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
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
Lou Reiter LLRMI 2018
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
Lou Reiter LLRMI 2018
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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.”
Lou Reiter LLRMI 2018
• 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.”
Lou Reiter LLRMI 2018
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.
Lou Reiter LLRMI 2018
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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:
Lou Reiter LLRMI 2018
• “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.”
Lou Reiter LLRMI 2018
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.
Lou Reiter LLRMI 2018
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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.”
Lou Reiter LLRMI 2018
The 4 essentials
• Front end…acceptance of the complaint
• Witnesses and interviews
• Document/evidence collection
• Adjudication of the completed
investigation.
Lou Reiter LLRMI 2018
Lou Reiter LLRMI 2018
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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Lou Reiter LLRMI 2018
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
Lou Reiter LLRMI 2018
Definition of a Complaint
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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Definition of a Complaint
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
Lou 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.
Lou Reiter LLRMI 2018
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.
Lou Reiter LLRMI 2018
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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.”
Lou Reiter LLRMI 2018
Role of the first supervisor
• Is a preliminary investigation needed?
• Complaint resolution at the front end
– Reasonable role for a supervisor
– Documentation
– Random audit
Lou Reiter LLRMI 2018
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Lou Reiter LLRMI 2018
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?
Lou Reiter LLRMI 2018
Witnesses and
Interviews
Lou Reiter LLRMI 2018
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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Lou Reiter LLRMI 2018
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
Notes of class review
Lou Reiter LLRMI 2018
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?
Lou Reiter LLRMI 2018
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Lou Reiter LLRMI 2018
We are doing INTERVIEWS
We are not doing INTERROGATIONS
Lou Reiter LLRMI 2018
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)
Lou Reiter LLRMI 2018
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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.
Lou Reiter LLRMI 2018
Lou Reiter LLRMI 2018
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?
Lou Reiter LLRMI 2018
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Colusi case
Lou Reiter LLRMI 2018
“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.
Lou Reiter LLRMI 2018
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Where to conduct civilian
interviews
Lou Reiter LLRMI 2018
Lou Reiter LLRMI 2018
Document
collection
Lou Reiter LLRMI 2018
Depart from normal practice
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Lou Reiter LLRMI 2018
“EVIL ITSELF”
“APPEARANCE OF EVIL”
is often worse than
Lou Reiter LLRMI 2018
Four Corners
He hit me for no reason
Meds
supervisor
legal
reports
Lou Reiter LLRMI 2018
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:
Notes of class review
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Lou Reiter LLRMI 2018
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.
Lou Reiter LLRMI 2018
Lou Reiter LLRMI 2018
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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Lou Reiter LLRMI 2018
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.
Lou Reiter LLRMI 2018
ADJUDICATION (outcome, notes on process)Not sustained Unfounded Exonerated Withdrawn OtherSustained/penalty _____________________________________
Notes:
Notes of class review
Lou Reiter LLRMI 2018
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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Lou Reiter LLRMI 2018
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.
Lou Reiter LLRMI 2018
Burden of Proof
• To a moral certainty
• Beyond a reasonable doubt
• Clear and convincing evidence
• Preponderance of evidence
Lou Reiter LLRMI 2018
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.
Lou Reiter LLRMI 2018
The 4 essentials
• Front end…acceptance of the
complaint
• Witnesses and interviews
• Document/evidence collection
• Adjudication of the completed
investigation.
Lou Reiter LLRMI 2018
“Fundamentals of a reasonable IA
investigation”
Questions?
Lou Reiter LLRMI 2018
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