Memo Re Changes To LVMPD Use Of Force Policy V2

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AmericanCivilLibertiesUnionofNevadaAMERICAN CIVILLIBERTIES UNIONOF NEVADA601 S. RANCHO DRIVESUITE B11LAS VEGAS, NV 89106P/ 702.366.1536F/ 1325 AIRMOTIVE WAYSUITE 202RENO, NV 89502P/ 775.786.1033F/ ranzEspanolLegalIntern1

I.INTRODUCTIONOn January 13, 2012, the American Civil Liberties Union of Nevada (“ACLU”)submitted a petition to the U.S. Department of Justice (“DOJ”) requesting for a “patternsand practices” investigation of the Las Vegas Metropolitan Police Department(“LVMPD”). Consistent with the ACLU’s petition, the ACLU reviewed the LVMPD’sUse of Force Policy (“LVMPD Policy” or “Policy”) with the goal of improving thePolicy and preventing the unreasonable use of force by LVMPD officers. The ACLUreviewed use of force policies from various police departments and law enforcementagencies in Los Angeles, Denver, Louisville, Portland (Oregon), Philadelphia, andWashington DC in order to recommend substantive revisions to the LVMPD Policy. TheACLU also reviewed policy recommendations from the International Association ofChiefs of Police and the Police Assessment Resource Center—a non-profit organizationthat works with “monitors, law enforcement executives, civic and government officials,community groups, and other interested constituencies, [to] strengthen police oversight.”1After careful review of the LVMPD Policy and the other policies from aroundthe nation, the ACLU concluded the following: In contrast to many police departments and law enforcement agenciesaround the nation, the LVMPD Policy fails to emphasize the importanceof human life above the use of force. The LVMPD Policy does not provide officers with specific and adequatedirectives on the proper use of force.12Seehttp://www.parc.info/about SpecialLitigationSection,UnitedStates2

LVMPD’s failure to provide its officers with adequate directives maylead officers to use force inappropriately and excessively.Pursuant to these conclusions, the ACLU has summarized its findings andrecommendations to improve the LVMPD Policy and ensure that LVMPD comports withnational standards regarding the prevention, evaluation, and management of excessiveuse of force. This is the first of two memoranda that the ACLU will submit to LVMPD.The ACLU will submit a second memorandum detailing the flaws of the LVMPD’s “PostUse of Force Procedures”—LVMPD’s procedures regarding the reporting andinvestigation of use of force incidents. Furthermore, LVMPD has expressed that thePolicy is currently being revised. The ACLU’s recommendations should be helpful in therevision process. The ACLU is committed to providing LVMPD with any resources itmay need to revise the Policy.II.RECOMMENDATIONS TO THE LAS VEGAS METROPOLITAN POLICEDEPARTMENT’S USE OF FORCE POLICYA. Preamble or Mission StatementGenerally, a police department’s “use of force policy should begin with apreamble or general [mission] statement setting forth the police department's basicdoctrine on use of force.”2 The purpose of a preamble or mission statement is to“communicate both to the community and to police officers that the preservation justice.gov/crt/about/spl/documents/inglewood pd Jail findlet 12- ‐28- ‐09.pdf.3

human life is at all times a central tenet of the police agency.”3 A vast majority of policedepartments including the Los Angeles Police Department, Philadelphia PoliceDepartment, and Louisville Metro Police Department have a preamble or missionstatement in its respective use of force policies.4The LVMPD currently has an introduction section within the Policy that explainsthe Policy’s “purpose” and the “law” on the use of force.5 However, the Policy does nothave a preamble or mission statement that appropriately requires LVMPD officers tovalue the protection of human life above the use of force. Specifically, the Policy states:I.PolicyThe purpose of this Order is to explain the law and thisagency’s policy on the use of force. This explanationwill give members the information necessary to performtheir duties confidently and wisely, without subjectingthemselves to criminal or civil liability or to negativeadministrative repercussions. To avoid repetition, and toaid in understanding the LVMPD’s universal policy,procedures regarding force are grouped in subsequentsections of this Order. Specific policies regarding certainweapons, tactics, or practices are addressed in relevantsections.6The Policy’s introduction also fails to instruct LVMPD officers that the use of deadlyforce is an extreme measure to be employed only in the most limited and extraordinary ofcircumstances.3ThePortlandPoliceBureau:Officer- ‐InvolvedShootingsandIn- gust2003,at25.4Id.at25- 12).6Id.4

In contrast to the LVMPD Policy, the Los Angeles Police Department (“LAPD”)sets forth the following preamble in its use of force policy:PREAMBLE TO USE OF FORCE. The use of forceby members of law enforcement is a matter of criticalconcern both to the public and the law enforcementcommunity. It is recognized that some individuals willnot comply with the law or submit to control unlesscompelled to do so by the use of force; therefore, lawenforcement officers are sometimes called upon to useforce in the performance of their duties. It is alsorecognized that members of law enforcement derive theirauthority from the public and therefore must be evermindful that they are not only the guardians, but also theservants of the public.The Department's guiding value when using force shallbe reverence for human life. When warranted,Department personnel may objectively use reasonableforce to carry out their duties. Officers who useunreasonable force degrade the confidence of thecommunity we serve, expose the Department and fellowofficers to legal and physical hazards, and violate therights of individuals upon whom unreasonable force isused . . .7Similarly, the opening paragraph of the Louisville Metro Police Department’s(“Louisville Metro”) use of force policy states:It is the intent of the Louisville Metro Police Departmentthat all members recognize the importance of human life,respect basic human rights and have an intolerantattitude towards the abusive treatment of all persons.Bearing this in mind, officers’ use of force shall be valuedriven, utilizing only the force reasonable under donline.org/lapd manual/.5

circumstances so as to minimize the chance of injury tothemselves and others.8Louisville Metro and LAPD both explicitly communicate its mission to serve asguardians of the public and to preserve human life above the use of force. Furthermore,the LAPD’s preamble also explains the consequences of an officer’s violation of thedepartment’s use of force policy. In contrast, LVMPD’s introduction section does notdirect officers to value the preservation of human life over the use of force. LVMPD alsofails to provide officers with a succinct description of the consequences of an officer’sviolation of the Policy.Thus, the ACLU recommends that LVMPD replace its introduction sectionwith a “Mission Statement” section. The Mission Statement should succinctlyinclude the following: (1) LVMPD’s basic doctrine on the use of force; (2) a directiverequiring officers to value the sanctity of human life over the use of force; and (3)the consequences of an officer’s violation of the Policy including individualconsequences (i.e. officer discipline, termination, and/or prosecution) andcommunity ramifications (i.e. unreasonable use of force degrades the confidence ofthe community).B. Definitions of Critical TermsLVMPD must define critical terms in the Policy to ensure that the Policy’sdirectives are clear and consistent. During its review of the Policy, the ACLU concludedthat the Policy uses vague definitions of critical terms. The use of vague definitions maylead to misunderstandings and confusion regarding the parameters of an officer’s use ngProcedure(February2008).6

force.9 Furthermore, vague definitions result in inconsistent application of a policedepartment’s use of force policy and “pervasive underreporting” of use of forceincidents.10 Specifically, the ACLU recommends that the LVMPD revise its explanationand definition of: (1) “Reasonable Force” and “Objective Reasonableness”; and (2)“Deadly Force.”1. “Reasonable Force” and “Objectively Reasonable”The LVMPD uses the term “reasonable force” to determine whether an officer’sactions are “objectively reasonable” in light of the totality of the circumstances.11 Thissection will provide recommendations to improve the Policy’s definition and explanationof “reasonable force” and the “objectively reasonable” standard.In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court held that “[t]he“reasonableness” of a particular use of force must be judged from the perspective of areasonable officer on the scene, rather than with the 20/20 vision of hindsight.”12 Thepropriety of an officer’s use of force is judged under “an objective [standard]: thequestion is whether the officers' actions are ‘objectively reasonable’ in light of the factsand circumstances confronting them, without regard to their underlying intent rentasofMarch8,2012).12490U.S.386,396(1989).7

motivation.”13 Police departments generally cite directly to Graham in defining the terms“reasonable force” and/or “objectively reasonable.”14The Policy’s “Definitions” section defines “Reasonable Force” to mean:The degree of force that is appropriate for gainingcompliance. In accordance with Graham v. Connor, 490U.S. 386 (1989), the degree of force used in effecting anarrest, investigatory stop or other seizure is evaluated byusing a reasonable police member standard: Whether themember’s actions were “objectively reasonable” in lightof the surrounding facts and circumstances, including theseverity of the crime at issue, whether the suspect posesan immediate threat to the safety of the member orothers, and whether the suspect is actively restrainingarrest or attempting to evade arrest by flight.15Although the Policy correctly cites Graham, the first sentence definingreasonable force as a “the degree of force that is appropriate for gaining compliance” isproblematic because it is unclear and overly broad. As it is currently formulated, anofficer may interpret “reasonable force” as the force an officer needs to employ to gainanother person’s compliance (i.e. the officer must apply force to gain a person’scompliance). The proper definition of reasonable force must focus on an officer’sobjectively reasonable response to a situation based on the totality of the all the factssurrounding the officer’s rceavailableathttp://www.lapdonline.org/lapd asofMarch8,2012).148

The LVMPD must eliminate the first sentence to avoid confusion. Furthermore,the LVMPD must direct its officers that in some circumstances the amount of reasonableforce needed to gain compliance may be to limited to verbal communication orpersuasion without the use of actual physical force. The DOJ, in a recent patterns andpractices investigation of the Inglewood Police Department (“Inglewood PD”), stated thatan “unclear or overly general” policy may result in “unreasonable or unnecessary” use offorce by an officer.16 Therefore, the ACLU recommends that the LVMPD eliminatethe first sentence of the Policy’s definition of “reasonable force” to avoidunnecessary or unreasonable confusion by officers. Instead, the Policy’s definitionof “reasonable force” should be revised to track the language of Graham moreclosely:The level of force that is necessary in a particularsituation. The reasonableness of a particular use offorce must be judged from the perspective of areasonable officer on the scene, rather than with the20/20 vision of hindsight. The calculus ofreasonableness must embody allowance for the factthat police officers are often forced to make splitsecond judgments—in circumstances that are tense,uncertain, and rapidly evolving—about the amountof force that is necessary in a particular situation.The reasonableness inquiry in an excessive force caseis an objective one: the question is whether theofficers' actions are objectively reasonable in light ofthe facts and circumstances confronting them,without regard to their underlying intent nts/inglewood pd Jail findlet 12- ‐28- ‐09.pdf.17490U.S.at396- ‐397.9

Members may either escalate or de-escalate the use ofreasonable force as the situation progresses orcircumstances change. Officers should recognize thattheir conduct immediately connected to the use offorce may be a factor which can influence the level offorce necessary in a given situation. When reasonableunder the totality of circumstances, officers shoulduse advisements, warnings, verbal persuasion, andother tactics and recognize that an officer maywithdraw to a position that is tactically more secureor allows an officer greater distance in order toconsider or deploy a greater variety of forceoptions.18The Policy’s “Statement of Authority” is another area that needs substantivechange because of its explanation of “reasonable force.”19 Specifically, the Policy’s“Statement of Authority” section expands the Policy’s explanation of “reasonable force”by stating the following:When assessing the need to use force, and the type anddegree of force to use, members should consider thenature and extent of any threat posed by the subject, aswell as all other circumstances of the encounter. Inaccordance with Graham v. Connor, 490 U.S. 386(1989), situational factors include but are not limited tothe following:a. The severity of the crime(s) at issue;b. Whether the subject poses an immediate threatto the safety of the officer(s) or others;c. Whether the subject is actively resisting arrest ofattempting to evade arrest by ofForce(currentasofMarch8,2012).20Id.1910

The issue with the Policy’s current “Statement of Authority” is its failure toprovide officers with specific non-exhaustive factors when faced with a use of forcesituation. A police department’s failure to provide “specific policy guidance on theappropriate use of force may lead officers to believe that they are justified in using forcein situations in which it would be unreasonable or unnecessary.”21Consistent with the notion of greater policy guidance, other police departmentshave taken steps to expand their explanations of “reasonable force” by providing officerswith specific factors to consider when contemplating the use of force. The LAPD, forexample, provides its officers with an extensive non-exhaustive list of factors to considerwhen faced with a potential use of force situation22:Factors Used To Determine Reasonableness. TheDepartment examines reasonableness using Graham andfrom the articulated facts from the perspective of a LosAngeles Police Officer with similar training andexperience placed in generally the same set ofcircumstances. In determining the appropriate level offorce, officers shall evaluate each situation in light offacts and circumstances of each particular case. Thosefactors may include but are not limited to: The seriousness of the crime or suspectedoffense;The level of threat or resistance presented by thesubject;Whether the subject was posing an immediatethreat to officers or a danger to the community;The potential for injury to citizens, officers inglewood pd Jail findlet 12- ‐28- olicyandProcedure,PolicyNo.1010.20(2010).11

The risk or apparent attempt by the subject toescape;The conduct of the subject being confronted (asreasonably perceived by the officer at the time);The time available to an officer to make adecision;The availability of other resources;The training and experience of the officer;The proximity or access of weapons to thesubject;Officer versus subject factors such as age, size,relative strength, skill level, injury/exhaustionand number officers versus subjects; and,The environmental factors and/or other exigentcircumstances.23Moreover, many police departments go further and explicitly phrase theirexplanations of “reasonable force” in a restrictive context. For example, the DenverPolice Department (“Denver PD”) instructs its officers that:Each situation is unique. Sound judgment and thecircumstances of each situation will dictate the forceoption the officer deems necessary. Depending on thecircumstances, officers may find it necessary to escalateor de-escalate the use of force . . .24The Portland Police Bureau (“Portland PB”) employs the following directive:It is the policy of the Bureau that members use only theforce reasonably necessary under the totality ofcircumstances to perform their duties and resolveconfrontations effectively and safely. The Bureauexpects members to develop and display, over the courseof their practice of law enforcement, the skills andabilities that allow them to regularly w.lapdonline.org/lapd 5.01(4)(C)(2010).12

confrontations without resorting to the higher levels ofallowable force.25The DOJ also adheres to a restrictive definition of “reasonable force,”specifically:[F]orce should be used only when it is a necessity. [Apolice department] should revise its policy on the use offorce to permit force only when the force used isobjectively reasonable because it is necessary toovercome resistance offered in a lawful police action tocompel an unwilling subject's compliance with anofficer's lawful exercise of police authority.26LVMPD needs to provide its officers with greater direction and clarity inassessing circumstances where an officer may need to use force. In accordance withnational police standards, the ACLU recommends that the LVMPD provide itsofficers with a restrictive definition of “reasonable force.” The Policy’s definitionand explanation of “reasonable force” must be thorough and include specific nonexhaustive factors that an officer should consider when faced with a use of forcesituation. The ACLU recommends that the LVMPD include the following directivein the Policy’s “Statement of Authority” section:Force should be used only when it is a necessity. Thecommunity expects and the Las Vegas MetropolitanPolice Department requires that members use onlyreasonable force—the level of force objectivelyreasonable to perform their duties. The level of /spl/documents/inglewood pd Jail findlet 12- ‐28- ‐09.pdf.2613

applied must reflect the totality of circumstancessurrounding the immediate situation, including butnot limited to the following factors: The seriousness of the crime or suspectedoffense;The level of threat or resistance presented bythe subject;Whether the subject was posing an immediatethreat to officers or a danger to thecommunity;The potential for injury to citizens, officers orsubjects;The risk or apparent attempt by the subjectto escape;The conduct of the subject being confronted(as reasonably perceived by the officer at thetime);The time available to an officer to make adecision;The availability of other resources to deescalate the situation;The training and experience of the officer;The proximity or access of weapons to thesubject;Officer versus subject factors such as tion and number officers versussubjects; and,The environmental factors and/or otherexigent circumstances.The officer need only select a level of force that isnecessary and within the range of "objectivelyreasonable" options. Officers must rely on training,experience and assessment of the situation to decidean appropriate level of force to be applied.Reasonable and sound judgment will dictate the forceoption to be employed. Therefore, the Departmentexamines all uses of force from an objective standardrather than a subjective urceCenter(June14

2. “Deadly Force”LVMPD’s current definition of “Deadly Force” is:Any force which in the manner used creates a substantialrisk of serious bodily injury or death. The elements thatmust be present for use of deadly force are: Ability,Opportunity, Imminent Jeopardy, and Preclusion. Ability – The subject has the ability to either killor seriously injure the officer(s) or a third party.Opportunity – the subject has the opportunity toeither kill or seriously injure the officer(s) or athird party.Imminent Jeopardy – The officer(s) is in fear ofeither his own life or the life of a third party andmust act immediately or face either death orserious bodily injury.Preclusion – All other options have beenreasonably exhausted prior to the use of deadlyforce. Deadly force must be reasonable inresponse to the subject’s actions.28The Policy rightfully implements a broad definition of deadly force. However,the ACLU believes that the LVMPD’s definition of “Imminent Jeopardy” is incorrect.Specifically, the correct standard for determining the appropriate level of force “iswhether the officers' actions are ‘objectively reasonable’ in light of the facts andcircumstances confronting them, without regard to their underlying intent ormotivation.”29 The LVMPD’s definition of “Imminent Jeopardy” is based on a subjectivestandard: whether an officer “is in fear of either his own life or the life of a third www.lapdonline.org/lapd ,2012).29Graham,490U.S.at397.15

and must act immediately.”30 Therefore, the ACLU recommends that the LVMPDuse the proper objective reasonableness standard in its definition of “Deadly Force.”Specifically, the LVMPD should adopt the following explanation of “ImminentJeopardy”:Imminent Jeopardy: Based on all facts andcircumstances confronting the officer and withoutregard to officer’s underlying intent or motivation,the officer reasonably believes that the subject posesan immediate threat to the life of the officer(s) orother third parties and the officer must actimmediately to prevent death or serious bodilyinjury.Another issue with the LVMPD’s definition of “Deadly Force” is that it fails toinstruct officers that other less lethal force tools may rise to the level of deadly force ifused inappropriately. LVMPD should expand its definition of “Deadly Force” andinstruct officers that certain uses of force other than the use of a firearm may constitutedeadly force. Specifically, LVMPD should instruct officers that the use of less lethalforce, such as but not limited to the use of impact weapons (i.e. baton strikes to the heador other vital areas), carotid holds, low lethality shotguns, or use of electronic controldevices, may rise to the level of deadly force if used inappropriately. The ACLUrecommends that the following sentences be added to LVMPD’s current definitionof “Deadly Force”:Deadly force is that degree of force, the intended,natural, and expected consequence of which, or themisapplication of which, is likely to produce death .16

serious bodily injury.31 Deadly force is not limited tothe use of firearms. Other forms of force that mayrise to the level of deadly force include but are notlimited to: strikes to the head or other vital areaswith impact weapons, carotid holds, low lethalityshotguns or impact munitions, or the use of electroniccontrol devices.C. Response to Resistance and De-escalationPolice departments often provide specific guidelines and directives regarding anofficer’s objectively reasonable response to “resistance.”32 In determining an officer’sobjectively reasonable response to a resisting person, the officer must have a “sufficientlystrong governmental interest to justify a given use of force” based on the totality of thecircumstances, and the officer “must consider the severity of the crime at issue.”33 Anofficer who encounters a resisting person may have a sufficient governmental interest toexercise objectively reasonable force (i.e. circumstances where the resisting person posesa significant threat to themselves and others).34 However, if a person stops resisting anofficer must de-escalate and limit their use of force accordingly.35Police departments often require officers to modify their response to a resistingperson based on the person’s level of resistance.36 Some police departments go further,and explicitly require officers to de-escalate the situation if the person stops anPoliceDepartmentGeneralOrder901.07,at6(2002).17

For example, the Washington DC Metropolitan Police Department’s (“DC Metro”) use offorce policy provides the following:Members shall modify their level of force in relation tothe amount of resistance offered by a subject. As thesubject offers less resistance the member shall lower theamount or type of force used. Conversely, if resistanceescalates, members are authorized to respond in anobjectively reasonable manner.38The Portland PB’s use of force policy emphasizes the need for de-escalation,specifically: “[t]he Bureau is dedicated to providing the training, resources andmanagement that help members safely and effectively resolve confrontations through theapplication of de-escalation tools and lower levels of force.”39In addition to de-escalation, many police departments provide specific use offorce guidelines for circumstances where an officer encounters a person suffering from: aphysical or mental condition, drugs or alcohol, or a language barrier. Persons with aphysical or mental condition, under the influence of drugs or alcohol, or suffering from alanguage barrier are especially vulnerable to excessive force because these personsappear resistant to an officer’s commands.40 For example, the Denver PD’s use of forcepolicy provides its officers with the following directive pertaining to persons sufferingfrom “a medical condition, mental impairment, developmental disability, physicallimitation, language, drug interaction, or emotional thttp://www.lvrj.com/news/video- ‐shows- ‐officers- ‐beating- ‐motorist- ‐in- ‐diabetic- ‐shock- ‐138901274.html.3918

It is important for officers to bear in mind that there aremany reasons a suspect may be resisting arrest or may beunresponsive. The person in question may not becapable of understanding the gravity of the situation.The person's reasoning ability may be dramaticallyaffected by a number of factors, including but notlimited to a medical condition, mental impairment,developmental disability, physical limitation, language,drug interaction, or emotional crisis. Therefore, it ispossible that a person's mental state may prevent aproper understanding of an officer's commands oractions. In such circumstances, the person's lack ofcompliance may not be a deliberate attempt

human life is at all times a central tenet of the police agency.”3 A vast majority of police departments including the Los Angeles Police Department, Philadelphia Police Department, and Louisville Metro Police Department have a preamble or mi

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