Defending cops...are there some ethical issues?

Who really are the ‘good guys?’  Who are the courageous seekers of justice?  The ones fighting to right wrongs?  Is it those who are defending actions of the police or the persons who are challenging the police?  I’m sure many of you won’t like my choice…I say it’s the members of the public who are fighting the uphill legal battle to right wrongs!

It may be strategically correct from a legal standpoint, but is it the right thing to do when the agency’s defense team digs up dirt to tarnish the personal reputation of the public person seeking a redress for what they believe is a governmental wrong?  That was the case recently in Baltimore where a Federal judge blasts the City for trashing a plaintiff in a civil rights case.   http://www.wbaltv.com/i-team/Federal-judge-slams-Baltimore-Police-Department-over-abuse/19243228 Sometimes those protecting the pocketbook of government forget what impact these types of tactics will have on the people in our communities who already question our motives.  So you win the immediate court case; but have you won the eventual conflict in your community.  Challenging the facts of the case is proper.  But how far will you allow your representatives to go to ‘win’ the case?  It may be won in the darkened halls of the courthouse; but will it be a win on the street corners, Starbucks, lunch wagons and schools?

Three years ago during 2013 I was involved in a civil case in Los Angeles.  A local, prominent businessman became involved in an incident with a couple of LAPD officers and sustained very serious injuries to his face and head.  The officers contended he fell as he ran from them.  He alleged they beat him with batons and fists.  This certainly is a rightful issue for litigation.

I became involved not in the use of force incident, but in what occurred afterwards.  His incident and serious injuries were broadcast widely on TMZ…the scandal media source for Los Angeles.  Then the LAPD began its systematic public and private campaign to destroy this businessman’s personal and professional life. 

Central to the incident was one of the officers involved in the contact/force encounter.  Beginning in 2008 and continuing into 2011 there were numerous allegations that this officer, with another, engaged in sexual misconduct with persons under their control, specifically informants.  In these types of cases credibility is always a problem and vulnerable victims can be easily written off, as they were in these incidents.  But during the civil litigation of the businessman, the LAPD languished without movement against this one officer.  Was it purposeful?  Was it a legal strategy?  Would the officer’s credibility be adversely affected? 

Between court rulings and the trial in 2014, on the underlying use of force issues, the businessman’s case was lost.  His attorneys were not allowed to bring in the evidence of the officer’s sexual misconduct.  Now he’s struggling to rebuild his personal and professional life. Today news surfaces about the involved officer…http://www.latimes.com/local/lanow/la-me-ln-lapd-officers-sexual-assault-20160217-story.html  This short news article scratches the surface on the lumbering, bungling, bureaucratic handling of the administrative side of the involved officer’s case.  A large agency, like the LAPD, can effectively keep an officer on ‘the beach’ or not working for a long time without affecting day-to-day operations.  But it was not until after the businessman’s civil trial did the LAPD suspend and eventually terminate the officer for his sexual misconduct. 

Was this a conscious decision to forestall the information on the sexual misconduct and the officer’s credibility from being used against the City in the civil trial?  I don’t know for certain, but I certainly have my suspicions.  Is it always right to be right?  Could there be more than just one right?  Are we in law enforcement truly the ‘good guys’ riding the white horse searching for justice?

The 'Blue Shield' doesn't protect anyone

The ‘Blue Shield’ is simply an organizational form of the ‘Code of Silence.’  It’s when the agency conducts itself in a manner to shield the agency and employees from being held accountable for misconduct.  Internal Affairs and the administrative investigation process should protect the image of the agency and deal with misconduct openly and forcibly.  When done properly, the process will protect the top cop.  When done improperly, it often results in the downfall of the top cop.

Years ago in an interview on the Code of Silence, longtime police executive Joe McNamara, related to Ed Bradley of CBS ’60 Minutes’ that Internal Affairs was part of the problem.  He alleged that IA didn’t want to bring out corruption within an agency because it would adversely affect the position of the Chief. 

It’s sad, but true.  Too many good top cops have been knocked off their pedestals when they acquiesce to internal cover-ups or are purposefully kept in the dark.  Sheriff Lee Baca is a prime example.  A top cop who did great things for the Los Angeles County Sheriff’s Office, but apparently failed when it came to overseeing misconduct.

Former LA Sheriff Lee Baca To Plead Guilty To Making False Statements In a plea deal, Baca admitted he lied when he said he didn't know anything about efforts to obstruct an FBI probe into corruption and abuse in his department. Read this story

When Internal Affairs acquiesces to politics or internal pressures to not tell the truth, the agency and the top cop will end up becoming tarnished.  The true meaning of loyalty is often clouded.  It is not blind obedience.  It is not hiding the truth.  It is not trying to protect someone’s butt.

Loyalty in law enforcement is the protection of the Constitution, guardian of the civil rights of all constituents, and always being truthful to the facts.  The Internal Affairs function is the key element to professional, responsive policing.

ADRESSING POLICE SEXUAL MISCONDUCT

I was really shocked a couple of weeks ago during one of my Internal Affairs training seminars for PATC.  There were about 35 law enforcement personnel from various sized departments including police and sheriff organizations.  I asked how many of their agencies had a written policy specifically addressing sexual misconduct.  NOT ONE HAND WENT UP!

The problem is present in our profession whether we want to admit it or not.  Sexual misconduct is the second most frequent act of police misconduct on the CATO site - policemisconduct.net.  A recent article in the Guardian newspaper found that 1000 cops have been decertified by state agencies in the past 6 years for sexual misconduct.  And we know that all states aren’t active in decertification and many agencies will simply discipline an officer engaging for some forms of sexual misconduct rather than terminate the officer.  On top of that there is no national database for officers terminated and/or decertified. 

Most agencies simply lump sexual misconduct into the generic categories of conduct unbecoming or immoral behavior.  Some have developed even more ludicrous violations such as ‘idling and loafing’ or ‘abuse of meal break.’ 

In 2014, the Alaska State Patrol lost a termination case during arbitration.  A trooper responded to a call for domestic violence and arrested the male.  The trooper returned to the victim’s home after he went off-duty where he engaged in consensual sex.  The Patrol terminated him for violation of ‘moral conduct.’  The Alaska Supreme Court upheld the arbitrator’s decision of progressive discipline and a 3-day suspension.  But the Court wrote that there would have been just cause to terminate the trooper for “engaging in sexual conduct with a victim, shortly after responding to her call for help, even if consensual, is inappropriate behavior for a state trooper.”

A major crimes detective in Texas resigned after it was discovered that he had sexually explicit contacts with four of his crime victims during 2011 or 2013.  One ended up becoming the victim of a homicide.

Now developing policy on this issue isn’t as easy as you might think.  No one is attempting to prohibit an officer from developing a relationship with someone whom s/he might have initially encountered during official duties.  All of us know examples of loving, healthy long-term relationships and marriages that have occurred from this type of conduct.  Some of the key elements to consider are how could the sexual contact jeopardize the professionalism of the officer or the agency.  Many officers later contend that the sexual encounter was consensual…at least from the point of view of the officer.  On the other side of the encounter is the perspective of the other involved person who might reasonably conclude that there was some form of coercion or duress. 

At PATC we developed the following model policy that includes:

•       Definitions:

–      Criminal Sexual Misconduct:  The abuse of authority by a law enforcement officer for sexual purposes that violate the law.

–      Sexual Misconduct: Any sexual activity while on-duty or stemming from official duty.  Sexual misconduct includes but is not limited to use of official position and official resources to obtain information for purposes of pursuing sexual conduct.

–      Intimate Part: Genital area, inner thigh, groin, buttocks or breasts of a person.

–      Actor: The person accused of sexual assault

–      Sexual Contact: Any contact for the purpose of sexual gratification of the actor with the intimate parts of a person not married to the actor.

•       Procedure:

–      Sexual activity of any nature while on duty is prohibited.

–      Sexual Misconduct is prohibited and shall be disciplined up to and including termination.

–      Any contact for the purpose of sexual gratification of the actor with the intimate parts of a person while on duty is prohibited.

–      A police officer shall not engage in sexual contact with another person who is in the custody of law and such officer has supervisory or disciplinary authority over such other person. 

–      Reporting Requirements:  Any employee of this Department, who is made aware of any violation of this policy, is required to report the violation to their supervisor.  The supervisor will immediately contact the Internal Affairs Section, or the command level personnel having Internal Affairs responsibility who will immediately initiate an investigation in accordance with their established investigative policy.  The investigation will involve other investigative elements of the Department as necessary and any forensic evidence will be protected and processed immediately.   The accused officer’s supervisor will not attempt to resolve a complaint of this nature with the complainant, and is required to make immediate contact with Internal Affairs or the command level personnel having Internal Affairs responsibility.

There are two additional issues that any agency must consider when dealing with sexual misconduct.  Credibility often will be an issue that must be addressed.  But much of the most egregious acts of sexual misconduct are targeted against very vulnerable people.  Persons with criminal histories; mental illness; substance abuse addiction; and flirtatious behaviors.  None of these behaviors can justify not investigating the incident.

Another issue that can be significant is false accusations.  The involved person may be attempting to influence a pending criminal charge against himself or herself or someone else.  There may be embarrassment and relationship issues.  These are issues that can be addressed during any reasonable investigation.  These are not reasons to elect to dismiss the allegations or curtail the investigation.

The first step for any law enforcement agency is to tackle the development of the written policy.  The next step is to train all employees so there will be no doubt in anyone’s mind that the agency means what it says and that everyone has been given a chance to learn what sexual misconduct is.  And, lastly, take a positive step to disciplining anyone in the agency who violates the policy.

The solution to this ugly problem lies with each and every police agency and everyone in the agency.  IT’S WRONG, BUT WE CAN FIX IT!

Three (3) essential steps in changing the culture of a police department.

Some police departments are steeped in tradition and comprised of several generations of employees with common family ties.  The department might have been operating for years with practices contrary to even its own written policies and procedures.  Marginal officers may have been avoided by supervisors and managers and allowed to remain a cancer within the agency.  Malignant officers may have been successful in eluding termination by effective discipline challenges or simply moving on to another unsuspecting agency.  There are some successful steps that might change history for this type of police agency and effectively change the culture of the agency.

Develop a cadre of concerned officers.  In all police departments problem employees are the minority.  But the majority of the officers who do the right thing will remain silent by a belief that management is inept in successfully disciplining these malignant officers.  There also is a realistic belief that the retaliation of coming forward will target them…the good officers who stand up and break the “Code of Silence.”  It’s this majority of well meaning, professional and dedicated officers who have to be encouraged and supported to come forward and band together to create a new base for the department.  These officers know the ones who are abusing their oath of office and tarnishing the reputation of the agency.  These officers need to stand up and say they will no longer idly stand by and keep their mouths shut or avoid and evade being forced to confront the misdeeds of the few malignant officers in the agency.  But these good officers need to believe that the Chief or Sheriff will support them and provide the required commitment to change the past and get rid of the few malignant officers.

Many chiefs of police lately have been bemoaning the trend to throw them out of office earlier than in past years.  They contend it’s because of crime increases.  That’s really absurd.  For years we’ve taken the credit when crime went down and pointed the finger at societal issues when it went up.  Countless cases have demonstrated that the pressure on troops has lead to the manipulation of crime stats.  The real task for chiefs and sheriffs, however, is to inspire their troops to do good, professional work.  As former management guru Peter Drucker contended, managers spent 80 percent of their time with the 20 percent non-performers rather than the bulk of their time with the performers.  When is the last time you saw your chief or sheriff in a patrol car with an officer during the graveyard shift?  How many of you can recall when any chief or sheriff rewarded an employee who blew the whistle on police misconduct or corruption?  Chiefs and sheriffs seem more secure when no one makes ‘waves’ and brings an agency’s warts out in the open.

The chief or sheriff doesn’t make the image of the police department.  The uniformed officers in the community, the plainclothes crime impact teams, and the investigators who conduct the menial tasks of follow-up work on minor crimes create this image in the eyes of the community.  Why should a citizen come forward with information about criminal behavior, when we can’t even encourage our own officers to come forward and help root out misconduct? 

Fill your station(s) with members from the community.  “To know us is to love us,” many have found to be true when community members are brought into the department and have the ability to interact with police employees.  Some of the more common techniques are Citizen Police Academies, community oriented committees, Senior Volunteers, and a layered Reserve/Auxiliary program.  Other recent successful inroads have been made by the community collaborations in programs such as the one in Cincinnati.  Bringing in a cross section of members of your community will allow them to see the policing operation first hand and their presence can create a subduing atmosphere within the day-to-day operations of the police agency.  When the local police station becomes “my station,” they will become a positive force to support this cultural change.

I recall a couple of unique uses of senior volunteers.  In one agency these dedicated volunteers were use to conduct call backs to victims of crimes that really had no leads for follow-up.  The victim didn’t know these weren’t investigators.  They were simply identified as working the detective bureau and were concerned about the victim’s loss and whether there might be any further information they had which could be added to the investigative reports.  To the victim it meant the agency cared, even for their lost porch plant or vandalized fence.  Another agency was using an retired IT person to develop and maintain its intelligence computer system.  Of course, many agencies use these types of volunteers in the property and evidence room.  We’ve seen other being used to enforce “handicap” parking provisions.  Our tasks are not so secret that we can’t effectively use vetted volunteers.

Cut the consequence of past employment practices.  Reading the large volume of police employment cases that seemingly always seem to go against the police department discipline decisions says we’re doing something wrong.  Most of these focus on two failures.  The first is that we don’t adequately articulate our ‘rational reasoning’ for the discipline decision.  This task takes time and effort, but seems to be the essential key to success.  It paints a good picture for anyone beyond the agency who might be evaluating your discipline decision during an appeal.  Too often we act in haste when dealing with an inexcusable or egregious act of misconduct.  In these extreme cases where the probable disciplinary action will be termination it’s time to pump the brakes, use administrative leave until you’re ready to finalize this extreme action, take time to organize and articulate your rational reasoning.  Resist any effort to make your paperwork “short and sweet.”  Arbitration and court decisions frequently expound on this rational reasoning when their rulings are supportive of the agency. 

The second failure is our lack of consistency in our discipline and the failure to upgrade or create written policies that reflect the current challenges we’re facing with our current employees.  It’s important to determine the common areas of police discipline and develop specific written policies and in-service training to introduce these changes to each and every member of the community.  The employees need to be put on notice that there are new provisions/rules in place and the agency won’t be guided by past conduct and disciplinary decisions.  As an example, sexual misconduct is a known potential area of police impropriety.  Relying on a generic misconduct charge of conduct unbecoming, moral turpitude or “idling and loafing” is no longer adequate.  Create realistic training and specific policies that fully describe the misconduct act.  Your agency has to monitor rates of discipline to ensure that there is some orderly consistency to these decisions.  These actions can effectively cut the cord from past practices and create a new playing field for your employees, agency and those who may be tasked with evaluating the employee’s appeal.

Videotapes: Can law enforcement come together on this pressing issue?

The issue is ‘how will officers be allowed to use police incidents captured by video?’  Currently most everyone, including law enforcement personnel, is divided on this issue.  This is even more apparent when the police incident involves a ‘critical incident’ such as a use of force, pursuit, officer-involved shooting or custody death.  I believe the officers should be allowed to use this video evidence just like any other piece of evidence.  If we in law enforcement don’t take a consistent, united stand on this issue, someone else will ram an unacceptable practice down our throats.  But, let’s take a moment and look at some of the more obvious areas of controversy.

Criminal suspects don’t get to review video evidence before they give a statement is an issue raised by outsiders.  This really is totally irrelevant.  Criminal suspects aren’t required to write reports concerning their actions and they aren’t compelled to give statements to the police agency.  Actually they will eventually have access to this evidence during discovery in their criminal proceedings and before they make the decision to grant an interview or testify in court.  Police officers don’t have that protection unless they personally are being investigated criminally for their conduct and refuse to give a statement.  But, even then the involved officer can be compelled to write reports and give a statement during any administrative investigation regarding the exact same incident.

Officers may change their version of events if they are allowed to view this video evidence before they write reports or give a statement.  Yes, that may happen.  But, in the end, our ultimate goal is to get the best account of what occurred.  If evidence, whether it’s video or some other form, will assist in reaching that goal we should pursue it.  Few persons say the officer can’t use contemporaneous notes s/he may have made, reflections from a walk through conducted, scene observations after the event concluded, or extemporaneous statements made at the scene.  Even civilian complainants who have made allegations of police employee misconduct should be allowed to view video evidence that may refute or mitigate their allegations before they are questioned further in the administrative interview.  We shouldn’t be playing a game of ‘gotch ya!’ with either these civilian complainants or our own officers. 

Officers currently use a variety of evidence in preparing their reports and giving compelled statements.  A police officer regularly will use available evidence when preparing contemporaneous reports of any police incident, including his/her use of force.  Audio recorders, CAD documentation, photographs of injuries or equipment damage, training documents and written policy/procedures are commonly used by a well-trained officer. What makes video evidence any different?  Nothing and we should resist any effort to carve out an exception on this value piece of evidence. 

Will an officer’s knowledge of evidence, including video, necessarily slant his/her version of the events?  Some state police officer bill of rights legislation and collective bargaining agreements mandate that the entire administrative  investigative file be open to the accused officer before s/he is compelled to give a statement.  In reality if we haven’t made the case before the compelled statement, it’s rare that it will be made by the admissions of the officer during the compelled statement.  Police officers frequently meet with their representatives, including attorneys, and discuss their upcoming compelled statement.  An officer’s representative would be remiss if they didn’t discuss the events with the involved officer in an effort to more factually present the circumstances of the officer’s involvement.  If the action of the officer is inexcusable, any review of the video evidence won’t let that officer off the hook.  S/he still will be accountable for his/her action or lack of action.

Would this give an officer the opportunity to lie about the circumstances of the police incident?  I don’t believe that would be true in nearly all circumstances.  We need to address this issue with the assumption that all officers are professional and want to conduct themselves appropriately.  We shouldn’t create our policies on this critical issue based on what the minority, unprofessional officer might do at the expense of our good officers.  Our investigative techniques are adequate to ferret out those who may abuse their position.  Most of our officers are good and want to prepare reports and give statements that are as accurate as possible.  Access to all of the evidence directly connected to their role in a police incident is the best course to assist these officers in this task.  Consider these examples: “During the shooting I shot until the threat stopped.  At the time of the shooting I really didn’t count the number of rounds I fired.  It was only after my magazine was checked that I realized I had fired eight rounds.”  Or, “During the shooting I believed I remained in one location.  It was only after I viewed my body camera video that I realized I moved several steps to the right while firing my weapon.”  Any concern with these more accurate accounts?

The ‘appearance of evil’ is often worst than the evil itself.  We’re got to be concerned with those who will attack the credibility of our good officers.  This often occurs when the officer is required to write a report, give one or more statements even when compelled, followed through a walk-through, and then evaluated against mounds of evidence found later.  Resist this urge.  Involved officers should be required to give only one compelled statement after they have had the opportunity to review all relevant evidence.  If we don’t allow this, there will undoubtedly be variations in the officer’s account, however slight, that gives reviewers (even our own personnel) the belief that the officer is not being fully truthful.  We want the most factual account from the officer who is now facing potential criminal (state and federal), civil and administrative charges.  Let’s not handcuff our good officers at the expense of those few who might abuse their badges or others who might hide in the shadows exhibiting ‘hear no evil, see no evil, and speak no evil.’

Is Maryland out of step on police misconduct?

Competing stakeholders in Maryland are fighting each other on the issue of police misconduct and holding officers accountable.  Current issues are the State’s Police Officer Bill of Rights giving officers 10 days before they can be ordered to give a statement concerning an allegation of use of force.  Public elements in Maryland are bemoaning that officers can’t be suspended without pay unless they are charged with a felony.

In the Chicago area collective bargaining agreements with several agencies prohibit a police agency from disciplining an officer who shows up for work with a BA level as high as .08.  This is not an isolated incident.  There are other seemingly ridiculous provisions tucked into other CBAs involving public safety officers.

Many folks contend these are ridiculous provisions that aren’t afforded to someone who isn’t a police officer.  Don’t blame the police unions.  Blame the governmental agencies that agree to many of these provisions.  They had a choice and chose to take the easy way out.  In some cases it also reflects that the government forces don’t know the law.

Let’s take the requirement to pay an officer who is under investigation for an allegation of misconduct, unless the officer has been indicted for a felony.  That provision has been affirmed by the U.S. Supreme Court in a 1997 case involving a campus police officer (Gilbert v. Homar, 520 U.S. 924).  Otherwise the officer has the rights provided to public employees under the 1985 Loudermill decision of the U.S. Supreme Court.

Now the 10-day rule in Maryland.  Opponents contend that this same privilege isn’t given to the average citizen.  Well, the citizen can’t be compelled to answer questions under threat of losing their livelihood.  The citizen can rely on the 5^th Amendment and keep quiet.  The officer in Maryland, as well as all other states, must answer the questions posed by the agency and must be truthful or be subject to being fired.  Of course the officer’s answers in most cases can’t be used against the officer in a criminal matter involving the same allegation.

Now the matter of the ridiculous provisions of some CBAs with police officers.  I recall discussing this with a Chief of one of the Chicago area towns who had this provision.  He contended he didn’t know the town had accepted it, as he wasn’t a part of the bargaining team.  Well, shame on him!  How can a Chief turn over running the agency to someone who doesn’t have the same level of knowledge of what tasks are required to keep a police agency professional?

Police discipline is essential to maintain the professional level of policing and ensure that esprit de corps isn’t compromised.  All of the stakeholders have a rightful place in these decisions including the public, agency employees, agency management and the community served.  Don’t blame if one of those stakeholders has fallen down on the job.

New book on police misconduct by Lou Reiter

My second novel about police misconduct is off the press.  “Shattered Badges” continues to follow the police misconduct and liability cases being unraveled by my fictional consultant, Taylor Sterling.  Some might find Taylor to be a little like the author, Lou Reiter.  This version is a little longer pushing 500 pages.  The format is the same with each chapter being a separate police case with a beginning and an end.

The first chapter finds Taylor in New Jersey working on a case of a misdirected prosecution of an officer for a fatal shooting.  The young cop is caught between the political power plays of the local and state prosecutor.  What could an outside consultant do?

The second case weaves its way into the wrongful conviction of a drug dealer in Indiana.  Of course the drug dealer now expects to get a big payout for his eight years on death row.  Taylor is there to give the insurance carrier some ammunition that might lower that payout, but gets involved in the sloppy operation of the drug unit.

It's a steamy chapter about civil demonstrations that takes Taylor to a small college in Oregon.  This chapter gets into the underlying concepts of crowd and demonstration control and the different style of policing on a college campus.

Two fatal SWAT operations in a small town in Kentucky frighten the insurance pool covering the agency.  Taylor is there to evaluate these incidents and the inherent hazards of this type of unit.

The fifth chapter deals with speed…police pursuits…highway interdiction.  The small sleepy town in the middle of nowhere Kansas has got itself into a pile of trouble with some police fatal crashes.

The last chapter deals with police greed and choices.  How can a department turn its head when the devil is active inside the agency and good people are being hurt?  It’s Taylor task to uncover what went wrong in this town outside the sprawl of Cleveland.

Cops should like these stories.  Bosses might cringe.  For the person not directly involved in police misconduct these cases will be informational.  In the end, the book is a good read.  I’d appreciate some feedback on your read.

You can get your copy at Amazon, Barnes and Noble, iBook, Deeds Publishing Marietta GA, or Public Agency Training Council.