Politics & Policy

What Cops Have to Put Up With — Again

A two-year ordeal doesn't end.

After almost two years, it’s all over but the shouting. And there’s been lots and lots of shouting.

Last Monday, a Los Angeles Police Department disciplinary panel ruled that Officer Steven Garcia did not violate LAPD policy when he shot and killed 13-year-old Devin Brown at the end of a pre-dawn pursuit on February 6, 2005. With this ruling the panel, known as a board of rights, effectively negates an earlier determination by the civilian Police Commission that Garcia’s actions were “out of policy” and that he should be punished. Garcia is now free to resume his police career free of any official sanctions arising from the shooting. Whatever unofficial sanctions he might face are yet to be seen.

And this is where the shouting starts. Leading the Chorus of the Perpetually Outraged is of course the Los Angeles Times, whose writers and editors erected a veneer of objectivity in their coverage but nonetheless left their bias on vivid display. Here’s how the Times began the story, which ran on page A1 of last Wednesday’s edition:

A Los Angeles Police Department disciplinary board has secretly decided not to punish the officer who fatally shot 13-year-old Devin Brown two years ago, rejecting an earlier ruling by the civilian Police Commission that the act violated department policy, sources confirmed Tuesday.

Members of an LAPD board of rights, meeting behind closed doors Monday, determined that Officer Steven Garcia was justified in shooting Brown as the youth allegedly tried to back a stolen car into the officer after a brief pursuit.

Note the use of charged terminology: The board met behind closed doors and secretly decided, as confirmed by shadowy sources. And Devin Brown is described as a youth who allegedly tried to back a stolen car into the officer.

First of all, as to the use of the word “allegedly,” Devin Brown is dead, so the folks at the Times need not fret about libeling him with accusations of misdeeds unproven in court. It is uncontested that before being shot Brown rapidly backed the stolen car directly at Officer Garcia. Whether he did so in a deliberate attempt to run the officer down or was rather merely indifferent to the possibility he might do so cannot be known, and in any event it is of little consequence in evaluating the whether Garcia’s conduct was within LAPD policy.

Next, as to the secrecy of the proceedings: Only by reading further into the Times’s story does the reader learn that the LAPD’s decision to close boards of rights to the public was based on advice from City Attorney Rocky Delgadillo, who based that advice on a 2006 California Supreme Court case. That case, Copley Press, Inc. v. Superior Court of San Diego County, affirmed the confidentiality of police personnel records already codified in several provisions of state law.

(Though the Copley decision does not specifically address disciplinary hearings, which in Los Angeles were open to the public until last year, Delgadillo reasoned that the confidentiality of police personnel records could not be maintained if such records were quoted from and otherwise discussed in a public forum. There can be a reasonable debate about whether it is wise public policy to hold these hearings in private, but the openness demanded by LAPD critics is clearly incompatible with current state law. LAPD Chief William Bratton, Mayor Antonio Villaraigosa, and other city leaders have used the occasion to call for legislation to reopen the hearings. Insomniacs may find relief by reading the Copley decision here.)

The board’s conclusion that Officer Garcia was not guilty of misconduct points out an anomaly in the management of the LAPD. The five-member Police Commission is the titular head of the department, with the authority to set policy but not to discipline officers. Discipline is imposed only by the chief of police. In the Devin Brown case, Bratton reviewed the investigation conducted by the department’s Force Investigation Division and determined that Garcia’s actions were within policy.

But all shootings and other incidents resulting in a suspect’s death or serious injury are also evaluated by the Police Commission, whose members are appointed by the mayor. The commission, by a 4-1 vote, ruled that Garcia had acted improperly should be disciplined. The trial board’s rejection of that ruling came as a surprise to some on the commission. “I’m very, very disappointed in that finding,” said John Mack, the commission’s president. “Our commission felt the facts were clear. It was my expectation that the board of rights would see the facts as we saw them and take disciplinary action.”

It is important to note Mack’s background here. Prior to his appointment to the Police Commission, he was president of the Los Angeles chapter of the Urban League, and in that role was a longtime critic of the LAPD. Addressing the Devin Brown shooting shortly before his appointment to the commission, Mack told reporters, “This shooting represents another tragedy inflicted on our community by an LAPD officer . . . My heart goes out to [Brown’s] family.” And in an appearance on Fox News Channel’s The O’Reilly Factor, Mack stated flatly that Garcia should not have shot Brown. “[The officers] were out of the car and in no danger whatsoever, and Officer Garcia unloaded 10 rounds, three, four into the car, into young Devin Brown . . .”

Having made such statements, perhaps Mr. Mack will understand why LAPD officers have doubts as to his objectivity, and why they view his continued service on the Police Commission as an insult.

Returning to the coverage the story has received in the Los Angeles Times, it was at first difficult to discern which aspect of the board’s decision the paper found more disturbing, the outcome or the fact that it was reached in secret. Editorial decisions made apparent in the following days provided the answer. On Thursday, the paper ran a news story, an editorial, and an op-ed piece, all of which called for more openness in the LAPD. The op-ed was written by Duke University law professor Erwin Chemerinsky, who wrote that “[i]t seems inexplicable that the board of rights, composed of two high-level police officers and one civilian, found that the fatal shooting of a teenage boy under these circumstances was justified.”

I have no doubts as to Chemerinsky’s sincerity when he says he find’s the board’s decision “inexplicable.” The occupation of law professor is not one commonly thought to be fraught with peril. It must indeed be impossible for the professor to place himself in the shoes of a police officer aiming a weapon at someone and deciding, in the blink of an eye, whether or not to pull the trigger. But, putting the limitations of his life experience aside, Chemerinsky presents himself not only as a legal scholar but also as an expert on the LAPD. For him to be baffled by the board’s decision would indicate that he is unfamiliar with the decision by the Los Angeles County district attorney not to prosecute Garcia for the Brown shooting. The D.A.’s rationale for declining to prosecute Garcia was made public more than a year ago. Chemerinsky and anyone else with an interest in the matter can read the report here.

If you read the D.A’s report, you’ll see it comports well with the rationale cited by the board of rights in finding Garcia not guilty. That rationale was made public by Garcia and his lawyers on Friday, which should have salved the many hearts at the Los Angeles Times so troubled by the board’s secrecy.

But wait. When the board’s rationale was released, did the Times run the story on its front page, as they did the original story? No, they did not. The story instead ran on page B10 of Saturday’s edition. Even more incredible — and more revealing about the agenda at the newspaper — is the story they chose to run on page B1 (and which they teased on page A1). “Officer had been warned in prior case,” read the headline, and the story that followed told of Officer Garcia’s 44-day suspension that resulted from an incident in 1997.

Thus, though the Times decried the secrecy surrounding the board’s decision to clear Garcia, the rationale for that decision was deemed less newsworthy than a nine-year-old incident that, conveniently for the Times, portrays Garcia in a negative light. Though that incident, like the Devin Brown shooting, began with a car chase, what led to Garcia’s being disciplined was actually a dispute with a vindictive former girlfriend. As if to underscore the need for police officers’ personnel records to be protected, the unflattering details of the earlier case were leaked to the Times, which was only too happy to print them. Had the Times investigated the matter further, they would have learned that Garcia was given a bureau commendation for his actions that night, which resulted in the arrest of a man wanted for multiple felonies, including attempted murder. Perhaps there wasn’t sufficient space in the paper that day to print such trivial details.

The irony was no doubt unintended, but also appearing on page B1 of Saturday’s paper was a the following headline: “‘Marshall Plan’ urged to stop L.A. gang crime.” The story told of efforts being made to combat the havoc caused by the city’s 720 separate street gangs and 39,000 gang members. Any campaign against gang crime will require cops to go out on the streets and confront the criminals, and some small portion of those confrontations will be violent. If cops can expect an ordeal like that experienced by Steven Garcia these past two years, how many will choose place themselves and their livelihoods in peril? We’ll see, won’t we?

Jack Dunphy served with the Los Angeles Police Department for more than 30 years. Now retired from the LAPD, he works as a police officer in a neighboring city. Jack Dunphy is his nom de cyber.

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