INTRADEPARTMENTAL CORRESPONDENCE

Transcription

1 INTRADEPARTMENTAL CORRESPONDENCE July 13, CB# TO: The Honorable Board of Police Commissioners FROM: Chief of Police SUBJECT: REVIEW OF NINTH CIRCUIT DISTRICT COURT DECISION BRYAN v. McPHERSON AND THE LOS ANGELES POLICE DEPARTMENT'S USE OF FORCE POLICY RECOMMENDED ACTION 1. That the Board of Police Commissioners APPROVE the Department's report and TRANSMIT to the Public Safety Committee for REVIEW. DISCUSSION On December 28, 2009, Judge Wardlaw of the U.S. 9 th Circuit Court of Appeals issued a ruling in the case of Bryan v. McPherson. The case involved the deployment and use of an Electronic Control Device (TASER), subsequent to a lawful traffic stop. The suspect, Bryan, while not combative, was uncooperative. Bryan exited his vehicle shirtless, wearing only boxer type undershorts, and speaking unintelligibly. Bryan was subsequently tased by Officer McPherson and as a result, fell to the ground, breaking four teeth and sustaining injuries to his face. The U.S. 9 th Circuit Court of Appeals decided that these facts did not rise to a level of danger to the officer or bystanders which would warrant the deployment of the TASER. As a result of this decision, the Los Angeles Police Department conducted an analysis of its Use of Force policy to ensure that it meets the Use of Force standard set by this decision. The Department concluded that the court decision has no impact on the current Use of Force policy. The Department's Use of Force policy regarding the deployment of the TASER was found to be more restrictive than the standard set by the U.S. 9 th Circuit Court of Appeals. If you have any questions, please contact Lieutenant Michelle Richards, Officer in Charge, Firearms and Tactics Section, Training Division, at (818) Respectfully, CHARLfl )-- \E BECK Chief of Police Attachments

2 FACT SHEET NINTH CIRCUIT DISTRICT COURT DECISION BRYAN VS. McPHERSON AND USE OF FORCE POLICY June 9, 2011 PURPOSE On May 26, 2011, Training Division (TD) was directed to review the court decision in the case of Bryan vs. McPherson and identify its impact on the Department's Use of Force (UOF) policy and training. BACKGROUND On December 28, 2009, Judge Wardlaw of the U.S. 9 th Circuit Court of Appeals issued a ruling in the case of Bryan vs. McPherson. The case involved the deployment and use of the Taser Electronic Control Device (ECD) subsequent to a lawful traffic stop. The suspect, while not combative, was uncooperative. It should also be noted that the suspect was shirtless, wearing only boxer type undershorts, and speaking unintelligibly. The suspect, Bryan, was tased by Officer McPherson and fell to the ground, breaking four teeth and sustaining injuries to his face. At the core of the decision was the argument that while it is not refuted that the suspect was half naked, speaking unintelligibly, and uncooperative, these facts did not rise to the level of danger to the officer or bystanders and did not warrant the deployment of the ECD. FINDINGS Currently, the Department teaches that the ECD is to be deployed for suspects whose "behavior actions" under the Graham vs. Conner "Objective, Reasonable Standard," leads the officer to believe that there is a risk that the suspect's actions may cause harm to the officer, bystanders, or even the suspect himself. This policy and related training do not conflict with the Ninth Circuit Court Decision case referred to as Bryan vs. McPherson. Furthermore, the Department historically placed the deployment of the ECD in the "Aggressive and/or Combative" level within the UOF policy prior to adopting the Graham vs. Conner model in July of 2009 (Attachment No. 1). The fact that the Department already mandates a verbal warning be given when it is tactically feasible, prior to deployment, also places the Department's ECD deployment criteria at a higher level of scrutiny than many other law enforcement agencies. Deputy City Attorneys Cory Brente and Julie Raffish reviewed relevant Department Directives, manuals, and related materials and made several suggestions regarding verbiage. These recommendations are currently being reviewed by the Tactics Training Review Committee (TTRC). Page 1 of 2

3 FACT SHEET NINTH CIRCUIT DISTRICT COURT DECISION BRYAN VS. McPHERSON AND USE OF FORCE POLICY June 9, 2011 CONCLUSION The Bryan vs. McPherson court decision has no policy impact on the Department's UOF policy. It is recommended that the Department make no changes to either its current training philosophy or training scenarios. Minor verbiage modifications to Use of Force-Tactics Directive No. 4.2: Electronic Control Device TASER, February 2011, (Attachment No. 2) is under final review by the TTRC. City Attorney Brente is a standing member of the TTRC and will be a collaborating member of the final publication. The revised Directive is expected to be published within the next 90 days. Once the Directive is published, TD staff will review all related lesson plans to ensure consistency in training materials and learning objectives. Prepared by: Firearms and Tactics Section Training Division Attachments Page 2 of 2

4 Directive No. 1 July 2009 USE OF FORCE POLICY- REVISED PURPOSE The purpose of this Order is to provide Department personnel with a Use of Force Policy that is concise, easily understood, and consistent with prevailing law and industry best practices. Preamble to Use of Force The use of force by members of law enforcement is a matter of critical concern both to the public and the law enforcement community. It is recognized that some individuals will not comply with the law or submit to control unless compelled to do so by the use of force; therefore, law enforcement officers are sometimes called upon to use force in the performance of their duties. It is also recognized that members of law enforcement derive their authority from the public and therefore must be ever mindful that they are not only the guardians, but also the servants of the public. The Department's guiding value when using force shall be reverence for human life. When warranted, Department personnel may objectively use reasonable force to carry out their duties. Officers who use unreasonable force degrade the confidence of the community we serve, expose the Department and fellow officers to legal and physical hazards, and violate the rights of individuals upon whom unreasonable force is used. Conversely, officers who fail to use force when warranted may endanger themselves, the community and fellow officers. DEFINITIONS Objectively Reasonable: The legal standard used to determine the lawfulness of a use of force is the Fourth Amendment to the United States Constitution. See Graham versus Connor, 490 U.S. 386 (1989). Graham states in part, "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 calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain and rapidly evolving - about the amount of force that is necessary in a particular situation. The test of reasonableness is not capable of precise definition or mechanical application." The force must be reasonable under the circumstances known to the officer at the time the force was used. Therefore, the Department examines all uses of force from an objective standard, rather than a subjective standard.

5 Use of Force Tactics Directive Use of Force Policy-Revised Page 2 Factors Used to Determine Reasonableness: The Department examines reasonableness using Graham and from the articulated facts from the perspective of a Los Angeles Police Officer with similar training and experience placed in generally the same set of circumstances. In determining the appropriate level of force, officers shall evaluate each situation in light of facts and circumstances of each particular case. Those factors may include, but are not limited to: The seriousness of the crime or suspected offense; The level of threat or resistance presented by the subject; Whether the subject was posing an imminent threat to officers or a danger to the community; The potential for injury to citizens, officers or subjects; The risk or apparent attempt by the subject to escape; The conduct of the subject being confronted (as reasonably perceived by the officer at the time); The time available to an officer to make a decision; The availability of other resources; The training and experience of the officer; The proximity or access of weapons to the subject; Officer versus subject factors such as age, size, relative strength, skill level, injury/exhaustion and number officers versus subjects; and, The environmental factors and/or other exigent circumstances. Deadly Force: Deadly Force is defined as that force which creates a substantial risk of causing death or serious bodily injury. Imminent: Black's Law Dictionary defines imminent as, "Near at hand; impending; on the point of happening." Serious Bodily Injury: California Penal Code Section 243 (f) (4) defines Serious Bodily Injury as including, but not limited to: Loss of consciousness; Concussion; Bone fracture; Protracted loss or impairment of function of any bodily member or organ; A wound requiring extensive suturing; and Serious disfigurement. Warning Shots: The intentional discharge of a firearm off target, not intended to hit a person, to warn others that deadly force is imminent.

6 Use of Force Tactics Directive Use of Force Policy-Revised Page 3 POLICY Use of Force General It is the policy of this Department that personnel may use only that force which is "objectively reasonable" to: Defend themselves; Defend others; Effect an arrest or detention; Prevent escape; or, Overcome resistance. Deadly Force Law enforcement officers are authorized to use deadly force to: Protect themselves or others from what is reasonably believed to be an imminent threat of death or serious bodily injury; or, Prevent a crime where the subject's actions place person(s) in imminent jeopardy of death or serious bodily injury; or Prevent the escape of a violent fleeing felon when there is probable cause to believe the escape will pose a significant threat of death or serious bodily injury to the officer or others if apprehension is delayed. In this circumstance, officers shall, to the extent practical, avoid using deadly force that might subject innocent bystanders or hostages to possible death or injury. Warning Shots Warning shots shall only be used in exceptional circumstances where it might reasonably be expected to avoid the need to use deadly force. Generally, warning shots shall be directed in a manner that minimizes the risk of injury to innocent persons, ricochet dangers and property damage. Shooting At or From Moving Vehicles Firearms shall not be discharged at a moving vehicle unless a person in the vehicle is immediately threatening the officer or another person with deadly force by means other than the vehicle. The moving vehicle itself shall not presumptively constitute a threat that justifies an officer's use of deadly force. An officer threatened by an oncoming vehicle shall move out of its path instead of discharging a firearm at it or any of its occupants. Firearms shall not be discharged from a moving vehicle, except in exigent circumstances and in the immediate defense of life.

7 Use of Force Tactics Directive Use of Force Policy-Revised Page 4 Note: It is understood that the policy in regards to discharging a firearm at or from a moving vehicle may not cover every situation that may arise. In all situations, Department members are expected to act with intelligence and exercise sound judgment, attending to the spirit of this policy. Any deviations from the provisions of this policy shall be examined rigorously on a case by case basis. The involved officer must be able to articulate clearly the reasons for the use of deadly force. Factors that may be considered include whether the officer's life or the lives of others were in immediate peril and there was no reasonable or apparent means of escape. AMENDMENTS This Directive cancels Training Bulletin Volume X, Issue 11, Use of Force Part II, dated May WILLIAM J. Chief of Police / A pwo -1 4III 1111 DISTRIBUTION "D"

8 Los Angeles Police Department Use of Force Standard Legal Standing Policy / Law FOURTH AMENDMENT Suspects Behaviors Facts & circumstances known to officer at the time of the incident Objectively Reasonable Standard In Light of the Facts and Circumstances Confronting Officer 6rahom vs. Connor, 490 U.S. 386 (1989) Factors include but are not limited to: Facts and circumstances of a particular case; Severity of the crime at issue: Suspect posing immediate threat to safety of officers/ others; Suspect actively resisting arrest or attempting to evade '" arrest by flight; Time available to officer to make decision; Reasonable officer's perspective, based upon training and experience, without 20/20 hindsight; Officer/ suspect factors such as: number of officers vs. number of suspects; proximity of potential weapons; age/ size/ relative strength; suspect's special knowledge/ skill level; officer injury/ exhaustion; suspect's mental illness/ drug usage; officer's knowledge of prior contacts; risk of escape; environmental factors; other exigent circumstances. Officer(s) Reactions Type and amount of force used in response to suspect actions! behaviors Suspect's Behaviors Officer's Response ADJUDICATION Objective Reasonableness Yes In Policy No Action, Counseling, or Training No Out of Policy Counseling, Training, or Discipline Deadly Force Firearms Carotid Restraint Control Hold Serious Bodily Injury or Life Threatenin Police Presence Firm Grip Verbalization Assault or Fleeing TASER Less Leth Impact Devices Team Take Downs Ground Grappling (kicks, strikes) Reasonabfr, Response

9 PA F.7':r j, p yi k A ( 7 j: r. (7; DIP E : C Directive No. 4.2 February 2011 PURPOSE Currently, the Model X-26 is being used by the Department. This Directive will discuss the policy, procedure and application pertaining to the TASER. Specific key points of the TASER, as well as definitions used, are listed in the back of this Directive. ELECTRONIC CONTROL DEVICE TASER PROTOCOL The TASER may be deployed on suspects who are violent, or who pose a threat to themselves or others, when an officer believes: Attempts to subdue the suspect with other tactics have been, or will likely be, ineffective in the situation; or There is a reasonable belief that it will be unsafe for officers to approach within contact range of the suspect. Verbal threats of violence by a suspect do not alone justify the use of the TASER. Any - threat must be a credible one. Reporting The use of a TASER is a reportable use of force when the probes and/or contacts make contact with the suspect's clothing or skin. If no contact is made, the circumstances shall be documented in the appropriate report such as a crime, arrest or Employee's Report, Form Supervisors shall photograph all visible as well as complained of injuries, even when evidence is not present. Medical Treatment Whenever the TASER is used and the probes and/or contacts make contact with the suspect's clothing or skin, the suspect shall be examined by medical personnel as soon as tactically sound. If the suspect loses consciousness, officers shall immediately request an ambulance.

10 Use of Force - Tactics Directive Electronic Control Device - TASER Page 2 Note: Medical personnel shall include a doctor or a nurse at a contract hospital or jail dispensary. Use of Force Warning An officer shall give a verbal warning in situations which require the use of a TASER, Bean Bag Shotgun, less lethal munitions or impact device to control an individual, when feasible. The warning is not required when an officer is attacked and must respond to the suspect's actions. Additionally, if a tactical plan requires the element of surprise in order to stabilize the situation a warning is not necessary. Examples of this would be a hostage situation or a subject threatening suicide. The verbal warning should include a command and a warning of potential consequences of the use of force. The command should be similar to, "drop the weapon," or "stop what you are doing" and followed by "or we may use the TASER, and that may cause you serious injury." The use of force warning, or why it was not given, must be documented. The officer giving the warning and what was said shall be documented in the Non-Categorical Use of Force Report, Form , under the Use of Force Summary heading. If no warning was given, an explanation shall be documented with an appropriate justification. Simply stating that the "element of surprise was needed" or "for officer safety" reasons will not satisfy this requirement. The explanation must clearly articulate the reason why the element of surprise, officer safety consideration or any other appropriate reason caused the officers(s) not to provide the warning. The giving of a warning, or the reasons for the failure to do so, will be one factor in determining whether the use of force is objectively reasonable. PROCEDURES The TASER officer should be within 21 feet of the suspect, which is the length of the cartridge wire. Officers should target the navel area to place one probe above the waist and one probe below the waist for effectiveness. When an officer needs a TASER, the officer shall broadcast the unit designation, location and "Code Tom" over the radio. If possible, officers should have a second TASER in case the first one fails to operate. As in any volatile situation, the suspect should be contained as soon as tactically possible. Generally, officers should avoid deploying the TASER when the suspect is: In control of a motor vehicle; In danger of falling which would likely result in death or serious bodily injury; Near flammable or combustible fumes; Near a pool, lake or similar body of water to avoid drowning; Known to be pregnant or have a pacemaker.

11 Use of Force - Tactics Directive Electronic Control Device - TASER Page 3 DEFINITIONS Drive Stun/Direct Stun: Two contacts on the cartridge receiver that conduct energy to affect the suspect's sensory functions. This feature may be used with or without a cartridge in place. If a cartridge is in place, the probes will deploy when the trigger is pressed. Ideal Range: The ideal range for the TASER is 7-15 feet. Optimum Target Areas: Back, navel or belt line for probes. Forearm, outside of thigh, calf muscle for drive stun/direct stun. Avoid using the stun feature on the head, face, throat, and groin. Note: There are many factors that go into an officer's ability to hit the intended targeted area of a suspect. When a suspect is struck in a location outside of the optimum target area the officers should be prepared to explain the deviation. TASER: An electronic control device that uses low amperage electrical currents to disrupt normal nerve signals to skeletal muscles, achieving control through neuromuscular incapacitation. The electrical current is delivered through probes attached to wires and/or through the two contacts located on the cartridge receiver. AMENDMENTS This Directive replaces Use of Force-Tactics Directive No. 1, 2010, Electronic Control Device, TASER. CHARLIE BECK Chief of Police DISTRIBUTION "A" Attachments

12 KEY POINTS Neuro-Muscular Incapacitation TASER CHARACTERISTICS No long term effects on the suspect Contracts skeletal muscles by overriding the central nervous system Electrical output is 50,000 volts, with 6.5-watts Emits TASER waves (T-waves) similar to normal electric signals in the body Usually causes the suspect to fall to the ground System Activated for 5-seconds (automatic pulse regulation) by pressing and releasing the trigger Automatic pulse regulation can be overridden by placing the safety down Suspect can be touched while TASER is activated except between or within 2" of the probes Effective in water, as long as both probes hit and attach to the suspect Spark tests should be conducted at the start of watch, despite the % life remaining feature. One spark for less than a second is adequate to determine that the TASER device is working and that the batteries are performing and are adequately charged. Never place your hand in front of or inside the cartridge chamber Weapon Visually check to ensure there is not a cartridge in the chamber Inspection Point at a wall or other object away from other people Place the safety up, activating the laser sight, ensuring the laser sight is functioning properly (one dot representing the path of the top probe) Press the trigger and listen for rapid sparking Put the safety in the safe (down) position and load Each time the spark check is conducted it should be recorded on the DFAR Only the yellow/black striped or solid silver faced cartridges should be used in the field Field cartridges have 21-feet length of TASER wire TASER Reversible loading Cartridges 5-year shelf life with expiration date listed on the rear in the right corner Do not use TASER cartridges when the front blast door is missing Anti-Felon Identification (AFID) Tags, marked with the cartridge serial number are released each time the TASER is fired and give the general location of where the device was fired Holster Shall be worn on the support side of the duty belt in either a cross draw or support side draw (Wearing) position Optimum Target Primary target areas are the back, navel or belt line If practicable, deploy the TASER at the suspect's back where the clothes fit tighter and there is more muscle mass Areas Officers should target the navel area to place one probe above the waist and one probe below the waist for effectiveness Avoid targeting the head, face, throat, and groin Stun Feature Not as effective as deploying probes, no neuro-muscular incapacitation. Affects only the sensory nervous system Situations in which the stun mode may be advantageous: - Officers are under attack and unable to deploy probes - Officers are within close quarters of the suspect - Officers are in contact with the suspect and the deployment of probes may affect those officers Drive stun can be used without a cartridge, with an expended cartridge or a live cartridge; however, with a live cartridge the probes will deploy into the suspect For maximum effectiveness in drive stun mode, drive the TASER into the suspect's forearm, outside of thigh, or calf muscle Avoid using the drive stun on the carotid (sides of neck) and groin areas UOF-TAC DIR NO. 4.2

13 KEY POINTS Maintenance and Care TASER CHARACTERISTICS Avoid dropping the TASER and cartridges Always store the TASER in its protective holster with a cartridge loaded Avoid exposing to excessive moisture Occasionally wipe out cartridge firing bay with a dry cloth Check expiration date of TASER cartridges 2 x 3 volt lithium energy cells, within the Digital Power Magazine (DPM), that do not require recharging 10-year shelf life Batteries Provides up to 195 five-second cycles at room temperature DPM requires replacement when percentage of battery life is less than 10% Note: Continued use at 0% could damage the X-26 TASER X-26 must be stored with the DPM inserted at all times Central Percentage of battery life remaining displayed when safety in the down position Information 5,4,3,2,1,1111 countdown when weapon is triggered Display (CID) Illumination status of weapon when light selector button is activated Stores the date and time of each activation, duration, battery, and temperature Data Port Information accessed via the dataport on rear of device If the dataport's rubber cover is missing, the TASER should be taken out of service. Place the safety switch in the down position and unload the TASER cartridge Press and hold the illumination selector for approximately one second until the CID display illuminates Illumination Press and release the illumination selector to toggle through the four available modes until the Selector setting desired is displayed on the CID LO: Laser only will illuminate OF: Only light will illuminate LF: Laser and light illuminate 00: No laser or light; CID dims The selected mode will display on the CID for 5 seconds when activated UOF-TAC DIR NO. 4.2

14 1 7:14.9 e Pr..10.* Lira Training Bulleting Synopsis: Bulletin 15.0 ADVISORY: We have lowered the p referred point of aim for frontal TASEW Electronic Control Device (ECD) discharges by about 5 inches to avoid the head, neck, and chest area when possible. PREFERRED TARGET ZONES (DARKER AREAS) RATIONALE: 1. Avoiding chest/breast shots with ECDs, whenever possible, helps minimize the controversy about whether ECDs do or do not affect the human heart because the farther away from the heart the darts are deployed, the less it can be argued that the ECD affected the heart. 2. For frontal shots. ECDs have been found to be more effective if the probes are In the abdominal to pelvic region rather than in the chest/breast (more nerves, more muscle, less bony structures, and critical balance functions in the mid body) 3. We believe this recommendation will improve the effective use of ECDs while further increasing safety margins and enhancing the ability to defend such cases in post-event legal proceedings. 4. Back shots, below the neck, remain the preferred target area when practical. REMINDER: Once officers engage In detention and restraint procedures, regardless of the type of force option, it is important to minimize the duration of the physical struggle and amount of force used. The longer the struggle, the greater the risk of injury or death related to overexertion, trauma. or escalation. The risk of an adverse cardiac event related to an ECD discharge is deemed to be extremely low. These guidelines further reduce this remote risk and improve risk management, NOTE: ECD discharges to sensitive areas are n9/ prohibited. It is expressly understood that confrontation, capture, control, and restraint situations are dynamic and fluid and that ECD discharges to these areas will occur. These guidelines are intended to improve effectiveness while reducing risk and post-incident litigation. This bulletin is not intended to be a substitute for any agency's individual policies and/or procedures. More Information: Released: November 6, Distribution of this Training Bulletin Synopsis eliminates the need to distribute Training Bulletin 15.0, Medical Research Update and Revised Warnings. Version /30/2009, to all ECD-certined officers.

15 A note from... CHIEF OF POLICE CHARLIE BECK RECEIVED MAY Office of Administrative Services CB # May 23, 2011 ASSISTANT CHIEF SANDY JO MACARTHUR OFFICE OF ADMINISTRATIVE SERVICES CITY COUNCIL MOTION RELATIVE TO BRYAN V. MCPHERSON CASE The attached City Council motion requests the City Attorney's Office and the City's law enforcement agencies report back to the Public Safety Committee with an evaluation of the Bryan v. McPherson case and its impacts on the City of Los Angeles and LAPD's existing policy for the use of stun guns and whether this policy is within use-of-force guidelines. The written report is due to my office no later than June 23, The report should be routed through the Special Assistant and Chief of Staff. CARLIE\ Attachment I C L,

16 PUBLIC SAFETY MOTION In December 2010, in the case of Bryan v. McPherson, a federal court of appeals found that a Coronado police officer used excessive force when he used a stun gun on an unarmed motorist. This decision would allow California police officers to be liable for injuries that occur as a result of using a stun gun and set a rigorous precedent for when law enforcement may be permitted to use stun guns. The Bryan v. McPherson decision could have implications on use-of-force policies for law enforcement agencies around the state, including the Los Angeles Police Department (LAPD). To avoid subjecting the City to potential liability from such lawsuits, the City should conduct an evaluation on its existing use-of-force policy as it pertains to the use of stun guns. I THEREFORE MOVE that the City Attorney's Office be requested and City law enforcement agencies be instructed to report back to the Public Safety Committee on the following: An evaluation of the Bryan v. McPherson case and its impact on the City of Los Angeles. LAPD's existing policy for the use of stun guns and whether this policy is within use-of-force guidelines. PRESENTED BY BERNARD C. PARKS Councilmember, 8 th District SECONDED BY ADM