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Police Power Magnifies Harm of Lying : Law: Police do commit perjury, and neither their superiors nor the courts seem to care much. But lying by keepers of the law perverts justice.

October 16, 1989|HUGH R. MANES | Hugh R. Manes is a Los Angeles attorney and a member of the board of directors of the Police Misconduct Lawyers Referral Service. and

A Los Angeles Police Department Board of Rights found an officer guilty this summer of making false statements in an affidavit used to obtain a search warrant for a raid on two South Central apartments that the searching officers later rendered uninhabitable. The penalty imposed was a two-day suspension, although such falsification constitutes perjury, a felony.

The Los Angeles Police Department defended the light penalty by contending that the warrant would have been issued anyway. That is speculative and irrelevant. The point is, the officer thought it necessary and acceptable to lie to establish the probable cause necessary to gain access to the suspect's home.

The officer thereby suspended the victim's constitutional rights, and worse, demonstrated that he would lie under oath.

The message that the police board's ruling sends through the ranks is that police lying is a trivial offense that may be utilized with little or no risk to career or pocketbook--regardless of its effect on the lives and property of its victims.

That such lying is tolerated in Los Angeles is evidenced by the decision of Chief Daryl Gates in November, 1985, to suspend rather than dismiss officer Daniel Perez for lying to investigating officers about the wrongful killing of a Cuban immigrant by Perez's partner, Rodney Kelley, in order to protect the latter from discipline.

Police perjury and the lesser offense of filing false police reports occur most commonly to justify unlawful arrests or searches, or to cover up misconduct.

A standard police fabrication, blinked at by prosecutors and judges, is that contraband was in plain view, or that the suspect acted suspiciously, thereby justifying police intrusion without a warrant. In the case of police reports, "creative writing" is used to camouflage use of excessive force, securing prosecution of the victim and exoneration of the officer.

The well-publicized case of police-brutality activist Don Jackson illustrates that this is not just a problem of the LAPD. Long Beach officer Mark Dickey's public admission before a state Senate committee hearing that he falsified the arrest report was confirmed by a videotape of the entire incident. The tape established that, contrary to what he said in his report, Dickey had no legal cause to stop Jackson's vehicle; that Jackson did not resist or interfere with Dickey, as Dickey's report alleged; and that he pushed Jackson's head through a plate glass window without necessity or provocation.

Even so, attorneys for the city of Long Beach, with full knowledge of the officer's admission, persisted in prosecuting the case right up to the day of trial, when, at their request, the charges against Jackson were abruptly dismissed.

Had there been no videotape of the affair, Dickey's falsification might have succeeded. Videotapes have shown police to be lying, or at least obfuscating, in other cases as well.

Police are widely respected and their testimony is trusted, especially by jurors. As noted by a California appellate court in a 1983 police misconduct trial: "The credibility and honesty of a police officer is the essence of his function; his duties include frequent testifying in court proceedings." Police perjury abuses and undermines the public trust. Yet, it is clear from my contacts with attorneys and police officials around the country that the problem is pervasive and of long standing.

Police perjury is rarely prosecuted, and is tolerated if not condoned even by the judiciary.

At the beginning of August, a state appellate court upheld the reinstatement of a Los Angeles officer discharged for lying during an investigation of sexual misconduct. The court stated that dismissal was a "grossly excessive" penalty for making a false statement. Indeed, the U.S. Supreme Court held in a 1983 case that police perjury during a criminal trial is immune from a civil rights suit for damages.

Police perjury may be motivated by zeal--the belief that the victim is guilty--or by self-interest, to avoid discipline or prosecution for misconduct. Neither reason excuses perjury. It corrupts and erodes the justice system.

Moreover, police officers already possess extraordinary powers: to arrest, detain and imprison; to invade and search one's home and person; to use force, including deadly force. The constitutional limitation on these powers is the rule of reason. Police perjury is antithetic to reason, and arrogates to the officer unconstitutional, even imperial dominion over life, liberty and property.

The need for reform is urgent.

Disciplinary powers should be transferred from the old-boy system of police boards to an independent, elected civilian police review board. In Los Angeles, this would require an amendment of the Municipal Charter.

An independent counsel to prosecute police misconduct should be created, either by appointment of the state attorney general or by legislation. Police perjury should call for dismissal from the job.

In addition, laws must be changed to allow recovery of damages from officers and their employers for false reports and perjurious testimony that contribute to detention, imprisonment or prosecution.

These changes are necessary to preserve the integrity of the judicial process and confidence in law enforcement.

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