The Wake of a Bullet
I recently attended an AELE seminar titled “The Management, Oversight and Monitoring of Use of Force.” One of the speakers was from the U.S. Department of Justice, Civil Rights Division. These are scary folks. They travel around the country investigating police agencies for violations of civil rights. In essence, they brought you the Consent Decree that was imposed on the LAPD in 2001 and is responsible for many of the policies that you operate under, especially in the field of Use of Force.
The speaker opened the lecture with the observation that he could reduce the number of uses of force in any department by 75 percent in four months. How? By monitoring the “frequent flyers,” he said. What he meant by that is identifying officers who are involved in multiple uses of force.
He then went into the rest of his lecture, identifying what DOJ Civil Rights Division does and what they look for when investigating a department. They operate under the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. 14141, which states that it is unlawful for local law enforcement officers to engage in a “pattern or practice” of conduct that deprives persons of rights protected by the Constitution of the United States. The Special Litigation Section of DOJ investigates and imposes things such as consent decrees on departments to cure their evil ways.
I, too, could reduce uses of force by 75 percent in less than four months: Simply stop observational activity by patrol officers. If officers don’t stop gang members who look like they might be carrying guns, they will not run. If they do not run, officers will not chase them. If officers do not chase them, officers will not have to use force to stop them. Ergo, most uses of force will not happen.
It also occurs to me that “frequent flyers” might be the officers who are the hardest working, stop the most suspects and are skilled at targeting the suspects who have a reason to resist or run because they are carrying guns and/or contraband.
The perspective of the DOJ is looking down the organizational pyramid. The perspective of officers is looking up the organizational pyramid. Understanding this difference might help you, the patrol officer, understand why you are going through the procedures you are going through in uses of force.
Both perspectives involve the issue of survival: administrative survival for those looking down the pyramid and physical survival for those looking up. Failing at the patrol officer level means death or serious injury. Failing at the top of the pyramid means administrative death or injury. The result of failure at the patrol level is obvious, but what about the higher levels of the pyramid?
When you are involved in a categorical use of force, you impose an effect on many more people than just the suspect who is the immediate recipient of your action. Take a shooting, for example. Once you pull the trigger, you, of course, are deeply involved. Was your shooting in policy?
So is your partner deeply involved. Were his or her tactics in policy?
So are all of the officers who saw or heard the shot. Were their tactics in policy?
Also, all officers interviewed will be asked four pages of questions about their equipment by Force Investigation Division detectives. Does everyone have all of the equipment they are supposed to have? Vests, batons, OC, etc.?
The first responding sergeant’s activities are in question, so he or she is involved. Did he or she follow Special Order 19? Did he or she separate everyone? Did he or she properly ask for the public safety statement? Did he or she order everyone not to talk? Did he or she make all of the required notifications?
How about the (at least six) FID investigators? Their investigation will be closely scrutinized. Did they properly canvas the area? Did they ask every relevant question? Did they properly document the location of each piece of evidence? Did they accurately diagram the scene? Did they refrain from asking leading questions? Did they ask the “hard” questions when interviewing the officer? Was their investigation complete and well written? Was their presentation at the Use of Force Board professional and complete?
The Inspector General representative will roll out. The Inspector General’s actions will be monitored by their bosses. Did they sit in with civilian witnesses? Did they ensure that protocols were followed?
Your captain will eventually be given the investigation so that he or she can make recommendations to the Use of Force Board. The captain’s performance will be watched by higher-ranking officers on the Board. Did the captain demonstrate that he or she understood the use of force? Were his or her recommendations in line with Department policy? Was the presentation professional and well thought out?
The Use of Force Board makes recommendations to the Chief of Police. There are five members, four of them staff officers. Will the Chief think the recommendation was thorough? Will the Chief adopt the recommendations or alter them because of some perceived defect? Will the recommendation enhance or hurt the board members reputation in the Chief’s eyes?
The Chief has to make a recommendation to the Police Commission on the Use of Force. Will the Commission think that his recommendation is well founded on facts from a thorough investigation? Will the Commission agree with the Chief’s evaluation of policies? Will this recommendation change the Commission’s rating of the Chief’s performance?
The five members of the Commission have to keep the mayor happy by convincing the electorate that the Department is under firm civilian control and is doing everything right, or else!
As you can see, the wake of your bullet is wide. The waves ripple all the way to the top. They even ripple higher than the top. Enter DOJ.
The Department of Justice, Civil Rights Division, Special Litigation Section, is watching the ripples like a hawk. They hold the Department responsible as an entity for any waves that look like a suspicious pattern and practice, and they blame management! (There is a separate section that will blame and prosecute you.) Ripples that look like an unconstitutional policy, or a failure to discipline, or a failure to supervise, or a failure to investigate, or a failure to train, will result in the Chief of Police being pounced on like a fish too close to the surface.
As a result, the perspective of someone looking down the pyramid when the wake of that bullet starts to spread is to make sure the boat is not swamped. Can the Department prove that its use of force policy is constitutional? (Yes, it is based on the Supreme Court case of Graham v. Connor.) Can the Department prove that it disciplines officers who do not follow the policy? (Yes, look at the rap sheets.) Can the Department prove that there was supervision? (Yes, look at all the sergeants we had at the scene — hell, one for every shooter!) Can the Department prove that the investigation was adequate? (Yes, the average FID shooting report is a foot high.) Can the Department prove that the officer was trained? (Yes, look at all the signed receipts we have for special orders and training bulletins.) And each layer of management holds the next layer down responsible for establishing these proofs.
And that is why all of the things that happen to you happen when you engage in a use of force incident. Gravity also has a role because you-know-what always rolls downhill.
Everyone hopes that you have followed all the rules and that you are not hurt. However, if you did not follow the rules, you must be hurt. The system demands it, if for no other reason than so the proof can exist that the Department took action.
In the end, you are expendable if the boat is in danger of being swamped. So, you have two survival problems: the physical and the administrative. Your best defense is knowledge. Know what you are doing. The commander of Internal Affairs once told a delegate’s convention audience that “When you hire a carpenter, you expect him to know how to drive a nail.” It’s the same with a police officer.
When they put you on the street, the expectation of the citizens who hired you is that you will know the laws of the land and the policies of the Department. Hear warning bells. If you bend the nail, the Department will beat you straight or throw you away.
Be legally careful out there.
