Posted 8/1/17

THREE (IN?)EXPLICABLE SHOOTINGS

Grievous police blunders keep costing citizen lives. Why?

     By Julius (Jay) Wachtel. On April 29 Balch Springs, Texas police officer Roy Oliver and his partner entered a residence where teens were reportedly drinking. Gunfire suddenly erupted nearby and the cops ran to investigate. Five youths also left and jumped into a car. For reasons that remain unclear, officer Oliver fired at them with a rifle that he had fetched from his cruiser. One round fatally wounded Jordan Edwards, 15.

     Police chief Jonathan Haber quickly issued a news release claiming that the youths had driven at the officers. Body cam video soon proved the assertion false. Chief Haber apologized and fired officer Oliver.

     Last month a Dallas grand jury indicted officer Oliver, 37 for murder and aggravated assault. He was also charged with pulling a gun on a motorist who rear-ended his personal vehicle some months ago. Oliver, an Iraq vet and cop since 2011, had been briefly suspended in 2013 for being vulgar and aggressive with prosecutors and in court. No other disciplinary actions against him are known.


     On June 4 Omaha police officers encountered a disturbed man licking a store window. Zachary Bearheels, 29, accepted water but refused further aid and was let go.

     Bearheels continued behaving oddly. That evening he was kicked off an interstate bus, and during the early morning hours of June 5 he caused a ruckus outside a convenience store. Two officers eventually cajoled the 5-9, 250-pound man into the back of a squad car. A sergeant soon turned down their request to take Bearheels in for a mental check, so the officers decided to take him back to the bus station. But the unruly man broke loose and tried to flee.

     That’s when two other cops, Scotty Payne, 38 and Ryan Mc Clarty, 27 jumped in. During the ensuing struggle they delivered a stunning twelve five-second Taser jolts and numerous blows to the head. According to police chief Todd Schmaderer, who moved to fire both cops, “video showed Mr. Bearheels to be motionless on the final few strikes.” Indeed, Bearheels was more than “motionless”: he was dead. A coroner would later rule the cause as “excited delirium,” a diagnosis that has been associated with other episodes of repeated Taser strikes on emotionally disturbed persons.


     What’s known for sure is that Minneapolis police officer Mohamed Noor shot and killed Justine Ruszczyk during the late evening hours of July 15. What’s puzzling is why. Ruszczyk, a local resident, had just called 911 to report overhearing a possible sexual assault. After hanging up she may have tried to draw the attention of officer Noor and his partner, Matthew Harrity, by slapping the trunk of their vehicle as it drove down the alley behind her residence. Officer Harrity, the driver, later told investigators that he heard a loud noise and observed Diamond at his side window. His partner apparently considered the woman a threat and fired. Noor’s bullet struck the middle-aged Australian woman in the torso, inflicting a fatal wound.

     Since completing probation in fall 2015 Officer Noor, 31 racked up three complaints. One, an incident in May where he allegedly used excessive force against a mentally ill woman, has turned into a lawsuit. Officer Noor declined to be interviewed about the shooting and is represented by a lawyer.

Click here for the complete collection of use of force essays

     Independent information about the incident is lacking, as neither patrol car nor officer cameras had been turned on. Meanwhile the chief, who said the shooting “should not have happened,” resigned under pressure and a major shake-up of the department is reportedly under way. One change already made is that officers must now activate body cameras on all 911 calls.


     “The killing of Jordan Edwards shows again how black males — even children — are viewed as a threat.” That headline (yes, headline) from the May 7 edition of the Los Angeles Times conveys what the editors clearly consider a given: that the killing of Edwards, a black youth, by officer Oliver was motivated by race. Among those quoted in the story is civil rights attorney Benjamin Crump, who on the day of Edwards’ funeral said “These [police officers] are trained professionals, who are supposed to make rational decisions, but they’re not. And yet again our children — I repeat, children — are paying the ultimate price.”

     Police Issues has frequently commented on the use of lethal force against blacks. One such episode, which the Times also found pertinent, was the November 2014 killing of Tamir Rice, a black 12-year old who was gunned down by a white Cleveland cop. (Rice had flaunted an air pistol, and a grand jury refused to indict. Cleveland settled for $6 million.)

     Given America’s legacy of bias, concluding that Jordan Edwards was shot because he was black might have seemed obvious to the Times. After all, while officers kill many more whites than blacks, the latter have been proportionately much more likely to fall victim to police gunfire (click here, here and here). Contemporary research, though, has cut both ways. For example, a recent in-depth report of shootings by Houston officers concludes that whites were at substantially greater risk of being gunned down by cops.

     In any case, the officers who shot Bearheels and Ruszczyk were black. So what matters other than race?

  • Officer temperament is crucial. Cops who are easily rattled, risk-intolerant, impulsive or aggressive are more likely to resort to force or apply it inappropriately. In “Working Scared” we remarked that the cop who shot Tamir Rice was forced out from another department when a supervisor noticed that the rookie was inexplicably “distracted” and “weepy” during firearms practice.
     
  • Good judgment and forbearance take time to develop. Pairing inexperienced cops may be a tragedy waiting to happen. Minneapolis officer Noor had been a cop only two years; his partner, officer Harrity, had one year of experience with MPD. Interestingly, the “loud noise” that may have provoked Noor to fire brings to mind the “loud noise” that led one of a pair of rookie NYPD cops to discharge a round in a darkened stairwell, fatally wounding a resident who was hoofing it because the elevator was out.
     
  • Talk isn’t enough. “De-escalation,” a trendy new buzzword, is how most cops have always preferred to do business. But when beats are beset by guns and violence even the most adept communicators might need more than words. Prompt backup is essential. Less-than-lethal weapons must also be at hand and officers should be adept at their use.
     
  • Practice makes perfect. As we said not long ago, patrol shifts must train together. It’s also essential that someone - an experienced officer, if not a supervisor - take charge and coordinate things whenever a use of force is likely.

     We hate to label this post a call for “reform,” as our analysis and prescriptions are nothing new. Yet an unending stream of unjustified police shootings have been threatening to turn Police Issues into a “use of force” blog. So, please (and not just for our sake) don’t let that happen!

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RELATED POSTS

Is it Always About Race?     Good Guy/Bad Guy/Black Guy (I) (II)     Working Scared     De-escalation

Three Perfect Storms     Policing is a Contact Sport (I) (II)          Is it Too Easy to Zap?

RELATED REPORTS

PERF 2011 ECW (Taser) guidelines      PERF 2016 Guiding Principles on Use of Force



Posted 6/3/17, edited 6/4/17

ARE CIVILIANS TOO EASY ON THE POLICE?

When attempts are made to sanction cops, citizens often get in the way

     By Julius (Jay) Wachtel. In “Is it Always About Race?” we commented on the tragic encounter between a Tulsa cop and Terence Crutcher last November 16th. Crutcher, 40, had abandoned his truck in the middle of the road and was walking around disoriented. He ignored the first officer on the scene, Betty Jo Shelby, and as backup arrived he returned to his vehicle and reportedly reached in. Officer Shelby, who is white, fired her pistol and another cop discharged his Taser. Crutcher, who was black, was fatally wounded. No gun was found.

     Prosecutors charged Officer Shelby with first-degree manslaughter. During an interview with the television show “60 Minutes,” Officer Shelby insisted that in light of her training, Mr. Crutcher’s behavior left her no choice but to shoot him. Meaning, with a gun, not with the Taser that she also carried.

     Neither a use of force expert nor any police trainers testified. However, evidence came in that Crutcher, who had done prison time on drug charges, had resisted cops in the past and was high on PCP when he was shot. After deliberating nine hours a jury of nine whites and three blacks acquitted Officer Shelby. In an extraordinary public letter (click here and here) the panel’s foreperson explained why jurors voted to acquit. While they wished that Officer Shelby had tried something else to defuse things, Crutcher’s final move placed her in a tight fix, and her reaction – supposedly based on training – seemed justified.


     Five years ago NYPD narcotics officers stormed the apartment of a teen they trailed from a suspected drug deal. One cop, Richard Haste, confronted Ramarley Graham, 18, in a bathroom. Officers thought that Graham was armed, and when he supposedly reached into a pocket Officer Haste shot him dead. No gun was found. A grand jury originally charged Officer Haste for manslaughter. However, that indictment was quashed by a judge, and a second panel refused to indict. Officer Haste contested moves to remove him from the force and remained on the rolls until March 24, 2017, when he was ultimately fired for cause.

     Trial jurors have also proven reluctant to bring officers to account. On October 6, 2016 an Albuquerque jury hung 9-3 in favor of acquitting two former cops accused of second-degree murder in the shooting death of a mentally ill homeless man. Although video from helmet cameras didn’t depict an imminent threat, the officers testified that they acted in accordance with their training and only fired because the suspect, who held a knife in each hand, seemed “within arm’s reach” of another cop (he was really about ten feet away) and was about to attack. Criminal charges were ultimately dropped. One officer retired and the other was fired.

     Two months later a white North Charleston, SC officer on trial for murder drew a hung jury despite a video that clearly depicted him repeatedly shooting an unarmed, fleeing black man in the back. The cop, Michael Slager, avoided retrial by pleading guilty to Federal civil rights charges.

     And who can forget that “Very Rough Ride”, when Baltimore police shoved a hog-tied Freddie Gray into a paddy wagon and transported him unrestrained through city streets, causing Gray to suffer fatal injuries as he bounced around the vehicle’s interior. Three officers (including a Lieutenant) were ultimately taken to trial. All were acquitted.


     Such outcomes shouldn’t be surprising. A recent Frontline investigation concluded that citizen members of civilian review boards “may sometimes be overly deferential to the police because they don’t have sufficient background in law enforcement.”

     It’s precisely that “deference” that the LAPD officers’ union apparently wishes to exploit. In La-La Land (Los Angeles, to the non-musically inclined) the Chief of Police doesn’t have the final word on officer discipline. City Charter section 1070 assigns the responsibility of adjudicating allegations that could lead to suspension, demotion or termination to Boards of Rights. Akin to military courts-martials, they have been comprised of two command officers and one civilian “Hearing Examiner” and decide cases by majority rule.

     So how have the “civilians” ruled? An impartial review of BOR findings between 2011-November 2016 revealed that non-officer members “were consistently more lenient than their sworn officer counterparts.” Each time that a cop was found guilty civilians voted for a reduced penalty, and whenever the Chief recommended termination but an officer was acquitted civilians were always on the majority side.

Click here for the complete collection of use of force essays

     These civilians aren’t ordinary folks. Applicants for the paid, part-time position must have at least seven years of experience in arbitration, mediation, administrative hearing or comparable work. Still, they’re not cops, and they know it. That’s why the officer union has long pressed to let officers accused of misconduct be tried by civilians alone. To do just that an obliging City Council (after all, they must get campaign funds from somewhere) inserted Measure “C” on the May 2017 ballot. Outraged members of liberally-minded interest groups, including the ACLU, saw the move as tailor-made to tilt the scales in favor of accused cops and demanded that the council reverse itself. But council president Herb Wesson (his image graced a “Yes on C” flyer) and his colleagues demurred, and the measure passed by a comfortable margin. Officers will soon have the choice of being tried by the conventional two-officer, one civilian BOR or one with three civilian members.


     Like other complex crafts, police work is probably best evaluated by its practitioners. None of the jurors in Officer Shelby’s case was or presumably had been a cop. Neither did they receive an expert analysis of what took place. As the foreperson’s letter suggests, had such testimony been heard the outcome might well have been different:

    The Jury, without knowledge of the guidelines learned through law enforcement training, believes that a Taser attempt to subdue Mr. Crutcher before he reached his vehicle could have saved his life and that potential scenario was seemingly an option available to her; however, there was no evidence presented that her extensive training allowed such an option. The Jury could not, beyond a reasonable doubt, conclude that she did anything outside her duties and training as a police officer in that situation….

     We’re not aware of any protocols that encourage cops to pull the trigger simply because they fear that someone who is not suspected of having committed a violent crime and is not being assaultive may be reaching for a gun that’s not in view. Still, lacking expert advice, the complexities of street encounters might lead even the best-intentioned jurors to endorse actions that most cops would never take. As we’ve repeatedly pointed out, officers routinely resolve even the most problematic encounters in non-lethal ways. Doing so, of course, may call for taking a calculated risk, something that Officer Shelby may have been reluctant to do. She is now back on the job, although no longer on patrol.

     Juries’ reluctance to convict cops will be tested in two other cases presently wending their way through the courts. Two years ago a white Ohio campus cop was indicted on murder and manslaughter charges for the “senseless, asinine shooting” (the prosecutor’s words) of a black driver during a traffic stop. Although the incident, which was captured on the officer’s body cam, began routinely enough, the vehicle’s operator suddenly tried to drive away, throwing the cop off balance and leading him to fire. The first trial ended with a hung jury, and a retrial is pending. (See 6/24/17 update)

     In “A Stitch in Time” we wrote about the killing of Deborah Danner, a 66-year old schizophrenic who took a baseball bat to a NYPD sergeant who entered her bathroom to calm her down. Sgt. Hugh Barry, 31, shot the woman dead. His actions brought forth a wave of citizen protests and condemnation by the Mayor and Police Commissioner, who criticized his failure to deploy a Taser or wait for a mental health unit as departmental guidelines apparently require. Seven months later, on May 31, 2017, a Bronx grand jury returned a true bill charging Sgt. Barry with murder and manslaughter.

     If these (in our measly opinion, clearly inflated) cases proceed as is, their severe tone – remember, we’re talking murder – may indeed lead to a conviction, if nothing else by setting the stage for a compromise verdict on manslaughter. That’s not the way we would prefer that justice get done, but in these hyper-political times getting jurors to go against the grain has apparently become two ambitious prosecutors’ Job #1.

UPDATE (7/18/17): Hamilton County D.A. Joseph Deters announced that former university cop Raymond Tensing will not be retried. But he called criticism that he overcharged the case “idiotic.”

UPDATE (6/24/17): Marking a second mistrial, Cincinnati jurors were “almost evenly split” as they failed to reach a decision in the case against former university cop Raymond Tensing for shooting and killing a motorist who tried to drive off while the officer was standing at the driver’s door.

UPDATE (6/22/17): In August 2016 a police officer patrolling a tough Milwaukee neighborhood shot and killed an armed man who fled on foot from a traffic stop (see “Getting out of Dodge”). Days of raucous demonstrations followed. Prosecutors charged Officer Dominique Heaggan Brown with reckless homicide. On June 21, 2017 the officer was acquitted.

UPDATE (6/16/17): Jurors acquitted St. Anthony (Minn.) officer Jeronimo Yanez in the shooting death of Philando Castile (see “Is It Always About Race?”). Officer Yanez had faced charges of manslaughter and reckless discharge of a firearm.

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Why Do Cops Succeed?     Is it Always About Race?     Intended or Not, a Very Rough Ride

A Stitch in Time     Three Perfect Storms     Getting Out of Dodge



Posted 2/11/17

AN ILLUSORY “CONSENSUS” (Part II)

Good intentions don’t always translate into good policy

     By Julius (Jay) Wachtel. This series compares use of force guidelines promulgated by PERF and the National Consensus to police regulations in Los Angeles, Chicago and New York City. Part I covered two key concepts: proportionality and de-escalation. In Part II we analyze specific rules that govern the use of lethal force, including shooting at vehicles and at fleeing suspects, and discuss agency guidelines for dealing with the mentally ill.

Lethal force

     Graham v. Connor, the Supreme Court’s landmark decision on use of force, makes no special distinction as to deadly force. According to Graham, “whether officers’ actions are objectively reasonable” must be analyzed “in light of the facts and circumstances confronting them,” using “the perspective of a reasonable officer on the scene.” These “facts and circumstances” include “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”

PERF: Principle 3 is a commonsensical rule that prohibits using deadly force against persons who only pose a threat to themselves. PERF does not otherwise distinguish as to lethal force. Throughout, its emphasis is on de-escalation and other strategies that can help avert the need to use force against persons not armed with a firearm.

National Consensus: Adopts Graham. Allows officers to use deadly force to protect themselves and others from an imminent threat of death or serious bodily injury. (See below for circumstances involving fleeing persons.)

LAPD: Its basic rule does not distinguish between deadly and non-deadly force and sets the threshold for using force as the need to protect oneself or others from “bodily harm.”

    While the use of reasonable physical force may be necessary in situations which cannot be otherwise controlled, force may not be resorted to unless other reasonable alternatives have been exhausted or would clearly be ineffective under the particular circumstances. Officers are permitted to use whatever force that is reasonable and necessary to protect others or themselves from bodily harm. (240.10)

Chicago (draft policy): Similar to LAPD rule but specifically refers to “proportionality” (see Part I of this series):

    Consistent with the Department's commitment to the sanctity of life, the Department member's use of deadly force must be objectively reasonable, necessary, and proportional. During all use of force incidents, Department members will apply the force mitigation principles and use the least amount of force required under the circumstances. (sec. II-F-2).

Chicago’s standing policy on the use of deadly force, which apparently remains in effect, stipulates that officers “will not unreasonably endanger themselves or another person to conform to the procedures in this directive” (Order G03-02-03, sec. IV). No such reference appears in the newer, draft policy.

NYPD: https://www1.nyc.gov/assets/ccrb/downloads/pdf/investigations_pdf/pg221-01-force-guidelines.pdf Encourages de-escalation but otherwise parallels the language of the National Consensus:

    In situations in which [using de-escalation techniques] is not safe and/or appropriate, MOS [member of the service] will use only the reasonable force necessary to gain control or custody of a subject. The use of deadly physical force against a person can only be used to protect MOS and/or the public from imminent serious physical injury or death (pg. 1).

Shooting at vehicles

PERF: Rule#8 prohibits shooting at vehicles unless an occupant is “using or threatening deadly force by means other than the vehicle itself.”

National Consensus: Permissible if an occupant of the vehicle is threatening with deadly force “other than the vehicle” (sec. D-3-c-1) or if the vehicle is being used as a weapon and officers lack other “present or practical” means to avoid being struck (sec. D-3-c-2).

LAPD: Follows the PERF model but opens the possibility of permissible departures with a note that concedes “this policy may not cover every situation that may arise.” In such cases factors such as the level of peril and whether officers had other means to avoid being harmed will be considered, but deviations “shall be examined rigorously” (sec. 556.40).

Chicago (draft policy): Essentially adopts the National Consensus approach. No firing at vehicles if they are the only force being used unless doing so is “reasonably necessary” to prevent death or great bodily injury to officers or other persons (order G03-02, sec. II-F-6-f).

NYPD: Its highly restrictive rule, apparently a model for PERF, has been in place for years:

    Members of the service SHALL NOT (f) Discharge their firearms at or from a moving vehicle unless deadly physical force is being used against the member of the service or another person present, by means other than a moving vehicle (proc. 221-01, page 3, sec. 1-f).

Click here for the complete collection of use of force essays

     NYPD’s 2013 firearms discharge report notes that state law is more forgiving, allowing officers “to shoot at the driver of a vehicle who is using the vehicle so that it poses an imminent threat of deadly physical force” (pg. 3). But whether NYPD actually enforces its own, strict rule is open to question. This report - they are issued yearly - lists four ID-AC (“intentional discharge-adversarial conflict”) incidents in which officers were assaulted with moving vehicles classified as “blunt instruments” (pg. 22.) None of these events appear on that year’s list of unauthorized firearm discharges (pp. 43-44). NYPD’s discharge reports for 20122014 and  2015 paint a similar picture.

Shooting at fleeing suspects

PERF: Not mentioned.

National Consensus: Allows it to prevent flight (need not be a felon) “when the officer has probable cause to believe that the person has committed, or intends to commit a felony involving serious bodily injury or death, and the officer reasonably believes that there is an imminent risk of serious bodily injury or death to the officer or another if the subject is not immediately apprehended” (sec. IV-D-1b)

LAPD: More restrictive than National Consensus, requiring both an imminent risk and that the person fleeing is a felon “for a crime involving serious bodily injury or the use of deadly force” (sec. 556.40).

Chicago (draft policy): More permissive than the National Consensus or LAPD. Requires only that “the sworn member reasonably believes that the person to be arrested poses an immediate threat of death or great bodily harm to a sworn member or another person unless arrested without delay” (order G03-02, sec. II-F-4-b).

NYPD: Similar to LAPD – fleeing suspect must be a felon (offense not specified) and present an imminent threat of “death or serious physical injury to the MOS [member of the service] or another person present” (proc. 221-01, page 3, sec. 1-c). A foreword notes that this and other rules are more restrictive than what the law requires:

    Uniformed members of the service are authorized under New York State law to discharge a firearm to prevent or terminate the unlawful use of force that may cause death or serious physical injury, taking into account the below prohibitions imposed by the Department…(proc. 221-01, page 2, sec. 1)

Dealing with the mentally ill

PERF: Extensive discussion of the need for officer training and specialized responders. Officers are encouraged to dialog with mentally ill, take the time to call in specialists, and to avoid deploying Tasers against mentally ill persons armed only with a knife unless the instrument is being wielded “in an aggressive, offensive manner” (p. 19).

National Consensus: Not mentioned.

LAPD: Rules mention a commitment to fair, compassionate treatment (sec. 240.30). LAPD deploys mental illness response teams staffed by officers and clinicians.

Chicago (draft policy): Officers are required to communicate calmly, de-escalate, establish a “zone of safety” and call for a supervisor. When mentally ill persons are armed “Department members will not attempt to take the subject into custody without the specific direction of a supervisor unless there is an immediate threat of physical harm to the subject, Department members, or others” (order S04-20-01, sec. II-B-1). As in L.A. and New York, specialized mental health response units are on call.

NYPD: Extensive stand-alone policy similar to Chicago’s. Stipulates that deadly force can only be used “as a last resort to protect the life of the uniformed member of the service assigned or any other person present.” Extensive tactical advice with emphasis on slowing things down, establishing a “zone of safety” and, when persons are uncooperative or armed, waiting for a supervisor unless there is an imminent threat of serious physical injury or death (proc. 221-13, sec. 1, pg. 1).


     As we mentioned in Part I, PERF’s well-articulated intentions to restrict the use of force well beyond Graham’s “objectively reasonable” standard dismayed the IACP. Indeed, honorable intentions don’t always translate into good policy. Consider PERF’s criticism of officers who used a Taser to dislodge a schizophrenic clinging to a signpost (Guiding Principles, pg. 18). The man died, likely from the effects of being shocked five times in quick succession. In prior posts (click here and here) we cited warnings about the possibly lethal effects of administering repeated ECW doses in close succession. PERF’s 2011 report on electronic control weapons carries a similar warning. What’s interesting here is that a Federal appeals court ruled in a lawsuit filed by the schizophrenic man’s survivors that the officers violated Graham for too hastily deploying the device in the first place. In its full-page spread on the matter, PERF prominently agreed. (The cops were nonetheless granted qualified immunity.)

     Yet one must wonder. In “Is it Always About Race?” we suggested that delaying a Taser’s deployment could lead to something far worse:

    Incidentally, our vision of Tasers and bean-bags as preventive tools probably clashes with some agency guidelines. Bringing down an uncooperative someone with a less-than-lethal weapon is best done the instant it’s possible. Waiting for additional justification can turn into a death warrant. So reworking the rules governing the use of less-than-lethal force may be called for.

Had the officers dealing with the mentally ill man succeeded after administering a single dose, their actions would have been applauded. Yet who catalogs successful outcomes?

     The “real world” is sloppy in other ways. Point in case: shooting at vehicles. Imagine being a cop on foot as an uncooperative bad guy sits in a car nearby with the engine idling. Always avoid placing oneself in a vulnerable position? Then by all means avoid law enforcement. Agencies write in endless “imminent risk” exceptions so that use of force rules can bend to the exigencies of the real world. Or, as may be the case in New York City, they look the other way when cops fire at vehicles.

     Of course, rules have value. Yet the ultimate cure is prevention. In “A Stitch in Time” we urged that officers be kept informed about persons in mental distress. PERF Principle number 29 deems well trained, informed call-takers and dispatchers indispensable (pg. 68):

    A number of controversial uses of force by police have stemmed from failures of call-takers and dispatchers to obtain, or relay to responding officers, critically important information about the nature of the incident.

The Center for Problem-Oriented policing recommends that police departments make information about mentally disabled persons available to dispatchers so it can be passed on to patrol. Of course, doing so is potentially intrusive, but as we’ve said, so is shooting someone, or getting shot.

     We should also be far more curious about successes. Every day cops peacefully resolve countless incidents that could have ended poorly. Systematically collecting data about these events could prove highly enlightening. How do differences in policy, resources, tactics and officer characteristics influence outcomes? In “Is it Always About Race?” we suggested that policing requires that officers accept some risk. How much is too much, and how much is not enough? Figuring out why cops succeed seems like a far better approach to improving the practice of policing than simply tweaking the rulebooks.

     So what do you think? Your blogger would like to craft a follow-up piece to Parts I and II that focuses on what readers think. Please send on your comments to jay [at] policeissues [dot] com. And thanks!

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UPDATE (5/21/17): Chicago PD’s use of force policy has been finalized. Its rules on using deadly force are essentially the same as in the draft. Deadly force is only appropriate as a “last resort” to prevent “death or great bodily harm from an imminent threat posed to the sworn member or to another person” or to effect an arrest “where the person to be arrested poses an imminent threat of death or great bodily harm to a sworn member or another person unless arrested without delay” (Sec. G03-02 Sec. III-C-3.) Rules on firing at fleeing suspects (Sec. G03-02 Sec. III-C-4) and at vehicles (Sec. G03-02 Sec. III-D-6)  follow this rationale and are also essentially the same, with the proviso that officers must “make every effort” to avoid vehicles when they are the only force being used.

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Why Do Cops Succeed?     More Rules, Less Force?     De-escalation    Is it Always About Race?

A Stitch in Time     Policing is a Contact Sport (I) (II)     First, Do No Harm     Making Time



Posted 1/29/17

AN ILLUSORY “CONSENSUS” (Part I)

America’s police leaders agree on the use of force. Or do they?

     By Julius (Jay) Wachtel. You might have missed it, but about two weeks ago, on January 17, eleven of the nation’s major law enforcement organizations, including the IACP, FOP and NOBLE, issued a “National Consensus Policy on Use of Force.” Intended for adoption by all law enforcement agencies, the model policy provides a comprehensive set of guidelines for the use of force, and in an economical three pages, to boot.

     We’ll get to its contents momentarily. But while skimming the policy’s impressive list of sponsors, we noticed the absence of two key organizations, the Police Foundation and the Police Executive Research Forum (PERF). Interestingly, right about the time that the National Consensus team got started, PERF released its own “Guiding Principles on Use of Force.” Drawing from police practices and experiences in the U.S. and the U.K., the comprehensive (100-page plus) report offered thirty principles to “guide” virtually everything related to the use of force, from agency policy to the actual tactics that officers employ in the field.

     As regular readers know, we commented on that document in some detail (see “More Rules, Less Force?”). Its lukewarm reception by the more practically-minded members of the law enforcement community was seconded by none other than the mighty IACP, which was particularly distraught with the Principles’ criticism of the Supreme Court’s cornerstone decision on use of force, Graham v. Connor, for supposedly giving officers too much leeway in deciding when to use force, and how much.

     Indeed, it’s precisely that perceived need for “wiggle room” that lies at the core of the shiny, new “National Consensus” report. Here is about two-thirds of its introductory section on police policy:

    The decision to use force “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” In addition, “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight…the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.”

Incidentally, everything in quotes is from Graham.

     In essence, PERF and the Police Foundation are pressing for more stringent and precisely articulated controls on officer use of force, while the IACP and its partners (including NOBLE, the National Organization of Black Law Enforcement Executives) insist the Supremes had it right all along. So how have these competing views affected police rulemaking? Part I compares recommendations from PERF and the National Consensus to rules in Los Angeles, Chicago and New York City in two key areas: proportionality and de-escalation.

Proportionality

PERF: Principle number 3, the “test of proportionality,” requires that officers use the least amount of force required, taking into account “less injurious options,” the “severity of the threat and totality of the circumstances” and whether their actions “will be viewed as appropriate by their department and the public.

National Consensus: Use of force must meet the requirements of Graham, interpreted as “only the force that is objectively reasonable to effectively bring an incident under control, while protecting the safety of the officer and others.” Proportionality and what others might consider appropriate aren’t discussed.

LAPD: Essentially the same as National Consensus. According to vol. 1, sec. 240.10 of the LAPD Manual, when “reasonable alternatives” are absent, officers may employ “whatever force that is reasonable and necessary to protect others or themselves from bodily harm.” There is no mention of proportionality or of any concerns about what citizens may think.

Chicago (draft policy): Adopts Graham and takes it a step further, requiring that deadly force be “objectively reasonable, necessary, and proportional” (draft manual, section G03-02 IIE – emphasis ours). But the practical effect of “proportional” is somewhat muted, as officers need not deploy “the same type or amount of force” as their antagonist, and “a greater level of force” is acceptable when a threat “is immediate and likely to result in death or serious physical injury.”

NYPD: Does not mention “proportionality.” However, its policy manual incorporates actions such as slowing things down and giving time for help to arrive within the rubric of de-escalation (see discussion below). NYPD’s explicit force policy, however, seems like a succinct version of Graham: “Apply no more than the reasonable force necessary to gain control.” (Procedure 221-02, #11.)

De-escalation

For a recent Police Issues post on point see “More Rules, Less Force?

PERF: Principles #4 and #17 identify de-escalation as a central, indispensable component of police policy and practice. As a comprehensive approach to defuse encounters, it incorporates a variety of concepts and strategies including proportionality, “slowing things down,” distance and cover, and proper communications.

Click here for the complete collection of use of force essays

National Consensus: Defines de-escalation as a collection of techniques (command presence, advisements, warnings, verbal persuasion and tactical repositioning) that can reduce or minimize the use of force. While de-escalation (or at least, considering it) is required, officers have wide latitude in deciding whether to use de-escalation techniques. For example, section IV B-1 directs that de-escalation “shall” be used “when consistent with training whenever possible and appropriate.” Section B-2 instructs that persons be given time to obey directions if the delay “will not compromise the safety of the officer or another and will not result in the destruction of evidence, escape of a suspect, or commission of a crime.”

LAPD: De-escalation is not mentioned in its manual (see update below.) However, officers receive instruction on de-escalation techniques during in-service training. Still, a move last year by the Police Commission to incorporate de-escalation into official policy met stiff resistance  Chief Charlie Beck conveyed his reservations diplomatically: “We absolutely believe in de-escalation. But we also recognize the difficulties of police work.” A police union official expressed his views more brusquely: “Every second counts, and hesitation will kill you. Your proposed revamping of the use-of-force policy will get officers killed, plain and simple.”

Chicago (draft policy): Chicago’s comprehensive draft rules on use of force identify a variety of de-escalation techniques (e.g., making time, keeping one’s distance) and mandate their use when doing so is possible. Again, there is abundant wiggle room. Rule II-G, for example, requires de-escalation “as soon as practicable.” Surprisingly, that apparently means after things settle down:

    2. [Officers must] de-escalate as soon as practicable. Once control of the subject has been
    obtained and the threat or resistance no longer exists (emphasis ours)
    , Department members will:
    a. de-escalate immediately.
    b. avoid the continued use of force.
    c. maintain control and be alert to any conditions that may compromise the
    security or safety of the subject.

NYPD: Its use of force rules (click here and here) offer detailed guidance. For example, Procedure 221-02 defines and distinguishes between “active” resistance, “passive” resistance and “active aggression.” Officers are repeatedly urged to seek help from supervisors and specialized units (NYPD is well-known for its Emergency Response Teams) when encountering difficult persons. That is where de-escalation fits in:

    DE-ESCALATION – Taking action to stabilize the situation and reduce the
    immediacy of the threat so that more time, options, and/or resources become
    available (e.g., tactical communication, requesting a supervisor, additional MOS
    and/or resources such as Emergency Service Unit or Hostage Negotiation Team,
    etc.) (221-02, pg. 1)

Officers nonetheless retain abundant leeway, with de-escalation required only “when appropriate and consistent with personal safety” (221-01 and 221-02, #2).

     In Part II we’ll compare rules governing the use of lethal force, including shooting at vehicles and fleeing suspects, as well as guidelines for dealing with the mentally ill. We will also have something hopefully useful to say about information practices (a seldom-mentioned issue addressed by PERF) and the difficulty of translating good intentions into good policy. Stay tuned!

UPDATE (5/21/17): Chicago PD’s use of force policy has been finalized. Its rules on proportionality(G03-02, III, 3) are essentially the same as in the draft. De-escalation rules give abundant wiggle-room and are worded similarly to LAPD’s new policy (see below.) “Members will use de-escalation techniques to prevent or reduce the need for force when it is safe and feasible to do so based on the totality of the circumstances.”

UPDATE (4/19/17): By unanimous vote the LAPD Commission formally incorporated de-escalation into the agency’s use of force policy, “using time, distance, communications, and available resources...whenever it is safe and reasonable to do so.” Click here for the Los Angeles Times article.

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