Defending cops...are there some ethical issues?

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

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

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

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

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

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

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

The 'Blue Shield' doesn't protect anyone

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

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

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

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

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

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

ADRESSING POLICE SEXUAL MISCONDUCT

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

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

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

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

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

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

At PATC we developed the following model policy that includes:

•       Definitions:

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

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

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

–      Actor: The person accused of sexual assault

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

•       Procedure:

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

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

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

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

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

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

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

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

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