January 2012 Warning Bells article

Posted by Administrator on December 30, 2011

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 Internal Affairs then refuted the “gotcha policy” as outdated Bratton rhetoric (“Warning Bells,” Thin Blue Line, March 2011).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..

Category Categories: Discipline Issues, Representation Issues, Warning Bell Article  |  Comments No Comments »

December 2011 Warning Bells Article

Posted by Administrator on December 30, 2011

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.

Category Categories: Board of Rights, Representation Issues, Warning Bell Article  |  Comments No Comments »

November 2011 Warning Bells Article

Posted by Administrator on December 30, 2011

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

Category Categories: Discipline Issues, Use of Force, Video Issues, Warning Bell Article  |  Comments No Comments »

October 2011 Warning Bells article

Posted by Administrator on December 17, 2011

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

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September 2011 Warning Bells article

Posted by Administrator on December 17, 2011

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.

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August 2011 Warning Bells article

Posted by Administrator on December 17, 2011

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.

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July 2011 Warning Bells Article

Posted by Administrator on August 22, 2011

Chief of Police Invades Independence of the Board of Rights Process

 Every Los Angeles police officer has the right to appeal a suspension of one day or more to a Board of Rights. Furthermore, the Chief of Police cannot terminate an officer without sending the officer to a Board of Rights, where the officer must be found guilty and the Board must recommend termination. William Bratton didn’t like it and the Police Commission doesn’t like it, but it has been that way in Los Angeles since the 1930s, and for good reason.

The history of the Charter legislation can be found in the first chapter of the Department’s Management Guide to Discipline. The bottom line is that the street cop needed protection from the politicians. It was hard to be an honest cop in those days. If a beat cop reported corruption, he found himself suddenly beset with administrative problems often resulting in termination.

The Board of Rights system was born in the storm of reform against political corruption. Voters made sweeping changes to the Charter starting in 1931. Police officers were given a substantial right to their positions. However, the Chief of Police could ignore the decision of the Board of Rights (called a Board of Inquiry at that time). Because the Chief was appointed by the Police Commission, which was appointed by the mayor, little had changed in regard to protecting officers from crooked politicians. Guess who came to the rescue?

The Management Guide to Discipline states: “In 1934, Lieutenant William H. Parker began to rewrite [Charter] Section 202. Parker was a law school graduate and former assistant to Chief James E. Davis. Parker knew the workings of city government close up. The Shaw brothers presided over a corrupt city, and Chief J. Davis was beholden to the Shaws. Mayor Shaw’s brother was controlling the vice squad and selling sergeant’s tests for $500.

Working with another lieutenant, Earl Cooke, Parker campaigned for the passage of the Charter amendment in 1935. Within two years, a reform mayor was elected and Chief J. Davis was forced to resign. Mayor Shaw became the first big-city mayor in the nation to be recalled from office, and his brother was prosecuted for corruption.”

The idea behind the Charter changes in the ’30s was simple. If you were going to punish or terminate an officer, the officer got a fair hearing where the Department had the burden of proof and the officer had a chance to defend him or herself. The hearing was a buffer between the politicians and the street cop. An officer was to be disciplined on the basis of evidence, not politics.

Did it work? Witness the political fallout from the Perez scandal that rocked Rampart Division. Chief of Police Bernard Parks’ solution was to fire every officer in Rampart CRASH. There were at least 86 Boards of Rights, the vast majority of which resulted in not-guilty verdicts. More recently, Chief Bratton announced to the Police Commission and the press that he wanted termination of at least four of the May Day 2007 Metro officers. Again, an examination of the evidence at Boards of Rights resulted in no terminations. That is the difference between examining the evidence and politics.

Inherent in the value of the Board of Rights is the independence of the panel, which consists of two command staff officers and a civilian. This independence is under assault. Chief Gates stated in his autobiography that he sometimes didn’t like the decisions made by the Boards of Rights, but he never interfered with them. Chief Parks is on record as requiring Board members who found officers not guilty in Boards to have a personal conference with him to explain why. Chief Bratton took it a step further and announced to all the staff officers that when he sent an officer to a Board of Rights, he expected termination because he only sent those to Boards who should be terminated. Furthermore, if they weren’t terminated, they would be transferred to the command of the Board member who had failed to terminate them. Let them deal with the officer, Bratton said. And yet we still had command officers who took their duty of examining the evidence seriously and would render a not-guilty verdict when they thought it was proper.

This brings me to the point of this article. Not content with the above, Internal Affairs has now gone a step further. They are reaching into the Board while it is still in progress. As has been related several times in the past, when a Board rules on a motion in favor of the officer, Internal Affairs reconvenes the Board to “reconsider” the ruling. A written argument is then submitted with Chief Beck’s name prominently on the top informing the Board that they have made a mistake and should reconsider their ruling under the attached argument. This generally has the desired effect and results in a reversal of the ruling. But sometimes it doesn’t.

A recent case, which inspired this article, went down this way. The officer’s representative argued that three out of the four counts charged against the officer were out of statute. (The result of being out of statute is that those charges cannot be considered in the penalty and should be withdrawn.) Internal Affairs argued that they were not out of statute. The Board considered the evidence and arguments from both sides and ruled that the officer’s representative was correct and sustained his motion. A few days later came the motion from Internal Affairs to “reconsider.” The written argument with Chief Beck’s name prominently on top was submitted and the Internal Affairs advocate had a deputy city attorney at his side to argue the legal points. Members of the Board listened to the arguments from both sides, then contacted their own deputy city attorney for advice. After careful reconsideration of all the arguments and consulting with their own deputy city attorney, the Board ruled that its initial ruling that the counts were out of statute was correct. The motion for reconsideration was denied.

One would think that would end it. After all, if the officer had lost the original motion, there would have been no reconsideration. The officer would have had to file a writ in superior court. Not so for Internal Affairs. Internal Affairs went to the Chief of Police. Chief Beck determined that the Board was wrong and ordered it to proceed on all four counts.

So much for the independence of Boards of Rights! The irony is that when Chief Beck was a captain, he was one of the best Board picks on the Department. He cared about cops. He took his job of looking at the evidence seriously. And he was independent. He called it like he saw it. If the evidence showed that the officer was guilty, Beck punished the officer to the extent required, including termination. If the evidence wasn’t there, he made that call regardless of the inevitable trip to Chief Parks’ office to explain why.

Charlie Beck would have been the last one to allow someone to reach into one of his Board of Rights and interfere with the process. What has changed? Where is he getting his advice?

And it is the process that we are defending, because what can happen to one can happen to anyone. This isn’t the ’30s, as people will tell you. All that corruption is gone. Maybe, but under the changes to the Charter that were implemented a few years back, the system in place is starting to look like the ’30s. The Chief of Police has no civil service protection. The Chief is beholden to the Police Commission, which is appointed by the mayor.

If the independence of the Board of Rights system is eliminated, the officer loses the protection from politicians that has been in place for over 70 years. Once the process is destroyed, all we have to do is wait for the arrival of the crooked politician, and it is 1931 all over again. The current mayor and the current Chief of Police won’t be here forever.

There are warning bells to be heard. History does repeat itself. The process must be protected. Yes, the League is likely to file yet another lawsuit on behalf of the process, just as it did over the interference with discovery and representation that was reported last month. The stakes are high. The fight must continue …

Be legally careful out there. v

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June 2011 Warning Bells article

Posted by Administrator on August 22, 2011

Death by a Thousand Cuts

If the Constitutional Policing Unit really wanted to up their recap, there would be no bigger apple orchard than following around Internal Affairs as it conducts Boards of Rights and Administrative Appeals. The Public Safety Officers Procedural Bill of Rights and the Constitution of the United States govern these proceedings. And there is also the simple concept of fairness that we all learned as far back as our sandbox days.

While the Police Commission brags to the public about the transparency of the LAPD, Internal Affairs repeatedly refuses to provide evidence to accused officers and resists any attempt to get it by other means. For example, an employee representative assigned to defend an officer in an Administrative Appeal wanted to review officers’ logs at a traffic division to determine whether working out was routinely allowed. Denied. Another rep wanted to view the chrono log of the IA investigator who did the investigation of his officer. Denied. A League attorney defending an officer at a Board of Rights wanted to see the IA chrono log related to the service of a complaint on his officer. Denied. An Admin Appeal rep wanted to convene the hearing to request a continuance. Denied. An attorney wanted a Force Investigation Division report to defend his officer in an Admin Appeal. Denied. An advocate put on a witness to testify against an officer. The day ended before the representative could cross-examine the witness. The next day, the witness called in sick. The representative asked for a continuance until the witness was back on duty. Denied. The representative asked that the witness’s testimony on direct be stricken because the accused officer was being deprived of the constitutional right to cross-examine witnesses against him. Denied.

It goes on and on. Sometimes, the Board or hearing officer will order Internal Affairs to supply a document, but the next day the same denial will be made in another case. Challenging these numerous and unending denials of discovery, and other unfair actions, is time-consuming and expensive. For instance, after the chrono log was denied, the representative fought for a discovery hearing with the hearing officer. Finally, it was scheduled. League attorneys assisted the representative and a city attorney appeared to assist the advocate. A hearing was conducted and arguments were made by both sides. No confidentiality was asserted by the advocate, so secrets weren’t being spilled, just merely that since the Chief hadn’t seen the log, the officer wasn’t entitled to it. The hearing officer, after listening to the arguments, ordered Internal Affairs to produce the chrono log for inspection. This was done. The representative observed that it was a typed log obviously formally prepared. The Internal Affairs investigator stated that the log was created from notes made at the time and that to respond to a question he would have to look at those notes. The rep asked to see the notes. The IA investigator said he would check with the advocate. Denied. Now the representative has to schedule another hearing to ask the hearing officer to order those notes to be produced. Why? What are they hiding? What are they ashamed of? What is it about due process that they refuse to understand?

To avoid going to court hundreds of times over these continuing denials of discovery and other obstructive tactics, the League has filed and served one lawsuit seeking to solve all the problems. The complaint against the Department makes the following allegations:

 “Commencing in or about 2010 and continuing to date, the Defendants and their agents and employees have approved, administered, perpetrated and engaged in a systematic pattern of implementing practices so as to deny the League’s represented employees their constitutional, statutory, municipal and/or administratively mandated rights to a full, fair and meaningful administrative hearing, including the right to administrative discovery and provision of related non-confidential investigative materials and/or other information that might aid in the employees’ defense, by engaging in unlawful and/or improper conduct so as to deprive, intimidate, interfere, discourage, vex, hinder, restrain, harass, annoy and/or retaliate against the employees represented by the League and/or their defense representatives for exercising their lawful rights in securing fair and meaningful administrative hearings. “Defendants’ unlawful and/or improper conduct denying, interfering or abridging the rights of employees represented by the League to full, fair and meaningful administrative hearings and the right to administrative discovery and provision of related non-confidential investigative materials and/or other information that might aid in the employees’ defense includes, but is not limited to: a.) refusing to provide discovery which relates to the administrative case; b.) providing untimely discovery; c.) refusing to permit defense representatives access to non-confidential documents or other information related to the investigation which might aid in the employees’ defense; d.) refusing defense representatives the opportunity to interview witness; e.) intimidation of defense representatives; f) restriction of issuance of administrative subpoenas of witnesses; g.) denial of issuance of administrative subpoenas for production of Department’s records; h.) intimidation of witnesses; and i.) exertion of pressure or influence on Los Angeles Police Department command staff presiding as hearing officers in administrative cases.”

The central theme of all this fancy legal talk is this: Why is it that the Department feels it cannot conduct an honest investigation, make a logical decision as to discipline and put the investigation on the table for inspection instead of constantly hiding facts, dodging discovery, blocking accused officers’ representatives and trying to rig the process against the officer?

I suspect it has a lot to do with ego and a need for control. These are the very things that the founding fathers of this republic sought to control through a history-changing style of government called democracy, which contained a system of checks and balances. The absence of checks and balances leads to an expansion of power, and unchecked power ultimately leads to corruption. This has been a well-traveled road throughout history.

The antidote is due process. That is what the League’s lawsuit is seeking to restore in our disciplinary process. It is unfortunate that we have to resort to this extraordinary and expensive process. There will be discovery, depositions, interrogatories and eventually a trial. It is telling that the League is not seeking any monetary damages. These are hard financial times for the City and the goal here is to simply force the Department to treat its employees fairly. The League has exhausted all efforts to correct the situation, and this lawsuit is a last resort.

The source of the problem is at the management level and does not, for the most part, lie with the case-carrying personnel complaint investigators, although the arrogance of power sometimes trickles down to the street. Officers will complain to us about things like interviews that are unequivocally ordered without regard for the officer’s schedule, or the officer’s attorney’s schedule. But the discovery violations and other machinations usually take place at a higher level of rank. The large majority of Internal Affairs investigators successfully do their job while honoring the officer’s rights.

So we head into this legal battle … or maybe people in high places within the Department could worry about the fair treatment and constitutional rights of officers as much as they do about the fair treatment and constitutional rights of the citizens on the street, and allow our officers to focus their energies on crime problems instead?

Be legally careful out there.

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May 2011 Warning Bells Article

Posted by Administrator on June 23, 2011

The Power of the Pen — to Put You in Jail!

Sometimes a thoughtless act can have devastating consequences far surpassing anything imagined at the time. There are all kinds of ways of unintentionally crossing the line. The very nature of your job creates a minefield to maneuver through each day. Take report writing, for instance.

An Orange County deputy sheriff found out the hard way about exploding reports. According to the press, the deputy was assigned to do followups on 39 property crime cases. He was supposed to contact the victims on each case and determine their willingness to cooperate in situations where DNA might result in solving the crime. Apparently, he decided to take a few shortcuts. In 18 of the 39 cases, he wrote that he had contacted the victim and they didn’t care to cooperate. He hadn’t, but what did it matter? It was just a report.

Getting criminally prosecuted undoubtedly never crossed his mind. Unfortunately, after he handed in the 39 follow-up reports, some of them began to unravel. For instance, one of the victims who he wrote about interviewing and who he had written had declined to cooperate turned out to be dead. That was bad luck for both of them. In the end, the district attorney filed 18 misdemeanor counts against the deputy. He took a jury trial and was convicted of eight of the counts. This was an unexpected end to a 10-year career.

It behooves anyone who puts a pen to an official report to know about 118.1 PC.

118.1. False statements in crime reports; Penalties

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.

This should give you pause every time you put pen to paper. Writing a report may be the most important thing you do, short of testifying. Any time you put something into the report thoughtlessly, or under an assumption or without carefully checking the facts, you may open yourself up to unexpected consequences. The ultimate goal in writing a report should always be accuracy.

The problem is compounded by the Department’s current emphasis on reducing overtime. Before an investigation is complete, the original unit is often ordered to go end of watch and pass the rest of the investigation off to another unit to avoid overtime. Does the second unit really understand everything that the first unit did? They’d better, or the report will not be accurate. And that is the first step in what could turn out to be a disaster.

Another unofficial Department procedure that could lead to disaster is the “designated finder” concept. To reduce overtime, officers in narcotics and gang units executing search warrants may be encouraged to have one officer be the official finder of all the evidence. This means that only one officer will have to go to court. This is fraught with danger since the property report reads as if only one officer was at the scene searching. While it may be true that this officer was directed to all the found evidence and officially seized it, cross-examination in court months later can get pretty tricky (and dangerous to one’s career). Don’t expect the Department’s gratitude over the overtime you saved to protect you.

If you have the misfortune to be involved in a situation that gets blown into a media event, things get even more critical. Take the Rodney King incident, for example. The reports written in that incident before the Holiday video tape became known to the media were eventually blown up into four-foot-by-six-foot exhibits to be displayed in front of the jury as prosecutors beat up the officers on the stand over every seeming inconsistency in the report that could be imagined.

A few years later came the Rafael Perez scandal. The prosecutors brought Rafael Perez a stack of hundreds of arrest reports to look at to tell them which were false arrests. Perez had a field day in his attempt to draw focus away from his crimes. Every report that Perez selected was scrutinized by teams of IA investigators to find inconsistencies on which to send officers to Boards of Rights. Most officers were cleared, but the experience wasn’t any fun. Who would have thought in 1998 that reports written in 1995 would be subject to such intense inspection?

Don’t let carelessness, assumptions or inaccuracy affect your long-term career goals when you pull that pen out of your pocket. When you turn that report in, hear warning bells. Like a bullet, once fired it can’t be brought back. So, like you do when you fire a bullet, strive for accuracy!

Be legally careful out there.

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April 2011 Warning Bells Article

Posted by Administrator on May 30, 2011

Not Perfect Again

I seldom name officers whom I write about in my articles, but this time I am going to make an exception. For one thing, his name is already splashed all over a Los Angeles Times article, and the adjudication of the shooting that he was involved in has been posted on the Police Commission website. I am going to try to tell his side of the story so, hopefully, the inevitable Google searches will at least bring up one article that tries to describe what it was like to be in his shoes.

The officer’s name is Tony Hyong Im. He works Wilshire. He is a PIII now, but will shortly be downgraded as a result of this shooting and, yes, we will appeal. I am not telling any secrets because the categorical use of force findings by the Police Commission examine the incident in great detail on its website and because the Los Angeles Times story quotes its documented sources as “the LAPD’s official review, analysis and findings of the incident, and the Board of Police Commissioners’ findings of the incident.” It also quotes an unidentified “senior official” who wishes to remain anonymous.

The Times article, published on March 1, describes the murder of Flor Medrano, a 30-year-old female who was stabbed to death by her boyfriend. The Times story, as you might imagine, is written from the perspective of the murder victim and is critical of the Department. In the Times’ defense, the reporter did not have access to the officers involved in the incident and it appears he tried to consider all sides of the story. The article, however, neglects or glosses over a couple of the facts that make a huge difference in how Officer Im made decisions as the night in question progressed.

Our use of force policy tells us that the actions of our officers are not to be looked at with the benefit of 20/20 hindsight, but that is exactly what is happening here. A woman tragically died and the Department microscope came out with the 20/20 hindsight lens firmly attached.

First, let me establish for the record that Tony Im is not your average employee. At the time of the incident, he had 12 years on LAPD. He was recently named Wilshire’s Officer of the Quarter. Officer Im has received 12 bureau commendations, 48 citizen commendations, 80 area commendations, three other Department commendations, 10 other area commendations and two business commendations. He has a commendation that was signed by a member of the Los Angeles City Council for “rare and unwavering courage to go where others dare not go.” The month before the shooting, Im was the divisional leader in calls for service. His commanding officer called him a “productive, competent, tenured officer.”

If this sounds like the epitome of a hardworking, conscientious officer, why is he headed for a downgrade? All it takes is one radio call. In this case, it was “go to the station.”

Another unit had been flagged down by Flor Medrano, who was afraid that her boyfriend was going to kill her. They brought her to the station and started the investigation, but they were too close to end of watch. To save on overtime, Im and his partner were called in to take over the call. It won’t be the first time in this story that concern over overtime will play its part.

Officer Im and his partner spent the next three hours at the station with her. In brief, she had been dating the boyfriend for three months. He was insanely jealous. She tried to break up with him, but he wouldn’t have it. He came over to her apartment and demanded entry. She allowed him in and he raped her. He had also beaten her in the past. To top things off, she said that he carried a gun.

Officer Im took a felony crime report from her at the direction of a detective, and successful efforts were made to identify the boyfriend and obtain his record. While this was going on, the boyfriend kept texting Flor on her cell phone. The officers directed her to set him up for an arrest by arranging a meeting place. She tried. He became suspicious and that attempt fell through.

Then the boyfriend texted that he was at her apartment and was setting things on fire. Flor lives in an apartment building on the second floor. She has a steel door with a deadbolt and barred entrance windows, and she had the only key. The boyfriend had no way to get in, but the officers could not take a chance that the boyfriend was not telling the truth. It did not make any sense that he would be able to get in the apartment, but it did make sense that he was in the area. They had a signed crime felony crime report and plenty of probable cause to book him if they could get their hands on him.

Since the officers were in full uniform and driving a black and white, the detective decided to take the officers with him in his plain car and go have a look. They drove to Flor’s address and parked. The detective decided that since he was in plain clothes he would scout the location while Im and his partner remained close in case the suspect was there. Because they were in uniform, they did their best to stay out of sight.

The detective went up to the second-floor apartment. There was no fire. The lights were out. The steel security door was locked and undamaged and no activity was visible from outside. The boyfriend was lying about starting a fire, but it was logical to believe that he was in the area. The detective and officers returned to the station.

All incidents are handled through a series of small decisions. Each decision affects other decisions in the train of decisions that move to the end of the incident. The Police Commission and Chief of Police had the advantage of knowing how the story ended when they condemned the officers for their tactics. Officer Im did not have that knowledge, which is why the courts and Department policy negate 20/20 hindsight in judging an officer’s actions. Were the decisions reasonable with the knowledge that the officer had at the time that they were made? That is the relevant question.

At this point, Officer Im was focused on getting the boyfriend into custody for terrorist threats, rape and battery. It was logical to believe that the boyfriend could not be in the apartment based on the fact that he was not there when Flor left and locked the steel security door; there was no evidence that the door had been forced, and there was only one key, that Flor had in her possession. Im was familiar with the area and knew that there were no fire escapes on the rear of the buildings. Since Flor lived on the second floor, there was no access to any rear windows.

What Officer Im did not know was that he was dealing with a Spiderman of sorts. The Los Angeles Times printed a photograph of the front of the building. It would have been fairer to print a photo of the rear. The boyfriend was in the area as the officers suspected. He had returned to the apartment after the detective had left and banged on the apartment door. He could not gain access. A neighbor later testified about hearing noises on the roof. To the neighbor’s disbelief, the boyfriend had gained access to the roof and somehow managed to lower himself down a bare wall two stories above the ground and gain access to a bathroom window at the rear of Flor’s apartment. A look at the accompanying photo will give you an idea of how unexpected that would be.

The back of Flor Medrano's building. Her apartment was on the second floor.

From Im’s point of view, the texting indicated that the boyfriend was still around and interested in harming Flor. To him, the solution to the problem was the arrest of the boyfriend. Flor, however, was tired of this and wanted to go home. In fact, she insisted.

The officers tried to talk her into going to a sexual assault shelter, to her mother’s home or even staying the night at Wilshire station, but she would have none of it. She felt safe at the apartment behind the steel door and bars, and she had the only key.

You do not get to arrest the victim. She is free to leave and free not to take your advice. The officers had to deal with her decision.

Officer Im contacted the vice unit. He wanted to circle the place with undercover officers to wait for the boyfriend’s next move, which would logically be to return to the apartment to confront Flor. Vice support was denied. No overtime was available for this. The detective requested permission from the watch commander for Im and his partner to sit on Flor’s apartment for five or six hours. The watch commander gave him two hours, then he wanted them back to their patrol duties. As usual, the division was in need of units on patrol. And so, Officer Im had to do more with less.

His decisions were based on two factors. The first was that the apartment was safe. The second was that the boyfriend was in the area and needed to be arrested. Absent a belief in Spiderman, this reasoning was reasonable.

The officers and Flor formulated a plan. They did not want to alert the boyfriend that she had gone to the police. To provide cover, in case he was in the area, they had Flor go to a McDonald’s (as they followed in a plain car) and get some food in a bag to carry with her. She would then go up to her apartment. If the boyfriend was watching, he would think that she had merely gone out for food.

In the meantime, the officers, handicapped by being in uniform, parked their plain car where they had a full view of Flor’s front door and scrunched down as best they could. Their plan was that if the boyfriend appeared, they would allow him to get in the courtyard, where he could be trapped, and affect the arrest. Obviously, they could not accompany her to the door. The sight of uniforms would ruin the entire plan. Besides, based on their belief of the safety of the apartment, no check was necessary. The boyfriend could not be in there.

They told Flor that they would be outside for two hours, and gave her their personal cell phone number. They told her that if the boyfriend came to her door, she was to call 911. She and they felt she would be safe behind the steel barred door while officers responded. The hole in the plan was the Spiderman exception. He was already there.

All was quiet for the two hours. The officers did not see anyone approach the door, so they phoned Flor to tell her they were leaving. Several attempts resulted in what appeared to be an answer, then a disconnect. Officer Im suspected that the calls were being dropped. It could be the service; it could be a dead battery; it could be a lot of things.

Then they received a call on their cell phone and heard a scream. The officers bolted out of the car and requested a backup as they ran up to the door. The door now kept them out. It was quiet. Had they heard a scream, or was Flor contacted again by the boyfriend over the phone and was screaming at him?

Im told the probationer to cancel the backup. He did not want his fellow Wilshire officers overdriving to help him. He knew they would come anyway, just slower. Then another scream. He told his partner to put out the backup out again.

He looked through the window and saw Flor backing up into the living room. He saw blood on her. He saw the boyfriend advancing with a knife. He began shouting orders, but he had no clear shot — she was in the way. The boyfriend stabbed Flor and she went down. There was the clear shot. He fired, and the boyfriend went down.

He reached through the bars and the window trying to reach the inside lock on the steel door to get in to help Flor. It was too far. “Sweetie, come to me,” he implored. “Come to me and open the door.” She tried; she crawled, but she couldn’t make it. Other units were there almost immediately. A crowbar was brought by one of the officers, and the door was pried open. It was too late. He was heartbroken.

It didn’t take long for the microscope to come out. You can read all of the criticisms in the Times and on the Police Commission’s website. They need not be repeated here and there is not enough space. Nothing was overlooked, including Officer Im’s magazine being one bullet light.

The failure to get an emergency protective order was cited, but it is a red herring. The boyfriend was arrestable on sight. There was no need to get a judge to issue an order, serve the boyfriend and then arrest him if he violated the order. Any officer could arrest him immediately for terrorist threats and rape on probable cause. The detective would have an arrest warrant the next day at any rate.

Bratton used to say that “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.” Officer Im was wrong in the sense that he failed to anticipate a Spiderman, but who would?

You can also throw in various other things that, in hindsight, one can wish were done differently. But the point of the philosophy expounded by Bratton is that mistakes made while an officer is trying to do the right thing are far different from officers deliberately breaking the rules.

The L.A. County Domestic Violence Counsel and the Domestic Violence Death Review Team both gave commendations to Officer Im for his efforts. After all, he did remain exposed in a window to cover Flor in the presence of a suspect whom he had been told was carrying a gun, along with all the other things done that night to try to protect Flor and arrest the boyfriend. No one can dispute that Officer Im was at least stepping up to the plate to try and help Flor Medrano.

Using 20/20 hindsight, it is hard not to think that he would have been better off if he had just taken a report and gone back out on patrol. But 20/20 hindsight shouldn’t be used by anyone.

And what about the 140-plus commendations, Officer of the Quarter and highest radio call recap of the month? The Department position seems to be “what have you done for me lately?” The Department should hear warning bells. The answer from the troops may be “nothing, it’s not worth taking the chance.”

Be legally careful out there.

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