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.
