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Proposed Use of Force Policies: Will This Be The “New Normal” For Policing?

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In a possible preview of coming attractions for other agencies, the police department in a major US city is proposing radical changes to its use-of-force policies that have torched a firestorm of protest from the rank-and-file.

In tone and detail, many of the intended changes mirror the recommendations for overhauling American policing put forth earlier this year by the Police Executive Research Forum (PERF), which we’ve covered in several recent issues of Force Science News.

The intent, say the city’s police chief and the president of its Police Commission, is to “fundamentally re-engineer the way police officers use force” and thereby save lives.

But a former deputy city attorney for that municipality, who in the past has defended the agency and its personnel against excessive force claims arising from officer-involved shootings, asserts that some aspects of the “hastily enacted” proposals could have “disastrous and unintended consequences” if left uncorrected.

And the president of the Police Officers Assn., representing the department’s patrol and investigative forces, charges that some of the would-be changes “appear to be at odds with federal and state law and longstanding precedents and best practices.” Adopted as is, he says, they “could lead to citizens being further endangered and officers exposed to additional harm.”

He adds, “The POA was taken aback [that] we were never consulted” in the discussion and drafting of the intended revisions. Creators of the proposals promise that input from “interested stakeholders,” including “front-line officers,” “civil libertarians,” the general public, and the federal DOJ will be solicited before the alterations are finalized.

CHANGES “GOOD FOR EVERYONE”?

According to the PD’s chief and the city’s Police Commission president, the proposals grew from a collaboration of law enforcement officials and black activists after the controversial fatal shooting last December of a 26-year-old man who had randomly stabbed a stranger on a city street.

Hopped up on meth and other drugs, the knife-wielding suspect refused repeated commands to drop his weapon when surrounded by responding officers. Taunting an officer to use his “motherfucking” gun, the subject doggedly resisted pepper spray and beanbag rounds before multiple officers fired on him with their sidearms, inflicting some 20 wounds.

The current city attorney ruled the shooting justified, but the suspect’s family filed a federal civil rights suit. The PD quickly initiated some “immediate” changes in officer training and dug into crafting a “new vision for the department,” anchored to major alterations of its General Orders regarding use of force, particularly deadly force.

In a joint announcement of the resulting proposals, the chief and the commission president claimed last month that by getting officers to emphasize “time and distance,” de-escalation, “sanctity of life,” “thoughtful communication,” and a “proportional” use of force, the department “can fundamentally re-engineer policing” and reduce officer-involved shootings by “up to 80 per cent.” This will save lives and be “good for everyone,” they insisted.

The POA president fired back with a 20-page critique of the proposed revisions, characterizing them as having been “written in a bubble,” shielded from the “dynamic, fast-paced, and constantly evolving” realities of force incidents. He included results of an online membership poll showing that over 97% of respondents are “not satisfied” with the proposed UOF revisions and their “unreasonable and flawed language.”

Also included were detailed, critical analyses of the proposals from two use-of-force experts: A police defense lawyer, who served 22 years as a deputy city attorney for the municipality, including nine years as chief of the civil rights litigation team, and a police trainer for nearly five decades, who has trained some 45,000 LEOs, has testified as an expert witness (both for and against officers) in over 600 cases, and has played a major role in shaping the state’s POST instructional materials on firearms, arrest-and-control tactics, and use of force.

Here are a few of the key elements addressed which reflect the flavor of what one critic terms a “novel approach” to UOF policy:

“PROPORTIONAL” FORCE

A major concern of the position papers challenging the changes centers on one of the factors that the proposed General Orders list in describing what constitutes a “reasonable” use of force. To be considered reasonable, the draft Order states without further definition:

“Any force should be proportional to the severity of the offense committed for which the officer is taking action…. It is critical officers apply the principles of proportionality when encountering a subject who is armed with a weapon other than a firearm, such as an edged weapon, improvised weapon, baseball bat, brick, bottle, or other object.”

“I’m not even sure what that means or how an officer is to make that determination,” the long-time trainer writes. He says the language suggests that a force encounter “needs to be a ‘fair fight’–that [an] officer can no longer present a show of force sufficient for the suspect to know that resistance is pointless.

“For example, instead of multiple officers attempting to subdue a resistant individual, under this policy only an officer of similar size and physical skills can intervene.”

The police attorney calls the lack of definition “deeply concerning,” and adds that the “proposal could suggest that ‘proportional’ means that officers are required to match the degree of force being used by the suspect. In other words, if an officer is being threatened by a knife, the maximum force the officer can use in response is a knife–even though officers are not equipped with knives and are not trained on how to use them.”

VITAL OMISSION

The critics are also disturbed by another “extremely important” omission. The current department policy specifically underscores the critical Graham qualifier that the reasonableness of an officer’s use of force “should not be judged based on 20/20 hindsight.” Crafters of the new policy have “inexplicably” taken that language out.

To the police attorney, the removal “suggests that it was intentionally omitted with the objective of making [this] the only city in the country where an officer’s use of force can now be analyzed based on 20/20 hindsight”–“a radical change [that] could have undesirable implications for officer training and accreditation under POST.”

DE-ESCALATION

In stressing a dominating commitment to de-escalation, the proposed policies state that when a non-compliant subject is “not actively endangering safety, fleeing, or destroying evidence, officers should employ techniques to decrease the likelihood” of having to use force. These would include building rapport via “thoughtful communication” with “the proper voice intonation” and tactically repositioning “as often as necessary” to maintain a protective “reaction gap” between officers and suspect.

“This sounds good on paper but on the streets it will unnecessarily expose all parties to increased danger,” the POA president argues. The obligation to constantly reposition to accommodate the suspect’s movements “implies a duty to retreat that is not consistent with [state] law nor case law. It is inherently dangerous, it compromises officers’ ability to contain suspects, and it increases suspects’ opportunities to escape, assault officers, or attack civilians or take them hostage.”

SUPERVISORY RESPONSE

The proposed policies require that when officers view or are dispatched to “a subject with a weapon, a supervisor shall immediately…remind responding officers, while en route, to protect life, isolate and contain the subject, maintain distance, find cover, engage in thoughtful communication without time constraint, and call for appropriate resources.”

“This is potentially dangerous to civilians and officers because in the 10-15 seconds in which the supervisor would clog the airwaves with this generic announcement, the officer on the scene would have been prevented from conveying critical information, such as ‘shots fired’ or ‘officer down’ or calling out the direction the suspect has fled,” the police attorney states. “Requiring a supervisor to reiterate general policies in the heat of action accomplishes little or nothing.”

“If the department would simply apply this idea to a few real-world scenarios, it would see how disastrous it could be,” the veteran trainer notes.

The POA president points out that some of the content of the message is questionable. For instance, “current training involves [officers] ‘moving to contact’ active-shooter suspects without delay. It seems contrary to every recent study to have officers ‘finding cover’ and ‘engaging in thoughtful communication’ when…children are actively being slaughtered in a school.”

VEHICULAR SHOOTING

In the union president’s words, the new regulations intend to establish “clearly a policy of prohibition” so far as shooting at a suspect in a moving vehicle is concerned. The only exception in the proposed changes would be if an occupant “poses an immediate threat” of death or serious injury “by means other than the vehicle” itself.

This “categorical ban,” writes the police attorney, “prevents an officer from shooting at the driver…even if there is no means of retreat [and] the officer or a bystanders will likely be killed if the officer cannot shoot, [and] where there is substantial risk that the driver will cause death or serious injury to others if allowed to escape.”

For example, he states, “if an individual were driving around [the city] in an SUV, running over pedestrians for fun,…under the proposed policy [an] officer would be required to hold his or her fire….” The proposed policy, POA president charges, “turns a vehicle into a safety zone for violent felons….”

In the trainer’s expert view, “a motor vehicle driven at an officer or civilian is lethal and should be dealt with like any other lethal force threat.”

CEW RESTRICTIONS

Among many restraints on the use of controlled energy weapons listed in the proposed changes, there are two that the union president takes particular exception to: A prohibition on using a CEW on an unarmed subject, and on using the device in drive-stun mode.

Why? he asks. “If an officer or a citizen is being beaten to death by the hands or feet of a suspect, an officer could articulate a reasonable need to use a firearm.” Why would a CEW be banned “in these instances if it might prevent the use of a firearm?”

And why would an officer not be permitted to use a CEW “on a violent but unarmed suspect who is larger and stronger than the officer and who threatens the officer’s safety? [I]f the unarmed suspect begins to grapple with the officer, the officer will have to defend him or herself from a stronger opponent while practicing weapon retention techniques for two separate weapons (CEW and firearm) located on opposite sides of the officer’s body…. [This] is not in line with the best practices of other agencies.”

As for prohibiting drive stuns, “What purpose is served?” he asks. “Other agencies recognize [that] use…and indeed recognize it as a lesser use of force than…firing the probes.”

MORE BANNED PRACTICES

Also forbidden under the proposed regulations are striking a handcuffed prisoner with an impact weapon, raising an impact weapon above the head to strike, and applying a carotid restraint to control a combative suspect.

A “blanket prohibition” against certain baton strikes is “nonsensical,” the police attorney argues. “It is well documented that someone in handcuffs can still be dangerous–even lethal. To prevent officers from using an impact weapon against a dangerous individual, whether handcuffed or otherwise, only increases the risk of injury to the officer and the individual.

“The more non-lethal options that are removed from an officer’s arsenal, the more likely the incident will escalate to the point where the officer’s only option is lethal force.”

The trainer agrees and disputes the categorical ban on over-head strikes as well. “The location of the strike is what matters,” he writes, “not the type of arm movement that caused the strike.” And the POA president points out:

“Normal physical controls and baton strikes are frequently ineffective when encountering suspects with a sufficient size differential. Is it the Department’s intention to leave smaller officers with no recourse when dealing with an assault from an unarmed but larger suspect than to use their firearm?”

As to the carotid restraint ban, the police attorney writes, “Based on my 22 years at the City Attorney’s Office, I cannot recall a single case in which an individual claimed injury” from that technique (which, of course, is vastly different from a bar-arm choke hold or other application that compresses the airway at the front of the throat).

The trainer notes that the state’s POST “mandates that the carotid restraint control hold be taught in all POST basic academies.” In the union president’s experience, it “has proven to be very effective against suspects who are on stimulants and/or hallucinogens, where other levels of force historically fail or would be ineffective.” Again, without it officers “may have no reasonable means” for controlling some combative subjects “short of the use of lethal force.”

“UNINTENDED CONSEQUENCES”

The “novel” policy changes discussed here and others proposed are “massive” and, in effect, “will drastically change an officer’s approach to every potential encounter in which the use of force might be an option,” the trainer declares. “I foresee numerous unintended consequences,” because changing the rules of force “cannot be accomplished by simply changing the General Orders.”

Among his predictions:
  • “None of the officers in [the agency] will be adequately trained” in the new policies. For the revisions to be effective, “all officers would have to be untrained in the things they learned in the academy and throughout their in-service training and re-trained to meet the [new] requirement[s]. In a time-for-time scenario, it would require the same amount of time to re-train skills as it did to initially train [them], or 6 to 8 months in an academy setting.”
  • The department “would likely lose its POST accreditation. In fact, because POST would continue to teach concepts not just different but contrary to the [the agency’s] new, core approaches to uses of force, it might even be counter-productive for [the PD] to require its officers to be POST certified.”
  • Confusion will reign. “Officers, citizens, and lawyers will all be guessing” as to what certain proposals, such as “proportional force,” actually mean. “This, of course, is problematic for officers being able to figure out in the field what they can or cannot do, and it will be even more problematic when their actions are second-guessed in disciplinary proceedings and civil lawsuits.”

Revising policies, the trainer cautions, “should not be jumped into haphazardly, as a knee-jerk reaction to criticism from a relatively small but vocal segment of the total population…. Every word within a policy” should be “subject to scrutiny” because the language “can be used against the agency and the officers in civil litigation.”

The “disastrous” consequences of adopting these proposals “too quickly…without careful and thoughtful deliberation,” he warns, could well include the loss of civilian and police lives.

It would be unfortunate, he says, if the PD “adopts these policies first and then only later takes the time to consider how they can be improved or unintended consequences removed.”

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