Pattern of Protection

(InvestigateTV) - “A few bad apples.”

It’s a recurring phrase used to describe police when accusations of excessive force or misconduct arise.

President of the National Urban League and former mayor of New Orleans, Marc Morial, said it is more than just bad apples. He blames specialized disciplinary processes baked into police collective bargaining agreements, not existing for other public employees, as barriers to transparency in such cases.

“It is more than a set of bad apples, it’s bad apples that spoil the whole barrel,” Morial said.

Police union contracts, laws in some states and policy manuals protect officers with records of misconduct across the country, according to an InvestigateTV analysis of these documents. In essence, these documents can allow officers accused of misconduct to stay employed, promoted and, in some cases, to have their histories secreted.

“If it was all about a bad apple, and they were disciplined and prosecuted, I don’t think that we would be having this conversation today,” Morial said.

After examining 85 union contracts, 24 policy manuals and 19 state police officers' Bill of Rights across the nation, InvestigateTV found provisions within many of these governing documents that allow officers with misconduct to hide behind shields of protection.

Police union contracts, for example, protect police in as many as six ways:

• They limit the amount of time citizens have to file complaints and for officers to file internal grievances against fellow police.
• They restrict or delay internal investigations involving an officer.
• They provide officers access to information prior to internal investigations.
• They limit disciplinary consequences.
• They require cities to pay costs related to police misconduct.
• They provide for erasure and concealment of officers' past misconduct records.

These protections came into play with the shooting of an unarmed man in Bakersfield, California and the arrest of a man outside of a donut shop in Palo Alto, California.

Indeed, officers are sometimes punished, fired and prosecuted. They are frequently publicly accused of wrongdoing. Union representatives say the contracts allow officers protection in what is a “micromanaged” profession. But these protections offered in contracts, policies and state laws sometimes tip the balance of internal discipline in favor of troublesome officers and place a veil of secrecy around police misconduct allegations and records, InvestigateTV has found.

“You’re going to have a bad apple in any type of job. I don’t care what it is. It could be private sector, public sector,” said attorney and former Washington D.C. police officer Anthony Ramirez. “You’re going to get somebody who’s just not fit for the job. You have to remove them. You have to be transparent.”

Two families believe answers are hidden behind opaque policies

In California, two families continue to fight for answers over use-of-force encounters with police.

In one case, a 22-year-old was shot and killed. In the other, a man was seriously injured but survived. In both cases, families and attorneys say they encountered hurdles to reviewing potential evidence and records about the possible past misconduct of the officers involved.

In November 2014, 22-year-old James Delarosa, was shot and killed by four Bakersfield police officers after they attempted to pull him over and he crashed into a light pole, according to court records.

When Delarosa exited the car, he walked toward the police with his arms outstretched, according to witnesses. One officer attempted to taser him, and another three fired their guns at him. He was struck five times, according to the family’s lawsuit against the department.

The city later settled with the family for $400,000, according to the attorney who defended the City of Bakersfield and its police department. At the time of the settlement, Delarosa’s cousin said the family was unaware that three of the officers involved in the incident had histories of misconduct. He said that when the family first started pursuing action against the police, they were prevented from seeing those records and witness video of the shooting.

“Everything was hush-hush,” said Jesse Rodriguez, Delarosa’s cousin. “You could not get anything.”

According to a 2016 Bakersfield.com report, Delarosa’s encounter with police was caught by witnesses on their phones.

The video did not show the incident, but rather, the witnesses narrating the events as they took place. But Rodriguez said the family has yet to even see this footage – though it is referenced in his family’s lawsuit against police.

“We heard there was a recording, but we’ve never seen it,” Rodriguez said. “It’s never crossed our path.”

Mick Marderosian, the attorney for the city in Delarosa’s case, said the officers involved believed Delarosa may have been armed and that officers often must make difficult, split-second decisions.

“This was a very, very unfortunate situation and I really felt bad because he [James] seemed like a fine, young man,” Marderosian said. “I don’t know what happened that night. I wasn’t there but I spoke to witnesses, I deposed witnesses under oath, and all of that.”

The Delarosa family lawsuit described a department fraught with problems.

“Sadly, James' killing is yet another tragic consequence of the Bakersfield Police Department’s ‘shoot first, avoid questions later’ attitude and ‘cover-up culture’ that has pervaded the police force,” the complaint stated.

According to various news reports, two of the four officers involved in Delarosa’s death had previous criminal charges or were involved in other shootings.

One officer, who attempted to taser Delarosa, was involved in at least four shootings in less than two years, according to The Guardian.

InvestigateTV requested records related to the officers' history on Oct. 30 and is awaiting a response.

Policies, laws allow officer histories to stay under wraps

Even attorneys struggle to obtain police disciplinary records and investigation-related materials.

Photos of Julio Arevalo show the injuries inflicted by Palo Alto police after they stopped him walking in a donut shop parking lot in July 2019. He was knocked unconscious and had numerous injuries including a shattered eye socket and a concussion, according to a lawsuit Arevalo has filed against the police.

“Instead of having a peaceful encounter, the officer, without any legal justification or without any aggravation or escalation on the part of Julio Arevalo, proceeded to attack Julio, basically assaulting him and very seriously injuring him,” Arevalo’s attorney Cody Salfen told InvestigateTV.

Salfen filed a lawsuit against the department and the officers involved, alleging various complaints - including the use of excessive force, which he said is a pattern within the department.

But that pattern has been difficult to prove.

The attorney said he has not been able to get many records from the police department related to any past misconduct complaints or investigations of the officers involved in the Arevalo incident - or even if such records exist. Often, families must hire an attorney to get records through formal legal discovery – a process that can be costly and lengthy.

What Salfen does know he’s pieced together from news reports and previous court cases. One officer involved in the Arevalo case, Salfen’s lawsuit says, was accused of multiple cases of excessive use of force:

• In 2013, the officer was involved in an incident where a man’s arm was broken – requiring multiple surgeries. The city settled for $250,000.
• In 2017, he was charged with a misdemeanor after a hit-and-run accident involving his personal vehicle and a parked car. The investigative reports from the incident indicate the officer changed his story multiple times while being questioned.
• In 2018, he was in a group of officers that broke down the door of Arevalo’s friend and was accused of slamming him facedown into the hood of his car. The city settled with the friend for more than half a million dollars.

InvestigateTV requested disciplinary records of the officers involved and only received the use-of-force internal investigation record related to Aravelo’s case. In the internal investigation report, a lieutenant found the officer’s use of force to be reasonable; however, Aravalo’s attorney discredits that finding – writing in his lawsuit that the two appear to be good friends outside of work. The court document includes photos of the investigating lieutenant as a groomsman in the officer’s wedding.

“This is one of many examples of PAPD’s flawed and conflicted system of investigating allegations of misconduct,” Arevalo’s lawsuit states.

The city denied the request for the records related to the disciplinary histories of the police.

In a letter to InvestigateTV, public records manager Lisa Scheff wrote, “The department has located responsive documents, but they are exempt from disclosure” under California law.

Language within the Palo Alto police union contract protects officers with misconduct history. The contract cites the provision in California state law, which states that employees can request disciplinary actions to be sealed. The contract allows police officers to request reprimands, probations, and suspensions be sealed within as little as a year. This includes all memos, letters, complaint forms, any other material pertaining to the disciplinary action placed in the personnel file.

Even the records of the internal investigation into Arevalo’s case took his attorney months to obtain, despite a 2-year-old California law that is supposed to give the public access to records involving police misconduct and serious use of force.

The lawsuit against the department accused the department’s records manager, who is responsible for releasing documents, of intentionally concealing information in the case, including body camera video.

Salfen said it took six months for the department to release the internal investigation reports for Arevalo’s case. The 2018 records law, known as The Right to Know Act, also hasn’t helped Salfen pry loose the past records of officers in Arevalo’s case. Rodriguez said their family pushed for that law and he wished it was around when his cousin, James Delarosa, was shot by police in 2014.

“Since we passed the SB-1421 [The Right to Know Act], we’ve been able to obtain a lot of information on officer-involved shootings, stuff that families could never get. With that law in place, we’ve been able to get records and really study the patterns of misconduct that are going on” Rodriguez said.

Despite some records becoming public under the California law, Palo Alto’s current union contract states sealed actions can’t be used for later discipline, promotions or transfers.

“This is a problem that they are not only tolerating but enabling. It’s not just an isolated bad officer, it is something that really defines the culture of this agency,” Salfen said. “It’s very troubling because we are not just talking about someone who is getting a traffic ticket, we are talking about a very serious physical and emotional injury that plagues these individuals for the rest of their lives.”

The Palo Alto Police Department did not respond to requests for comment. The department, officers and records custodian are seeking to have Arevalo’s lawsuit dismissed.

Police union contracts address far more than wages and working conditions

Across the country, provisions in police union contracts and policy manuals create hurdles for citizens and employees to file complaints against officers, provide for the concealment of police disciplinary records, and limit disciplinary action.

“Over the years, the law enforcement unions have negotiated provisions into the contract that were there to protect their members from discipline, or from adverse employment action,” said Jonathan Smith, executive director of the Washington Lawyers' Committee for Civil Rights and Urban Affairs. “Those provisions sometimes get in the way of the ability to bring the kind of reform that’s necessary into a police department.”

While many municipal employees are represented by unions, police unions tend to bargain with cities and counties for much more than wages and benefits.

“What [police unions] intrude into are managerial prerogatives, disciplinary prerogatives beyond what is basically fundamental due process,” said Morial, the Urban League president and former New Orleans mayor.

Union contracts have become just as crucial in governing police departments as policy manuals and police officers' state Bill of Rights, which have been enacted in at least 18 states.

Gary Lippman has helped police negotiate more than 100 contracts. He is attorney for the International Union of the Police Association.

Ultimately, what’s in a union contract is only there because it has been endorsed by the local government that employs the police.

“The employer gets the last word into whether the agreement is going to get sealed,” Lippman said.

Morial said particular provisions in police union contracts prevent discipline, transparency and accountability.

“Police unions have promoted law changes at the state and local level, which further protect them and shield them in an instance where they are alleged to have committed an act of misconduct,” he said.

As a result, Morial believes officers operate under a different set of rules than the average citizen.

“I think it’s not only an unfair advantage, but it treats police officers as an exalted class,” Morial said. “It treats police officers with special enhanced rights that an individual citizen doesn’t enjoy, that a firefighter doesn’t enjoy, that the building permit inspector doesn’t enjoy, that elected officials don’t enjoy, that doctors don’t enjoy, that military personnel do not enjoy.”

Lippman, the union attorney, disagrees.

“Many of the protections are the same as other government employees, if they have collective bargaining agreements,” Lippman said.

According to Lippman, the central protection for both police and government employees is that employees are disciplined only for just cause, he said.

He said the difference between the police and other government employee contracts is protections afforded to officers are placed as due process precautions to make sure they are given a fair ability to defend themselves.

“I think in many respects, the protections that are afforded them as with most statutes are reactive,” Lippman said. “These provisions are in response to things that happened that the legislature felt deprived law enforcement officers of due process rights.”

Stephen Rushin, an associate law professor at Loyola University Chicago, agrees that public service employees and officers should be treated comparably, but he understands that there’s a fundamental difference between police misconduct and misconduct by other public service.

“We know that whenever a police officer engages in misconduct, the kind of harm that can be created,” Rushin said. “When an officer uses excessive force, whenever they are dishonest in a police report, lie on the stand, or plant evidence, those types of harms have much bigger social ramifications than the kind of misconduct we see in other areas of public service.”

Rushin said that there is a case to be made for giving extra protections to officers so that investigations of serious misconduct are handled properly.

“We need to make sure we are making these decisions in a fair and neutral way, but we shouldn’t, in the process of trying to provide necessary due process, go so far as to impede reasonable investigation techniques,” Rushin said.

Department contracts across the country afford officers similar protections

Every one of the 128 current police union contracts and policy manuals InvestigateTV analyzed had provisions that offer specific protections to police officers in at least one of six categories, including disciplinary procedures, internal investigations, complaint procedures and record retention policies.

“These provisions get in the way of the ability to bring the kind of reform that’s necessary into a police department,” said Smith of the Washington Lawyers' Committee for Civil Rights and Urban Affairs.

Roughly 80% of the contracts contain language that limits oversight and discipline with policies such as disqualifying first offenses, forcing cities to go along with decisions from arbitrators and preventing police chiefs from using prior infractions when deciding how to discipline officers.

Nearly 46% of the contracts set time limits on internal grievances or citizen complaints.

Smith, who also worked on U.S. Department of Justice team on the investigation into Ferguson police after the death of Michael Brown, said even if a police chief knows about an officer’s past misconduct, an officer can be promoted due to the amount of time passing since an incident.

“Because two years have passed and they’ve come to the top of the promotion list, the chief has to promote them, that presents a serious problem,” Smith said. “Both with the risk that it poses to the community, but also the discipline and the authority of the chief to run the department.”

More than two-thirds of the contracts involving 87 police departments restricted or delayed the interrogation process of officers accused of wrongdoing.

Colorado Springs Police Department’s policy manual allows investigators to delay the officer interview from a deadly force investigation by at least 24 hours, allowing officers time to recover from the incident prior to an interrogation.

But that doesn’t halt the investigation, said James Sokolik, department spokesman.

“The investigation starts from the minute there is an officer involved shooting or significant event,” Sokolik said. “The interview of the officer takes place 24 hours later and of course that officer has the same rights as any other citizen on whether or not they are actually going to be interviewed or to give a statement.”

At the scene, officers are required to give a “safety statement,” that says who is injured, how the events occurred, and where to look for evidence, Sokolik said.

“We looked at policies all across the nation on what would be the best practices and for that investigation, and that’s how we came to that policy,” Sokolik said.

Typically, civilians and witnesses involved in such incidents are taken in for questioning immediately after the occurrence of a deadly force incident.

Erasing or concealing disciplinary actions are other provisions found in large-city police departments' guiding documents. Roughly 40% of the contracts InvestigateTV analyzed contain such provisions.

Lippman, the union, said that officers' misconduct history should be publicly available.

“It seems to me if the employer is maintaining those records, those records should be available to the public,” Lippman said.

Some union contracts had very few policies that fell into restrictive categories. Denver, Ottumwa, Iowa and Rapid City, South Dakota each had only one section of their contract with protective provisions.

In 2017, Loyola’s Rushin published an academic study in the Duke Law Journal on the results of a survey examining barriers of accountability within police union contract language. His work, along with past data collection by Reuters and a police reform organization, helped provide a standardized framework for InvestigateTV’s analysis.

In his work three years ago, Rushin analyzed roughly 600 contracts across the nation. He noticed a lot of the language highlighted in the contracts impede reasonable investigations.

“It’s a tricky balance, right, because on one hand you definitely need to make sure officers have adequate access to due process during any type of investigation,” he said in an interview with InvestigateTV. “But you also don’t want those due process protections to serve as unreasonable barriers to accountability.”

According to Rushin, other contracts included erasure or concealment of personnel files, limitations on anonymous complaints, as well as appellate procedures that could settle final discipline matters through arbitration, rather than through the community.

“I think there is a way we can balance the two issues at stake,” Rushin said. “We can provide due-process without unreasonably impeding democratic accountability and oversight.”

Use of force cases have sparked reforms

Though reform is certainly active in some police departments, it has not come without pushback.

“You can change the [contract] language but that won’t change the behavior,” said Ramirez, the former Washington D.C police officer turned lawyer. “The change needs to come from the top, down.”

In 2019, the Palo Alto City Council approved a measure to exclude internal personnel conflicts within the police department from independent audits. This means if a complaint against an officer is not issued by a citizen, it will be shielded from the public and subject to private investigation by the human resources department.

The city manager and police chief made the recommendation and said it will not inhibit transparency even as records would be secreted from public view.

“Police leadership really needs to work with the unions to figure out, when they do discover a bad apple, how to get rid of him, how to get him out of the job,” Ramirez said. “That’s a big, big issue.”

Other reforms are coming from the ballot box. On Election Day, voters in Columbus, Ohio overwhelming approved a new law that will establish an independent, outside review of excessive force complaints.

Tuscon’s police union, in negotiating its most-recent contract, agreed to extend the time for internal investigations from around one month to six months from the time of complaint.

The Tucson department’s union president, the only local union official out of around a dozen contacted who responded to InvestigateTV’s request for comment, said they changed the language to be more consistent with Arizona law. That law requires employers to “make a good faith effort to complete any investigation of employee misconduct within 180 calendar days after the employer receives notice of the allegation.”

Smith, who investigated the Ferguson case, said these baby steps are important.

“It’s easy to overstate how important these contracts are for reform,” he said. “This is one issue in a multitude of issues that are confronting the question around reforming police departments.”

The push for reforms and transparency is a labor of love for some such as James Delarosa’s cousin, still mourning the 22-year-old’s death.

“It’s motivated me,” Rodriguez said, “and really opened my eyes to the bigger picture.”

InvestigateTV News Content Specialist Daniela Molina contributed to this report.

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