Shielded from Justice: Police Brutality and Accountability in the United States
The Christopher Commission found that only forty-two of 2,152 allegations of excessive force from 1986 to 1990 were sustained - or less than 2 percent.103 According to the Christopher Commission "... the complaint system is skewed against complainants."104 The majority of investigations at that time were done by division staff, not IAD, and the commission found this seriously problematic because division investigators often failed even to interview or identify witnesses. The commission found similar problems with IAD investigations, although they were generally of a higher quality than those carried out by the divisions. Asdescribed above, the LAPD's May 1997 report regarding former Det. Mark Fuhrman concluded that internal investigations were still flawed. The Fuhrman report noted that victims frequently were not interviewed during internal investigations of the use of force, that supervisors who were actively involved in use-of-force incidents were permitted to conduct the investigation into the incident, and that record-keeping was so poor that it needed to be reorganized.
Punishment for sustained complaints, the Christopher Commission also found, was more lenient than it should be, with one deputy chief telling the commission that there was greater punishment for conduct that embarrassed the department, such as theft or drug use, than for conduct that reflected improper treatment of citizens, like excessive force (which apparently was not seen as damaging). The less than 2 percent sustained rate for excessive force allegations tends to support this contention. The commission called for an overhaul of the disciplinary system, and the inclusion of the inspector general in the disciplinary process.105 The Police Commission, it said, should hold the chief responsible for applying appropriate disciplinary sanctions. Given the flaws in the process, it was evident to the commission that the problem went beyond the forty-four officers that the commission had identified. The commission noted that, despite the large number of use of force incidents, complaints or shootings, those forty-four officers had received very positive performance evaluations.106
Intake of complaints against LAPD officers has long been criticized by civil rights groups an community activists who claimed that complaint forms were not always being used, and that police personnel were often logging complaints improperly or not at all. In her January 1997 report, the inspector general reported improvements in this area, stating that public information programs had been instituted, that residents had a better idea about how to file complaint, and that 1.81 complaint forms were being used by police personnel. The exception to this improvement, according to the inspector general, was the continued use of miscellaneous memos (See above). As of early 1998, the inspector general reportedthat the police department had provided complaint forms displays in many precincts so that complainants do not have to ask for a form.107
Because not all complaints reached the formal stage, the inspector general noted in her January 1997 report that the total number of complaints was not available. The only numbers available were totals representing the number of cases assigned a "1.81" designation that are closed during a given year. In other words, police personnel may choose not to transform a complaint into a formal 1.81 and instead log it elsewhere, not at all, or as a miscellaneous memo, as described above. IAD numbers of total 1.81 adjudicated complaints, as follows, are therefore no more than a base-line. Those in parentheses were citizen-generated complaints, with the remainder internally generated.108
1991: 2,051 (717)109
1992: 2,359 (944)
1993: 2,017 (787)
1994: 1,529 (642)
1995: 973 (496)
In 1996, there was a total of 1,706 complaints, including 208 alleging unauthorized force, with most of those complaints coming from citizens; a breakdown of internally-generated complaints was not available. In 1997, there was a total of 1,912 complaints, including 219 alleging unauthorized force.110
In response to complaints over incomplete statistics regarding the total number of complaints received alleging misconduct by the LAPD, the department changed its procedures. Beginning in 1998, each complaint, no matter its merit or nature, is now being recorded in one place and investigated. It is expected that in 1998 there will be a dramatic increase in the number of complaints as a result of the new procedures.111 Indeed, during the first two months of 1998, there wereapproximately 800 complaints logged - at that rate, the department would receive nearly 5,000 complaints by year's end.112 There were concerns that by investigating each complaint, whether or not it is clearly frivolous, a significant backlog is likely for all cases. Others contend the new system is similar to those used in other cities, such as Chicago, where each complaint is counted. When asked about the anticipated increase in citizen complaints against the police, IAG's commander predicted that nuisance complaints, rather than abuse complaints, would increase.113
IAG, which was called the Internal Affairs Division until it was reorganized in 1997, is now divided into three offices: the administrative services division (which compiles complaint statistics and analyzes complaint trends, among other duties), the investigations section, and the advocate's office (which conducts boards of rights hearings).114 There have been repeated calls for increasing IAG's staff because its responsibilities have increased. Expansion of IAD staff was also a key recommendation of the Christopher Commission, which recommended that field police stations no longer conduct excessive force and improper police tactic investigations.115 Yet in September 1996, Mayor Riordan defended his budget team's decision to cut back the proposed expansion of internal affairs.116 As described above, following the Fuhrman investigation, there were renewed calls for additional internal affairs personnel. Such increases in staffing, of course, are no substitute for improved diligence and thoroughness in IAG's work. Yet the failure to staff IAG up to the requirements suggested in the Christopher Commission report and by experts since, is troubling.
Complaints alleging officer misconduct can be classified as sustained, not sustained, unfounded, or exonerated.117 Officers found responsible for misconductcan receive a warning, admonishment, official reprimand, suspension, or be dismissed. As noted above, there is a one-year statute of limitations requiring that any action by the chief to suspend or remove an officer must be initiated within a year of the action giving rise to the complaint.118 A board of rights hearing takes place if an officer requests it after receiving notification of a disciplinary action against him or her, or if the action involves a suspension of more than twenty-two days. Until revisions in the 1992 Charter Amendment were implemented, the names of six officers of a rank of captain or above were drawn at random to serve on the board of rights. The accused officer then chose three of the officers, from the six randomly drawn. Now, the board of rights is made up of three members: two command officers and one civilian, with the civilian picked by the Police Commission.119 The Charter Amendment revisions, however, did not eliminate the charged officer's ability to select any two of a list of four command officers provided to serve on the board.120
The Christopher Commission had called for an early warning system to track officers "at risk" of committing abuses. No such system exists yet. The May 1996 Police Commission report found that the Training Evaluation and Management System (TEAMS) is a "far cry from an automated tracking system that permits management to make informed decisions about officers or to identify and manage at-risk employees as envisioned by the Christopher Commission."121 And in November 1997, the Office of the Inspector General released a report focusing on "high-risk" officers and found that the tracking system was still inadequate.122
The OIG's November 1997 report found that the police department could not comprehensively identify employees who were the defendants in civil lawsuits because of the City Attorney's policies. It provided an example of an August 1997 settlement with four plaintiffs in the amount of $125,000 stemming from alleged excessive force used by officers. During the incident, a man was rendered unconscious from a chokehold and his fourteen-year-old son was allegedly struckin the face with the butt of a gun and lost a tooth.123 The OIG found that the department had no record of the lawsuit or settlement, there was no department personnel complaint investigation, and that the involved officers' supervisors knew nothing of the lawsuit or settlement.124
The OIG reported that the department lacked adequate policies to inform sergeants and lieutenants about potential high-risk officers under their command and that there were no written procedures mandating the circulation of information about high-risk officers to those who are accountable for the reduction and control of abusive behavior.125 When OIG staff asked the chief and a deputy chief about the use of quarterly reports describing potential high-risk officers, they were told that the lists were never intended to circulate to employees below the rank of captain.126 Therefore, direct supervisors of officers who are the subjects of repeated complaints are not necessarily aware of the allegations or the trends in such complaints. When asked about this criticism, IAG's commander stated that it was the responsibility of supervisors to check on the officers they supervised, and that they should do so in a proactive manner. He also stated, however, that many of those supervisors do not have direct access to the tracking systems and would need to submit names of their subordinates to a training sergeant who would have access.127
The OIG also called for the elimination of the list of forty-four allegedly at-risk officers identified in the Christopher Commission because the list is outdated.128 The report notes that none of the officers on the list appeared in the October 1, 1997quarterly report. The OIG suggested that instead of monitoring the list of forty-four, the department should better monitor those who are currently "high-risk."129
The LAPD has reportedly received funding from the Justice Department to create an enhanced TEAMS system to track at-risk employees, but it will not be operational for several years.130 The new system would compile all personnel information in one place; currently investigators need to obtain some information from computers and other information from paper files in separate locations. The OIG's November 1997 report also expressed concern that, on the advice of the City Attorney's office, an officer's litigation history has not been included as part of the TEAMS system, thus making it less effective.131
In addition to calling for an early warning system, the Christopher Commission had recommended correcting several procedural anomalies in the LAPD's internal investigations. In shootings involving officers, the commission found that officers were interviewed as a group, allowing them to "get their stories straight."132 Their statements were not recorded until after a pre-interview; the district attorney's office was not allowed to interview the involved officer or witnesses until the police department had concluded its investigation; and by compelling an officer's statement in these internal interviews, the department's procedures meant the statements could not be used in any criminal prosecution. Said the commission, "Other law enforcement agencies have successfully conducted shooting and other investigations without resorting to these techniques. The commission perceives no legitimate reason why the LAPD continues to engage in these practices."133
The district attorney's office used to send a representative to the scene of any police-involved shooting in Los Angeles, but the "roll-out" team (staff assigned tothis duty) was discontinued in 1995. In an August 16, 1995 letter from District Attorney Gil Garcetti's office to an attorney representing the victim of a Los Angeles Sheriff's Department shooting, Garcetti explained: "[T]he department has suffered budget cuts....[O]ur rollout program has been discontinued because of this financial shortfall....[W]e can no longer send attorneys or investigators to shooting scenes. Additionally, as of September 1, 1995, we will discontinue our review of all officer involved shootings, unless the police agency involved believes that their officers have committed some criminal act and have submitted their reports to us with a request for a criminal filing....We deeply regret...we are forced to discontinue our traditional role as independent investigator for the community in officer involved shootings."134 Even before this, however, according to press reports, district attorney review of shootings had not made much of a difference. Between 1990 and the first half of 1994, the district attorney's office reviewed 284 LAPD shooting investigations, and prosecutors brought charges only once.135
IAD is still notified when there is an officer-involved shooting, and its investigators may go to the scene of the shooting, as does the Robbery/Homicide Division, which handles all shooting investigations; Robbery/Homicide is also responsible for investigating any in-custody death.136 When Robbery/Homicide investigates, the involved officer is compelled to cooperate or may be dismissed. Because the statement is compelled, it cannot be used in civil or criminal trials. Whether the investigation is by IAD or by Robbery/Homicide, officers involved in shootings do not have to speak with any investigator until they have consulted with an attorney. Around the same time that the D.A.'s roll-out team was suspended, the Police Protective League (the police union) created a roll-out team for officers involved in shootings, when an officer shoots and hits someone, and for cases in which someone dies in custody in a non-suicidal situation. This means that D.A. investigators are not on the scene, but attorneys to defend the involved officer are always available. According to IAG's Commander, the union attorneys do not playa constructive role and often prolong an investigation unnecessarily by advising an officer not to provide an account about what took place.137
A Robbery/Homicide Division representative told Human Rights Watch that there was a total of 111 weapons discharges in 1994; 106 in 1995, and 122 in 1996.138 In 1994, forty-one suspects were killed or injured in shootings, forty-four were killed or injured in 1995, and fifty-one were killed or injured in 1996. The Robbery/Homicide representative told Human Rights Watch, however, that it has been "many, many" years since an on-duty shooting has been ruled "out of policy."139 And according to the IAG Commander "the vast majority" of shootings are found "within policy."140
The Christopher Commission highlighted the problem of the department's "code of silence" as inhibiting investigations into excessive force cases.141 "When an officer finally gets fed up and comes forward to speak the truth, that will mark the end of his or her police career. The police profession will not tolerate it, and civilian authorities will close their eyes when the retaliatory machinery comes down on the officer."142 Said former Assistant Chief Jesse Brewer, officers will not report excessive force when it happens, and if it later comes out, "they try to save themselves by saying, `I don't know,'or `It didn't happen' because if it comes out that they knew it happened and did nothing about it, then they would be subject to a personnel complaint for failing to take appropriate action."143 The commission concluded, "Police officers are given special powers, unique in our society, to use force, even deadly force, in the furtherance of their duties. Along with that power, however, must come the responsibility of loyalty first to the public the officers serve. That requires that the code of silence not be used as a shield to hide misconduct."144
After the commission's report, the department instituted code-of-silence violation prosecutions; the January 1997 inspector general's report criticized the dwindling number of such prosecutions in recent years. This is a serious concern. It may be partially offset, however, by a concurrent development, noted above, that should lead to more serious and consistent disciplinary sanctions against officers engaged in abuses.
106 Ibid., p. 40. According to press reports, as of October 1995, three of the forty-four had been fired, ten had quit, and nine had been promoted. Two reportedly killed suspects while on duty, and one was accused of falsifying evidence in a murder trial. Alan Abrahamson, "What has happened to the `LAPD 44'?" Los Angeles Times, October 15, 1995.
108 In order to file an internal complaint, police department personnel are required to have a supervisor's approval. Telephone interview, Inspector General Mader, April 20, 1998. This requirement may inhibit complaints against officers' superiors or complaints the officer wishes to keep confidential.
117 According to the IAG's Commander, the biggest barrier to curtailing abuses and finding a complaint sustained is the lack of witnesses, both from inside the department and in the community. Telephone interview, IAG Commander McMurray, May 8, 1998.
126 Ibid. The OIG report also revealed that there was a ten-month period (between November 1996 and October 1997) during which the department failed to provide quarterly reports of employees with three or more personnel complaints
129 Ibid., p. 13. The report also describes the failure of the department to track employees facing criminal charges or who are on criminal probation, and noted that the department lacks standards and policies to determine whether these officers should continue to perform field duties. Further, the department also lacks adequate policies or standards to appropriately assign officers with recent sustained administrative discipline for integrity-related offenses.
132 Christopher Commission report, p. 161. According to the IAG Commander, this practice was discontinued around the time of the Christopher Commission report. Telephone interview, IAG Commander McMurray, May 8, 1998.
135 Eric Lichtblau, "LAPD officers faulted in 3 of 4 shooting cases," Los Angeles Times, August 14, 1994. In a positive development, the inspector general's office now reviews all officer-involved shootings.
© June 1998
Human Rights Watch