by Norm Stamper
Sometimes the distinction between willful misconduct (and/or gross negligence) and an honest mistake can be difficult to discern. The Edward Anderson shooting (the last scenario) is a prime example.
Officer Bill Edwards had eighteen months on at the time of the shooting. A more experienced cop probably would not have reached down, gun in hand, to lift a suspect to his feet. A more experienced cop would have had his trigger finger “indexed” as he chased the suspect.
Officers are taught in the academy to extend their index finger alongside the slide of the weapon and not inside the trigger guard (when not planning to immediately pull the trigger, that is). But this was the first time Edwards had ever chased anyone with firearm in hand. Put simply, he lacked “muscle memory,” built through a repetitive process that must be refreshed periodically on its way to becoming second nature. Which brings up training and retraining (an administrative responsibility). And experience. Which Edwards didn’t have.
Had Edwards purposely shot Anderson I would have fired him—and urged prosecution on at least a manslaughter charge. Had he been reckless (or grossly negligent) I would have fired him. Had he established a performance record of carelessness (as opposed to the exemplary record he’d compiled as a rookie) I would have fired him.
So, I had a decision to make. What to do with a police officer whose actions led directly to the death of an unarmed man? Many in the community were demanding his badge. Three hundred and fifty irate African-Americans let me have it with both barrels at a community meeting a week after the incident. I listened to the crescendo of boos and catcalls at that meeting, and I witnessed in the months that followed a concerted campaign to drive Edwards from the force. Several of my colleagues in the Major Cities Chiefs organization, to whom I’d explained the situation in one of our regular “roundtables,” believed the man should be fired—not because they thought the shooting was reckless but because it would pacify the black community. Canning the rookie would certainly have been the politically expedient thing to do. His fellow cops fully expected it.
I studied the investigation, talked to the officer and his supervisors, called firearms training experts to my office, and drove down to the academy to observe the firearms training (which I’d previously taken). When my review was finished I knew exactly what to do with Edwards.
I walked across the street and informed the mayor of my plans. An African-American with deep roots and enormous popularity in Seattle’s black community, Norm Rice disagreed with my decision. But he understood it, and the principles that shaped it. (He backed me, publicly, without equivocation.)
Next, I drove to Mt. Zion Baptist Church, the scene of the angry meeting, and told the Rev. Dr. Samuel B. McKinney what I’d decided. He also disagreed with my decision.
The decision? I would (1) retain Edwards; (2) not punish him; (3) have him undergo psychological fitness-for-duty screening; (4) put him through two days of one-on-one firearms retraining with the department’s reigning semiautomatics ace; (5) get a sign-off from the instructor that Edwards had, in fact, developed that muscle memory; (6) condition the officer’s return to the streets on his passing a rigorous test of both his emotional fitness and his retraining; and (7) assign him to a different area of town for at least eighteen months.
“I hear you, Chief,” said Dr. McKinney after I’d explained the rationale. “You’ve made a responsible decision, from your point of view. And I respect that. But, answer me this: How can you possibly condone this young policeman sprinting through a field, in a driving rain, with his gun out? Chasing after a man he does not know to be armed? Wouldn’t that qualify as ‘gross negligence’ under your definition?” It was an excellent question, one local reporters hadn’t thought to ask. My answer to McKinney’s question was, in fact, central to my thinking on the Edwards case.
I told him the following story, which explains why, as chief I would never, ever prohibit a cop from running, gun in hand, in a foot chase. Even though I think it’s a recipe for disaster.
A San Diego cop for less than a year, Jerry Hartless was riding shotgun one night in 1988 when he spotted gang member Stacy Butler standing on a corner. Hartless knew Butler was wanted on warrants. He got out of the car and started to approach him. Butler rabbitted. Hartless, winner of his academy’s award for physical fitness, gave chase and quickly closed the gap. Butler, sensing he was about to be nabbed, stopped suddenly, pulled a 9mm semiautomatic from his waistband, spun around and fired. The bullet caught Hartless between the eyes. The officer hit the ground with his pistol still holstered. He died twenty-three days later without regaining consciousness.
Hartless’s chance of survival if he’d had his gun is drawn? At least fifty-fifty. Holstered? Zero.
“That’s why,” I told Rev. Dr. McKinney, “I can’t fault Bill Edwards for running through that field with his weapon in hand.”
“I see,” said McKinney, “I see.” Then he said something I’ll never forget. “You did the right thing, Chief. You showed up for our meeting. You took heat for the killing. You struggled to make the right decision. Now that I understand how you reached it, I think you’re doing the right thing by your young officer. But I’m not sure you’re doing the right thing by our community, you understand? I hope you understand I cannot and will not agree with you publicly.”
He reminded me that the Edward Anderson shooting was only the last in a long string of black men killed by the police—many of those killings questionable, if not unjustified. Edwards (and I, and the department) paid a price for that sorry history. But I believe Rev. McKinney did understand, a lot better by the end of our conversation, what it was like for the cop that night—and what goes through a chief’s mind when deciding the appropriate course of action.
* Lynching, as defined in the penal code, refers not to a hanging but to the unlawful seizing, or release of, a prisoner in police custody.
* In each of the foregoing cases, I received recommendations from supervisors—and from some in the community—that the individual be punished. Severely in the case of Edwards in Scenario Seven. And in Scenario Six? If not for Commander Mike Rice intercepting a supervisor en route, Officer Clancy would have been served disciplinary papers in her hospital bed!
* Checking with a beat cop? To see if it’s okay for a deputy chief to sit in? Even though traditional managers gag on such gestures, and I could have ordered my way into the meeting, what does it cost to show a little respect for your cops, pay some attention to their wishes, treat them like grown-ups?
* Return to the scenarios that open this chapter for an illustration of what’s wrong with that “bail schedule” approach.
* I’d been on the scene for months before noticing that each of the bottles carried a set of initials and a badge number. That’s right: impounded as contraband by our officers on the streets. We would have fired them for doing what we did on a weekly basis.
CHAPTER 21
A DARK TAKE ON FINANCIAL LIABILITY
IT WAS NEW YEAR’S Day 1988, ten o’clock at night. San Diego police officer Michael Scott was responding to a nonemergency call for backup on a routine stop when at seventy to seventy-three mph he struck Frances Maday’s ’83 Honda Sedan broadside. The accident left the thirty-one-year-old marketing analyst and avid tennis player a paraplegic, speechless (from a permanent tracheotomy), brain damaged, and requiring twenty-four-hour care, which included feeding her through a hole in her abdomen. Eighteen months after the accident Officer Scott told a reporter, “I’m still dealing with the whole situation. I’m just as sorry as I can be, for the family, and about the whole thing.”
The city was sorry too. It paid Ms. Maday $9.6 million, and bought her a house equipped for a wheelchair. And an annuity: If she lives to a then-normal life expectancy of seventy-nine, total payments will reach $72 million. Since the city is self-insured, most of that money has been and will continue to be borne by San Diego taxpayers.
I’ve checked taxpayer-financed payoffs for traffic accidents
caused by police around the country: $2.3 million here, $7.5 million there. According to the San Diego Union-Tribune, city and county police are at fault in roughly sixty percent of their accidents. The City of San Diego, between 1996 and 2002, paid out $4.1 million for accidents caused by its officers. The County paid out $4.9 million (between 1997 and 2002) for accidents in which its deputies were at fault. Those are the kind of numbers that fuel Republicans’ demands for tort reform.
Most of the big-ticket financial judgments and pretrial settlements in police liability cases originate from traffic accidents—high-speed pursuits, responding to calls for backup, lead-footed patrolling, driving with your head up your ass. But excessive force and false arrests also give rise to settlements in the Monopoly-money range. The citizens of Los Angeles paid Rodney King $3.8 million for absorbing all those kicks and baton blows. Also in Los Angeles, in 1996 Javier Ovando was shot then framed by LAPD officers Ray Perez and Nino Durden. The nineteen-year-old gang member was sprung from prison and given $15 million by the city. And Abner Louima received $8.7 million ($7.1 from residents of New York City and $1.6 from the New York City Patrolmen’s Benevolent Association) for suffering a broomstick shoved up his behind and then inserted into his mouth.
There’s one thing that the preceding cases, from accidents to willful misconduct, have in common: Almost all the victims survived. What if they had died, wrongfully, at the hands of police? Those multimillion-dollar settlements would have been pared down to the hundreds of thousands or the tens of thousands. Or to nothing. Financially speaking, in cold accounting terms, the city of San Diego would have been better off had Frances Maday perished in that accident.
And Rodney King? Let’s say everything happened exactly the way the cops said it did that night—up to the point that they laid hands, feet, and clubs on him: King takes the cops on a long chase, endangering everyone around him before he’s finally stopped. He steps out of the car. But instead of being pummeled he is immediately shot dead by a bullet from a police service weapon. The police report reads that Mr. King leapt from the car, crouched and turned toward the officers, reaching for what the shooter thought was a pistol. Bang! King’s out of the picture—no subsequent, “Can’t we all just get along?” statements. Amateur cameraman George Holliday doesn’t even have time to take the lens cap off his camcorder. What do you want to bet that (1) no cop gets disciplined; (2) there is no trial in Simi Valley, or anywhere else; (3) the city is spared fifty-five lives and a billion dollars in damages for four days of rioting; (4) truck driver Reginald Denny doesn’t get his skull caved in; and (5) the City of Angels pays King’s survivors not one thin dime?
That’s how it works in police work. Lawyers and police chiefs will tell you: From a purely pecuniary point of view it’s better to kill than to vegetize.
But, what of the moral questions? What of the truth of what happened out there on the streets? Unfortunately, morality and truthfulness are often victims in police liability cases. It was one of the few things I hated about being a police chief. Year after year, in both cities, San Diego and Seattle, I listened to the steady drumbeat of “risk managers” and city attorneys: Keep your mouth shut on this one, Chief. We’re hanging out a mile.
To keep it from costing the city too much, we were advised, if not ordered, to suck it up and admit no wrongdoing. “Exposure” they call it. As in, Just how guilty are we on this crash? The greater the exposure, the stonier the silence of city officials. (Shortly after the Tacoma police chief shot and killed his wife in April 2003 [see chapter 1], a city council member told a reporter that the city had made “all kinds of errors in judgment” in hiring, retaining, and promoting the woman-hater, and in failing to respond to “all kinds of signs” that he was a vicious, controlling, emotionally disturbed individual. The council member was spot on, of course. But when informed of what she’d said, the mayor replied, “She what? You mean she admitted guilt?”)
A hypothetical situation: You’re the police chief in your city. One of your officers, responding to an urgent call for backup and driving twenty-five mph over the speed limit, slams into a car containing a young father and his three preteen kids. Two of the children die in the crash. The father survives but will never walk again, or feed himself, or wipe himself. The surviving child, oldest at eleven, has brain damage and major internal injuries but is expected to recover. Physically. Your cop is in the hospital, being held for observation and nursing minor injuries. He’s beside himself, understands he did wrong, feels wretched. He doesn’t know it yet but he will find himself crying uncontrollably every time a tiny cue penetrates his consciousness. He may wind up drinking himself to sleep each night. He may decide to eat his gun.
You’re furious at the cop even as your heart goes out to him. You don’t have all the facts yet. Your traffic investigators will be at the scene for hours, recording conditions, measuring skid marks, calculating centrifugal force, doing all manner of science and arithmetic you don’t pretend to understand, but which will confirm what you already know: Your cop was wrong, dead wrong. Your city is “exposed.”
Because you preside over the most sensitive department in the city; because you are responsible for everything that goes on in your agency; and because you owe it to your employees, the community, the officer, city government, and that poor, suffering family to conduct yourself like a leader—you don’t know what the hell to do.
You want to reach out to the family but you’re not supposed to say anything (such as the truth) that could come back to bite you and the town’s treasury in a trial four years down the road. You want to fire the cop but the police union will fight it, key members of the city council are in bed with the union, the city attorney intimates that a termination will weaken the city’s defense, the county prosecutor won’t file manslaughter charges, and the civil service commission would probably just overturn your decision. You want to send a crystal-clear message to your officers about reckless driving but you know they’ll dismiss it as the politically-correct, holier-than-thou sentiment of a chief, someone who’s been off the streets for a hundred years and doesn’t remember what it was like out there in the real world. They’ll label you an ivory tower bureaucrat who cares more about PR than police work—or the safety of his officers. They’ll say things like, “What if it was his ass getting whupped?” and “How fast would he drive if he knew a fellow officer was being held at gunpoint?”
So what do you do? If you’re a principled leader, blessed with a spine, you tell the truth, as you know it. You hold your cop accountable. If that means firing him you fire him. You tell the rest of your officers what you will and will not permit. You go see that grieving family and tell them how sorry you are.
You also check to see whether your exposure is even greater than you might have thought: Did you do a thorough background investigation on the cop before you hired him? Did you provide proper academy and ongoing training? Was he supervised effectively? Had he been disciplined before for similar transgressions?
Employment law is full of examples of negligent policies, procedures, and practices: negligent hiring, negligent training, negligent supervision, negligent retention, negligent equipment maintenance. Hell, there’s probably even a law on negligent negligence. The important thing is for you to satisfy yourself that it was the guy behind the wheel, and only that guy, who was responsible for the crash. Not his academy instructor, not his supervisor, not the car he was driving, not his mother, not . . .
One of the strengths, and drawbacks, of public employment law is that individual employees, from the cop on the beat to the police chief, are rarely held personally liable, financially. (That’s if their actions spring from the “course and scope” of their duties.) The provision is a strength because having the city pick up the tab for damages means beat cops and police chiefs don’t have that excuse for not taking bold action when they should. It’s a problem because it licenses some cops to drive like maniacs, shoot people for no cause, or ram a broom handle up a m
an’s rectum with impunity.*
Whether victims of police wrongdoing die or live out the rest of their lives physically disabled or brain-damaged, you’ve got to call it the way you see it. Police liability cases are horrible enough—the pain, the suffering, the money. It only makes matters worse when the chief of police gets timid and fails to do the right thing.
It’s a horrible cross to bear, keeping your mouth shut when your heart tells you to speak up. Looking back, I believe I did speak up—most of the time. But there’s one thing I never did, and it haunts me to this day. I never went to the home of a person we wrongfully injured or killed to accept responsibility and to apologize to his or her family. I would have been given hell by my cops, and by a battery of city lawyers and risk managers. But it would have been the right thing to do.
* If you want to call a thirty-year prison term impunity, which is what NYPD officer Justin Volpe paid for his criminal actions in the Louima case.
CHAPTER 22
UP WITH LABOR, (NOT SO FAST, POLICE UNIONS)
I WAS PART OF “management” for twenty-nine of my thirty-four years as a cop, but I’m a labor man at heart. No matter how often I listen to them, I get chills when I hear Woody Guthrie’s “Union Maid” or Joan Baez’s version of “Joe Hill” (“From San Diego up to Maine / in every mine and mill / where working men defend their rights / it’s there you’ll find Joe Hill . . .”). Upton Sinclair’s The Jungle, which I read as a teenager, filled me with a passion for social justice that developed during my twenties. And Barbara Koppel’s 1976 film Harlan County USA gave me a glimpse into the ancestral home of my father, reminding me of how greed and power corrupt, and why it’s imperative that workers everywhere unite in the cause of economic and social justice. Whatever its modern-day faults, American labor comes from a proud history. But there’s one sector of “working men” that cannot lay claim to anything remotely resembling a glorious history, certainly not in modern times: the nation’s cops. Or, more accurately, their labor unions.