Use of Force

1. Use of Force

2. Use of force • Physical force used infrequently • Actual prevalence is uncertain asmuch policing is done in private • Officers may downplay or notreport • Citizens may not report or might exaggerate • Most use of force is at lower end of scale • Most use of force occurs during arrests • “Split-second syndrome” • An explanation or an excuse? • Police Issues “Making Time”

3. Police culture andofficer characteristics • Police culture • “Whatever it takes”, “Don’t back down” • Losing face • Many excessive force complaints involve personsalready in custody • Officers can fail to restrain or complain about colleagues • Race and ethnicity • Historical abuses of minorities and the poor • But -- research suggests that race and ethnicity of officers and suspects do not influence use of force • Belief that relatively few officers account for most of the use of force • “Violence-prone” officers: myth or reality? • Gender • Use of force more likely when officer and suspect are both males • Is social class important? • Nature of officers, antagonists and encounters in lower class areas

4. Law on use of force • Must act reasonably - actions cannot violate law or “clearly established” legal precedent • Graham v. Connor, 490 U.S. 386 (US Supreme Court, 1989) • Claims of excessive force are evaluated by the Fourth Amendment's "reasonableness" standard: were the officers' actions "objectively reasonable" in light of the facts and circumstances at the time? • The "reasonableness" must be judged from the perspective of a reasonable officer on the scene • There must be an allowance for the fact that police officers are often forced to make split-second decisions

5. LAPD use of force policy • Force may be used to... • Defend officer or others • Make an arrest or detention • Prevent escape • Overcome resistance • Force used must be “objectively reasonable” per Graham • Some factors to consider • Seriousness of crime • Level of resistance • Threat of suspect to officers and public • Potential of injury to officers, suspect & public • Presence of weapons • Relative physical attributes & level of exhaustion of officer and suspect

6. Use of force continuum LOW • Verbal commands • Use of hands, chemical agents INTERMEDIATE • Punching • Canine • Baton, impact weapons, less-than-lethal projectiles (i.e., rubber bullets, bean-bags) • Taser LETHAL • Any object or projectile of significant mass that forcefully strikes the head • Firearms

7. Less than lethal force

8. Kicking and punching • Are kicking and punching legitimate tactics? • Should they be? • If so, under what circumstances? • Were they necessary in these cases? • Do the videos provide sufficient info? • What other tools and techniques are available?

9. Inglewood incident • In July 2002 an Inglewood police officer wascaught on an amateur video slamming ahandcuffed black youth against a patrol carand punching him. • The youth had been arrested for allegedlyinterfering during a traffic stop of the car his father was driving. • Two white officers were tried. • One officer was acquitted of falsifying a police report and was reinstated. • Charges of assault against a second officer were dismissed after juries deadlocked twice (7-5 for conviction, then 6-6). The officer was fired. • A black officer was also disciplined. • Both white officers later won a lawsuit against the city for reverse discrimination and were awarded a total of more than $1.5 million. The city then sued the law firm it had retained to handle the case for incompetence. • In January 2010 DOJ demanded use of force reforms by Inglewood PD, calling its rules outdated and internal investigations deeply flawed

10. Videotaped Officer Won't Be ChargedThe decision was denounced by minority leaders and L.A. Mayor Hahn After a five-month review, the LA District Attorneyconcluded that there wasn't enough evidence tocharge Officer John Hatfield, who struck suspectStanley Miller 11 times with a 2-pound steel flashlightafter a June 23, 2004 car-and-foot chase in South L.A."In light of the totality of the circumstances facingOfficer Hatfield, we cannot establish beyond a reasonable doubt that [his] actions were without legal necessity," said Deputy D.A. Margo Baxter.Miller, who is black, was beaten on the ground after he appeared to surrender. The arrest, which was videotaped by television news helicopters, was compared to the 1991 beating of Rodney King. Hatfield, who is Hispanic, ran up and joined other officers who had pushed Miller to the ground at the end of a foot chase. Officer Hatfield was fired by LAPD Chief Bratton after a three-officer police board of rights found that the one kick, 11 flashlight blows and five knee blows demonstrated that the officer was “at best, out of control.” Chief Bratton said this type of flashlight would be “phased out. In November 2006 Miller’s civil rights lawsuit was settled by Los Angeles for $450,000.

11. Officers often respondemotionally • Appearances are important • What we can realistically expect? • From officers? • From citizens? • Are there limits to training and rulemaking? • Uncertain and threatening environment • Impact of chases and critical incidents • Dispassionate oversight is often required • Supervisors can’t do their jobs if they’re (a) unavailable or (b) always want to be liked • Command staff must be present whenever there is the possibility of a confrontation between officers and multiple citizens 2009 New School sit-in

12. Birminghamincident • On 1/23/08 a man being questionedabout drug dealing by Birmingham(Alabama) police took off, leadingofficers on a long chase. One copwas struck and injured. • After 22 minutes the suspect’s vehicle rolled. The man was ejected and knocked unconscious. Five officers pounced on him, kicking and beating him with a club and fists. • The suspect pled guilty to felony assault and is serving a ten-year term. The beating was covered up for over a year. On May 19, 2009 five officers were fired for unnecessary and excessive force and face prosecution. Other officers who helped in the cover-up also face discipline.

13. El Monte incident • On 5/13/09 El Monte PD pursued a vehiclethat did not yield for a traffic stop. It wasoccupied by three gang members. • During a slow-speed part of the chase oneof the gang members exited the vehicle and gave himself up. The others remained in the car until it crashed some time later into a parked car. The passenger surrendered; the driver, Richard Rodriguez, a parolee at large, ran off. • Rodriguez was eventually cornered and lay down. Newscopter video depicts an El Monte police officer, gun drawn, approaching Rodriguez. The officer kicks Rodriguez for no obvious reason, striking him in the head. Other officers then arrive and Rodriguez is handcuffed. • Police Issues “Kicking a Suspect When He’s Down”

14. Taser spurs two opinions --are they contradictory? • Bryan v. McPherson & Coronado P.D. (9th. Circuit, no. 08-55622, 12/28/09) • Shortly after getting a speeding ticket a young man was pulled over for not wearing a seat belt. He was wearing nothing other than boxer shorts. • He stepped outside his car. He was clearly agitated but not threatening anyone. From about 20 feet away a police officer ordered him back into the car. When he didn’t the officer fired a Taser without warning. The man fell and was injured. • The man sued under 42 USC 1983. The District judge ruled that the officer was not entitled to qualified immunity because a reasonable officer would know that the force (Taser was called “intermediate”) was clearly excessive. The Ninth Circuit agreed. • Mattos v. Agarano (9th. Circuit, no. 08-15567, 1/12/10) • Officers responded to a family fight. They encountered a drunk husband and a sober wife. When they stepped in to arrest the husband, the wife wound up in the middle. • The arresting officer bumped against the wife. She raised her palms to keep the officer away, touching him in the process. The officer stepped back and tased her. • The man and wife sued under 42 USC 1983. The District judge denied qualified immunity and let the case to go forward. The Ninth Circuit overruled, saying that under the circumstances and close quarters the use of force was reasonable.

15. Deadly force

16. Justifiable homicide generally • California Penal Code, sec. 196, homicide by public officers • When necessarily committed in overcoming actual resistance to execution of legal process, or in the discharge of a legal duty • When necessarily committed in retaking felons who have escaped, or when necessarily committed to arrest persons charged with felony, and who are fleeing or resisting • California Penal Code, sec. 197, homicide by any person • When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person • When necessary to arrest for a felony, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace • BUT: Tennessee v. Garner, 471 U.S. 1 (US Supreme Court, 1985) • Cannot use deadly force to apprehend escaping suspects unless they pose a threat of serious injury to the officer or other persons

17. LAPD policy on using deadly force • Protect officers or others from imminent threat of death or serious bodily injury; or, • Prevent a crime that poses imminent jeopardy of death or serious bodily injury; or,  • Prevent the escape of a violent fleeing felon if there is probable cause to believe the escape will pose a significant threat of death or serious bodily injury to the officer or others • Attempt must be made to avoid injuring or killing innocent persons • Warning shots require exceptional justification • No shooting from or at moving vehicles except in immediate defense of life • Getting out of the way is the best response

18. US DOJ policy on use of deadly force:Fleeing suspects “Deadly force may be used to prevent the escape of a fleeing subject if there is probable cause to believe: (1) the subject has committed a felony involving the infliction or threatened infliction of serious physical injury or death, and (2) the escape of the subject would pose an imminent danger of death or serious physical injury to the officer or to another person.” Armed carjacker pursued by several agencies. He bails out, runs away, is pursued by a police officer on foot. Officer shoots and kills the suspect, whom he said turned at him a pointed the pistol. The weapon is recovered at the scene.

19. Some situations are ambiguous Parolee suspected in jewelry thefts drives off with associate as plainclothes deputies prepare to serve a search warrant at his residence. Deputies chase parolee, shoot and kill him when he bangs up police cars and refuses to surrender. Passenger is arrested. He allegedly tells police that he and the driver knew it was the cops. Passenger later became a suspect in the thefts and a fugitive. L.A. Times, 12/9/05

20. Information processing inrapidly shifting situations • Constraints on decision-making • Confusion and uncertainty • Fear and excitement • Limited information • Lack of time to gather and analyze information, review options and make an informed decision • Police Issues: “Making Time” Could deadly force have been used? Should it have been used? If so, at what point(s)? What would be the justification?

21. Three NYPDdetectives indicted • On 11/25/06 five NYPD detectives, two white and three black, shot 50 rounds at a vehicle occupied by three unarmed black men, killing Sean Bell, a 23-year old man on his wedding day, and seriously wounding his companions. • One detective fired 31 shots, reloading once. The detectives, members of a night club squad, thought that one or two of the men were armed and that a shot had been fired. • Officers approached the car and ordered the men to exit. Instead the driver, Sean Bell, gunned it forward, striking an officer in the leg and a police van. Bell was legally drunk. • Two officers were indicted for manslaughter, one for reckless endangerment. • In April 2008 the officers were tried by a judge and acquitted. The judge said that he did not believe the victim’s witnesses, in part because they had records and had changed their stories.

22. LAPD Shooting ofDevin Brown • On 2/6/05 an LAPD officer shot and killedDevin Brown at the end of an early-morningpursuit. The 13-year old was driving a stolencar while under the influence of alcohol or drugs. • After stopping Brown jammed his car in reverse and backed up, striking the police car. • The officer said he fired because he thought that Brown was trying to crush him. A late-coming witness said that the officer, who had exited his car, was nearly “sandwiched”, leapt out of the way at the last moment and instantly began firing. • On 12/5/05 the L.A. County DA issued a detailed report on the incident. The DA refused to charge the officer, concluding that his use of force was not unreasonable under the circumstances. • The shooting was later determined to be “in policy” by Chief Bratton, who said the officer was defending himself. But Chief Bratton was overruled by the L.A. Police Commission, which determined the shooting was unnecessary.  

23. Chief Bratton and the PoliceCommission disagree • Chief Bratton ruled that the shooting was consistent with department policy, which allows officers to shoot at a vehicle if it presents an immediate danger. The D.A. declined to file charges against the officer. • Later, on 1/31/06, the LA Police Commission voted 4-1 that the officer who shot Devin Brown violated departmental policy. It based its decision on a reconstruction showing that the rounds entered the car at an angle, placing the officer to its side. • John Mack was appointed Chairperson of the Commission after the shooting. A “civil rights activist and long-time LAPD critic,” he had already criticized the officer’s actions.

24. Airman shot by San Bernardino deputy On January 29, 2005 a 21-year old passenger wasshot by a SBSO deputy after the vehicle he wasin crashed during a pursuit. Witnesses say that a deputy ordered Elio Carrion,21, an Air Force security officer, to the groundand that Carrion complied. There is confusionabout what happened later, but a grainy videotapemade by an onlooker suggests that Carrion wastold to get up. When he did so, the deputy fired,striking Carrion three times. Carrion will recover. The videotape recorded Carrion’s pre-shooting comments that he was “on the deputy’s side”, expletives shouted by the deputy, and Carrion’s protests after he was shot that he was complying with the deputies. Deputies were trying to stop the Corvette for speeding. Its driver has an extensive driving record. Neither he nor Carrion were armed or wanted. The officer, Deputy Ivory Webb, was tried for attempted voluntary manslaughter. He was acquitted. During trial an expert defense witness gave examples of officers behaving oddly during a crisis: “Their analytical process began to collapse. They had so much to do that, literally, they were overloaded.”

25. “Contagion” shootings

26. Riverside PD shootingof Tyisha Miller • In December 1998 four Riverside PD officersresponded to a citizen in distress call. Theyfound a black 19-year old woman in thedriver’s seat of a parked car, foaming at themouth and apparently unconscious. A handgun was in her lap. • The car was locked and the officers couldn’t get the woman to respond so they decided to break in. As they tried the woman suddenly woke up. One or more officers thought that she went for her gun and fired. So did the others. In all they fired 24 rounds. Half struck the woman, instantly killing her. • The shooting provoked great anger. The four officers were fired along with their Sergeant, who made inappropriate comments about black persons. • The D.A. refused to prosecute. The California Atty. General had Riverside PD placed under court supervision to improve training, tactics and equipment. Steps were taken to improve community relations. A new chief was hired. • Each officer sued. Three were reinstated and given disability retirements. The other two, both probationers, were not reinstated.

27. L.A. County Sheriff’sDept., Compton • On May 9, 2005 LASD deputiesapproached the victim’s vehicle whileinvestigating a shots fired call. • The victim, a multi-convicted felon who was unarmed but on drugs, panicked and led officers on a slow-speed chase through a residential area of Compton. • His path blocked, the victim tried to drive around a police car while a dozen deputies approach on foot. They opened fire -- each deputy said he was protecting another from being potentially run down. • Ten deputies fired a total of one-hundred twenty shots were fired by ten deputies. Nine struck the victim. Sixty-six struck his vehicle. Eleven hit other deputies’ vehicles. Eleven struck residences. • Sheriff Baca disciplined the deputies for their uncontrolled fire. • A civil jury awarded the victim $1,326,468 for excessive force.

28. Police Pursuit

29. Police Pursuit • Hurtling down the street in a 4,500 pound block of steel is a use of force. • It differs from other uses of force in its potential effects on innocent persons. • Can this particular use of force ever be “reasonable”?

30. Eight dead in Dinuba • On 8/8/09 Dinuba police tried to pullover a Dodge Neon with threeoccupants for a traffic infraction. • The vehicle sped away, with police in pursuit. The chase left the city and entered rural roads. The truck blew two stop signs. At the second it collided with a pickup truck carrying a family of two adults and four children ages 1 - 7. None of the children were secured and all were ejected. • All three occupants of the Dodge Neon were killed, along with the four children. One adult occupant of the truck was killed and the other was left in critical condition. • It turns out that the Dodge Neon had been carjacked the previous evening.

31. Pursuit policies • USA Today (4/23/10) In 2008, 334 persons, including 94 bystanders, were killed in police pursuits according to the NHTSA. • No systematic nationwide tally; crashes after police stop aren’t counted • Pursuit policies around the country vary greatly • LAPD (relatively permissive policy) • Nature of crime • Can pursue misdemeanor and felony suspects trying to avoid arrest • Cannot pursue solely for an infraction or misdemeanor evading or reckless driving • Other considerations • Seriousness of offense in terms of community safety • Risk to public by pursuing • Traffic, weather • Can violator be apprehended later? • Field units must assume secondary role when air unit arrives

32. Pursuit policies (cont’d) • New Jersey (relatively restrictive policy) • Nature of crime • Serious crimes punishable by at least five years in prison, OR • Person poses an immediate threat to the safety of police or the public • No pursuit for traffic violations unless meets the “threat” requirement • Other considerations • Road and weather conditions • Likelihood of capture without pursuing • Degree of risk to the public by pursuing • Must terminate pursuit if... • Ordered by a supervisor • Unreasonable danger to police or public • Violator has been identified and can arrest later