The Burbank Police Department recently received its annual independent review which gave the public an inside look at departmental conduct and internal investigations.
The 71-page report, conducted by the Office of Independent Review Group, included 23 individual recommendations for the department to improve.
Some points of contention surfaced from the OIR’s review, most notably issues related to excessive use of force, de-escalation, racial bias sensitivity and mental health calls.
The review provides insight into how well BPD “addresses allegations of misconduct, scrutinizes uses of force involving its personnel, evaluates vehicle pursuits by its officers, and otherwise takes steps to promote accountability and agency improvement through a range of processes,” according to the OIR report.
OIR is California based and headed by Michael Gennaco. During Gennaco’s time as a federal prosecutor, he supervised more than 20 federal grand jury investigations into police misconduct. He conducted a number of successful civil rights prosecutions against law enforcement for excessive force, including officers from the Los Angeles Police Department, the Los Angeles Sheriff’s Department and federal immigration detention.
OIR was contracted as BPD’s “outside independent monitor” in 2012 to initiate reforms in the department after allegations of excessive use of force and a new command staff was appointed.
Since then, some things have changed at BPD, including new faces in the offices of City Attorney and Chief of Police. The department’s body-worn camera program, which just began in 2020, is now in full swing — and provides context in internal and independent investigations.
OFFICER MISCONDUCT INVESTIGATIONS
The department received high marks from OIR of its internal reviews of officer misconduct. According to OIR, BPD takes time to review all evidence and aptly investigate officer conduct.
“It is striking to us that BPD automatically treats any civil claim against its personnel as a form of complaint and pursues the issues in a formal internal investigation even though it is under no requirement to do so. In our view, this approach reflects the sort of proactive and inclusive mindset that makes administrative discipline most productive.”
During the officer misconduct review, investigations were chosen at random, though BPD did make OIR aware of a criminal investigation that it completed last spring against one of its own officers. According to the report, the officer was relieved of duty last spring and charged with felony counts of insurance fraud and perjury. That officer is no longer with the agency.
OIR’s only recommendation in internal misconduct investigations was as follows:
“BPD should adhere to its 60-day commitment for completing investigations, or to its approval and notification protocols for those cases that require additional time,” the report stated.
According to the report, the department agreed with the recommendation, adding that “the department will re-examine its systems relative to the timely submission of complaint investigations.”
BIASED POLICING
The report also included a lengthy sampling of biased policing allegations. According to OIR, these cases can be unsatisfying for complainants and accused officers alike, as they are “notoriously hard to prove.”
“Much depends on the subjective mindset and motivations of the involved officers, and denials — in conjunction with plausibly legitimate explanations for decision-making — are quite difficult to refute,” states the report.
The report also states that, “To BPD’s credit, they have handled complaints of biased policing with genuine thoughtfulness in an attempt to push past these dynamics and reach evidence-based conclusions. They go beyond the paradigm of ‘you stopped me because of my race’ [against] ‘no, I didn’t,’ in an attempt to hone in on the basis for the complainant’s perceptions and analyze the relevant encounter in its complete context.”
OIR reviewed the case of a young black man walking in an alley near his home in the early morning, wearing a hoodie and carrying a backpack. Officers engaged the man, claiming to be concerned about recent property crimes. Despite the man’s reservations, the officers searched him. The man reported the incident to the department the next day and claimed racial bias.
“The conflict was in some ways a frustrating one. In our view, both sides were politely intent on communicating effectively, and both had valid points that were ultimately not reconcilable,” stated the report.
The following investigation, OIR said, was thorough, though the claim was determined to be unfounded, and “the Department gave added credence to this result — and showed an understanding of the skepticism that mere denials or pat explanations can create.”
Ultimately, OIR recommended that BPD should continue to promote strategies for empathy, dispassionate explanations, and de-escalation in situations that may have a racial subtext in the perception of subjects, to which the department agreed.
REVIEW OF FORCE CASES
OIR’s agreement with the city also includes access to the reviews of any deadly force or in-custody death incidents.
In 2022, there was one such event: a 48-year-old male who had been arrested by BPD officers died while in custody at the department headquarters station jail.
However, the various investigative processes — including the legal review by the district attorney’s Office and the administrative review by BPD itself — had not been finalized by the close of the audit period.
“We will presumably be in a position to discuss this matter in our next report,” stated OIR.
OIR found that nearly all the department’s reviews “appropriately and thoroughly” evaluated uses of force, with one exception.
In this case, officers encountered a subject who was likely under the influence of methamphetamine, according to reports. The subject immediately resisted officers’ commands to show his hands and began grappling with the officers, which resulted in one officer falling to the ground with the subject on top of him, stated OIR.
“Officers used various strike techniques, including knee drives to the torso, to subdue the subject, but the subject seemed impervious to pain. Seeing that the subject’s arms were unsecure and near his partner’s duty belt and believing that the subject might attempt to disarm his partner, one officer delivered a kick to the right side of the subject’s face. This had no apparent effect. The fight continued. The officer delivered two additional kicks to the subject’s torso and several closed-fist strikes to the subject’s head and torso.”
After four taser deployments and two additional knee strikes, it still took two more officers to subdue the man.
After reviewing this standout use-of-force case, OIR’s recommendation was that “BPD should clarify policy to reflect that a kick to the head be considered deadly force and not to be used unless the deadly force threat levels are met.”
The department agreed with the recommendation, adding that “deadly force includes any use of force that creates a substantial risk of causing death or serious bodily injury.”
Other notable recommendations within the report were as follows:
— BPD should reconsider the practice of regularly transporting compliant subjects of mental health calls handcuffed and in the rear of a caged police vehicle.
— The Department should evaluate its training related to use of the Taser to ensure that officers use the appropriate mode to incapacitate a person, and not use the mode with physical contact except in the limited circumstances dictated by policy.
— BPD should evaluate incidents where the leg restraint device is applied, putting the person at risk of death by asphyxiation and, where a risk is identified, debrief and retrain officers on the application of the device.
— BPD should develop a review protocol that provides at least some level of reporting and scrutiny when officers engage in “pursuit-like” driving behaviors in circumstances that don’t evolve into actual, formally scrutinized vehicle pursuits.
“Most of the recommendations we have already implemented,” said Police Chief Michael Albanese in a report to the City Council last month.
First published in the October 14 print issue of the Burbank Leader.
