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 .
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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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