June 2018 Warning Bells article

June 2018 – Beware the ORWITS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Be legally careful out there.

May 2018 Warning Bells article

May 2018 – Smile-You’re on Candid Camera

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

Why?

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

When?

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

What?

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

What else?

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

Critical incident?

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

Types of video?

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

Privacy protection?

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

Delayed release?

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

Notifications?

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

How long?

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

Effective when?

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

Some advice

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

Be legally careful out there.

April 2018 Warning Bells article

April 2018 – What you need to know about Telematics

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

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

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

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

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

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

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

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

Be legally careful out there.

March 2018 Warning Bells article

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

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

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

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

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

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

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

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

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

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

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

Be legally careful out there.

February 2018 Warning Bells article

February 2018 – Biased policing: Deja vu all over again

The Department is still searching hard for that biased policing officer, but the gallows have been hanging empty and gathering dust despite the millions of dollars invested in ferreting out this ultimate crime. But don’t expect the effort to let up.

If nothing else, though, it has generated a wealth of statistics. Some quite fascinating. Statistics aren’t complete yet for 2017, but there were 205 biased policing complaints taken in 2016. As Chief Beck pointed out during a Police Commission meeting, when LAPD officers make over a million contacts a year, that works out to zero percent. True, but the pressure is still on to get those gallows dusted off even though the number of allegations have been going down. In 2015, there were 261, in 2014 there were 284. The Commission president thinks that this might be due to the biased policing training that all officers have attended.

Statistically speaking, patrol officers get the most biased policing complaints (46 percent), Metro next (10 percent). West Bureau is the leader (29 percent), with Valley Bureau coming in second (24 percent). Even though female officers make up 18 percent of the Department, they only get 11 percent of the biased policing complaints. Ethnically, each racial group received complaints in proportion to their Department composition, and age and time on the Department were also proportional.

The most dangerous police activity in garnering a biased policing complaint is traffic enforcement. Those making the complaints were 56 percent African-American, 21 percent Hispanic, and 9 percent Caucasian. Race/ethnic bias is alleged the most (90 percent), with gender bias coming in a distant second (5 percent). And then comes adjudication. None of the complaints were sustained; 81 percent were unfounded, 10 percent were classified as “insufficient evidence to adjudicate,” 2 percent were “not resolved” and 7 percent were mediated.

Mediated? What does that mean? Mediation is a process that the League helped to negotiate about four years ago. The idea was that the complainant and the officer meet with an outside mediator and talk over the complaint. This avoids a biased policing investigation. That is a good thing. A mediated complaint also does not appear on your TEAMS as discipline. That is another good thing. It also saves time and money. Mediation of a biased policing complaint averages 69 days to completion. A biased policing investigation averages 277 days to completion. Salary cost of mediation is $335. Salary cost of a biased policing investigation is $1,580. More good things. So why don’t we do more of them?

Well, 40 percent of the time, the complaint is not eligible for mediation because it involved allegations of other serious misconduct, such as an unnecessary force allegation. But 60 percent were eligible. The problem was that 65 percent of the time, the complainant refused to participate, and 24 percent of the time the officer refused to participate. When the parties did elect to participate, however, the satisfaction rate with the process was 84 percent for the complainants and 89 percent for the officers. Eighty-three percent of the complainants thought the process was fair, and a whopping 97 percent of the officers felt it was fair.

Since it appears to be a good thing in comparison to a biased policing investigation that rivals an officer-involved shooting investigation in intensity, as those officers who have gone through it can attest, the problem seems to be to get more citizens and officers to agree to mediate. The process is completely voluntary on the part of both the complainant and the officer. No attorneys or representatives are allowed. Juveniles may have parents present, but any other support person must be agreed upon by both parties.

Mediations are confidential. What is said, or written, is confidential under the Evidence Code, so what either party says during the mediation cannot be used outside the mediation. Both parties sign an acknowledgment of this provision before mediating. That gives the process protection and allows the participants to speak candidly. The mediators are civilians, trained in mediation, and selected by the City Attorney. No Department personnel are allowed to be mediators, and the mediators cannot be former police officers. There is no requirement that the mediation reach a formal resolution. The idea is to get the parties together to exchange points of view. That being done, the mediation is deemed to be successful.

The process starts with the Department coordinator, who reviews the biased policing complaint to see if it is eligible for mediation. If so, the coordinator will contact the complainant to see if there is interest in mediating. If the complainant is willing, the officer is then contacted. If both are willing, the coordinator arranges a mutually agreeable time for the complainant, officer and mediator to meet. If the complainant fails to appear on that date, one opportunity to reschedule will be given. If the complainant fails to appear again (or fails to respond to attempts to reschedule), the complaint is closed as “mediated.” If the officer fails to appear, again an opportunity to reschedule will be given. A second failure to appear will result in the complaint referred back to Internal Affairs to proceed with the formal investigation.

If the parties do appear, agreements to mediate are signed and the mediation takes place. Regardless of the results, the complaint is closed as “mediated,” and that is what will appear on the officer’s TEAMS. Mediated complaints do not show up on TEAMS performance review, promotion/paygrade advancement, final selection process/transfer, RMEC, RMIS or disciplinary review screens. This is an advantage over the “not resolved” adjudication, which does show up on the performance review, final selection process/transfer, RMEC, RMIS and disciplinary review screens. And, of course, it is infinitely better than a “sustained” classification, which appears on everything.  So my advice is to participate in any mediation process that you may be entitled to.

Body Worn Video (BWV) and Digital In Car Video (DICVS) have been touted as the solution to all biased policing complaints. How has that worked out? Only 35 percent of the biased policing complaints were in divisions that had BWV or DICVS. Nevertheless, in 81 percent of the complaints where video existed, the video assisted in adjudicating the complaint. Since no complaints were sustained, it can be inferred that the video was helpful. In fact, an example is given where during a traffic stop an officer was accused of pushing the complainant up against a car, calling him a “baby killer” for being in the military, and using profanity when he was told to “shut up.” DICVS disproved everything, and the complaint was unfounded.

By February, the distribution of BWV is supposed to be completed. If the trend above continues, the videos will be valuable in rebutting biased policing allegations. Hopefully, the dust on the gallows will only get thicker.

Be legally careful out there.

January 2018 Warning Bells article

January 2018 – Restricting access to private activity on Department video

Two things are happening that makes the knowledge of how to seal portions of body worn video (BWV) more important. The first is that the Department is going to be releasing the video to the public, and the second is that the buffer has been increased to two minutes. Yes, your private conversation, or bathroom activity, could end up on YouTube.

As I write this, the final video release policy has not been implemented, but the Police Commission is going to do it and calls it a management right, not subject to Meet and Confer. Even if the League is ultimately successful in forcing a Meet and Confer, there is little doubt that BWV and digital in-car video (DICVS) will be released no matter what our efforts or opinion. The policy has not been implemented yet, so the final details are yet to come and will be the topic of future Warning Bells articles.

The two-minute buffer, however, is in place. There has always been a buffer, it is now just longer. Your BWV and DICVS are always recording in two-minute video loops. When you hit the record button, the two-minute video loop previous to the button press is saved (video only, no audio). It is possible now to be in the bathroom, hear a help call, run outside to respond, hit your BWV record button and save to video what you have been doing the previous two minutes. It might not be pretty.

What is critical, and has always been critical, but is now even more critical, is that you review your videos. Remember that criminal defense attorneys will always get your entire video in discovery when a suspect is charged with a crime, as will the plaintiff’s attorneys who might later file a lawsuit. Video release policy is irrelevant in criminal prosecutions and civil trials. Now, portions of BWV and DICVS recordings will be placed on the Department website. No need for discovery. Millions will now be able to parse your conduct at their leisure.

Witness what happened recently on CBS LA when reporter David Goldstein and a criminal defense attorney got together and implicated officers in planting evidence. The attorney was given 12 videos in discovery from various body worn videos made by officers during an arrest. By selecting certain portions of the video, it was implied and made to appear (on TV) that the officers may have planted drugs on the suspect. The case was helped along by reports and preliminary hearing testimony that appeared to be inconsistent with the videos. The inconsistencies played into the defense attorney’s assertions that the officers were framing his client. He set up the ambush in court, and the reporter pounced on the officer as he left court, peppering him with questions. The officers maintain that they did nothing illegal. They may have made mistakes in their reports and testimony, but mistakes are never mistakes to criminal defense attorneys or plaintiff’s attorneys. They are portrayed as lies to the jury, often effectively.

With BWV and DICVS video about to be posted on the internet by the Department, there will be a free-for all in finding things that officers have done wrong more often than noticing all the things an officer has done right. We will try to build in as many protections for you as we can, but as of this writing, the Department isn’t even recognizing that this is a Meet and Confer.

However, we were able to negotiate some protections into the BWV policy before it was deployed, one of which is the ability to restrict access to private actions on the video. The policy is in a Notice issued on August 28, 2015. When there is an “unintentional and inadvertent BWV or DICVS recording that captures sensitive, personal information for which access should be restricted,” an officer can follow a procedure, which causes that portion of the video to be protected so it cannot be seen. We knew during negotiations that there would be times when an officer would forget to turn a BWV or DICVS off, or when the buffer would pick up something unintentional that could be embarrassing.

As the DICVS Special Order states, “The Digital In Car Video System is being deployed in order to provide Department employees with a tool for crime documentation and prosecution, and not to monitor private conversations between Department employees.” [Emphasis added] So when you and your partner are having a frank discussion on the merits of your commanding officer and, unknown to you, the BWV was running, there is a remedy.

You start the process by making a written request to your commanding officer to restrict access to a portion of the video. What? You were discussing him or her in frank terms on the video; now what? The good news is that, according to the notice, the commanding officer is to not view the video. The commanding officer is directed to request the Information Technology Bureau (ITB) to review the video. ITB will restrict the personal part of the video if they deem it to be non-evidentiary and personal. It will then be encoded so that it cannot be viewed without the proper permission.

Nothing is ever completely protected, however. Checks and balances. The commanding officer of ITB may allow an investigator or auditor to view a restricted sensitive personal recording if the request has been approved by a police commander or civilian equivalent and it is necessary in order to conduct an authorized administrative investigation, criminal investigation or a Department inspection or audit. However, prior to anyone looking at the video, you must be notified. You, then, must immediately notify the CO of ITB that you object (if you do), and you must submit a 15.7 within seven days with your reasons. The final decision whether to allow it to be reviewed or not will be up to the director, OCPP. You will be notified of the decision within 48 hours. There is always an exception. If notifying you would compromise an investigation, a Deputy Chief can approve viewing without notifying you.

The bottom line is that now with the possibility that your BWV or DICVS recordings may be featured on YouTube, Facebook and other places on the internet, you might want to make sure that your privacy doesn’t get 10,000 hits by those who will edit videos for their own purposes after they download and distribute them from the Department’s site. Hanging BWV/DICVS recordings on the internet for all to see is a bad idea, but the god of transparency, apparently, must be satisfied.

The postings will mostly be about uses of force. In that the Department administratively disapproves a large percentage of categorical uses of force, in many cases you may be subject to public rebuke. Sort of like the 21st century way of sewing a scarlet letter on your electronic clothing. The Police Commission publishes its decisions on each categorical use of force on the internet. Although the decision uses the term “Officer A, B, C, etc. in the decision language, the date of the use of force and suspect’s name are in the report. A simple date check with news stories on Google will reveal the officer’s name because the Department releases the officer’s name when the use of force occurs. It doesn’t take much nowadays to find a person’s address on the internet. And now, along with the officer’s address, a photo of the officer is also provided.

Even the most justified use of force is ugly and will probably repulse the average citizen, so there is little reason to expect that transparency will result in a rise in our popularity. Commissioner Johnson began his term on the Police Commission vowing that he wanted to reduce uses of force. He might well succeed. But not for the right reasons. In addition to deciding whether the suspect’s actions justify a use of force response, an officer must now consider the fact that he or she will be benched for 14 days (whether justified or not) without public contact, overtime or the ability to perform off-duty work, like MTA; likely Administratively Disapproved; and have the use of force made public for the officer’s children, family, friends and neighbors to see.

At some point, we are asking too much of our officers. Be legally careful out there.

December 2017 Warning Bells article

 

December 2017 – Our unsung heroes

They get up in the middle of the night for League members; rise early to make morning watch personnel complaint interviews, and spend their weekends preparing for Boards of Rights and writing Skelly responses to avoid Boards of Rights. They are the League’s panel attorneys and they are among the few attorneys that understand the unique LAPD discipline system and are capable of guiding you through it while representing your interests. The League’s Legal Plan currently comprises 92 percent of the membership and with the thousands of personnel complaints that are filed against officers each year, these folks are kept hopping. It’s time you know who they are.

Space prevents me from going into detail, but it is our plan to provide more information on each one of them in the member’s section of the League’s website at lapd.com. So, in alphabetical order, here are the core of panel attorneys who collectively have represented thousands of officers in interviews, Skelly responses, and Boards of Rights and helped them protect their jobs.

 Muna Busailah: Muna passed the bar in 1993. She is a law partner with Mike Stone and has assisted him in the Rodney King criminal trials and other major cases. She functions as a roll out attorney for Riverside Sheriffs, as well as for the League. In addition to her many experiences with LAPD personnel complaint interviews, Skelly responses and Boards of Rights, if you get in trouble in England.

Gary Fullerton: Gary retired from the LAPD after 26 years of service. During that time, he had the valuable experience of serving as a Director of the LAPPL from 1994 to 2000. He passed the bar in 1984. In 2000, Gary and his law partner, Larry Hanna, contracted with the League to be roll out attorneys for categorical uses of force and since then has done hundreds of roll outs to the present time in addition to numerous personnel complaint interviews, Skelly responses and Boards of Rights.

Jodi Gonda: Jodi passed the bar in 1992, and is no stranger to the LAPD since her father was LAPD retired. Jodi has done thousands of interviews and hundreds of Boards of Rights since becoming a League Panel Attorney. Her practice since she passed the bar has been almost completely LAPD officer administrative defense and she is highly respected in that role, even by Department management. She teaches a class on Skelly responses in the League’s Basic and Advance Rep School.

Larry Hanna: Larry was familiar with LAPD because his father retired from the Department as a detective. Larry passed the bar in 1985 and began representing officers almost immediately.  Larry has valuable experience in ADA issues along with the experience of handling numerous personnel complaint interviews, Skelly responses and Boards of Rights. He has also responded to hundreds of roll outs to Categorical Uses of Force as one of the main attorneys in the League’s roll-out program.

Randy Quan: Randy passed the bar in 1989. He is a retired LAPD officer who rose to the rank of captain before retirement after 27 years of service. He functioned as an employee representative defending officers when he was on the Department among his many other assignments and he served as a Board of Rights member as a captain seeing all sides of the LAPD discipline system.

Ira Salzman: Ira passed the bar in 1978. Ira spent his early years as a Deputy Los Angeles District Attorney where he became very familiar with the LAPD. He went into private practice and became a League panel attorney in time to represent one of the Rodney King officers and obtained a not guilty verdict in that trial. He went on to represent the officer in the federal prosecution of the officers and then represented the officer in the civil trial. Ira has handled numerous personnel complaint interviews, Skelly responses and Boards of Rights in the meantime.

Bill Seki: Bill passed the bar in 1988 and is another attorney that first learned about LAPD as a Deputy Los Angeles District Attorney. He retired and began handling LAPD discipline cases in the law firm of Darryl Mounger. Bill also has handled many criminal trials where LAPD officers have been criminally charged along with many discipline interviews, Skelly responses, and Boards of Rights.

Mike Stone: Mike passed the bar in 1979 after being an officer in three different municipal police departments. His firm specializes in police defense and he was a past General Counsel for the League. Mike now is General Counsel for the LAPD Command Officers Association and The Riverside Sheriffs’ Association Legal Defense Trust. He has represented many officers charged with criminal misconduct, including obtaining a not guilty verdict for an officer in the Rodney King prosecutions, as well as handling numerous personnel complaint interviews, Skelly responses and Boards of Rights. He is a national trainer/lecturer on uses of force and a POST instructor and is an LAPD specialist reserve officer.

Leslie Wilcox: Leslie passed the bar in 2000. She was a former Deputy District Attorney in Orange County. After that, she worked as a discipline defense attorney for the firm that represented Los Angeles County Deputy Sheriffs before starting her own firm. She did officer-involved shooting roll outs for LASD and now does them for us. She is also active in personnel complaint interviews, Skelly responses and Boards of Rights.

Mike Williamson: Mike passed the bar in 2005. Mike was a 25-year-LAPD-officer who, while he was on the job, belonged to the Officer Representation Section in the days when they handled Boards of Rights. He continued representing officers in personnel complaint interviews, Skelly responses and Boards of Rights after he retired and joined Mike Stone’s law firm. In addition to having experience in rolling out to LAPD officer-involved shootings, he now also handles roll outs for Riverside Sheriffs. He is also an instructor in college law and discipline classes.

David Winslow: Dave passed the bar in 2000. Dave also is a retired LAPD officer who was assigned to the Officer Representation Section and did roll outs, personnel complaint interviews, Skelly responses, and Boards of Rights starting in 1990. He is still doing roll outs for the League, in addition to the interviews, Skelly responses and Boards of Rights that he continues to handle. Dave’s son is now on the job and was issued Dave’s old badge.

Greg Yacoubian: Greg passed the bar in 2004. Greg is also a retired LAPD officer who served 26 years and whose final assignment to Use of Force Division gives him valuable insight into the LAPD process. In addition to handling personnel complaint interviews, Skelly responses and Boards of Rights, he functions as one of our roll out attorneys. Greg also teaches officer-involved shooting investigations for POST and remains a Specialist Reserve with LAPD.

I would like to express my appreciation to the above attorneys who are always willing to go the extra mile to help our members. They are the reason that joining the League’s Legal Plan is so important. The LAPD discipline system is like no other in the United States. It takes someone who has been associated with it for years to have the understanding to properly advise officers on discipline issues. That is why we favor associating with attorneys who have a history with LAPD and understand our own unique issues. Not part of this plan? Better call 866-LAPPL4U and get on board.

Be legally careful out there.

November 2017 Warning Bells article

The video release policy and what it means to you

We don’t have one yet, but it is coming. Currently, the Chief has determined that Digital In Car Video System (DICVS) and Body Worn Video (BWV) videos are part of the investigative process and will not be released to the public. The Los Angeles Times, ACLU and various activist groups are not happy with that. Neither is the Police Commission.

For some inexplicable reason, the Commission felt the need to hire a group from New York to get feedback on this issue and write a report. That is what the Policing Project at New York University School of Law (Policing Project) did. That report was presented to the Police Commission on Sept. 26, 2017.

The Policing Project gathered feedback by asking the general public and LAPD personnel to complete a questionnaire, holding community forums and conducting officer focus groups. They did this over a 46-day period from March 23 through May 7, 2017. Press releases were sent out, Chief Beck and Police Commission President Johnson held a press conference, articles appeared in various newspapers, social media channels announced it, emails were sent to 200 community organizations and staff members of the Mayor’s Office and 15 City Councilmembers, neighborhood councils, student associations, and bar associations all were active in getting the word out to the public to provide input. In spite of all this effort, attendance at the party was sparse.

The report says this, “Low Response Rate: Despite extensive outreach, and a fair amount of media coverage, the response rate to the questionnaire struck us as low, and attendance at public forums was lower than anticipated.” (It ranged from four to 20 individuals.) The Los Angeles Times wrote an extensive editorial and provided a link to the questionnaire. Only 15 people clicked on the link. The ACLU also encouraged people on its website to take the questionnaire. Only 53 people did so. Undaunted, however, by the lack of public interest, the report was completed.

So, the first thing that the Policing Project uncovered, but neglected to discern, was that this drive to establish a video release policy is driven by narrow special interests. The general public is unconcerned.

Of those who did answer the questionnaire, 17 percent were law enforcement officers (LEOs). And, as a group, their views diverged the most from the other responders. Seventy-one percent of the non-LEOs thought that videos should be released in response to public protests, while only 29 percent of LEOs thought so. On the other hand, 79 percent of LEOs thought that the risk of biasing jurors should be taken into account, while only 46 percent of the non-LEOs thought so. Frighteningly, although 84 percent of LEOs thought that the Chief’s concerns for officer safety should be considered, only 46 percent of the non-LEOs agreed. It would appear that we are largely on our own.

That being said, it is important that the League be involved in determining the ultimate video release policy to be imposed on the Department by the Police Commission. We believe it is a meet and confer issue, and we will go to court if the Police Commission disagrees. The policy will certainly have an impact on working conditions.

Of top importance is the issue of officer safety. The policy needs to recognize that the release of a video can place an officer and the officer’s family in danger. First, it provides those who would do harm to the officer with the officer’s photograph for easy identification. Second, since uses of force are seldom pretty, the video might have the effect of enflaming passions among certain segments of the community, like gang members, to do an officer, or his/her family, harm. Finding someone’s home address these days on the internet does not present much of a problem, especially since the Department is so forthcoming with officers’ names in connection with uses of force. The policy needs to address this issue and recognize the danger.

Should every video be released, or should it be decided on a case-by-case basis? Eighty-eight percent of the non-LEOs thought that every video should be released at some point in time.

A related question is, just who ultimately decides to release a video? Is it the Chief? Is it the Police Commission? Is it the ACLU or the media? Is it the family of the injured or deceased suspect? What if an officer is murdered on camera? Should the officer’s family have a say on whether the video should be released? (The Policing Project report did not even consider this issue.)

If every video is to be released, what is the time frame? Forty-nine percent of non-LEOs wanted it to be within 30 days, 16 percent were willing to go out 60 days, and 11 percent wanted release within 120 days. Only 8 percent were willing to wait until the Police Commission adjudicated the use of force, while 14 percent would wait until the District Attorney decided whether or not to file charges. Obviously, the release of a video prior to the adjudication of the use of force, from the officer’s point of view, invites the political wind to blow on the adjudication decision. No use of force is perfect, and it can probably be counted on that activist groups and the media would emphasize any imperfection.

Another issue that was not addressed was the scope of the video to be released. For instance, what if there is an hour of vehicle pursuit video from several units before an officer-involved shooting occurred before the usual foot pursuit that occurs when the suspect bails out of the vehicle and runs? Is only the video of the actual shooting subject to release, or does the release include all of the DICVS and BWV tapes from the start of the vehicle pursuit from every unit
and officer involved, even though only one video depicted the shooting during the foot pursuit?

What about a situation where a shooting takes place within two minutes of an officer going to the bathroom? With a two-minute buffer video capture time prior to the pushing of the record button, this is certainly possible. Does the policy address a method of keeping such personal actions from being released with the rest of the video? And, again, who makes that decision?

The point is that a video release policy has a huge impact on an officer’s working conditions given that an officer is required to hit that record button. The League needs to be involved in forming that policy to provide as much protection for its members as possible.

Be legally careful out there.

AD Warning-Tactics & U of F [004-15]

Short Story:  The officers received a radio call from the Fire Department that they were responding to a call where a male had locked himself in the bathroom with a knife, threatening suicide. The suspect’s brother briefed the Fire Department captain.  The captain knocked on the bathroom door.  The suspect opened it and the captain noted that the suspect was naked and had dried blood on his body.  The suspect inquired if the Fire Department had a gun so they could shoot him, then closed the door.  Officers and Sergeant A arrived and deployed around the door and covered the rear window.  Sergeant A heard a noise in the bathroom, but the suspect did not respond.  Sergeant A did not know if this failure was willful, or if the suspect was down and bleeding out.  He decided that exigent circumstances existed and decided to breach the door.  Sergeant A deployed officers around the door, one equipped with a TASER.  Officer F kicked the bathroom door.  The suspect was holding a knife, screaming, and covered with blood.  Officer D ordered the suspect to drop his knife.  The suspect replied, “you are going to have to shoot me!”  Several officers repeatedly told the suspect to drop the knife.  Officer C observed the knife fall to the floor and announced, “the knife is down.”  The suspect began to exit the bathroom in the direction of the officers.  Sergeant A yelled “TASER him.”  Officer B activated the TASER.  Officer F observed the suspect cross the threshold of the bathroom in the direction of the officers and, still believing he had the knife, fired one shot as the TASER was fired.  The suspect went down.  He got up and continued advancing.  He was TASERed two more times before the officers were able to handcuff him.  BOPC Finding: Tactic and U of F:   1) Sergeant A did not effectively communicate with the officers assigned to the team about their specific roles.  He gave them multiple conflicting responsibilities. 2) Sergeant A had a barricaded suspect and did not request additional resources. 3) Sergeant A did not conduct a thorough assessment of the situation and decided to breach the door.  He did not contact the Mental Evaluation Unit nor SWAT for advice.  4) It was not reasonable for Officer F to believe there was an imminent threat of death without seeing the knife.

 

AD Warning-Tactics [002-15]

Short Story: A victim reported that he had been kidnapped by a suspect armed with a gun.  He had escaped and the suspect was still inside an abandoned building.  Officers surrounded the building and requested SWAT and an air unit.  SWAT arrived and swapped out the patrol officers from the perimeter.  In the meantime, the air unit had found the suspect’s car.  Sergeant B was monitoring the car.  Upon being relieved by SWAT, Officers A and B joined Sergeant B in monitoring the car. Sergeant B informed them that a witness had noticed a gate open on some abandoned property next to the suspect location.  Sergeant B instructed Officers A and B to check that out in case the suspect had escaped the SWAT perimeter.  No one notified the command post of this because Sergeant B felt it was beyond the area that the suspect was supposed to be in.  The officers observed a shed and opened the door to check it out.  The suspect was viewed pointing a gun at the shed door.  The officers advised communications.  SWAT responded and utilized gas.  SWAT Officer N fired 3 rounds at the suspect.  The suspect eventually surrendered.  BOPC Finding: AD on Tactics: 1) Sergeant B and Officers A and B did not notify SWAT or the Command Post that they were going to check out the adjacent property. 2) Officer B, after viewing suspect with a weapon began giving orders to the suspect, exposing himself instead of redeploying. 3) Sergeant B violated command and control by allowing officers to search the adjacent property without sufficient resources, helmets, or notification to SWAT of the Command Post.