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.

 

September 2016 Warning Bells article

Administrative Disapproval

Doesn’t sound like anything you want, does it? What is it? How do you get one?  What can you do about it?  You might think from the media hysteria arising out of the Michael Brown, Freddie Gray, Trayvon Martin and other uses of force across the nation that this media attention to uses of force is something new. Not so.

Our current use of force adjudication system arose out of the controversial and equally headline-generating Eulia Love officer-involved shooting in 1979.  The details of this shooting have been described before in this column, but the short story is that Eulia Love was an African-American woman who struck a gas company employee with a shovel when he tried to turn her gas off for failing to pay her bill. He called the police, an ADW crime report was taken and two LAPD officers were called to the scene.  Love was waiving a knife, and when she started to throw it at the officers, they both  fired at her and she was killed.

A media storm resulted, and the Police Commission responded by conducting an investigation and releasing a report on Oct. 4, 1979, that changed the way that uses of force would be adjudicated from that time on.

Previous to that report, a special section of Robbery-Homicide Division conducted the investigation into the officer-involved shooting if there was a hit on the suspect, and a divisional sergeant did the investigation if it was a miss.  The report then went to a Department Shooting Review Board made up of three staff officers.  This board recommended a  finding to the Chief of Police.  They could  find (1) in policy; (2) in policy, but fails to meet Department standards; (3) accidental; or (4) out of policy.  The Chief then rendered a decision and applied discipline if necessary.

In the Love OIS, there was a split decision.  Two board members found the  OIS “in policy” and one found it “out of policy.” Chief Gates, who later stated that it was not the best of shootings, went with the “in policy” decision. He felt that at the moment the officers  fired, they were in danger of great bodily harm from the knife throw. 

Then, as now, there was a great howl from the anti-police groups in the city and a demand that the Chief be  fired. Chief Gates was asked, “How can we make sure nothing like this ever happens in the future?”  “Don’t throw knives at my officers,” was his response.  That did not go over well, and things got really ugly.

All of this uproar convinced the Police Commission at that time that “substantial changes are required in the system of investigating and adjudicating officer-involved-shootings and other use of force incidents.”  The  first thing that they did was to assume direct responsibility for  the adjudication of all officer-involved-shooting incidents. No longer would the Chief decide if an OIS was in or out of policy.  The Police Commission would now make that call.  That was the birth of“ Administrative Disapproval” from the Police Commission.

The 1979 Police Commission made two other major changes in the adjudication of uses of force.  First, they changed the Shooting Review Board to the Use of Force  Review Board and added another staff member and, more importantly for you, a peer member.  There was a recognition by the Police Commission that the officer’s rank needed a voice in the recommendation process, not just management’s.

From that time on, a police officer, sergeant or lieutenant would be  on the board, depending on the rank of the officer under review. It is vital that this peer member be selected in a fair and objective manner to preserve the Commission’s original intent to give the officer a voice on the Board. At the moment, this is up in the air.

Second, the Police Commission changed the way a use of force was looked at to adjudicate its reasonableness. The use of force up to that time had been looked at in its entirety. Tactics were not separated from the use of force itself and that resulted in inconsistent results.  The effect of tactics was not evenly applied from one use of force adjudication to another.  The method of judging a use of force without reference to its components was confusing and unclear. 

The Commission decided that the Use of Force Review Board should evaluate each aspect of an officer-involved-shooting by forming separate evaluations of the components of a use of force.  Thus was born the three categories in use today, each separately adjudicated: drawing and exhibiting the weapon, tactics, and the use of force itself.

It is the intelligent recognition that an offcer can have bad tactics but a good use of force.  The use of force adjudication does not have to be confusingly mixed with tactics.  Each component can be separately considered and adjudicated on its merits.  The present-day Police Commission has taken a step back toward the confusing bad old days by adding the Hayes doctrine to the use of force policy, thereby, once again mixing tactics adjudications with use of force adjudications. (See a full discussion in the August 2015 issue of Warning Bells.)

So, all that being said, what does it mean when the present-day Police Commission tags you with an Administrative Disapproval? Specifcally, it means that they consider that you have “substantially deviated from Department policy  or training without justification.”

It means, for another thing, that it messes up your TEAMS. It will be shown as an Administrative Disapproval.  The good news is that the Police Commission does not have any power to discipline.  The discipline of police officers, by City Charter, rests in the sole authority of the Chief. All the Police Commission can do is to declare the use of force to be Administratively Disapproved.  This is then sent back to the Chief for disposition of penalty.

The Chief can do one of three things, and none of them are to overrule the Police Commission’s classification of administrative Disapproval.  The Chief can order extensive re-training, give you a Notice to Correct or open a personnel complaint against you.

In layman’s terms, the Chief is saying this: “I can’t condone what you did, but I understand why you did it, so I am going to have you re-trained.” Or, “I don’t like what you did, but I am not really too upset so don’t do it again, and I am going to give you a Notice to Correct to make sure that you understand.” Or, “I am upset that you did this and you are going to pay, so I am initiating a personnel complaint against you!” 

The personnel complaint can go from an Official Reprimand to suspension days to a Board of Rights for termination. It depends on how upset the Chief is about the nature of the Administrative Disapproval.

What you can do about it depends on what is being done to you. It can get a little complicated. Let me take them one at a time.

Administrative Disapproval – extensive re-training

This can be appealed by requesting an administrative appeal. It must be done within 20 calendar days of service on you. It is a hearing in front of a civilian hearing officer.  The Department has the burden of proof that you violated policy or training without justification, but the hearing officer’s decision is only advisory on the Chief. If you win at the hearing, eight times out of ten the Chief will overrule the hearing officer and impose the same penalty.  These hearings are  filed and handled by the Officer Representation Section.

Administrative Disapproval – notice to correct

This can be appealed by  filing a grievance within 20 calendar days of service.  The grievance is reviewed by your captain, Employee Relations Section, and then the Police Commission, and if still not satisfied, it goes to arbitration.  The good news is that the arbitrator’s decision is binding on the Chief. If you win, you win. Grievances are handled by a Director. Contact the Director that is assigned to your division.

Administrative Disapproval – personnel complaint

The appeal here is determined by the nature of the punishment. If the Chief imposes an admonishment or Official Reprimand, the appeal is an administrative appeal, the same as for extensive re-training. Contact the Officer Representation Section and get it  filed within 20 calendar days.

If the nature of the punishment is between one and 22 suspension days, you can opt for a Board of Rights. It must be drawn within  five calendar days of service. Contact the League immediately. If you are a member of the League’s Legal Plan, you will be assigned an attorney. If not, a business agent will handle the board.  This is called an opted Board of Rights.  The downside is that once you opt for a Board of Rights, the number of suspension days is off the table. In other words, if you opt for a Board of Rights to challenge a  five-day suspension, the Board, depending on the evidence, can give you 20 days off , or even terminate you. (Rare, but possible.)

On the other hand, if you are willing to admit guilt but just think that the number of suspension days is out of line, you can appeal the degree of punishment at an administrative appeal. The good news is that the number of suspension days that you are appealing cannot be increased.  The bad news is that the hearing officer’s opinion is only advisory on the Chief. Back to the eight out of 10 hearing officer decisions being overruled. Again, contact the Officer Representation Section and get it  filed within 20 calendar days.

Finally, if the Chief is ordering you to a Board, which he has to do if he wants you terminated, there is no choice. You must draw the Board within  five calendar days, or Internal Affairs will draw it for you. Contact the League immediately. If you are in the Legal Plan, an attorney will be assigned. If not, a business agent will be assigned to represent you.

If you are successful in being found not guilty, either in the administrative appeal or the Board of Rights, the Administrative Disapproval does not disappear. Remember it is a Police Commission adjudication, not an adjudication from the Chief. What will happen is that it will be shown in your TEAMS as Administrative Disapproval –Not Guilty. Practically speaking, it should have no effect on your career since the command staff is aware that the Department does not consider that you have done anything wrong.

It is, of course, best not to get an Administrative Disapproval in the  first place. It is difficult to be perfect, and there is latitude in the system for innocent mistakes (most of the time), but knowing the rules and tactics are your best defense. When that fails, call us, we will help you  fight.

Be legally careful out there.

August 2016 Warning Bells article

The system is rigged

At the risk of sounding like a presidential candidate, this is what the League has been saying about the discipline system and what the League has been trying to fix. The City Charter gives an officer the right to a trial by a three-member panel known as a Board of Rights when accused of misconduct. The Board is made up of one civilian and two LAPD captains or above. The Charter states that an officer shall not “be suspended, demoted in rank, suspended and demoted in rank, removed, or otherwise separated from the service of the department (other than by resignation), except for good and sufficient cause shown upon a finding of guilty of the specific charge or charges assigned as cause or causes after a full, fair, and impartial hearing before a Board of Rights.” (emphasis mine)

The structure of the Charter’s discipline system is sound and fair. It only becomes unfair when those who participate in it cheat. Any system can be rigged by those in power if there is a willingness to do so.

How do we know the system is rigged? Well, four command staff officers have filed separate lawsuits alleging that the Chief, or other high-ranking command staff, has told them that when the Chief orders an officer to a Board of Rights, they are to terminate the officer. So much for the impartial hearing. And now we have a fifth command staff officer who made a similar allegation in a Notice of Claim (prelude to a lawsuit) filed with the City.

The League has filed a lawsuit asking that the Board of Rights system be declared unconstitutional because the command staff board members are unfairly influenced by the Chief and other high command staff officers. The League has also attempted to influence the Mayor to put a Charter Amendment on the ballot that changes the Board of Rights members to all civilians. The Mayor isn’t interested, so the lawsuit must proceed.

A recent Los Angeles Times opinion piece castigated the League’s desire for an all-civilian board, claiming that the League is only doing this because civilians are more lenient than command officers. This reflects a complete misunderstanding of what the League is trying to accomplish. Claiming that the League is asking for civilians because they are more lenient is like criticizing those who prefer jury trials to lynchings because jurors are more lenient.

The three Board of Rights members are in effect an officer’s jury. When board members are told by the Chief, or other high-ranking officers, that when he sends an officer to a Board of Rights they are to terminate that officer (or else face retaliation), that is a lynching, not a trial. The central issue is not civilians; the central issue is having board members who are not subject to the Chief’s influence. In other words, board members who are under the Chief’s command, and whose assignments and promotions depend on the good will of the Chief, can be influenced by those who want to cheat; it is more difficult to influence civilians who are not part of the Chief ’s chain of command. So the League is not arguing for civilians per se, the League is arguing for board members outside the influence of the Chief of Police. That is not asking for leniency, that is asking for fairness.

The Chief, of course, denies attempting to influence board members and points to the fact that some officers who go to Boards of Rights are not terminated. That does not prove that there is no attempt to influence board members. It does prove that there are board members with enough backbone to act ethically in spite of risking career jeopardy. For that our members should be grateful.  Additionally, with five lawsuits to defend that share the same issue, it is likely that the cheating has stopped, at least temporarily, to build a better track record for the upcoming trials. The League’s fear is that it will be business as usual after the lawsuits conclude. A more permanent solution is needed.

Again, it is not the structure of the Board of Rights system that is at fault. It is a good system, based on the military system, that was set up 85 years ago by former Chief William Parker. It was meant to protect honest police officers from arbitrary discipline by management that was at that time crooked. Vice operations were protected for money, promotions were for sale, and honest cops who wouldn’t go along with the program were fired without cause. Parker cleaned up the Department, and the Board of Rights system was an integral part of accomplishing this.

The League is not interested in throwing out the baby with the bath water. The Board of Rights system is a fair system, if not subverted. The problem is, how do you protect the system from those who want to cheat? A partial answer appears to be placing persons on the board who are as insulated as possible from retaliation. It is a shame that this means sacrificing the expertise of command officers because higher management cannot be trusted to allow the system to function without interference.

Unfortunately, the tipping point has been reached. Officers overwhelmingly do not trust the disciplinary system. Assurances from the Chief that the system is fair fall on deaf ears. Significant reform with safe guards built in are necessary to build trust back into the system.

Rigging the system, the League believes (as do most officers surveyed), is not limited to the Board of Rights system. The problem is suspected in the investigation of personnel complaints, administrative hearings and use of force boards. As evidence develops, the League will expand its demands for reforms and safeguards.

All that being said, the League knows that there are many ethical and fair persons in all of these systems. In fact, much of our information comes from the foot soldiers who see these injustices, are offended and provide us with information. It is also unprecedented that so many commanding officers are filing lawsuits in protest of these unfair practices. These lawsuits are all separately filed and are not financed by the League.

Let’s hope that the moon, sun and stars have lined up in such a way that will result in true and  effective reform. In the meantime…
Be legally careful out there.

July 2016 Warning Bells article

De-escalation or Disengagement?

There is a simple way to reduce the biased policing complaints and lots of other complaints,  for that matter. Stop making investigative stops. This would also reduce uses of force. How  many foot pursuits, vehicle pursuits and officer-involved shootings start with an investigative  stop? Sixteen of the 48 shootings in 2015 (33 percent) began with an observation investigative  stop. So, if we can reduce officer-involved shootings by a third, biased policing complaints probably by 90 percent, and a large share of other personnel complaints with one fell swoop by  simply not making investigative stops, why don’t we? This should make a pleased Police  Commission.

Well, the 50 percent rise in violent crime might have something to do with that. And the 50 percent rise in crime might have something to do with the fact that observational stops are way  down from previous years thanks to the lack of support that field officers on the street are feeling. So, this seems to be a vicious circle. Fewer stops mean more crime? Not to former LAPD Chief William Bratton.

In the April issue of American Police Beat, Bratton, now commissioner of NYPD, writes an article disavowing the need for investigative stops. Bratton has the same problem we do, crime on the rise. People on the right, he says, are saying that crime is raging out of control because of the steep decline in street stops, and people on the left are telling him that NYPD is criminalizing minorities with too many stops and arrests for minor crimes. He has chosen a different path for NYPD. He is undertaking a sweeping series of reforms. He wants “skilled officers, not arrest machines.”

Compared to the highs in the previous decade, NYPD made a million fewer public contacts. Street stops went down by 670,000. There were 250,000 fewer summons, and 82,000 fewer arrests. Imagine what would happen to you in recap-happy LAPD if numbers plunged like that out here. Bratton, however, was not troubled, even though stop-and-frisks have gone down 96 percent since 2011 . That is because he is tasking NYPD with a new approach to crushing crime (he hopes). He is directing his investigators to redouble their efforts into local pockets of violence. He refers to it as precision policing.

Basically, he has created violence reduction task forces among specialty detectives, local detectives and local patrol officers to “hone in on local violent actors, build cases against them and take them off the streets.” He has placed intelligence officers in all of their divisions who use “relentless interrogations of arrested criminals to establish leads and develop warrants to arrest those with illegal firearms.” According to Bratton, “targeted investigations in 2015 took 998 guns off the street-more than were seized in the course of 694,000 stops at the height of stop and frisk in 2011.” In line with this, he has created a new Gun Suppression Division of 200 officers who will focus on gun prosecutions.

So, will this be the new wave that sweeps from East to West? Remember “Broken Windows?” That started back East and eventually became standard doctrine across the nation. The new book is “Pulled Over: How Police Stops Define Race and Citizenship” by Epp, Maynard-Moody and Haider-Markel. The good news in this book, which should be read by the Police Commission, is that officers aren’t the racists, the Department (aka, the Police Commission) is the racist. Pay attention, Mr. Saltzman, the book says flatly that it is a “faulty assumption” that racial disparities in police stops are the product of discriminatory police officers. It is the “institutionalized practice” of the agency that is discriminatory. The frantic search for the cop guilty of biased policing is misplaced. The Chief and the Police Commission, implies the book, should look in the mirror to find the racist. “It is our thesis that a specific, well-entrenched, institutionalized practice of the investigatory stop is the main source of racial disparities in police stops and why the racial minorities subjected to these stops view them as deeply unfair even if carried out by a  polite, respectful officer. The investigatory stop is the deliberate creation of police leaders, led by police professional associations, policing researchers, and police chiefs.”

“Simply put,” the book says, “what has emerged in the past two decades is an institutionalized practice rather than the haphazard activity of individual officers.” Has the Constitutional Policing Unit checked this out?

On the other side of this argument is the belief that investigatory stops are necessary. Aggressive patrol is based on the strategy of maximizing interventions and observations in the community-surveilling, stopping and searching as many persons as possible, especially the suspicious ones. This would reduce crime by increasing the likelihood that the police would find fugitives, detect contraband and apprehend persons fleeing from the scene of a crime.

LAPD management and the Police Commission need to lead. If investigatory stops are believed to be the way to reduce crime, then it must be realized that biased policing complaints will be rolling in and there will be a higher number of officer-involved shootings. The Department and Commission must accept their share of responsibility for this and get off the officers’ backs.

On the other hand, if Bratton is believed to be right, then tell officers straight out to stop doing investigative stops and form the violence task forces. But tell the officers what to do. Do not vacillate between officer stand-down lectures and orders to attack the predators and then second-guess and Monday-morning quarterback the officers every time there is a complaint or a use of force.

The practical message to the patrol officers right now is to disengage.  They have always tried to de-escalate.  Career survival says, get off the street: if you can’t, just answer the radio: windows up, smile and wave.  Fortunately, many are still trying to address the crime problem.  They need leadership, not constant criticism from both the Department and the Police Commission.  They need to be defended from the current blast of anti-police sentiment and all the so-called “reforms.”  Reforms are needed far less than support.  We don’t need a new Use of Force Policy.  We need a clear crime-fighting policy and leaders who lead from the front and protect their troops from the flak.  There are bad guys out there who need to be dealt with.

Be Legally careful out there.

June Warning Bells article

Use of Force Policy change–anyone ask you?

On Nov. 10, 2015, short months after his appointment to the Police Commission, Entertainment Lawyer Matthew Johnson issued his “vision and goals for the LAPD.” Of interest here is his concern over the number of uses of force that he felt had doubled in comparison to the previous year. (Actually, over a four-year period, they were slightly above average, as 2014 was a low year.) His goal was to “vastly” reduce use of force incidents through extensive training and modification of tactics.

Let me say upfront that the League supports reducing uses of force, and the more training, the better, but not at the risk of injury to officers or the public.

Johnson summed up his view of uses of force in his statement on that date. Read this carefully, especially the parts that I have italicized and underlined. It predicts your future.

“In particular, the Department’s focus on use of force de-escalation techniques and training in dealing with people suspected of being mentally ill are critical components in minimizing encounters that result in use of force. We need to ensure that this training is effective and that there is enthusiastic acceptance from the command staff through every level of the Department.The initial Stand Down training conducted over the past several months plus the new training to be launched later this month is an encouraging start. It clearly puts us at the forefront of these efforts nationwide. But, culture and habits do not change overnight. To accomplish these necessary changes, we will need continual training and reinforcement of the new expectations. We will have to reward excellence and hold accountable those who do not comply. We cannot expect to change behavior if there are not real consequences for those found to be out of policy.”

Johnson tasked the Inspector General with conducting a study, and on March 10, 2016, that report was delivered and accepted by the Police Commission. It had 12 recommendations. The Commission is now plowing full-speed ahead to implement these recommendations. Although there are now stakeholder meetings being held and the League is demanding a meet and confer, initially no one asked the City Attorney if the recommended changes would make it more difficult to defend the City (and you). No one asked the District Attorney if it would make it more difficult to prosecute those who assault and murder police officers. And, most importantly, no one asked you. Until now, that is.

The League sent out a questionnaire to the membership asking your opinion on all 12 of the recommendations and more. What follows is a summary of your responses.

The current Use of Force Policy was adopted in 2009 after four years of extensive study. The IG Report thought that the policy was hard to understand and confusing. We asked you if you understood the current Use of Force Policy. Ninety-three percent of you stated that you did.

We asked you if you agreed with the current Use of Force Policy. Eighty percent of you said that you did. The dissenters disagreed with the Hayes addition and the over-investigation of minor uses of force.

Seventy-six percent of you disagreed that the Use of Force Policy needed to be updated. One especially articulate officer stated, “The current policy is firmly based in constitutional law and SCOTUS (U.S. Supreme Court) rulings, and allows for the flexibility to address each individual use of force based on the facts and circumstances particular to that incident. It gives officers a toolbox, but allows the officer to determine which tool, in that moment, is most appropriate to use, and then allows for peers and supervisors to determine if that was a reasonable choice to make. Creating a ‘checklist’ of some kind occupies the officer’s thinking processes during the dynamic, near-instant unfolding of the incident before him/her, when the officer’s full attention should be on the facts, evidence, statements and actions occurring.”

Seventy-eight percent of you thought that you received sufficient training in the Use of Force Policy. The 15 percent who did not think there was enough training complained that more refresher training was needed and that online training was not effective.

There was some disagreement as to the fairness of the adjudication system on uses of force. Thirty percent of you felt the system was fair, 50 percent felt that it was not, and 20 percent had no opinion. Many officers thought the system was too political, while others felt that the expectations on their performance under difficult conditions was too high.

The survey then asked the officers’ opinions on each of the 12 recommendations adopted by the Police Commission. See the IG’s Report for the exact wording of each recommendation. The exact language of the IG’s recommendations in the report was used in the survey.

The recommendation to revise the Use of Force Policy to include attempts at de-escalation had an 86 percent disagreement rate. The comments overwhelmingly stated that all officers de-escalate situations whenever they can. Altering the policy will only cause second-guessing, confusion and hesitation, resulting in officers being injured.

The recommendation to revise the policy that deadly force shall only be used when reasonable alternatives have been exhausted or impracticable, and to establish that officers will redeploy when faced with a threat, received a 90 percent disapproval rate. Comments were vitriolic. “Should we buy track shoes so we can run faster while redeploying?” Another comment expressed a common concern. “I don’t exactly disagree with this idea, but the implication is that we as officers are not already doing these things. And if we don’t do it (or don’t do it enough to their liking), it seems that the Police Commission may attempt to use this new policy language to burn officers at the stake to satisfy the mobs.”

The recommendation that evaluations include written consideration on de-escalation and exhaustion of alternatives received an 85 percent disapproval rating. This comment contained typical officer concerns. “Use of force incidents are already reviewed with scrutiny. Seems like they are looking for anything to find it out of policy; thus subjecting the officer to discipline and/or charges.”

The recommendation to return the shotgun and slug policy to pre-2009 regulations received a 89 percent disapproval rating. One officer summed up many comments. “The pre-2009 policy did not work, which is why it was changed. Why are we taking steps back when we should be moving forward? If we go back to the pre-2009 policy and then we have a San Bernardino-style terrorist attack, the policy will be quickly changed back to the post-2009 policy. The problem with this is that many more people will have lost their lives because of it.”

The recommendation to train RESET before interacting with the homeless and mentally ill did better than previous recommendations. Only 40 percent disagreed with this recommendation. Many did not know what RESET did, but this feeling was common. “Impractical to suggest we (police) should be trained mental health therapists in order to do our jobs. That job should be left to the county social workers. Mental health and the homeless should be addressed by our state and federal legislators. For example, change the laws to address involuntary mental health holds and supply the actual resources needed to address homelessness rather than dump these social issues on the police.”

The recommendation to reinforce de-escalation in training and make it a part of the promotion process received a 70 percent disagreement rating. There was a general agreement that training was fine with the officers, but this was a concern. “UOFs occur because people are failing to obey commands and are dangerous to approach. A promotion will now be based on those who refuse to help those in need. Officers will work inside and promote. Every action has an equal reaction, and it’s time our leaders understand these principles.”

The recommendation that the Department survey agencies nationwide have a plan for de-escalation training in four months received a 71 percent disagreement rating. A large complaint was that the four-month requirement was impractical, and another focus was that other departments are coming to us for training. We must be doing something right.

The last five recommendations have to do with evaluation and training, and there is not enough room to evaluate them individually. Generally, over half of the responding officers disapproved of the recommendations.

Finally, the participants were invited to make comments. They weren’t pretty. The common themes were resentment and anger against the Police Commission, Inspector General and Department management for not understanding the difficult job they have as police officers and the failure to back them when they have to make split-second decisions that are sometimes imperfect. Their perception was that the recommendations were politically motivated and that their well-being was being politically sacrificed to the current anti-cop national movement.

One officer answered the request for a comment with this. “I’ll make it quick. I’m no longer planning to stay the 30 years. I’m leaving in five years and putting this mistake behind me forever. I no longer have confidence in what I do. The liberal left has destroyed this career for me. Officers have completely shut down where I work. I feel sorry for the future victims of L.A. There’s no reason to engage the bad people anymore… I’m finished!”

Many others want to get off the street and find inside jobs as soon as possible, not out of fear of criminals, but for career survival. Others stated that other departments were looking pretty good. Not one comment thought changing the Use of Force Policy was a good idea.

One last point. The survey asked this question: “I feel that the Police Commission supports me in doing my job.” Ninety-one percent of the officers disagreed. Five percent had no opinion, and 4 percent agreed. It looks like somebody else needs a policy change more than the officers.

Be legally careful out there.