September 2022 Warning Bells article
Whenever there is an Officer-Involved-Shooting (OIS), the anti-police activist groups will be critical, and the media as likely as not will complain that officers are never disciplined for shootings. So, ever sensitive to the media, the Police Commission ordered the Inspector General to conduct an audit on all “out of policy shootings” from 2015 through the end of 2020 and the discipline involved. It often takes a year to finish an investigation and then the discipline system often takes months to arrive at a final disposition. The report was delivered to the Police Commission (PC) in March of this year.
The six-year audit found 45 incidents in which the PC found the use of force to be out of policy. In the 45 incidents where officers were found out of policy, 66 officers fired 301 rounds. Of those, 228 were found to be out of policy. (It is possible to fire a series of rounds wherein only some of the series are deemed out of policy)
The 45 out of policy incidents involved 54 suspects. 17 were armed with firearms (31%), 11 were armed with knives (20%), 7 had other weapons (13%), and 19 did not have any weapon (35%). Clearly, out of policy, was more likely in incidents where the suspect was unarmed, commonly called perspective shootings because the officer perceived that the suspect was armed and constituted a threat of great bodily injury or death.
Because everything now days seems to concern race, the IG broke down the racial demographics of the suspects. 24 were Hispanic (44%), 18 were Black (33%), six were White (11%), two were Asian (4%), and four were categorized as “other” (7%).
Not everyone was hit by the gunfire. 22 suspects were missed and not injured (41%), 12 were hit but not fatally (22%), and 20 died as a result of the shooting (37%).
An out of policy disposition by the Police Commission does not result in itself in discipline against the officer. The PC does not have the power under the Los Angeles City Charter to discipline police officers. Officer discipline can only be imposed by the chief of police. The chief’s power to discipline is subject to an officer’s right to appear at a Board of Rights, or, in the case of a paper penalty, an Administrative Appeal. In the case of a Board of Rights, the chief can impose the penalty recommended by the Board or lessen it. He cannot increase the penalty. In the case of the Administrative Appeal, the chief is not bound by the hearing officer’s decision.
The protocol when an officer fires his/her weapon goes like this. Force Investigation Division (FID) responds to the location of the officer-involved-shootings and conducts an extensive investigation. The League supplies a roll-out attorney to represent the involved officer. FID briefs the chief in approximately 72 hours. The chief may bench the officers pending the completed investigation. A video tape of the relevant Body Worn Video and investigation summary is released to the public in 45 days. The investigation is completed and turned in hopefully within five months. The Inspector General completes an investigative report with a recommendation to the PC. A Use of Force Board reviews the report and conducts a hearing where the officer’s commanding officer makes a recommendation to the Board. The Board makes a recommendation to the chief. The chief reviews the recommendation and makes his own recommendation to the Police Commission. The Police Commission reads the Department’s report, the Inspector General’s report, and hears a presentation by the Department. The PC then renders its opinion. If the use of force is deemed out of policy, the case is sent back to the chief for the administration of discipline.
When this happens, the chief has the following options. 1. Ordering the officer to extensive retraining, 2. Give the officer a Notice to Correct, 3. Open a personnel complaint. The personnel complaint can result in anything from a paper penalty to termination.
As expressed by a previous police commissioner several years ago, the commission cannot discipline the officer, only the chief can, but we write the chief’s rating report.
So, what happened to our 66 officers who were judged out of policy by the commission? Well, all 66 were ordered to undergo extensive retraining. A high percentage were subjected to a personnel complaint (90%). 37 of the officers by the chief and an additional 22 by complaints coming from members of the public. An out of policy determination is highly likely to end up in a personnel complaint investigation. The good news, if you can call it that, is that the Internal Affairs investigation is usually a cover letter with the PC’s rationale attached. The officer is not usually subjected to another set of interviews by IA. After all, the investigation by FID is thorough.
Of the 59 officers who were subjected to the personnel investigation, 40 of them ended up with a sustained allegation (68%). Therefore, 19 officers were not disciplined (32%), although they were put through extensive retraining.
Interestingly, 37 of the 40 with sustained complaints were officers who had their personnel complaints issued by the chief of police with only 3 of those officers whose complaints were initiated by members of the public ending up sustained.
The chief sent 9 of the officers to a Board of Rights with a recommendation of termination (23%). The fate of these 9 officers varied. One Board found an officer guilty and recommended termination which the chief affirmed. Two of the officers resigned before their Boards could proceed. One officer entered into a settlement for 22 suspension days and an immediate retirement. That leaves 4 officers who frustrated the chief’s termination recommendation and one whose Board is still pending. Those 4 officers received suspensions ranging from 10 to 55 days as determined by the Board of Rights but retained their jobs.
That leaves 31 of the 40 officers who the chief recommended suspension days or a paper penalty. How many suspension days off were they given? One officer received 22 days and a demotion. Another officer received 22 days. One received 20 days suspension. Three officers received 15 days. Two got 10 days. Six received 5 days. One got 3 days. Five received 2 suspension days. Ten officers received an Official Reprimand.
However, suspension days can be appealed and 7 of the above officers filed for an appeal. One was unsuccessful appealing a 10 day suspension. The Board found that 10 days was proper. One challenged a 10 day suspension and the Board reduced it to 5. One challenged a 5 day suspension and the Board reduced the penalty to an Official Reprimand. And two of the appeals were still pending.
The LAPD officer-involved-shooting protocol is the most thorough in the nation. Transparency is also paramount. Within 45 days, the Department puts out a video of the shooting that includes the relevant Body Worn Video and is posted on the internet. (Critical Incident Videos – LAPD Online) The final Police Commission ruling is also posted on the internet. (https://www.lapdonline.org/police-commission/categorical-use-of-force/) Yet, any police shooting continues to be subjected to condemnation by certain segments of the community and the media. Thank goodness for the right to due process recognized by the Department. Avail yourselves to the League attorneys provided to officers to guide them through a complicated process.
Remember knowledge, articulation, and accuracy are the three keys to avoiding the out of policy use of force that is all too common at the Police Commission level. In uses of force, the Body Worn Camera is your friend most of the time. Make sure it is on.
Hang in there. High crime rates are causing the pendulum to start swinging back towards the recognition that society needs police officers. But don’t go out on a limb just yet. There are still too many saws in possession of activists in LA just waiting to saw your limb off.
Be legally careful out there.
