A recent appellate court decision in California has thrown harsh light on bomb dog programs at Los Angeles International Airport over a period of four years, from 2004 to 2008, and perhaps beyond that. According to the decision in Blackstone v. City of Los Angeles, police administrators, reaching all the way to senior officials in the Commissioner�s office, allowed fear of a lawsuit, and then strategy in defending against the lawsuit, to drive important administrative decisions regarding the LAX bomb dog programs. This political football contained the risk of affecting the safety of the traveling public.
Dual Canine Programs at LAX
Responsibility for security at the Los Angeles International Airport (LAX) is shared by the Los Angeles Police Department and the Airport Police Department (Airport PD). Both have canine units and, according to an appellate court in California, there is a good deal of animosity between the two units. Officers in the LAPD�s LAX Unit apparently see the Airport PD employees as security guards who should not be allowed to handle police dogs. This kind of friction between K9 units with contiguous operations is not uncommon.
According to the court:
�One morale booster was a bulletin board located in the LAX Unit's squad room, referred to as the �Wall of Shame.� Members of the two organizations posted cartoons and photographs poking fun at one another, which contributed to camaraderie between the two organizations.�
Supervisors of both units knew of the Wall of Shame and permitted it to continue, though they cautioned members of the units to be careful with postings and not to post anything making fun of someone who was �thin-skinned.� The Wall of Shame became a factor in an employment law dispute that began in 2004, involving a supervisor, Blaine Blackstone, and a K9 handler, Patricia Fuller (referred to as Patty Fuller in news reports).
Blaine Blackstone�s History with the LAPD
Blaine Blackstone joined the LAPD in 1979 and was promoted several times to become an assistant squadron leader with a pay bonus for hazardous duty. In 1989, ten years after joining, he took a pay cut because he wanted to be a police dog handler. He was in time transferred to the Narcotics Division K9 unit. He became a Sergeant in 1998. His performance evaluations were consistently high.
In May 2003, Blackstone was appointed to a supervisory position in the LAX Bomb Detection K9 Unit (LAX Unit), a coveted position in the LAPD. He learned of the position from Patricia Fuller who had worked with him previously. In May 2004, Sergeant Chris Thiffault was assigned to the unit, also a supervisor though, because of a lack of K9 experience, with administrative responsibility. Both Blackstone and Thiffault reported to Robert Green, Officer in Charge (OIC) of the Hazardous Devices and Material Section of the LAPD.
Blackstone quickly became aware of the animosity between the LAPD K9 handlers and the Airport PD K9 handlers, but told everyone he did not share such an attitude. He organized joint training and social activities. Officials of the LAPD, the Airport PD, and even the federal Transportation Security Administration recognized Blackstone�s efforts to resolve morale and cooperation problems between the two sets of K9 handlers. He was also credited with implementing of an off-lead detection (OLD) program at LAX, where dogs roamed off-lead among people and baggage to detect guns and explosives. Blackstone received letters of commendation for this program and spoke at an international conference held by the TSA.
Blackstone�s Evaluation of Fuller
Patricia Fuller, despite being part of the reason that Blackstone began working at LAX, was one of his problems when it came to animosity between the separate K9 units. She refused to participate in training exercises if Airport PD officers were participating, and even refused to enter LAX Unit offices if an Airport PD car was parked outside. Various parties said she was divisive, confrontational, negative, and a superior even described her as �an institutional terrorist.� According to the appellate court�s summary of the facts:
�Fuller frequently used vulgar and suggestive language and conduct of a sexual nature, which had a disruptive effect in the workplace. She routinely complained about everything that happened in the LAX Unit, particularly if it involved the Airport PD. However, she never complained about the �Wall of Shame� or complained of sexual harassment or gender discrimination.�
In a performance evaluation of Fuller in September 2004, Blackstone rated her overall performance as proficient, the highest rating possible. He said she showed tremendous initiative, was �very outgoing and friendly� while patrolling the airport and displayed �exceptional duty performance.� He said she had excellent K9 handling skills but recommended that she �focus her considerable energy and ability on her specific duties and the task at hand.� He rated her competent, rather than strong, in teamwork and effect on morale due to the fact that he found her �an obstacle to the overall goal of bringing the two units together.� He believed that if she would focus her energy on being a good dog handler, rather than on complaining about the Airport PD, her performance would improve.
The evaluation was read and approved by Thiffault, Green, and Captain Roper. Blackstone put it in an envelope and left it on Fuller�s desk since she was on vacation and he was going out of town for a conference and to purchase dogs. When she returned she received a call from Captain Roper who said he was going to come by the LAX Unit office the next day. Fuller took some cartoons and photographs off the Wall of Shame because she had seen Roper do the same earlier and she did not want the unit to be embarrassed. She kept the material she took down.
Then she read Blackstone�s evaluation of her. She was unhappy with the competent ratings in three categories and felt the comment about focusing her energy was a personal attack.
Fuller Asks That Performance Evaluation Be Revised
Fuller contacted Thiffault and another Sergeant and asked that the evaluation be revised to change the competent ratings to strong. She told Sergeant Michael Salinaz that she was going to �lawyer up.� Salinaz passed this on to Captain Roper, who contacted Green, who had just been promoted from Lieutenant to Captain. A meeting was set up where Fuller met with Green, Salinaz, and Lieutenant Justin Eisenberg who was replacing Green as OIC of the Hazardous Devices and Material Section of the LAPD. She produced the cartoons and pictures from the Wall of Shame and said that these established that she was working in an unfavorable work environment, which she further described as �sexually hostile.� She asserted that she was being left out of training (which was understandable if she was refusing to participate in joint training exercises).
Captain Green believed Fuller intended to sue the city if her performance evaluation was not changed. He contacted higher officials in the LAPD including a Deputy Chief. Eisenberg met with Fuller and Blackstone, who was now back in Los Angeles. Blackstone agreed to change the competent evaluation for physical fitness to strong and to add information regarding Fuller�s training and accomplishments, but he refused to change the ratings for teamwork and effect on morale.
During a break in the meeting, outside of Fuller�s presence, Eisenberg told Blackstone to change all of Fuller�s ratings to strong because if he didn�t, Fuller was �going to sue the Department for sexual harassment or gender bias.� Blackstone held to his position and refused to change the two ratings. Eisenberg denied making such a statement, according to a footnote in the court�s opinion, but the court clearly believed he had something like this to Blackstone.
Blackstone put the performance evaluation in his desk drawer because he was leaving on vacation the next morning. At the airport the following day, he got a call from Captain Green who said that Fuller had filed a complaint against him for sexual harassment and hostile work environment.
LAPD�s Reaction to Sexual Harassment Claim
The LAPD and the City of Los Angeles have a zero tolerance policy regarding sexual harassment. If such a claim is made, the employees involved are separated to minimize the potential for future claims and to allow the investigation to proceed. The complaining employee is given the option of transferring, but Fuller did not want to transfer. Assistant Chief Sandy Jo MacArthur advised that Fuller be allowed to remain and that Blackstone be transferred while the investigation proceeded.
While on vacation, Blackstone received a call from Captain Roper, who advised him that he was being removed from the LAX Unit because of Fuller�s complaint. Blackstone called Counterterrorism Bureau Chief John Miller and asked for permission to continue working on the OLD program.
Eisenberg conducted an interview with Fuller, her attorney, and her union representative and prepared a personnel complaint that stated that Fuller was alleging �a hostile work environment and gender bias within the LAX bomb detection K9 unit.� The form stated that evidence of this environment included material displayed on K9 office bulletin boards, misallocation of funds, and �inappropriate use and training of Transportation Security Administration (TSA) K9s.�
When Blackstone returned from vacation, he was immediately sent to Washington, D.C., to give a presentation for the TSA on the OLD program. When he returned to Los Angeles, he was told to stay away from the airport, though he was not given other instructions. Some weeks later, he received a call that his request to keep working on the OLD program had been granted, but he was put on night watch while Fuller was left on day watch. He could not go into the LAX Unit office unless Fuller was not there and, even then, he had to be accompanied by a particular officer, Lieutenant Mulrenin, who had taken over Blackstone�s office. Blackstone began to find it difficult to perform his duties.
Lieutenant Mulrenin did not take Fuller�s side, however. Although he went to the unit to try to resolve issues, he once entered his office and found explosive material in it. Fuller said she put the material there. This may have been some sort of joke, but in some law enforcement environments an action like this could lead to immediate termination. This alarmed Mulrenin and he rekeyed his office. At this time, he also observed that Officer Teddy Gonzalez was afraid of Fuller. He later testified that �some people are just very difficult to deal with.�
Blackstone�s Problems Escalate
On March 22, 2005, Blackstone was conducting a training exercise at LAX. One of the training aids, a simulated bomb, was not retrieved by the participants at the conclusion of the exercise. When it was later found by an airport employee, the terminal was partially closed and the bomb squad was called.
According to the Los Angeles Times, the training aid was a computer bag filled with fuse-less pipe bombs. Greg Krikorian and Jennifer Oldham of the Times reported that the incident began when an FBI agent assigned to LAX noticed the computer bag unattended outside the offices of several federal agencies. He saw the bag was still there 30 minutes later and alerted airport police, but it took another 30 minutes to get a bomb dog to the location. The dog hesitated when sniffing the bag but did not sit down, its form of alert. When airport police opened the bag, they found six 6-inch pipes capped at the ends and evacuated everyone within 300 feet of the area. John Miller, Chief of LAPD�s Counterterrorism Bureau, announced an investigation, but was quoted in the Times as saying:
�[T]his isn�t the first time something like this has happened in the course of training anywhere in the world. Things have been left on planes and in other places, like public buildings.�
Blackstone prepared a statement on the incident with suggestions as to how to prevent similar situations in the future. He requested that the bomb squad conduct an audit. During an audit eight days after the incident, the bomb squad reported that two chubs of explosive material were missing. Another Los Angeles Times article stated that the missing canisters contained one pound each of ammonium nitrate. Police Chief Bratton was quoted as saying that it �is important that the protocols, practices and accountability systems of the unit are beyond reproach.� The Special Agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives in charge of the Los Angeles Field Division, John A. Torres, also announced an investigation into the missing explosives.
On April 1, Captain Roper removed Blackstone from the LAX Unit and told him he would be transferred to the emergency services division. Roper also told Blackstone that he would never work in a K9 unit again and that he was to stay out of the LAX Unit office. The OLD program that Blackstone had begun was discontinued.
During an interview with a department psychologist who was conducting an environmental audit of the LAX Unit, Blackstone said he �felt horrible.� He was taken to an emergency clinic where he was diagnosed with hypertension and went on leave.
Blackstone, Thiffault, and Mulrenin received Notices to Correct Deficiencies, generally called �paper penalties,� a light form of discipline that remains in an officer�s personnel file for six months. Roper, at the direction of Commander Mark Leap, prepared a document recommending �deselecting and reassigning� of Blackstone. Deselection involved a demotion. The document stated that Blackstone had not provided �the necessary level of leadership and managerial oversight required.� His K9 partner, Boomer, was reassigned.
Leap�s assessment of Blackstone was inconsistent with a TSA evaluation of the LAX unit conducted only two months earlier. The National Explosives Detection Canine Team Program [NEDCTP] Comprehensive Assessment had stated:
�Overall, it was apparent that both the Los Angeles Police Department and Los Angeles World Airport Police Department are tremendous assets to the TSA National Explosives Detection Canine Team Program. The professionalism of these units was constantly displayed, and their dedication and commitment to the program was evident.�
In August, Blackstone was �loaned� to the Los Angeles Fire Department to train arson dogs in the OLD program. He never finished that training assignment. In November, he was reassigned to the Devonshire Patrol Division. He contacted Captain Roper, asking that he be allowed to work at LAX again. Roper responded:
�The inv[estigation] is wrap[p]ing up, be patient. It is not in your best interest to be at the airport until the dust has finally cleared. I can't stop you from applying to work the regular [overtime] detail, through the substation cadre, but you need to think long and hard on this. Right now by being off the radar, you are not generating any new interest or attention. It is best that way.�
Roper also testified that someone close to the investigation �had it out� for Blackstone. Fuller continued to make new allegations against Blackstone as well as other officers.
In May 2006, an adjudication form concerning the March 2005 disappearance of explosive material stated that Blackstone had stored explosives in violation of LAPD policy. Blackstone responded that there was no policy as to the storage of explosive material. The Adjudication form was then changed to state �that between January 5, 2005, and March 30, 2005, an unknown Department employee inappropriately removed high explosives from a LAPD explosive storage magazine.� The form recommended that the allegation be sustained and that Blackstone be suspended for four days.
On May 26, 2006, Michael Downing, Assistant Commanding Officer of the Counter-Terrorism and Criminal Investigation Bureau, requested that Blackstone be administratively transferred out of the LAX Unit. Although disagreeing with this removal, Blackstone requested assignment to the Metropolitan Division K9 Unit in Hollywood. Downing, in reviewing Blackstone�s file, noted that �in less than five weeks, [Blackstone] had gone from strong in every single category, with having developed a program that was viewed as the most progressive K9 program in the country, to being deselected completely out of the bomb K9.� Nevertheless Downing was informed that Assistant Chief George Gascon had decided that when Downing was transferred, he was not going to get a position comparable in pay grade or authority to the one from which he was being removed. Downing went along with the second demotion. Blackstone was transferred to Van Nuys as a patrol supervisor.
Blackstone Begins to Fight Back
Blackstone contested the four-day suspension for the missing explosive material. A Board of Rights found Blackstone not guilty in November 2008. It noted that Blackstone shared responsibility for the training aids with Mulrenin, Thiffault, and two other officers. Chief William J. Bratton agreed with the Board and restored Blackstone to his highest level and pay grade, though it was soon determined that this restoration was in error.
Captain Joel Justice, in January 2008, completed his adjudication of the sexual harassment and unbecoming allegations against Blackstone and sustained four allegations having to do with the Wall of Shame. Captain Justice recommended a Board of Rights hearing and removal of Blackstone, though only a seven-day suspension of Thiffault and a five-day suspension of Officer Gonzalez. Before Justice reached his decision, Fuller filed a lawsuit for sexual harassment, asking for $4.7 million.
Another Board of Rights hearing was held on the four sustained allegations involving the Wall of Shame. In March 2009, Blackstone was again found not guilty. The Board noted that the materials on the bulletin board were immature and problematic, but concluded that they did not rise to the level of misconduct. It also noted that Fuller had herself asked people to post clippings on the Wall of Shame and that she had placed some there herself. In the end, the Board determined that the Wall of Shame was actually favorable to morale. Further, officers of higher rank than Blackstone had seen the Wall and done nothing. Chief Bratton agreed with these findings as well, but did not restore Blackstone to his prior level and pay grade.
Meanwhile, the City of Los Angeles settled the lawsuit Fuller had begun for $2.25 million and she remained in the LAX Unit until her retirement.
Blackstone Sues
In May 2008, Blackstone sued, alleging gender discrimination and retaliation. After a trial, the jury found that the City of Los Angeles and the LAPD had engaged in conduct that �substantially and materially adversely affected the terms, conditions, or privileges of [Blackstone�s] employment.� The jury awarded Blackstone $225,526 for past economic loss, $160,786 for future economic loss, and $350,000 for past noneconomic loss. The City of Los Angeles appealed, contending that there was no substantial evidence that Blackstone engaged in protected activity or that an adverse employment action was motivated by retaliatory animus.
The appellate court disagreed with the City and affirmed, and also awarded costs on the appeal to Blackstone.
Conclusion
Blackstone was awarded $736,312, but much of that reflects loss of income from the experience of trying to maintain his honor in the face of a police establishment that was determined to make him the fall guy in the face of a relentless sexual discrimination attack from another employee. The nightmare lasted more than four years. The amount he received was considerably less than the $2.25 million that his accuser received in a settlement. The total cost to the City of Los Angeles from both suits, not including the costs of legal representation, exceeded $3 million.
Blackstone was a fall guy, but not necessarily a saint. He at least shared some responsibility for the poor monitoring of explosives materials used in canine training at LAX. Permitting the Wall of Shame to continue was not his decision alone, but it must be wondered if it was doing more to the flames between the separate canine units than to reduce the tensions between them. Such bulletin boards will almost inevitably include postings that will be offensive to one or more groups.
We have previously discussed the conflicts that can arise between TSA-supported airport programs and programs under the control of local law enforcement, and it is likely that some of the same issues were present in the underlying friction between the two groups at LAX. These problems may very well still be present. Although the OLD program was discontinued, LAX has more recently begun to participate in other TSA canine detection programs, so it may be argued, and must be hoped, that the period of these follies has passed.
The tragedy of this case is not the personal loss that Blackstone suffered, but rather that these turf wars and personnel disputes were allowed to become more important than the security of the flying public at a major international airport. A canine program with recognized promise was killed because of the fear that a lawsuit would make certain officials in the Los Angeles Police Department look bad. Blackstone�s was not the head that should have rolled first, or necessarily at all, but there were supervisors here that were more concerned with image than with the dangers they are paid to protect us against.
In an age of international terrorism, we cannot let office politics compromise anti-terrorism policy and practice.
Blackstone v. City of Los Angeles, 2013 WL 1790676 (Cal.App. 2013).
This blog was written by John Ensminger and L.E. Papet.
No comments:
Post a Comment