About this SR story:
“All the SPD policies changed during the Department of Justice review (so far)”
So…I’ll do it again for the benefit of my readers pointing out the key issues. The actual headline should have read; All the SPD polices changed but still not following COPS/DOJ recommendations (so far).
Previous Rachel Alexander story linked in this one, her comments are interesting:
It is always important for any Investigative Reporter or a Cop Beat Reporter to understand that all law enforcement and criminal justice pressers are always calculated to put the organization in the best light, especially when they are in trouble. Hopefully later this week you will see exactly what I’m talking about.
We will start with this section of the story:
“Perhaps the most exciting update involved adding a section on how policy updates should happen.”
I honestly don’t think anyone with a background in law enforcement would find this “exciting” it is SOP for most law enforcement agencies. I have pointed this out a number of times, but for those that don’t know, we pay good money to obtain boilerplate Policy Manuals for both the SPD and the SCSO through a company named Lexipol.
Let me call your attention to the Use of Force Commission Report from 2012…yes 2012, which I will be referring to throughout this story and is something any Investigative or Cop Beat Reporter should know almost by heart so a comparison can be made between the UOFC Report and the COPS/DOJ Report. You might ask why comparing the two is important? The simple answer is it shows a complete disregard by Mayor Condon and Frank Straub for the recommendations made by the Use of Force Commission, and demonstrates the continuation of the same with the COPS/DOJ Report. How are we coming with that “Culture Audit” recommended in 2012 by the UOFC? This is 2016 right?
UOFC Recommendation:
Recommendation #5 – Ensure corporate ownership of the SPD Policy Manual.
In private conversations and public presentations, numerous SPD officers, including
members of the department’s command staff, referred to the SPD Policy Manual as the
“Lexipol manual.” Additionally, the link on the SPD’s web page to its manual states,
“Click here for the Lexipol Policy Manual.” The continuing reference to Lexipol comes
from the fact that the SPD engaged the services of Lexipol, a risk management
company, in creating the current SPD Policy Manual and continues to subscribe to that
service for updates.
Notwithstanding Lexipol’s involvement in providing source material for the department’s
manual, it is important that the department both take full ownership of the manual and
affirm that ownership in the way it refers to the same. The SPD Policy Manual contains
the departments Canons and Ethical Standards, and its governing operating policies.
These are the SPD’s guiding principles, not boilerplate content from Lexipol. Every
officer needs to understand and accept this distinction, and be committed to the entirety
of the SPD Policy Manual.
In multiple locations in the remainder of this report the Commission notes instances
where the department’s actions are inconsistent with the dictates of the policies
contained in its manual. Additionally, in her report, Ms. O’Linn concludes that the SPD
needs to do a better job of expeditiously revising the SPD Policy Manual as updates are
released by Lexipol and systematically tracking and complying with policy provisions
across the entire force. Exhibit C at 30. The Commission is confident that such
concerns would diminish if the department took full ownership of its manual.
https://files.acrobat.com/a/preview/20598576-489d-4081-8de6-ea975baf1cd8
(Guard this link with your life it is one of the very few full UOFC reports available, Frank Straub and Mayor Condon quickly deleted the consultants reports when it became obvious how damaging they were)
There is one portion of Policy 106 I did find “exciting” given recent events and that is this one:
I can’t find “Director of Law Enforcement” or the name “James A McDevitt” anywhere in the policy manual, so will it be necessary to rewrite the policy for four months so we get our 60 grand worth?
What would also really be exciting, but will never happen with the very, very pliable Interim Chief Meidl, is if McDevitt wanted to spend his short (supposedly) tenure changing SPD policy and the Interim Chief told him to “GO POUND SAND!”. Brad Arleth learned what happens when you basically tell a Condon crony to do just that, so the chances of Meidl doing that are I would say nill.
Policy 300 – Use of Force and Statement on Revision
The key element here isn’t the addition of what should have been in the policy in the first place, the key element is the “Statement of Revision”
For those that don’t have a full understanding of the “Statement on Revision” actually means, it is pretty simple, it means, Yep, we have continually been screwing up as far as policy is concerned since prior to 2012 and we may have violated the Public Records Act and Washington State Records Retention Schedules, but don’t tack a worry on it, we are working on getting it right.
I wonder how many more times I’m going to have to cover this before people get it right.
Policy 302 – Use of Force and Deadly Force Administrative Review
This is nothing new and exciting folks they have been around for a long time and this only represents some minor changes none of which mean squat to Citizens unless SPD actually follows the recommendations of the UOFC and COPS/DOJ.
UOFC Report 2012:
*** Please take special note of this recommendation by the UOFC back in 2012 it will be important latter in my story.
“We recommend that involved officers be interviewed in detail on the date of the incident about their observations and actions. Should an officer decline to provide a voluntary statement, the officer should immediately be subjected to a compelled interview.”
COPS/DOJ Report:
Recommendation 8.7
SPD should reassess the purpose and goal of the DFRB to ensure that it both provides transparency and maintains its ability to effectively assess tactics, training, and equipment after a deadly force incident.
SPD should narrow the scope of future DFRBs and include only the presentations that directly speak to each of the considerations that board members must review. The public release of the facts of the incident should be released—but not in the venue of a DFRB. *The facts should be released to the public in a separate forum, preferably after the recommendations have been made and the DFRB memo has been filed.
- The assessment team also observed the DFRB held in November 2013.
- Spokane Police Department. 2013. Policy Manual. Policy 302. – 83 – Chapter 8. Use of Force Investigations and Documentation
Narrowing the scope of the DFRB ensures that this process remains sustainable and consistent across all reviews. SPD should also ensure that recommendations are restated at the end of the DFRB and that the individuals in charge of making policy changes, scheduling training, or ordering equipment are noted. This will ensure everyone has a clear understanding of his or her responsibilities, the next steps, and action items. The memo written up afterwards should formally document all discussion. In addition, SPD should reassess and clearly define the role and responsibility of each member and observer in the DFRB. See finding 8.4 for more detail on how the action items stemming from this review board should be tracked and monitored.
I highlight this portion of COPS/DOJ Recommendation 8.7 as this is a very, very important recommendation from the standpoint of transparency. This will never happen unless the Press and the Community demand it. Law Enforcement Agencies do not want DFRBs made public for a number of reasons including the liability aspect, and if they are done with legitimacy they will most likely demonstrate breakdowns in leadership, supervision, and training that the public won’t take kindly to.
* The facts should be released to the public in a separate forum, preferably after the recommendations have been made and the DFRB memo has been filed.
The only time in Spokane that results of a DFRB have been made available to the general public were in the UOFC Report in the review by consultants from the OIR Group. That review is Appendix D of the 2012 UOFC Report and if you choose to read it you will see exactly what I mean.
Policy 310 – Officer-Involved Shootings
Even though I have been over and over this I’m going to try it again and make the necessary corrections to the SR story:
“This policy now allows the department to begin an administrative investigation into a deadly use of force before the Spokane County Prosecutor’s Office has decided whether to criminally charge the officers.”
The truth is SPD can begin an administrative investigation any time they want prior to the Prosecutor making a decision on criminal charges even from day one if they want, but they choose not to. Running what is referred to as a “Parallel Administrative Investigation” (PAI) is common place.
The problem in Spokane, as demonstrated by the Karl Thompson and John Gately cases, is that the PAI has to be completely separate from the criminal investigation and there can be NO exchange of information between the two investigations. SPD is not set up to make that happen so obviously therein lies a big problem.
“The Department of Justice recommended the administrative investigation be started earlier due to the long amount of time the prosecutor often takes to review cases.”
The truth is DOJ Pattern and Practice Cases and the COPS/DOJ Collaborative Reform Process always come up with the same findings and recommendations as far as Administrative Investigations and statements are concerned. I wish folks would understand that DOJ is not investigating SPD and neither is COPS/DOJ.
http://www.cops.usdoj.gov/Default.asp?Item=2807
One of the very important things to look at as an Investigative Reporter when it comes to P&Ps, or Collaborative Reforms is the findings compare them to the actual recommendation, and then see what the law enforcement agency says they are doing.
Here is what COPS/DOJ found and recommended:
Finding 8.1
The prosecutor’s lengthy timeline to review deadly force incidents creates delays in the administrative review of deadly use of force incidents.
Although IA investigators initially respond to the scene of an officer-involved fatal incident, according to current policies and procedures, an administrative review of a deadly use of force incident formally begins after the county prosecutor has filed a letter of declination. The IA investigators who respond to the scene do so as observers and, while they maintain contact with the detectives conducting the criminal investigation throughout the SIRR team’s investigation, they are not allowed to complete their investigation prior to the county prosecutor’s decision.112 Based on our analysis, an ARP occurs on average 177 days from the incident. According to our analysis of the use of force reports, IA interviews with the officers involved occur, on average, 167 days after an incident. Although in most cases we found that officers were quick to provide interviews and statements to the SIRR team, on average within three days, the length of time before internal affairs investigators interview officers involved can create concern as to whether the officer can recall his or her decision making up to five months after the incident. This process has changed slightly over the past four to six months. IA investigators continue to wait until the criminal investigation is complete, typically within two months; however, they do conduct officer interviews (primarily witness officers) prior to the delivery of declination from the prosecutor’s office. The entire IA investigation is compiled and forwarded for an ARP only after the prosecutor delivers his opinion on the incident.
Communities affected by these incidents have raised concerns over the timeliness of these investigations and the delay in holding officers accountable.113 These delays can raise questions of police legitimacy and transparency, and can create conflict between communities and police agencies.
In addition to community concerns, not reviewing these incidents immediately after they occur can place the department at risk. If issues in equipment, training, or policy resulted in the incident, the department lacks the formal mechanisms to discover these issues until the administrative review, which could potentially compromise officer safety. Also, delays in the administrative review could lead to delays in identifying deficiencies in training, which could also pose a liability risk for the entire department.
Although Garrity v. New Jersey (1967) compels an officer to answer questions from an internal affairs or investigatory unit, it also provides officers with the protection that their statement will not be used against them in a criminal investigation.114 Still, many departments continue to be reluctant to obtain Garrity statements prior to the completion of the criminal investigation for fear that it will interfere with and contaminate the criminal investigation and place the officer at risk for prosecution.115
Departments that have moved toward conducting parallel investigations establish guidelines and mechanisms to ensure that both the criminal and administrative investigations are conducted separately. These departments can conduct parallel investigations in a variety of ways. For example, some departments allow IA to participate in the homicide interviews
Recommendation 8.1
SPD should mitigate the delay caused be the county prosecutor by formalizing its new process and beginning the administrative investigation after the SIRR team completes its criminal investigation.
Deferring officer interviews five to six months can hinder the quality of the administrative investigation and impede efforts to increase police legitimacy and build police-community relationships. Moving this process forward—i.e., conducting interviews and beginning the investigation before the county prosecutor has reached a decision—has been a positive step to more timely internal investigations. SPD should continue this new process and formalize these new procedures in its IA manual and SPD policy manual.
In addition to the above, the prosecutor’s office should consider using a board of investigators or other qualified prosecutors to assist in the investigation of fatal use of force incidents. Bringing on additional investigators will help decrease the prosecutor’s caseload and increase the timeliness of investigations. In order to maintain the quality of the investigation these investigators should possess the proper experience and training to conduct an investigation of officer-involved deadly force incidents.
Quote from SR story:
However, the new policy says involved officers should only be interviewed once the prosecutor has delivered findings or by direction from the chief of police after consulting with unions.
The truth is that this language in the new policy changes nothing:
I’m not going to go into a long dissertation on Public Employee’s Garrity Rights and Miranda Rights so please be satisfied with the short version (As a cop doing IA cases I had to know Garrity, and I made money and had happy clients when I was working for law firms because a public agency screwed-up Garrity.)
1) The language means NO Parallel Administrative Investigation.
2) The language states “officer interviews” “shall” take place only after the prosecutor’s finding and doesn’t specify which officers, the subject officer or witness officers.
3) The Chief of Police not Jim McDevitt can make it earlier if he or she wants but only if the Guild says it is okay.
4) All public employees including cops have the right to remain silent just like we all do in a criminal investigation, so if a cop chooses to stand on his rights (which has been happening) there is NO interview anyway until the Prosecutor decides.
5) A cop can give a voluntary statement if he or she wants (and that sometimes happens).
6) The tactical on scene report is NOT addressed and should be documented in the policy.
7) *** “We recommend that involved officers be interviewed in detail on the date of the incident about their observations and actions. Should an officer decline to provide a voluntary statement, the officer should immediately be subjected to a compelled interview.”
I could go into great lengths on this one but in summary there are primarily two schools of thought about this, DOJ and most oversight groups independent of law enforcement primary fall on the side of an early compelled interview, while for the most part groups associated with law enforcement do not.
When it comes to Garrity issues you can tell immediately when a Chief of Police is in over their head, it was easy to pick with both Straub and Kirkpatrick here is but one example, and this is but one of many, many reasons Anne Kirkpatrick is NOT the right person to help find OUR new Chief of Police.
http://www.spokesman.com/stories/2007/mar/29/police-chief-backs-officer/
http://www.spokesman.com/stories/2007/apr/05/police-sheriff-on-same-page-after-confusion/
To shorten things up here I am going to suggest that you read the UOFC Report Appendix D where an SPD OIS involving a rifle is reviewed. It might scare you so don’t read it if you are scared easily.
Once you have read the UOFC Report Appendix D then read COPS/DOJ Finding and Recommendation number 7.5, and see what you think.
I want all my readers to know that I have made every effort to get the truth out and will continue to do so.
Well there you have it FACTS and THE TRUTH.
I REPORT YOU DECIDE!
Buffalo Brian Breen 