cause vs. blame

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“Fundamentals of a reasonable IA investigation”

An LLRMI webinar with

Lou ReiterLou Reiter LLRMI 2018

Cause vs. Blame

• FAA and NTSB investigations

Lou Reiter LLRMI 2018


IA/OPS Wellness Exam

My agency has conducted an audit of our IA/OPS operation within the past.

• Year

• 2 years• 3 years

• Never• Don’t know

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Most common complaintsshould be the easiest

< .001 percent

of out workload


Why IA/OPS investigations• Historical (‘31; Kerner; Christopher, 21st

Century Policing)

• Plaintiff = Monell, agency and supervisory

• Employee challenges of disparate

treatment and retaliation

• Community push for

transparency/oversight

• DOJ Pattern/Practice investigations

• Court analysis and decisions.Lou Reiter LLRMI 2018

IA/OPS =Frontline RiskManagement

Consider some court cases


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Groark v. Timek989 F.Supp.2d 378

• The Third Circuit has noted:”The ["IA"]

investigative process must be real. It must

have some teeth. It must answer to the

citizen by providing at least a rudimentary

chance of redress when injustice is done. The mere fact of investigation for the sake

of investigation does not fulfill a city's

obligation to its citizens.”


• Used NJ IA model policy as guide

• IA records still discoverable even if P

didn’t file one

• No privilege as uses Federal law and IA

records are relevant to P claim

• Not just stats, must show ‘why’ wrongly

decided

• Post incident may be relevant, but narrow

scope to similar type incidents

• Court noted “not one of the hundreds of

E/F complaints has been sustained.”


Avoiding known risk

• 2013 Atlantic City settle $3m force/dog bite

• Officers take 5th and major reason for settle

• 2014 55th largest city in NJ; #1 in lawsuits

• K9 ofcr. 21 complaints 08-11; 8 lawsuits 3 yrs.

• 2007 Walker v. Jacques; ofcr. 4 complaints in 2

years

• Chief (05 depo) EWS “an unmitigated disaster”

and discontinued; court not moving force.


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Shehada v. Tavss965 F.Supp. 2d 1358

• Miami Beach PD fatal OIS and officer not

disciplined

• P id’s 19 other IA investigations involving some sort of use of force

• Court decision on Monell claim:


• “Third and perhaps most significantly, Plaintiffs ignore that each complaint was investigated by Internal Affairs,

and that in each case Internal Affairs interviewed numerous witnesses and officers, collected and

analyzed physical evidence, and prepared exhaustive findings and conclusions. And contrary to Plaintiff's

assertions, in some cases violations were found and

disciplinary measures were taken. Finally, to the extent that Tavss's use of force may have been unlawful in the

case at bar, the department's failure to discipline or terminate Tavss following the subject incident cannot support Plaintiffs' deliberate-indifference claim, as it

could not have been the legal cause of Husien's constitutional deprivation.”


Borton v. City of Dothan734 F.Supp.2d 1237

• Def. verdict re: ‘inadequate citizen

complaint investigation’

• Must show affirmative link between investigation/prior complaints was ‘moving

force’ to Constitutional violation

• Contention that one witness not

interviewed not sufficient.


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Clark v. City of Muskegon

2000 U.S. Dist. LEXIS 6660 (WD MI. 2000)Clark 4

• “A police department’s primary function is to investigate reports of malfeasance. When it fails to perform that function effectively, an obvious consequence is an increase in malfeasance since perpetrators will feel that their actions will go unpunished. This is no less true when…police officer. In fact, because police departments are vested with increased power and authority over ordinary citizens, police departments must be especially vigilant when complaints of excessive force are lodged…Citizen complaint processes are designed to reduce police misconduct. When citizen complaints are discouraged, ignored and discarded, it is an obvious and predictable consequence that in an department with 77 officers, some officers will realize they can commit misconduct with impunity.”


The 4 essentials

• Front end…acceptance of the complaint

• Witnesses and interviews

• Document/evidence collection

• Adjudication of the completed

investigation.



The complaint process• A reasonable brochure/website

• Some unnecessary pitfalls on signatures

and criminal admonishments

• The initial supervisor contact

• Taking the initial complaint

– Record it, if practical

– Should the complainant fill out the report?

– Ask for medical release, if claiming injuries

– Did s/he record/photo the encounter?

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ADMINISTRATIVE INVESTIGATION AUDIT FORMANYPLACE POLICE DEPARTMENT

LOU REITER & ASSOCIATES

Case # _______ Occurred_____ Filed_____Completed_____Total__________

Officer(s):

Complainant(s):

Unit investigating and investigator(s):

Allegation(s):

SUMMARY OF INCIDENT:

Notes of class review

Definition of a Complaint

A valid complaint can come from both an

external and internal source and must

be:

1. An allegation from any source of

circumstance amounting to a specific

act or omission by an employee which

if proven true would normally result in

some form of discipline, sanction or

remediation

Reiter and Associates © 2011

OR



2. An expression of dissatisfaction

from an external source with a

policy, procedure, practice,

philosophy, service level or legal standard of the agency

Reiter and Associates © 2011Lou Reiter LLRMI 2018

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Note:

A disagreement over the validity of a

traffic code citation or arrest is notground for a personal complaint.

The citizen should be directed to the

proper court system for resolution.

Reiter and Associates © 2011Lou Reiter LLRMI 2018


Audit Checkpoints

• Quality control check

• Focal point of citizen contact

• Identify your most frequent citizen

contact points

• Attitude greats us the most

trouble.

2007 South Florida news

• Only 3 of 38 police agencies had or

provided any information or documentation

how to file a complaint

• Three of the agencies were prominently

featured (Lauderhill, Sea Ranch Lakes

and Hiaheah Gardens) and in 2016 still

have nothing on their websites

• One accredited by CFA 05, 08, 11 and 14

and “recognized” by CALEA in ‘05Lou Reiter LLRMI 2018

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Philadelphia Daily NewsJan. 31, 2011

• “In spot checks conducted recently by the Daily News, supervisors at five police

districts refused to allow the complainant

to remain anonymous – which is against

the Police Department’s own policy – and

wouldn’t supply the form to reporters who

posed as complainants.”Lou Reiter LLRMI 2018

2012 CT ACLU study

• Required to appear in person at the

station

• Don’t take 3rd party or anonymous complaints

• Complainants are required to sign

acknowledging criminal charge for

false statements.


Nebraska ACLU study 2014

• The study found only eight of the 31 agencies had information about the complaint process listed online. In the Omaha area, ACLU reviewed

complaint policies at the Omaha Police Department, Bellevue Police

Department, Douglas County Sheriff, Sarpy County Sheriff and Nebraska State Patrol. The ACLU reported that all of these agencies

had online information about how to file a complaint, but the information

wasn’t always complete and sometimes included intimidating language. Omaha Police Department was applauded for having a clear

policy on complaint procedures. The city also provides online complaint

instructions in English and Spanish. The ACLU scolded Omaha for using intimidating language that could deter someone from filing a

complaint. The Police Department’s site warns people that filing a false

complaint is a criminal offense. Complainants are also required to be interviewed by an Omaha internal affairs investigator.


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NYPD 2014

NEW YORK—Handling of complaints against

police misconduct is too complicated and “too crazy,” according to Richard Emery, chair of the Civilian Complaint Review Board (CCRB), a city

agency dealing with the complaints. Emery, a former civil rights lawyer, was appointed less than a month ago by Mayor Bill de Blasio and needs to

improve the image of the board, which has been criticized as ineffective. He met with Police

Commissioner Bill Bratton and his disciplinary staff Tuesday and they all agreed the complaint

process is broken and “needs change and reform,” Emery said at the CCRB meeting

Wednesday. Lou Reiter LLRMI 2018

Minneapolis 2016 internal audit• “In 13 of 15 attempts to test-file complaints

at police precincts, people were not given opportunities to file complaints.

• Police department websites offer inconsistent information on how to file a complaint.

• The OPCR and IAU are only open during business hours, and they can be intimidating places for some people to file reports and have offices that aren't clearly marked.”


Role of the first supervisor

• Is a preliminary investigation needed?

• Complaint resolution at the front end

– Reasonable role for a supervisor

– Documentation

– Random audit


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Key frontend audit points

• Front end of the system

• Completion time

• Percentage of civilian vs. agency initiated

complaints

• Comparison of IA/OPS and field level

performance

• What is the requirement for the citizen to

file a complaint?


Witnesses and

Interviews


Key interview audits points

• Consistency in dealing with witnesses

• Was policy followed; when not, was it

properly documented

• Were reasonable steps taken to locate the

complainant?

• What information was available regarding

other wits and was it followed up on?

• Was an area/booking canvass done?

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INTERVIEWS:Complainant(s) YN 1 2 3 4 5 6Accused officer(s) YN 1 2 3 4 5 6Civilian witnesses YN 1 2 3 4 5 6Agency wit(s) YN 1 2 3 4 5 6

YN contacted 1:taped and transcribed 2:taped and summarized3:investigative narrative 4:witness form only5:letter/memo only 6:refused

Witness/jail canvass or other attempt to locate: Y N N/ANotes:

COMPLAINANT FOLLOW-UP Random Uncooperative Withdrawn



Interviews

• Canvass sheet

• Who does what and who can attend which

interviews

• Preparing for the interviews of significant

persons

• Interviewing the subject injured

• Re-contact of persons identified in the

canvass.

Complainant specifics

• Time delay

• Who did s/he relate encounter to

afterwards?

• Did s/he record contact, photographs, or

document personal thoughts?

• What outcome do they want?


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We are doing INTERVIEWS

We are not doing INTERROGATIONS


Evaluate your skills?

• What percentage of your interview

is consumed by your voice rather

than the subject of the interview?

Normal order of interviews

• Aggrieved person

• Other civilian witnesses

• Other agency employees

• Accused agency employee(s)


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Compelled statements

• Garrity = public employee

• Not protected from administrative or civil

processes

• Criminal vs administrative and role of

prosecutor

• Protect your promise to the employee even

if it has to be turned over.



Why tape record?

• Where did pressure to tape record

begin?

• Summarize vs. verbatim

• Allows you to observe and react

• Provides supervisory oversight

Videos

• How should you handle videos with all

persons you’ll be interviewing?

• Do you have to provide anything to the accused employee prior to the interview?


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Colusi case


“The record shows that Officer Bullock gave

numerous formal accounts of the incident, including:

(1) a statement on the night of the shooting, (2) a

statement within days thereafter, (3) statements

during internal affairs interviews and disciplinary

proceedings conducted by the police department, as

well as (4) by deposition in this case. Understandably,

perhaps, not all of his accounts are entirely

consistent with each other, nor entirely consistent

with accounts given by several witnesses who were

present at the time of the shooting.”Lou Reiter LLRMI 2018

Issues in Colusi

• Necessity for multiple interviews?

• Is there any need for the accused employee to

write a responding report?

• The issue of proffered statement during

critical incident investigations.


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Where to conduct civilian

interviews



Document

collection


Depart from normal practice

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“EVIL ITSELF”

“APPEARANCE OF EVIL”

is often worse than


Four Corners

He hit me for no reason

Meds

supervisor

legal

reports


EVIDENCE (availability, preserved, analyzed)Police reports crime arrest booking citation property court docs

Data checks criminal traffic officer complaint/force history

PhotographicMedicalCommunications recordsOfficer activity documentsLetter to complainantOther:

Notes:


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Key document audit points

• Were appropriate documents and

information sources assessed?

• When an obvious failure was determined, was it followed up on?

• Was there an analysis of the adequacy of

the documentation/evidence done?

• Reasonable sources – communications, MDT, videos

Electronic evidence

• Communications records and dispatch

• GPS

• Cell phones (civilian and employee)

• Surveillance cameras.



Address the meds

• Officer interview: “I checked on the guy 15 minutes before I

noticed he was unresponsive. He

was moaning.”• EMT report: “The subject was in

full rigor when we arrived.”

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Medical issues

• The medical release and photos made by

the complainant

• Booking photos/video

• Sources for assistance on meds

• How to interpret documentation

• Decipher the handwritten

• Need to use as a resource of how injury

could have occurred.


ADJUDICATION (outcome, notes on process)Not sustained Unfounded Exonerated Withdrawn OtherSustained/penalty _____________________________________

Notes:



Key adjudication audit points

• Is the adjudication supported by the

investigation?

• Is the administrative insight narrative adequate to withstand outside review?

• Are you required to make an adjudication

decision?

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Adjudication

• Your investigation is the major source of

documentation for the agency’s review and adjudication

• Based upon the investigation

• Discipline should be fair, reasonable, and

defensible

• Matrix vs. individualized discipline.


Burden of Proof

• To a moral certainty

• Beyond a reasonable doubt

• Clear and convincing evidence

• Preponderance of evidence


Administrative Insight

• A narrative “mind map” of your decision-

making process

• Your analytical process of the investigation

• Your evaluation of the strengths and weakness

of the persons interviewed and the evidence

produced

• Your deliberation and points of concern in

deciding the specific and individualized

discipline for the employee.

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Your thoughts are essential!

• Courts continuously refer to “rational

reasoning” and the specific needs of “quasi

military” “chain of command” and “espirit

de corps” of law enforcement agencies.

• Clarify your discipline decisions and put

written policy into agency necessities.


The 4 essentials

• Front end…acceptance of the

complaint

• Witnesses and interviews

• Document/evidence collection

• Adjudication of the completed

investigation.


“Fundamentals of a reasonable IA

investigation”

Questions?


cause vs. blame

Documents