Are cops the real targets?

The recent murders of cops in NYPD, Tallahassee and central Florida are tragic.  In each incident, the officers were hopelessly ambushed without any warning.  These officers were at the mercy of their killers.  The murderers didn’t know these cops. They were just uniforms.

But the common denominator in all of these was the killer was mentally ill.  Any cop will tell you that they regularly have to deal with the mentally ill person, the suicidal person, and the drug user who hears ‘voices,’ wants to die, or refuses any help offered.  And then we have to acknowledge that our detention centers, jails and prisons have now become the only governmental facilities to place these persons who can’t function in society.  Heck, they have trouble functioning in these lockdown places.

I refute that these are focused attacks on police officers.  These are tragic, strategic attacks on our government.  Cops, unfortunately, are the most readily observable representatives of the government. The recent protests in cities throughout the country have decried the role of the prosecutor in police fatal shootings.  Yet, attacks on prosecutors have not occurred.  Prosecutors aren’t as visible as uniformed cops.  Remember, most of these murderers have harmed or killed loved ones, persons who cared for them, or people they associated with before they set their sights on cops.

Where is the hue and cry for mental health?  Who does not have someone in his or her extended family that is mentally ill?  Who knows of anyplace with beds for these persons of diminished capacity who have no money for the private facilities in Malibu and the sex rehab farms used by the rich and ‘famous.’  They no longer exist! 

I would suggest that law enforcement and police unions focus on the real problem we’re facing.  What’s occurring now in the police blogs, emails and protests is simply driving the wedge between those of us in blue and the general public and elected officials.  Sheriff Tom Dart of Cook County IL. appears to be a lone public voice in this growing problem.  We in law enforcement have to rise up and lend our voices to this problem that isn’t going away.

The U.S. Supreme Court will address this problem in the coming months with the case of Sheehan v. City/County of San Francisco.  It deals with a police shooting of someone diagnosed with mental illness.  Who know the direction will take and what further implications that might pose for us in law enforcement?

Five issues that might protect you from a 'Ferguson."

“Far too much criticism has been hurled at the police and far too little understanding of the difficulties of the police work prevails.  This criticism and lack of understanding has resulted in alienating the police from the public, so that they go about their work with scant consideration of the public just as would any other group of people who were criticized unintelligently.  At the present time when strenuous efforts are being made by many police departments to increase their efficiency, it is ungracious to dwell on the inefficiency of the police in general.” Sutherland, “Criminology,” 1924

“In America, on the other hand, the student of police travels from one political squabble to another, too often from one scandal to another.  He finds a shifting leadership of mediocre caliber – varied now and then by flashes of real ability which (sic) are snuffed out when the political wheel turns.  There is little conception of policing as a profession or a science to be matured and developed.  It is a job, held perhaps by the grace of some mysterious political influence, and conducted in and atmosphere sordid and unhealthy.  It is a treadmill, worked without imagination or aim, and with little incentive except the desire to keep out of trouble…We have, indeed, little to be proud of.  It cannot be denied that our achievement in respect to policing is sordid and unworthy.  With all allowance for the peculiar conditions which make out task so difficult, we have made a poor job of it.” Fosdick, “American Police Systems,” 1915

And here we are now, nearly 100 years later, with Ferguson and similar accusations from a wide range of public and political fronts.  It appears the outcry may have legs.  Local and national study commissions are being proposed.  What we do will be closely scrutinized. 

Now is the time each law enforcement agency should take stock of critical areas and determine whether there is room for improvement, need for corrective actions, or a sense that you’re reasonably secure.  There are five (5) specific areas you need to assess to ensure your comfort.

·      Protocol for handling force investigations, specifically officer-involved-shootings

·      IA/OPS quality control

·      PIO capability

·      Community policing and other outreach efforts

·      Recruitment strategy

Is your agency prepared to handle a major force or shooting?  It’s too late to put together a protocol after the incident happens.  You will fail and be made to look foolish!  Consider the dichotomy that’s occurred in the past few weeks.  Some force incidents have occurred and there has been no turmoil in those communities.  While other agencies have created their own problems with botched up investigations or prematurely ruled the incident as in policy without a good grasp of the facts.  These latter ones are on the front page and on the local TV news.  What has yet to be challenged, other than during civil lawsuits or a federal investigation, has been our administrative review of these types of controversial incidents.  Can you reasonably support your analytical decisions?  If you have no formal review process, stand by for deserved criticism.  We all will have to become more transparent in this review.

When did your agency last conduct a quality control audit of your IA/OPS process?  Surprisingly, most agencies don’t conduct these types of essential audits.  The most vulnerable areas are the citizen complaint process, witness gathering, interviews, and, finally, the adjudication of the investigation.  An essential part of this process is whether you’re properly using ‘administrative insight’ when making that final adjudication…are you effectively selling your analysis with a narrative ‘rationale reasoning.’  (There are several articles written on this topic accessible from the PATC website and clicking on the IA tab.)

Is your PIO (Public Information Officer) prepared for this type of critical incident?  Most agencies are so small that this is left for the Chief or Sheriff or some other randomly selected person.  It’s too important a function not to have someone selected and trained to handle this task without embarrassing or creating mistakes that will come back and haunt your agency later.  Avoid at all cost a premature pronouncement without supportive facts.

Positive community outreach, even if it’s not officially referred to as Community Policing, will garner your agency that valuable commodity often called ‘social capital.’  It’s that bank account with your community that you can go to during troubled times.  Too many agencies rely on special officers or programs.  The best source of social capital, however, comes from your officers on the beat and investigators who regularly contact your crime victims.  Field officers need to get out of the cars and walk and talk and put away those cellphones.  Investigators need to spend more time out in the community and less time on the telephone.  Social capital is developed from a one-on-one relationship between community members and your employees.

And lastly, does your agency have a recruitment strategy?  Matt Dolan of PATC emphasizes this need.  Many people are pointing an accusatory finger at us and noticing that few police agencies are ethnically representative of the community being served and that most officers don’t even live in the community being protected.  Even those agencies that are aggressively pursuing minority recruits are having trouble achieving reasonable numbers.  It is a difficult, daunting task.  The only salvation your agency may have is to have a reasonable strategy that lays out your efforts, even though they may not be working.

Ferguson is a signal for introspection of local policing

Ferguson is more than simply one officer-involved shooting.  Either way the Grand Jury and prosecutor goes will not be satisfactory to one group or another.  But, this tragic police incident will be similar to others that crop up every 20-25 years and signal a time to reflect on the role of law enforcement in our country.  Each time we have gained from this insight, but unfortunately allow ourselves to slip backwards.

In 1931 it was the Wickershim Commission that plowed into political corruption and influence in local policing.  It looked at the undue influence of politics in policing, payment for getting cop jobs and promotions, and the affect of the ‘Code of Silence’ in shielding police misconduct.  On the plus side it heralded the beginning of merit systems for police throughout the country.

The late 1960s saw a glow across the country from urban riots.  The President Johnson Commission, Kerner Commission and eventually the Police Task Force Report of the National Advisory Commission on Criminal Justice Standards and Goals were national efforts to address societal and policing issues.  That latter work was really a precursor to CALEA (Commission on Accreditation for Law Enforcement Agencies).  A significant focus of these efforts was the handling of citizen grievances.  It ushered in the growth of civilian oversight efforts.  But it also improved training, created state POST and certification efforts, more effective ways to manage demonstrations and unrest, and collective bargaining for many police employees.

In 1991 it was the Rodney King incident in Los Angeles.  While many wanted national legislation to address ‘police brutality,’ what they got in 1994 was Section 14141 that allowed the Department of Justice to initiate ‘pattern and practice’ investigations of local law enforcement.  Again there were numerous local commissions that focused on police handling of citizen complaints and the ineffectiveness of civilian oversight.  One positive outgrowth was the movement to fully document police uses of force that demonstrated that use of force was not as widespread as most civilians believed.

So here we are now with Ferguson.  It has catapulted several issues to the forefront in communities across the nation.  The first issue must be the militarization of local agencies and the battle between foundational philosophies of are we ‘warriors’ or ‘guardians of the peace?’  Anyone actively involved in today’s policing has to recognize that we have to be prepared for the unthinkable.  But how many agencies that took advantage of the 1033 federal program and got armored vehicles, weapons and 12,000 bayonets (who has those?) actually vetted the acquisition with their local governing bodies and communities? 

A ‘warrior’ is someone whom a government creates to overcome, suppress and kill its adversary.  There are some police incidents that require a warrior mentality like a high-risk entry into a fortified location or a takedown of heavily armed criminals.  But the vast majority of a cop’s daily work is more designed for the ‘guardian of the peace.’  We may have forgotten to balance our training and direction to ensure that officers know the difference and when one is needed over the other.  As my good friend and retired chief Harry Dolan says, “Do we need officers doing routine patrol dressed in military BDUs and weighed down with the external combat vests?”  What message are we sending to the cop on the beat?

The second issues that Ferguson will address is ‘Are we capable of investigating ourselves?’  Wisconsin this year passed legislation that mandates that a group headed by investigators from non-involved agencies investigate every police-related death.  Hawaii passed a law requiring police agencies to report terminations of police officers.  Miami-Dade Police will now have all of their OIS investigated by FDLE, the state agency.  Philadelphia, Baltimore and NYPD have all taken steps to create more transparency in its investigations of allegations of police misconduct. And, yet, we don’t have reasonable national statistics on police related deaths of civilians.   

And the last area (there will be others brought out) is whether we can hire officers who are representative of the community being served.  That is a daunting task that good, well-meaning agencies have struggled with for many years.  The pool of qualified candidates is shrinking, particularly minority candidates, when you throw in arrest records and drug use. 

Law enforcement has survived other periods like Ferguson and we will survive this one too.  Hopefully we’ll come out better for the introspection and not allow complacency to drag us back for another national forum 20 years from now.

Introducing the new Facebook page "Internal Affairs Institute."

I’ve reached two milestones.  This blog has surpassed 6000 hits.  Last week we initiated a new Facebook site: “Internal Affairs Institute.”  This is intended to be a forum for a discussion of issues, questions, and trends in administrative investigations for public safety officers. 

The ‘Institute’ is an outgrowth of professional activities of the Legal and Liability Risk Management Institute of the Public Agency Training Council.  PATC currently provides law enforcement and fire service personnel with over 1000 seminars each year.  Many officers attend on their own nickel and PATC has strived to keep the cost and locations of these seminars to encourage that level of personal commitment.

LLRMI, on the other hand, has been active with risk insurance pools and provides technical support, policy development and agency audits for these customers.  We have on-going retainers with these pools in 14 states.  Three years ago we established the Internal Affairs Institute (ia@patc.com).  The Institute offers a national Certificate for IA/OPS Investigators/Supervisors.  Over 250 professionals have challenged the process successfully and currently have been awarded this prestigious award.

The new Facebook site “Internal Affairs Institute” will provide another link to the activities of PATC in this essential task for law enforcement.  With the recent events in Ferguson, the public and governmental watchdogs will further scrutinize this task and question our ability to conduct these types of investigations in an impartial manner.

I welcome you to visit the new Facebook page and “like” us if it meets your expectations.

A training experience in Mexico City

A couple of weeks ago I had an interesting experience of training the Mexican Federal Police along with some managers from municipal and state police agencies in Mexico.  This was part of an on-going professional training program facilitated by the U.S. State Department.

My first impression was the face of the Federal Policia.  This is a relatively new police organization begun in 2008 and now is reaching somewhere between 30 and 40 thousand strong.  It grew out the previous policing efforts of the Army and Navy.  I was invited to accompany the participants in this class to several demonstrations of the breath of the agency.  We went to its main facility and training site in Mexico City.  This was a sprawling, heavily protected campus.  Their special operations units were similar to our best.  They showed us their ‘crisis room’ where they monitor raids on narcotic and organized crime operations.  They regularly use their Boeing 727 and two Apache helicopters in these operations. 

They were in the process of recruiting and training a new 5000-officer unit called “Gendarmerie.”  These will be organized into units of 200, taken to local ‘hotspots,’ housed in four trailers and supervised by only three supervisors.  The claimed mission is to provide protection for the local merchants who face extortion by local gangs.  It could also be another attempt of circumvent the problems faced by less professional local police.  I think it could also prove to be a headache for the Federal Police in potential misconduct by these officers away from home, in a strange community, and with minimal supervision.

Another part of the orientation tour was a journey to what they referred to as the “Bunker.”  It is the country’s war room for natural and manmade disasters.  This large complex also housed their state of the art forensics lab.  They are creating some new and interesting approaches to this arm of policing.

I was able to conduct three separate training programs for different groups of managers of local and Federal police agencies.  The topic was Sexual Misconduct.  It obviously has no borders.  The groups were very attentive and lively in discussions.  One thing I did notice was the formality of the classes with all in business clothing including coats and ties for all of the men.  The first class had 125 participants and there was real time translation.  The other two sessions at the “Bunker” were not real time translation.  It was interesting that several members of even the local agencies were able to help out my handler in translation.

One thing that was apparent was that their disciplinary system is much more legal than ours.  Most of the managers from the Federal Police were attorneys.  They didn’t seem to comprehend the concept of bifurcating misconduct between a criminal versus an administrative approach.  They seem to favor going the criminal track.  The section I did on Employee Involved Domestic Misconduct and Fraternization obviously were totally new to them.  Or, at least, they hadn’t thought to address the inherent agency problems posed by these employee issues.

I had one late afternoon and evening free and took advantage of the time to walk amongst the Mexico City crowds.  I walked down through the business section I was staying at into the old town and to the Cathedral and plaza.  The crowds were similar to those in our major cities…just spoke a different language.  Contrary to the concerns of my wife, I felt comfortable walking and being immersed in this new location.

I hope to be invited back to continue whatever help I can give to this neighboring country of ours.  I truly feel they are trying to overcome some of the historical problems Mexican policing has faced.

What's the best way for cops to report and monitor 'stop, question and frisk' citizen encounters?

“Two police officers must pay a Milwaukee man more than half a million dollars for violating his civil rights by searching him without a legal reason and wrongfully arresting him, reports the Milwaukee Journal Sentinel. A federal jury determined that officers did not have a reason to stop and search the 40-year-old man outside his mother's home in 2012. With the verdict, jurors were essentially saying that Milwaukee police, like their counterparts in New York City, had used unconstitutional ‘stop and frisk’ tactics. The officers did not have ‘reasonable suspicion,’ the lowest level of proof required for officers to search someone, that the Plaintiff had not committed a crime or posed a threat, the jury found. ‘The jury believed the Plaintiff, and they sent a message that no police officer can stop a man and put their hands on him simply because he is black in Milwaukee,’ said the Plaintiff lead attorney. The verdict was the first in potentially dozens of civil rights trials alleging illegal strip and cavity searches by Milwaukee police. More than 60 people have sued in connection with such searches.”

Unfortunately, this case is not exclusive to Milwaukee.  The NYPD ‘stop, question and frisk’ Federal trial verdict is currently causing that agency to reevaluate its position on this tactic.  This type police encounter is also one of those that the U.S. Department of Justice normally focuses on during its ‘pattern and practice’ investigations since 1997. 

And it’s not just an issue for large departments.  Miami Gardens, FL, is facing a slew of lawsuits over an enormous amount of ‘suspicious persons’ stops, primarily of persons of color.  The street officers in this city have testified that these stops were the result of being pressured by command staff’s demand for statistics. 

For years police officers have been conducting stops of ‘suspicious persons.’  This dates back to the U.S. Supreme Court Terry case decided in 1968. On many of these stops the officers conduct some form of ‘cursory search’ or ‘frisk.’

Public Agency Training Council conducted a survey recently to determine aspects of this police practice and agency reporting requirements.  In just over a weekend, PATC received 1751 responses to this survey.

The overwhelming number (89 percent) said that their officers were trained in the legal and tactical aspects of stops of suspicious persons.  In reality it probably should be 100 percent as this is mandated in nearly all basic training curriculum.

There was a marked drop-off, only 25.1 percent answered ‘yes,’ in the agencies that stated that a specific report was mandated for each ‘stop, question and frisk’ encounter. Of those that stated they did require a report, 77.7 percent said that this report required the officers to ‘specifically articulate the elements of his/her reasonable suspicion.’  When it came to requiring a supervisor to review and sign each report the positive answers were only 54.4 percent. 

More alarming is that only 16.7 percent of all of the agencies that responded to the survey stated they maintained statistics on these encounters.

We could lose this valuable community safety tool if law enforcement fails to act reasonably in training, policy development, supervisory control and field implementation.  Consider the predicament law enforcement encountered on vehicle pursuits.  The courts ended up deciding ‘reasonableness.’  Many professional police officers, in fact, think that recent court decisions have seriously eroded the years of positive work done by law enforcement to limit or restrict pursuits.  Some would contend that recent U.S. Supreme Court decisions appear to allow police pursuits with few restrictions.

If we don’t take action on this issue, the U.S. Department of Justice and litigation may create an even higher standard of proof and conduct for these types of stops.  That could result in some officers simply not conducting these types of community protection stops.  Other officers might become so preoccupied with the legality of the stop that they will let down their guard and could lose their lives.

It’s ironic that on September 16^th of this year DOJ announced that it was providing $4.75 million to study five, as yet unnamed, cities.  The focus would be on “racial bias…that would collect data on stops, searches, arrests and case outcomes.”

So what does this say for law enforcement?

1.             Review training.  Most of law enforcement relies on regional police academies for basic training.  Each agency should evaluate the adequacy of that training and, if necessary, enhance the legal and tactical training on field interview and stops of suspicious persons.  This training must focus on the preparation of the reports and specifically the articulation of ‘reasonable suspicion.’  On-going, in-service training is essential and can be done easily by using free legal updates from sources such as the Public Agency Training Council and Americans for Effective Law Enforcement.

2.             Documentation.  We need to expand the breath of documentation on these types of stops.  These are seizures and we shouldn’t diminish that fact.  Consider what reporting we require when that stop ends up resulting in a physical arrest.  We require the officer to fully articulate the elements that lead to the development of ‘probable cause.’  A stop, question and frisk should result in similar documentation.  A one page check off report for demographic/physical description would be adequate if it also allowed sufficient room for the officer to fully articulate the specific elements of this encounter’s ‘reasonable suspicion.’

3.             Supervision.  Supervisors will be the key to an effective implementation of this new procedure.  Some officers may elect to simply stop making these types of proactive field enforcement stops, saying it’s just too much extra work.  Others may try to cut corners and make out a report only when the stop results in something else. Just like any police report, this report must be reviewed and approved by a supervisor.  It will be essential that the supervisor ensure that the officer does the proper articulation identifying the ‘reasonable suspicion’ for the stop.

4.             Quality control review.  At least quarterly the agency should conduct a quality control review by sampling these reports.  This should be done by a command level person, a representative from IA/OPS, and the agency’s legal advisor.

5.             Data collection.  Each agency should gather and evaluate the data from these stops.  Focus on the ethnicity and location of these stops and make a conscious analysis of what this might demonstrate for your specific jurisdiction.  We need to be proactive and be able to explain rationally when certain areas of your city are most active or when age and ethnicity might be challenged by outside advocacy groups.

Oversight isn't dead.

Committee of Seventy calls for more powerful Police Advisory Commission

  Posted: Thursday, July 31, 2014, 6:36 PM

Reacting to the arrest of six Philadelphia police narcotics officers on federal corruption charges, the Committee of Seventy on Thursday called for replacing the Police Advisory Commission with a more powerful and independent oversight body.
"Police misconduct has become an epidemic," said Ellen Mattleman Kaplan, interim president and chief executive officer of the nonpartisan watchdog group.
"Too many officers play by their own rules and are poisoning the integrity of the entire police force," she said. "It's not fair to the majority of officers who perform their jobs honorably. It has crushed the confidence of the citizens of Philadelphia."
Kaplan did not provide specifics about how a new agency would operate differently. She did, however, push for more money to fund the commission. Kaplan said the commission's resources, a $283,000 budget and a staff of five, seem small when compared with the District of Columbia's Police Board of Complaints, which has a budget of more than $2 million.

The current advisory board exists by executive order and was created in 1994 to offer civilian oversight of the Police Department. A proposed City Charter amendment to create a permanent Police Advisory Commission has languished in City Council since being introduced in 2012, Kaplan said. The current commission has subpoena power and can interview police, render opinions, and make recommendations, but it has no power to discipline officers. The police commissioner decides matters of discipline and can be overruled by arbitrators.
Kaplan said the existing advisory commission "has failed to accomplish its mandated mission to 'prevent future incidents of police misconduct and abuses of civil rights, reduce the amount of money needed to satisfy judgments and settlements based upon allegations of police misconduct, [and] promote public confidence in law enforcement.' "
Kelvyn Anderson, executive director of the commission, disagreed with that assessment but welcomed a "vigorous debate" about the agency and the need for increased external oversight of the Police Department.
"To say we've been completely useless is wrong," Anderson said, adding that the commission has been chronically underfunded and frustrated with its limited powers.

Chicago Police reverse longstanding policy on disclosure of IA files

Police abuse allegations finally go public

By Craig Futterman, Jamie Kalven, Jon Loevy and Flint Taylor July 18, 2014 8:04PM

We stand at a watershed in the long history of efforts to address patterns of police abuse in Chicago. On March 10, the state appellate court held in Kalven v. Chicago that documents bearing on allegations of police misconduct are public information. On July 11, the Emanuel administration announced that it will not appeal Kalven and that it has adopted a set of procedures for implementing the decision.

As the plaintiff and attorneys in Kalven, we engaged in extended negotiations with Corporation Counsel Steve Patton and his staff in order to settle the case. The Emanuel administration is to be commended. Not only does its new transparency policy conform to Kalven, in some respects it goes beyond what the decision requires.

This is real reform. It is important to understand why.

The documents at issue are: (1) the investigative files generated when a citizen files a complaint charging police misconduct, and (2) lists of officers who accumulated repeated complaints of abuse.

Two agencies handle police misconduct complaints for the city: the Independent Police Review Authority investigates allegations of excessive force, and Internal Affairs is responsible for allegations of corruption and a range of other offenses.

In case after case, we and others have challenged the adequacy of IPRA and Internal Affairs investigations. We have argued that the police department’s investigative system is broken and that this confers impunity on abusive officers.

Chicago Police Department data reveal that a small proportion of officers — officers who typically work together in groups — are responsible for nearly half of all abuse complaints. But the department has failed to investigate these patterns, leading abusive officers to believe they are above the law.

Beyond the harms to individual victims, this engenders pervasive distrust that greatly reduces the effectiveness of the police. A handful of abusive officers, if not held accountable, can alienate an entire neighborhood. As a result, the vast majority of officers who are trying to do their jobs do not receive the cooperation they need to prevent and solve crimes.

Until now, the city has fiercely resisted any and all efforts via the Freedom of Information Act and civil discovery to make public the identities of officers with repeated complaints and the contents of police misconduct files. From our perspective, it has often seemed to allocate more resources to maintaining official secrecy than to addressing the underlying problems.

The Emanuel administration’s new policy breaks with the past. From now on, the city will honor FOIA requests for police misconduct files, subject only to the redaction of private information such as the names of complainants and the accused officer’s address and Social Security number. If it believes a request is unduly burdensome, it will provide summary digests, detailed narratives of the investigation. Requesters will then have the option of asking the city for a subset of the requested files or specific documents they have identified within the files.

This policy will allow the public and the press to assess the quality of investigations and to identify groups of officers with a pattern of complaints. It will create incentives for investigators, knowing their work is subject to public scrutiny, to conduct rigorous investigations. And it will ultimately, we believe, move the department to address patterns of police abuse.

A significant reform in itself, the new policy facilitates an ongoing process of reform. It allows us to see what is not working and to engage in public discussion, unimpeded by official secrecy, about how best to fix it.

The purpose of the Freedom of Information Act is to ensure that citizens and the press have the information they need to perform their roles in our democratic society. The Kalven decision emphatically affirms that principle with respect to information about police misconduct. And the Emanuel administration has taken appropriate steps to implement it. This puts a powerful tool in our hands. It is up to us as citizens to make effective use of it.

Craig Futterman is director of the Civil Rights and Police Accountability Project at the University of Chicago Law School. Jamie Kalven is a journalist who has written extensively about police abuse and impunity. Flint Taylor, a founding partner of the People’s Law Office, has represented a number of men tortured by Chicago Police under Commander Jon Burge. Jon Loevy is the founder of Loevy & Loevy, a civil rights firm specializing in police misconduct cases.

Recent court decision chip away at the Garcetti decision

It takes a lot of courage and conviction for a law enforcement officer to engage in action that might adversely affect their job and career.  Most, without hesitation, will engage a subject armed with a gun or knife or jump into the middle of a fight to protect a partner.  It takes even more commitment for an officer to stand up to an agency’s failure, officer misconduct or abusive management.  In most cases s/he will encounter some form of retaliation.  Challenging retaliation at the Federal level has been severely limited in recent years…until just this year.

In 2005, the U.S. Supreme Court significantly changed the First Amendment protection for public employees in the case of Garcetti v. Caballos, 547 U.S. 410(2006).  Mr. Caballos was demoted and reassigned by his boss, Los Angeles County District Attorney Garcetti.  Caballos wrote an internal memo and talked about what he believed had been a miscarriage of justice in a case he had been handling.  He challenged his employment sanctions under the grounds that his First Amendment rights had been violated as he was speaking about a matter of public concern.  The Supreme Court ruled that the First Amendment did not protect public employees when their actions involved matters resulting from the course and scope of their employment. 

All of the Federal District Courts and Circuit Courts of Appeal have, with a few exceptions, followed this precedent and found against public employees.  This has been true even when the employee spoke out about corruption and incidents of unreasonable uses of force, were required to report by agency policies, and used proper internal chain of command procedures.

Two recent cases seem to have pecked away at the underlying issues in Garcetti.  The first case is Dahlia v. City of Burbank ,689 F.3d 1094 (9^th Cir 2102). This case involved an officer who observed and believed that other officers used unreasonable force during a robbery arrest.  His attempts to have this addressed within his agency were futile and he was immediately subjected to various forms of harassment.  He reported his concerns to the Los Angeles County Sheriff’s Office and the FBI.  When a case was initiated by those agencies, he was eventually terminated by the Burbank Police Department.  He filed a Federal claim alleging retaliation and a violation of his First Amendment rights.

The District Court dismissed his claim citing Garcetti.  The initial 3-judge panel of the 9^th Circuit upheld that decision citing also a previous case the Circuit had ruled on, Huppert v. City of Pittsburg, 574 F.3d 696 (9^th Cir. 2009).  That case involved an officer’s termination after he attempted to bring to light corruption within his department and eventually went to the FBI.  That decision and the current one involving Burbank troubled the Circuit.  The 9^th Circuit met en banc and reversed the Burbank decision in a 9-2 finding.  The Circuit’s decision was appealed to the U.S. Supreme Court, City of Burbank v. Dahlia, No. 10-55978, which denied certiori, thus making this the standard of care at least in the 9^th Circuit.

The U.S. Supreme Court in this current session further clarified its position in Garcetti with its decision in Lane v. Franks, 573 U.S. ____ (2014).  This was a case in Alabama involving a public college auditor who found that a part-time employee was being paid for work not being done.  The part-time employee was also an elected State legislator who was subsequently criminally charged.  During that criminal process, the auditor was required to relate under oath in sworn testimony what his investigation had uncovered.  He was subsequently terminated and successfully demonstrated that his employment sanction was the result of his testimony, not some budgetary decision.  His First Amendment claim was dismissed by both the District Court and the 11^th Circuit citing Garcetti and claiming that his termination resulted not from his speech as a private citizen or of an issue of public concern, but from his assigned job as a public employee.

The Supreme Court, in a 9-0 decision, reversed those findings.  The Court found that his speech was “outside the scope of his ordinary job duties” and “sworn testimony in judicial proceedings is a quintessential example of citizen speech…and is distinct and independent from any separate obligations a testifying public employee might have to his employer…the critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”  “Here, corruption in a public program and misuse of state funds obviously involve matters of significant public concern.” 

In a concurring written opinion, Justices Thomas, Scalia and Alito also postulated another issue: “We accordingly have no occasion to address the quite different question whether a public employee speaks ‘as a citizen’ when he testifies in the course of his ordinary job responsibilities…For some public employees --- such as police officers, crime scene technicians, and laboratory analysts --- testifying is a routine and critical part of their employment duties.  Others may be called to testify in the context of particular litigation as the designated representatives of their employers.  The Court properly leaves the constitutional questions raised by these scenarios for another day.”

Garcetti, in this writer’s opinion, has created an impediment that can stifle a public employee who wants to do the right thing and stand up and be heard on matters that truly are of public concern.  Most of these involve corruption, abuse of authority and serious mismanagement.  In an agency that has these types of serious problems, the employee who steps up and does the right thing can expect management and elected officials to react against the employee and try to make his/her life unbearable.  These two decisions may be an indication that the U.S. Supreme Court is reconsidering the implications resulting from its Garcetti decision.

'Market Place' story on NJ cops suing bosses

The ‘Marketplace’ story that I was featured on concerning cops suing bosses can be seen and heard on this link: Who sues police departments the most? Police officers

Unfortunately, Sally Herships didn’t have time to look beyond New Jersey…or consider fire departments.  You and I know that this issue exists in many states.  In the end it can be traced back to ineffective IA/OPS operations and either lazy or abusive bosses. 

We do have some officers who simply won’t accept any responsibility for their own actions and will fight any censorship or discipline.  But even those officers can be nullified when the administrative investigation is done in a reasonable and defensible manner.  Cutting corners and hastily done investigations will always get us in trouble and feed the employees who want to show that the bosses, or as they call them in fire departments the ‘white shirts,’ are just out to get them.

When cops sue their employer.

Last week I worked with a reporter from NPR’s ‘Marketplace’ on a story about New Jersey cops suing their employers.  The local report can be found at

http://www.wnyc.org/story/good-cop-bad-cop-how-infighting-coasting-nj-taxpayers/?utm_source=local&utm_media=treatment&utm_campaign=daMost&utm_content=damostviewed.  The comments following the article are very insightful, as well.

She was astounded by the fact that these cases cost the local jurisdictions in New Jersey more than lawsuits brought by citizens accusing police misconduct.  But, this is really an issue throughout the country.  The reporter hasn’t even considered the issue with firefighters or arbitration awards. 

If there is one common denominator in these cases, it’s that the agency’s IA/OPS process generally is flawed.  Sure some chiefs and sheriffs have vendettas against an employee usually because they challenge the boss, are lazy, or go behind the boss’ back to local politicians.  In their haste to do something, the chief or sheriff often cuts corners on the methodical process of the administrative investigation.

Other times the haste in the internal investigation is generated by a sudden outcry from a local politician or the media.  The chief or sheriff now wants to show that s/he is the boss and takes premature disciplinary action.  Someone has to tell the boss to slow down; take the reasonable approach to the investigation; and then administer fair, reasonable and defensible discipline.

The IA/OPS operation should be conducted in a responsible way to address all of the stakeholders in the process: the aggrieved person, the accused employee, the agency, and the community served by the agency. 

Avoid knee jerk responses to critics attacks

Does law enforcement jump too quickly or bend too easily with the wind of the day on issues that we’ve faced for many years and can show successes? 

I’ve taken the liberty of editing somewhat an Email I received from an old friend, Pete Sarna.  He’s one of several old sages in police work that I value.  Not just because he’s old like I am, but because he’s spent his time in the trenches rather than in statistical studies and grant funded projects.

“Per my Emerson Society (a gathering of some law enforcement sages I discussed last year in one of the my blogs) remarks (regarding making seismic policy shifts at great cost on questionable evidence), Dr. Lawrence Sherman now reaches a contrary finding to his earlier research in the 80’s that triggered a monstrous avalanche of policy changes in police response to domestic violence – mandatory arrest.  Much of current policy and practice---even the law---is apparently based upon a now-discredited body of research.  Who is to say that this round is any more valid, although it's hard to argue with blood all over the floor?  If we are talking harm reduction as the basic strategy, mandatory arrest is a "drug" that has failed clinical trials.  Maybe discretion, with some guidance and greater non-police resources on call (in contrast to a time-bound, desk-bound service delivery model under which other responders work), is not a bad thing, after all.  I recall a time in Oakland when we had specialized two-officer cars to handle domestic violence calls; their choice of options included arrest, but the ultimate decision was a matter of judgment given each set of circumstances.  Although specialists, they operated as an integral part of a patrol team and responded to other sorts of calls as well.  I still claim some form of team policing with a territorial imperative is the optimum model.  I am not suggesting that we toss shoes into the machinery by any means, but we need to be a bit more skeptical and sophisticated when it comes to research claims.”

I’m sure you can think of others.  I’m amazed that so many police agencies have abandoned any form of neck restraint hold.  I hear police managers and policymakers say it has been banned by court decisions.  Nothing can be further from the truth.  For the most part, courts have steadfastly refused to declare a tool or tactic we use as unconstitutional.  That goes for the neck restraint, as well.  Consider the thousands of times it has been used successfully.  It was easy to teach and easy to remember how to apply it properly.  How many of you use the PR24 as a come-along tool? Maybe a martial arts fan, but not the normal street cop.  The abandonment of the neck restraint is simply another example of our knee jerk reaction when we are challenged by well meaning, but ill-formed people.

I’ve heard of chiefs who have put their agency’s Tasers back in the box.  I’m afraid more will make that knee jerk reaction, as well.  They forget the successful outcomes including tremendous reductions in subject injuries, officer injuries and worker’s comp rates, and complaints of “excessive force.”  Yes, some people have died who have been involved in an incident where the Taser was used.  But, consider the hundreds of thousands who have lived and haven’t got shot because the Taser was properly used. 

So what have you seen that demonstrates our knee jerk reaction?  What do you think will be the next ill-founded decision by police policymakers to throw out the good in response to ill-informed attacks?

Dark clouds gather over law enforcement

There are storm clouds gathering over law enforcement agencies.  Once a cop was always believed, but that is no more.  For many years agencies have been able to handle their dirty laundry themselves, without outside scrutiny.  But that too appears to be changing.  There are several recent notable examples of the public rising up and demanding more accountability and transparency in what we do.

This past week Wisconsin Governor Scott Walker, certainly not a liberal politician, signed a one of a kind law directly impacting how police agencies in Wisconsin investigation any police custody death.  This law mandates that two investigators from a different police agency direct the investigation of that police related death.  This law is the result of the shooting death of Michael Bell by Kenosha officers nearly 10 years ago.  I was a police practices expert for the plaintiff on that civil case.  It settled for $1.75 million.  Bell’s father, however, spent nearly $1 million on billboards and other advertisement to change the way police agencies in Wisconsin handle these types of cases.  It should be noted that five provinces in Canada have formed all-civilian investigative units to handle all police involved use of force cases, including those resulting in death.

In Hawaii, SB2591, has passed both state legislative houses and is now awaiting the Governor’s signature.  It would mandate more reporting and transparency in how local police agencies report officer misconduct and discipline.  Chiefs would now be required to report to the legislature whenever an officer is suspended, fired or allowed to resign in lieu of discipline.  The Chief would also be required to report whether criminal charges were sought.  Should some appeal process overturn the discipline, the Chief would have to report the reasoning for this outcome.  Still at issue is disclosure of disciplined officers past records.  But the files of the discipline would be mandated to be retained for 18 months after the officer is disciplined.

The NYPD thought it was a swell idea to start a Twitter campaign asking local citizens to share there photos and videos of officers engaged in policing.  The NYPD thought this would produce lots of community feel good publicity.  Unfortunately what the department got was a steady streaming of negative images. 

The Albuquerque Police Department is under intense scrutiny by the U.S. Department of Justice and community action groups resulting from several years of police-involved shootings.  This is simply a continuation of several other outside studies, many originated by the Agency or City, on similar use of force issues.  The main thrust is how officers are trained and disciplined, specifically on use of force incidents.

Sheriff Baca of Los Angeles County made the decision to not run for a fifth term in office.  His agency has been besieged with outside investigations, lawsuits and internal turmoil for many years now. 

It’s time to reevaluate our position in law enforcement.  Our striving for secrecy in our IA/OPS operation is only exacerbating the problem of transparency.  From the public’s standpoint we look like we’re trying to hide our failure to hold our employees and ourselves accountable.  We have to reexamine our focus in the way we provide our service to our communities.  Are we law enforcement officers or keepers of the peace!  There is a distinct difference and it can have a monumental impact on how we select, train, supervise and hold accountable our employees.  Do we want to be known as ‘warriors’ or ‘guardians?’