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.

The NYPD Stop, Question and Frisk civil trial

Anybody who has been a cop has made pedestrian/suspicious person stops.  It’s an essential tool in any community; big, small, urban or rural.  The cop looks for things that are out of the ordinary and not appropriate for the place and time.  High crime areas and recent crime trends are also considered.  You look at things the subject does, or maybe doesn’t do under the circumstances.  It’s something you develop when you’re a cop.  These objective observations build the “reasonable articulable suspicion” that’s necessary to detain someone on the street, question them and, when necessary, conduct a frisk/cursory search to eliminate any potential weapons that could endanger the officer.  Cops have been doing these stops long before I began my career in 1961.  The U.S. Supreme Court simply codified this practice in 1968 with the Terry v. Ohio case.

Now rarely do courts take notice of this type of citizen encounter, unless it results in something else…a criminal suppression hearing or use of force.  In November 2011 I testified in a Federal bench trial on the legality of a pedestrian stop; Petro v. Town of West Warwick, RI.  That encounter ended in the man’s death due to the subsequent altercation with the officers involving batons and OC spray.  The young man was dead when they arrived at the police station 4 minutes later.  His situation was exacerbated by a congenital heart problem.  But, the main issue was the legality of the initial stop which the Judge found to be unlawful primarily based on the involved officers’ own testimony.  This case resulted in a sizeable money verdict.

So what’s the big deal with the current Federal class action civil lawsuit in New York City?  One thing it covers 10 years worth of documented SQF encounters totaling over 4.5 million.  Everything seems to be bigger and more complicated with the NYPD. Spicing this up is the allegation by some officers and tape recordings of their superiors that there is a quota forcing the field officers to make these stops.  The Department’s position is that there may be a performance number, not a quota.

Last week I testified for the Plaintiffs at the Federal bench trial in this SQF case; Floyd, et al., v. NYPD.  The thrust of my expert testimony was (1) notice to the NYPD was ample; (2) deficient supervision of the field implementation of the SQF operation; and (3) administrative investigations involving citizen complaints stemming from these types of stops weren’t done in a reasonable manner.  None of the NYPD citizen encounters ended in a death or serious injury.  This trial is focusing simply on the legality of the encounters and the sufficiency of the documentation by the field officers.

What was the agency notice?  Going back to 1999, the N.Y. Attorney General studied the practice.  Some of the findings of that study indicated that there was a racial imbalance in the SQF encounters.  At that time the NYPD required officers to do a narrative on the form used for these stops.  This report found that the narratives in 39 percent of the stops were either unlawful on its face or lacked adequate sufficient articulation to determine the legality one-way or the other.

Then in 2003 the NYPD entered into a settlement agreement with a class of plaintiffs known as the Daniels Settlement.  The Department said it would develop a form for these stops and conduct audits to determine the sufficiency of the articulation for the stops.  The Department developed very extensive and adequate written training, policy statements and legal bulletins.  The form developed was the UF-250, which is a double-sided form with the specifics of the time, location and individual and a very extensive group of check-off boxes.  About 2008 a section was added regarding use of force during these SQF encounters including “taken to ground, baton, and OC spray.”  Unless there is an actual arrest resulting from the SQF, this appears to be the only notation or report of whatever force might have been used.  Of course no one in police work today would accept this as being adequate reporting of this level of use of force.

The other essential piece of the SQF written agency directions is that the officers must “fully articulate” the reasonable suspicion for the stop in his/her memo book/activity log.  NYPD seems to be the only police agency that uses this type of documentation of police activity that the officer then takes home or places in his/her locker at the end of the shift. 

Every year since 2003 until 2012 the Department has audited the use of the UF-250 and memo book entries associated with the SQF encounter.  On a scale of 1, being failure, to 4, being superior, the Department’s own auditing has shown a consistent failure by all patrol commands with the exception of Transit and Housing who have reached the 3, or passing.  I’ve wondered whether this is due to better supervision or the fact that both of these operations are the most heavily controlled by surveillance cameras.  It’s obvious that the field officers are thumbing their noses at the written provisions.  The field officers and their sergeants have created an “operational policy” markedly different than what the Department professes in written training and policy.

When you discover a problem in your agency, do something about it!  Fix it!

A wide range of field sergeants and precinct Integrity Control lieutenants were deposed and testified in this NYPD case.  With rare exception, they all said they just looked at the 250 forms to see if the boxes were filled out.  Virtually none of these including the officers themselves said anyone looked at their memo books.  There were virtually no documented sanctions for any sergeant or officer for this omission.  Even when there was a citizen complaint filed, these areas of omission were either not investigated or no sanctions were imposed on the sergeants and officers who violated the written guidelines.  On the eve of trial the Department adopted a new requirement that now the officers copy the page of their memo book and attach it each UF-250.  Fat chance that will happen!

What is amazing is that the Department either will not or has not considered making a report form consistent with its own legal requirements.  A police report that has a number.  An official report that can be retrieved without asking the officer to bring it in. 

So what can we learn from the troubles in this NYPD civil case.  Maybe we need to fully document the elements of reasonable suspicion even in cases of a simple Terry stop.  We are seizing the citizen, aren’t we?  A lot of you probably do that between your CAD system and the officer writing a full description of the stop in the vehicle computer identified to the CAD number.  Like any field police activity, supervisors should be required to look at these forms when they sign off on them and ask the officer questions when the information is lacking.  As with any field activity some quality control effort should be exerted to see whether the officer and the citizen have similar versions of what occurred.  And, of course, just like with traffic enforcement someone in the agency has to determine whether these types of stops are consistent with the make-up of the community being policed and the current crime patterns. 

Reform of the Chicago Police

Yesterday, April 15th, I was invited to give a presentation at this forum organized by the University of Illinois Chicago Criminal Justice Society.  Three other presenters were significant.

Rob Warren, Ex. Dir. of Northwestern University Center for Wrongful Convictions talked about his experiences that have resulted in 35 persons being exonerated and freed from prison.  His suggestions to combat this type of wrongful conviction based on false confessions is fourfold:  (1) record all interrogations, (2) limit the length of the interrogations, (3) prohibit investigators from lying to suspects during interrogations, and (4) allow expert testimony on false confessions at trial.  I found one of this points interesting.  He said that confessions that were not false averaged a little over 2 hours of interrogation, while those found to be false confessions lasted for over 6 hours and in one case 16 hours.

Ignacio Cano, a professor from the State University of Rio de Janeiro, came to us via Skype.  It seems that our TSA had shut down its vista computer link for 24 hours so he couldn't get on the plane in Brazil.  His presentation concerned police reforms in South and Central American countries. His experience wasn't good.  The bottom line was that outside efforts to change the culture of the police wasn't effective or lasting.  He believes that it must be a joint effort between outside influences and the officers inside the agencies.  He also said that officers involved in misconduct fell into two types.  The first were those who were lining their own pockets with money from drug operations or extortion. The second group were those who did misconduct designed to reduce crime even through murder of suspected criminals.  My good friend Steve Rothlein talks of this being coined 'Noble Cause.'  Professor Cano noted that all of the agencies refused to accept or acknowledge any responsibility in the actions of these officers. Just 'bad apples.'

The most interesting presentation, I believe, was the intimate explanation of Chicago Police corruption by Craig Futterman a professor from University of Chicago Law School. He and his students have been deeply involved in this area of police misconduct for nearly 20 years.  His law students rode with special enforcement units during one his research projects of police misconduct in public housing projects. These students came away with the perspective that the Constitution wasn't the same in these minority communities.  Terry stops were done without any hint of reasonable suspicion or any degree of articulation.

The other area of his historical work concerned the systemic and cyclic reform movement.  Every few years following a public outcry or high profile incident, the politicians would call for reform, have some sort of study, find a couple of scapegoats and then slip back into the way it always was when the hue and cry ended.  He has amassed a wealth of statistics on the officers involved in many of these most significant incidents of police misconduct.  In all of these the officers involved amassed huge numbers of citizen complaints, but the OPS or IPRA process and even that of IA did not identify these officers.  There was never any intervention.  These officers were not judged to have committed misconduct and were never disciplined.  Statistics seemed to overcome any intervention.  Of course, all of these units worked in minority areas of Chicago. 

Last week I read an article in TGest concerning an Ohio mayor who was foiled in his attempt to get someone to conduct an administrative investigation into actions of his Chief of Police.  The State agencies wouldn't help him unless it concerned a criminal allegation.  Even the Ohio Chiefs' Association refused to get involved.  Unfortunately this isn't uncommon!  Few want to wade into the dirty laundry of any agency.  Yet, it's a task that is often necessary.

 I've been involved as an outside consultant in several of these types of internal administrative investigations.  I've learned some valuable lessons.  In 2012 protections for an outside consultant in these types of investigations was enhanced by the U.S. Supreme Court decision in Filarsky v. Delia, 566 U. S. ____ (2012).  The Court extended qualified immunity to an attorney hired by a California Fire Department to conduct an IA on a firefighter.  The Court's decision hinged on common law and discussed the historical precedence of governments bringing in volunteers and outside experts to help in the affairs of the local government.

But, you should be aware of a few issues.  First, since you're not in a position to discipline the employee being investigated, you need to get someone in the local government to be the one to issue any admonishments such as Garrity or Kalkines.  After this is done that person can continue to sit in or leave and allow you to conduct the interview.  

Secondly, you have to familiarize yourself with the due process rights of the employee.  This means you must determine what, if any, provisions are in place in the personnel code, civil service rules, collective bargaining agreement or state police officer bill of rights.  Just because you're not an agency employee doesn't mean you get to step on the rights of the accused employee.

Lastly, some states may have requirements that someone doing this type of investigation must be a licensed private investigator.  I've run into that in two states.  It seems ridiculous since the same provisions doesn't stop an IACP or PERF investigation that is the same in scope.  I realize that this usually is just local politics at work.

A local government, whether it's the mayor, council, manager or chief of police, must have the option of looking outward for some administrative investigations.  Even if the state or another agency might take it on, these usually are very narrow in scope.  They don't look for the systemic issues.  They rarely try to cure the agency.  But, there aren't many outside consultants around with the depth of experience and knowledge to conduct these types of administrative investigations.  If you need one, begin the search early and vette whomever you might decide to pick.  The wrong choice will produce the wrong outcome.  Everyone will end up being hurt!