Bill Bratton came to LAPD during a time of crisis. Morale was low. The then-chief of police had received a huge no-confidence vote. Officers were staying inside their cars instead of doing police work out of fear of getting in trouble from an out-of-control disciplinary system.

“I have never seen a department eat its own like LAPD does,” Bratton told the members at the League delegates conference shortly after he arrived. He laid down a new policy that the League has strived to help enforce.

“We cannot let the corrupt actions of a few ruin the reputation of more than 9,000 honest, hard-working cops. But let me make it equally clear that the game of ‘gotcha’ in this Department is coming to an end. If you are in the right, we will back you up—the benefit of the doubt goes to you. If you are wrong, we will retrain you. If you are corrupt, we will jail you,” he said.

Under Bratton’s leadership, officers began to respond to the new environment. The result has been a crime rate that is significantly down.

Chief Beck has repeatedly said that he intends to continue with Bratton’s legacy and practices. Officers should be entitled to believe that the game of gotcha will continue to be over.

But wait! Why are the below scenarios occurring? Figuratively speaking, Chief Bratton’s administrative corpse was still warm when things started to head back down the gotcha trail. Consider the following.

Roll-Out Reps Have Been Curtailed

For many years, the Officer Representation Section has been allowed to roll out to incidents in which Internal Affairs investigators have been dispatched, for the purpose of informing the officer of the procedure that he or she was about to go through and to provide advice. If there was going to be an interview, the rep was there to represent the officer. The rep made sure that the rules were followed and the officer’s rights were protected. The reps were often helpful to the Department by explaining to the officer what they were obligated to do (such as provide a breath sample when being investigated for DUI) and when.

The presence of the ORS rep brought comfort to the League that its members’ rights were being protected. If something went wildly wrong, the rep knew whom to call.

Recently, the ORS has been advised that it will not roll out to incidents that have a criminal element because it exists only to provide officers with representation for administrative issues. What IA call-out does not pertain to incidents that are not arguably criminal? None. IA does not roll out on failures to qualify.

Although it is technically true that officers do not have a right to a non-attorney rep during a criminal interview, all criminal incidents eventually end up in the administrative field. If an officer is involved in a criminal incident in an outside jurisdiction, you can be sure that an IA team will respond. They, too, have no jurisdiction over the criminal investigation, but they will be there gathering evidence and maybe statements to be used in the administrative investigation that will surely follow. Therefore, there is a need for an ORS rep to advise the officer regarding the administrative issues to come. It used to be, if IA rolls, ORS rolls. That seemed fair.

The cancellation of this policy is a return to gotcha.

If Chief Beck truly cares for the welfare of the troops, this should be one of his first priorities for correction. It is only fair that the officer have an experienced, trained person present to provide him or her with information about what is going to happen and to provide advice. It is a system that has worked well for years. The League can no longer have confidence in the present system and will be forced into an extensive training mission to educate officers as to their rights if it is not changed.

In the meantime, officers need to understand some basic principles when they find themselves involved in an off-duty incident that results in an IA roll-out. There are many stories of officers who have not understood these principles who are no longer on the job. They are given in capitals because they should be shouted!

INTERNAL AFFAIRS IS NOT YOUR FRIEND. THE INVESTIGATOR’S FIRST DUTY IS TO DETERMINE IF YOU MAY HAVE COMMITTED A CRIME OR MISCONDUCT AND GATHER EVIDENCE AGAINST YOU. IT IS THE DEPARTMENT THAT MAY BE ASSISTING IN YOUR PROSECUTION IN COURT OR AT A BOARD OF RIGHTS.

YOU ARE ENTITLED TO REPRESENTATION DURING AN INTERVIEW BUT ONLY IF YOU ASK FOR IT. ONCE YOU HAVE ASKED FOR REPRESENTATION, QUESTIONING MUST STOP UNTIL IT HAS BEEN OBTAINED.

YOU DO NOT HAVE TO CONSENT TO SEARCHES. THIS SITUATION IS NOT ONE WHERE IT IS ADVISABLE TO GO ALONG WITH THE PROGRAM ABSENT COMPETENT LEGAL ADVICE. ANY SEARCHES THAT ARE GOING TO BE PERFORMED SHOULD BE WITHOUT YOUR CONSENT. CONSENT REMOVES THE ABILITY TO CHALLENGE THE SEARCH ON OTHER LEGAL GROUNDS AT A LATER TIME.

This is not to say that the IA investigators are evil. They have a job to do. Many times their efforts assist in clearing officers, but you are not in a position to count on that fact while the incident is unfolding.

No More Video Watching at Categorical Uses of Force

During the delegates conference in June of 2007, Chief Bratton was asked a question that bothered many of the delegates: Would officers who had been involved in videotaped uses of force be allowed to watch the videos prior to their interrogation, to help them refresh their memories and be accurate? After all, the officer-involved-shooting interview is likely to be the most important interview in an officer’s career. Accuracy is vital; a charge of false and misleading is usually fatal to a career.

The chief, backed up by the deputy chief of Internal Affairs, assured the delegates that the age of gotcha was over and officers would be allowed to view videos—not only in use-of-force investigations, but in all Internal Affairs investigations (although there could be exceptions for unusual cases where revealing that there was a video would jeopardize an investigation). And so it was—until a few months ago.

The policy was changed for categorical uses of force only. The stated purpose was the necessity to capture an officer’s “perceptions,” which were supposed to be more important than accuracy. Supposedly, the Department would understand that the physical and mental effects of a high-stress, life-threatening incident could result in misconceptions of the facts that might turn out to make the statement inconsistent with the video. Yet a month ago, an officer involved in a shooting was charged with false and misleading because his statement about the night of the shooting was different than other evidence and he was terminated. Obviously, the Department’s understanding cannot be counted upon.

The plain fact is that an officer has the right and the obligation to be accurate. Anything that helps refresh the officer’s recollection should be welcomed. The statement the officer makes on the day of the shooting will be torn apart and used by everyone who has an interest in blaming the officer or the Department for the incident. Accuracy is more important than perception when your career is on the line.

Chief Beck can correct this with the stroke of a pen. We sincerely hope he does.

Technical Legal Baloney

It is no secret that there is a unit within the Department that spends a majority of its time stinging officers and supervisors on whether or not they will take a personnel complaint from citizens. It is done by station walk-ins, flag-downs and phone calls, all by undercover officers usually making vague allegations of misconduct against unknown officers. The object of these stings is to provide the police commission with statistics on compliance with the Consent Decree’s requirements to take all complaints—no matter how ridiculous. The pretext contact is made and then the unit sits back and waits to see if a personnel complaint comes through the system. If it does not, a personnel complaint is made and the sting target is interviewed.

We all know that if an officer is interviewed by Internal Affairs and then there is a second interview at a later time, the officer is entitled to review the tape of the first interview before going into the second.

But what if the interview by the Internal Affairs undercover officer is done like this: The IA officer tapes their side of the conversation on the phone, but not the answers of the subject officer. Instead of taping him or her, the IA officer makes notes of the officer’s response. This is the method used to circumvent the legal ban on tape recording phone calls for non-criminal investigations.

The League believes that this constitutes a prior interview, giving the officer the right to review that tape and the notes of the answers prior to the second interview. The Department thinks not, so the League will have to go to court. The officer will be ordered to submit to the interview without the ability to review the tape and notes of the prior interview. Apparently, the chance to elevate a failure to take a complaint to a false and misleading statement will not be surrendered. Why settle for a misdemeanor when you might score a felony?

If the age of gotcha is over, why is it necessary to set up an officer for this kind of fall over whether or not a personnel complaint was taken? The interrogation will be about a phone call months before that the subject officer would hardly consider to be important. The officer said what was said. Let him or her explain why. If the explanation is insufficient, apply the discipline. Withholding tapes and notes under these conditions only makes the officers (and all their friends) resent Internal Affairs. Legal technicalities do not substitute for fairness.

These and many other things can be fixed by the new chief of police. A new downgrade policy has been implemented that virtually allows a captain to downgrade an officer on a whim. Confidentiality of personnel information is repeatedly jeopardized. Internal Affairs is videotaping personnel complaint interviews according to vague standards. Officers have been refused the opportunity to combine Boards of Rights, and financial disclosure is in full force.

Chief Beck has a lot of problems to solve in these hard times. He should hear warning bells in the trend to return to the age of gotcha. Most of the problems facing us today can be overcome by a fully functioning police force made up of officers with the confidence that they can do their jobs and receive fair treatment and backing by their leaders. Chief Beck has the kind of track record that should give the officers hope.

Be legally careful out there.

What is it? Who gives it? Who gets it? What do they do with it? Is one enough? Does an officer get a representative before he gives one? Does a supervisor get a representative before he tells about getting one? And finally, is there a way to always do it right?

What Is a Public Safety Statement?

First of all, if you search for the words “public safety statement” through all of the cases, both state and federal, in the United States, you will get no hits. In other words, there is no case law on what we call a public safety statement. So where did it come from? It came as an exception to the requirement to Mirandize an in-custody suspect. In other words, “public safety” excused compliance with Miranda.

It came about like this. Police chased a rapist into a supermarket. When the rapist was caught, he was wearing an empty holster. The arresting officer asked him where the gun was. He replied, “Over there,” indicating where he had hidden it. The officer retrieved a loaded gun from that location. Later at trial, because he was in custody and questioned without being read his Miranda rights, the rapist sought to suppress his statement showing knowledge of the gun. The court ruled that there was an exception to the requirement to obtain a Miranda waiver prior to questioning an in-custody suspect. That exception was the “public safety” exception (New York vs. Quarles, (1984) 467 US 649). One can imagine the danger of having a loaded gun tucked in between the Frosted Flakes and Captain Crunch boxes while children are selecting their favorite breakfast cereals in a supermarket.

This is the source of the Department’s belief that they are entitled to a “public safety statement” from officers involved in a use of force.

Note two things. The first is that this is an issue of the right to representation. The next is that it is an issue of the content of the statement. Or to put it another way, because of the immediate need to know certain information dealing directly with the “public safety,” there is no time to allow an officer to have representation before he provides the information required to protect the public safety.

There is no requirement to tell anyone what happened prior to obtaining representation. Statements concerning why you shot, how you got here, what you saw, your tactics and what you had for Code-7 are not needed for the public safety.

Although there is no case law on point, arguably you would give the following information. The direction that you fired rounds (so we can check to see if there are any victims of friendly fire downrange). The location of anyone that is injured (so we can get them medical attention). If there are any outstanding suspects, and if so, their description, direction of travel, length of time since they left, what they are wanted for and any weapons they are armed with (so we can catch them before they hurt someone). And the location of any evidence that needs to be protected (so we can secure the scene before a citizen wanders in and destroys evidence or hurts themselves picking up the knife or gun left at the scene).

That’s it. You can be sure that you will tell your story in great detail before the night is over, but wait until the proper time and wait until you have representation.

Who Gives a Public Safety Statement?

The involved officers give the public safety statement. Remember, the exception denying you representation before you speak is time sensitive. It is the emergency nature of the need to know that is the basis of the exception. Someone asking you two days later about the direction you fired would be the correct question, but much too late. The public emergency must exist at the time the question is asked; otherwise, it need not be answered without representation. Conversely, even if the public emergency exists at the time a question is asked, the question must be related to the emergency, or it can wait until you get representation.

Who Receives the Public Safety Statement?

Typically, the first supervisor to arrive at the scene obtains the public safety statement and acts on it. He, or she, makes sure that broadcasts are made, ambulances are called and crime scene tape is set up. The receiver of a public statement does not have to give a public statement unless the public emergency still exists. In other words, when the detectives show up two hours later, the emergency is likely to have dissipated. If so, the detectives cannot demand a public safety statement from a supervisor who received a public statement and deny that supervisor representation.

What Do They Do With a Public Safety Statement?

The most immediate thing done with the public safety statement is by Force Investigation Division. They use it to provide direction to their investigation. Remember that the involved officers are all separated and scattered throughout the station waiting for their walk-throughs and interviews.

The receiving supervisor will be questioned about the public safety statement and his actions in response thereto on tape before the night is over. From that point on, the public safety statement is evidence. Evidence for whom? Well, what have you got? It could be evidence that the public safety statement receiving sergeant did not follow the rules of the Department and be used against him, or her, in a personnel complaint. It could be evidence that the District Attorney uses to prove that the officer committed a crime. It could be evidence in front of a civil jury when the Department and officer get sued. It could be evidence before a Board of Rights against the officer for conflicting statements. It could be evidence used by the Department of Justice to prove a violation of civil rights. And on, and on, and on.

Is One Public Safety Statement Enough? Maybe, maybe not. If one officer supplies all the information necessary to apprehend the suspects, render medical aid and protect the evidence, then one officer’s statement is enough. If not, then another officer’s public safety statement might be necessary.

There is no requirement to line up all the officers that drove through the reporting district and obtain public safety statements from each one. Unfortunately, the public safety statement is sometimes used as a guise to get a statement of “what happened” without going through the inconvenience of having a representative present for the officer. Remember, “what happened” is not the proper subject of a public safety statement.

Does an Officer Get a Representative Before He Gives a Public Safety Statement?

Remember, it is the emergency nature of the situation that dictates the exception to having representation. The rule is not “you don’t get a representative.” The rule is “there is no time to wait for a representative.” Theoretically, if a representative arrives at the same time as the first supervisor, the officer is entitled to the presence of the representative while giving the public safety statement since it does not impede the prompt dissemination of the information.

Does a Supervisor Get a Representative Before He is Questioned About Getting a Public Safety Statement?

By the time the supervisor who took the public safety statement from the involved officer is asked what the officer said in his public safety statement, presumably all of the actions necessary to apprehend the suspect, provide medical assistance and protect the evidence have been taken and the emergency aspect is over. Therefore, if the supervisor feels the need for a representative, the emergency reason to deprive him of one no longer exists. He gets a representative.

And the supervisor should obtain representation. Special Order No. 19 is filled with duties imposed on the supervisor and the Consent Decree requires that the supervisor’s actions be closely scrutinized. In many cases, the supervisor is in more danger of administrative action than the officer who fired his, or her, weapon.

Is There a Way to Always Do It Right?

A little white card supplied by the League and reprinted below can solve most of the problems associated with the public safety statement. The card is from Department Notice 2/15/07. It is mandated by the Department. The required statement provides focus, is easy to use and should become a habit when the public safety statement issue presents itself. Sergeants should carry this in their wallets. If the supervisor doesn’t have one, the officer should pull it out of his, or her, wallet, and give it to the supervisor. If the supervisor is offended by this, read the card to the supervisor yourself and answer the questions. Other questions outside the immediate need for public safety should be postponed until a representative can be obtained.

Remember, the only thing we know for sure about the first report coming off the battlefield is that it will be wrong. Simple, direct questions focused on the needed information are the best way to guarantee accuracy. Public safety statements are a minefield of unintended consequences for the unwary. Close adherence to the League’s recommended procedure will stop you from stepping on it, or in it, for that matter.

Need some cards? Call the League or download a copy from www.warningbells.com.

Be legally careful out there.