May 2012 Warning Bells Article

Chief Beck on Gotcha

When Chief Bratton replaced Chief Parks as the head of the Department, he had an immediate problem. The Parks harsh disciplinary system had convinced patrol officers that the mere act of getting out of their cars risked career suicide. Thus, smile-and-wave was replacing stop-and-frisk. Predictably, arrests went way down and crime went way up.

When Bratton addressed his first Delegate’s Conference, he told the audience of delegates that he had never seen a department that ate its own like the LAPD did. He said he wanted that changed. To that end, he made a promise to the troops. He said it repeatedly and he published it in The Beat in April 2003, among other places.

I made a poster of out of the Beat article and displayed it prominently at Boards of Rights and Administrative Appeals to keep Bratton’s promise in front of the captains who were judging officers. I loaned the poster out to other officer representatives, and Bratton’s language was often entered as evidence in hearings.

That is why I was surprised when I received word that that the Internal Affairs advocate had objected to this exhibit being introduced as evidence at a Board of Rights and the Board agreed and denied its entry as evidence of LAPD policy (Warning Bells, March 2011).

However, this did fit right in with Internal Affairs’ discernible pattern of attacking officers’ rights. The League has filed more than a half dozen lawsuits in the past year against the Department for denying discovery, interfering with the officer’s right to a fair hearing, denying representation and other acts designed to make sure an officer will always lose in challenging any action the Department decides to take.

Still, no one could produce any document that repealed Bratton’s no-more-gotcha policy. So when Chief Beck appeared to address the delegates at the 2012 Delegate’s Conference, I decided to ask him if he had.

This made sense since the Chief of Police is the only person in the LAPD who can discipline you. Everyone else is only making recommendations. Here is the question and his answer, verbatim. He gave his permission to have his answer published. Obviously, he wants his policy to get out and be followed. The Chief’s entire message to the delegates can be viewed in the Members Only section of the League website at LAPD.com.

INGEMUNSON: Chief Bratton published and said many, many, many times that the age of gotcha in this Department has come to an end. “If you are in the right, we will back you up. The benefit of the doubt goes to you. If you are wrong, we will retrain you. If you are corrupt, we will jail you.” We tried to get that into a Board of Rights a little while back and the Internal Affairs investigator … I’m sorry … the advocate said that was from an old chief. I never saw anything where the age of gotcha was withdrawn and I just wanted to get your take on Bratton’s promise to the troops about that particular thing that I just read.

CHIEF BECK: Well, and I will talk to the advocate’s office about that. That of course is not the way I feel about discipline in the Los Angeles Police Department.

As a matter of fact, I take considerable heat for my stance on discipline and the use of conditional ORs and other ways that use a promise of discipline, or a promise of discipline to correct behavior rather than imposition of a penalty … immediate penalty. So, I do believe in those things. I am not a manager, nor do I want managers, that focus on the minor and don’t recognize the major goals of the police Department. Discipline … this is something that is really important to me.

And I get this from a lot of different perspectives. I don’t expect anybody to be perfect. None of you. I wasn’t a perfect police officer. I made mistakes. Everybody makes mistakes. This job is too hard to be done perfectly. The only jobs that can be done perfectly are simple jobs. This is not a simple job, so I don’t expect anybody to be perfect.

I do expect you to be honest. I do expect you to value the Constitution. And if you do those things, then I will accept an imperfection in your performance if it is done honestly. If it is done with a good heart. If it is just a mistake of the mind, I can live with that. We’re human. Everybody in here. No matter how good you think you are. We make mistakes. I can accept that.

What I can’t accept is dishonesty or corruption. And, luckily, I get to run an organization that has very little of that. What’s important [is] that people understand the way I think about this. So, if you have any message that you take back … any message that you take back is that the Chief believes in honesty. And if you’re straight with me, then I will reward you as I can.

I expect people to be up front. I expect them to admit when they make mistakes. When you do that, then you give me the latitude to be circumspect in the application of discipline for that mistake. So, these are very important things to me. And I believe in the organization and I believe in all of you. Thank you.

I guess I don’t have to throw my poster away. Feel free to clip this article and show it to any supervisor in your chain who just can’t help chicken sh*ting the troops to death. The Chief has spoken.

Be legally careful out there.

April 2012 Warning Bells Article

Hey, who cares? It’s someone else’s tax dollars!

Councilman Dennis Zine (currently running for city controller) asked a question that hasn’t been asked before: Why are police officers successfully suing the Department, forcing the City to pay out millions in damages from jury verdicts?

“Crazy juries,” LAPD management shouts. “Slick plaintiff ’s attorneys,” they lament. It’s never “we screwed up.” Those staff officers who are convicted by the jury are held innocent by the Department.

Zine’s question deserves to be answered. After all, he is part of the City leadership and hopes to be the one in charge of finances. Judging by the penny-pinching he was known for when he was on the League’s Board of Directors, he is likely to watch City expenditures closely. So let’s look for an answer to his question.

Why are so many officers suing the City? That’s easy. There is no other place for them to go to address their grievances except a plaintiff ’s attorney.

All too often, reporting misconduct such as hostile working conditions falls on deaf ears, or worse, results in retaliation. Discipline is administered haphazardly and there is no trust in the appeal process.

There are supposed to be systems within the Department that officers can use to appeal discipline, downgrades and transfers. The administrative appeal hearing from the officer’s point of view is a joke. In this process, a hearing officer (until recently a captain or above) is drawn by the officer wishing to dispute a paper penalty, transfer or downgrade. A hearing is held and the hearing officer makes a recommendation to the Chief of Police. The Chief is not obligated to follow the hearing officer’s recommendation. So first of all, an officer has to convince a captain to tell the Chief that he was wrong. That is a steep hill to climb. Then, even if the officer climbs it, the Chief doesn’t have to follow the recommendation — and doesn’t. In the last nine years, you can count the number of times on one hand and you don’t need to use your thumb.

In the last contract negotiations, the League negotiated for civilian Board members to be the hearing officer. We hoped that they would be free from Department politics and that the size of their paycheck would not depend on the Chief ’s opinion of them. The first civilian decision just came in. The officer won. The Chief ignored the civilian hearing officer’s decision and refused the hearing officer’s recommendation. So much for citizen review.

An officer’s view of the Board of Rights cannot be much better. The League has filed a lawsuit against the Department for repeated violations of due process. One of the problems repeated over and over again is the Department’s refusal to provide the accused officer with discovery.

In a recent deposition, a remarkably candid member of the Internal Affairs Advocate Section testified that even if the Department had evidence that could help an officer’s defense, it would not be given to the officer if it wasn’t specifically mentioned in the Board of Rights Manual as something that had to be provided. It would have to be ordered to be produced by the Board of Rights. This, of course, presupposes that the officer even knows of the existence of this exculpatory evidence.

What is wrong with this picture? A federal judge could tell. In a recent decision refusing the City’s request for a summary judgment in federal court against an officer who had filed a lawsuit against the Department, the judge looked way back to 1990 to Los Angeles Police Protective League v. Gates. The judge noted that the 1990 court held then that the suppression of information necessary to a full and fair hearing violates due process.

After a jury found in favor of the officer who filed this lawsuit against the Department, the 1990 appellate court said this after the City appealed:

“Furthermore, three witnesses testified that it was common practice for the Department to regularly withhold relevant information from an officer under investigation. Therefore, there was evidence from which the jury could have concluded that it was the custom of the Police Department to withhold relevant information from officers under investigation. The jury was entitled to hold the City liable. … As we have already pointed out, there was at least some evidence that LAPD had a custom of withholding materials from its employees before suspension. It was certainly reasonable for the jury to infer that Police Chief Gates and Acting Police Chief Iannone were well aware of this pervasive activity in their Department. The jury could have reasonably expected that Gates and Iannone would present persuasive evidence that they were not aware of the Department’s custom, if indeed they were not. Therefore, we uphold the jury’s finding that the Chiefs were liable for the violation of Gibson’s rights when the custom of the LAPD was applied to him.”

The 2012 federal court noted that there were similarities between the current case and the 1990 case. In denying the City’s request for a summary judgment, the court stated:

“Plaintiff has presented evidence that the LAPD regularly refuses to identify witnesses or produce documents in BOR proceedings, despite procedural rules in place for doing so. Plaintiff has presented sufficient evidence to permit a jury to find that Defendant ________, who initiated the personnel complaint, deliberately withheld information concerning the scope of the investigation, the substance of the charges (i.e. what behavior constitutes misconduct), and the unwritten policies relevant to Plaintiff ’s defense.”

The officer was granted the right to proceed with the lawsuit. Chief Gates was found liable in 1990; Chief Beck should hear warning bells.

The lesson here is that the Department never learned its lesson. Twenty-two years later, we still have the same problems. What the Department and the Police Commission do not seem to understand is that a fair disciplinary system that officers can have faith in is a good thing on several levels. It’s good for morale. It’s good for justice. And, in these financially troubled times, it’s good for the City’s pocketbook.

A fair investigation placed on the table for all to see, followed by a reasonable disposition, will eliminate the need for a lawsuit. If the officer feels that he or she can get a fair shake from the Department’s internal processes, there is no need to go outside to find an attorney who will sue.

If management cannot see this, then it is time for the politicians to step in and force LAPD management to provide officers with a system that fosters trust, not hopelessness. As it stands now, management has no motivation to change. There is no action taken against those managers who cost the City millions, and the money comes out of someone else’s budget, not LAPD’s. It’s a free ride all around — except for the taxpayer.

Be legally careful out there.

March 2012 Warning Bells Article

New DICVS order

By the time you read this, the new South Bureau order on the Digital In-Car Video System (DICVS) will have been out for a few weeks. The first thing you should understand is that turning on the video camera when you are required to is a big deal to management. The second thing you should understand is that there’s a philosophical war in progress among those in command of the Department over the true purpose of the DICVS. Some want it to be a tool to help you do your job, and others want it to be a tool for Internal Affairs to monitor you. For the most part, you can have a lot to do with which philosophy wins.

Forty years ago, there were no video cameras. Some of us in patrol, ahead of the times, hid tape recorders under our hats or in hollowed-out books. Tape recorders in those days were the size of paperback novels. At least the ones we could afford. We would’ve killed for the devices now available to you; still, we ended up with ironclad prosecutions and unfounded personnel complaints. Twenty years later, Internal Affairs was auditing some of those same tapes looking for improper statements. (My gosh! You said “bullsh*t” to this gang member!) Therein lies the philosophical battle. There is nothing new under the sun.

The new order, Order Number 1, Deployment and Use of the Digital In-Car Video System, dated Jan. 29, 2012, was issued to standardize procedures throughout South Bureau, with an eye for it to be adopted Department-wide when video cameras eventually go into all black and whites. The order includes many things that favor the philosophy of using the DICVS as a tool to help you do a better job. It expressly states on the first page that the system’s purpose is not to monitor private conversations between officers. Furthermore, it is not meant “to be used as a negative critical response to officer tactics.” The idea is to help improve tactical response, and the order expressly states that “comment cards will only be written in extreme situations.”

Review for purposes of improvement is what it should be all about. Tactics can always be improved, and thinking about better ways to do things is valuable. Review for purposes of writing negative comments is expressly discouraged. The order contemplates DICVS as a constructive tool, not a disciplinary hammer.

That being said, the requirement to activate the system during pedestrian stops is clear. But is that bad? On balance, it is not. The odds are overwhelming that it is more likely to help you than hurt you. The odds have been working out like this. Sources from South Bureau have looked at personnel complaints arising out of situations where the DICVS was used by officers during the last six months. There were 75 personnel complaints, of which 55 were unfounded; 11 were determined to be non-disciplinary; and one was exonerated. These figures tally at about a 90-percent clearance rate in the officer’s favor. It should be noted that this 90 percent does not include any “not resolved” adjudications. An additional benefit of the video camera is that it allows a decision to be made. Careerdamaging “not resolved” adjudications are reduced.

We are being told by the powers-thatbe in South Bureau that the intention is to emphasize the use of the DICVS as a tool for increasing officer safety through positive training, facilitating more thorough reporting, fostering a positive relationship with the community by resolving biased-policing complaints, conducting more accurate personnelcomplaint investigations and providing evidence for criminal prosecutions. The intention is not supposed to be to audit you for misconduct. DICVS will be utilized to review your actions during a stop if misconduct is alleged against you, but according to the statistics above, this review should be helpful.

On the other hand, if the video confirms the allegation of misconduct, not much can be done in your defense. This is the other side of the double-edged sword. With all the false complaints being alleged against any officer who actively does his or her job in South Bureau, it makes sense to turn on the video camera system at every opportunity. Most of the time, you do things right. A video camera recording is cheap insurance against that personnel complaint made a week or so later by an unhappy arrestee.

However, doing things right is not the same as doing things perfectly right. The danger in the DICVS is the Department manager who wants to audit your every stop hypercritically. The surest way to damn the DICVS is to chicken sh*t to death every officer whose stop is audited. Officer resistance to the system’s use and fewer investigatory stops will be the result. These auditor-type managers should hear warning bells.

The DICVS is a powerful tool in your bag of tricks. Think strategically about its long-term effects on the investigatory stop you are about to make. Think about how this video can help you in court. How it can help you if there is a lawsuit. How it can help you if there is a use of force. How it can help you if there is a personnel complaint. Then flip that switch and use the DICVS effectively as your tool, not the suspect’s.

And don’t forget: When the situation is stabilized, turn it off.

A great deal of good can come out of the DICVS if it is used as a tool to help make you a better-trained police officer and protect you from false complaints. A great deal of evil is also possible if it is misused as a Big Brother gotcha device. My advice is to embrace this technology based upon the Department’s representation that they are going to use it properly — at least until they prove otherwise. The potential gains to your career and your effectiveness as an officer are worth the risk.

Be legally careful out there.

February 2012 Warning Bells Article

Court recognizes Public Safety Officers Procedural Bill of Rights Act (POBRA)

The Department didn’t, but this time, at least, the judge had the last word and two officers who had been terminated were reinstated by the court with full back pay and interest. It went down like this, according to public court records.

About two-and-a-half years ago (yes, the process is lengthy), our two officers were working the Violent Crime Task Force. Apparently, one of their contacts became unhappy with them, or maybe someone else; it was hard to tell. Anyway, the suspect later went to the San Fernando Police Department to complain that two officers had detained him. He alleged he was handcuffed, called a booger and had his cologne criticized. All LAPD administrative felonies, I think.

The court had a list of reasons for not believing the suspect’s story, such as stating that he’d gone to the San Fernando Police Department because the letters on the side of the car were blue (LAPD’s are black). He also said the officers’ nametags were gold (LAPD’s are silver). He said one of the officers had a mustache (neither LAPD officer did). But the suspect did have a shop number. San Fernando P.D. was happy to refer him out of their jurisdiction and notified LAPD. LAPD launched a supervisor.

The supervisor met our officers in the field and, without mentioning that he was conducting an investigation, asked them if they had stopped anyone and called them a booger. Neither officer remembered anything like that and asked for the complainant’s name so they could check their Mobile Digital Computer (MDC) to see if they had even had contact with this person. The supervisor did not provide them with that information and merely told them that if they didn’t remember, they didn’t remember.

Two months later, a personnel complaint supervisor conducted an interview and presented them with an MDC printout showing they had run the complainant that night for a warrant check. The officers typically made 20 or so stops a night, so that did not ring any bells. They agreed that they must have had contact with the suspect, but everything that the suspect said had happened would have been against their normal practice, and they don’t call people boogers or care about their cologne. It was probably a consensual contact of some kind, they said.

Four months later, the supervisor received a kickback on his investigation and was told to re-interview the suspect and get a better description of the officers. Apparently, the description improved because the Department filed seven counts of misconduct against the officers and sent them to a Board of Rights with a recommendation of termination. The officers were charged with detaining the suspect without cause, discourtesy, false statements to the initial supervisor, no Code 6, inaccurate DFAR, failure to complete a field data report and failure to provide a business card.

After a two-day Board of Rights hearing, they were found guilty of all counts and terminated. The League filed a writ challenging the termination. (This is why it is good to be a League member!)

In a writ of mandamus, the court reviews the entire record of the Board of Rights and uses its independent judgment to determine the credibility of witnesses and inferences from the evidence to determine guilt. The judge did this and came up with this conclusion in the statement of decision:

“The Court declines to accept the Board’s rationalization that Franco’s wildly inconsistent identifications were simply the byproduct of immaturity or nervousness. Franco simply could not provide an accurate identification of the officers because what he reports having taken place simply didn’t happen. No thinking officer, much less officers with as many commendations and reports of outstanding police work as Petitioners, would have engaged in the tactically dangerous stunts claimed by Franco.”

That took care of all the counts except the false and misleading allegation. The Department took the position that when the supervisor contacted the officers on the night of the incident, he was merely “information-gathering and attempting to confirm some of the information initially provided.” The court pointed out that the supervisor knew there was a citizen waiting at the police station to file a complaint against the officers identified by their shop number. He also knew that there was no discretion in taking the complaint. And he knew the nature of the allegations. The court wrote:

“Where POBRA rights have not been afforded, the proper remedy of exclusion of the statements made to the investigating officer is appropriate. And, the weight of the evidence supports the finding that Sergeant _____ began immediately to question Officers ______ regarding their contact with Franco before informing them that there was a personnel complaint against them. This questioning by Sergeant ______ violated Petitioners’ rights under POBRA. Thus, the Board’s decision to deny Petitioners’ motion to strike Count 3 must be reversed.”

Because the supervisor immediately began questioning the officers before informing them that there was a complaint against them, neither officer had been given an opportunity to obtain representation before answering the supervisor’s question in violation of Section 3303 of the Government Code. The result was the exclusion of the statements. If the statements are excluded, the false and misleading statement issue disappears.

A lot of time and money could have been saved if all this had been recognized by the Department upfront. League panel attorney Jodi Gonda recognized it and did a great job at both the Board of Rights and in court with the writ of mandamus.

Court recognizes the due process issues in downgrades

This wasn’t the only setback the Department received from the court system recently. In 2009, the Department revised the downgrade procedure. Before 2009, the Department had to show a clear demonstration of an officer’s failure or inability to satisfactorily perform the duties of the position prior to the downgrade. In other words, counseling, comment cards, notices to correct and so on to let the employee know what deficiencies were being recognized and to give the employee a chance to improve. After all, a significant salary reduction was coming and the Department wanted the employee to realize it. However, apparently this was too fair.

What the Department really wanted was to have the power to hit you where it hurts — in the pocketbook. Then you would behave and do what you were told to do! Suspensions didn’t hurt enough because too many of you belonged to the League’s Legal Plan. So along came Special Order 47. No need anymore to show that an officer was unable to perform the duties of the advanced pay grade position. Now, all that was needed was the determination — at the commanding officer’s sole discretion — that the officer was unable to perform.

The League participated in a meet and confer that went to impasse and which we ultimately won. The fact-finding arbitrator agreed that Special Order 47 should not be implemented, as it impacted an officer’s due process rights. Unfortunately, the arbitrator’s decision was not binding on the Department. They issued Special Order 47 anyway. So, court was the League’s next stop.

The court recognized the League’s position. It found and ruled that the removal of an advanced pay grade of officers promoted before the effective date of Special Order 47 was a violation of due process. The same system in place when they were promoted should be the system under which they were to be downgraded. So, Special Order 47 does not apply to you if you were promoted before October 2009.

Note, however, that this decision is subject to prejudgment proceedings and appeal by the Department. Our thanks to panel attorney Richard Levine for effectively presenting the League’s case.

Don’t ignore us

One final bit of court intervention that also recently occurred: The League was compelled to file a lawsuit against the Department for multiple denials of discovery and interference with the representation of officers. (See Warning Bells article, June 2011 TBL.)

In conducting discovery for this lawsuit, the Department did to the League attorney what it was doing to the officers. It refused discovery. In this case, it refused to produce a member of Internal Affairs for a deposition. That might work when you have all the power when playing in your own sandbox where you own all the toys, but it doesn’t work so well out in the real world.

The Department was taken into court over the refusal, and the judge ordered the Department to produce the witness for a deposition and awarded the League $2,675 in sanctions against the Department.

We will keep you posted on the progress of this important lawsuit to establish fair hearings and representation for League members.

These three decisions were all handed down during the last week of December 2011. I hope we are as successful in 2012. Rather, I hope the Department just reads the handwriting on the wall and starts to recognize your rights.

Be legally careful out there.

January 2012 Warning Bells article

What We Wish Would Be the Chief’s New Year’s Resolution

Starting a new year always inspires everyone to look back at the old year and try to evaluate what went right, what went wrong and what can be done to improve our lives in the coming year. Improvements usually take the form of New Year’s resolutions. Looking back at last year on the officers’ rights front reveals one disaster after another coming from the Department, chiefly Internal Affairs (mostly management decisions, the overwhelming majority of IA investigators in the trenches do a good job).

For those of you who do not know how hard the League fights for your rights, I will give a short recap. Unfortunately, some things I cannot mention because they have not yet lost their confidentiality. Conditional Official Reprimands began to be imposed on officers even though they did not agree with the conditions (“Warning Bells,” Thin Blue Line, February 2011), thus depriving the officers of a meaningful hearing. The League has filed a lawsuit over this issue. Internal Affairs then refuted the “gotcha policy” as outdated Bratton rhetoric (“Warning Bells,” Thin Blue Line, March 2011). There were multiple instances of Internal Affairs refusing discovery and blocking employee representatives from doing their job of representing officers. The League filed another lawsuit against the Department for interfering with officers’ rights (“Warning Bells,” Thin Blue Line, June 2011). Even when League representatives won motions in Board of Rights and administrative appeal hearings, Internal Affairs would bring motions to reconsider the decision with the result that the decisions would be reversed, or in one case when the Board stuck to its guns, the Chief overruled them (“Warning Bells,” Thin Blue Line, July 2011). This resulted in the League filing two more legal actions in court. Because of the repeated interferences by Internal Affairs in the hearing process, the League negotiated civilian hearing officers with the belief, or at least the hope, that it would be more difficult for the Department to influence the hearing officer’s decisions (“Warning Bells,” Thin Blue Line, August 2011). This, too, has now gone to a hearing because the League contemplated downgrade hearings to be part of the agreement, but the Department disagrees. And finally, League attorneys were barred from Boards of Rights to represent officers who had been ordered to appear to testify by Internal Affairs even though their testimony could lead to misconduct charges. And yes, another lawsuit was filed by the League (“Warning Bells,” Thin Blue Line, December 2011). These articles are available for review at www.warningbells.com if you missed them.

In short, it was not a good year for officer representation. It was a good year for the legal profession, however, since half a dozen lawsuits had to be filed. And guess what? Even if the League cannot get a judge to interfere with the discipline process and make things right, the fight will go on. Just because the Department has the power to do something does not mean that it should be done! The process should be fair. Period. And when it isn’t, the Chief of Police and the Police Commission should be upset. After all, it is their employees who are being abused and those employees should be able to look to them for protection. The League will fill that vacuum when necessary, and judging from the preceding paragraph, it is more than necessary.

Why is this happening? Power play, I guess, but I really don’t know. This appears to be the playbook.

Rule No. 1: When the Department decides you are guilty, you are guilty.

Rule No. 2: When you are not guilty, see Rule No. 1.

I believe that problems are increasing because the lack of respect for the right to representation apparent in the upper ranks of the Department is filtering down through the ranks. That is why we are having incidents where personnel complaint investigators are ordering officers in for interviews with no regard for the schedule of the representative and refusing to move the interviews (even for two hours, in one case) to allow the officer the representative of his or her choice. That is why uncivil conduct occurs in some interviews. That is why discovery is denied to officers who are trying to defend themselves in hearings.

There is a solution. The Chief of Police has to take charge and announce that he believes in a fair discipline system in writing. Let the lower ranks know that fairness is something that he will enforce and that the right to representation is inherent to fairness. Chief Gates issued such a statement in 1980 (Gates 1980 Def Rep ltr) concerning defense representatives. Of course, if Internal Affairs is discounting Bratton’s policies already, it goes without saying that Gates’ utterances are toast. But officers need the assurance from their leader that when he disciplines someone, he is concerned that he is right and, therefore, does not fear their testing of the evidence.

I would propose something similar to the below list. It balances the value of the disciplinary system with a respect for the officer’s rights. Yet, it also recognizes the Department’s right to investigate and arrive at a prompt decision.

The Chief should say this to the officers of the Los Angeles Police Department:

1. For almost 80 years, members of the Los Angeles Police Department have enjoyed, and often taken for granted, the protection of the Los Angeles City Charter and similarly the Public Safety Officers Procedural Bill of Rights in the Government Code. These pieces of legislation strive to ensure that your treatment under the discipline system will be fair. I embrace this concept. I believe that a strong discipline system is necessary for the proper functioning of the Department, but a fundamental part of that system must incorporate fairness to the officers involved as well as to the public.

2. As the Chief of Police, I want the officers of this Department to know that the discipline system is aboveboard and fair. As required by law and ethics, personnel investigations will be thorough and fair both to the public and to the officer. After the facts are in, the dispositions will be well-thought-out and equally fair, and it is important that the officer and the public believe this is true. Proper discipline stimulates harmony and consistency within an organization and facilitates the coordination of effort. It is lubrication for the machinery of Departmental organization. Officers must know that they will receive encouragement and approval for acting correctly, as well as just criticism and penalties for acting wrongly. To that end, the officer should have access to the documents concerning the investigation when defending himself or herself to the widest latitude consistent with protecting the safety of confidential sources of information.

3. An important part of the disciplinary system is the right to representation. The Department has long recognized this right and appreciated its effect on an officer’s favorable view of the necessity and value of the disciplinary system. With the exception of the usual provisions under Miranda in criminal investigations, investigators are not obligated to inform officers of their right to a representative. However, in the interest of saving time and appearing fair, it’s a good practice to remind officers that they are entitled to a representative when called to make the interview appointment; this is especially true for new officers who might not know of their right to representation. An officer should never be told that he or she doesn’t need a representative, or that he or she doesn’t have a right to a representative. Strive within the necessities of the investigation to accommodate an employee’s right to representation.

4. It is the position of the Chief of Police that those who participate as employee representatives are to be given positive recognition for their key role in the disciplinary system, rather than being dissuaded or penalized in any way for their participation. Representatives should not be interfered with, restrained or discouraged when exercising their duties in representing an officer. That being said, the Department has an equal right to conduct a prompt and fair investigation and a representative does not have the right to improperly interfere with that process.

5. It is important that personnel complaint investigations be promptly done. The goal is to accomplish the interview within 10 days of the officer getting notice that he or she needs to contact the investigator. Typically, upon receiving this notice, the officer will contact the League and obtain an attorney/representative. Personnel complaint investigators can facilitate the scheduling of a mutually convenient interview by dealing directly with the attorney/representative because it is the investigator and the attorney who have the most complicated schedules. However, if there are indications that either the officer or the attorney/representative are not dealing in good faith, then an ordered interview at a specific date and time is appropriate with instructions to the officer that he or she is responsible for bringing an available representative. Similarly, even when not operating out of bad faith, an attorney/representative may not be available for more than two weeks, and the investigator would have the option of forcing the interview at an earlier time if that is important to the investigation.

6. The location of the interview also sometimes becomes an issue. Generally, the goal when interviewing an officer is to have him or her feel at ease. Consequently, conducting the interview at a reasonable location of the officer’s choice should be considered. This may be the officer’s division, the attorney/representative’s office, the League or at an Internal Affairs office location. Investigative demands may make a particular location preferable, but in the interest of appearing fair, the convenience of the investigator should be subordinate to the general rule of accommodating the officer’s preference. Again, if there are indications of bad faith in dealing with this issue by the officer or the attorney/representative, then a location must be selected and the officer ordered to appear at a specific date and time.

7. Recognize that the duties of a representative are listed in the Memorandum of Understanding (MOU) and that MOU sections are to be complied with. Article 10.2 of the MOU lists the representative’s duties as conducting a preinterview consultation with the employee to ascertain if the employee understands the allegations and to be present during the interview for purposes of consultation, advice, clarification, ensuring procedures are followed and ensuring the employee’s rights are not violated. Interviews should start on time, but be aware that if the allegations or documents are not given to the officer or his/her representative in advance, expect that time will have to be taken for the representative to comply with the mandates of the MOU. If the allegations and documents you wish to use in the interview are provided to the officer in advance, it would be reasonable for the personnel complaint investigator to expect the officer to arrive at the interview prepared to start at the agreed upon time.

These pronouncements would go a long way toward reducing the clashes at the investigative level of personnel complaints and lessening an officer’s natural fear of the disciplinary process. Furthermore, discovery disclosure often results in fewer hearings, either from the officer being convinced that the Department is right, or the Department recognizing that there has been an error in the decision to find the officer guilty. Either result is a win for both the officer and the Department.

If the chief makes the New Year’s resolution to announce and enforce the above principles in writing, I will have nothing to write about in 2012 (well, about Internal Affairs anyway).

Be legally careful out there..

December 2011 Warning Bells Article

The Latest Assault on Your Rights!

A few months ago, the League found it necessary to file a lawsuit against the Department alleging a pattern on the part of Internal Affairs to, among other things, deprive League members of their right to representation (see the Warning Bells article in the June issue of Thin Blue Line for details). In that lawsuit, the Department is currently refusing to cooperate with depositions and the League is taking the Department into court and asking for sanctions.

This week, Internal Affairs’ efforts to curtail your rights reached new heights of outrage. We have always believed that when Internal Affairs orders a League member to appear at a particular time and place to answer questions upon pain of insubordination, this member is in potential danger of punitive action. Making false and misleading statements, failure to report misconduct, insubordination and violation of a thousand other rules in thick LAPD manuals are only a captain’s opinion away from becoming allegations of misconduct.

So, when an officer is ordered to appear at a Board of Rights and submit to questions from an Internal Affairs advocate, two captains and a representative of an accused officer, the League sees little difference between this and any other personnel investigation. Consequently, upon the request of an officer (who belongs to the Legal Plan), we will assign an attorney to represent the officer and protect his or her rights. This has never presented a problem, but recently that changed.

The League does not choose sides in those cases where League members are in opposition to each other. We are about protecting the process. If League members are in conflict, we will appoint different counsel for each of them. It is our belief that each officer is entitled to the protection of the process, whether in a personnel complaint interview, a Board of Rights, an administrative hearing or Superior Court.

In a recent Board of Rights case, the League supplied a lawyer for the accused officer and, in prosecuting this officer, Internal Affairs ordered several other officer witnesses to appear in front of the Board to testify. These so-called “witness officers” requested their own attorneys because several of the officers were plaintiffs in lawsuits against the Department, and allegations of misconduct were flying back and forth among different groups of officers. There was little or no trust on the witness officers’ part that they themselves would not become misconduct targets. In fact, some already were.

At their request, the League assigned each witness officer the panel attorney of their choice, as we have many times in the past for other officers. But this time it was different. The officers were informed by Internal Affairs that attorneys would not be allowed in the Board room to represent them while they testified.

We sent the attorneys anyway. Some were stopped by Internal Affairs before they could get into the Board room to make a record of their objections. Others were successful in their efforts to get inside and demanded to be heard. Still, others had to shout over the shoulders of Internal Affairs, who was blocking their access to the Board room to register their displeasure with the Board.

Their objections did not matter; they were excluded by the Board and the officers were forced, under threat of insubordination, to testify without representation. This was unprecedented, but in view of the other tactics being employed by Internal Affairs that resulted in the first lawsuit, maybe it should have been expected.

Again, we are expressing no opinion for or against any of the officers involved, and that includes the accused officer. The attorney provided to him has the sole responsibility to legally protect his client and is obligated to do whatever he deems necessary to accomplish this. It is the process of the right to representation for all League members that the League is trying to protect.

It is also not the fault of the Internal Affairs officers who are directed by upper management to enforce these high-level decisions. This is a quasi-military organization, and they must follow the direction of the command structure of Internal Affairs. They are caught in the middle.

We will get to the legal part of this in a minute, but let’s think about the moral and ethical statements that Internal Affairs management is making by barring attorneys from being with officers forced to testify at a Board of Rights. What is it that they object to? What is it that they are planning to do to the officer that requires the elimination of the officer’s representation? True, some of the testifying officers have lawsuits pending against the Department. Is this their plan to get a free deposition that can later be used to impeach the officer and they don’t want any interference by an attorney to block sneaky questions?

One would think that where an employee is uncomfortable about testifying, an employer (with no ill intent toward the employee) would be glad to have an attorney present who could explain what was happening and advise the employee. An employer (with no ill intent) has nothing to fear from an attorney and even benefits from the sense of fairness engendered in the employee by the employer’s above-board, straightforward actions. Contrast this with what employees must think when their attorney has the Board room door slammed in their face and the employees are forced against their wills to take the witness stand with no support. In other words, if the Department is going to be fair and above board, what does it matter if there is counsel in the room with the officer? There will be nothing to object to. Of course, that is true only if the Department is going to be fair and above board. That is the catch.

There are no privacy issues since the attorney only goes in with his or her client and exits when they do. No other parts of the Board are observed by the witness officer or the attorney. Nevertheless, the rule of no attorney representation was imposed.

This resulted in a circuslike atmosphere as League panel attorneys tried to provide representation to their assigned officers. One attorney was told that it has always been policy that no attorneys were allowed in Boards of Rights to represent witness officers. This attorney had personally done this before so he knew this was not true. It did not matter. The attorney went into the Board room anyway and objected to the Board over Internal Affairs’ objection. The attorney was excluded from the Board room while the Board called its city attorney for advice. The attorney later gained admittance as a support person, but was not allowed to speak. The next League panel attorney was not even allowed admittance to the Board room by Internal Affairs. The one after that, being blocked at the door, shouted his objections over the advocate’s shoulder to the Board members inside. He was excluded. A fifth League panel attorney pushed his way into the Board room, telling the advocate who ordered him to stay outside, “I don’t work for you.” He made his arguments, but was excluded anyway. And so it went.

What is the legal side of all this? The neutralization of the Public Safety Officers Procedural Bill of Rights Act (POBRA) has been attempted before. It was attempted in Berkeley (where else?). There, they have a citizen panel that conducts complaint investigations. The chief of police orders the officer to submit to questioning, and then a civilian panel holds an evidentiary hearing on the complaint. Berkeley argued that since they were not the officer’s employer, PBRA Section 3303 did not apply. The appellate court differed. It said this: “When police officers are made to appear for interrogation or a fact finding hearing by order of their employer and under penalty of disciplinary sanction up to and including dismissal for failing to comply, this is tantamount to being subjected to interrogation by the officer’s commanding officer, or another member of the employing public safety department” (Government Code Section 3303). Berkeley Police Association v. City of Berkeley (2008) 167 Cal. App. 4th 385 (emphasis added). In fact, LAPD officers are compelled to be at the Board of Rights and are interrogated by a representative of Internal Affairs and two LAPD command officers.

Is punitive action possible? Of course. On top of state law, there is also the MOU: “Any interview of an employee in connection with an investigation that the employee reasonably believes may result in disciplinary action against the employee, will entitle the employee to a representative of the employee’s choice” (Article 10.1). If an MOU section conflicts with the manual, the MOU takes precedence (Manual Section 3/701). Supervisors shall know and comply with the MOU (Manual Section 3/701.20). Commanding officers shall ensure there is adherence to the MOU (Manual Section 3/701.30). It would appear that Internal Affairs and Department management are violating the manual! Now what? Who to call?

There seems to be no other course of action but to file another lawsuit and that is what the League was forced to do. All the League wants is fair treatment for officers who are challenged with doing the most difficult job in the world: police work. The Department and Police Commission demand that officers treat civilians fairly. Who demands that police officers be treated fairly? The League does, but it would be nice to have some help from our leaders.

As I write this, the newspapers report another LAPD officer has received a $3 million judgment for LAPD management abuse. Isn’t it time that someone hears the warning bells and puts a stop to the mistreatment of our officers? If not because it’s right, then at least because it’s cheaper?

Be legally careful out there.

November 2011 Warning Bells Article

Turning it off is just as important as turning it on.

“I didn’t know it was on” may become just as much of a cliché as “I didn’t know it was loaded.”

The second is the standard excuse for a negligent discharge. The first is the standard excuse for leaving the digital incar video system (DICVS) camera and/or microphone on.

Turning the system on is tightly controlled by Special Order 45 of 2009, which states that it will be activated on all vehicle stops, all pedestrian stops, all pursuits and all suspect transports. Be assured that the Department is extremely interested in whether or not you are following this special order. There is at least one ordered Board of Rights pending over allegations of violating this order. Audits are done every day to make sure you are complying. There is even an unstated inference by some in management positions that if you did not turn on the system (in violation of the special order), you must have been intending mischief.

Activating the system does have many advantages. First of all, it can be powerful evidence against a criminal suspect. Second, it may exonerate you in a personnel complaint investigation. Third, it can help you write an accurate report, or help you give an accurate interview to Internal Affairs. These are all benefits of using this system as a tool to help you do your job. But a tool requires care in its use. An axe can help you build a house, but it can also chop off your foot if used carelessly. Your gun is a tool that can save your life, but you can also shoot yourself or your partner if you do not know how to handle it properly. The same is true of the DICVS.

What has been happening (along with officers getting in trouble for not turning it on) is officers are getting in trouble for not turning it off. Well, not exactly. It is for saying things that were not intended to be recorded when the system was not turned off. For instance, police gallows humor does not play well on YouTube.

The special order tells you that “once the DICVS is activated, the front camera shall remain activated until the entire incident or field contact has stabilized or the contact has ended. The rear camera shall remain activated until the suspect (rear passenger) has exited the vehicle.” Be sure to do it!

It is especially important to remember to turn the system off when a high-stress situation stabilizes. It is during the highstress situations, such as officer-involved shootings, pursuits and categorical uses of force, that psychological-stress-relieving behavior is likely to occur. Many times this behavior is not thought out, and it is seldom understood by the public (read: jury). Remember, discovery will eventually be given to arrestees and plaintiffs who subsequently sue you and the Department. High-fives reflecting joy in your and your partner’s good fortune of being alive after a shooting will be portrayed as a primitive victory dance over a kill by the time it hits the press.

The camera isn’t the only problem. There have been times when after an incident, an officer does not turn the system off and walks around with a hot microphone on his belt recording every conversation occurring within several yards of his path. An imaginative attorney can always find something on that tape to spin into a conspiracy theory in front of the jury. Furthermore, Internal Affairs may find a few allegations of improper remarks buried in there somewhere, too. Tactical language has a way of lasting longer than the tactical situation.

There is a rumor that the Department is going to require first-responding supervisors to officer-involved shootings to activate their DICVS to record shooting officers’ Public Safety Statements. If true, this is institutional insanity. Plaintiffs’ attorneys and anti-police groups will declare a holiday. The only thing that is sure about the first report off the battlefield is that it will be wrong. Every mistake and inaccuracy will be portrayed as a lie by those with an agenda. Unfortunately, when political winds are blowing, the Department may be the one to fear most.

When properly used, the DICVS can be a valuable tool to enforce the law and to protect yourself from false personnel complaints. However, the Department, through excessive disciplinary action against officers in connection with the camera, can convince officers that this is an Internal Affairs tool, not a crime-fighting tool. As a result, what should be embraced will be shunned. That would be a shame. If every pedestrian stop carries an undue risk of “failures” being recorded against an officer because of the DICVS, there will be fewer pedestrian stops. If officers are reluctant to turn on their red lights because of the criticism they risk every time the camera is activated, there will be fewer vehicle stops. If the risk to the officer outweighs the benefit, the DICVS will become just another wasted asset. The Department should hear warning bells.

In the meantime, to stay out of trouble, know when to turn it off, as well as when to turn it on. Check for those little red lights on your fellow officers’ belts before you start making jokes and talking trash. Internal Affairs does not have a sense of humor.

Be legally careful out there

October 2011 Warning Bells article

A Life Well Lived

Ed Jokisch died last week. His serial number was 180, three digits instead of five. He almost had three digits in his age, too. He was 97. I was honored to be a pallbearer. The burial was attended by his family and some of his old police buddies. They had four digits in their serial numbers. Just kids to Ed.

The Navy was there playing taps and handing out flags to the relatives of this Iwo Jima veteran. The LAPD showed up, too, handing out its flag as well. Nearly 40 years retired, and the Department still remembered. The chaplain asked us if anyone wanted to tell a story about Ed. The old-timers told a few anecdotes to illustrate what a tough yet tender man we were there to bury. His relatives added their favorite memories.

I realized there was more to tell. Ed was part of Tom Brokaw’s “Greatest Generation.” He came on the job in 1940 and retired as a captain in 1972. I want to respond to the chaplain and tell a story about Ed. Sometimes, knowing where we have been helps us understand where we are going.

Ed was born in 1914 and raised in St. Louis, Missouri, a pure Midwestern upbringing that taught him about selfreliance and hard work. In 1934, he joined the Navy for a four-year tour. He was initially assigned to the battleship California, an ill-fated ship that would be sunk by the Japanese when Pearl Harbor was bombed. Ed served on it for a year and a half, then transferred to a transport ship.

In 1937, during their invasion of China, the Japanese sank the U.S. gunboat Panay in the Yangtze River, causing an international incident. Ed’s transport ship assisted in the evacuation of civilians from Hong Kong and Shanghai, among other places, to escape the Japanese occupation.

His enlistment was up in 1938, and he probably would have spent the rest of his life in the Navy, but his father died. Ed went back to St. Louis to help his mother.

He wanted to be a cop, so he explored joining the St. Louis P.D. St. Louis officers were quite open and frank in their insistence on a $250 bribe for the job.

This didn’t sit well with Ed, so he came out to Los Angeles and attended Los Angeles City College (LACC). He got a job cleaning the locker room for 35 cents an hour. He’d played football in high school and for the Navy, so he played for LACC also. He recalls playing in a game against Jackie Robinson, who at that time played for Pasadena Junior College. Ed’s team lost.

Ed still wanted to be a police officer, but Los Angeles was struggling with the same problem that St. Louis had — bribes. Appointments and promotions in the LAPD had been for sale. Los Angeles was in the throes of attacking the problem, however. After a big scandal, Mayor Shaw had been thrown out of office, and the police officer appointment list for 1938 had been thrown out with him because the payoffs had been discovered. There hadn’t been an Academy class for a couple of years.

But, fortunately, applications again opened, and the necessity of paying a bribe was gone. Joint testing was started for LAPD officers and L.A. sheriff ’s deputies. There were 3,500 applicants, and Ed ranked No. 7. Because the sheriff required a residency in the county of three years, and the LAPD only required residence in the city for one year, Ed became a Los Angeles police officer on September 3, 1940. Pay was $170 a month. To Ed, this seemed like a fortune since his salary in the Navy had been $72 per month.  Of course, each officer had to buy his or her own gun and uniform, but he recalled, “I was on cloud nine when I came on the job. I didn’t care if I had days off or not.”

There were 78 people in his Academy class. Among his classmates were Tom Bradley, future mayor; Ed Davis, future Chief of Police and state senator; and John Powers, later an LAPD legend known as “Two-Gun Powers.” His first assignment after graduating from the Academy was Central morning watch.

In those days, the new recruits wore a tunic with a blue shirt and black tie. “You were a marked man,” Ed said, “because the suspects knew that you were a rookie by the way you dressed.” The Department eventually figured that out, and all officers began wearing the same uniform around a year later.

Ed’s watch commander at Central was Thad Brown, who would later nearlybecome Chief of Police and was another LAPD legend. In 1941, Ed would work for an even bigger legend. LAPD started Accident Investigation Division (AID), and Ed put in for the school. He got it and was assigned to AID. The captain was William H. Parker, future Chief and namesake of Parker Center.

Then came the attack on Pearl Harbor. The start of World War II depleted the LAPD as officers left for the military. This worked to Ed’s advantage. He had been doing an outstanding job in Accident Investigation, and even had a Superior Court judge write a letter of commendation about him to the Department on the excellence of his investigation before the court. That letter got him into Homicide Division, unusual for an officer of his age and tenure.

At that time, Homicide Division and Robbery Division had not become Robbery-Homicide Division. This joinder was 20-some years away. Both divisions operated out of City Hall. The whole second floor of City Hall was LAPD.

He worked Homicide for six months, but felt the call to come to the aid of his country too strongly to continue in this job that he loved. He signed up again for the Navy. Because of his previous experience, he was selected to be the captain of an amphibious assault ship. He was dispatched to Pearl Harbor to begin training for the invasion of Iwo Jima.

In February 1945, Ed found himself carrying three tanks outfitted with flamethrowers and a platoon of Marines in his LSM to the shores of Iwo Jima. The ship was under fire and repeatedly made runs transporting men and materials to the island during the five-week battle.

During the battle, he impressed a one-star admiral who slated him to be the beach master for the invasion of Japan. Since 1 million casualties were expected for this invasion, this was a dubious honor. “The atom bomb saved my life,” Ed said.

Ed returned to LAPD in January 1946. His Homicide spot had been saved for him, and he had been promoted to sergeant during his absence. LAPD officers in the military at that time were allowed to take promotional exams, and Ed had taken the sergeant’s exam while training at Pearl Harbor.

Ed had a fascinating career while he was working Homicide. He was assigned to take down an abortion ring that ended up being a statewide operation that resulted in multiple convictions. He was assigned to tail Anthony Brancato and Tony Trombino, two gangland figures known as the “Two Tonys.” In an eerily familiar scenario, Ed and his partner were only allowed to follow them in the daytime (OT problems then, too?). Unfortunately, after Ed’s end of watch on August 6, 1951, the Two Tonys ran into mob executioner Jimmy Fratiano on Sunset Boulevard. He killed them both while they sat in their car. The movie L.A. Confidential has this murder scene in it.

Fratiano admitted to the murders 25 years later, after making a witness deal with the feds. He then wrote a book called The Last Mafioso. In the book, he dramatically writes about being surrounded by LAPD at his house and arrested. Ed laughs at this. “My partner and I went over to his house and got him out of bed,” he said. “We drove him to Wilshire station and questioned him.”

In 1953, Ed made lieutenant and went to Robbery Division. He stayed there working on cases until 1958, when he made captain and transferred to Wilshire Division as captain of detectives. “He expected a full day’s work out of you,” said one of his detectives. “We called him ‘Poppa Bear,’ but not to his face.” He backed his people. When someone stepped out of line, they could expect to be called into his office and verbally whipped, but it never went to paper. He handled it personally. That was how he handled the murder of two of his detectives: personally.

On February 2, 1964, Sears’ security called Wilshire station and requested an officer to respond to a suspected forgery suspect. At that time, Wilshire station was on Pico right next to Sears. Two of Ed’s detectives, Charles Monaghan and Robert Endler, walked over to Sears. Felony Car Ofcr. Endel Jurman accompanied them. Sears’ security had forgery suspect Leland Smith sitting in a back room and a female companion sitting in the adjoining office. Smith had tried to cash a forged check. Endler walked into the room and stood Smith up to pat him down. Smith drew a 2-inch five-shot Smith & Wesson revolver out of his waistband and delivered some of the unluckiest shots in LAPD history. Endler was shot in the face and killed instantly. Smith then fired one shot at Jurman, hitting him in the left arm. Jurman returned fire. Smith jumped over a desk and fired another round at Jurman, hitting him in the chest. Monaghan, who had just finished pushing a civilian down to get him out of the line of fire, raised his gun and he and Smith fired simultaneously at each other. Monaghan’s round went high, but Smith hit Mohaghan directly in the center of his forehead. As Smith fled, he fired another round at a Sears employee, hitting him in the shoulder. The security man, Thomas Winters, picked up Monaghan’s gun and chased after Smith. Winters fired one round at him as he was running down the aisle, but missed. Smith escaped. Ed was called in and immediately set up an investigative task force at Wilshire Division. “He led from the front,” one of the old-timers said.

“I went to two funerals and cried at them both,” Ed recalled 50 years later, “and I’m not that kind of guy.”

The intense investigative effort put out by all the officers paid off. Smith was caught in Chicago. Ed and two of his detectives flew out there with Deputy District Attorney Joe Busch, the future D.A. of Los Angeles County. They brought Smith back wearing an Oregon Boot, a weight attached to the foot to prevent flight.

When the plane landed, Ed received an urgent order to call Thad Brown, the chief of detectives. He did. “Take Smith right to County Jail,” Brown ordered. “That’s what I was going to do,” Ed replied, puzzled. “Parker’s worried,” Brown explained. “He saw you crying at the funerals, and he knows how you feel about your people. He was worried Smith was going to be killed trying to escape.” “That had never crossed my mind,” Ed remembered. “I wanted to watch the son of a bitch’s execution.”

That was not to be. Ed assisted the district attorney with the trial, and Smith was convicted and sentenced to death. Then Supreme Court Justice Earl Warren granted Smith a stay of execution. Eventually, in 1972, the year Ed retired, Smith’s death sentence was commuted to life in prison.

In 1978, Smith escaped and fled to Mexico. While down there, he raped and sodomized a woman at knifepoint. Although retired, Ed started a letter-writing campaign that resulted in Smith’s extradition and return to jail. Ed monitored every parole hearing thereafter and made sure that Smith never saw daylight again.

I have just scratched the surface of this remarkable man’s life. He was the epitome of the old-time detective, and his career cut a swath across LAPD’s most interesting historical period. LAPD legends were just friends to him. Telling his story will take more than a Warning Bells article; it needs something more like a biography. I think I will make that attempt. If you have any Ed Jokisch stories, give me a call, especially if you have a four-digit serial number. There are stories out there that need to be told.

Be legally careful out there

September 2011 Warning Bells article

Is the Worm Turning?

Every law enforcement agency’s officer involved shooting protocol is not the same as ours. In fact, I would venture to say that no other agency has the same protocol that we do. Surviving the gunfight is less stressful than surviving the investigative protocol in many cases. How do other agencies handle their shootings?

Chicago P.D. has an Independent Police Review Authority (IPRA), comprised of civilians, that investigates all officer involved shootings. The IPRA decided that they had the right to order an officer to give a tape-recorded statement within two hours of a shooting, regardless of the officer’s level of stress or sleep deprivation. Sound familiar? The officers disagreed and took their department to arbitration.

Their attorney told Force Science News: “We are not against an officer talking to the IPRA under Garrity protection. We just want him to be able to give an informed, thoughtful statement. Given how hectic and emotional a shooting situation is, we think the rest period is important.”

There is a ton of medical material on how rest is important to allow the mind and body to process what happened in a high-stress situation. It is not a mystery; it has been mainstream knowledge for years. Additionally, studies have shown that a person who has been awake for 24 hours is as impaired as a drunk driver.

The Chicago officers won. The arbitrator ruled that the investigators must wait at least 24 hours after a shooting before a detailed interview can be done. Furthermore, that interview must be done between 0600 and 1800 hours. (Sleep deprivation affects attorneys, too.) “This gives the officer a chance to rest through one sleep cycle, collect himself and consult with an attorney during reasonable hours in order to give an accurate account of what happened,” the officer’s attorney stated.

Like LAPD, Chicago officers have been under increased assault from criminals. By July of this year, they had been assaulted over 2,000 times, a number equal to the previous year’s total assaults. Their shootings by July had also exceeded the previous year’s total. One Chicago officer, who had been in two shootings in two weeks, said: “The younger generation is brazen. They just don’t care.” Their union spokesman agreed. “There’s no fear of the police,” he said.

Jacksonville, Florida, investigates officer involved shootings like this. The shooting officer gives a public safety statement at the scene and then consults with a union attorney. The union attorney decides if the investigators need more information to properly process the scene and conduct an investigation. The attorney does the talking, not the officer. The officer is then assigned a “buddy officer” for companionship and support, and personnel trained in critical incident stress management confer with the officer on what to expect physiologically and emotionally in the next 24 to 48 hours. The officer is then given administrative leave during which there is a mandatory visit with a psychologist. He meets with a union attorney and they prepare a brief (about one page) concerning the shooting, which is given to the department and the prosecutor.

Then everyone waits for the opinion of the prosecutor. Once the prosecutor decides that the shooting is legally justified, the department convenes a board to look at the officer’s tactics and policy considerations. They put the horse back in front of the cart. Isn’t criminal liability the most important issue?

Finally, let’s take a look at Santa Fe, New Mexico, where we learn that change is possible. Santa Fe had an officer involved shooting protocol that made even LAPD look warm and fuzzy. The catalyst for change was a young officer who vowed that what had happened to her would not happen to other officers on her department.

She had shot a knife-wielding subject who had stabbed his girlfriend and was about to stab her. She was made to sit alone on an icecold curb at the scene for five hours. She requested a jacket and it had to go up the chain of command for fear that she was altering the crime scene. Her gun was taken from her while she had to remain in a hostile and dangerous neighborhood. When she requested a bathroom break, she was transported like a suspect in a cage car. By the time of her interrogation (the most important interview of her life), she had been awake, except for a catnap, for 46 hours. It took a year before she was cleared.

Five years of fighting changed the protocol in Santa Fe. Now, officers are removed from the scene and taken to a comfortable location as soon as practicable. They can call their family immediately and can have an officer of their choice at their side for companionship and emotional support. The formal interview is delayed at least 48 hours to allow the officer to get some rest. A psychologist is available to them, and a long-term peer support team has also been formed to help officers.

So maybe it is time for us to re-examine some of the protocols imposed on our officers by the Police Commission, especially the interval between the use of force and the formal interview. Inaccurate statements do not help anyone. Well, not quite true. They help plaintiffs’ attorneys when our officers are sued because every inaccurate statement can be portrayed as a lie in front of the jury.

When an officer uses deadly force, it will result in the most important interview of his/her life. The officer should be allowed to do everything possible to make it the most accurate and complete interview that can be given. That includes rest, consultation, review of audio and video tapes, reference of reports or whatever else can assist in explaining why the incident occurred in the way that it did.

The politically easy thing is to cast officers out among the anti-police crowd with no protection. Both the League and the Department have an obligation to our officers to protect them as they protect us. Progress is being made, but a better job can be done. Let us re-examine the protocol and apply the science that is out there to help us get a more accurate picture of what occurred. It only makes sense.

This article depends heavily on the information gathered by the Force Science Institute. This organization studies the human dynamics in high-stress, rapidly unfolding force encounters. Their executive director is Dr. Bill Lewinski. Dr. Lewinski has testified as an expert several times for our officers and other officers across the nation. I highly recommend that you visit their website at www.forcescience.org. There are many scientific articles dealing with perception, sleep deprivation, memory studies and other subjects of vital interest to your understanding of what happens when that suspect points a gun at you and you take action. Hear warning bells and get prepared.

Be legally careful out there.

August 2011 Warning Bells article

Why a Civilian?

Congratulations to the Board of Directors and the MOU negotiation team for bringing in a fair contract on time. It took a lot of hard work in the current financial atmosphere to arrive at solutions that everyone could live with. The membership’s 96 percent approval rate speaks to the appreciation of the officers.

Of course, neither side gets everything that it wants. The League attempted to clarify discovery issues that have been plaguing members recently, but the Department resisted. In the end, it was agreed that the hearing officer in Administrative Appeals would be a civilian and the hearing officer would resolve discovery disputes.

The proposal for a civilian hearing officer came from the League. I cannot tell you why the Department agreed* — perhaps to save commanding officers from having to spend time on hearings, perhaps because of pressure from the Police Commission or perhaps none of the above. I can tell you why the League was in favor of a civilian.

If you have been following this column, you know that the League recently filed a lawsuit against the Department in an attempt to force the Department to treat officers more fairly in the disciplinary process. It seems that the Department feels it is necessary to block discovery, attempt to influence Boards of Rights members and hearing officers and otherwise impede an officer’s ability to defend him or herself. Complaining about these issues did no good, so a lawsuit was filed.

The MOU presented another opportunity to correct this situation. Making a civilian the hearing officer seemed to give officers a better chance for a fair hearing. In the past, it was the general opinion of police professionals that civilians did not understand the ins and outs of police work and, therefore, would not understand the issues in police discipline. Because of this, the League was not in favor of a civilian member in the Board of Rights process when it was proposed several years ago in a change to the City charter. However, experience over the years has shown that it is often the civilian who files the minority report in an officer’s favor. It turned out that the lack of experience in police work was balanced by a lack of receptiveness to Department politics, probably because the civilian did not owe future promotions to the Chief of Police. A trait prized by League representatives when selecting hearing officers is independence. After all, an accused officer is asking a Board of Rights or an Administrative Appeal hearing officer to rule that the Chief of Police was wrong in his decision to implement discipline. That is what an appeal boiled down to.

So there is the choice: experience in police matters or independence? Ideally, one finds both qualities in a single selection. That would be a captain or above who is also independent in the sense that he or she relies on the evidence and gives an officer a fair hearing with no fear of being second-guessed by persons of higher rank in the Department. There have been many who have had this independence, but without repeating the last two Warning Bells articles, the Department, through Internal Affairs, is doing everything possible to throttle that independence. So, the counter move is to take the chain of command out of the equation to the extent possible.

It is our hope that the civilian hearing officer, unencumbered by the need to worry about their next rating report from the Chief, will make recommendations based on the evidence presented. Furthermore, the Chief will be in a different position when deciding to disregard the recommendation of a civilian hearing officer, as has been routinely done in the past with lower-ranking command staff.

It is unfortunate that the League has had to explore lawsuits, changes in procedures or other methods to try to circumvent the Department’s insistence on controlling the playing field to an officer’s disadvantage. None of this would be necessary if the philosophy of Internal Affairs management matched the words on its coffee cups: “The truth of the matter.” If one has found the truth, one does not need to fear discovery or fair hearings.

The civilians will be appointed by the Police Commission. In our view, the Commission has the function of ensuring that its officers are treated fairly as much as it has the function of ensuring that the public is treated fairly. We will see if it rises to the challenge.

Be legally careful out there.

*Note:  There is currently a dispute between the Department and the League as to whether downgrades were included.  It will eventually go to arbitration.