Judge Dismisses Criminal Charges on 3 LAPD Officers re FIs
This is undoubtedly good news for the involved officers, but it is doubtful if they wanted to go through this process even with this favorable result. It may be beneficial to examine the judge’s ruling as an example of what can happen to an officer who writes a report that turns out to be not supported by Body Worn Video in the prosecutor’s opinion, even when there is no intent to create a false document. As has been the subject of previous Warning Bells articles, three officers were criminally filed on for violating 134 PC and 118.1 PC, both felonies. An extensive audit was done by Internal Affairs resulted in a second set of 3 officers having the same criminal charges filed against them. It was the second group of 3 officers that are the subject of this article. The officers went through a 3-month preliminary hearing that generated almost 2000 pages of transcripts. All three officers testified and were extensively cross-examined. What can we learn by walking in their shoes and what precautions can be taken to not be forced into that walk ourselves?
The first thing to realize is that there are folks out there looking for a chance to file criminal charges on LAPD officers exacerbated by the George Floyd incident in Minneapolis and the riots and protests that swept the nation in the aftermath. Your actions are being examined in a more rigorous and different way than in the past. An example is illustrated by the recent criminal filing on an LAPD officer on a DUI arrest. The Deputy City Attorney prosecutor reviewing the officer’s DUI cases for filing noted that the arrest report written by the officer was different than the Body Worn Video. The District Attorney was notified, and criminal charges were filed against the officer, not the DUI suspect. The new reality is that there is the distinct possibility that a prosecutor is looking at two suspects when considering whether to file charges after an arrest; the arrestee, and the arresting officer. Keep this in mind when writing any report.
The second thing is that the officers were operating under 2018 Field Interview rules. As pointed out in a previous Warning Bells article, FI rules have been radically changed. Be sure you understand the new rules. Your exposure to violating the rules has dramatically increased.
So how does the routine act of writing a Field Interview card result in a criminal filing and what are the legal issues that come into play that result in an officer sitting in the defendant’s chair in a criminal court room? The judge’s public ruling is the basis for what follows.
The judge first defined the elements of the charges. “AS TO COUNT NUMBER 1, PENAL CODE SECTION 134, THE ELEMENTS REQUIRE THE PREPARATION OF A FALSE THING WITH THE SPECIFIC INTENT TO PRODUCE OR ALLOW PROCEDURES CHARACTERIZED AS A TRIAL, PROCEEDING, OR INQUIRY, WHATEVER AUTHORIZED BY LAW, AND WITH THE SPECIFIC INTENT OF DECEIT AND FRAUD. PENAL CODE SECTION 118.1 IS THE KNOWING AND INTENTIONAL MAKING OF A FALSE STATEMENT IN A REPORT, WITH THE FURTHER ELEMENT THAT ANY SUCH STATEMENT IS NOT A
STATEMENT ATTRIBUTED TO ANOTHER PARTY.” [emphasis added] Proving elements count in court and the defense attorney attacked them long and hard. The elements of these two crimes should be in your mind every time you write a report. Make sure your written words cannot be misinterpreted when compared to a video by those who have the mind set to do so.
The prosecutors position. The prosecution considered the defense merely going down a rabbit hole of obscurations and twisted facts. The prosecution case was simple. All that was needed was to compare the Body Worn Videos to the Field Interview cards completed by the officers. No interpretation was necessary. The FI said the suspects admitted being gang members-the video differed. End of story. The motive was simple. The turning in of “gang member” FI recap of gang members was the path to coveted assignments and promotion within the Department.
The defense position. First, the defense said, an FI card was not a report that had an effect on a “trial, Proceeding, or inquiry authorized by law” as required by section 134. The fact that FIs were used for entry into the Cal Gang Database did not fit that definition. The Cal Gang Database was simply that; a database and a database does not fit the definition. Second, regarding section 118.1, an FI cannot be considered a report, filing in the FI was not a statement, and in any event even if they were they were not false. Furthermore, the officers did not have the requisite intent to deceive and engage in fraudulent conduct.
To attack the central theme of the prosecution that the words “self-admitted” (or s/a) gang member written on the FI card by the officers was clearly false because a review of the Body Worn Video did not have any such admission by the suspect, the defense provided evidence that these words did not necessarily mean that the suspect made a verbal statement. Tattoos, dress, gang signs, or previous admissions to other officers of gang membership justified the insertion of “self-admitted” or “s/a” on the FI. This was according to training those officers received prior to and in 2018. Therefore, the absence of a verbal confession of gang membership on tape is not conclusive. Additionally, each officer was being prosecuted for only one FI, so no pattern of conduct was shown.
The judge’s decision. The judge decided that a Field Interview card did qualify as a report that could affect a proceeding because the existence of the Cal Gang database was created pursuant to a statute and had an appeal procedure for entrance into the database. Also, the writing on the FI qualified as a statement that could constitute a violation of law.
However, the judge had a problem with the definition of “self-admitted” advanced by the prosecutor that was absent in the Body Worn Video. “IT IS INTERESTING THAT THE PEOPLE FIND THEMSELVES IN A DIFFICULT AND TENUOUS POSITION OF ATTACKING THE CREDIBILITY OF THEIR OWN WITNESSES, BECAUSE, AS HAS BEEN NOTED, NOT ONE WITNESS, NOT ONE WITNESS FOR THE DEFENSE AND NOT ONE WITNESS FOR THE PEOPLE, HAS INDICATED A CLEAR DEFINITION OF THOSE TERMS, “ADMITTED,” “SELF-ADMITTED,” AND “S/A.” ALL THE WITNESSES ACKNOWLEDGED THAT THERE ARE A GREAT NUMBER OF VARYING INTERPRETATIONS — “VARIANCE” IS THE KEY WORD –THAT THE OFFICERS WERE ACTING UNDER THE GRANT OF AUTHORITY WHICH THEY RECEIVED FROM THE HIGHEST RANKINGS OF L.A.P.D. AND ALL DOWN THE LINE, TO TRAINING OFFICERS, TO SUPERVISORIAL PERSONNEL, AND TO COLLEAGUES.”
The judge also noted that no evidence had been presented that the officers had the specific intent to make false statements or have a fraudulent or deceitful purpose. The judge commented that there was only a single incident charged and there was no evidence of any pattern of deception. Furthermore, there was no evidence that the officers acted as rogue officers manipulating the system for individual gain. And there was no evidence that the officers received any specific benefit.
The judge felt that the officers had been encouraged by their superiors and trainers to use their expertise to go beyond the limited nature of express verbal statements in their assessment that the suspect was an admitted gang member. “AND AS FAR AS THIS COURT IS CONCERNED, THAT’S WHAT ALL THREE OFFICERS DID IN THIS PARTICULAR CASE.”
There was fault to be found, however, the court stated. “HOWEVER REGRETTABLE IT MAY SEEM, THERE’S A NOTION OF TRICKLE-DOWN RESPONSIBILITY IN THIS CASE; NAMELY, THAT THE RANK AND FILE OF METRO OFFICERS ARE BEING PROSECUTED BASED UPON INTERPRETATIONS IN LATER YEARS THAT WERE, IN FACT, MADE AND ENCOURAGED BY HIGHER-RANKING INDIVIDUALS AT L.A.P.D., AND, AS SUCH, THEY [the officers] ARE NOT CULPABLE IN TERMS OF ANY COUNT IN THIS CASE.” A judicial recognition that recap pressure can have bad results.
Thanks are due to the hard work and talent of Attorney Caleb E. Mason who vigorously defended the officers bringing his long experience and talent to this case.
Hopefully, this recitation of what can happen to an officer over routine everyday activities rings a Warning Bell on how important it is to be clear and accurate in all reports and testimony to deprive those who are looking for fault with ammunition. We are all familiar with a concept called defensive driving. Maybe we need to develop a concept of defensive report writing. Watch those videos before pen goes to paper and…
Be legally careful out there.
