Looking Through the Gaps: A Critical Approach to the LAPD's Rampart Scandal

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Looking Through the Gaps: A Critical Approach to the LAPD's Rampart Scandal Author(s): Paul J. Kaplan Source: Social Justice, Vol. 36, No. 1 (115), Policing Protest and Youth (2009), pp. 61-81 Published by: Social Justice/Global Options Stable URL: http://www.jstor.org/stable/29768526 . Accessed: 26/07/2013 07:40 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. . Social Justice/Global Options is collaborating with JSTOR to digitize, preserve and extend access to Social  Justice. http://www.jstor.org

Transcript of Looking Through the Gaps: A Critical Approach to the LAPD's Rampart Scandal

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Looking Through the Gaps: A Critical Approach to the LAPD's Rampart ScandalAuthor(s): Paul J. KaplanSource: Social Justice, Vol. 36, No. 1 (115), Policing Protest and Youth (2009), pp. 61-81

Published by: Social Justice/Global OptionsStable URL: http://www.jstor.org/stable/29768526 .

Accessed: 26/07/2013 07:40

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of 

content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms

of scholarship. For more information about JSTOR, please contact [email protected].

.

Social Justice/Global Options is collaborating with JSTOR to digitize, preserve and extend access to Social

 Justice.

http://www.jstor.org

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Looking Through theGaps:A Critical Approach to the

LAPD's Rampart Scandal

Paul J. Kaplan*

Introduction

The Los Angeles Police Department's (LAPD) Rampart Scandal of the late

1990s involved allegations ofoutrageousmisconduct, led to theoverturningof over 100 criminal convictions and resulted inthefiring r resignations of

nearly 20 officers, several ofwhom were convicted of criminal charges (Burcham,

2001). The cost to thecityofLos Angeles has been estimated tobe as high as one

billion dollars (Pomerantz, 2000),1 and theLAPD iscurrentlyunder federal over?

sightfrom theDepartment of Justice (pbs.org, 2007). The Rampart Scandal raises

serious questions about theLos Angeles justice system atmany levels. In light f

recent allegations of brutality by theLAPD,2 it is importanttounderstand whathappened inRampart in the 1990s. Unfortunately,no entityhas systematically in?

vestigated thealleged misconduct at theheart of theRampart Scandal (although the

Los Angeles DistrictAttorney's office has investigated a few allegations). Instead,

justice system investigators have analyzed theLAPD organization in an attemptto discover organizational problems thatmay have contributed to a context for

misconduct. These efforts ddress only a few incidents and leave open questionsabout the type,frequency, and causes ofmisconduct in theLAPD.

In this vacuum of knowledge, the LAPD developed a version of the story

suggesting thata very small group of Black and Hispanic officerswere respon?

sible for all of themisconduct (LAPD, 2000). This familiar "bad apples" framingcontradicted whistleblower Rafael Perez's3 version of the story,which described

widespread misconduct. Perez claimed thata large number of officerswere "in

the loop," meaning theyregularlyplanted evidence, manufactured probable cause,

beat citizens, and generally abused citizens' due-process rights.

?Paul J. Kaplan is Assistant Professor in the Program inCriminal Justice in the School of Public

Affairs at San Diego State University (e-mail: [email protected]). His research interests

include the sociology of law, capital punishment, police culture, wrongful conviction, and cultural

criminology. Early versions of parts of this essay were presented at theAnnual Meeting of theLaw

and Society Association inPittsburgh, PA (2003), and theAnnual Meeting of theAmerican Societyof

Criminologyin

Chicago,IL

(2003).The author is

gratefultoValerie Jenness, Richard A. Leo,

William C. Thompson, and the anonymous Social Justice reviewers for theirvarious inspirations and

assistance on this article.

Social Justice Vol. 36, No. 1 (2009) 61

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62 Paul J.Kaplan

Which version of thestoryis correct? It is impossible to saybecause neitherver?

sion can be confirmedwith publicly available information.Nevertheless, evidence

suggests that there re elements of truth nboth versions of thestory. t seems clear

thatsomething likea "loop" existswithin theLAPD,4 and it sobvious thatRafael

Perez, and at least a few of his officerfriends,were "bad apples."What are we tomake of thisexplanatory stalemate? Considering theLAPD's

historyof scandals, and thefailure of previous reforms topreventmisconduct, it

mightmake sense to try odevelop some ideas thatgo beyond the"bad apples" or

the "rotten barrel."My goal is to suggest critical lines of inquiry thathave been

ignored by official investigators and media commentators so far. Specifically, Ihope todraw attentionaway from individualist or organizational approaches to the

LAPD's troubles, nd towardan approach attending tothejustice system institution.

Specifically, I propose two alternative causal factors: (1) the ideological "war on

crime," and (2) theprivileged position of police narratives in criminal trials.These

factors operate both within and outside thepolice organization, and illuminate the

influenceof racist nd essentialist ideological discourse on thepatternsand practicesof justice system organizations and the individuals who constitute them.Police

misconduct influencedby thesefactors cannot be addressed through rganizationalreforms unless those reforms reflect larger-scale changes indiscourses about the

justice system institution.

One way todiscover factors such as "thewar on crime" and "privileged policenarratives" is to lookfor their bsence in fficial analyses and media representationsof the scandal. This method seems counter-intuitive?"looking foran absence"?

but ifwe theoretically contextualize the roles and apparatuses thatproduce the

mainstream discourse onRampart,we can see how ideology operates toforegroundindividual (and toa lesser extent,organizational) level analyses at theexpense of

institutional-level analyses. This foregrounding is evident in the official andme?

dia representations that lay the blame forRampart on the bad character ofRafael

Perez and a few other Black andHispanic

officers.Thisframing

occurs, Iargue,because media apparatuses operate from a similar ideological location vis-?-vis

thejustice systemas official apparatuses such as thepolice department and policecommission. That is,due to theirsimilar ideological position in society's power

relations, both official and media accounts ofRampart focus on individual (and to

a lesser extent,organizational) factors and thuspreclude inquiry intofactorsat the

institutional level.This prevents a deep critique of racistand essentialist ideologiesthatpermeate thejustice system.Ultimately, ithinders deep change in theLAPD

organization, resulting perhaps inmore misconduct and scandal. Indeed, theevents

inMacArthur Park onMay Day of 2007 indicate itmay already have.5

Methods and Sources

This research isan interpretivenalysis ofofficialandmedia documents, includ?

ing:LAPD Board of Inquiryand Police Commission Reports on Rampart, LAPD

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A Critical Approach to theLAPD sRampart Scandal 63

Board ofRightsHearings, Law ProfessorErwinChemerinsky's independent nalysisof theLAPD Board of InquiryReport, Rafael Perez statement transcripts, eoplev. Perez trial transcripts, transcriptsof Secret Grand Juryhearings investigating

allegations ofmisconduct, and variousRampart-related legalpleadings (e.g., policeunion lawsuits against theLAPD).

As for themedia, I focus specifically on Rampart articles inRolling Stone

(Sullivan, 2001) and The New Yorker (Boyer, 2001). I chose these, rather than

broadcast or daily newspaper accounts, because each magazine produced a total?

izing storyabout the scandal, purporting to be authoritative on the topic.This is

importantbecause although theLos Angeles Times produced dozens of articles

covering theRampart Scandal, thepaper did not produce a narrative of the scan?

dal. Put anotherway, theLos Angeles Times coverage of the scandal isdiscursive,while theNew Yorker andRolling Stone versions of the scandal are narrative. The

former coverage is a scattershot pastiche of informationrelated to the scandal,while the latter tories each have a narrative structure.This article is thus a form

of narrative analysis, relyingon an understanding ofwhat Bruner (1991: 1) calls

the"narrative construction of reality,"meaning the human process of interpreting

experience throughthe structural onventions of narrative. Invoking narratologistssuch as Roland Barthes and

HaydenWhite, Ewick and

Silbey(1995: 199)

point

to

narrative's constitutivefunction inhuman reality s evidence of theepistemological

advantages of narrative analysis:

It isargued that arratives have thecapacity toreveal truthsbout the social

world thatare flattenedor silenced by an insistence on more traditional

methods of social science and legal scholarship.According to thisview,social identitiesand social action, indeed all aspects of the social world,are storied.Consequently, narrative isnot just a form that is imposed uponsocial life...[but is] constitutive of thatwhich it represents.To attemptto examine lives, experiences, consciousnesses, or action outside of the

narratives thatconstitute them, it is argued, is todistort throughabstrac?tion and decontextualization, depriving events and persons ofmeaning.

If therealityof theRampart Scandal isbeing constructed throughnarratives, it

ismy goal toanalyze thosenarratives.Thus, this isnot an investigation into auses

of police misconduct or theRampart Scandal. Rather, it is an interpretive, ritical

analysis of themajor accounts of the scandal.

A Sketch of theRampart Scandal

Theorigin

of theRampart

Scandal canprobably

be traced to the rrestofLAPD

OfficerDavid Mack in ecember 1997 forbank robbery.Mack was a veteranLAPD

officerwho convinced a girlfriendwho worked at a bank inLos Angeles tohelphim rob over $700,000 inNovember 1996 (Boyer, 2001). When he was arrested

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64 Paul J.Kaplan

the next year, he refused to cooperate with the LAPD (Ibid.). As investigatorslooked into thecase, they learned thatMack had gone toLas Vegas foraweekend

two days after the robberywith two friends on thepolice force:Rafael Perez and

Sammy Martin (Ibid.). When investigators interviewedPerez, he claimed Mack

toldhimnothing about thebank robbery (Perez, 1999), but thesuspicions of LAPD

investigatorswere raised. Investigatorsfocused onPerez when inMarch 1998 three

kilograms of cocaine were checked out of theLAPD's evidence storage office and

never returned(Boyer, 2001). InAugust 1998,Perez was arrested and chargedwith

several felonies, including possession of cocaine for sale, grand theft, nd forgery

(Cannon, 2000). Perez was later tried in a criminal case that resulted ina hungjury.When theprosecution came upwithmore evidence for a second trial,Perez

agreed to a plea agreement.The ensuing discourse between Perez and Assistant District AttorneyRichard

Rosenthal (as well as several LAPD detectives) spawned what has become known

as theRampart Scandal. According toRosenthal, he anticipated thatPerez was

going todiscuss various sensational unsolved crimes (including themurder of rapstarBiggie Smalls) thatofficials believed were associated with David Mack and

otherfriends ofPerez (Boyer, 2001). But Perez surprised the uthoritiesby denying

any knowledge of his friends'misconduct, instead describing widespread LAPD

corruption and due process abuses against civilians. According toPerez, many of?ficers in special units such as Rampart CRASH ("Community Resources AgainstStreetHoodlums") were corrupt;at the least,many officersregularlymanufactured

probable cause, and some regularlybeat citizens, planted evidence, and perjuredthemselves. In the rambling discussions spanning from September 1999 to July

2000, Perez repeatedly referred oan understanding among officerscalled "being in

the loop,"which describes awillingness toparticipate in,or condone, misconduct.

For Perez, being in the loopwas essential to success as a CRASH officer.Officers

in the loopwere "solid," while thosewho were not could not be trusted ndwere

described as "weak links" (Perez, 1999).Inall, Perez named 70 LAPD officers thathe claimed were in the loop.The most

common type fmisconduct was apparently theregularfabricationofprobable cause

to arrest suspects. The unspoken sentimentof officersappeared tobe thatmost of

thepeople theyencountered were actually guilty of something, even iftheyhap?

pened tobe innocent ina particular encounter?a "we may be framing,but we're

framing theguilty" attitude. Beyond fabricating probable cause, Perez's primaryaccusation was of planting evidence toobtain arrestsor tojustifyofficer-involved

shootings. According toPerez, thispractice was so deeply embedded inCRASH

culture thatnew officerswere trained tohidemisconduct from superiors (Ibid.).In addition to his

storyabout the

loop generally,Perez delineated several

incidents inwhich he directly participated. Two of these became sensational: his

theft f cocaine from theLAPD propertyoffice and his participation inan illegal

shootingof an unarmed alleged gangmember, JavierOvando. The missing cocaine

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A Critical Approach to theLAPD 'sRampart Scandal 65

ultimately resulted in Perez's arrest, and theLAPD eventually connected him

to approximately eight pounds ofmissing cocaine from previous thefts (Boyer,

2001). The Ovando shooting, in which Perez and his partnerNino Durden shot

and seriouslywounded theunarmed man, did not result ina criminal conviction

forPerez, but thecity ofLos Angeles settled a civil suitwith Ovando for several

million dollars (Ibid.).From thebeginning, then, theRampart Scandal was a storyabout outrageous

criminal acts by at least threeofficers,as well as a culture wherein corruptionand

abuse were commonplace. How should we interpret his story?Rather than takingRafael Perez at hisword, ordeciding that fficial ormedia accounts represent"the

truth," e might benefitby theoretically contextualizing the ideological position of

theproducers of theseaccounts and identifying acunae inthem.By "looking throughthegaps" in these accounts, we can raise thepossibility of alternative sources of

misconduct thatgo deeper than thebad character of individuals or organizations.

Official Accounts

There are twomajor official accounts of theRampart Scandal, the LAPD's

(2000) Board of Inquiry intotheRampart Area Corruption Incident, and the Inde?

pendent Review Panel of theLos Angeles Police Commission's (2000) Report oftheRampart IndependentReview Panel.6 Each isa lengthy, etailed report ompiled

by an impressive team of dedicated professionals. In essence, the LAPD reportframes thecause of the scandal as the bad character of a small group ofBlack and

Hispanic officers who should never have been hired by thedepartment,while the

Police Commission report locates the cause of the scandal in a variety of LAPD

organizational problems.

The LAPD Board of Inquiry Report

The word "Incident" in the titleof theLAPD's officialresponse

to theRampartScandal reveals theBoard of Inquiry's contention that thealleged misconduct was

isolated and aberrational. In thediscourse, theonly voice todescribe theRampartScandal as an "incident" is theLAPD leadership.This perspective makes itmore

logical tonarrow thefocus ofblame toafew individuals,which isprecisely how the

LAPD framed the scandal. In itsconclusion, theBoard of Inquire declares: "After

careful consideration of the informationdeveloped during theBoard of Inquiry'swork, it is theBoard's view that theRampart corruption occurred because a few

individuals decided to engage inblatant misconduct and, in some cases, criminal

behavior" (LAPD, 2000: 331).

This perspective pervades thereport nd ismade clear from thebeginningwithan extensive focus on theorganization's failure to screen out the"bad apples." For

example, the reportdeclares "of the 14 officers [Perez and 13 others theLAPD

decided to scrutinize], fourhad questionable issues intheirpre-employment back

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A Critical Approach to theLAPD 'sRampart Scandal 67

Taking one of these categories as an example, we can see how theLAPD's

technique of investigatingofficer-involved shootings (OIS) creates barriers tode?

tecting nd investigatingmisconduct. According to thereport,theLAPD's method

isflawed ina number ofways, including thepractice of conducting "run-throughs"with field supervisors before theappearance of investigatorsfrom InternalAffairs.

Essentially, the APD's practice is forRobbery Homicide Division (RHD) officers

toarrive at the scene of a shooting before any other authorityand conduct a pre?

liminary investigation.According to the report,these investigations are often lax

and fail to treattheseshootings

aspotential

criminalmatters. This is exacerbated

by one of thegreat peculiarities inCalifornia's criminal justice system: the effects

ofLybarger v.City ofLos Angeles (1985). As theRIRP describes it:

Under theCalifornia Supreme Court's decision inLybarger v.City ofLos

Angeles, police officersmay be threatenedwith dismissal for refusing to

provide statements about the conduct of theirofficial duties to supervi?sors or internal investigators.But a statementgiven after such a warn?

ing?colloquially known as a Lybarger admonition?is inadmissible in

any criminal prosecution of theofficer,as is evidence that investigatorsobtain

throughuse of the statement

(p. 112).

Obviously, then, nythingan officer says during the investigationof a shootingcan result in nothingmore than his dismissal. Although administrative action isa serious deterrent, it isnot as serious as theprospect of criminal prosecution for

murder. Of course, itmay appear thatLybarger admonitions would induce officers

to "spill thebeans" immediately so as to inoculate themselves against criminal ac?

tions.According to theRIRP, however, the actual result is usually an ineffective

interviewof theofficerby an attorneyfrom thepolice union, consisting of leading

questions such as "You feared foryour life,right?" (p. 117).Another problematic mechanism in the LAPD's OIS policy is that the initial

discussions between RHD investigators and the involved officers are not docu?mented in any way; no recordings or even notes are made of these "pre-interview

walk-throughs." The potential for error or blatantmisconduct is obvious enough,as theRIRP acknowledges in its lengthy riticismof thisarea ofLAPD policy (see

p. 118). However, according toRafael Perez, even stringentoversight afterOIS

incidentsmay not have prevented some of themisconduct inRampart (althoughsuch improvementsmay have made iteasier todetect it). In thefollowing discus?

sion, Perez describes what transpired after theOvando shooting:

Q: Okay. So, OfficerDurden takes the rag, drops thegun next to thebody.... At

thatpoint,you call foryourCR. A.S.H. officers,you call for therescue ambulance.What happens then?

A: Uh, myself, Durden, Rios, Montoya, and Ortiz, we?again, we sent somebodyout tobe a?a diversionary person out in thefront.Because there is some people

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68 Paul J.Kaplan

that?that either worked C.R.A.S.H. before, or have some insight thatonce we

use certain codes, and you hear,you know, requesting anR.A. at 1209, theyknow

something's gonna be up. So, we don't want other officers coming in.

Q: Okay.

A: And we setup?or we send an officer,get at thefrontdoor, ifsomebody wants

to come in?I don't care if it's theCaptain, you tell him thatwe're a building

search, there could be possible suspects still around,whatever. The reasonwe do

that is, so thatwe can sit thereand discuss what happened, how ithappened, what

occurred?everythingthatneeds tobe

explained.Q: When youmet withOrtiz,Montoya, andRios, didOrtiz andMontoya andRios

know that urden had planted thegun on the suspect?

A: No.

Q: So, you and?and Durden had told them he had this?this is thegun. He had

thegun.

A: Yes.

Q: Okay. And did you and Durden have any conversations prior toOrtiz,Montoya,and Rios showing up?

A: Yes, we did.

Q: And what were your conversations?

A: Exactly what theywere, I don't remember. I do know one thing thatwe never

discussed is how it all went down. You know what Imean, how, uh, you know,

you sortof don't even want to talk about itamongst yourselves. You know what

Imean. It's?it happened. And, you know, you look at each other like,okay.You

just need to fix this.You know, it's?it's one of those thingswhere you don't go,man, we just shot a guywho was unarmed.You don't discuss that. ou know, you

say,okay,well, let's get this straightened-out.Let's fix this.

Q: Okay. And then, later in separate interview,youwould have said what he said?

A: And?and, right.And, you know, how theysend you back to the station.You're

supposed to sit in separate rooms.And when you go back, theysityou inthesame

room and you discuss itmore, talkabout itmore, get your story straightmore, or

whatever. That's what happens (Perez, 1999,Vol. 1:70-72).

By this account, obviously, even a careful interventionby InternalAffairs

investigators immediately after the incidentprobably would not have uncovered

thegun planting. However, since Perez contended thathe and Durden were not

separated for interviewsproperly,adherence to t leastone official policymay have

lead todetection. The implication here is twofold: first, ome officers successfullycircumvented OIS policies, and second, supervisors did not follow OIS policies.In any event, it ppears thattheLAPD OIS policies are significantly flawed.

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A Critical Approach to theLAPD's Rampart Scandal 69

All inall, theRIRP refutes theLAPD's framing of the scandal's cause as the

bad character of a few individualswho slipped throughthe screening process, and

instead frames the scandal as the resultof a long listof organizational problems.The policy implication is that theLAPD could preventmisconduct by institutinga number of bureaucratic changes. In this sense, theRIRP is similar to previous

analyses of the APD (such as theChristopherCommission) that istedorganizationalsources of misconduct and proposed LAPD policy changes intended to eliminate

orminimize these problems. In thisframe, then, the source of theproblem is the

organization (not the individual).Both theLAPD Board of InquiryReport and theRIRP succeed in identifying

importantcausal factors related toRampart. It is undeniable that individual and

organizational problems are related tomisconduct, butneither report ccounts well

forwhy these typesof problems have come intoexistence. This isbecause these

accounts begin from theposition that thepolice and thejustice system"do" justice,but thatsometimes "bad" people or bureaucratic structurescontradict thesystem's

"just" project. Both of theseframes assume thatthecriminal justice system institu?

tion is off limits for criticism.By operating under thisassumption, the individual

and organizational approaches deflectdeeper, potentially destabilizing critiques of

racist and essentialist ideologies that influence and constitute the justice system.To avoid such deflection, it is necessary to critically explicate the relationship of

theproducers of these accounts to thejustice system institution.

Institutional Theory

The LAPD and the A Police Commission are both components of thecriminal

justice system institution,which describes a collection of organizations (such as

police departments and courts) and individual roles (such as law enforcers and

judges) involved in social processes of "doing" justice. According to Jepperson

(1991:143-163), institutions re "socially constructed, routine-reproduced (ceterisparibus) programs or role systems.They operate as relative fixtures f constrainingenvironments and are accompanied by taken-for-granted accounts." Furthermore,

according toCrank (2003: 137) (discussing Friedland andAlford, 1991):

Institutionsare carried by formal organizations, regimes which conveya central authority system, and by culture,which gives meaning to the

customary and theconventional indaily life. Institutionsare also carried

by individuals, and provide accounts of thesocial and legal constructionsof individual identity.

Institutions thus lie between the analytical level of theorganization and thelevel of the society, and operate as locations ofmeaning production both for and

by the roles and organizations thatconstitute them. In otherwords, institutionalconstituents influenceone another in thequotidian production ofmeaning about

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70 Paul J.Kaplan

roles, norms, objectives, imperatives, conceptions of right and wrong, what is

taken forgranted, etc.

Importantly,the structure nd operation of organizations within an institution

reflectthevalues thatpermeate the institutional nvironment (Crank, 2003). Thus,

organizations within the riminal justice system (such as police departments) reflect

values thatdominate discourses relating to the justice system institution such as

"thewar on crime"). Furthermore,according toCrank (2003:188), "a logic ofgoodfaithpervades organizational practices, impeding critical evaluation and supervi?sion. Organizational members believe in theessential Tightnessofwhat theydo."

Under this logic, the influenceof dominant justice systemdiscourses is virtuallyinvisible toorganizations and their constituentmembers.

Considering the APD's andLAPolice Commission's positionwithin thejustice

system institution, heirframingof theRampart Scandal as either the resultof "bad

apples" or a "bad organization" isnot surprising.Both organizations are participantsin the social construction of thejustice system,and are thusheavily influencedbydominant discourses therein.Maintaining a logic of good faith,both are relativelyunreflexive about their role inperpetuating racist and essentialist ideologies that

underlie these dominant discourses. In light f this situation,we can look toother

major accounts ofRampart?namely, media representations?in hopes of finding

analyses thatgo beyond the "bad apples" or "rotten barrel." However, as we shallsee through the following analysis, we find a similar lack of reflexivity in these

media representations.

Media Accounts ofRampart: The Story ofJavier Ovando's Wrongful Conviction

The twomedia representations are narratives byRandall Sullivan (2001) in

Rolling Stone and Peter Boyer (2001) inThe New Yorker.Each article frames the

scandal as theresult of the APD's infiltrationby criminals or even gangmembers,

ratherthandue to the APD's flawed organizational practices ordeeper ideological

factors, such as thewar on crimeorthe privileging ofpolice narratives.For example,Boyer (2001:66-67) delineates rather ague circumstantial evidence tosuggest that

David Mack (the bank robber)was an associate or perhapsmember of theBloods

gang, including the fact thatMack grew up in a toughCompton neighborhoodand allegations by jail workers thatMack began towear red clothing once hewas

incarcerated.More explicitly, Sullivan (2001: 81) closes his firstparagraphwith a

quote from an LAPD deputy chief: "This isn't about cops who became criminals,it's about criminals who became cops." Beyond noting the importance of this

general framingof the scandal evident inboth articles,we can briefly analyze one

prominentRampart story,theOvando case, to furtherexplicate how thesemedia

workers' framingforeclosed institutional level questions.According toRafael Perez, JavierOvando was an unarmed 18th-Streetgang

member who was shot by Perez and his partnerNino Durden during a confronta?

tion in 1996 (Perez, 1999). Perez claimed thatOvando had startledDurden and

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72 Paul J.Kaplan

Why do thesemedia representations so closely reflecttheLAPD version of the

Rampart Scandal? As cultural critic StuartHall (1980:117) has argued, themedia

is a "major cultural and ideological force, standing in a dominant position with

respect to theway inwhich social relations and political problems [are] defined

and theproduction and transformationof popular ideologies in the audience ad?

dressed."Moreover, Hall describes howmediaworkers operatewithin what he calls

a "professional code," which works to legitimizehegemonic ideologies through its

adherence to thevalue of objectivity.According toHall, the"professional code" is

relatively autonomous fromwhat he calls the "dominant code" (hegemonic ideo?

logical discourses) in that itreconfigures thedominant code through its technicalapparatuses. Yet thiscode isultimately one of the chief reproducers of dominant

stereotypes and definitions:

The professional code, however, operates within the "hegemony" of the

dominant code. Indeed, it serves to reproduce the dominant definitions

precisely by bracketing theirhegemonic quality and operating instead

with displaced professional codings which foreground such apparentlyneutral-technical questions as visual quality, news and presentationalvalues, televisual quality, "professionalism," and so on (Hall, 1980: 136).

The professional code ishegemonic in its reproductionof dominant ideology

precisely because itpurports tobe unbiased. Fundamental questions about ideol?

ogy, race, class, etc., are bracketed and thusforgotten.The foregrounding of "the

objectivity ideal" by the professional media obscures the position of themedia

within thedominant code, and thushegemonically perpetuates it. he operators of

thiscode are reporters, ditors,news producers, etc., agents thatsociologist Darnel

Hunt calls "newsworkers."

InOJ. Simpson, Facts and Fictions, Hunt (1999: 42) describes the cultural

performances of themedia as occasions throughwhich "much of themeaning

of contemporary life is (re)negotiated and (re)enforced?'authenticated.'" Huntargues thatthe selection of "media events" is connected tohegemonic ideologies(Ibid:. 42-43). Newsworkers select events interms f theirideological potentialities(e.g., the storyabout a famous black athlete's alleged murder of a white woman,or, in thecase at hand, a gang of Black andHispanic criminalswho infiltrated he

LAPD) and frame themwithin thedominant-hegemonic code. The ritualizationof

media events,which sanctifies them s preferred locations formeaning production,

inevitably "talks" in thedominant-hegemonic code; and, furthermore,this talk is

conducted "professionally" (purportedlywithout bias), which masks its onnectionto thedominant code.

Specifically, according toHunt11 (1999, and echoing Hall), the process of"newswork" (p. 90) is shaped by (among other factors) "the objectivity ideal" (p.91), which describes thestatusand power of journalists tocodify stories as "facts":

"objectivity as a newswork ideal had become a professional cornerstone that ould

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74 Paul J.Kaplan

and Fyfe (1993: 116) have argued, thewar on crime,which puts officers in the

position of soldiers, creates twoproblems: (1) as soldiers, officersmust identify n

enemy, and (2) itpositions officerson thefrontlines of an unwinnable war againstthepeople they supposedly serve:

When any soldiers go towar, theymust have enemies. When cops gotowar against crime, theirenemies are found in innercities and amongourminority populations. There, ina countryas foreign tomost officers

as Vietnam was toGIs, cops have trouble distinguishing thegood guys

from the bad.

Thus, as soldiers in thewar on crime, officers break the law to satisfy the im?

perative toproduce arrests. Indeed,much of themisconduct alleged in theRampartScandal seems to reflect the difficultposition thewar on crime puts officers in;

theyare supposed touphold the law,but theyare also supposed toproduce arrests.

Indeed, Perez and Durden were originally lauded for taking a "dangerous gang

banger,"Ovando, off the street.From theperspective of supportersof thewar on

crime, JavierOvando was theenemy, and soldiers Perez and Durden did the right

thing by shooting and arrestinghim. In light f thewar on crime,Ovando's wrong?

ful conviction can be read as resultingfrom two officers resolving the dissonanceinherentto thatwar. Perez and Durden solved the confusion by abandoning the

law and obeying thedemands of theirwar.14

Chambliss (1994) develops a similar line of reasoning. Conservative politi?cal movements thatbegan in the 1960s (and continue today), he argues, created

moral panics over crime as smokescreens frompolitically threatening issues (e.g.,theVietnam War, budget cuts, etc.). Such "moral panics"4 engendered a "crime

industry" (including the police), which perpetrated injustices against Black and

Hispanic youngmen. Chambliss vividly describes due process abuses committed

by theelite Rapid Deployment Unit inWashington, D.C. A consequence of such

aggressive tacticswas a prison explosion of overrepresentedminorities who wereincarcerated fordrug crimes,which was accompanied by a concomitant decrease in

public spending on education andwelfare. ForChambliss (Ibid.: 186-189), common

explanations for increased spending on criminal justice?"crime has increased,""crimes have become more serious," or "thepublic thinks rime is important"?arefalse. Police due process abuses, he argues, can be attributed tomoral panics and

the crime industry.Such abuses exist because thepolice need something to do;once thecrime industrywas inplace (after the 1960s), itssoldiers needed a crisis

tohandle. The war on crime became thatcrisis.

With thepoliticization of crime functioning todistract thepublic frompoliti?

cally dangerous issues (such as poverty),we can seeChambliss' project as a critical

theoryof thepolice. His societal-level analysis is analogous tocritical theories of

popular culture. Just s prime-time television interpellatesus towardconsumerism,the crime industryinvitesus tobelieve thatyoung nonwhitemen are synonymous

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A Critical Approach to theLAPD's Rampart Scandal 75

with crime (Ibid.). The false consciousness of the crime industry istracts us from

our own subordination, and inscribesyoung, nonwhitemen as criminals.

Importantly, this inscription is a component of what Etienne Balibar (1991:

21) calls "neo-racism," inwhich "difference" is identifiedthroughdiscourses of

culture rather thanbiology:

It is a racismwhose dominant theme is not biological heredity but the

insurmountabilityof cultural differences, a racism which, at firstsight,does not postulate the superiorityof certain groups or peoples inrelation

toothers but "only" theharmfulnessof abolishing frontiers,the incompat?ibilityof life-styles nd traditions....

The war on crime's ideological work of inscribingyoung nonwhite men as

criminals achieves neo-racism precisely because race isnever officiallymentioned

in thewar on crime?the officially relevant factor in thewar on crime isnot race,

but criminality.As Balibar points out, neo-racism, such as we see in thewar on

crime, is difficultto identifybecause of itspurported allegiance to contemporaryvalues such as "color-blindness." Yet, "culture can also function likea nature, and

itcan inparticular function as a way of locking individuals and groups a priori

intoa genealogy, intoa determination that is immutable and intangible inorigin"(Ibid.: 22).

In thinking bout thewar on crime and neo-racism, it s importantto remember

that theLAPD's CRASH unitswere manifestations of thewar on crime. CRASH

units can be construed as neo-racist agents, carrying out theprerogatives of the

war on crime. Framed thisway, themisconduct of CRASH officersmay not seem

so surprising.Unfortunately, due to theirrespective locations vis-?-vis the justice

system institution and theirrole in the construction of thewar on crime) official

commentators and newsworkers have not approached theRampart Scandal from

a theoreticalposition that includes concepts such as "neo-racism."

Privileged Police Narratives

Why did our adversarial systemof jury adjudication fail tocatch theerrors that

producemiscarriages of justice such as inthecase of JavierOvando? The judge and

jury in theOvando case believed Rafael Perez's lies. It seems intuitivethatjudgesand jurieswould take theword of police officersover defendants incriminal trials

(although, as a result ofRampart, this is probably changing). But why is this so?

White (1990: 4) contends that familiar cultural images and long-established legalnorms construct the subjectivity and speech of socially subordinated persons as

inherently nferior o the speech and personhood of dominant groups." Courts talklikeupper-class whitemen and subordinate thosewho do not.The police narrative

ina criminal trial is theepitome of white male speech, especially when utteredbynonwhite officers. Public Defender Toister's comments on Perez's talk?smooth,

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76 Paul J.Kaplan

sincere, articulate, withjust theright mount ofemotion? suggest that such a pre?sentationwas unexpected.Would she have had the same impression if erez were

white? Toister's comments give the impression that shewas disturbed byPerez's

appropriation of thewhite juridical subject's talk.His perjury seems tohave been,forToister, something likea desecration of the law.Perez's "white talk"was espe?

cially powerful injuxtaposition toOvando. The Honduran nativeOvando?brown,

tattooed,head shaved, and labeledwith thegangmoniker "Sniper"?was unable to

understandwell the language of theproceedings. In sharp contrast,Rafael Perez,a Hispanic man speaking the language of the juridical subject the court and jury

believed represented "the truth," parkled.Susan Bandes (1999: 1317) elaborates onWhite's insights in her discussion

of biased assumptions inappellate courts that ause judges to treatcases of policemisconduct as fragmented aberrations, rather thancomponents of "a grand narra?

tive of officialmisconduct." This "anecdotalizing" reproduces police misconduct

because itmisses the ideological and systemic nature of the problem. Bandes

identifiesbiases such as "the assumption that the statusquo is essentially coherent

and just,"which describes thepervasive view among judges that thecurrentgov?ernmental order isnot based on political and social choices, but rather is "neutral,

natural,and nonpolitical" (p. 1319). Further,"selective empathy" describes judges'

natural tendency tocomprehend and empathize with "those who share theirdefin?

ingattributes, such as class, gender, race, and prestige" (Ibid.), while "the fear of

destabilization and chaos" captures the concern over identifyingdeep, systemic

problems due to thepotentially costly and destabilizing effectsof contendingwith

them (p. 1320). Biases such as these aremanifestations of the subordinating as?

sumptionsWhite (1990) describes. Although onemight argue that andes' analysisfocuses on the level of theorganization (e.g., "the courts"), her critique is of the

justice system institution:

To the extent that low-level police officers,unhindered or condoned by

supervisors, the chief, the local political structure,and the courts, arebrutalizing minority residents of poor neighborhoods, itmay be that

these actions are a part of an implicit bargain with society?at least that

part of society thathas political and economic power. Such brutality is

often implicitly approved by majority residents of stratified,segregatedsocieties who value law and order,who want the boundaries between

black and white neighborhoods policed, and who will put up with the

infliction f a substantial amount of brutalityon others as longas it isnot

made impossible ignore.The treatment f police brutalityas aberrational

and anecdotal is an essential though largely invisible part of thebargain

(Bandes, 1999: 1340-1341).

This discussion, like thatofChambliss, isa variety of conflict theory. entralto a "conflict approach" topolice misconduct is the belief that inequality leads to

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A Critical Approach to theLAPD 'sRampart Scandal 11

misconduct. Such theories argue thatpowerful, majority groups perpetuate biases

and discourses that produce and reproduce police misconduct, which, in turn,

reproduces inequality.Although Bandes does not explicitlymake the connection,her perspective (along with Chambliss') conforms to theAlthusserian notion of

thepolice as a repressive stateapparatus, as described byResch (1992: 213-215):

Althusser contends, following Gramsci,...that we must see the political

power of a ruling class as consisting not only of theirmonopoly of the

repressive apparatus of the state (the army,police, and so on), but also of

theirideological hegemony over society....The roleof therepressive stateapparatus consists essentially insecuring by force (physical or otherwise)thepolitical conditions of the reproduction of production.

This political-economic view of thepolice (as components of thesuperstructure,

operating toprotect capitalistmodes of production) clearly underlies theanalysesdiscussed above, regardless of whether they say so explicitly.The upshot of such

analyses is that the"cause" of police misconduct is tobe found in the ideology of

political economy (in theUnited States, free-marketcapitalism). Interestingly, his

perspective is supported by Paul Chevigny's (1995: 249) comparative analysis of

police violence inseveral industrialized nations (including theU.S.), which foundthat there is a "correlation between the sociopolitical structureof theplaces and

the level of violence by thepolice; thedepartments reproduce and represent the

relations in the social order."

These different heoretical themes show that invisible," ideological factorsmayhave contributed tomisconduct such as thewrongful conviction of JavierOvando.

As such, theyare unrelated to the individual characterof Rafael Perez or others (ortheLAPD organization). These otherfactors are entirelyabsent from authoritative

representations (both official and media) of theOvando case and the scandal in

general. In theirnarrow focus on Perez's perjury,official and media representations

mask theprivileging of thewhite juridical subject incriminal trials (and thewar oncrime). The consequence of these representations is that institutional-level causal

factors are bracketed out of thediscussion about Rampart.

Conclusion

My intenthas been tobring a critical perspective to the scholarly discourse on

theRampart Scandal. Investigators and commentators have focusedmostly on the

character of a few individuals at theheart of the scandal, although theRIRP and

some law professors have discussed theLAPD's organizational problems as well.

There has beenvery

littleinvestigation

intospecific

acts ofmisconduct. The LAPD's

internal investigationplaced theblame squarely on the shoulders of a few Black

and Hispanic officers.Media representations have mirrored the LAPD's version

of the story, ocusing exclusively on "bad apples" such as Rafael Perez and David

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78 Paul J.Kaplan

Mack. The danger is thatthisversion of the storywill become "the truth," nd thus

shut down inquiry into the influenceof ideology on thejustice system institution.

By looking through the gaps of official and media representations of Rampart,I suggest two invisible ideological causal factors, namely thewar on crime and

theprivileging of thewhite juridical subject, asmanifested inpolice narratives in

criminal trials.My argument isnot that individual or organizational level factors

are totallymeaningless. Rather, Iwish to suggest that scholars interested in the

Rampart Scandal and other instances of police misconduct consider analyticallevels beyond the individual or theorganization inhopes of identifyingthe role of

ideology in such social problems.Is this likely? Probably not, considering thatpolicy suggestions based on an

institutionalapproach would require changing the justice system institution?a

level policymakers are not in position tocontendwith. Bluntly, institutional-level

theoriesofpolice misconduct suggest thatpolice misbehavior will probably persistas long as the conditions of our political economy (and its related apparatuses)remain essentially the same. Policy recommendations based on such approacheswould involve creating conditions of material equality and significantlyaltering

conceptions of thepolice. This isprobably not something thatmuch of the udience

forpolicing

theories(or

at least thosewith thepower

tochange

ormakepolicy)would welcome. (Here I echo Bandes' arguments about appellate judges' resistance

to challenging the status quo.) Even when scholars do identifyinstitutional-level

factors related to police misconduct, theyare not likely to offerpolicy proposalsthatgo beyond the organizational level. For example, Kane (2002: 891), in his

studyof the social ecology of police misconduct, finds thatstructuraldisadvantage

predicts police misconduct, butnone of his recommendations address thissocietylevel variable. Kane's suggestionsmostly call forbureaucratic changes intheNew

York Police Department.

Unfortunately, the conflict paradigm thatunderlies institutional approaches

to police misconduct is probably thoughtof as radical among official and mediacommentators (not tomention mainstream criminologists). But the truth s that ne

need not be radical to think thatmaterial equality, decriminalization of victimless

crime, and a differentvision ofpolicing would probably significantlyreduce policemisconduct (especially police violence and due process abuses). Yet this level of

thinkinghas been bracketed out of thediscourse because mainstream policymakersand newsworkers are not ina position towiden their theoretical frame. In thecase

ofRampart, theunfortunateresult isa body of textsthat ither ignoresorminimizes

the relationship of ideology topolice misconduct.

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A Critical Approach to theLAPD's Rampart Scandal 79

NOTES

1.Other cost estimates put the totalwell below $100 million; see, for example, Lait and Glover

(2003).2.On May Day 2007, LAPD officers injured at least one person while aggressively disrupting a

rally inMacArthur Park (see Marquez, 2007).3. This officer, caught stealing cocaine, made a deal with prosecutors and spawned the scandal.

4. See, for example, the cases of officers Gustavo Raya (LAPD Board of Rights, 1997), Dennis

O'Sullivan (Stearns, 2001), William Ferguson (Glover and Lait, 2001b), and Ruben Palomares (Gloverand Lait, 2001a).

5. See

Marquez(2007).

6. Two other documents are important to note: (1) Law Professor Irwin Chemerinsky's detailed

analysis of the LAPD's Board of Inquiry Report, and (2) theLos Angeles County Bar Association's

Recommendations for Improving theCalifornia Criminal Justice System in theWake of theRampartScandal. Each of these (in differentways) addresses organizational problems in theLos Angeles justice

system. Since theywere not publicly sponsored, neither is "official."

7. This defense might be interpretedas an attempt toavoid legal action by theDepartment of Justice

(DOJ) based on "bad patterns and practices" underMonell v.Department ofSocial Services of theCity

ofNew York (1978) (case law allowing legal action against government organizations thatmaintain

policies and practices thatviolate civilians' constitutional rights). This defense has failed, however, as

evinced by the currentConsent Decree between the LAPD and theDOJ (see pbs.org, 2007).8. This individualist, "bad apples" approach is familiar from past official accounts of police scan?

dals, such as those involving "rotten apple" cops in theNew York Police Department (see theKnappCommission, 1972: 6-13, for a discussion of theNYPD leadership's insistence on the "bad apples"framework after Frank Serpico's revelations about systemic corruption), and scandals involving state

abuses of power subsequent toRampart, such as the initial official explanations of theAbu Ghraib

tortureand prisoner abuse scandal (seeWhitney, 2004: viii, for a discussion). What stands out about

Rampart is the added dimension of racism.

9. Gaines was a Black off-duty LAPD officer shot and killed by a white undercover LAPD officer

during a road rage incident (see Sullivan's Rolling Stone article for details).10.This passage closely reflects theNew Yorker representation of theOvando story.11.Hunt's analysis relies heavily on Dayan and Katz (1992).12.Thanks to an anonymous SocialJustice reviewer forpointing this out.

13. See Huspek (2004) for an interesting analysis of one component of themedia that sometimes

does rely on nonofficial, nonwhite sources?the Black press.14.The point here is not that thewar on crime required Perez and Durden to deal drugs, but that

thiswar created the legal space for the lack of oversight over CRASH units and fostered subcultures

in the LAPD inwhich alleged gang members were thought to be subhuman and exploitable.

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