Pretty Demanding Standards at the D.C. Police Department

Perhaps too demanding, though who knows (and it may well be that the punishment was suitably modest). From 2021 D.C. Office of Police Complaints 21-0072, 2021 WL 6804783 (decided Dec. 10 but just posted on Westlaw) (I'm focusing here on only one of the two complaints, against SUBJECT OFFICER #2):

On the evening of the 2020 presidential election, November 3, 2020, COMPLAINANT #1 and his wife, COMPLAINANT #2, and children attended an event at NW, WASHINGTON, DC, in downtown DC. One of their children was to perform at the event featuring Go-Go music. The Go-Go band was playing on the bed of a truck at the location. There were also protests happening at this time and location….

[At some point in the] evening, COMPLAINANT was arrested by MPD. COMPLAINANT was put in the police vehicle wagon and awaited transportation off the scene. SUBJECT OFFICER #2 approached indicating that he was responsible for transporting COMPLAINANT.

SUBJECT OFFICER #2 approached the wagon and asked WITNESS OFFICER #9 and WITNESS OFFICER #10 if COMPLAINANT was wearing handcuffs or zip ties. They indicated that they did not know. An officer standing there told SUBJECT OFFICER #2 that COMPLAINANT would be aggressive. SUBJECT OFFICER #2 shined his flashlight into the transport vehicle. He said, "You got handcuffs on, dude? Or wire cuffs?" COMPLAINANT did not respond. SUBJECT OFFICER #2 repeated, "You got handcuffs on?" COMPLAINANT did not respond.

SUBJECT OFFICER #2 said, "Are you high? Do you understand English?" COMPLAINANT said, "Is your fucking mother high, bitch?" SUBJECT OFFICER #2 said, "Are you high?" COMPLAINANT said, "I'm high with your mother, bitch." SUBJECT OFFICER #2 said, "I'm glad you asked. Say hi to her for me." COMPLAINANT #1 continued talking and using profanity. SUBJECT OFFICER #2 said, "Whatever you say, handsome." With a sing-song tone, SUBJECT OFFICER #2 said, "Have a nice day." COMPLAINANT stopped talking. With a sing-song tone, SUBJECT OFFICER #2 said, "Have a nice day." COMPLAINANT continued talking using profanity and racial slurs. SUBJECT OFFICER #2 said, "That's fine." COMPLAINANT briefly stopped talking. He then started rambling again. SUBJECT OFFICER #2 said, "Make sure you say hi to everybody for me." COMPLAINANT #1 kept rambling and using profanity.

SUBJECT OFFICER #2 said, "Is that the worst thing you can really come up with? Seriously? Is that the worst thing you can come up with?" COMPLAINANT #1 said, "Shut the fuck up then. Is it bothering you, nigger?" With a laughing tone, SUBJECT OFFICER #2 said, "Nothing's bothering me." COMPLAINANT said, "You fucking nigger. Shut the fuck up, nigger." SUBJECT OFFICER #2 said, "Whatever you say, handsome." COMPLAINANT kept rambling and using racial slurs. SUBJECT OFFICER #2 laughed….

 

MPD "members shall: [b]e courteous and orderly in their dealings with the public." Specifically, "[m]embers shall perform their duties quietly, remaining calm regardless of provocation to do otherwise." MPD General Order 201.26 (effective April 5, 2011) Duties, Responsibilities and Conduct of Members of the Department, Part V, Section C Conduct Toward the Public, No. 1. Further, "all members shall [r]efrain from harsh, violent, coarse, profane, sarcastic, or insolent language. Members shall not use terms or resort to name-calling, which might be interpreted as derogatory, disrespectful, or offensive to the dignity of any person." Id. at Part V, Section C, 3. These principles are also adopted in the standards used for arrest procedures: "prisoners and suspects shall be treated in a fair and humane manner; they shall not be humiliated, ridiculed, taunted, or embarrassed." Id. at Part V, Section D Conduct in Arrest Procedures, No. 1(a)(1)…..

SUBJECT OFFICER #2 not only responded to COMPLAINANT #1's use of profanity and statements about his mother in an unacceptable manner, but he also escalated the engagement with COMPLAINANT by calling him "handsome" and telling him to "have a nice day" in a taunting manner. SUBJECT OFFICER #2 engaged with COMPLAINANT #1 in a manner inconsistent with expected conduct of an MPD officer. Those expectations demand that despite COMPLAINANT #1's disrespectful language and conduct, SUBJECT OFFICER #2 should have remained professional. Particularly during this era of heightened tension between the public and law enforcement, officers' conduct should rise above the conduct of the public.

As the General Order on the Duties and Responsibilities of members of the MPD states, "the personal conduct and attitude of the police officer is of paramount importance" to strengthen the relationship between police and the community. Here, SUBJECT OFFICER #2 abused his position of authority and demonstrated a profound lack of professionalism expected of the MPD. In conclusion, SUBJECT OFFICER #2 engaged in conduct and used language toward COMPLAINANT #1 that was insulting, demeaning or humiliating in violation of D.C. Code § 5-1107 and MPD General Order 201.26.

{The defenses offered by SUBJECT OFFICER #2 fall flat. This examiner recognizes the exhaustion members of the MPD must have experienced particularly during the weeks and months surrounding COMPLAINANT #1's arrest. However, the circumstances do not create an excuse for lack of professionalism. If an officer is unable to carry out their responsibilities with professionalism and respect under stress, alternatives such as relying on fellow officers and excusing themselves from the situation, counseling, de-escalation training or seeking mental health leave may be appropriate.}

The officer's reaction ("calling him 'handsome' and telling him to 'have a nice day' in a taunting manner") struck me as understandable given the provocation ("fucking mother," "I'm high with your mother," "You fucking nigger. Shut the fuck up, nigger."). But perhaps it's good that the police department is demanding a high level of verbal restraint even under provocation (and again I note that the punishment might well have been correspondingly light).

Comments

[ReaderY]

Do we have to move from a world where it’s perfectly OK to shoot a suspect in the back if he disses you and you know and the suspect knows you’ll get backed up if you do, to a world where the suspect is entitled to taunt you, entitled to do anything he can to make you flinch, knowing you get punished if you flinch even slightly?

And do we have to make this move all in one go?

George Orwell wrote an essay about how during the French Revolution, the spectators made a game of watching the nobles to see if they flinched while getting executed. It was fun. Then, one of the nobles screamed, cried, bawled, made a fuss. And suddenly, it stopped being so fun any more. Fewer spectators came. Orwell suggesting this lady, by showing nobles are human after all and not so much better and more self-controlled than everybody else, may have contributed to people gettingv tired of the executions and eventually stopping them.

Do we have to move from the police being all powerful to expecting them not to flinch no matter what?

[WuzYoungOnceToo]

You seem to be missing the point. It's not about expecting law enforcement to "not flinch" (which is an odd characterization of the events in question) no matter what. It's about expecting them to conduct themselves like professionals and mature adults in the performance of their duties. If you can't deal with foul-mouthed nuts without engaging them in childish taunting games then you might not be suited to the authorities and responsibilities given to law enforcement.

[Dilan Esper]

Right. And important in that is that cops have the power to arrest and to use violence, which makes restraint all the more crucial.

I.e., an ordinary government employee might very well be permitted to talk back to an abusive citizen, because that dispute isn't going to lead to the loss of anyone's liberty or a beating or shooting. But precisely because cops CAN escalate, we need to put strict controls over when they can escalate. Training cops to just take the abuse reminds them that contempt of cop is not a crime, and that the enormous powers they have to restrict liberty and terminate life cannot be brought to bear just because a citizen is offending them.

[dwb68]

So what if I tell a suspect who is taunting me, that s/he should exercise their 5th amendment right to shut the fuck up?

[WuzYoungOnceToo]

So what if I tell a suspect who is taunting me, that s/he should exercise their 5th amendment right to shut the fuck up?

What about it? And how does that question pertain to what I said?

[dwb68]

Is that childish taunting? Or just informing the suspect of their rights in a colorful way?

[WuzYoungOnceToo]

Is that childish taunting? Or just informing the suspect of their rights in a colorful way?

Did you even bother to read the OP? Your example bears no resemblance to what occurred and what I was commenting on at all.

[dwb68]

perfect!

[bacchys]

Or you could just ignore it instead of being a petty little bitch.

Your call.

[Jerry B.]

COMPLAINANT #1 is lucky he didn't get a beatdown.

[Rossami]

Understandable is not the same as appropriate. From the transcript above, the officer unnecessarily contributed to the escalation of the verbal conflict.

Yes, we put police in high stress situations. And we pay them to deal with that stress appropriately. Bullying your prisoners is not acceptable regardless of provocation. If an officer can't control his/her emotions in a merely verbal altercation, we damn sure can't trust that person with the authority to use lethal force.

[Rossami]

Re-reading the transcript, the officer not merely escalated the conflict, the officer provoked it in the first place.

What we know from the transcript:
- The subject was arrested. We don't know why but the transcript is consistent with the crime of "being in the wrong place".
- The officer takes over custody of the subject. Rather than order the subject to show his hands, the officer asks the subject if he is handcuffed. This was an irrational question to ask. If the subject was handcuffed, then the officer was in no danger. If the subject was not handcuffed but intended no hard, then the officer was still in no danger. If the subject was not handcuffed but did intend harm, the subject is not going to tell the truth.
- Again, the subject has been arrested at this point. Possibly but probably not yet advised of his rights but certainly not provided counsel. The subject declines to answer the officer's irrational question.
- The officer then asks the subject to confess to an unrelated crime. "Are you high?" This was also an unreasonable question. At this point, the subject loses his temper and insults the officer. Rather than recognize that the question was inappropriate and irrelevant, the officer escalates from there.

Okay, the altercation stayed verbal. But I refuse to accept that I live in a state where the standard of acceptable police behavior is 'at least he didn't end up dead'. The cop was wrong from start to finish and deserves to be censured.

[Jerry B.]

Or COMPLAINANT #1 could have said “Yes. I have handcuffs on. Why is that?”

[WuzYoungOnceToo]

Or COMPLAINANT #1 could have said “Yes. I have handcuffs on. Why is that?”

If the best defense you have of LEOs conducting themselves like middle schoolers is that the idiots they're dealing with are also behaving like middle schoolers then there's a bigger problem.

[Rossami]

Way to miss the point, Jerry. The Complaintant's verbal answer doesn't tell you anything useful. Because good guys aren't going to hurt the officer in the first place and bad guys lie.

[Darth Chocolate]

And if COMPLAINTANT #1 was truly arrested and Mirandized, he is perfectly within his rights to NOT answer.

[Jacob Grimes]

Give me a break. You sound like George Constanza whining about how the mean policeman yelled at him.

[Armchair Lawyer]

Rossami,

That analysis seems...overly harsh.

1. " The officer takes over custody of the subject. Rather than order the subject to show his hands, the officer asks the subject if he is handcuffed."

This isn't an irrational question. If the answer is "Yes", the next question is, "please show me your hands". If the answer is "No", the next response to to get a pair of handcuffs, and then ask the subject to present their hands. It's perfectly rational in the context.

2. "The officer then asks the subject to confess to an unrelated crime. "Are you high?""

Being "high" is not a crime. Given the subject's lack of response to the first question, the officer correctly went into the potential reasons for the lack of response. Does the subject know English? Is the subject under the influence of drugs or alcohol? Knowing this determines the next stages that needs to be taken into account. An interpreter or other language may be needed. Medical attention may be required. Asking these questions of the subject is perfectly rational. And remember, being "high" is not a crime.

3. "The officer escalates from there"

No, the subject escalated. Severely. The officer attempted to de-escalate with non-verbally abusive retorts. The officer is only human here. You could as easily argue that not responding at all is "abusive". The judge likely overstepped here. One might ask the judge how he would respond in his courtroom given the same type of language, and whether his responses would be considered "escalation" or "harsh" in any way.

[Davy C]

Being high is evidence and/or an element of some crimes.

Asking whether the person was high was the one escalation the officer did do. The subject was simply silent before that. I interpret that question as a provocation and not as being for the sole purpose of getting medical attention.

[Armchair Lawyer]

Note: The "sole" purpose.... So, you'll admit, the cop DID have a purpose for assessing the medical condition of the subject.

[Rossami]

re: #1 - So even in your analysis, step two is "show me your hands" regardless of the subject's answer. Then do that. Stop wasting time asking stupid questions. That's the feedback a TRO (police training officer) would give. Being arrested is an adversarial situation. Outside of bad British sitcoms, no crook says "it's a fair cop". Stupid questions are just going to piss people off even more than they already are.

re: #2 - You are correct that "being high" is not technically a crime. But admitting to being high becomes probable cause for lots more digging and intrusive searches. If you are attempting to assess someone's mental competence or impairment, any ER nurse (or anyone trained in anything more than basic first aid) can tell you much better questions on which to base that judgement.

re: "Do you know English" - again, Logic 101. If you don't know enough English to respond to the first question, the odds of knowing enough English to understand (much less respond to) that question are pretty small. Based on what the officer knew at that point, the odds were higher that the subject was deaf than unable to speak English. It's a stupid question and another one that's not used by other professions when they need to diagnose communication problems.

In context, the most plausible explanation is that the officer intended those questions as verbal bullying for choosing to not speak to police.

re #3 - Yes, the subject responded strongly. The officer responded by further taunting. If that transcript above is accurate, I see nothing that could plausibly be called an attempt at de-escalation. Yes, the subject's insults were intemperate and inappropriate but they were not illegal. Police officers are supposed to be held to a higher standard than merely 'not illegal'.

And if a judge responded to profanity in the courtroom with intentionally mocking language (handsome) or tone (sing-song), I would expect the judge to be up on ethical charges too.

[Armchair Lawyer]

1. Incorrect. There is an intermediary step of getting handcuffs ready.

2. What more "intrusive searches"? The person is already under custody.... If an ER nurse was right there, that would be nice...but there wasn't.

Re: "Do you know English" That's a fairly common phrase. Like "Habla espanol". Many people don't fully know English, yet know enough to answer yes or no to that question. In the context, the concept that the officer was trying to assess the subject's comprehension of the questions is the most logical conclusion.

3. "Taunting"? Hardly. If a subject responded to a judge in his or her courtroom like that, the judge would try to gag the suspect or remove them from the courtroom, while VERY strongly responding. The cop's mild response was minimal here.

[perlhaqr]

It would have likely been instructing to observers had the officer replied to the finding of fault by saying everything Complainant had said to him, to the judge. Though I can't imagine it would have gone well for the officer.

[Absaroka]

This is unrelated to the provocation issue in the case at hand, but this part of the policy seems overly restrictive:

"...all members shall [r]efrain from harsh, violent, coarse, profane, sarcastic, or insolent language. Members shall not use terms or resort to name-calling, which might be interpreted as derogatory, disrespectful, or offensive to the dignity of any person."

I went on a ride-along once and asked the officer what the differences were between working the upscale and low rent parts of town. Her answer went something like "Not much really, a wife beater is a wife beater whether he is a downtown lawyer or bricklayer. The only thing different is the language - in the upscale living room you say 'Please sit down on the couch, sir', and in the low rent district you say 'Set the fuck down, now'."

She explained that in both cases you used the language you did because that was what was most likely to get compliance; if you reversed the language the lawyer got mad about being talked to like that, and the bricklayer didn't understand it was a serious request. She was bilingual, and viewed it as no different than speaking Spanish to Spanish speakers and English to English speakers. Having worked both at universities and as a laborer, what she said makes sense to me.

[WuzYoungOnceToo]

but this part of the policy seems overly restrictive

I think it depends on the enforcement. Punishing LEOs for brief outbursts, or using coarse language that is intentionally tailored to the situation, as in the ride-along story you relate, would be both overly-restrictive and counter-productive. But expecting them to not engage in childishly petty nonsense of the sort that occurred in the events described in the OP, and taking corrective action when they do is perfectly reasonable and appropriate. That may well be the intention of the restriction, with it just being worded poorly.

[Absaroka]

No disagreement there.

[dwb68]

This is what passes for provocative dialogue these days?

[TwelveInchPianist]

Cops get to handcuff arrestees and take them to jail, and arrestees get to talk shit to cops.

But not the other way around.

Sounds fair.

[Davy C]

Seems fair to me. I think some decorum in exchange for arrest powers is a pretty good trade for the cops.

[Rev. Arthur L. Kirkland]

I was wondering why the proprietor chose to publish this post.

Then I reached the final paragraph . . .

[Drewski]

It must be tough on officers, having to maintain the same standards of courtesy as a minimum-wage retail worker. It's funny how cops want to be paid and treated like professionals, unionize like tradesmen, and behave like children.

[Kazinski]

The hearing officer should be fired.

He should have read the complaint and said it's too trivial to waste anyone's time on.

Sure cops should be civil, but in this context where the subject is throwing out racial epithets, after being arrested he isn't owed any courtesy.

[WuzYoungOnceToo]

As already explained multiple times, which you somehow managed to miss, is that what the arrestee is/isn't "owed" is not the issue. It's what level of behavior should be expected from public servants who are armed by the state and vested with extraordinary authorities over their fellow citizens.

[Roman Moroni]

I think it might be a decent lesson. I think the officer should be given a warning that doesn't go on his record. He showed enough self control in the situation to easily comply with the department's policy in the future.