Sleep and Use of Force Interviews
According to the latest Use of Force Annual Report posted on the Police Commission website, statistically, about 1 percent of your arrests will result in a use of force. That means that for 1 in every 100 arrests, you will have to fight. About two-tenths of 1 percent of contacts with citizens will result in a use of force. So in about 1 in every 500 citizen contacts, you will have to fight. It is most likely that you will get in a fight on a Thursday. Whether the moon is full or not, it doesn’t seem to matter.
If your use of force is categorical, on average, the Department will adjudicate your use of force in about 315 days. Non-categorical uses of force are adjudicated faster in about 72 days. Either way, you are headed into judgment.
In categoricals, about 7 percent of the time your tactics will be administratively disapproved by the Chief. About 5 percent of the time, the use of force itself will be out of policy. One hundred percent of the time, it will be an unpleasant experience. Sort of like going through a tax audit.
The Department will use the opportunity to look at everything from your equipment to your conversations with your partner prior to the use of force. It is hard to understand the relevance of whether or not you were carrying OC gas when you are trading gunshots at 10 yards with a suspect, but you will be asked that question and there will be consequences if you left it in your locker.
Another tip is to always have a quick discussion about tactics with your partner as you wheel your black and white out of the station parking lot. That will also be asked every time by the Force Investigation Division. It’s nice to have something to talk about.
In a categorical use of force, the time between pulling the trigger and being allowed to go end of watch will probably be about 15 hours (if you are lucky). The scene has to be secured, officers have to be separated, tape needs to be strung, a ton of notifications have to be made, and FID investigators, inspector generals, deputy district attorneys, SID people, ORS reps, League Directors, and League attorneys, all need to be rousted out of bed and travel to the scene. Not to mention the dispatching of command post vehicles, big lights, and the gathering of officers to stand the perimeter.
Depending on what time during your watch the use of force happens, you may be one tired officer by the time FID detectives sit you down for the most important interview of your career if not your life. For instance, if you got up two hours before starting your watch and get into a shooting 11 hours into your 12-hour watch, do the math. You have been awake 13 hours before the event happened and you have another 14 hours before you get to the interview, you have been awake for 27 hours before the first question is asked. And that is what this column is about—sleep deprivation.
The LAPD protocol is that you will be interviewed before you go end of watch. exceptions are sometimes made, but they are infrequent. This is a reflection of the LAPD choice of distrust over science. You are separated from other officers, placed in the custody of a supervisor and constantly monitored until you have submitted to a detailed taped interview. This is so you cannot conspire with fellow officers and make up a story. (In polite terms it is said “to protect the integrity of the investigation.”) Science says that if you want accuracy, this is exactly the wrong way to do it.
What science says is that sleep cycles are necessary to memory, especially in high-stress situations. Dr. Geiselman, a UCLA psychology professor and author of the book Memory-Enhancing Techniques for Investigative Interviewing: The Cognitive Interview, performed scientific research and found that deep sleep “plays an important role in the consolidation of memories,” thereby making recall “more complete, the brain does a lot of work while you are sleeping.” Two sleep cycles are recommended. Almost half of officers have difficulty sleeping the first night after a high-stress incident.
There is a bigger problem. “Recent research suggests that sleep deprivation may contribute to the generation of false memories,” Geiselman notes in an article on his findings that appears in The American Journal of Forensic Psychology. “We’re not talking about deliberate lies,” he says, “but about involuntary distortions caused by biochemical reactions in the brain to sleep loss that cause you to remember things differently than what really happened. In short—more sleep deprivation, more errors.”
Plaintiff’s attorneys, criminal defense attorneys and sometimes the Department call “errors” false statements. One of the worst things an officer can be accused of is making false statements because of the Brady consequences. So depriving you of every opportunity to be accurate and to avoid being accused of false statements is only good for plaintiff’s attorneys and criminal defense attorneys. It is bad for you and it is bad for the taxpayer to ignore the science.
So why does the Department have this protocol that defies science? Probably because they want to be politically correct, they lack courage and because you are expendable. Or maybe it’s just a difference of opinion with science. Ask the Chief.
Here is some advice. If you have been awake for 24 hours or more, object strongly on the record to being interviewed. You may feel like you want to get the interview over with, but you are in no more condition to make that decision than a DUI suspect is when he decides that he is sober enough to drive, and you know how that usually turns out. In fact, 24 hours of being awake is the equivalent of blowing a .08 BAC. That is also based on science.
After objecting and making a record of how long you have been awake, do not say anything that can later be interpreted that you are consenting or able to proceed. Do not refuse to cooperate because that may lead to even more problems, such as insubordination, but this is not the time to be agreeing to be able to participate in an interview. If you are charged with a false statement down the line, the League will need to bring in sleep deprivation experts to defend you and consent may be used against you.
There are many departments that believe in the science of memory and the effects of high stress incidents and allow the officer to sleep and give him or her decompression time. New York for instance. Maybe someday LAPD’s protocol can be revised to take advantage of the science, but in the meantime, you are being walked out on a limb—object.
But don’t take it from me. Listen to the scientist, Dr. Geiselman, “Fatigue can contribute significantly to memory ‘failures,’ including incomplete and disorganized recall, inconsistencies, delayed recollections and the inability to adequately articulate your thoughts. If you’re tired and overly stressed, you’ll also be more susceptible to suggestion, intimidation, and biased questioning by the interviewer.”
Be legally careful out there.
