Mike Worley's Blog, page 8

Lessons from my FTO

I wrote this piece about an actual occurrence during my training for Thonie Hevron’s ‘Just the Facts, Ma’am’ Blog. She published it last week and I’m repeating it here for my readers. I also encourage everyone to check out Thonie’s blog.

Sometimes lessons come from the most unlikely places.  It was my second week on patrol, working the night shift.  My FTO was not only a training officer but the most senior officer on the shift.  As such, he had much the same authority as a sergeant.  About 3:00 a.m. we were driving through the warehouse district when we came upon a dog lying in the street.  The animal was alive but appeared to have a broken hip.  He lay there on the pavement, unable to move.

Clint stopped the car to block traffic and protect the animal.  He turned on the overheads, then walked up to the stricken dog.  I stayed in the car, listening to the radio, but I could see that the dog seemed to trust my sometimes gruff FTO.  After a minute or two, Clint returned to the car and picked up the radio mic.

“Boise, 107.  Show us out on 9th at Fulton.  We have an injured dog in the roadway.  Request humane society ambulance.”

“10-4, 107,” came the reply.  “We’ll have to call them out from home.  ETA will be at least an hour.”

“10-4, Boise.  Show us out.”

We sat in the car, the ‘bubble-gum’ red and blue lights flashing against the surrounding buildings.  Clint quizzed me on various procedures and, at ten minute intervals, he walked back up the check on the dog.

We had been on the scene for a little more than twenty minutes when the radio crackled.  “107, Boise, theft just occurred at ..”  The dispatcher gave an address on the other side of our patrol area.

I reached for the microphone to acknowledge the ‘just occurred’ call, but Clint grabbed it out of my hand.  “Boise, 107, did you not copy that we are out at 9th and Fulton?”

“Affirmative, 107.  Humane is enroute.  Shall I show you responding to the call?”

“Boise, this is 107A  (making it clear the transmission was coming from the senior officer).  Give that call to someone else.  We are not leaving this location until Humane gets here.”

“10-4, 107A,” came a chagrinned reply.

Clint could sense that I was looking at him with a ‘have you lost your mind’ look.   “Mike, unlike most of the people you will encounter in this job, both ‘good’ and ‘bad’, a dog will never lie to you.  We’re staying here with him.”

 

 

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Civilian Review of Police Actions – Part III

In this final installment, I’ll look at the implementation of civilian review in one city, Boise, Idaho’s Office of the Community Ombudsman.

The ombudsman’s office officially opened in 1999.  As the commander of police Internal Affairs, I was the person who would have the most direct contact with the ombudsman, Pierce Murphy. Mr. Murphy and I had worked out procedures for handling cases, most notably how to deal with someone who might want to ‘stack the deck’ by filing complaints with both the ombudsman and internal affairs. I felt it was one of our significant accomplishments that we agreed we would not allow that to happen.

In the enabling ordinance, the ombudsman was empowered to review the work of the internal affairs staff and our processes. Therefore, even if a complaint was received first by IA and rejected by the ombudsman as a duplication, the spirit of civilian oversight would still be in place.

 

Police Officers’ Reactions

At first, most officers were skeptical of the Ombudsman.  In trying to convince citizens that he was not ‘in the pocket’ of the police department, some of the ombudsman’s contacts with officers appeared to be more accusatory than investigative. Experience has shown that this is not unusual with new civilian review authorities seeking to establish their place. But it must also be remembered that IA units face much of the same criticism at times. No one likes to have their actions, and particularly their motives, questioned. Both internal affairs staff and civilian review staff, if they are doing their job, will encounter natural resistance. The challenge is to determine the difference between natural resistance to being questioned and attempts to divert inquiry of potential violations.

 

Long Term

In my view, the Boise iteration of civilian review has been a success. Mr. Murphy developed a track record of ‘calling it like he saw it.’  In some cases, he incurred the wrath of some citizens when he pronounced the actions of a police officer to be within policy, even though ‘popular opinion’ pushed for punishment.

While it was not specifically authorized in the ordinance, the police chief, during my tenure as Internal Affairs commander, directed that I would review the Ombudsman’s investigations for thoroughness and accuracy before the chief would take action on his findings. This helped some officers to feel that police administration was not just taking the conclusions of the ombudsman without ensuring that he was being as objective as he expected the police department to be. In so doing, I never found areas where I felt the ombudsman was not being forthright in his investigations. When we did have differences, they were of the category of different but equally valid interpretations of the meaning of certain evidence.

While there are certainly complaints of civilian review authorities not dealing objectively with the police departments they are charged with overseeing, it is my opinion that, as least under Mr. Murphy, that was not the case in Boise.

In June, 2013, Pierce Murphy left the office to assume a similar position with the Seattle Police Department. As of this posting, his position has not been filled with a permanent replacement.

 

For More Information

The most significant organization for civilian review of police actions is NACOLE, the National Association for Civilian Review of Law Enforcement. Nearly all civilian review authority staff are members of this association. If a city is considering the implementation of civilian review, or someone just wants more information about best practices, this is the place I would recommend going.

 

 

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Book Six – “Proven”

I finally hit on a theme for the next book.  The story combines elements of what was in progress previously, tentatively titled “Death Knell” and adds some new ideas to the mix. So far, I have about 12,000 words done, although some of it will have to be edited even before I put the initial draft together.  This is because the narrative from “Death Knell” needs to be re-worked to fit in with the new material.

But at least it’s a start.  It’s been eleven months since I published “Fire Storm” and it’s been a long trek to bring a new story together.

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Civilian Review of Police Actions – Part II

In this post, I’ll look at what I listed as the fourth type of civilian review authority:

Civilian review staff may receive complaints directly from the public and have the authority to independently investigator those complaints.  The civilian review authority independently makes recommendations for findings to the chief or sheriff.

For purposes of this discussion, I’ll look at the Office of the Community Ombudsman, the civilian review authority in Boise, Idaho.

History

From January 1996 to September 1997, the Boise Police Department’s officers were involved in seven officer-involved shootings.  In all cases except the first, the suspect or suspects were killed.  Additionally, in the September 1997 case, Officer Mark Stall was killed.  He was the first Boise Police officer to die in the line of duty in the department’s 103 year history.

Because of the frequency of the incidents, many citizens became alarmed at the perceived increase in violence in their city.  At this time, the criminal aspects of each shooting were investigated by the Boise Police detective division, including one incident in November 1996 which involved a Boise homicide detective.  Public concern of this practice was escalated when senior police officials made public statements in support of the officers’ actions, often within hours of the shooting incident when it was clear that no comprehensive investigation could have taken place.  (During this time, I was in charge of the homicide unit, as well as other elements of the Criminal Investigation Division, and thus nominally in charge of the criminal investigations.)

The public began to call for an outside review of the shootings, specifically, and of complaints against the police department in general.  At first, the notion was resisted by the mayor and other elected officials, as well as the police chief.  However, in time, the city decided to implement a civilian review authority.  After two abortive attempts to hire someone for the position, the city finally hired former Boise Cascade Corporation Human Resources executive Pierce Murphy.

By the time this occurred, I had been transferred to command Internal Affairs.  It was my responsibility to directly investigate allegations of police misconduct.  Additionally, I would personally investigate officer-involved shootings for any policy violations.  This would put me in direct contact with Murphy and his office.

The Office of the Community Ombudsman

Initially, I found Murphy to be skeptical of any working relationship with Internal Affairs.  However, as we worked to forge a delineation of responsibilities, we both came to respect each other’s work ethic and view of the process.

In setting out responsibilities, we developed guidelines which would serve both the citizens and the department.

Citizens were free to contact either Internal Affairs or the Ombudsman with concerns about police actions.  However, we put in place a good communication system to alert each other about such contacts and agreed that once one agency had accepted a complaint, the complaining citizen could not then file the same complaint with the other agency.  Consistent with the Ombudsman’s charter, however, a citizen whose complaint was investigated by Internal Affairs could appeal the finding to the Ombudsman.
Neither Internal Affairs nor the Ombudsman had a role in disciplinary action for officers found to have violated policy.  That was the purview of the police chief.
The Ombudsman could randomly review Internal Affairs investigations for conformity with best practices.
Internal Affairs and the Ombudsman would jointly investigate any officer-involved shooting case from a policy standpoint.

Concurrently, the Boise Police Department entered into an agreement with four other agencies in the immediate area for an Officer-Involved Shooting Task Force to investigate criminal aspects of such cases.  This would eliminate perceived bias when an agency was ‘investigating itself.’  All five agencies would contribute seasoned homicide detectives to the task force.  However, the agency employing any officer involved in a shooting incident could never take a lead role in investigating that incident.  (This became an interesting point later after I had become the police chief in one of the member agencies.  There was a shooting incident in which officers of four of the five agencies were directly involved in engaging the gun-wielding suspect.  My agency, the Meridian Police Department, took the lead role since we were the only non-involved agency of the task force.  Photo is from the initial news conference of this case where it was announced who would take the lead.)

 

In the next installment, we’ll look at the reaction of both officers and the public as well as the long term working relationship between Internal Affairs and the Ombudsman.

 

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Civilian Review of Police Actions – Part I

Who polices the police?  It’s an age-old question that went unanswered for years.  True, local police were accountable to political leadership such as mayors and city councils, but in too many cases, political expediency took precedence over true accountability.  In actuality, it became the norm for police to decide for themselves whether their members had acted appropriately.  Police internal affairs units were generally responsible for this review.  However, in smaller agencies, police supervisors were the sole arbiter of the actions of their subordinates.

While some decisions regarding propriety of action were criticized, in general the public accepted the idea that the police were the ‘experts’ in their field.  How could someone not trained in police procedures judge police actions?

In the 1970’s, police agencies came to the realization that they could not effectively police a community without help from the community itself – the concept of ‘community policing.’  Police agencies began to engage the community to help in the identification and suppression of crime.  People began to realize that if the community, untrained in ‘police procedure’ could nevertheless contribute to the police mission, perhaps the community could also judge police actions.  Civilian review of police actions was born.

Over the years, municipalities and to a lesser extent counties, have implemented some form of civilian review of police.  Today, almost every large city has some form of civilian review.  However, the mission of civilian review agencies varies greatly.

 

THE AUTHORITY OF CIVILIAN REVIEW

In a broad sense, the authority of civilian review boards or agencies takes three forms:

Staff can only review the process by which police investigators conduct handle citizen complaints and allegations of police misconduct.  They can make recommendations about the procedures to the chief or sheriff, but cannot review actual complaints.
Complainants can appeal the findings of police investigators upon the completion of a police review  of a complaint.  The civilian review authority may then review the investigation and make their own recommendations for findings to the chief or sheriff.
Staff can review every investigation completed by police investigators and make independent recommendations for findings to the chief or sheriff.
Civilian review staff may receive complaints directly from the public and have the authority to independently investigator those complaints.  The civilian review authority independently makes recommendations for findings to the chief or sheriff.

It is important to note that, in no case does the civilian review authority have the power to impose disciplinary action on a police officer.  This maintains the accepted management principle that employees are accountable to their own supervisory chain.  (Should a chief or sheriff consistently fail to adequately discipline employees who are found to have violated policy, that may be addressed by the city leadership or the electorate.  But this is outside the purview of virtually every interaction of civilian review authority)

 

In a future post, we will look at how a civilian review authority of the fourth type actually works and how the police feel about civilian review.

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Do Police ‘Shoot to Kill’?

On TV, you see it all the time.  The suspect is waving a gun or holding it to a hostage’s head or fleeing the scene.  The police draws from the hip and deftly shoots the gun out of the perp’s hand, or shoots him in the leg.  The key phrase here is On TV.  Because that’s not real life.

The short answer to our question – Do Police Shoot to Kill? – in the real world is Yes.  Let’s explore the reasons for that.

 

Deadly force is just what it says — it’s force designed to be lethal.  This is the guiding principle under which all police officers are trained.  If the officer is justified in shooting someone, then the goal is to stop their actions.  The leg is not the target for that.  If the officer only intends to ‘wing ‘em’, then the use of the firearm — deadly force — is probably not justified at all.

Yes, it does happen that an officer has shot the gun out of someone’s hand.  There are also documented cases where the bullet has gone down the barrel of the other guy’s gun, thus jamming it.  But those are flukes and not something you can train for.

The only justification for use of deadly force is the immediate defense of life — the officer’s or someone else’s — or to stop someone who is an imminent threat to the public.  Under that criteria, the goal is to stop — read that kill — the perpetrator before he can carry out his harm.  No winging, no warning shots to maybe scare him off, just stop the immediate threat to life.

And any life-threatening situation which meets that criteria is filled with adrenaline, noise, perhaps darkness — any number of things that make fancy shooting unrealistic.  For that reason, police officers are trained to shoot for the largest part of the body, the torso.  Not the hand – not the leg – not the head, the torso.  But remember that if shooting is justified, then shooting at the most vital part of the body – not to mention the largest target – is justified and appropriate.

 

THE COP SHOT FIRST

This issue is often raised by the family or friends of someone killed by police.  “Yeah, he was pointing a gun at the cop, but the cop shot first.”

There is no requirement that an officer wait until a suspect shoots at him, or at someone else, before he can take action.  The criteria is imminent threat to the public or immediate defense of someone’s life.  Imminent means about to happen.  If the officer reasonably believes (and this is a significant part of the justification) that the subject is about to inflict life-threatening injury, the officer is justified in shooting the suspect to stop that action before it happens.

 

FLEEING FELON

A suspect shoots at a store clerk during a robbery.  The clerk is not hit but the robber flees with the gun.  Are the police justified in using deadly force to apprehend the robber?  While there are several factors in play here, including such considerations as time since the robbery and where the suspect is located, the short answer is yes.

The robber has shown his propensity to use deadly force against a member of the public.  The fact that he missed the clerk and did not kill him does not mitigate the fact that he used deadly force.  Thus, this situation meets the criteria of imminent threat to the public.  The police do not have to wait for the robber to shoot at someone else — and maybe kill that person — before they can utilize deadly force to stop further aggressiveness.  There are some factors that would deter officers from using deadly force in this situation, even if it is justified, that that is beyond the discussion of this post.

The law in this area has changed.  At one time, in the days when I first became a police officer, police were allowed to use deadly force to stop a fleeing felon.  That is, you could shoot someone fleeing from the scene of a felony crime, any felony crime.  However, that view was flawed in that many crimes, while classified as felonies for punishment purposes, do not involve an imminent threat to anyone.  Some felonies may not involve any threat to life at all.  Consider forgery, for example.

The law has changed so that now, the fleeing person must have demonstrated an action which may reasonably believed (there’s that phrase again) to constitute an imminent threat.  And our robbery case illustrates that.

 

 

In a future post, we’ll explore the concept of reasonable belief and how that applies to a police officer’s decision processes.

 

** I must note that I am not a lawyer and that the opinions presented here are a result of my training as a police officer and experience investigating multiple officer involved use of deadly force incidents, both as a criminal investigations commander and as an internal affairs commander.

 

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‘Entitlement’ On Sale

 

From today, February 5, through February 10, Entitlement – An Angela Masters Detective Novel will be on sale for only 99 cents for the Kindle version.

Entitlement received the First Place aware for fiction from the Public Safety Writers Association.

You can find the link for this sale by going to the Entitlement Book Page on this site or directly to the Amazon page.

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FBI Civil Rights Investigations in Police Use of Force

In a previous post, I mentioned federal civil rights investigations as a potential part of the investigation of a police use of force incident, particularly deadly force.  While a federal civil rights investigation is relatively rare in the total number of use of force investigations, it is important to understand it.

Federal v. State/Local

Two issues present themselves in this type of investigation.  First, because the investigation relates to a potential violation of a federal statute, there is no ‘double jeopardy‘ relative to a state/local investigation.  The primary federal statutes is 18 USC 242, Deprivation of Rights Under Color of Law.  Notice that this law says nothing about assault or murder.  It has to do with Constitutionally guaranteed freedoms.  Thus, as in the case of Rodney King in Los Angeles, it is entirely possible for officers to be acquitted under state law but convicted of a federal civil rights violation.

Second, even though the word ‘civil’ appears in the title of the investigation, a federal civil rights investigation is a criminal investigation which can result in incarceration.

It should be noted that there is also a provision for civil penalties under 42 USC 1983, which is the federal statute many people think of when they hear about ‘civil rights.’

 

How It Works

From my experience, this is how the process works.  The FBI and/or the United States Attorney may determine that a possible violation of an individual’s federally protected civil rights may have occurred.  Often, this determination comes initially from media reports.  The FBI then opens an investigation and notifies the head of the involved agency.  (There may be instances where this notification is not made, but in my experience, we were notified by the senior agent of the local FBI office.)

The FBI investigators request copies of all police criminal investigations relating to the incident.  They also conduct an independent investigation, interviewing witnesses, including those who may have already been interviewed by local investigators.  The FBI investigation is then forwarded to the Civil Rights Division of the Department of Justice in Washington, DC.  This division reviews all such investigations, thus ensuring consistency in application.

If the Civil Rights Division attorneys determine that the investigation supports charging the officers under federal law, there will be a trial in federal court in the jurisdiction where the incident occurred.  The standard of proof is ‘beyond a reasonable doubt,’ the same standard that applies to an criminal prosecution.

 

Other Possibilities

While investigations under 18 USC 242 (242 investigations) are the most common, it also possible that a case might develop under 18 USC 241, Conspiracy Against Rights.  Possibilities for this type of charge include evidence that two or more officers planned and/or acted in concert to deprive someone of their federally protected rights.  It might also arise where the FBI investigation indicates that the local criminal investigation was not thorough and thus served to condone the violation.

 

** I must note that I am not a lawyer and that the opinions presented here are a result of my training and experience investigating multiple officer involved use of deadly force incidents, both as a criminal investigations commander and as an internal affairs commander.

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Great Author’s Website

I recently discovered a website dedicated to writers and critiquing their work. The site is called Scribophile. The site functions very much like my monthly local face-to-face writers group but has certain advantages.

In the local group, up to four members can bring writing of up to 3000 words and have their work critiqued by the group. While the feedback is great, not everyone can have their work critiqued at every meeting. For a prolific writer (which I am from time to time) that’s just not enough.

Scribophile allows the writer to upload their work in 3000 word chunks as often as they like (subject to their participation as a critiquer of other writers’ work). And since the website has an international following, the work can receive a wide variety of helpful comments and suggestions.

So far, I find it one of the most helpful websites in terms of my writing.

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Police to Use ‘Tactical Retreat’?

In a January 24, 2015 article in the St. Louis Post-Dispatch, reporter Christine Byers wrote that  some police agencies are considering a policy of ‘tactical retreat’ or ‘tactical withdrawal’ when officers are confronted with ‘difficult situations.’  This comes in the wake of the Michael Brown shooting in Ferguson, MO.

Basically, the strategy is that an officer confronting a potentially violent subject would back away from the person and wait for backup.  Specifically in the Michael Brown incident, Byers quotes University of South Carolina law professor Seth Stroughton as saying that “had (Officer) Wilson been coached in tactical retreat, he instead might have stepped on the gas to drive away from the encounter, and kept (Michael) Brown in sight while waiting for backup.”

On the other side of the issue, Byers notes that “tactical retreat can be a hard sell to police traditionally trained to subdue an adversary – and to keep pouring on force until that is accomplished.”  She quotes Gabe Crocker, president of the St. Louis County Police Association: “Why should we have to change law enforcement nationwide to make exceptions for this violent few when what we should be doing is making it harder for this violent few to have such a powerful lobby on their side.”

Under current law in most states, police are give wide latitude in determining the necessary level of force to use in effecting an arrest.  Officers may consider the ‘totality of circumstances’ in determining the need for use of force.  This standard was upheld in the most current US Supreme Court case regarding the issue, Graham v. Connor (1989).  However, police agencies have nearly universally adopted ‘less lethal’ means of confronting subjects as well, including Tasers and ‘bean bag’ rounds.

So the question posed here is whether police should be required to back away from a lawbreaker because the person may be violent.  For many police officers, the concept is completely antithetical to their stated mission – to keep the public safe.  What happens when the officer disengages from confrontation and, while waiting for backup, the subject injures an innocent third party?

Is Stroughton correct when he says, as quoted by Byers, Wilson “could have been trained to do something different to allow him to apprehend Michael Brown without putting himself in a situation that made him feel deadly force was the only safe response”?

One factor that comes to mind in this discussion is the apparent change in perception as to what the police should do.  How does this current line of thinking contrast with the 1999 mass shooting at Columbine High School, where police waited outside the school for reinforcements, as had been their training and were highly criticized for not taking action soon enough?

 

What do you think?  

(If you are reading this post on Facebook or Google+, please follow the link to the website and comment on the site so we can keep all discussion in one place.)

 

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