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?’

Update of my novel "Broken Badges."

I’ve received many comments about my first fiction novel, “Broken Badges: Cases from Police Internal Affairs Files.”  Most everyone found it a page-turner and liked the character development.  Those not in law enforcement were a little concerned that this type of misconduct occurs in policing.  Many appreciated learning the ins and outs of an Internal Affairs investigation and some of the police historical points outlined in the novel.

Most all enjoyed the manner in which the cases were written with each chapter being a separate case with its own conclusion.  It was easy to read and could be picked up at different times without retracing what had occurred before.

The “Sexual Predator” deals with the on-going sexual misconduct of one patrol officer.  The second chapter, “Colorado Adventure,” addresses the growing issue of police motorcycle groups acting like one-percenter outlaw groups.  The next chapter, “Miss Emma Mae,” revolves around a malignant street narcotic unit.  The fourth chapter, “Mental Health,” delves into the mistreatment of the mentally ill and other marginal street people by an uncontrolled duo of officers.  The next chapter, “Tangled Relationships,” looks at fraternization and domestic misconduct involving police employees.  And the last chapter, “Forgotten Cop Land,” is an unusual look at private policing of an exclusive community.

These cases follow the work of a fictional police consultant, Taylor Sterling, usually hired by the insurance carrier to evaluate the critical incident involved in each case.  This technique allows the book to deal with cases in different cities and locales.  Most of the cases are in police departments less than 300 employees.  The book looks at the chiefs and sheriffs who are good, bad or not skilled in IA/OPS investigations.  Some of you in law enforcement may swear you know the cops portrayed in the stories, but these are fictional accounts.

“Broken Badges” is available on Kindle, Nook, iBook, and through order from Public Agency Training Council, Indianapolis, IN., and Deeds Publishing, Atlanta, GA.  If you've already read it, I would appreciate a review on Amazon.

Five core areas that adversely affect police employees.

Last month, Brian Nanavaty, a Captain with the Indianapolis Police Department, wrote two articles about his police employee wellness program.  These articles, “Why Officers and Agencies Fail: A Case For Resiliency in Policing,” can be accessed from the Public Agency Training Council webpage. His on-going research and direct work with 300 police employees in his agency has allowed him to identify that there are five (5) core areas that adversely affect police employees.

These five areas are: (1) addictive issues; (2) behavioral health; (3) physical health; (4) personality issues; and (5) family relationships.

Some of the addictive issues are alcoholism, reliance on prescription medication (prescribed or not), gambling and sex/pornography.  There are things all law enforcement agencies can do even if they don’t have a wellness program like Brian’s.

Let’s take a moment and consider alcoholism.  This has been a continuous employee issue for all police agencies.  Usually we wait until something tragic happens like a traffic accident, being arrested for DUI, engaging in disruptive behavior in a public place, or domestic misconduct.  Other times it surfaces after some critical incident and the employee is ordered to submit to a chemical test.  Then it may result from a supervisor being alerted to the odor of alcohol on an employee’s breath when he/she comes to work.  These instances force us to take action and it usually is disciplinary action. 

We all know about substance abuse rehabilitation programs.  The problem, however, is that agencies aren’t proactive in their search for these valuable programs that can often salvage an employee.  Alcoholics Anonymous is one such program.  The biggest problem I see with these is the reluctance to have one of our officers go to a Chapter in our locale.  It thrusts the officer into a group with members of public he may have even taken enforcement action against.  Some larger police agencies have created their own Chapters that become exclusive for public safety employees.  There is no reason any area couldn’t create this type of Chapter that would provide services to a number of public safety agencies in an area of the state.  The only reason this hasn’t been done is that no one has taken up the issue and made it happen!

In this same addictive area is the use of substance abuse counselors.  Most all of them are certainly qualified.  But would it be helpful to have someone available who either knows or has made the effort to find out about police work.  I’ve seen several Last Chance Agreements where this has been inserted to ensure that “a law enforcement knowledgeable counselor” provides the professional services to the employee involved.  This is also the recommendation of the Police Psychologists Section of the International Association of Chiefs of Police.  If we’re going to send one of our employees to a substance abuse counselor, we must make certain s/he is the best qualified to help our employee.

Gambling addiction is becoming a more prevalent underlying cause for many instances of police misconduct.  These have taken the form of theft from the property/evidence room; mismanagement of union and police support funds; misappropriations from funds set up for slain officers; and theft during traffic stops and responses to calls for service.  Gambling can also result in overtime abuse, abuse of court appearances, and double dipping while working private details.

The real issue for all of us in law enforcement is not to wait for the tragic consequences these employee issues cause.  We should be proactive.  We should acknowledge that these may or will occur.  We should set up reasonable programs to give us some early alert to problems and then responsive, professional programs to assist those employees who get caught up in some of these disastrous consequences. 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

IA/OPS Conference of PATC in Las Vegas

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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