New Challenges for Law Enforcement
Professional Standards Officers
By Wayne W. Schmidt *
Typically an Internal Affairs (I-A) investigation concludes with one of four findings: Sustained, Not Sustained, Exonerated or Unfounded. If an officer is cleared, the inquiry usually ends and a lawsuit might begin.
What if an officer, who is accused of misconduct, has acted within the agencys policies, but harm has resulted to someone because of a policy deficiency?Similarly, what if that officer performed within the agencys training guidelines, but harm resulted because of a training deficiency?
Both of these are administrative failures. They occur when an agencys policies and/or training fails an officer. Disciplinary action will correct the situation when an officer neglects to follow or disregards his or her agencys policies or training. But where is the automatic follow-up to fix a failure in policy or training? Lets look at two court cases.
In the first example, four Louisiana officers attempted to serve a mental health commitment on a physician who had been ordered to submit to a custodial psychiatric evaluation.After struggling with him in his kitchen, he grabbed a flatware knife.He was shot multiple times and died, days later, of peritonitis. In the lawsuit that followed, the plaintiffs expert called the reaction an egosyntonic response, meaning that the officers had a green light to fire their weapons rather than to retreat and respond in a defensive manner.
There was evidence that the citys sole training on handling mentally disturbed persons consisted of showing a half-hour film. The name of the film was unknown, because the first few feet of the film had been missing for some time.The case was settled for hundreds of thousands of dollars and no action was taken to correct the policy or training deficiencies. [1]
History repeated when officers of the same agency later shot another mentally disturbed individual. This time, the former city attorney (who had defended the first claim) was now in private practice and represented the estate. The city had not updated its training since the first shooting, and was still using the film with the missing introduction footage.
While the post-incident investigators in the first shooting were perfectly justified in ruling it in self-defense, clearly there was a failure in policy and training.Yet nowhere on the typical I-A form is there a place to note either administrative failure.
Politically, there is another problem.A sergeant might complete the I-A investigation, but the agencys policies and training come under other commands.There is no automatic feedback from the field or I-A when either failure occurs, so there is no system to modify the policy or to upgrade the training. Consider another example of a fatal claim.
A Wyoming police department received a complaint that a man was running around naked, jumping up and down, yelling, and kicking his legs in the air. On arrival, a police officer handcuffed the man, who continued resisting. The officer then applied a nylon restraint around man's ankles to abate the kicking. The ankle restraint was attached to the handcuffs with a metal clip.
Just before the ambulance arrived, the officer noticed that the mans face had blanched and the restraint was removed. The ambulance emergency team began CPR but he was dead on arrival at the hospital. Autopsy results showed a large amount of cocaine in his system.
A federal civil rights lawsuit was filed. The District Court refused to give the city a summary judgment, and the denial was appealed. A three-judge panel of the Tenth Circuit said that:
[We] hold that officers may not apply this technique when an individuals diminished capacity is apparent. This diminished capacity might result from severe intoxication, the influence of controlled substances, a discernible mental condition, or any other condition, apparent to the officers at the time, which would make the application of a hog-tie restraint likely to result in any significant risk to the individual's health or well-being. In such situations, an individuals condition mandates the use of less restrictive means for physical restraint. [2]
According to the police litigation consultants [3] who evaluated the claim, command staff were aware that officers carried and used ankle and wrist restraints, but the agency lacked a policy governing their use and did not provide training in the application of restraint devices.
Most I-A investigators usually get on-the-job training, although there are a few seminars and classes that are nationally available.[4] There are also several books and periodicals [5] and a number of I-A related articles have appeared in the FBI Law Enforcement Bulletin. [6] Various IACP model policies [7] and Training Keys [8] also cover I-A topics.
However, no thought is given to providing new I-A investigators with instruction on the agencys policies and how these might compare to other agencies. A typical I-A office will have a complete set of the agencys policies and training bulletins, but is unlikely to have a set of the lesson plans from the training academy.
Oddly, some agencies fail to investigate the allegations of a lawsuit filed by a citizen, even though it contains the same kinds of allegations that are made in a letter sent to the chief of police or sheriff. The reasons typically advanced are (a) the plaintiff did not intend to bring an I-A complaint and (b) an I-A investigation will only assist the plaintiff in proving his case in court.
A jury might well find that there was a training failure, a policy deficiency and a deliberate indifference by the agencys officers and command staff.That usually translates into money damages, and a check is written or an appeal taken.
Not only does the I-A unit fail to summarize the results of a jury verdict, but the agencys defense counsel often takes no action to correct a training or policy failure. An assistant city attorney, for example, must work up the law departments chain of command to cross over to the chief of police, who then has to communicate the problem to the appropriate training and policymaking officers. This takes time and is sometimes frustrating. Not only is there little incentive to initiate such efforts, it has been perceived as meddling by a lawyer who has never received police training.
Here are a few suggestions for a professional standards or I-A office.
1. In larger I-A units, insure that there is a continuity of senior I-A managers. Disparate discipline destroys morale and is unfair. It also has been the subject of lawsuits, especially where there were gender, race or ethnicity differences. [9]
2. Use software to track prior complaints, dispositions, and disciplinary actions. Specialized software can be purchased from several vendors. [10]
3. Using software, implement an Early Warning System. The National Institute of Justice has highlighted the need for such a program, noting that by 1999, 39 percent of all municipal and county law enforcement agencies that serve populations greater than 50, 000 people either had an early warning system in place or were planning to implement one. The software should track use-of-force applications in addition to citizen or supervisor initiated complaints. [11]
4. After an I-A incident is completed, save the results in electronic format on a CD-ROM, in addition to the other repositories. Called the Virtual Investigations technique, it is in regular use by the LAPDs I-A Group. While the LAPD system is intended to be paperless, a CD-ROM is an inexpensive backup record and has two other features. It insures that the entire investigation folder is collected in one place, and that individual items in the contents cannot be modified or disappear.[12]
5. Read the terms and conditions of federal consent decrees. In the six-year period from 1997 through 2002, the U.S. Dept. of Justice has negotiated eight consent decrees in civil rights actions brought by its Civil Rights Division, which challenged a police agency's integrity and disciplinary systems. All eight decrees incorporated a court-ordered training mandate. [13]
6. Provide instruction on the agencys policies and training curricula to all new investigators assigned to I-A investigations.
7. Ensure that training academy personnel maintain professional ties with other academies throughout the state and nation.
8. Monitor what policies are being adopted or modified in other agencies. The best source is IACP NetSM, which as of February 2003, had more than 4, 000 different policies in their online database. [14]
9. Begin a system to formally notify the I-A office whenever an official misconduct lawsuit is filed, along with periodic updates to be provided by the entitys law department. A copy of the court complaint or petition should be sent to the I-A office.
10. Institute a formal protocol where a designated I-A officer periodically meets with (a) a representative from the training academy, (b) a representative from the agencys unit that drafts and publishes agency policies, and (c) a litigation attorney from the entitys law department.These can be one-to-one meetings, but a quarterly meeting of all representatives would be a positive step. Professionalism means more than placing the blame on officers who have failed their employers standards. Professionalism also includes the responsibility to see that training and policies are current and proper. The general public as well as officers in the field need the assurance that management perceives the task of correcting administrative failures as seriously as the duty to discipline officers for their failures.
Endnotes:
The Forumis published by the Illinois Law Enforcement Executive Institute, a project of the Illinois Local Governmental Law Enforcement Officers Training Board, of the campus of Western Illinois University, Law Enforcement Justice Administration.
* Wayne Schmidt is a police attorney and has served as the publisher and editor of the Fire and Police Personnel Reportersince 1975, which has discussed thousands court and arbitration decisions covering disciplinary offenses, procedures and punishment. He is the staff executive for AELEs three-day seminars on police discipline and internal investigations and the chair of the IACPs Internal Affairs Subcommittee. He is a LL.M. graduate of, and the former Director of, the Police Legal Advisor Program of the Northwestern University School of Law. The authors views and suggestions are his own, and do not necessarily represent the positions of any of the organizations that he is affiliated with.
1. Settlement in Estate of Edward H. Dent v. City of New Orleans(E.D. La. 1980). From a psychological perspective, an egosyntonic individual has a personality disorder. The plaintiffs expert was Emanuel Tanay, M.D., from Grosse Pointe, MI. The facts were gained from correspondence and telephone conversations with the citys Law Dept.
2. Cruz v. City of Laramie, #99-8045, 239 F.3d 1183 (10th Cir. 2001) and online at http: //laws.findlaw.com/10th/998045.html
3. The plaintiffs expert was Lou Reiter, a trainer and retired deputy chief of police in Los Angeles; the defense expert was Ken Katsaris, also a trainer and the former sheriff of Leon County, Florida. An online Directory of Criminal Justice Experts and Litigation Consultants is at www.aele.org/Expert.html
4. A few of the better-know providers of discipline and internal investigation conferences or seminars are:
AELE Law Enforcement Legal Center, http: //www.aele.org/
International Assn. of Chiefs of Police (IACP), http://www.theiacp.org/
Labor Relations Information Service, http://www.lris.com/
National Internal Affairs Investigators Assn., http://www.niaia.org/
Public Agency Training Council, http://www.patc.com/
5. Monthly publications include the:
Fire and Police Personnel Reporter, www.aele.org/Pubs.html
Police Dept. Disciplinary Bulletin, http: //www.quinlan.com/
Public Safety Labor News, http://www.lris.com/
The Massachusetts Chiefs of Police Assn., through the Municipal Police Institute, sells several excellent books in print or CD format, including The Chief's Guide to Internal Affairs, The Chief' s Guide to Progressive Discipline/Rules & Regulations, The Chief's Guide to Civil Liability and a Policies & Procedures manual. Info. at www.masschiefs.org/MPI/Manuals/mpi_manuals.html
6. The FBI Law Enforcement Bulletinhas published many articles related to professional standards, including (in chronological order): Constitutional Rights to Counsel During Interrogation (2002); Ethics and Law Enforcement (2002); The Problem with Gratuities (2002); Making Ethical Decisions (2002); Statements Compelled from Law Enforcement Employees (2002); Detecting Deception (2001); Institutional Integrity (2001); Repairing Broken Windows: Preventing Corruption (2001); Getting Along with Citizen Oversight (2000); Color of Law Investigations (2000); Reviewing Use of Force: A Systematic Approach (2000); Due Process & Deadly Force: Conduct Shocks the Conscience (1999); The Ethics of Intentionally Deceiving the Media (1999); Firearm Investigations (1999); Noble Cause Corruption and the Police Ethic (1999); Reluctance to Use Deadly Force (1999); Ensuring Officer Integrity and Accountability (1998); Improving Deadly Force Decision Making (1998); Internal Affairs Investigation: The Supervisors Role (1998); Suicide by Cop (1998); Workplace Privacy of Law Enforcement and Public Employees (1998); Ethics and Police Integrity (1997); Liability Implications of Departmental Policy Violations (1997); Managing for Ethics: A Mandate for Administrators (1997); Pepper Spray Training (1997); Police Use of Nondeadly Force to Arrest (1997); Outside Employment Guidelines for Law Enforcement Agencies (1997); Combating Bigotry in Law Enforcement (1996); Employment Information Release Agreements (1996); Using Automation to Apply Discipline Fairly (1996); Deadly Force: A Question of Necessity (1995); Freedom of Religion and Law Enforcement Employment (1995); Managing Relations Between the Sexes in a Law Enforcement Organization (1995); Police Ethics Training: A Three-Tiered Approach FBI Bulletin (1995); Grooming and Weight Standards for Law Enforcement (1994); Legal Issues in Crisis Management (1994); Practical Written Directives (1994); Use of Force: Pepper Spray (1994); Compelled Interviews of Public Employees (1993); Deadly Force in Defense of Life (1993); Hiring Standards Fitness for Duty (1993); and Disclosure of Personnel Information (1992); also see, Office of Inspector Generals Review of Double Standards of FBI Discipline (2002). The more recent issues of the FBI Law Enforcement Bulletin are online at www.fbi.gov/publications/leb/leb.htm
7. The IACP has published several Model Policies related to professional standards, including (in alphabetical order): Domestic Violence (1996); Electronic Restraint Device: the Taser (1996); Emergency Vehicular Warning (1990); Executing a Search Warrant (1989); Firearms (1997); Investigation of Officer Involved Shootings (1999); Law Enforcement Canines (2000); Less-than-Lethal Weapons (2002); Pepper Aerosol Restraint Spray (1994); Post-Shooting Incident Procedure (1990); Reporting Use of Force (2000); Response to Civil Litigation (1996); and Use of Force (2001). Info. at www.theiacp.org/pubinfo/modpolalpha.htm
8. The IACP also publishes Training Keys on topics related to professional standards, such as (chronological order): #255 Police Reaction to Corruption (1978); #295 Police Ethics (1981); #296 Written Directive System (1981); #297 Police Conduct (1981); #298 The Disciplinary Process: Supervisory Role (1981); #299 The Disciplinary Process: Internal Affairs Role (1981); #324 Police Shootings and the Law (1983); #325 Police Shootings and Department Policy (1983); #326 Post-Shooting Services (1983); #462 Use of Pepper Aerosol Restraint Spray (OC) (1995); #475 Police Ethics: Problems and Solutions Part I (1996); #476 Police Ethics: Problems and Solutions Part II (1996); #503 Standards of Police Conduct Part I (1998); #504 Standards of Police Conduct Part II (1998); #510 Impact Projectiles (1999); #529 Investigation of Public Complaints Part I: General (2001); #530 Investigation of Public Complaints Part II: Receiving and Processing Complaints (2001); #531 Investigation of Public Complaints Part III: The Investigation Process (2001); and #549 Personal Appearance, Off-Duty Conduct, and Free Speech (2002). Info. at www.theiacp.org/pubinfo/TrKeys.htm
9. See Perry v. McGinnis, #98-1607, 209 F.3d 597, 2000 FED App. 0133P (6th Cir. 2000); Conn. Dept. of Correction v. Cmsn. On Human Rights, #CV990497891S, 2000 Conn. Super. Lexis 2887 (Hartford Dist. 2000); Breaux v. Rubin, #EP-98-458-M, 43 ATLA L.Rptr. 218 (W.D. Tex. 2000); City of Boston v. Mass. Cmsn. Agnst. Discr., 47 Mass. App. Ct. 816, 717 N.E.2d 259 (Mass. App. 1999); Arbitration of Scott County and Law Enf. Labor Services, 109 LA (BNA) 666 (Daly, 1997); Polanco v. City of Austin, 78 F.3d 968 (5th Cir. 1996) affirming damages of $290, 000 to an Hispanic detective; Steverson v. Goldstein, 24 F.3d 666 (5th Cir. 1994); cert. den., 115 S.Ct. 731 affirming damages of $200, 655 for a black deputy; Turner v. Barr, 811 F.Supp. 1 (D.D.C. 1993); Harris v. City of Albuquerque, 18 Personal Injury Verdict Review 3, JV #100 (D.N.M. 1987); Jones v. City of Alton, 757 F.2d 878 (7th Cir. 1985); and Williams v. City of Montgomery, 731 F.2d 739 (11th Cir. 1984).
10. See Using Automation to Apply Discipline Fairly, FBI Law Enforcement Bulletin, May 1996; it is online at http: //www.fbi.gov/publications/leb/1996/may965.txt I-A software vendors include:
IA Trak software
Institute of Police Technology and Management
University of North Florida, http: //www.iptm.org/
IA Professional software
CI Technologies, http: //www.iaprofessional.com/
11. See the National Institute of Justice document, A systematic Early Warning Systems: Responding to the Problem Police Officer (July 2001) available online in PDF format at www.ncjrs.org/pdffiles1/nij/188565.pdfSince 1982, the Miami-Dade County Police have used an Early Identification System (EIS) that tracks all complaints, use-of-force incidents, commendations, disciplinary actions, and the dispositions of internal investigations. It also is used for the post-intervention monitoring of officers. MDPD refers officers to employee assistance programs inside or outside the department, such as psychological services, stress abatement programs, or specialized training programs.
12. The Virtual Investigation, conceived of and developed by LAPD Captain George L. Ibarra in 1998, has been described as one of the most innovative and effective strategies impacting the investigative entities of internal affairs investigations.The Virtual Investigation leverages technology into the investigative process by utilizing multimedia computers, digital voice recordings, MP3 audio compression technology, and digital photographic and scanned imaging techniques.The end result is increased investigative accuracy and quality in conjunction with significant reduction in investigative time.
LAPDs I-A Group adopted the Virtual Investigation system in 1999 because the logistical requirements of a traditional, paper-based investigative reporting system uses large quantities of paper.Additionally, the discovery of misplaced addenda items or inaccurate wording often resulted in extensive, costly, and time-consuming revisions. Reference: LAPD's Virtual Investigation Manual (Revision 5, Jan., 2000).
13. The DoJ consent decrees involved the following agencies: City of Buffalo, NY, Police (Sep. 19, 2002); City of Cincinnati, OH, Police (Apr. 12, 2002); District of Columbia Metropolitan Police (Jun.13, 2001 & Sep. 30, 2002); City of Los Angeles, CA, Police (2001); Montgomery County, MD, Police (Jan. 14, 2000); New Jersey State Police (1999); City of Pittsburgh, PA, Police (1997); and the City of Steubenville, OH, Police (1997). Most of these can be viewed online at www.usdoj.gov/crt/casebrief.htmlClick on the Special Litigation link, and then scroll to Conduct of Law Enforcement Agencies Settlements and Court Decisions. The LAPD decree is at www.lapdonline.org/pdf_files/boi/final_consent_decree.pdf
14. IACP NetSM is a commercial provider of articles, policies, ordinances, and information on law enforcement programs and innovations. Subscribers can receive automatic notification of new policies added to the database. It is affiliated with the International Association of Chiefs of Police and offers modestly priced annual subscriptions. IACP Model Policies and Training Keys can be downloaded at a nominal additional cost. The website is http://www.iacpnet.com/
Copyright 2003 by the AELE Law Enforcement Legal Center. This article may be copied and shared for personal use, but may not be republished for commercial purposes. AELE has authorized the publication of this article, in print format, in the Law Enforcement Executive Forum. It also appears in digital format on the AELE website, in CD-ROMs distributed to AELE seminar attendants, and in the databaseof IACP NetSM.