versus private interests, it becomes a balancing test. The CPRA is a set of statutes that establishes the disclosure of public records upon request to any member of the public who makes the request in writing. It creates a presumptive right of access to any record created or maintained by a public agency that relates in any way to the business of the public agency.

There are exceptions named in the statute, such as medical records, security files, tax information and many other things. However, everything is disclosable that is not protected by statute. When deciding what is protected, the Supreme Court is bound by an amended California Constitution section that states that courts shall “broadly” construe when the decision furthers the people’s right of access and to “narrowly” construe when it limits the right of access.This resulted in the Court’s extension of access to personal cellphones.

So what is a “writing” in the 21st century? It was easy to define in the good ole days. It happened on paper. Now it includes electronic communications. So text messages, recordings, emails, etc. all fit the definition of a “writing.”

When do your cellphone texts or emails become related to the conduct of the public’s business? The court said that to qualify as a public record, it must “contain information relating to the conduct of the public’s business…and generally any record kept by an officer because it is necessary or convenient to the discharge of his official duty is a public record.”

The Supreme Court gives us an example that is specifically helpful to police officers. If you text a spouse that your co-worker is an idiot, that would not be a public record. However, if you text or email a superior reporting a co-worker’s mismanagement of an agency project, that might well be a public record subject to release.

A court will look at the content of the writing, the writing’s context, the purpose for which it was written, the audience to whom it was directed and whether the writer was acting or purporting to act within the scope of their employment. It must relate in some substantive way to the conduct of the public’s business. It does not include every piece of information the public may find interesting. “Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records.”

Here is the bad news that the Supreme Court declared: “A writing prepared by a public employee conducting agency business has been ‘prepared by’ the agency within the meaning of section 6252, subdivision (e), even if the writing is prepared using the employee’s personal account.” Therefore, it is subject to disclosure. Furthermore, the public record does not lose its character just because the official takes it out the door. Being retained by the employee, even if in an employee’s personal account, is the same as being retained by the agency.

Be aware that the court will look at content, not whether you were at work or not. So, the issue is not whether you were on duty. The issue is whether you created a public record. You can be at home when you create the text or email that is required to be disclosed.

What happens if a citizen files a CPRA request for emails and texts about a project that you were involved in? Does the Department get to now summon you in and wander through your private cellphone to comply with the search for documents demanded in the CPRA request? “Searches can be conducted in a manner that respects individual privacy,” the Court said. How does the Department do that? The Department is required to disclose all records that they can locate “with reasonable effort.” Reasonable efforts, however, do not require extraordinarily extensive or intrusive searches.

The Supreme Court gives guidance. The Department should communicate the request to the employee in question. “The agency may then reasonably rely on these employees to search their own personal files, accounts and devices for responsive material,” the Court said. The employees can submit an affidavit with sufficient facts to show that the information they have is not a public record.

Guess what will happen to you if it later turns out that the text or email on your phone was a public record that you did not disclose? Stand by for the ram!

There is an easy way out. Never conduct public business on your personal electronic equipment. By the way, if you do have a Department-issued cellphone, recognize that the Department has full access to it. Never conduct personal business on Department-issued electronic equipment. If you follow these two rules, for you, the Supreme Court case will be irrelevant.

Be legally careful out there.

March 2017 Warning Bells article

Police Commission administrative disapprovals matter

When you are involved in a categorical use of force, it starts a chain reaction. First, of course, is the Force Investigation Division interview the night of the use of force. Then, there’s the restriction from the field until you are cleared by Behavioral Science Section and the Chief hears about your shooting at the 72-hour briefing. Then, about nine months later, there is a Use of Force Board. FID makes a presentation of the investigation to the Board, and the Board makes a recommendation to the Chief of Police. This is the first place that Administrative Disapproval may appear in your life.

The Chief views the Board’s recommendation and makes his own recommendation to the Police Commission. Most of the time, he follows the Board’s recommendation. The Police Commission then views the Chief’s recommendation and makes the final decision on whether the use of force is in policy or not. Most of the time they follow the Chief’s recommendation. And then sometimes, they don’t.

When they don’t, it is usually because the use of force has gone political. That means the professional protestors have been marching around with “murderer” signs and filling the two minute public speaking sessions in front of the Commission meeting with profanity and disruption. The media is usually joyfully joining in with the criticism.  The Police Commission doesn’t resist political pressure well; witness the overturning of the Chief’s recommendation in the Africa OIS, the overturning of the Chief’s recommendation in the Ezell Ford OIS, and the overturning of the Chief’s recommendation in the Norma Guzman OIS.  All subjects of activist and media focus.

Why does the Commission’s decision to label a use of force Administrative Disapproval matter? The most immediate and personal reason is that it forces the Chief to consider discipline against the officer even when he has determined that the officer has done nothing wrong.  Fortunately, discipline rests solely with the Chief of Police under the City Charter, so one of his options is to give the officer “extensive retraining” rather than suspension days. However, as one of the Commissioners stated on TV, “We write the Chief’s rating.” Regardless, the Administrative Disapproval remains in the officer’s personnel package, staining his or her record.

But there are other consequences. For one thing, it gives credence to the argument that the officer has acted outside the scope and course of his or her employment. That raises the question of whether or not the City will defend the officer in a lawsuit. It is said that 60 percent of officer-involved shootings with hits end up in civil court, with the
Department and the involved officers being sued. Generally, the City Attorney will represent an officer in such lawsuits because the officer is in the scope and course of duty when the force is used. The interest of the City and the officer are one. The force is justified.

However, this dynamic changes when the Police Commission has declared that the officer’s use of force was Administratively Disapproved. This classification opens the issue of the possibility that the officer was not acting in the course and scope of his or her duty. The City Attorney now has a theoretical conflict because if the officer is not acting in course and scope, then the City is not liable, but the officer as an individual is. The officer is now in the position that the City Attorney, who represents the City of Los Angeles, must choose between showing that the officer is out of course and scope, thereby reducing the chance of City liability, or fighting for the officer, thereby increasing the chance of City liability. That is called a conflict of interest.

The City Attorney usually handles this problem by rejecting the officer’s request for City Attorney representation and providing the officer, at City expense, with alternative counsel. The bad news is that in order for the officer to get the alternative counsel, he or she is required to sign a waiver that states that the City can refuse to pay any damages ordered against the officer. The officer either signs or must hire his or her own attorney with personal funds. The good news is that the case usually settles, and the waiver is not enforced by the City.

A case in point describes the problem and what a Police Commission’s political Administrative Disapproval puts officers through and how long the process takes. In 2010, officers in the elite Special Investigation Section (SIS) were involved in an officer-involved-shooting.  It was not necessarily surprising, because the SIS Unit’s common duty is to
follow known robbers around to catch them in the act of committing armed robberies, and then arresting them. Surprise! They get in more shootings than your typical officer. IS has gone through major media attention in past years due to the number of shootings the nit has been involved in, as they followed armed robbers, armed kidnappers and other highly dangerous suspects. They are assigned the worst of the bad actors out there, and they are highly rained in tactics.

In this instance, they were tasked with following a suspect who was thought to be committing a string of armed robberies. Sure enough, the suspect drove to a business location, went inside  and exited a short time later. The SIS crew sent one officer inside to see what happened. Armed robbery was the answer—the suspect used a gun.

Having that information in hand, the unit used its impressive tactic to jam a suspect in a vehicle and prevent a pursuit (not described here for obvious reasons).  After loudly identifying themselves to the suspect, they ordered him out of the vehicle. The suspect ignored their orders and dug around inside the vehicle, coming up with a handgun, which he pointed at one of the officers. This was a bad decision on his part. The SIS officers opened fire, one officer firing three shotgun rounds. The back window of the suspect’s car shattered with what the officers believed to be the suspect firing. The officer who fired three rounds fired three more.

The suspect then made a good decision and opened the door to surrender. He was severely wounded but was taken into custody and lived to file a lawsuit. The officer who fired the six shotgun rounds lived to watch his use of force be ruled out of policy. A seven-year odyssey had begun.

The night of the shooting, no gun was found. The suspect’s car was impounded by Scientific Investigation Division for examination. During the examination, a hidden compartment was found in the dashboard of the vehicle, and in that compartment was a revolver. The revolver had an expended round in the chamber under the hammer. It was also noted that the suspect had delayed getting out of the car for a full five minutes before he surrendered, giving him plenty of opportunity to stash the gun in the compartment.

The Use of Force Board found the use of force to be in policy. The Chief found the use of force to be in policy. Then it got to the Police Commission. The media published articles about the number of shootings that SIS had been involved in as a group and the fact that the officer had personally been involved in another shooting a month before. Three members of the Commission ruled the first three shotgun rounds to be in policy and the last three shotgun rounds to be out of policy.

They opined that the second set of shotgun rounds were out of policy because it was not reasonable to believe that the suspect had fired the weapon at the officers and, therefore, they were not immediately in danger of great bodily harm. Clearly a political decision that ignored a spent cartridge under the hammer of the suspect’s gun.

It took the common sense of a jury to bring things back to reality. However, the immediate result was that the officer had his outstanding record stained by an Administrative Disapproval. Then when the inevitable lawsuit came in, the City Attorney refused to defend him and provided him with paid alternative counsel.

The plaintiff’s attorney was allowed to present the Police Commission’s Administrative Disapproval determination to the jury as evidence that the officer was in the wrong. In the end, the jury ruled in favor of the officers. Not guilty.

When polled for the reason for their decision, the jury foreman replied with stunning common sense that whether the suspect was holding the gun during the last three shotgun rounds or not, the officers were reasonable in believing that he was armed because the suspect had a lot of time to surrender and did not.

The end result is that this odyssey had a happy ending because a lot of dedicated people came to the officer’s defense and put in hundreds of hours of preparation. No thanks to the Police Commission, but many thanks to City Attorneys Cory Brente, Alternate Counsel Pete Ferguson, and their crew of investigators. League members can be thankful that these people exist.

As this article went to press, another shining example of the results of the Police Commission’s inability to stand against public pressure presented itself. The City Council approved $1.5 million in the Ezell Ford officer-involved shooting. Recall that Ford was a gang member who was stopped by two LAPD officers and who attacked them, nearly getting control of one of the officer’s guns before Ford was shot in self-defense. Again, the Chief determined that the use of force was in policy, and the Police Commission overruled the Chief, determining that it was not.

The City Council voted to pay the $1.5 million to settle the case. Two City councilmembers voted against the settlement. A quote in the press is telling. Councilmember Englander is quoted as saying, “I believe the vote to support the settlement was the right thing to do. I just couldn’t support it. Englander called his vote ‘symbolic.’ I
wanted to send a message to our officers that I believe they acted within the scope of their training and their experience. Englander said he also believed the City would have ‘done much worse financially’ had the case gone to trial, particularly because the Police Commission found that one of the officers who shot Ford was unjustified in using deadly force.”

Yes. Police Commission Administrative Disapprovals matter.

Be legally careful out there

February 2017 Warning Bells article

Talking Tactics and De-escalation

These are the two issues that the Police Commission most critically focus on when reviewing your categorical use of force.  An officer was recently given an Administrative Disapproval by the Police Commission, in part, because he and his partner did not specifically discuss edged weapon tactics on the way to a 415 Woman with a Knife radio call.  And, you can be sure, that the topic of de-escalation will be the first thing that the Commission looks at in every use of force that results in injury or death of a suspect.

When you are involved in a Categorical Use of Force, you will be interviewed by a Force Investigation Division investigator.  The investigators are trained and experienced in conducting the kind of investigation that will satisfy the Inspector General and the Police Commission.  They have checklists to make sure that they consider all of the issues involved in a Categorical Use of Force.  High on that checklist is the issue of discussion of tactics and/or the formulation of a plan.  Both you and your partner will be asked this question.  “Were you able to discuss tactics or develop a plan prior to your contact with the suspect?”  Since there is always time between receiving a radio call and arriving at the scene, the expected answer will be ‘yes.’  The follow up question will be “what did you discuss.”  Since you and your partner are immediately separated and you are both going to be asked these questions on tape, a lively discussion at the Inspector General’s office or the Police Commission back room can be expected if you and your partner’s answer differ significantly.  Many times they will because when you are involved in an officer-involved-shooting, the last thing you are concerned about is remembering conversations on the way to the call.

Never the less, it is part of the package that will be considered when the chief makes recommendations to the Police Commission about whether your tactics substantially deviated from Department policy and training without justification.  And, it is certainly something that will be contemplated by the Inspector General and Police Commission, especially if your OIS turns out to be controversial.

So, because you know it is coming, be sure to have a tactical discussion of some kind with any new partner and always discuss tactics on your way to any hotshot.  The question will be asked.  One suggestion might be to clip the Tac Ops Pre-Planning Guide and put it in your notebook.  When you have a new partner, pull it out and go over it together.  When you get the question in the Categorical Use of Force interview, you can say “my partner and I reviewed the Tac Ops Pre-Planning Guide.”  It is always good to review tactics and an effective answer to the question.

The other hot topic, nationwide as well as at your next Use of Force Board, is de-escalation.  The League and the Department are in a Meet and Confer on revising the Use of Force policy because of the direction of the Police Commission connected to this issue.

De-escalation is nothing new.  When I was in the police academy in 1970, we were taught that distance plus cover equals time, and time gave you more opportunity to react and plan.  Officers have always gone to great lengths to avoid a fight whenever possible, mostly for humanitarian reasons, and maybe a little bit because uniforms are so darn expensive that rolling around on the ground with a suspect is economically undesirable.  What is new, however, is the emphasis on the concept as the answer to eliminate all police shootings that is now being trumpeted by the media, anti-police groups, and politicians.

The antidote to this media manufactured non-problem is articulation.  We de-escalate all the time, but it is so normal and natural that we don’t talk about it.  It is paramount that we now articulate it in our reports and interviews.  Point it out!  Use the word!  Brag about it!  We no longer should write that I “told the suspect to drop the weapon five times.”  We now should write or say “in an attempt to de-escalate the situation and avoid using force, I told the suspect to drop the weapon five times!”

The Department in October of last year put out a Use of Force Tactics Directive.  It has two important parts.  The definition: “Tactical de-escalation involves the use of techniques to reduce the intensity of an encounter with a suspect and enable an officer to have additional options to gain voluntary compliance or mitigate the need to use a higher level of force while maintaining control of the situation.”  And the exception: “Tactical de-escalation does not require that an officer compromise his or her safety or increase the risk of physical harm to the public. De-escalation techniques should only be used when it is safe and prudent to do so.”

You can be sure that the Police Commission when reviewing your Categorical Use of Force will focus on this question, “What did you do to de-escalate the situation, or if you did not do anything, why not?”

The likelihood is that you did do something to de-escalate.  You just need to express what you did.  A quick review of the tactics directive will highlight the different things you do that fit under the definition of de-escalation.  For instance, any planning that you do while en route to a call fits the definition (and satisfies the FID question you will be asked above).  Any assessing of the situation upon arrival that you do is a de-escalation technique.  Taking advantage of cover is a de-escalation technique.  Redeployment, containment, and communication are all de-escalation techniques.  The requirement is that you recognize them as de-escalation and name them in reports and interviews.

On the other hand, if the situation is such that immediate action is necessary, articulate that fact clearly.  It fits the exception.  Use it.

You survive to go home through tactics.  You survive the administrative investigation through articulation.  Both are necessary skills.  Work to develop them.

Be legally careful out there.

January 2017 Warning Bells article

Charter change. What is it? Why did it happen? Why do we want it?

In March of this year, the public will be asked to approve a Charter change affecting discipline for LAPD officers. It addresses the makeup of the members of the Board of Rights. Currently, a Board of Rights consists of three members: two captains or above and one civilian. If this Charter change passes, an accused officer will have the option to choose three civilians for Board members, or the traditional two captains or above and one civilian. In other words, there will be an option to be judged by three civilians if you don’t trust the traditional two captains or above. Everything else in the Board of Rights system will remain the same.

Why did it happen? Morale was down and the League, based on communication with its members, believed that it had a great deal to do with the disciplinary system. So we sent out a survey asking officers of their opinions regarding the fairness of the system:

82 percent of the participants felt the system was unfair.

87 percent felt that the system showed favoritism to certain persons over others.

94 percent believed that higher ranks were treated more favorably than lower ranks.

67 percent felt that Internal Affairs investigations were unfair.

62 percent felt that Boards of Rights were unfair.

68 percent felt that the Chief of Police unfairly influenced the Board of Rights members.

Then, of course, there was the fact that a total of five captains and above who were former Board members filed separate lawsuits against the Chief of Police for retaliation they suffered when they failed to terminate officers who had been sent to Boards with recommendations from the Chief to terminate.

The League looked at discipline systems across the nation and realized that the Board of Rights system established under the L.A. Charter in 1935 is actually the best system out there— that is, if you don’t cheat. And reducing the ability to cheat is why the League is pushing for this Charter change. Captains and above owe their rank, assignment and future to the good graces of the Chief. Civilians do not. Therefore, civilians are more difficult for the Chief to influence. That is not to say that there are not captains who understand that they are to judge the facts objectively and do so because they have the ethical backbone to ignore possible career damage. But it is hard to ignore five separate lawsuits that mention retaliation for not following the Chief’s recommendations.

Even the president of the United States is on our side on this issue. The “President’s Task Force on 21st Century Policing” report expresses in one of its six pillars for law enforcement the notion that internal discipline procedures in police departments should be fair. How can you expect your officers to treat citizens fairly if the officers themselves are not treated fairly by their management, the pillar asks? Sort of a “parents who beat their children will have children who beat their children” type theory. The cycle needs to be broken.

Critics to having three civilians on the Board of Rights claim that the civilians will be more lenient than command officers. It is true that almost all minority opinions on Boards of Rights are written by civilians who recommend either not guilty or lesser penalties than the command officers. That is not because they are more lenient. It is because they are less susceptible to internal LAPD politics and sometimes refuse to go along with the political program. If someone is being lynched, the person who wants a trial is not being lenient. They are being fair. Fairness is what is being sought by the Charter amendment.

The beauty of the Charter change is that it gives the accused officer the choice of which Board configuration will conduct the hearing. Some officers may fear that civilians do not truly understand the job of a police officer. They can choose to have the traditional Board of Rights, two captains or above and one civilian. Other officers may feel that the Chief will try to influence the Board against them because of previous clashes with management. They can choose to have three civilians.

The civilians will come from a pool that has been established by the Police Commission. They are mostly lawyers and arbitrators. What happens if the pool is packed with anti-police types in the future? No problem. Choose the traditional configuration. Officers are never required to pick three civilians if they do not want to.

Similarly, if the Department becomes more and more political, an officer is never forced to pick a Board that has two captains or above in its composition. Maybe this will move both commanding officers and civilians to be more fair to preserve their place in the discipline process. Or maybe future Chiefs will insist that their commanding officers be objective and never retaliate against them for perceived wrong adjudications.

Why do we want it? No matter which way the discipline system drifts, it gives an officer a countermove that will help preserve the fairness that the Charter demands. Section 1070(a) of the Los Angeles City Charter lays down the rule that should permeate the entire system. It mandates a “full, fair, and impartial hearing.” Those are words to live by.

As always, the League is reacting to what the Department does. The system has been rigged, and trying to correct this is why the League filed a lawsuit and promoted the Charter change. The Charter’s Board of Rights system is the best system in the nation; that is, if it was allowed to function as it was intended to function. The League does not want to lose the Board of Rights system, only to protect it from those who would manipulate it.

It will ultimately be determined by the voters, but we owe Councilmember Herb Wesson and Mayor Eric Garcetti gratitude for their assistance and support.

Be legally careful out there.

December 2016 Warning Bells article

The League and lawsuits

“Sue the Bastards” is a phrase attributed to Environmental Law Attorney Victor Yannacone in the ‘60s that seems to have heartily survived to the present day. It could qualify as a League bumper sticker judging by the number of lawsuits filed by the League in the past year. So how do you as a League member get involved in League litigation?  Several ways, in fact.

The great majority of the League’s civil actions are writs to the superior court challenging Department adjudications.  Department adjudications usually start with a personnel complaint interview. If you are a member of the League’s Legal Plan (and 92 percent of you are), you are represented by a League panel attorney. Under the Legal Plan, the road to a writ goes like this: A personnel complaint interview, a decision by your captain that you are guilty of some allegation, a Skelly by you with the assistance of a panel attorney, a decision by the Chief of Police that you are still guilty of some allegation, an appeal to either a Board of Rights or an Administrative Appeal, and a decision against you. The Legal Plan ends there. The next step is the Legal Committee.

What is the Legal Committee? The Legal Committee is made up of League delegates. At the beginning of each year, the League forms various committees from the delegates pool of around 220 members. One committee is the Legal Committee. There are 139 delegates are currently assigned to the Legal Committee although only 15 to 25 typically show up at the Legal Committee meeting to vote on requested actions.

In the last 12 months, 50 officers have appeared before the Legal Committee and requested that some form of civil action to be financed by the League on their behalf. About 88 percent of the requests are to appeal disciplinary decisions imposed by the Department. Another 6 percent involve the appeal of a superior court decision lost in a previous writ, so 94 percent of the Legal Committee’s work involves challenging Department discipline. The Committee recommends to the Board of Directors that the League fund the requests about 80 percent of the time.  That recommendation is forwarded via the Legal Committee Chair person to the Board of Directors. Since it is only a recommendation from the Legal Committee, the Board of Directors has the final call on whether an officer’s case will be funded. It is rare that they do not follow the recommendation of the committee.

The remaining cases considered by the committee are usually requests for representation in defense of criminal cases brought against the officer or representation for the defense of civil cases where the City has declined to represent the officer. In these cases, the committee uses the criteria in the bylaws to decide on recommending funding. The bylaws require that the “the member requesting representation acted in good faith without malice, fraud or oppression, and in the course and scope of his duties as a peace officer, whether on duty or off duty at the time of the incident giving rise to the charge.”

Another question that the committee takes into consideration in all cases is will this lawsuit be beneficial to the good of the membership? The committee is aware that what the Department can do to one, can be done to anyone.

There are also lawsuits that the League files on its own behalf as the plaintiff, or, at times, on behalf of an officer who has an issue that affects the entire membership. An example is the disciplinary lawsuit the League filed to challenge the bias in the Board of Rights system. Another is the lawsuit filed against the City for the gift of public funds in forcing officers to work the L.A. Rams football games without the Rams providing the funds to employ off-duty officers. These lawsuits are not considered by the Legal Committee; they are voted on directly by the Board of Directors. In the past the League has filed lawsuits over the exclusion of attorneys from representing witnesses in Boards of Rights, the 2 percent lawsuit, lawsuits involving financial disclosure, lawsuit challenging forced Conditional Official Reprimands, lawsuit challenging downgrades without justification, and many others. By the time you read this, there will also probably be lawsuits filed by the League demanding a hearing to challenge Police Commission adjudications of uses of force being administratively disapproved, confidential personnel information being posted on the internet, and demanding a meet and confer from Police Commission policy changes.

By the way, the million dollar verdicts that you read about in the newspapers awarded to officers in jury trials for being a whistleblower, or discrimination, or sexual harassment, or other abuses by the Department, are not financed by the League. They usually arise out of the program that gives League members a one-hour consultation on any legal issue with panel attorneys. These lawsuits are done on a contingency basis by private attorneys who have met with the officers under the one-hour consultation program. Contingency means that the concerned attorney will finance the case in return for a certain percent of the ultimate award. If you feel that you have been the victim of some nefarious conduct caused by the Department, phone the Claims Unit and obtain a Director’s one-hour referral.

Before you get the idea that the League is unnecessarily litigious, consider this; we only react. Each lawsuit starts off with the Department doing something that negatively impacts our members. We resist and object on behalf of our membership. When the Department will not listen to us, we go to court. In other words, lawsuits can be reduced to zero if the Department would only behave!

So, on a practical level, if you feel that you have been wronged by the Department, how do you get the League to “sue the bastards!” to borrow the ‘60 phrase? The answer is to call the Claims Unit in our Legal Section and schedule yourself for the Legal Committee. The phone number is (866) LAPPL4U. The Legal Committee meets on the first Tuesday of every month. When you call the Claims Unit, they will get some information from you and have you sign a form. Documents pertinent to your request will be collected and distributed to the Legal Committee members for their review in advance of the meeting.

On the day of the meeting, you will be scheduled to appear in front of the committee. Usually, you bring your representative to explain the legal issues concerning your case to the committee members. For example, if you are requesting a writ to the superior court because you were terminated by a Board of Rights, the decision and rationale of the Board of Rights would be provided by you along with the termination document signed by the Chief for the committee to review and the attorney that represented you at the Board would accompany you and explain the legal reasons why the Board of Rights should be overturned by the court.

The Legal Committee reviews your documents prior to the meeting day. On the meeting day, you are brought in with your representative and they will listen to your statement as to why you feel the League should fund your lawsuit. The committee will ask you and your representative questions and then you will be excluded and they will discuss and decide what their recommendation will be for the Board of Directors. That recommendation is carried to the Board, usually at the next Board meeting, and discussed and voted on by the Board. The member then gets written notification of the decision.

Sometimes you must go outside the Department to get justice. Know how it’s done.

Be legally careful out there.

November 2016 Warning Bells article

Use of Force and the Police Commission

 They are supposed to be our leaders.   They are the head of the Department.  Everything they do is a reflection on Mayor Garcetti because he appoints them. So how can they come up with  decisions like this?

The bare facts are these. Two officers respond to a 415 woman with a knife call. On arrival at the location they see her and exit their police vehicle.  She also sees them at the same time.  In 11 seconds she covers 70 feet at a  fast walk (4.1 mph) with a knife in her hand pointed at the officer.  In those seconds, the officer yells six times “Drop the knife.” Screaming “Shoot me!” she continues coming directly at him, the knife in her hand still pointed at him.  He fires one round at a distance of four feet and she goes down.

This use of force is ruled out of policy  by the Police Commission (overruling the Chief who found it in policy). It was a 4-to-1 split decision. Commissioner Soboro retained his common sense and is excluded from the remarks to be made in this article.

Four Police Commissioners, at the recommendation of the Inspector General, decided that an officer cannot use deadly force to defend himself from a knife attack that is four feet away and approaching at 4.1 miles per hour. How can this be?

It’s called politics. Th e Commission bends to the political wind like a stalk of grain in a gale.  The gale is the national criticism of police shootings currently in the media despite the studies that show it is based on lies.  They have demonstrated that they will throw you under the bus to appease the anti-police protesters.  The reasons cited by the Inspector General and the four Commissioners that make this an out-of-policy shooting are based on three things.

First, the officers while en route to the did not specifically discuss edged weapons tactics.  Second, they should have stopped prior to getting to the call to take their bean bag shotgun out of the trunk.  Third, although the officer who was four feet away from the knife-wielding suspect had initially been in a favorable position with a car between him and the suspect, when she went around the car, he should have redeployed, or, in other words, run.

As further evidence of twisting logic to arrive at a predetermined result, the  officer’s partner also  fired his weapon.  Twice, simultaneously with the initial officer. Because only a total of 11 seconds had passed from the time the police vehicle stopped until the shooting, the partner officer, who was the driver, had only time to reach the area of the trunk of his unit before he saw the woman and the knife almost on top of his partner. He was 10 feet away. Fearing for his partner’s safety, he fired two shots. He was found to be in policy. As the junior partner, he was excused from failing to talk about edged weapons and getting the bean bag shotgun out of the trunk.

The facilitator of this political decision to sacrifice this officer to the anti-police crowd was the Hayes language pushed by the Inspector General and added to the use of force policy in 2014 by the Police Commission.  In short, it states that deficient tactics prior to a use of force can make that use of force out of policy.  The propaganda told to us at the time was that this would be rarely used and only in those cases where the tactics were so bad that they actually caused the use of force to occur.

It is difacult to see how failing to discuss edged weapons tactics caused the suspect to charge the officer with a knife.  It is also difficult to see how not getting a  bean bag shotgun out of the trunk prior to arrival caused the charge.  The failure to run also had nothing to do with the suspect’s decision. So, instead of the bad tactics causing the shooting, the emphasis now shifts to a supposition that if this, or that, had been done, the shooting would not have happened.

The Hayes language simply provides an avenue to rule any use of force out of policy when the political wind blows hard.  There is always something that could have been done differently. How about if the officers hadn’t responded to the call, the shooting would have never happened? For them, showing up was the ultimate tactical mistake.

Both of the officers were wearing video cameras, and an external security video also captured the officer-involved shooting.  This case illustrates the good, the bad and the ugly of body-worn video.  The good of body-worn video in this case was the fact that it showed exactly what happened.  There were three civilian eyewitnesses to the shooting.

Eyewitness No. 1 stated that when the suspect was shot, she was just standing there with her hands down to her side and she did not have a knife in her right hand. Eyewitness No. 2 stated that the suspect did approach the officers aggressively, but her hands were down to her side and he did not see anything in her hands. Eyewitness No. 3 stated that the suspect did not walk towards the officers and did not have anything in her hands when she was shot by the officer.  The body-worn video conclusively disproved their statements.

Additionally, four other witnesses who heard the shots and looked over at the scene stated that when the suspect was down, prior to handcuffng, the officer kicked the suspect, as if “kicking a soccer ball,” according to one of these other four witnesses. Again, the body-worn video conclusively proved that this did not happen. Can you imagine the  field day the press would have had if these statements were not shown to be false?

The bad of body-worn video in this case was that it didn’t make any difference.  The politics still trumped the facts.  The officer was declared to be out of policy anyway.  The ugly of body-worn video in this case was the visually disturbing full-color image of what happens to a human being when a .45 slug hits the body at close range.  The impact, the blood, the horror of that reality is overpowering and hard to watch. It may be that the power of the image alone drives logic and judgment out the window when trying to evaluate the propriety of the use of force–especially for civilians who aren’t used to such scenes.  That, however, is no excuse.  The video of the officer being murdered by knife would be equally horrific.

The bottom line is that the Police Commission exists, not only to protect the public, but also to protect the officers who are sent into the frontlines to enforce the law and provide public safety.  Officers have the right to go home every night. When in danger of being killed or seriously hurt, officers should not have to choose between their life and their job.

Be legally careful out there.

October 2016 Warning Bells article

When the crime report becomes the crime

It is a noticeable trend. Criminal cases are being filed on officers that not so long ago were only Boards of Rights. It is one thing to have your job placed in jeopardy, but it is completely another to have your freedom placed in jeopardy. And if you lose your freedom, you will surely lose your job.

Because of the national media inspired war on police, it is now politically expedient for prosecutors to file criminal charges against cops. The most blatant example of this is the prosecutor who filed charges against six officers in Baltimore over the death of Freddie Gray.  Fortunately, the criminal justice system cleared the officers, but their lives will never be the same.

Unfortunately, all too often, the head of a prosecutor’s office now wants to be able to have a record of filing charges on police officers to satisfy voters. Remember the good ol’ days when convicting mass murderers was good press?

The most recent filing on LAPD officers shows a troubling trend on sending officers to face a jury over their report writing. I have often said, especially when talking about shootings, that “accuracy is our most important product.” It seems to be coming true that “inaccuracy is the prosecutor’s most important product.” When that report is wrong, or seems to be wrong, hear warning bells. What used to be suspension days, Boards of Rights, civil lawsuits (none of which are good), can now include jail time!

As officers, our focus has always been on knowing the criminal laws related to robbery, burglary, narcotics, weapons, traffic, and so on. We use these laws daily in our enforcement activities. It is time to focus on another set of laws, probably more important because knowing about them will keep officers from exchanging the witness chair in the courtroom for the defendant’s chair. These are laws that are directed at you and the procedural things that you do every day.

Let’s take a theoretical case. You and your partner investigate a T/C and write a traffic report regarding a hit and run investigation.  One of the parties complains that the report is not accurate. The District Attorney believes that they have evidence that the report is not only inaccurate, but that you and your partner knew that it was inaccurate.

Let’s start with Penal Code section 118.1. False Statements in Crime Reports, which says:

“Every peace officer who files any report with the agency which employs him or her regarding the commission of any crime or any investigation of any crime, if he or she knowingly and intentionally makes any statement regarding any material matter in the report which the officer knows to be false, whether or not the statement is certified or otherwise expressly reported as true, is guilty of filing a false report punishable by imprisonment in the county jail for up to one year, or in the state prison for one, two, or three years. This section shall not apply to the contents of any statement which the peace officer attributes in the report to any other person.”

The first thing that is apparent is that this is a felony. A wobbler, maybe, but a felony nonetheless. The second thing to notice is that it is the turning in (filing) the report with the agency that completes the crime. It doesn’t have to be a certified statement, signed under penalty of perjury, or sworn to. Turning the report in is all that is needed. The argument then turns on whether the statement in the report was knowingly and intentionally made about a material matter. A video; a tape recording; a witness statement that is inconsistent with the report can all be used to characterize a report as deliberately false. Once a decision is made to file charges, you are on the defensive.

A false report leads to a second charge, 182 (a) (5) PC, Obstruction of Justice, which says:

“Criminal conspiracy; (a) If two or more persons conspire: (5) To commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws.”

Both you and your partner affix your names to the report. Under case law, it is not necessary that two persons meet together and enter into an explicit or formal agreement to commit a crime, or that this be expressed in words. If in any manner the conspirators tacitly come to a mutual understanding to commit a crime it is sufficient to constitute a conspiracy. And obstruction of justice is also a felony because the false report is a felony. The prosecutor’s theory will be that you and your partner are jointly responsible for the report. So when it was turned in, both of you must have agreed to submit the false statement.

And this is just the report. If you really want to pile on extra charges, wait until it’s time to testify under oath. Mistakes or inaccuracies testified to because you are relying on a report written months ago by a careless partner that you didn’t properly review places you in jeopardy of facing perjury charges. Police work is serious business. It isn’t only uses of force that can get you in trouble.

The point of all of this is to remind you that there can be some serious consequences if you do not pay attention to the accuracy of your reports. In the current atmosphere, carelessness can be catastrophic. If your name is on a report, even if you did not write it, read it and make sure that it is accurate. Look at your digital in-car camera and body-worn camera video before you write your report. There are officers who have faced criminal charges who wished that they had.  Don’t be one of them.

Be legally careful out there.