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7/10/2008

Law Enforcement > Cover Story

MIGHT MAKES RIGHT
Who polices the Orlando police? They do. That's the problem.

 

April 12, 2007, Fernando Trinidad did something that would get most of us thrown in jail: He pushed a woman down the stairs at a downtown nightclub, injuring her ankle, and then lied to the cops about it.

But luckily for Trinidad, he is an Orlando police officer. His punishment? He lost a vacation day.

Trinidad abused his power and his badge, and he got away with a slap on the wrist. The woman he pushed lost her job and very nearly spent time in jail because he lied about what happened. If it weren’t for a surveillance video, the reality of what happened that night would never have been known.

Trinidad was off-duty, working as a security guard for the now-defunct Club Paris. It was almost 3 a.m., and Trinidad and his colleagues wanted to get everyone out. According to Trinidad – a two-year OPD veteran who previously served in the U.S. Army – patron Jessica Asprilla was intoxicated and mouthy. She cursed at him as he tried to escort her out.

As he guided her down the stairs, Trinidad pulled out a whistle and blew. Trinidad says in his report that Asprilla spit on him. As he reached out to grab and arrest her, he says, she pulled away and fell down the stairs. Based on the report, she was charged with battery on a law enforcement officer, which is a felony, and resisting an officer without violence.

Later, Trinidad changed his story. In a deposition several months later, he claimed that Asprilla spit on him while mocking his whistle-blowing. He also accused Asprilla of faking her fall: “She was running down the stairs, and once she reached the bottom of the stairway, she took her famous belly-flop and landed on the ground.”

Both versions were untrue. An unearthed surveillance video didn’t show Asprilla spitting on Trinidad’s face in the stairway. It didn’t show her acting in any way threatening, posturing aggressively or stumbling like a drunk. It did show Trinidad reaching out with his right hand and pushing Asprilla and Asprilla tumbling to the floor. Then it shows Trinidad walking right past her as she lay on the floor in pain.

On May 1, Asprilla filed a complaint with OPD’s Internal Affairs division. Internal Affairs investigators dug up the video and concluded what the tape made obvious: Trinidad was lying. According to an Internal Affairs report, “Trinidad pushed Asprilla” and “Asprilla’s quick descent and subsequent fall resulted from having been pushed.”

On Aug. 29, Internal Affairs rendered its verdict. Section manager Dwain Rivers sustained the charge that Trinidad engaged in “conduct unbecoming an officer” for pushing Asprilla down the stairs. He found a second charge, that Trinidad didn’t offer Asprilla medical help, not sustained – or inconclusive – largely because the tape had no audio. Still, the video “cast doubt” on Trinidad’s version of events, Rivers wrote. He also concluded that Trinidad was guilty of falsifying police reports because his story was dramatically at odds with what actually happened.

You’d think that conduct unbecoming an officer and falsifying police reports would merit harsh punishment. Not so. An OPD memo dated Sept. 27 recommended that Trinidad be suspended for 16 hours or lose two vacation days. On Dec. 10, deputy chief Val Demings, who has since become chief of police, knocked that down to one day because no one told Trinidad he was being investigated for filing false reports before he was interviewed.

That may seem lenient, but by OPD’s standards it’s pretty harsh. In the vast majority of cases, officers accused of using excessive force get off with no punishment at all, even when there is compelling evidence the cops did what people say they did. Between 2003 and March 2008, 98 claims of excessive use of force were lodged with OPD’s Internal Affairs Division. Internal Affairs sustained none of them. In every case, the accused cop was cleared.

It’s likely that in many of those cases, that’s exactly what should have happened. People being arrested do, of course, make complaints about the cops arresting them. Often the evidence is inconclusive, and the cops get the benefit of the doubt.

On the other hand, OPD’s record suggests its cops are virtually never wrong, that charges of abuse of power are almost always a lie on the part of arrestees. OPD hasn’t punished a single officer for excessive use of force in at least the past five years, despite pending lawsuits the city now faces and, in some cases, clear evidence the cops did exactly what people who filed complaints accused them of.

A three-month Orlando Weekly investigation, drawing on hundreds of documents and dozens of interviews, suggests OPD has a problem policing its own. The police department, it seems, is a place where rogue cops operate with impunity, and there’s nothing anybody who finds himself at the wrong end of their short fuse can do about it.

“[OPD has] a habit of not imposing stiff punishments for egregious violations such as this one,” says Adam Sudbury, Asprilla’s attorney. “I will tell you of all police agencies, OPD [is] well-known in the criminal defense community as being, basically, an organized street gang with the authority to be street bullies. That’s their reputation.”


The Biggest Smack

The state attorney’s office charged Asprilla on Aug. 30. She was arrested a week later, following a routine traffic stop. OPD Internal Affairs investigators, however, discovered the videotape evidence that would ultimately clear her of all charges in May. They just never told anyone it existed, she says.

“If there were no video, I could have gone to prison for a long time,” Asprilla says, adding that Internal Affairs never shared the tape with prosecutors or told her anything about its investigation. (OPD denies withholding the tape, and points out that Asprilla initially refused to cooperate with their investigation.)

She only found out about the tape in late December, when a witness mentioned in a deposition that OPD had spoken to her and showed her the tape. “Once we showed the video to prosecutors, they dropped the charges against her,” Sudbury says, adding that the police were required to turn over that evidence. The two charges against Asprilla were dropped on Feb. 8 and March 5, respectively, according to court records.

In the meantime, Asprilla lost her job as a social worker. She dropped out of graduate school because her arrest record – which included a charge of battering a cop – prevented her from landing a necessary internship. She racked up thousands of dollars in medical bills and began planning a lawsuit.

Sudbury says that the state attorney’s office may yet press charges against Trinidad for pushing Asprilla down the stairs, lying about it and falsifying police reports. If that happens, he may lose more than a day’s vacation.

Meanwhile, Trinidad is still on the force, stationed at Orlando International Airport. The incident with Asprilla wasn’t the first time he’d been investigated by Internal Affairs.

In June 2007, he was censured after leaving his department-issued shotgun and AR-15 in his squad car, which was parked on the street outside his Kissimmee house for four days while he was on leave. The cops found out about it when two teenagers torched the patrol car, damaging the weapons. He was given a written censure.

Two months earlier, a home burglary victim accused Trinidad of refusing to take fingerprints at her house, despite her request that he do so. Another detective went to the house a week later and found nine prints, but they weren’t good enough to use. The complaint against Trinidad was not sustained due to a lack of outside witnesses.

On Feb. 18 of this year, a woman filed a petition for an injunction against Trinidad, who four days earlier – on Valentine’s Day – had left her a series of profanity-laced voice mails threatening to beat her over a dispute involving Trinidad’s wife. One example, found in court records, reads: “You fucking lesbian bitch. You better call this phone back. I swear to fucking God, if I ever fucking see you, [you’re] going to [get] the biggest fucking smack in your face, the biggest fucking smack. … Keep fucking with me, you won’t think I’m playing. … Prepare yourself, bitch. Prepare your-fucking-self.”

A judge declared that the threats alone couldn’t justify such an injunction. According to the petition, the woman also filed a complaint with Internal Affairs, though there is no record of such a complaint in OPD’s 2008 Internal Affairs log.


Lies and Videotape

In several cases reviewed for this story, a pattern emerges: The cops arrest, and in some cases allegedly rough up, a “criminal.” The person arrested is typically charged with resisting an officer without violence, but the charges are quickly dismissed. Meanwhile, the arrestee files a complaint with Internal Affairs, but the division ultimately clears the officer involved.

Because of the way Internal Affairs keeps its records, it’s difficult to determine whether or not it is effective at policing the police. All Internal Affairs complaints with a finding of anything less than “sustained” are purged after one year. There is no paper trail.

The case of Officer John Seth James, however, does not inspire confidence.

In the early morning hours of Sept. 2, James pulled over a pickup truck for an improper U-turn. As he approached the vehicle, he saw two men inside “jump from their seats in an attempt to change drivers,” according to his report. He yelled at them and ordered them to stop resisting. Seeing one reach for the center console, James pulled out his gun and ordered Michael G. Wallace, 26, the man he thought was the driver, out of the car.

Wallace, whom James believed was drunk, continued to struggle, so James took him to the ground, arrested him and put him in the patrol car. In November, the state attorney’s office dropped all charges against Wallace. His attorney, Andrea Armas, says Wallace wasn’t driving.

If the story ended there, the city of Orlando wouldn’t have had to pay onlooker Josh Leclair $5,000 to keep him from filing a lawsuit.

Leclair was at a friend’s house that morning and saw the traffic stop. He’s a member of CopWatch, a volunteer group that monitors police activity, so he brought out his camera and began filming. A second friend videotaped Leclair videotaping the incident.

During the arrest, Wallace pointed out the cameras to Officer James, who didn’t take kindly to their presence. He marched over to Leclair and demanded that he “go inside.” Leclair refused. He was on private property, more than 30 feet away from the arrest. He wasn’t interfering with anything James was doing. He had a right to film.

James gave the same order again. Leclair refused. James turned around and ordered another cop on the scene, “Detain him!” That officer, Paul Sanderlin, tackled Leclair like a linebacker on a Sunday afternoon.

When Officer Richard Studer – James’ supervisor – arrived on the scene, he watched Leclair’s tape and ordered him released. Leclair filed a complaint and turned over copies of both videos to Internal Affairs.

The tapes contradict much of what James told Internal Affairs about the incident. James said Leclair was one of a group of people only 10 to 15 feet away from the arrest, a group that he thought could pose a danger to him. In reality, Leclair was 36 feet away, standing alone. James told investigators Leclair was moving. He wasn’t. James said he told Leclair to “get back.” What he really told Leclair was to “go inside,” an important distinction. James ordering Leclair inside is equivalent to telling him he can’t film, which is not an order he is lawfully allowed to give.

Nonetheless, Internal Affairs exonerated James. Investigator Mathew Fleury interviewed an OPD firearms expert who excused James’ behavior by saying that with all the swirling lights, it’s possible James couldn’t tell how far away Leclair was. (Sanderlin, the officer who threw Leclair to the ground, left the force soon after this incident and wasn’t part of the investigation.)

In June, Leclair took his case to the Citizens Police Review Board, an advisory body that reviews Internal Affairs cases and makes recommendations to the department. After hearing his case, the CPRB did something it hasn’t done in at least eight years, according to Orlando Weekly’s review of CPRB minutes since October 1999: It asked OPD to reverse itself and sustain the charge against James.

The decision, ultimately, is up to Police Chief Demings. As of press time, Internal Affairs manager Dwain Rivers says the department is awaiting a formal letter from the CPRB stating its recommendations, after which Demings will render her decision.

Leclair also threatened to file a lawsuit against the city, but after seeing the videotape, city lawyers sought to settle out of court. Leclair asked for $4,000 and an apology. The city made a counteroffer: $5,000 and no apology. He accepted.

The city paints that settlement as pragmatic, noting that it would have spent a lot more than $5,000 defending that case in court. “Just because we settle doesn’t mean that the city thinks [the police] did anything wrong,” says city spokeswoman Heather Allebaugh.

The city, meanwhile, is fighting another lawsuit alleging that its cops roughed up someone without cause – and again, videotape of the incident tells a different story than the police reports do. On Oct. 25, 2003, University of Central Florida tailgater Heather Hull was arrested for resisting an officer without violence and disorderly conduct. Charges against her were dropped a month later.

In his charging affidavit, OPD Officer Ira Morris says that as he and other officers were breaking up a fight outside the Citrus Bowl, a crowd gathered, swearing at the cops and throwing things. (He didn’t mention why: According to a lawsuit filed by Jacob McCallister, one of the fighters, Morris and another cop knocked McCallister to the ground face-first, then Tasered him. Charges against McCallister were also dropped.) Morris said Hull jumped “on top of” another officer at the scene as the cops led one arrestee out.

Nothing of the sort happened. A video shot by a witness shows that as the cops dragged one of the fighters out of the parking lot, another girl – not Hull – walked up and touched one of them on the shoulder. An unidentified officer pushed the girl to the ground, hard.

Hull approached the girl, never touching an officer. But Morris and Officer Michael Burch reacted as if she posed a threat: They knocked her to the ground and Tasered her repeatedly. Here’s how Hull, in her lawsuit, describes the event: “[Morris] pushed me over, punched me in the jaw with his fist or elbow and then he and [Burch] used Tasers on me and knocked me to the ground. After defendant Morris Tasered me, [defendant Morris] Tasered me directly against my abdomen while I was lying on the ground and offering no resistance.”

The videotape backs up Hull’s story and contradicts Morris’ account.


A Familiar Pattern

Other cases tell a similar story. On Oct. 29, 2006, Steven Zapf, then an employee of Emeril’s restaurant at Universal CityWalk, was walking back to his car when he was followed by Officer Anthony Miller and two Universal security guards on bikes. The confrontation that ensued stemmed from a misunderstanding, says Thomas Luka, Zapf’s attorney. Miller believed Zapf had struck his girlfriend on one of Universal’s people movers. He had not.

Miller and the security guards formed a semicircle around Zapf. Miller demanded Zapf’s ID. Zapf refused, and Miller
Tasered him.

In his report, Miller says Zapf was belligerent, swearing at him repeatedly and pulling away to avoid being arrested. But Universal surveillance video (which does not have any audio) shows Miller and the security officers encircling Zapf. He walks backward very slowly in the video, still facing Miller, then Miller Tasers him. He isn’t running, and he doesn’t appear to be threatening Miller in any way.

In January 2007, the state attorney’s office dropped charges against Zapf. Because he was issued a trespass warning from Universal, however, he lost his job. Luka says Zapf tried to file an Internal Affairs report, but was told that because Officer Miller was working off-duty, he couldn’t. In May 2007, Zapf sued Miller and Universal Studios.

A few months after that, Karen Holbrook, then an Orlando Sentinel night-life writer, had her own run-in with Miller. In October 2007, Holbrook cut through Wall Street Plaza a little after 2 a.m. on the way back to her car. A bouncer stopped her, assuming she was trying to enter a closed bar. Holbrook explained that she was just cutting through, and the bouncer let her go.

On her way, Holbrook says she saw Miller, who was working off-duty as a security officer, slam a male friend of hers against the wall. She pulled out her phone and dialed 911. Miller, she says, “ripped the phone out of my hands.”

“Who is this?” she says he demanded to know. After discovering it was a 911 operator, Miller responded, “She’s crazy,” and hung up the phone, Holbrook says. Then she says Miller “drop-kicked me on the floor.” She got up, and he “slammed me back on the ground again.” He also doused her with pepper spray. “I felt it for days,” she says. “I lost [some of my] vision.”

Miller took her to the police station, but she was so bruised and bloody, the police had to wait three hours before they could take her mug shot. Pictures provided to Orlando Weekly show bruises to her arms, legs and face.

Miller said in his police report that he pepper-sprayed her because she was resisting arrest. His report doesn’t mention the 911 call, and that call’s existence is impossible to verify because the cops only keep 911 recordings for six months. The state attorney’s office dropped charges against Holbrook in January 2008. Holbrook says she called OPD to file an Internal Affairs complaint, but “no one got back to me.”

Luka, the attorney representing both Holbrook and Zapf, has filed his own lawsuit against Officer Miller. On Sept. 21, 2006, Luka was arrested outside the popular downtown bar Casey’s on Central after allegedly pushing Miller. At one point, Miller threatened Luka with his Taser, and Miller says that Luka responded, “I’m a civil rights attorney who fights the Taser. I would love for you to Tase me.”

Miller arrested him.

Luka’s and Miller’s stories don’t mesh. Luka says he accidentally touched Miller’s arm, and Miller demanded to see his ID. After seeing his Florida Bar card, Miller unholstered his Taser and said, “I know you. You are going to jail.”

Luka, a former Miami prosecutor and Orlando public defender, says Miller then took him to the downtown police substation, where he was placed in a holding cell for several hours. At one point, Luka says, two cops turned off the lights, entered the cell and beat him with their hands and batons, saying, “Do you want to take our deposition now, motherfucker?” and “You have no idea what happens when you fuck with OPD.”

Luka filed a complaint with Internal Affairs, but the division cleared Miller. According to the Internal Affairs report, several witnesses backed up Miller’s version of the arrest, and for Luka’s story about the beating to be true, he would have to have been arrested hours earlier than records indicate.

The state attorney’s office declined to press charges, and Luka sued. “It’s hard to tell what’s going on,” says Howard Marks, who represents Luka in his civil case. “The city is defending this thing vigorously. [The city] believes Tom is not telling the truth … [that] he’s making it up. … We believe that Internal Affairs, 95 percent of the time, writes a report to support the officers’ position. It’s a joke here. It’s an absolute joke.”


Fun With Tasers

Between 2002, when he joined OPD, and August 2007, when he gave a deposition in the Zapf case, Miller admitted to using his Taser 42 times in the line of duty. According to Internal Affairs records, Miller has never been disciplined, which means that as far as OPD is concerned, all of those incidents were justified.

Falah Aljahmi would disagree. On Sept. 9, 2006, the Dearborn, Mich., resident was in Orlando visiting a friend. As he was walking to his car, two drunken white men spouting Arabic slurs accosted him, then jumped him. Aljahmi, who weighs 150 pounds, punched the first one and was wrestling the second when a third man tackled the whole pile, he says. During the fracas, his contacts were dislodged.

Aljahmi ran. Unfortunately for him, the tackler was Officer Morris, who gave chase. Other cops – Miller, Mark King and Michael Faulkner – ran after him as well. They cornered Aljahmi, who says that as soon as he realized the people chasing him were cops, he stopped running.

What happened next, as outlined in a lawsuit Aljahmi filed against the city and the officers, is chilling. Over the next few minutes, the four officers beat him and Tasered him at least four times while he was on the ground. “They were laughing and stuff,” he says. “They thought it was a joke.”

The cops say they had to use their Tasers because Aljahmi was, in Morris’ words, “continuing to violently resist our attempts to subdue him.” Morris drove his arm into Aljahmi’s chest twice. After Aljahmi was on the ground, Miller Tasered him again. King slammed his knee into Aljahmi’s shoulder. Faulkner Tasered him again while Aljahmi was on the ground because his arms were under his torso, the cops said, which made it hard to handcuff him.

Aljahmi was arrested and charged with battering a cop, resisting arrest with and without violence and disorderly conduct. As with the other cases, the state dropped all charges in April 2007. In February, Aljahmi filed his lawsuit against the officers and the city.

The city declined to talk about these pending cases, although it did issue Orlando Weekly a statement of support for its officers. “Our police officers face tough, split second decisions everyday and it is common for them to err on the side of public safety.”


Toothless

OPD’s Internal Affairs department is, by design, cops investigating cops. If you have a problem with the inherent lack of objectivity in that system, you have one avenue of recourse: the Citizens Police Review Board. The CPRB is a volunteer advisory board that reviews Internal Affairs investigations. It toils in obscurity. Its meetings, once a month early on Wednesday mornings in City Hall, are sparsely attended. The local media seem hardly to know it exists. The board has no authority other than to recommend that Internal Affairs change its findings or reinvestigate. A review of CPRB minutes since October 1999 indicates that happens only rarely.

Of the hundreds of cases the board reviewed in that time span – about 40 per year – the CPRB has asked Internal Affairs to reverse its findings or reinvestigate eight times, and in two of those cases the board later changed its mind and approved Internal Affairs’ findings. That leaves only six incidents in which the CPRB challenged Internal Affairs’ decisions (although in some of the cases the CPRB has backed up Internal Affairs’ finding of charges “sustained”).

One of those cases was Josh Leclair’s. Another came from two strippers who said that two OPD cops, James Carlies and James McGriff, had fondled them – and allegedly, one of the cops showed off his erect penis – during an undercover operation. In that case, Internal Affairs dismissed the results of a polygraph test the two women had passed and cleared the two officers.

In December 2006, the CPRB asked Internal Affairs to reopen its investigation and to take its own polygraph of the two women. OPD said no. In January 2007, an assistant city attorney stated more tests would be a waste of time.

The CPRB’s impotence is spelled out in the city’s contract with its police union: “The city may establish a Citizens Police Review Board … however, no such board shall have the authority to impose or modify disciplinary actions against employees.”

The CPRB has no say in how an officer is punished; that is up to OPD management. Like Internal Affairs, the CPRB cannot take into account prior allegations or even sustained charges against an officer when considering a case, meaning that if a cop has been repeatedly charged with abusing his authority, it doesn’t matter. The CPRB can’t require accused cops to show up at meetings, so they almost never do.

The CPRB is, in the words of former member (and Orlando Weekly music columnist) Bao Le-Huu, “toothless.” Le-Huu, in fact, says he decided to leave the board after almost two years of following the Carlies and McGriff case. Despite the long hours board members put in reading case files, he says, their efforts amounted to a show “to make people feel good.”

In fact, Internal Affairs manager Rivers admits that of the six cases in which the CPRB either requested a reinvestigation or recommended that IA change its findings, there’s no record of anything actually changing.

The board couldn’t do anything to change the system, Le-Huu says, so it was a waste of time.


Outraged

Rivers says an analysis that assumes wrongdoing “because of the sheer numbers, not because of the fact,” is flawed. In other words, he says you can’t assume that just because every cop who has faced an excessive force complaint over the last five years has gotten off, that means that Internal Affairs isn’t doing its job.

He also warns against using Internal Affairs’ logbook to determine that his division goes easy on abusers. In Trinidad’s case, Rivers notes that he was charged with an omnibus violation of “policies and procedures,” rather than use of force. The logbook doesn’t record what violations of policies and procedures officers are charged with. And given OPD’s purging policy, such information, particularly in older cases, is almost impossible to come by.

So, Rivers says, abusive cops could be punished for abusive behavior, but it might be recorded as a violation of a rule other than “use of force.” He also defends the CPRB process. The board, he says, has made a number of suggestions that OPD has adopted. But he doesn’t think it’s a good idea for the board to take an officer’s credibility into account.

“If they are judging our cases by something we don’t [use], it wouldn’t be fair,” he says. “If we start looking at credibility and not evidence, we’re treading in serious waters.”

Rivers points to the different viewpoints of cops and civilians to explain the high number of cases that his agency clears. In short, what some civilians see as abuse is completely appropriate under the police department’s use-of-force matrix. Cops can use increased force as the threat increases, so even the perception of an increased threat can merit increased use of force. Even when videotape seems to be at odds with officers’ stories – as in the Leclair case – Rivers says police reports might not match “because of perception, not untruthfulness.”

Questioned about Trinidad’s lackluster punishment, Rivers says that his agency’s “hands are pretty tied.” The level of an officer’s discipline is determined not by Internal Affairs, but by that officer’s superiors. And the superiors base the punishment largely on precedents that are listed in two large binders of records OPD keeps. If OPD doled out more severe discipline than it previously had for a similar offense, Rivers says, the officer might have cause to file a grievance.

Consequently, Trinidad lost a vacation day. “The public was outraged and so were we,” Rivers says.

Stacked Deck

The deck is stacked in the accused cop’s favor. That fact is codified in state law. A section of law known as the “Police Officer’s Bill of Rights” says that before Internal Affairs can interview a cop, they must first let the cop see all the evidence and witness statements against him, a privilege not extended to the public during criminal investigations.

Use-of-force rules also give the cops the benefit of the doubt. “There is great leeway left for use-of-force discretion,” says CPRB member Jeremy Markman. “It’s there purposefully. Officers on the street have discretion.”

There is a premium placed on keeping cops safe. Proving that an officer used excessive force, or did anything else, is difficult. For instance, if a complainant says a cop abused him, the cop denies it, and there are no witnesses, Internal Affairs usually returns a “not sustained” finding. Markman and Le-Huu also point out that, if the incident happens around downtown bars, witnesses are often bouncers and club employees. And since many cops work while off-duty providing security to these clubs, these witnesses are essentially the officers’ co-workers.

Le-Huu also notes that the investigations CPRB members review are conducted by Internal Affairs – and thus, the CPRB relies on Internal Affairs to report on itself.

The lack of independent oversight isn’t limited to Orlando. Orange County’s Citizens Review Board has even less authority.

State law mandates that any investigation into a police officer be done by his or her employer. In Orlando, police officers are city employees. In the county, sheriff’s deputies are employed by the Orange County Sheriff’s Office, a separate constitutional office, which severely restricts what its oversight board can do. (It only reviews cases of abuse of power or excessive force, and like Orlando’s board, only makes recommendations to the sheriff).

However, Orange County’s charter does grant its board one power Orlando’s board doesn’t have: the subpoena. The county’s board can require that deputies show up (although that authority is pending the outcome of a lawsuit, says county senior paralegal Jack Dougherty). The city’s board cannot.

The city could grant its board that right. Because OPD cops are city employees, the city could empower the CPRB to do independent, thorough investigations of alleged police misconduct. If the city altered the language in its union contract, it could even give the CPRB real muscle.

Or the city could keep doing what it’s doing now: letting the cops police themselves.

jbillman@orlandoweekly.com
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