PART III. A DEPARTMENT DOING ITS JOB HAS FEW UNION WORRIES. Clean your house.

Stop allowing police departments to pass their liability on to the public.

EVERYTHING YOU ARE ABOUT TO READ CAN BE ASSESSED THROUGH A QUALITY ASSURANCE REVIEW.

Each department’s collective bargaining agreements must be considered on a case-by-case basis. However, generally speaking, unions are the heavies in malfeasance investigations. Those are generally investigations that implicate some kind of OFFICER CULPABILITY (rule violation or criminal charge).

Investigations are enormously complicated due process events about an entirely distinct question of fact: did officer x act with malfeasance? They often require official complainants. They are lengthy events, with investigations, command meetings, and identifying and questioning witnesses. They come with lawyers and affidavits and sworn testimony. They generate huge evidentiary pools of statements and photos and recordings and illustrations and even expert testimony. They can involve criminal charges, professional disqualification, or an indelible professional stain. And, they are aggressively governed by collective bargaining agreements that benefit the target and are unlikely to change.

That is not this. This is about a quality assurance review. This is a “spot” or “housekeeping” review of a SUPERVISOR’S PERFORMANCE per his or her position description.

Up through law school, I was a Director for a large and de-centralized non-profit agency subcontracting with California. What Human Resources and Quality Assurance was one of my two hats. I verified performance compliance with policies, procedures, and position requirements.

Quality assurance reviews are straight forward questions of fact. They do not implicate due process — the agency owned all the underlying data. They are binary — the employee either complied or did not. Patterns are generally defenses — outside of the obvious and egregious, if they were trained and educated yet still underperformed, that was that. And it takes as long as it takes to review a file.

Unions and collective bargaining agreements are not big players here as long as reviewers document supervisor non-performance. In some cases, severe non-performance gives cause for immediate termination.

These reviews are easier to discipline around. Because they are binary, they are also harder to refute. These factors largely keep unions from having to kick into gear.

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PART I. OUR RELATIONSHIP IS WITH THE DEPARTMENT.
PART II. THE DEPARTMENT MUST (AND CAN) CORRAL THE POLICE.
PART III. A DEPARTMENT DOING ITS JOB NEUTRALIZES THE UNION.
PART IV. YOUR SERGEANT, LIEUTENANT, CAPTAIN, MAJOR, & DEPUTY NON-ACCOUNTABILITY IS KILLING A PEOPLE.
PART V. FIX THEM OR WE FIRE THEM AND YOU.

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WHAT A LOUISVILLE METRO POLICE DEPARTMENT (“LMPD”) COMPLAINT and DEMAND FOR INVESTIGATION COULD LOOK LIKE

Under LMPD supervision, Officers from the LMPD’s Criminal Interdiction Division (“CID”) may have improperly vetted and then executed the Breonna Taylor raid (“Taylor Raid”), suppressed required records, and breached the integrity of physical and testimonial evidence.

Nothing here is offered for, or constitutes, legal advice. This is simply a comprehensive, common sense response that anyone with an internet connection can replicate. Comparing news reports to LMPD policy raises serious questions about LMPD supervision that everyone should be asking.

I. FAILURE TO SUPERVISE WARRANT EXECUTION IN KEEPING WITH LMPD POLICY.

The Taylor Raid was one of five raids to be simultaneously executed on March 13. LMPD called in its own Special Weapons and Tactics (“SWAT”) to help with some of these raids. LMPD used its “B Team,” the Criminal Interdiction Division, to execute the Taylor Raid. It did not notify SWAT about the Taylor Raid until after Sergeant Mattingly was injured.

The SWAT Team is the subject matter expert for raid executions. Upon scene arrival, SWAT had immediate concerns. The execution plan appeared to prioritize evidence. The execution scene itself was complete chaos.

SWAT Lieutenant Dale Massey described the Taylor Raid as an “egregious act” borne of poor planning and execution. “[H]uman life is more important than any amount of dope,” he said. “If no one’s got to die, they don’t have to die.” No available evidence identifies a command officer at the scene.

While nothing here is offered for, or constitutes, legal advice, available media raises genuine concerns that:

LMPD management failed to install a scene commander for its high-risk operation. A commanding officer must be present during a raid. SOP 8.1.1.

LMPD management failed to bring in its subject matter experts for an event they understood to be high risk. LMPD’s SWAT team exists to assist with high risk search warrant execution. SOP 1.7.3. The LMPD Special Operations Division Commander’s (“SODC”) is to arrange for SWAT support. This is to occur when the SODC is dealing with a risky raid. SOP 1.7.3.

The net effect of LMPD’s failure to supervise is that agents lacked the guidance to maintain professional neutrality and killed an innocent woman as a result. What started as a wholly avoidable outcome is now an inescapable tragedy.

There is a credible concern that this failure was so severe, it allowed for unsupervised LMPD agents to kill an innocent woman.

Calling in a SWAT Team to execute the Taylor Raid was common sense at its most basic level. And yet, no supervisor did. That something this simple and this obvious escaped them is prima facie evidence of failed supervision.

First, supervisors departed from LMPD’s own performance norms. LMPD’s practice is to request SWAT support. LMPD spokesperson Jessie Halladay made this clear. No-knock warrants executed without SWAT assistance would be unusual.

Next, supervisors overlooked an obvious need. It takes no mental leap to understand that a five-part raid needs subject matter experts at each break off point. Not at some of the locations; at all of the locations. Even a casual lay observer understands math and common sense: five teams in the field leaves no engageable resources, and no back up plan, when calamity strikes.

Further, supervisors knew or should have known they needed SWAT’s expertise. These were midnight raids on a suspected criminal enterprise. Calamity is baked in. Is that not why they were scheduled in the dark of night? Because sleeping dangerous felons are safer than awake and alert dangerous felons? To know that, plan for it, and then fade out on the execution is professional negligence.

Finally, even the Louisville City Council is clear here. Breonna’s Law picks up this thread of life saving support and moves it from judgment driven to mandatory. This is dispositive on the question of failure to supervise. Had supervisory judgment met par, the City would need no action here. However, the City is unwilling to gamble with command staff that can miss a pitch as soft as what we saw here.

Your communities deserve the unqualified protection of sound supervision. Your officers deserve leadership that will act to keep them safe. Your city deserves action to minimize foreseeable harm. Your remaining supervisors deserve a clear message on the cost of apathy or non-compliance.

Your supervisors failed, and LMPD agents killed an innocent woman, shattered the city’s liability ceiling, perverted justice, and alienated the community perhaps irreparably as a result. Nothing short of termination serves when this level of professional abdication is in play. Fire the wrongdoers here.

II. FAILURE TO SUPERVISE WARRANT ACQUISITION IN KEEPING WITH LMPD POLICY.

Detective Joshua Jaynes presented Judge Mary Shaw with the Taylor Raid warrant and four others. He swore in all five affidavits that he both conducted a US Postal Service verification for Taylor’s address and confirmed that Jamarcus Glover had “been receiving packages” there.

However, Detective Jaynes never conducted a US Postal Service verification for the Taylor address. Detective Jaynes also never confirmed that Jamarcus Glover had “been receiving packages” at the Taylor address. LMPD was told at least three times — twice to Detective Jaynes directly — that US Postal Service confirmed no suspicious activity at the Taylor address. And, there are no public records of supervisor participation at any stage of the warrant process.

No ‘packages of interest’ at slain EMT Breonna Taylor’s home, WDRB.com (May 16, 2020).

While nothing here is offered for, or constitutes, legal advice, available media raises genuine concerns that:

LMPD management failed to require approval for Jaynes’ warrant application. A commanding officer is required to give written approval to apply for a warrant. SOP 8.1.1.

LMPD management failed to require approval for Jaynes’ warrant itself. A commanding officer is also mandated to review and approve a search warrant affidavit in writing, before an officer applies for the warrant, and monitor investigative efforts to ensure sufficient probable cause exists to support requesting a search warrant. SOP 8.1.2.

LMPD management failed to require warrant verification. A commanding officer is obligated to verify a search warrant’s validity. SOP 8.1.17.

The net effect here is that proper supervision could have averted putting a series of avoidable but ultimately fatal events into play.

Supervisors’ sub-par performance made unearthing the Jaynes defect virtually impossible. LMPD could have teased Jaynes’ misconduct to the surface with a supervisor review.

A supervisor review would have likely revealed that Jaynes lacked documented support for his affidavit claims. Jaynes never conducted a US Postal Service verification for the Taylor address. Shivley Police Department (“SPD”) Sergeant Timothy Salyer attempted the verification at LMPD Sergeant Jonathan Mattingly’s request.

A supervisor review would likely have revealed that Jaynes never confirmed that Jamarcus Glover had “been receiving packages” at the Taylor address. Detective Jaynes told investigators that Sergeant Mattingly “told him Glover was getting packages on Springfield.” Sergeant Mattingly reportedly told Detective Jaynes the opposite: “there was no package history at that address.” LMPD investigators reviewed the matter and then recommended a criminal investigation.

A supervisor review would likely have revealed that between them, LMPD and SPD told Jaynes three times that US Postal Service confirmed no suspicious activity at the Taylor address. Sergeant Mattingly reported SPD Sergeant Salyer’s findings to Detective Jaynes. Sergeant Salyer conveyed the same to LMPD Detectives Mike Nobles and Kelly Hanna. And finally, Sergeant Salyer conveyed this to Detective Jaynes in an April 10th text message.

A supervisor review would have likely stopped Jaynes’ taint from reaching through and then beyond the Taylor Raid. All five of Jaynes’s warrants died the moment PIU referred Jaynes’s matter for criminal investigation. Their resulting evidence, and from that, criminal cases died right along with them.

Breonna Taylor warrant was ‘misleading,’ Louisville police investigators find. WRDB.com

The outcome of that investigation is virtually irrelevant. Taint can survive the absence of bad faith. In the presence of bad faith, the corruption is all but insurmountable.

And it gets worse. Jaynes’ also may have exposed everything he touched to dismissal or appeal. That means his cases, his warrants, his statements, and the Division at large.

Supervision gives a neutral, rule-fluent set of eyes the chance to test the weight and accuracy of probable cause evidence. Your leadership had all the tools, access, and instruction necessary to police Detective Jaynes’s conduct. That extraordinary firewall could have, and should have, stayed putting into motion the armed, tactical machine that ultimately killed Breonna.

III. FAILURE TO SUPERVISE EVIDENCE INTEGRITY IN KEEPING WITH LMPD POLICY.

Detective Brett Hankison, Detective Myles Cosgrove and Sergeant Jonathan Mattingly shot into the Taylor home during the botched March 13 raid.

LMPD SWAT Sergeant Joel Casse complained to investigators that while LMPD SWAT was controlling the scene, “officers . . . were trying to come into the scene and Sergeant Hogan was trying to keep them back out.”

LMPD SWAT Lieutenant Dale Massey saw involved officers “roaming freely on scene after the incident” after the shooting. The involved officers were not separated from the scene and not paired with a peer support officer.

Specifically, Lieutenant Massey also saw shooter Myles Cosgrove walking around the scene after the shooting, with evidence — his rifle — still in his exclusive control. Cosgrove was not paired. Massey directed others to separate Cosgrove as an involved party “way too up in the mix.” Even then, Cosgrove remained. LMPD SWAT Sergeant Brandon Hogan also saw Cosgrove walking around the scene.

Similarly, Sergeant Hogan saw Detective Hankison at the scene. Hankison was not separated, but instead entered what was then the scene of his own crime. Sergeant Hogan also saw Hankison ask questions about the scene. Hogan had to tell Hankison it was a crime scene. Another SWAT officer had to eject Hankison.

Finally, then Police Chief Steve Conrad saw Detective Hankison later walking at the hospital where injured raid officer Jon Mattingly was being treated, and without expressly required escorted. Conrad also believes the Detective went home after the scene but before going to the hospital. At the hospital, still without escort, Hankison conveyed to Conrad that he was afraid he would be fired.

While nothing here is offered for, or constitutes, legal advice, available media raises genuine concerns that:

LMPD management failed to protect witness integrity. LMPD requires witness separation to prevent contamination. SOP 8.36.6. Moreover, LMPD requires officer-involved separation and escort pairing. SOP 8.12.4.

LMPD management failed to protect scene integrity. LMPD policies expressly requires its agents to protect its incident scenes. SOP 8.12.4. Incident scenes must be protected from entry by unnecessary or unauthorized persons, and from contamination. SOP 8.36.5. The initial responder must enforce minimal contamination and disturbance of physical evidence. SOP 8.36.5.

The net effect of a failure to supervise here is enormous. Not one single piece of evidence is demonstrably free of taint which also means it is unfit beyond the most banal of uses.

There is a credible concern that this failure was so severe, and the body evidence is so compromised, this class of bad conduct will escape detection unless and until LMPD kills again.

Supervisors’ non-performance created an opportunity for LMPD to thoroughly subvert critical rules.

LMPD cannot definitively say that neither Cosgrove nor Hankison manipulated or removed physical evidence at the scene. Both Cosgrove and Hankison had access to scene evidence and an opportunity to disturb the same.

LMPD cannot definitively rule out that neither Cosgrove nor Hankison tweaked testimonial evidence between themselves or suggested inferences to others to promote a non-misconduct perspective.

Whether they enjoyed success is irrelevant. The specter of taint alone is enough to completely undermine/derail the integrity of the investigation, the ability to impose consequences, and the ability to enact curative measures.

Supervisors’ non-performance deprived the community, the City, and LMPD of an untainted pool of evidence against which to test raid team statements for truth and accuracy. The Taylor Raid team is in complete control of its own checks and balances system. There is no neutral source to challenge inconsistencies. The parties with a real interest in insulation from termination, litigation and criminal charges are the parties who tell the tale.

Supervisors’ non-performance put potentially catastrophic costs into immediate play here. Tainted evidence is suspect. In the Taylor Raid context, that taint can destroy community trust; subvert prosecution; result in technical non-convictions and destroy community trust even further still; create durable, uncapped civil liability; provoke future civil liability from failing to install what would now be a latent defect; offend insurance coverage limits; and deprive LMPD of key teachable moments.

Supervisors’ non-performance put potentially catastrophic long-term costs into play as well. Consider the message you send thus far: breaking the rules and perverting evidence diminishes an officer’s disciplinary risk because perverted evidence is unreliable. Consequence-free misconduct incentivizes misconduct.

The perversion here is complete. LMPD has little — if any — untainted evidence to act on, for the public to rely on, or for the City to be reassured by. Nothing here supports staying disciplinary action. To the contrary, everything here demands it. Fire the wrongdoers: it is proportionate to their harm; it is a curative remedial measure; and, it is just the right thing to do for all of the victim classes involved.

IV. FAILURE TO SUPERVISE BODY CAMERA USE IN KEEPING WITH LMPD POLICY.

While nothing here is offered for, or constitutes, legal advice, available media raises genuine concerns that:

LMPD failed to supervise, and that failure resulted in unrecoverable loss of life and egregious loss of liberty. LMPD says it does not require officers to use body cameras, which conflicts with its own practices. That position violates a host of related efficacy and evaluation policies.

LMPD management failed to enforce its body camera policy. SOP 8.1.18. LMPD requires officers use body cameras during law enforcement activities. *SOP 4.31.1. That general requirement is an express mandate during warrant executions. *SOP 4.31.5.

LMPD management failed to follow its officer evaluation policy. Supervisors must review camera footage regularly to evaluate overall officer performance or assess departmental policy compliance. *SOP 4.31.13.

LMPD management failed to follow its episodic review policy. Supervisors must conduct episodic reviews per the SOP for officer complaints, officer involvement in critical incidents, and patterns of misconduct or poor performance. *SOP 4.31.13.

LMPD management failed to enforce cyclic oversight requirements. Supervisors are required to verify officers’ body camera usage monthly. *SOP 4.31.13.

LMPD commanding officers failed to perform periodic compliance review. General Commanding officers must receive and review quarterly compliance notices. *SOP 4.31.13.

The net effect of this failure to supervise is that victims, the Department and the City are deprived of untainted, dispositive evidence.

Supervisors had ample notice that the Department was serious about the camera policy it imposed. Supervisors created an army of officers incentivized to not collect evidence. Supervisors created consequences here that are without parallel. With no untainted record:

· LMPD cannot verify report accuracy.
· Officers can color the record to eliminate personal liability.
· LMPD cannot cap city liability.
· LMPD destroyed public trust.
· LMPD has foreclosed transparency.

SOP 4.31.2 .

Supervisors created defects that are all but insurmountable. Most immediate is this: officers face termination and criminal charges for their March 13 conduct. Those same officers are the sole source of almost all of the evidence against them. Officers can eliminate liability by self-exoneration, regardless of what took place.

Supervisors created a cost that all BUT supervisors are looked to to pay. No city can afford that. No officer can afford that.

Supervisors created a price that all BUT supervisors have actually paid. Breonna Taylor paid with her life for a failure that was all theirs and none hers.

Do not let leadership continue running with a false bad apple / lone wolf narrative. Officers are not innocents, but the apples riding desks are holding the reins. Demand that Mayors and Chiefs supervise their supervisors until we get the culture to which the nation is entitled.

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Be the force motivating the driver,

EMAIL: title42usc1983@yahoo.com. FACEBOOK: https://www.facebook.com/catherine.pugh.79. TWITTER: @EsqPugh. View a Race and Profiling Lecture Series appearance here.
Roman chariot in a race for justice in policing because race is a contact sport

Before you engage me or others, here are a few things to keep in mind:

Ten things to watch out for during racism discussions.

Catherine Pugh is an Attorney at Law and former Adjunct Professor at the Temple University, Japan. She developed and taught Race and the Law for its undergraduate program, and Evidence, Criminal Law, and Criminal and Civil Procedure for its law program. She has worked for the Department of Justice, Civil Rights Division, Special Litigation Section, and was a Public Defender for the State of Maryland. View her Race and Profiling Lecture Series appearance here. The view expressed here are personal. Nothing in this or any Medium writing is a legal recommendation, legal advice, or a legal opinion.

To my sweetest of loves: I am the wall for them; you are the wall for me. And nothing — nothing — has ever gotten past you. You are my everything. #CubanKitchen.

“It takes the wisdom of the elders . . .” Thank you for teaching us, loving us, leading us all: Mary Stovall Davis Budd, Andrea Tucker, Lorenzo Pugh, Dorris Pugh, Jacqueline Wallace, Roger Wallace, Kenneth Davis, Sandra Davis, and Karen Davis.

Underground Railroad Quilt used as footer in a race / racism / justice discussion.
Underground Railroad Quilt used as footer in a race / racism / justice discussion.
Quilts and the Underground Railroad

Keywords: racism, police misconduct, police accountability, police reform, society, culture, leadership.

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Private Counsel. Former DOJ-CRT, Special Litigation Section, Public Defender; Adjunct Professor (law & undergrad). Developed Race & Law course.