October 2013 Warning Bells article

Are you special?

A recent article in the FBI Law Enforcement Bulletin (September 2013) addressed the issue of criminal interrogations of officers after critical use of force incidents. It is, of course, written by two authors who will never have to be interrogated, so they are viewing the matter from a distance, but they do a good job of discussing the various sides of the issues.

Their discussion looks at two issues: accuracy and policy. In other words, does an immediate interview result in a more, or less, accurate rendition of the facts surrounding an officer’s participation in a use of force than an interview after a rest period of many hours or days? And should police officers be given a “special status” over civilians who are involved in a use of force, allowing the officers to be treated differently than ordinary criminal suspects?

The article arrives at the conclusion that more research needs to be done on memory in order to scientifically answer the first question, so, for the purposes of this article, we will leave it at that. It is the second issue of “special status” that is of interest to this discussion.

The FBI Law Enforcement Bulletin (FBI LEB) article makes this observation: “To this end, despite the outcry to delay interviews or interrogations of officers, no similar push exists for other persons, regardless of the research indicating potential perception or memory distortions.” In other words, what is the justification for giving police officers special status by delaying an interview when criminal suspects are not given similar treatment?

The first observation that comes to my mind is that criminal suspects are in complete control as to the time they give an interview. A criminal suspect can simply refuse to talk to an investigator at all, or set any time in the future for an interview with counsel present. Police officers, on the other hand, have no control over the timing of the interview. In the LAPD, it will happen before the officer is allowed to go end of watch.

The second observation is that the criminal suspect is not threatened with losing their employment if they fail to cooperate with investigators. Officers, on the other hand, will be charged with insubordination and terminated if they refuse to cooperate.

The third observation is that police officers who use force are either reacting to force used against them or using force to effect an arrest of a suspect who is resisting. In other words, in an overwhelming number of cases, there is not a shred of evidence that the officer is suspected of committing a crime. The officer is not a criminal suspect, which seems like a pretty good reason to not treat him or her like a criminal suspect.

The fourth observation is something that no one seems to mention. We, as a society, owe the police officer protection. Society is arming and sending these young men and women into an environment that is all too often hostile, with directions to solve problems that are insoluble. Yet they are still tasked with trying to eliminate crime and protect the rest of us from harm. There is no doubt that these officers will be involved in violence. There is also no doubt that, as human beings, they will make mistakes. That being said, what is wrong with giving them “special status” over criminal suspects?

Given that society is getting the benefit of protection from these officers who are risking their lives and careers every time they switch on their overhead red lights or exit their vehicles to confront a criminal, isn’t there a corresponding duty on society’s part to at least allow them every advantage in defending themselves against those who would do them harm? Aren’t the attitudes of individual officers on how they are treated important to us as a society because of the effect it will have on their willingness to exit their police cars to conduct future investigations?

The FBI LEB article states that immediate interviews of police officers are important to maintain public trust. Consequently, it is reasoned, forcing officers into immediate interviews will convince the public that the officer will not have time to make up a story and give confidence in the investigation. However, there are certain segments of the public that will never be satisfied.

Anti-police hate groups have no interest in the facts and will loudly protest no matter what the Department does. This is also a liberal town, and a large portion of the liberal media will never be able to understand why officers don’t shoot the guns out of the bad guys’ hands like Roy Rogers did at least once a week. Roy never had to hurt anyone. Not to mention that the cottage industry of lawyers who make their livings from suing the police department aren’t interested in allowing officers to do anything that helps them to be accurate, because jury verdicts are larger when they can find inconsistencies that they can label as “lies” in front of a jury. So pandering to the public trust is like trying to shake hands with smoke. It is better to pander to truth and try to shake hands with accuracy.

Allowing anything that helps the officer to be more accurate satisfies two goals: It satisfies society’s duty to help protect the officer and it serves the duty to arrive at the truth. If that gives special status, so be it. It is well deserved.

As mentioned above, one thing that the public debate over the use of force issues usually ignores, or at least minimizes, is the perspective of the officer. What about you, the officer who uses the force and is now subject to this tsunami wave of interest in your every move and every utterance? How is your best interest served?

Your welfare comes in second to the Force Investigation Division investigator’s interest in the integrity of his or her investigation. Your welfare comes in second to LAPD management’s interest in their perspective of the good of the Department. Your welfare comes in second to the rollout district attorney’s interest in the responsibility to prosecute. Your welfare comes in second to the Inspector General’s interest in the quality of the investigation. Your welfare comes in second to the Police Commission’s view of the public interest. At least your welfare comes in first with the rollout League attorney.

Although everyone out there at the scene of an officer-involved shooting may wish you well, only your attorney is exclusively interested in your personal welfare. That is why you need counsel, and that is why you should wait for counsel before making any statements.

The debate may rage over the public interest, transparency, use of force policy and all the rest, but to you, the involved officer, all of the issues boil down to “I’m still alive, thank goodness, but what happens to me now?  What happens to you now on the LAPD is that you will be forced into an interview before you are allowed to go end of watch. Regardless of the scientific evidence that shows that this is contrary to allowing you to provide the most accurate statement possible, this is what the protocol calls for and this is what will be imposed upon you (with rare exceptions).

What we know about the first report off the battlefield is that it will be wrong. That means your statement will probably be inconsistent with some of the other evidence that is gathered during the months-long investigation. You are then in the position of relying on the sophistication of those reviewing the evidence to understand that, as the FBI LEB article states, “A first step in this process is to understand that people recall things and events and handle stress differently. This means that statements from the same person may include reasonable and normal contradictions. Agencies must recognize that stress often impacts memory and that people see things from different perspectives.”

But will they understand this? That is the question.

If we can’t change the protocol, maybe we can contribute to the education of those who judge us. To that end, the League is sponsoring a one-day seminar for the Police Commission and the local press. Nationally known researcher Dr. Bill Lewinski of Force Science will present a lecture on the human dynamics of highstress situations in the morning session, and our Training Division will host the attendees in going through the Department’s Force Option Simulator in the afternoon. This will be held at the Academy on Oct. 9, 2013.

We feel that this training is especially important for our new police commissioners, since adjudicating uses of force is an integral part of their duty. I only wish that we could keep them awake for 30 hours, tape their interviews of their simulated shooting and compare them to the actual video. That would give them a true sense of what some of our officers are going through.

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Be legally careful out there.

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