What’s the best employment decision for off-duty police officers arrested for DUI/OWI?

 

This was one of the research paper topic options for the over 100 participants who opted to challenge the National Professional Certification for IA/OPS Investigators and Supervisors at our recent Internal Affairs Conference in Las Vegas.  This Certification Program has been a very successful program initiated by the Legal and Liability Risk Management Association of the Public Agency Training Council.

Actual practice of handling of off-duty officer DUI/OWI arrest incidents seems to show that there is no consistent method for handling this personnel decision.  Some agencies seem to have a zero tolerance policy and terminate any officer in this situation regardless of the eventual court proceeding.  Other agencies wait until the outcome of any judicial proceeding and, if convicted, will terminate the officer.  Some agencies have reported that it will result in a suspension ranging from ten or more days to a couple of months.

The early research papers presented by our Certification candidates seem to fall into two distinct categories.  The first group felt that the officer who is arrested for off-duty DUI should be terminated.  The rationale advanced hinges on three specific issues. 

The first is that this conduct would violate the oath of office and the Police Officers Code of Conduct.  Part of that Code is the sentence that states the officer “…shall maintain an unsullied personal life as an example to all.”  If an officer violates this axiom of ethical behavior, this group felt it should signal that this would be a continuing flaw in the officer’s performance.

A second common point of rationale from these authors who favor termination is that this type of arrest would normally result in the suspension of the officer’s driving privilege, particularly if the officer refuses to take any required chemical or breath test, and would severely curtail the officer’s ability to perform the basic task of his/her position.  These authors believed that the agency should not be required to accommodate the officer’s inability to drive.

A third issue from this group is the potential that an incident like this could destroy the officer’s credibility and interfere with any subsequent court testimony.  This would be particularly true of any incidents involving intoxication arrests.

All of these are valid points raised by the authors of these research papers who favored termination.

A second group, however, contended that it would depend on a lot of other factors.  This group felt that it would depend on the outcome of the criminal proceedings.  The arrest might not be prosecuted for a variety of reasons.  Or the court proceedings could result in a decision that would not be deemed to be a conviction.  If the charge were reduced to reckless driving that would now reduce the stigma of the DUI.  Or it could be adjudicated as a non-conviction for a variety of other reasons such as attendance at a DUI school.  Then, too, the officer might be acquitted.

Some in this second group felt it might depend on the past practices of the agency.  What if the agency regularly accepted candidates for the job who had a prior DUI before becoming a member of the agency?  How has the agency dealt with other intoxication related incidents involving employees?  Did these always result in termination?  This arrest might be a symptom of an alcoholism dependency that could be addressed by the agency’s Employee Assistance Program and rehabilitation resources.   

This same group also felt that the officer involved could take a leave of absence for the period of his license’s suspension or make other arrangements to get to and from work and be assigned to some task not requiring driving agency vehicles.  Would it be reasonable accommodate the officer particularly if the agency had done this for officers involved in other off-duty incidents that limited his/her ability to perform the assigned task? 

This second group pondered the issue of testimonial credibility and the Brady/Giglio implications.  Does the agency have assignments where future testimony of this officer would not be required?  Some courts have decided that this issue of credibility might be overcome in time or by trial testimony rehabilitation like for any witness in a criminal trial.

Not addressed by the authors in both groups was the potential that some officers who are stopped off-duty and have been drinking might be given ‘professional courtesy.’   Whether it’s right or wrong is not the issue here.  It’s what position will your department take should it come to your attention.  In these cases there will probably be little, if any, evidence to go on.

Personnel issues are some of the most difficult decisions for supervisors and administrators.  Zero tolerance policies sound great, but have proven to be difficult to enforce and are easily broken for well meaning and, in some cases, not so well meaning reasons.  It’s best to have these discussions before you have to make this hard decision involving off-duty officer DUI/OWI incidents!

IA/OPS Conference of PATC in Las Vegas

I’m out here in Las Vegas at the PATC Western States Training Conference.  This was the 15^th year I was privileged to organize and present the Internal Affairs Conference and Certification program.  We had 140 participants. 

We did experience new attendees.  Through the U.S. Embassy in Mexico City, we had 9 Mexican Federal police officials.  Apparently the representative from the Embassy had prior experience in IA and he’s trying to encourage Mexican police development of a similar program.  He was very impressed with our new National Professional Certification for IA/OPS Investigators and Supervisors and is interested in creating something similar in Mexico.  These representatives were provided with translation services during the conference.

In addition, we had 5 representatives from Nigeria and several law enforcement personnel from various tribal police agencies in the U.S.

The weeklong conference heard presentations from 8 presenters.  Tim Longo, Chief of Charlottesville VA presented Constitutional issues on protests, employee searches, compelled statements and filming of police incidents by citizens.  Richard Rosenthal from Vancouver BC independent police use of force investigation unit and former monitor in Portland and Denver gave insight into external oversight, mediation of citizen complaints and employee discipline matrix.  Steve Rothlein, retired deputy director of Metro-Dade Police Department discussed early warning systems and undercover stings.  Mark Brewington from N.C. S.B.I. told us step by step about the Operation Tarnished Badge he conducted in North Carolina several years ago that resulted in over 100 arrests including the Sheriff of the involved county.  Curt Varone gave the attendees a primer on disciplinary issues within the fire service.  Craig Futterman, Chicago attorney, presented his studies of disciplinary issues within the Chicago Police Department and his points of view on the implications of the Code of Silence within law enforcement.  I addressed audits of special operations units, sexual misconduct and the impact of social media on police agencies.  Rounding out the conference was the presentation by Jack Ryan of civil litigation and case law on the critical tasks in policing.

Nearly half of our participants challenged the Certification process and ten successfully earned their certification during this Conference.  There are over 100 who have earned this national recognition to date.  This Conference will be repeated this spring in Nashville and Maryland/DC area.

Chemical testing of officers in shooting incidents...a recent case

The 2^nd Circuit Court of Appeals rendered an important decision in the chemical testing of NYPD officers involved in shooting incidents.  The significance of this opinion, even it that Circuit isn’t necessarily authoritative in your jurisdiction, is that it is very clear in its analysis and follows case law from the U.S. Supreme Court.  It clearly distinguishes the “special needs” and “public safety” doctrines applicability to public employees and relationship to the Fourth Amendment provisions in criminal proceedings.

In November 2013 a panel of judges in the 2^nd Circuit Court of Appeals took up the appeal of a previously decided case, Lynch v. City of New York, 589 F.3d 94 (2 Cir. 2009) concerning the NYPD provision to test all officers involved in a fatal or wounding shooting while either on- or off-duty.  This court affirmed the district court’s award of summary judgment to the NYPD on the plaintiff’s Fourth Amendment challenge, which failed as a matter of law.  This court also was impressed with the narrow scope of the NYPD written provisions.

The NYPD adopted a written policy following a 2006 shooting incident involving undercover officers that resulted in the death of Sean Bell and wounding of two of his companions.  The NYPD convened a review committee and enacted a policy requiring alcohol testing “when a uniformed member of the (NYPD), on or off duty, is involved in a firearms discharge within New York City which results in injury to or death of a person.”  The procedure was that a Captain from Internal Affairs Bureau would respond to the scene or station and administer a portable breathalyzer to the involved personnel.  If the results were .08 or greater the officer would be tested by a second “more alcohol sensitive…Intoxilyzer machine” at another location.

Many law enforcement agencies have procedures when officers are involved in similar shooting incidents and actually have expanded those incidents to include other critical incidents such as in-custody deaths and fatal or serious vehicle accidents.  Many agencies also use blood or urine samples for these types of cases, as these tests will detect other chemical substances, prescription medicines, and anabolic steroids.  This case involving the NYPD did not address these issues and was much more narrow.  But the substance of this case is important to demonstrate the legal issues involved in these types of personnel investigations by a public safety agency.

“The stated purpose of IO–52 is “[t]o ensure the highest levels of integrity at the scene of police involved firearms discharges which result in injury to or death of a person.”  As explained further by Chief Campisi in opposing plaintiffs' motion for a preliminary injunction, IO–52 serves (1) to protect “the integrity of the NYPD”; (2) to protect “the safety of the public and NYPD officers”; (3) to deter “alcohol intoxication by NYPD who are carrying firearms”; and (4) to assure “the public that one of the most important and daunting powers of the police, the power to apply deadly force when necessary, is not being abused or used by officers who are under the influence of alcohol.”

This court discussed the “special needs” doctrine in its decision.  It indicated that “neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance…Warrantless, even suspicionless, searches can be constitutionally reasonable where ‘special needs, beyond the normal need for law enforcement,’ are present.”  The court cited National Treasury Emps. Union v. Von Raab (1989) and Skinner v. Ry. Labor Execs. Ass’n (1989).  It found that “that the interests served by the special needs outweigh the privacy interests at stake.”

The court found, “B. IO–52 Testing Is Constitutionally Reasonable Under the Special Needs Doctrine

When we apply these principles to this case, the record compels the following conclusions.

First, it is evident that IO–52 testing is conducted to determine an officer's sobriety at the time he discharged his firearm. Sobriety is a fitness-for-duty condition of employment with the NYPD. Thus, a sobriety determination serves special needs distinct from criminal law enforcement, specifically, personnel management of, and maintaining public confidence in, the NYPD. Indeed, these needs must be served in every police shooting case, without regard to whether the shooting implicates the criminal laws, which most police shootings, in fact, do not.

Second, the NYPD's interest in these special needs is not compatible with the warrant requirement applicable to criminal investigations.

Third, the NYPD's interest in these special needs sufficiently outweighs the privacy interests of tested police officers as to render warrantless, suspicionless IO–52 testing constitutionally reasonable.”

And, “Rather, what the record does show is that the immediate purpose of IO–52 testing is personnel management of, and the maintenance of public confidence in, the NYPD, specifically with respect to officers' discharge of firearms in circumstances causing death or personal injury. The Supreme Court has specifically recognized a public employer's regulation of its employees' conduct as a special need that can support warrantless, suspicionless testing to ensure safe and responsible performance of hazardous duties, a conclusion that obtains without regard to whether the testing occurs before or after any harm actually occurs and whether the employer is itself involved in law enforcement. See National Treasury Emps. Union v. Von Raab, 489 U.S. at 679 (recognizing special need to conduct suspicionless drug testing of Customs employees involved in drug interdiction or required to carry firearms); Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. at 620–21 (recognizing special need to conduct blood and urine tests of all railroad employees involved in train accidents). Breathalyzer testing most obviously serves these special needs by promptly revealing whether a police officer was in compliance with department guidelines respecting alcohol use and fitness for duty when he discharged his firearm. The NYPD and the public have an interest in the answer to that question in every police shooting resulting in death or personal injury, without regard to whether the officer's conduct raises any criminal concerns.”

This decision further stated, “In sum, the record compels the conclusion that the primary, i.e ., immediate, purpose of IO–52 testing is personnel management and the maintenance of public confidence in the NYPD, needs present in every shooting case and distinct from normal law enforcement objectives to solve crimes and prosecute their perpetrators. In these circumstances, the possibility that IO–52 test results might ultimately be used as evidence in a criminal prosecution does not take the case out of the special needs doctrine. See Illinois v. Lidster, 540 U.S. at 423–27; United States v. Amerson, 483 F.3d at 80–83; Nicholas v. Goord, 430 F.3d at 667–69…The Supreme Court has further recognized that “the government's interest in dispensing with the warrant requirement is at its strongest when, as here, the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.” Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. at 623 (internal quotation marks omitted). Because “alcohol and other drugs are eliminated from the bloodstream at a constant rate, ․ breath samples taken to measure whether these substances were in the bloodstream when a triggering event occurred must be obtained as soon as possible.” Id. (internal citation omitted). Thus, a delay associated with obtaining a warrant could negatively affect the probative value of breathalyzer test results, undermining the NYPD's ability both to manage its personnel effectively and to assure the public that it is doing so. See id. (observing that delay in procuring warrant “may result in the destruction of valuable evidence”); see also Missouri v. McNeely, 133 S.Ct. 1552, 1560 (2013) (observing that “because an individual's alcohol level gradually declines soon after he stops drinking, a significant delay in testing will negatively affect the probative value of the results”)… Accordingly, we conclude that the primary non-law enforcement objectives of IO–52 testing—personnel management of and public confidence in the NYPD—are properly deemed “special needs” in that they are incompatible with the general warrant/individualized suspicion requirements and, further, that the mandatory, narrow, and specific nature of IO–52 testing greatly ameliorates the mischief that the warrant/individualized suspicion requirements were designed to prevent.”

“To summarize, we conclude that the record compels the following conclusions:

1. The immediate objectives of IO–52 testing are personnel management of, and public confidence in, the NYPD.

2. The identified objectives qualify as “special needs” for purposes of Fourth Amendment reasonableness review because they are distinct from normal law enforcement concerns and incompatible with the warrant and probable cause requirements for law enforcement searches.

3. The aforementioned special needs greatly outweigh officers' reduced expectation of privacy with respect to alcohol testing at the time of any firearms discharge causing death or personal injury, thereby rendering warrantless, suspicionless IO–52 testing constitutionally reasonable as a matter of law.

The district court's award of summary judgment to the NYPD on plaintiffs' Fourth Amendment challenge to IO–52 is AFFIRMED.”

Published a fiction novel about IA/OPS

For the past year I’ve been busy writing a fiction novel about Internal Affairs cases, along with my full schedule of training, audits and expert witness work.  This book has allowed me to discuss issues in a way that’s difficult when I’ve written professional journal pieces.  It’s pretty raw and rather uncensored.  I see that it’s already on the Ebook sites.  The print version should be out next week and it’ll be available from patc.com.

Broken Badges: cases from Police Internal Affairs Files

IA/OPS functions get a pretty bad rap in the movies and TV.  Maybe this can help those of us who know the value of our task and respect the stakeholders – citizens, cops, agency and the community they all have to live in.

If you like what I’ve been doing these past several months on this blog, I think you’ll like the book.  A quick, engrossing read!  And if you like it, give it a good rating.

Works' comp: our forgotten loss!

Last week I participated in the first annual Risk Management Seminar for the Legal and Liability Risk Management Institute in Indianapolis.  This is the company for which I do my consulting.  We brought risk managers and insurance pool personnel in for three days of presentations.  I did two sessions.  The first dealt with auditing special operations units and the second addressed how IA/OPS operations can predict the health of a police agency.

A surprisingly interesting presentation was done by Mark Filburn, KY League of Cities, concerning law enforcement workers’ compensation.  It’s the cause of more insurance loss than excessive force claims.  Unfortunately, we don’t spend enough time or attention to workers’ comp.  Consider the loss of personnel time and the overtime necessary to overcome this loss. 

I was surprised to find out that the 5 most common instances of workers’ comp in law enforcement were slip/fall not involving arrests, training injuries, motor vehicle accidents mostly during backups, strains during foot pursuits, and injuries related to arrest incidents.

Mark demonstrated the significant importance of using a safety officer during all training practical programs, not just those on the firing range. In slip/fall cases one thing that could assist in reducing the occurrences is wearing better shoes.  Shoes with a good griping sole and ankle supports.  Wearing seat belts and controlling backups would significantly reduce injuries in vehicle accidents.

I don’t think we pay enough attention to the workers’ comp issue in law enforcement.  We simply allow the officers to write out their injury reports and sometimes a supervisor has to lay another one on top of that.  But rarely is there a reasonable investigation done to validate the injury and the job relationship.  Then when the employee is off they’re often forgotten after a couple of weeks.  Not feeling loved or appreciated, the employee just looks for a way out and some extra money and, hopefully, good medical coverage.

What might be a reasonable answer is to expand the focus on what we now use for fleet safety and shootings.  We do a pretty good job evaluating whether the traffic accident was preventable and then what was necessary to remediate the employee.  We do a good job similarly with officer involved shootings.

What if we expanded that concept of the safety committee to include worker’s comp injuries and other uses of force?  Require this committee to designate a buddy for the injured employee to maintain continuous contact.  That might help the employee feel loved and want to come back to work even earlier.  It seems like an easy win-win!  We should be able to get some valuable information to reduce our overall losses from workers’ comp injuries on top of that. 

Rambling musings

I’ve been doing this blog for 9 months now.  I’ve seen that it has received nearly 1500 hits and have heard that several of you regularly access it.  What I have found interesting is that I’ve never had any comments.  Maybe the site from Google doesn’t make that convenient or it could be that nobody has been stimulated to that extent.  Regardless, I would appreciate hearing from you either through the site or directly to my Email: loureiter@gmail.com.  Thanks

Here are a couple of rambling muses:

I was at the AARP Convention this weekend in downtown Atlanta at the Georgia World Congress Convention Center.  Sure, I’m old, but I still learn each time I attend one of these.  But, my comment regards an issue with law enforcement at the Center.  I noticed a strange black plastic box in one of the large planters alongside the roadway at the entrance.  Being on somewhat high alert these days I mentioned it to a young Georgia State Trooper directing traffic.  He thanked me and I left, but I noted that neither he nor the Center officer went over to the suspicious package.  The next day the ‘suspicious’ package was in the same place.  This time, however, I looked closer and it turned out to be an exterminator mouse/rat trap.  Sure, I was somewhat amused and a trifle embarrassed.  In retrospect I imagine the Trooper had a decision to make: should I tell this guy he’s a dumb ass or should I simply say it’s a mouse trap.  Either one would have been okay.  Not saying anything could have resulted in another person making a big stink.  Like the Fire Chief I mentioned in one of my last posts…”Be Nice!”

My wife had a similar experience with a different ending.  Marilyn, who is an attorney and was a certified officer and reserve deputy in Florida, noticed a K9 unit outside a restaurant she and one of our daughters went into.  It was one of those hot and humid days in Northern Georgia.  She asked the deputy whether he had any concern about his dog partner out in the SUV.  The deputy pulled out a smaller device and showed her that he could see the vehicle was running, what the inside temp was, and how long he had been away from his partner.  She and I didn’t know they have these neat devices to protect their partner.  A simple explanation resolved the issue.

Another incident she had with a Georgia State Trooper shortly after we moved to George occurred during a traffic stop.  Marilyn tends to have a lead foot.  She mentioned to the trooper that she had been a deputy down in Florida.  He politely asked if she was carrying.  Marilyn told him she wasn’t and didn’t know the carry laws in Georgia.  The Trooper told her it was rather easy, if you didn’t have a gun you could go by any police station and they would give you one.  Of course he was joking.  Surprisingly she didn’t get a ticket.  Blondes and cops, what can I say?

You must feed your brain now and then.

Here I am in Santa Claus, Indiana.  It’s really in the middle of nowhere amongst cornfields already harvested but waiting for the rigid, orderly stalks to be removed.  This is the 4^th annual meeting of the Emerson Society Summit.  Bill Westfall, an old friend and training colleague, has again gathered 35 police professionals and budding young up and comers in the public safety field from all corners of the country to this idyllic neighborhood for a weekend of sharing and growing professionally.  As Ralph Waldo Emerson, who used to have these meetings with his closest colleagues, would say, “Tell me, what has become clear to you since we last met?”

This is a rare meeting where everyone can share ideas, new directions, network with other professionals, and maybe ask for help with some new challenge or discuss a heartache of a problem left unsolved.  It’s casual with absolutely no distractions!

Alan Brunacini, retired, longtime Fire Chief of Phoenix, was the featured presenter.  He talked about his opportunity to change the culture of his 2,000-person agency.  The turning point for him was when he realized that “being nice” and consumer-oriented was as important, if not more so, than efficiency and effectiveness in firefighting.  On a sad note, he acknowledged that his agency reverted to its past autocratic ways almost before the door hit him in the ass on his retirement.

A young Connecticut State Trooper who was a lead investigator in the Sandy Hook school shooting made a passionate presentation.  This tragedy forced every law enforcement officer even indirectly involved in this investigation to face personal conflicts.  He strongly made the point that everything anyone did during this investigation was prefaced with the thought, “What impact will this have on the survivors.”  What the police might have thought was important for the investigation was really not that significant when considered against the impact it might have on the surviving family members.  Troopers and police officers were assigned to each family who lost someone in this tragedy.  While this may now become the norm for agencies experiencing this type of tragedy, he cautioned us to ensure that these uniformed men and women need to be prepared for the psychological trauma they themselves will face. 

Pat Gallagher, my old best friend for the past 36 years, forcefully proposed that our police agencies must service two communities – the external one and the community within our agency of our employees.  He and several other presenters stressed the point that we need to reexamine our basic beliefs in what we are in business for.  Are we just law enforcers, or are we guardians of the peace and helpers for those who need our help.  This is a significant cultural change.  Can everyone in your agency define what the culture of your agency is and what direction it’s going?

Pete Sarna, another old friend and longtime retired Captain from the Oakland CA Police Department, harped on the need to seek purpose in what we’re doing.  Are we doing the right thing at the right time?  He lamented the problems perplexing his old agency, but knows it was foreseen and not addressed when it could have been. 

A young trainer from Raleigh Police Department talked about the need for situational training based on learned habits.  He asked that at the conclusion of a field incident how would you answer the question, “Was I good or just lucky?” 

This two-day meeting of aged and new thinkers in law enforcement and public service was reinvigorating for even an old-timer like me.  But it’s something that should be replicated throughout our ranks.  We can never sit contented or rest on today’s successes or our past laurels.  We need to learn from our histories and our shared experiences.  Tomorrow is here and it’s time to build each person’s and each agency’s legacy.  How about yours’? 

Is decentralizing IA/OPS a good idea?

Last week I taught an IA seminar in Kansas City.  By the way, they have one of the finest police training facilities you’ll find these days.

One of the students offered a suggestion that I quickly gave a knee jerk reaction to and dismissed.  But the thought intrigued me as I chewed on it for a few moments. 

His suggestion was whether it might be beneficial to assign an IA investigator to decentralized police stations as a local resource.  It may only be practical in an agency with more than one station or maybe a statewide agency.  Progressive agencies today do that when they insert a local prosecutor into the station.  In that case the attorney helps with search warrant applications, legal questions and provides some roll-call training.  Some agencies currently have a victim advocate in-house who can help with difficult emotional cases including child sex, rape and domestic violence.

Now what would an IA rep in the station house do?  You might rush to say it wouldn’t work because s/he would simply be considered a snitch.  In some agencies that might be true.  It would be a constant challenge for the IA investigator to build trust and show that IA expertise can be beneficial.  But, s/he could become a valuable resource for local supervisors and the station management.  The vast majority of citizen complaints are usually delegated to the field sergeant.  The IA rep could be a resource to help that supervisor and could even assist with a critique of the completed investigation.  Local station managers are often the ones who have to review administrative investigations done by IA and make recommendations.  The local rep could assist and the final product will most likely be better.  The IA investigator assigned to this local station would still carry a normal workload; just do it at another location other than the IA/OPS office.  This might encourage the investigator to make more face-to-face calls to complainants and civilian witnesses rather than wait for them to come to the central office or conduct them on the phone.  It could also cut down on the overtime or loss of field time by not having agency witnesses and targeted employees going to the main administration building.  

I must admit that I find this an interesting concept.  A couple of years ago the Texas DPS began a program of decentralizing its IA process.  It trained sergeants to conduct IA investigations and assigned a cadre to each of its seven district areas throughout the state.  I’m not sure how the DPS program has worked out and it seems to be still in the developmental stage.  NYPD has integrity lieutenants in each precinct house who are supposed to do checks, audits and other types of oversight; but it appears to be less effective and they spend most of the time with trying to ferret out accepting gratuities, checking on overtime usage and officers who are sleeping on the job.  New Orleans recently has placed compliance officers in each of its stations to do some IA type tasks as well as audits and training.

Maybe we could take this decentralized IA/OPS concept a little further and even use it in an agency with a single station.  Too often the IA/OPS function is either in some office down the hall from the Chief or in some outside location away from the station.  The only time the uniformed cops see someone from IA is when they’re under the gun either as a target or witness officer. 

We’ve continuously worked to get detectives to visit uniformed officers’ briefings and roll calls.  The idea was they could share current crime trends, offer some suspect information and answer any questions.  Unfortunately, most of those attempts have failed.  We can all argue why and come up with a bunch of reasonable answers!

What could regular visits to uniformed cops by an IA investigator do?  One is that the uniformed cop would now see the investigator without being under the gun.  The investigator could discuss completed administrative investigations where the work of the officers and the IA investigation ended up clearing the accused employees.  Or the IA investigator could grab some case from the Internet where an officer got jammed up in another city and use that as a catalyst to discuss agency protocols and safeguards.  IA gives an investigator valuable experiences that most cops never get.  Sharing these can only make everyone a better cop and further professionalize the police agency.

It’s an intriguing concept; something we should not rush to kick aside.  At least it’s something to chew on….

Oversight needed or we may have too many Rambos!

I imagine many of you saw the YouTube tirade of the Chief of Gilberton, PA.  After his profanity laced tongue lashing, he shows himself firing three different types of fully automatic weapons.  The interesting part of this is he’s the only cop in this borough of 769 people.  The news articles say he bought the weapons with his own money and donated them to the town.  The town council acknowledged that they approved this donation.  An unanswered question is, “What the hell does a town of less than 800 people and one cop need with this armory?”  Other unanswered questions are whether the Chief has been trained and certified to use these weapons and whether the town has any written policy covering their use.  You and I know that the answers are no and, again, no! 

A few years ago I conducted an audit of a 40-officer police department in Georgia.  The first thing that struck me as unusual when I initially visited the agency was the large black van with ‘SWAT’ painted on the side positioned the parking lot in front of the agency so everybody passing by could see it.  I later found that the Chief had also taken possession of an APC (military armored personnel carrier).  I asked him whether it had ever been used.  “Not officially,” the Chief answered.  What did happen is a couple of his officers on the graveyard shift took it out one morning and filmed themselves riding in it which they then posted on YouTube.  Again, training and policy was lacking.  No one from City Hall apparently had objected!  This agency had the use of the County SWAT unit by just a phone call.

I’ve referred you to an interesting site for constant updating of what’s happening throughout the country in the arena of police misconduct – PoliceMisconduct.net.  The CATO INSTITUTE runs this site.  Another publication of this group is the 2006 report “Overkill: The Rise of Paramilitary Police Raids in America” by Radley Balko.  You can download it from this site.  You might not like the subject matter, but you should be aware of this line of questioning occurring throughout the country.

My good friend Harry Dolan, retired Chief of Raleigh, NC, gets on his soapbox when the issue of officers wearing BDUs comes up.  “Now they want to wear them black pajamas!” he retorts.  I remember the fight by field officers to eliminate wearing police hats during the 1970s.  But when baseball caps suddenly appeared everyone wanted to wear those. 

Now there’s a need for all of these police tools and tactics.  The problem, however, is that often they are done without some detailed thought.  What’s the problem these tools and tactics are going to resolve?  What’s the risk management potential?  Do you have reasonable written policies, training and supervisory oversight?  Until these questions can be answered reasonably the Chief, city officials and the community being served must say no…or at least slow down the process. 

Sexual misconduct involving on-duty officers

I continuously recommend that anyone involved in Internal Affairs matters should daily check out a website: policemisconduct.net.  This site was taken over by the CATO Institute about a year ago.  Every day it uses twitter to capture news reports concerning police misconduct.  Every day there are 7 to 15 incidents summarized in a one or two line narrative with a link to the actual news story and/or video.  Most of these incidents are investigations, arrests, pleas or convictions of officers for various acts of misconduct.  Unfortunately, it seems like sexual misconduct is the most frequent.  What are some of the lessons that can be learned from this nationwide perspective?

            First, it is not an infrequent event.  The age of officers involved does not seem to be a significant factor with senior officers being charged as often as newer officers.  The size of the agency also isn’t a factor.  Small, medium and large agencies as well as urban and rural are commonly involved.  One common denominator appears to be the victim – vulnerable women.  Most of the time it’s a male officer and the victim is female.  Occasionally it is a male on male incident.  Rarely do these accounts involve a female officer.

            What do I mean by the victim being a vulnerable woman?  In some way the authority of the officer is used to facilitate the sexual encounter.  It might be a traffic ticket, DUI arrest, heavily intoxicated person, drug addict, street prostitute, suicidal person or student.  Of course there are the cases involving police groupies.  Probably the most despicable is the victim of domestic violence who is consoled by the investigating officer who later flips it into a sexual relationship. 

            I’m sure that some of the officers would simply contend that these are consensual encounters.  That’s from the officer’s viewpoint.  The fact that the victim doesn’t scream, fight or protest doesn’t mean that it’s not an abuse of authority by the officer.  The officer has control of that woman.  Any subsequent sex is not consensual!

            The other common element in these occurrences is that rarely do they involve just one victim.  Once the incident is out of the bag, more victims commonly come forward.

            What concerns me the most is that this misconduct is rarely done in isolation.  Others on the police or sheriff department know or suspect what’s happening.  During our agency audits we frequently know within days who the “skirt chasers” are.  If those of us on the audit team can learn that in just a couple of days, why don’t those on the department step forward?  When this misconduct is discovered, it’s a black mark on everyone in the agency.  There is commonly a breakdown of field supervision when the officer can engage in this type of misconduct on duty and not become noticed.  The supervisor is not looking or is simply not out on the street where s/he should be.

            This is something that should not continue!  This is a scab on professional policing.  It’s time to stand up and be vocal.  It’s time to use real life examples during basic and in-service training, rather than philosophical points of view.  This is the dirty side of law enforcement and it can be stopped!

Code of Silence, Part 3 of 3

I’ve been remiss in not writing the promised Part 3 of my series on Code of Silence.  Whether the Code exists or doesn’t in your agency, the potential is prevalent in all police agencies. Are there some things you should look for that are indicators that the Code is alive and well in your agency?

Many years ago I was testifying in Boston Federal Court.  An issue was whether the police agency had a Code of Silence and was this a moving force causing the injury to a suspect.  The judge was unsure whether he would allow me to testify.  So he conducted a voir dire hearing asking me if I had some methodology to determine the existence of the Code of Silence.  Since that time I’ve enhanced those points of my methodology.  Let’s look at some of those points.

Is what other officers say they were doing at the critical moment contrary to reasonable practices?  An example would be the booking sergeant saying he heard some form of scuffle, but he was busy doing paperwork.  You and I know that if you heard something like that you’d bust your ass to get out there and assist your fellow officers.

Should the incident have alerted a reasonable officer and focused attention to the incident?  At the end of a pursuit when the suspect stops or crashes, the focus should be on the suspect and his capture.  But so often this is the time when some officer may allow the adrenaline of the chase to obscure his decision to use force.  This is the time for the noninvolved officer to restrain him; not say his attention was diverted by some noise from another direction away from the incident.  Looking the other way is not reasonable!

Was the misconduct so obvious that an officer would have had to shut his/her eyes or ears not to become aware of it?  The prisoner torture of suspects by Detective Burge in the basement of Precinct 2 in Chicago is something everyone in the station should have been aware of.  Yet, no one came forward until years of wrongful convictions were reversed.

Were officers in a position to have seen or heard what occurred but deny any knowledge?  An incident like the infamous Rodney King beating is a good example.  It was amazing how many of the 17 officers ringing the incident didn’t see anything or couldn’t recall what occurred.  Remember many officers may avoid answering the questions with any degree of specificity, rather than deny!

The development of cliques can cause insulation and protection.  We don’t have to look far to see this influence of officers working close together causing them to clam up and either engage in misconduct or look the other way.  Special enforcement units recently in Chicago, Philadelphia, Atlanta, Tulsa and Los Angeles are recent examples.  It can also happen when shift work becomes cast in concrete.  Fire departments are a prime example of this where teams work together for years.

The retaliation of officers who do come forward.  In the New Jersey State Police a group calling themselves the “Lords of Discipline” preyed on troopers who came forward with information about the agency profiling motorists.  The probationary Officer Batt, in 2000, was the person who first brought forth information about the misconduct of four officers calling themselves the “Riders.”  His information was what caused Oakland to be placed under a consent decree and now faces the possibility of the Federal Court putting the agency under receivership; something we haven’t seen before.  Yet, Officer Batt, the young officer who did the right thing, faced so much retaliation that the Chief had to get him a job with another police agency.  Unfortunately, these are not isolated incidents!

And lastly, we have something I call the Blue Shield.  These are things police agencies do that insulate officers who engage in misconduct from being held accountable.  When agencies purposefully conduct inadequate investigations, fail to discipline for misconduct, and fail to hold officers accountable when they give false and misleading statement during administrative investigations is a common practice of an agency doing the wrong thing.  Some agencies accept the lack of a criminal charge for the officer’s act of misconduct as an excuse to not conduct the administrative investigation.  Most agencies salivate when a malignant officer elects to leave the agency rather than face discipline and the failure to hold the officer accountable allows the officer the ability to just go to work for some other agency.  And, lastly, the lack of transparency by agencies regarding administrative investigations and employee discipline.  This secrecy erodes public trust and allows officers who are disciplined to put their own spin on it rather than have their case used as an example to others in the agency.

All I can leave you with is this is a continuing pursuit you must engage in to develop a professional police agency.  This pursuit is essential to create an environment where every member of our agency can be proud of the service provided.  This environment allows employees to do the right thing with pride and a true belief that they will be supported and honored.  I always end my class on the Code of Silence with a question, “Does anyone in the class know of an officer who has received the Medal of Valor for blowing the whistle on police corruption?”  I’m still waiting for someone to give me an example.

Is it okay for cops to lie?

Is it okay for cops to lie?  Many years ago when Bill Bratton was the head of the NYPD he used the phrase “testilying” to describe when officers bend the truth when testifying.  We’ve come a long way since then.  Today most Chiefs and Sheriffs and their agencies take the stand that “if an officer lies, he dies.”  Lying in any context is no longer acceptable and normally results in termination.  Even if lying or “bending the truth” is just to get the bad guys off the streets under the misguided concept of “noble cause.”  Lying is lying!

But what has caused this newfound philosophy in law enforcement?  The guiding U.S. Supreme Court cases of Brady and Giglio are old cases decided in 1963 and 1973 respectively.  These cases said that any prosecutor had to turn over “exculpatory evidence” and “credibility evidence” to the criminal defense attorney.  In other words, any evidence that might help the defendant or caste doubt on the credibility of any witness the prosecution uses during the trial had to be disclosed if the prosecutor knew about it.

These cases, however, had minimal effect on law enforcement until the mid 1990s.  What changed?  Really there were five things.

First, in 1995, the Supreme Court decided the case of Kyles v. Whitley.  This case changed the requirement on the prosecutor.  In the prior cases the prosecutor was held accountable if s/he knew of the exculpatory evidence.  Kyles now required the prosecutor to make an affirmative search for this evidence and turn it over to the defense.  As a consequence it began with Federal prosecutors who now requested “credibility/Giglio” material on any of our officers who were scheduled to be witnesses.  Today most prosecutors make this request.

During this same period of time the Innocence Project got started.  My friends Barry Scheck and Peter Neufeld attacked the prosecution tactics used in capital cases such as homicides and rapes.  Most of these cases used DNA and other evidence that was hidden from the criminal defense by prosecutors and police.  The cases pretty much say the obligation is on the State and that means both the prosecutor and the police.

A third issue was the development of what has been termed “Brady Bad Boy” lists.  Prosecutors have put officers on this list and generally don’t present cases when they are confronted with an officer who has a “credibility” problem.  Most of the time it is founded on evidence that the officer has been disciplined for lying or false reporting.  If the prosecutor has this list, so does the public defender and the criminal defense attorney.  If an officer can’t testify in court, what good is s/he?

While law enforcement has adopted a very strict stance on lying, the courts and arbitrators aren’t as firm.  It seems that courts, arbitrators and civil service bodies consider some as “big lies” and others as “little lies.”  Big lies are those associated with an officer’s testimonial record; arrest reports, probable cause affidavits for warrants, and court testimony.  Little lies concern false statements on agency procedural matters such as sick usage, damage to police vehicles, or failure to follow some internal policy.  Of course this presents an agency with the problem of what to do with the officer who it has declared as a liar, has been terminated, and yet now has been returned to the agency by some decision of these external bodies.

The fifth issue has surfaced only in the last few years.  Officers are now being criminally prosecuted for false reports or testimony.  In the past the prosecutor might simply dismiss the case and let the agency deal with the misconduct administratively.  A lot of this outcome has surfaced with the proliferation of surveillance cameras.  These images may refute the version officers’ use official reports or during testimony.

Now what does this mean for law enforcement?  My next blog report will discuss what we must do and how to develop reasonable policy to cover this issue.

When does a club become a gang?

When does a club become a gang?  This is a question many police administrators are asking themselves.  In the old days of the Electra Glide and Gold Wing, cops would tour with the Blue Knights or similar types of motorcycle clubs.  In those early years the cops drove their black and whites police cars and they would deal and tangle with the 1% ers with choppers and hogs ridden by the Hells Angels, Outlaws, Mongols, Pagans, Bandidos and similar criminal motorcycle gangs.

Today that line appears to be blurred.  There are law enforcement only, male only, motorcycle groups throughout the country with names like the Iron Pigs, Defenders, Regulators.  They fly their colors on their leather jackets or vests in the traditional three-piece emblem with a top and bottom rocker.  It’s difficult to distinguish them from the 1% ers without the occasional flash of a badge on a belt or the obvious gun worn.  With the Federal law these active and retired officers can carry guns anywhere and in any state.

In December a chapter of the Iron Brotherhood in Arizona was involved in a fight in a local bar.  Arizona DPS investigated this incident and the prosecutor is now considering charges including the cover-up and obstruction.  Several ranking police officers have either retired or resigned.  Multiple police agencies at the federal, state and local level are involved in conducting IA investigations of their officers.  One deputy chief who resigned is reported in the local newspaper saying that “the clothing members wore should not be used against them.”  Well, duh, of course it will!  If you look like a gangster, act like a gangster, you’ll be portrayed to be a gangster!

I ask a question in my Internal Affairs training seminars that I conduct every month throughout the country “Is this some sort of violation?  Is this conduct unbecoming?”  It always provokes a healthy discussion.  There seems to be no simple answer.  Most say it has the potential to create trouble for the officer and the agency where he works.  Everyone acknowledges that this has the potential to create a bad image of police officers with the general public.  Of course, isn’t that a basic element of conduct unbecoming?

Even if the officer is thrust into a legitimate use of force, or deadly force, will this garb be used against him?  Of course it will!  The prosecutor will drag that vest or jacket with the offensive colors in front of the jury as much as my old friend Johnnie Cochran did with the infamous glove in the OJ trial.

In the end it boils down to what ethical values are our officers living by?  It’s not a generational issue.  It involves both young and old.  Actually most of the officers involved are senior officers.  Officers who should know better.  But we hear comments like “I’m off duty.  I can do what I want.  I shouldn’t be judged by my friends or how I look.”  But you are.  You’re blue 24/7 whether you want to be or not!  You will be judged – fair or not!

Economic misconduct by cops

            I was honored to have been able to serve under Chief Bill Parker at the LAPD.  He truly is credited with changing the culture of the LAPD, during the late 1940s and 1950s, from an anachronistic, corrupt police agency to a professional one.  He was a strict disciplinarian.  Theft was theft whether it was $5 or $50,000.

            Theft in law enforcement seems to be a recurring incident of misconduct these days.  It seems to have become even more prevalent since the economic downturn in 2008.  I wrote an article for the PATC eNewsletter back then signaling that it was time for every agency to refocus its efforts to prevent and/or uncover this abuse.

            What kinds of thefts are we seeing these days?  Chiefs, Sheriffs, officers and trusted clerical personnel stealing from the evidence room, selling police evidence/equipment on EBay, and misusing police funds set up for official business.  Police union officials are misusing funds.  Police officers entrusted with funds set up for killed or wounded officers are caught using these for their own purposes.  Manipulation of time sheets, overtime, and paid detail work with the employees often triple dipping – working one job yet getting paid from two or three different sources for the same hours worked.  Vice and narcotic officers taking money based on alleged payments to nonexistent informants.  Theft by special operations units during high-risk raids and warrant service.  Employees misrepresenting financial incomes and swearing under penalty of perjury to obtain mortgages.  Defraud linked to misuse of the workers’ compensation program. 

            What seems to be some of the driving forces for this misconduct?  The most common appears to be that the officer got used to having a certain level of income with constant overtime and paid details.  They spent to that level.  When the economy tanked these sources of income dried up.  But their mortgages, car/boat payments, and credit card bills didn’t!

            Another common factor seems to be gambling addiction.  They get themselves so overloaded with debt and hope that gambling more will get them out of it.  The gambling establishments don’t build those megaresorts on winners!

            Continuing economic misconduct is uncovered in the various real and sting operations for protection of drug dealers and gamblers.  There also have been several instances of steering traffic collision victims to favored repair shops for kickbacks to the officers.  

            And, of course, there still is the pressure of substance abuse; alcohol, drugs and steroids.  Steroid use can run as much as a $1000 a month.

            So what should we be doing in our agencies?

            First, make roll call/briefings and in-service training more realistic by using actual economic misconduct incidents.  Do a Google search or use a pretty comprehensive site – policemisconduct.net.  Get examples to use with your people and show them that this form of misconduct will also end up in significant jail time.  Yes, we need to remind them that theft is wrong!

            Second, ensure that the auditing of special and operating funds is real.  Overtime and paid details can still be done in-house.  These realistically should be done monthly, but quarterly would still be acceptable.  Look for end of watch arrests to pump up overtime.  Consider a sudden increase in traffic ticket writing as a potential attempt to increase court time.  Consider whether teams or watches are putting excess numbers of officers on arrest reports to increase potential court time.  Someone involved in the task should not do the audit of this usage.  Special funds, like confidential monies, community action, charitable fundraising, youth programs and employee union finances can only be done by an outside approved accounting firm to remove any stigma of impropriety.  Most of these types of audits are done on an annual basis.

            Third, don’t overlook the evidence/property room audit.  Where we get into trouble is guns, narcotics and money.  Too often an agency allows this audit to be done by the employee responsible for the task.  It doesn’t work!

            Fourth, everyone in the agency must keep their eyes open and ears attuned to changes in fellow employee behavior.  You’re not snitching, you’re helping everyone in your agency if you identify this type of misconduct early on.  Look for unusual spending sprees.  Which employees are hogging OT or paid details?  Who’s suddenly become stressed and talks more about money problems? 

            Fifth, consider the use of annual financial disclosure reporting.  I know this is controversial in law enforcement agencies, but this is common in all sectors of the private employment field.  Nearly every elected official has to submit these types of oversight forms.  It would be unrealistic to require all police employees to do this.  But, those in high profile, vulnerable tasks and assignments known to present temptation should be required to submit these pretty much innocuous forms. 

            And lastly, train your IA/OPS investigators how to best conduct an investigation of economic misconduct. These are significantly different than most of our other misconduct investigations.  My good friend Steve Rothlein wrote “Hidden Assets” regarding these types of investigations and you can access this at patc.com.