You know what rolls downhill and a truckload of it is now rolling down at you. Before it started rolling downhill, it hit the fan in an April 2008 Police Commission meeting. Internal Affairs was presenting the 2007 year-end report on discipline to the commission. It seems no officers had been convicted of racial profiling.
“A big, fat zero,” said a visibly flummoxed Commissioner John Mack, who is African-American and the former president of the Los Angeles Urban League. “In my mind, there is no such thing as a perfect institution . . . I find it baffling that we have these zeros,” the Los Angeles Times reported on the commissioner’s response.
Chief Bratton defended the results but promised a thorough review. A couple of months earlier, the Inspector General had filed a report that concluded citizen complaints against allegedly abusive officers were substandard. Not a good time for the year-end report to now bring in zero sustained complaints in 322 allegations of racial profiling, but then again this has been the case for the past six years, according to the Times.
Chief Bratton leapt to your defense. The Times reported him as saying that allegations of racial profiling hinge on what the officer was thinking at the time and are nearly impossible to prove without a confession. “This is not a racist department. It is not a homophobic department. It is not a brutal department,” he told the Times.
The League also jumped in. “I am really outraged,” League President Tim Sands was quoted as saying. “They are using a circular logic that just because someone makes an allegation, then the officer has to be found guilty.”
By July 1, 2008, an Internal Affairs Racial Profiling Investigation Protocol was rolled out. More was done. Internal Affairs started doing homework. The commanding officer went to a 20-hour racially biased policing seminar, data queries were run, a nationwide survey of other departments was conducted and experts were consulted. A survey of 19 departments found that they had not sustained any racial profiling complaints either. Hmmmm. A national conspiracy? Or maybe Bratton was right. LAPD did, however, investigate almost twice as many complaints for racial profiling as all of the 19 other agencies combined. It turned out that we were the experts!
At the August 19, 2008 Police Commission meeting, the Department made its report. First, they explained, LAPD has gone to great lengths to exclude racists from its ranks. Department recruiters go to great expense to target women, Hispanics, African-Americans and other minorities to join LAPD to reflect the diversity of the community. (In March of 2009, the department was 40.7% Latino, 38% white, 12% black, 6.7% Asian, 2.6% other and 19% are female.)
Second, the hiring process is designed to ensure that candidates who display intolerance are deselected from the process. There are racial bias questions that the candidates must answer reflecting their experiences with persons of different ethnic backgrounds. Questions specifically probe whether any acts of intolerance have been committed by the candidates. Background investigations deeply probe issues of intolerance with others who know the candidate. The polygraph specifically deals with issues of intolerance and the psychological evaluation process probes issues of intolerance.
Third, recruit training and in service training are infused with prohibition of racial profiling throughout the curriculum. Over 100 of the Department courses of instruction include racial profiling prevention components. In addition, most of the Department’s personnel have attended training at the Museum of Tolerance.
Hey, maybe everyone on the Department has gotten the message and we don’t racially profile! Not possible, said Commission President John Mack. His proof was deadly. The New York Times did a poll, he pointed out. It said that 40% of a minority group thought they had been racially profiled at some time in their lives. They couldn’t all be wrong, Mr. Mack pronounced.
Having settled the question that there were undoubtedly racial profilers out there, the only question that remained was how come Internal Affairs couldn’t find any. Chastised, Internal Affairs promised a renewed effort.
Matters weren’t helped when two months later the ACLU released the Ayres Report. The ACLU had hired a Yale mathematician and law school professor to examine the 2003 and 2004 stop data laboriously collected by LAPD officers. Yep, no doubt about it, Dr. Ayres found, racial profiling is occurring as a mathematical certainty.
Chief Bratton again defended his officers by rejecting the report and calling it of “no value.” League president Tim Sands also spoke out. “There are lies, damned lies, and then there are statistics,” he said. “Dr. Ayres is trying to manipulate existing data to prove what 9,700 individual officers are thinking when they make traffic stops – which is an exercise that might work on a spreadsheet at Yale, but doesn’t work on the streets of Los Angeles.” Sands followed this up with a letter of protest to the commission.
In February of 2009, there was no more racial profiling. Before you think that the problem was solved, it had just been renamed. It had disappeared into a new term, “biased policing,” which now also encompassed gender bias, religious bias, age bias and sexual orientation bias.
In March of that year, revised biased policing protocols were issued under Special Order No. 15. But in November of 2009, Internal Affairs took another hit from the Inspector General. One third of the biased policing investigations had flaws, the IG report said. Again, there were no sustained complaints. Internal Affairs was clearly getting tired of not finding any of those biased police officers that everyone knows are out there! What to do?
The First Requirement of Tyranny is to Centralize Power If your premise is that biased policing is taking place, yet you cannot convict anyone, either the investigative process is flawed, or the adjudication process is flawed. (That there is no proof of biased policing is apparently not a possibility – shame on you, ACLU, for allowing this abuse of due process to exist!)
Therefore, it was announced at the police commission meeting of February 16, 2010, that Internal Affairs would create a specialized unit to investigate biased policing complaints citywide. No stone would remain unturned. To ensure that there were no softball questions in the interviews; all interviews would be taped and transcribed. (We can’t buy police cars, but we can transcribe interviews at a cost of hundreds of thousands of dollars.)
The new unit was to be called the Constitutional Policing Unit and they would have strict written protocols and would be watched like hawks. That should correct the lax investigation process criticism, Internal Affairs felt.
What about the adjudication process? The Internal Affairs commander told the commission that 87 percent of the biased policing complaints had been adjudicated by the commanding officers of the divisions as unfounded, a finding that he didn’t think would “pass muster.” Well, that was being brought under control, too. Up to now, commanding officers across the divisions adjudicated personnel complaints. No more. Biased policing personnel complaints would be first adjudicated by Internal Affairs. The Internal Affairs adjudications would be sent to the commanding officers who, it was predicted by the deputy chief of Professional Standards Bureau, would find the recommended IA adjudication to be so well thought out that they couldn’t help but agree with IA.
Of course, in the rare case that they didn’t agree, there would be a personal meeting with the chief of police to explain their reasons. The chief added that no one wanted to come see even a nice, warm, fuzzy chief like himself and defend a decision he doesn’t agree with. Furthermore, all commanding officers were going to shortly attend a school on how to adjudicate complaints, with special emphasis on how to adjudicate biased policing complaints. Any bets on commanding officer disagreement? Speaking of bets, does this sound like a stacked deck? If you search for something long enough and hard enough, you will find it–even if it doesn’t exist.
Let’s get one thing on the table. Biased policing is bad – don’t do it. My belief is you don’t. So, since this column is called Warning Bells, what can you do?
The options are limited. There are three possible courses of action, the first two of which I cannot recommend, but they come under the law of unintended consequences.
Defensive Tactic #1: Do not make discretionary stops. Discretionary traffic stops and pedestrian stops are what are being criticized. Answering radio calls are not. When you use your discretion, statistics are kept on the racial makeup of your activities. They may be unbalanced because of the area you work, the time of day or night you work, or other factors. The simplest way of not being accused of stopping someone because of their race is to not stop people! The downside is that sooner or later your sergeant will notice that your recap is lopsided. When this occurs, eventually you will have to do as all too many of your commanding officers have done – get off the street to an inside job before your package has been contaminated with too many beefs. Unfortunately for the citizens, the result of not doing police work is a clean package resulting in an increased ability to promote.
Defensive Tactic #2: Make discretionary stops only of persons of your own race. Before you make any discretionary stop, determine the race of the suspect/violator. If the race is different than your own, pass on the stop. For example, if you see a vehicle blow a stop sign, but the windows are tinted so that you cannot see the violator, do not activate your red lights until you have pulled up next to the vehicle and determined the race of the person(s) in the vehicle. If everyone has the same racial makeup, it is probably safe to make the stop.
The downside is that this will only work if your partner is the same race as you. If not, you may experience the following problem, based on an actual occurrence: A Hispanic officer observed a vehicle commit a traffic violation and decided to pull the violator over and write a ticket. The violator turned out to be Hispanic. The Hispanic officer was working with a Caucasian officer, who did not make any of the decisions during the stop and served only as backup to the Hispanic officer. The violator later alleged that she was stopped because of her race. A personnel complaint was issued and the Constitutional Policing Unit brought the officers in for interviews. The Hispanic officer found herself officially accused of being racially biased against her own race and was forced to go through the whole biased policing protocol, with the accompanying negative TEAMS II entry.
Even if the ethnicities are all the same, the downside of this is that you have been forced, because of career self preservation, to factor race into your stopping decisions. The question becomes: if you don’t stop someone because of their race, is that biased policing? Maybe, but at least there is no one to make a complaint!
Defensive Tactic #3: Have ironclad, provable, reasonable cause for every stop. Why are they calling it the Constitutional Policing Unit? Orwellian doublespeak may be one answer, but the Department is claiming to analyze the constitutional aspects of every stop, ergo the name. Why focus on the reasonable cause? Because the logic will work like this: if you did not have sufficient reasonable cause to stop the complainant, your decision to make the stop must have been because of the person’s race. Yes, I know, you might just be constitutionally ignorant, but this is going to be the logic that Internal Affairs will use to justify a sustained personnel complaint.
The cure is to know your search and seizure law inside and out. But that is not quite enough. The complainant many times will lie and you will need to prove it. Your word and your partner’s word may not be enough. My advice is to tape record every stop or, even better, videotape it if possible. Remember, the police commission is convinced that you are engaged in biased policing and Internal Affairs has been sent out to prove it. In some ways, the burden of proof has been reversed.
Take a Rep With You When the Constitutional Policing Unit comes knocking on your door, your first call should be to the League. We have provided League attorneys and Officer Representation Section reps with training materials regarding the biased policing issues. Unfortunately, the pressure to erase the zero conviction rate on biased policing personnel complaints is heavy. Take care that you are not the example that the commission is looking for.
It is interesting that there is one question that the protocol does not demand to be answered. How many persons of the same race as the complainant did you see today and not stop? Hundreds, probably. Why is that not asked?
The biased policing issue is complex and cannot be discussed in full here. Go to www.warningbells.com for documents, video excerpts from police commission meetings, and advice on making legal stops. Stay informed.
Be legally careful out there.
