The Plight of the Police Whistleblower

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serpico

Al Pacino in the 1973 film "Serpico". Still via IMDb.com

Even as municipal and state officials around the country react to the killing of George Floyd  with measures aimed at curbing police misconduct, members of the criminal justice community warn that little will change unless officers feel safe enough to expose wrongdoing in their ranks.

Interviews with policing experts and former cops underlined the strength of a systemic police “culture of silence” that protects and supports bad officers, ignores officers in distress, and actively prevents good officers from speaking out as “whistleblowers” and demanding reform.

“There is tremendous pressure in policing, a cultural pressure, to not expose fellow officers to either professional or physical threats,” Seth Stoughton, an associate professor of law at the University of South Carolina School of Law, and a former Tallahassee, Fl., police officer, told The Crime Report.

seth stoughton

Seth Stoughton. Courtesy  University of South Carolina

“[Reporting] on other cops is, in some sense, a betrayal of that cultural imperative to support and protect each other.”

Police officers are an extremely insular group. They work closely with one another in what can often be a confrontational, adversarial and legitimately dangerous work environment. In a job where the man or woman next to you could be responsible for saving your life, it can be very difficult, if not impossible, to separate the character of someone who chooses to report misconduct from that of someone who will leave them in the lurch when their life is at risk.

“Whistleblowers aren’t just seen as stabbing other officers in the back, they’re almost inevitably seen as a potential physical threat to every officer,” said Stoughton.

And that perceived threat is often met with retaliation. One of the most well-known  examples is Frank Serpico, a former New York Police Department detective whose accusation of widespread corruption in the department during the late 1960s nearly cost him his  life—and formed the  plot of a gripping Hollywood film released in 1973.

serpico

Frank Serpico, 2013. via Wikipedia

But more than half a century later, police whistleblowers are still at risk.

Modern-day Serpicos risk stalled careers, ostracism from their colleagues, hostility from  their superiors—and worse.

­After reporting an instance of officer brutality in 2011, former Baltimore police officer Joe Crystal was actively harassed for the next two years by fellow officers who labeled him a rat, threatened his career, refused to help him, and placed a dead rat on the windshield of his car outside of his home.

At times, when Crystal called for backup while pursuing suspects on the job, he would be ignored.

In 2018, a female former Spokane, Wa., police officer who accused a male colleague of sexual assault reported being immediately ostracized by her fellow officers, facing open hostility in the workplace, and being avoided by people who, before her complaint, she had considered friends.

In both cases, the officers eventually left the force.  Joe Crystal had to leave the state.

“Because officers rely on each other so much, once an officer has blown the whistle or complained about a colleague, now that trust that had to exist between them either doesn’t exist anymore or has been weakened,” said Stoughton.

“It puts a target on their back.”

Officers who decide to report misconduct are often penalized by their superiors as well.

In 2019, Chicago police officer Sgt. Isaac Lambert filed a lawsuit against his department for allegedly retaliating against him after he refused to change a police report regarding the shooting of an unarmed, autistic teen.  He claimed they immediately transferred him from the department’s detective division to a shift in the patrol division.

In 2017, the police department in McFarland, Ca., settled a lawsuit with two officers who claimed they were demoted and fired respectively after informing the FBI of their department’s attempts to quash a warrant and protect the son of a city councilman suspected of being in possession of a stolen firearm.

stan mason

Stan Mason via Stanmason.com

“When officers challenge things or say things are unfair or not right, it’s looked at as if the officer is challenging the chiefs authority,” said Stan Mason, host of the radio program “Behind The Blue Curtain”, in an interview with TCR.

“The indoctrination is almost like the military.”

A 25-year veteran of the Waco, Tx., Police Department, Mason argues that too often good officers enter departments where any misconduct they identify has most likely already become an unwritten policy that superiors and fellow officers would much rather sweep under the rug than actively address.

“It’s easier to get rid of that person, or to bad-mouth that person, than it is to objectively look at their complaint and say whether it has merit or not,” said Mason.

In a 2018 study examining how Swedish police officers learn and reproduce informal norms that condition the conversational and working climates of their organization, roughly 100 officers revealed the existence of two dominant narratives in their department: that sanctions will follow if officers voice their opinions, and that one’s behavior must be adjusted if the ceiling of opportunity is to remain high.

The study further revealed that this culture is shared on a hierarchical level, with supervisors teaching trainees the culture of retaliation by retelling their own experiences with it and thereby granting it greater legitimacy, and that the discourse of a “low ceiling” of opportunity for those who speak up works performatively, constituting a plausible truth that few dare to question or challenge.

The benefits of staying silent are made clear in unsubtle  ways, said Mason.

“Whether it’s getting the vacation schedule before the next guy, getting to pick days off for the next year, getting to go to day shift, or this promotion or that promotion, of course they’re going to keep toeing that line that got them there,” he said.

The Rewards of ‘Playing Ball’

The culture of keeping your head down and your mouth shut to get ahead was one of the first things Shannon Spalding learned when she joined the Chicago Police Department (CPD).

“What I learned very quickly is that if you play ball you go far, and if you don’t you won’t,” said Spalding, who is no longer with the department.

Shannon Spalding

Shannon Spalding. Courtesy Chicago Tonight

An undercover narcotics officer working the neighborhoods of Chicago’s South Side, Spalding spent five years working on a joint FBI/CPD internal affairs investigation that uncovered a massive criminal enterprise within the department.

A lawsuit that she later filed forced then-Mayor Rahm Emanuel to publicly admit that the CPD had protected crooked cops from justice, the first time in city history a powerful politician had ever publicly acknowledged the code of silence and the lives it destroys.

However, when she first made the decision to expose this corruption, Spalding says she was offered a way out that would have supposedly benefited everyone.

“I was promised that if I shut my mouth I would be made: new car, a work-from-home position, an insane amount of money, never having to show up for work. Just ride my time out and go away quietly,” Spalding recalled.

This type of ethical erosion creates a lower standard for police behavior in a department where officers become numb to any of the varying degrees of misconduct they witness.

“You have officers inside the departments who see things that they know are inherently wrong, but if you say something you’re told to mind your business,” said Mason.

“How do you walk around in a department with 500 people who won’t speak to you?  How do you know they’re not going to put something in your locker or your car and say we just ran the dogs around and they alerted on your car? ”

Us vs Them

According to a 2017 examination of police culture and work stress for Introduction To Policing, a police training textbook authored in part by former and current police officers, this perpetuated culture of silence creates an “us-vs.-them” mentality between superiors and their rank and file officers, who see themselves as members of a minority who have to take care of themselves.

Administrators are seen as dangerous outsiders who are both professionally and personally threatening.

Moskos

Peter Moskos. Courtesy John Jay College

“There is an institutional problem that does not encourage open communication,” said Peter Moskos, an associate professor in the Department of Law, Police Science, and Criminal Justice Administration at John Jay College of Criminal Justice.

“It’s a chain of command issue.  You can never trust people two ranks above you because you’re not supposed to deal with them.”

A former Baltimore City Police officer, Moskos pointed out that many departments are often stuck paralyzed by fear, with seemingly no real way of telling what superiors might do if someone were to speak up.

“More likely, you send something up the chain of command and you never hear anything,” said Moskos. “It disappears somewhere.”

Moskos continued: “But what if they want to cover it up because they don’t want the hassle? Should you be telling your boss how to do their job?  Are they willing to throw people under the bus?  You just don’t know.”

Uncertainty about how their complaints would be received can lead officers to make a variety of choices that at any time could endanger themselves and others.

A 2017 survey conducted by the Pew Research Center presented roughly 7,000 police officers around the country with a scenario in which an on-duty officer discovers a fellow officer who has been driving while intoxicated and gone into a ditch.

Instead of reporting the accident and offense, he drives the intoxicated officer home.  In response to this scenario, 53 percent of the officers surveyed said that most officers in their department would not report the officer who covered up for his colleague. A quarter said only a few (22%) or none (5%) of their peers would report the cover-up.

However, while environments like these can lead to levels of extreme misconduct and corruption, Moskos maintains that the institution of policing is not corrupt overall.

Good leadership, committed to transparency and accountability, could make the difference, Moskos suggested.

“Leadership sets the tone through a certain amount of transparency, the discipline process they utilize, and their own behavior,” he said.

In a 2008 study on how leadership affects officers taking gratuities, an analysis of three separate police forces in The Netherlands identified the key factors that made one police agency less susceptible to corruption than the other two:

      • Management provided a clear definition of the acceptable norms;
      • Encouraged openness and discussion from line officers, including a requirement to report any gratuities received;
      • The agency was led by an involved police commissioner who played a central role in the establishment of those norms.

Could U.S. police forces achieve the same level of internal trust and transparency?

The EPIC Approach

“You really have to change the way you approach this issue,” said Jonathan Aronie, the federal monitor overseeing the New Orleans Police Department (NOPD). “Make sure that officers are never in the position of having to choose between doing the right thing and not because, in some environments, those decisions are hard to make.”

Jonathan Aronie

Jonathan Aronie. Photo by SheppardMullin

Responsible for reviewing, assessing, and reporting publicly on their compliance with a 2013 Consent Decree, Aronie assisted the NOPD in creating Ethical Policing Is Courageous (EPIC), a peer intervention program tool that teaches officers how to more effectively intervene in another officer’s conduct to prevent mistakes, misconduct, and promote health and wellness.

“On the whole, officers don’t want their colleagues to get in trouble and they don’t want their colleagues to violate the law, so if you have a better, safer and more effective way to tell your partner, ‘sit this one out and I’ll take it from here,’ most people will use that tool,” Aronie said.

Such approaches represent a major departure from the harsh discipline that most officers fear  if they step out of line, and could help call early attention to those who are experiencing the kind of stress or behavioral issues that boil over into over-aggressive policing on the street.

“If there are incidents you see that look like misconduct, there is a high likelihood there was a health and wellness issue somewhere in the past,” said Aronie.

Aronie, who serves as an instructor at the FBI National Academy’s professional development course for U.S. and international law enforcement leaders, said the majority of the officers in his classes regularly acknowledge that their departments are continually underperforming when it comes to monitoring the health and wellness of their officers.

He maintains that EPIC can be a solution to this problem.

“Every time I teach EPIC, I tell the officers real life stories about misconduct and mistakes,” said Aronie.

“I give them three stories and I ask which one of these could have been prevented with EPIC? They always answer ‘all three of them.’”

Daily exposure to violence and trauma on the beat can also result in hyper-aggressive behavior, according to a 2015 study for the Walden University College of Social and Behavioral Sciences.

Another study, a 2018 report by the federal Office of Community Oriented Policing Services found that behavioral dysfunctions associated with Post-Traumatic Stress Disorder (PTSD) can, if untreated lead to mental impairment and substance  abuse.

“On the whole, police departments do a poor job on officer health and wellness,” said Aronie.

“They underserve their officers, which means that they underserve their communities.  EPIC is one of the few programs that hits these problems from all angles and, even in a dysfunctional department, it’s still going to save careers and lives.  It’s still better than not having it.”

Since its creation, aspects of EPIC have been developed and incorporated into training by departments in North Carolina and Clemson University.  Law enforcement agencies in Dallas, Burlington, Vt., and Ithaca, N.Y., have since followed suit.

These are steps in  the right direction, but even the most promising policies can sometimes fail.

The Risks of Intervention

The Minneapolis Police Department, which has been on the firing line since the Floyd death, implemented an intervention policy  in 2016, stating that it is an officer’s duty to intervene and stop or attempt to stop another sworn employee when force is being inappropriately applied or is no longer required.

The rule did not prevent three Minneapolis officers from standing by during the killing of Floyd by their colleague Derek Chauvin .

Chauvin was their training officer.  He had at least 16 other misconduct complaints over two decades.

Officers inclined to intervene cross the line at their risk.

In 2014, when former Buffalo Police Officer Carol Horne intervened to stop a fellow officer from punching and choking an arrested man, the officer punched her in the face.  She was later fired and charged with obstruction.

According to Joseph Moseley, a 32-year veteran of the Chicago Police Department, retribution for whistleblowing will continue unless there are reforms to the how internal affairs investigations are conducted.

“If you look at the Internal Affairs divisions in Chicago, and you start looking at the names,  in most cases their officers are either second generation or they’re married to different people in the force,” said Moseley

“How am I going to go to internal affairs to report misconduct when half the guys in internal affairs have family members on the job?”

Is Misconduct Contagious?

Another troubling lesson from research: misconduct can be contagious.

According to a study published in the journal Nature Human Behavior, for every 10 percent increase in the proportion of a police officer’s peers with a history of misconduct (for instance, adding one allegedly misbehaving member to a group of 10), that officer’s chances of engaging in misdeeds in the next three months rose by nearly 8 percent.

This is exemplified by cities like Chicago and Minneapolis.  Both police departments have displayed a pension for violence, corruption and general misconduct that has spread like a disease from officer to officer with little to no successful efforts in place for containment or prevention.

To tackle this issue, Moseley insists that departments should take a page out of the Federal Bureau of Investigation (FBI) playbook.

“The FBI operates off a thing called ‘candor’; it’s basically their ethics clause,” said Moseley.

“It starts from the ground level, the day you walk in, and it’s chargeable.”

A review of the FBI’s disciplinary system by the Department of Justice states that, under FBI policy, employees must report all allegations of misconduct to appropriate FBI officials, who are, in turn, required to report them to the DOJ Office of the Inspector General.

“If they enacted those same parameters to local law enforcement, a lot of this misconduct would probably wipe itself out,” Mosley argued.

Lack of Legal Protection for Whistleblowers

A good first step, according to experts contacted by TCR, is enshrining protection for police whistleblowers in state statutes.

“The lack of legal protection for officers making reports about the conduct of fellow officers is a problem,” said Ann Hodges, Professor of Law Emirata at the University of Richmond.

Ann Hodges

Ann Hodges. Courtesy University of Richmond

In a 2018 study, Hodges found that while most states now have whistleblower protection laws in place for public employees who choose to speak out against their employers, a 2006 Supreme Court decision went in the other direction for law enforcement.

The ruling in Garcetti v. Ceballos effectively removed Constitutional protection from retaliation for officers who report unlawful conduct through their chain of command, she said.

“Police officers have a duty to report and take action with respect to unlawful conduct.  That’s their job, but Garcetti says that if you’re speaking out as a part of your job duties you don’t have First Amendment protection and you can be retaliated against or fired.”

The theory behind this decision is that it prevents bad employees from being able to claim retaliation when and if they are terminated from their employment.  However, Hodges points out that this reasoning creates a limitation on remedies for employees who are legitimately retaliated against, and that the whistleblower protections or civil service statutes that states may have in place saying, for example, that an employer cannot terminate someone without cause often have limitations of their own.

“With respect to the First Amendment protections and whistleblower laws, those protections are not there for the employees who are speaking pursuant to their job duties,” said Hodges.

“And it isn’t always termination you need protection from. Maybe you’re transferred to the night shift, maybe you’re moved to a more dangerous place to do police work.  Even if you have protection and have to be fired for cause they can make your life pretty miserable in other sorts of ways.”

After Garcetti, potential whistleblowers are left exposed.

In order to make it easier for officers to protect themselves while also exposing misconduct, Hodges recommends a return to the “Pickering balancing test,” a once-common court practice that resulted from the 1968 Supreme Court decision in Pickering v. Board of Education and served to buttress whistleblowing cases for three decades before being overturned by Garcetti.

“Pickering says that if they’re speaking out on a matter of public concern, which clearly this would be if someone is reporting serious misconduct by a police officer, then the court will balance the employee’s and the public’s interests in the speech vs. the employers interests in taking some sort of action,” Hodges said.

John Kostyack, executive director of the National Whistleblower Center (NWC), a U.S. nonprofit providing legal assistance to whistleblowers and advocating for stronger whistleblower protection laws, believes that changes like this are necessary if police departments are to be brought to task for retaliating against the men and women who are just doing their jobs  properly.

John Kostyack

John Kostyack. Courtesy Natonal Whistleblower Center

“When retaliations happen it needs to be more than just getting your job back,” said Kostyack.

“There has to be serious compensation that sends a strong message.”

However, Kostyack believes that, in general, police departments are not at the forefront of creating effective whistleblower programs, and that in order to effect change, states and their courts must be pushed to create very clearly stated anti-retaliation laws and principles that force departments into compliance and offer sever sanctions for those that violate them.

“State legislatures could fix Garcetti v. Ceballos in a heartbeat,” said Kostyack.

He sees Idaho as a perfect example.  In 2015, Idaho State Police Detective David Eller filed a lawsuit against his department after management retaliated against him for testifying against a fellow officer who faced a vehicular manslaughter charge after a fatal crash in 2011.

With the help of the NWC, Eller was able to eventually win his case, earning a $1.29 million settlement for lost wages, legal fees and damages including emotional distress.

“That’s an example of how you could build a program that sends a strong enough message that retaliation is taken seriously by the state and will be penalized,” said Kostyack.

However, change is slow, and the culture of silence and retribution in policing is commonplace in departments around the country.

Complicating the problem, there are roughly 18,000 state, county and local law enforcement agencies in the United States today. With no national standards, two departments in two neighboring towns can have completely different rules and policies.

Changing one does not mean the others have to follow suit.

As a result, misconduct in police departments continues while small changes and major failures occur seemingly at random and are dealt with in the same fashion.  Meanwhile, good police are forced to decide between speaking up and losing everything they hold dear in the process.

Even, at times, their lives.

“There’s a legitimate fear of real retribution,” said Peter Moskos. “A bullet through your window kind of retribution.”

Isidoro Rodriguez

But it’s in the interests of officers as well as the communities they serve to end a culture that rewards silence and concealment, said Shannon Spalding.

“Most officers go to work to serve and protect and will die for you,” she said. “We have to find a way for these officers to safely speak out about serious civil rights violations and crimes.

“These kinds of crimes need to be reported.”

Isidoro Rodriguez is a contributing writer for The Crime Report

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