To: From: All Sheriffs Sheriff Greg Champagne, President, National Sheriffs Association Sheriff Sandra Hutchens, President, Major County Sheriffs of America Date: June 22, 2017 Subject: Guide for Sheriffs to Develop a Use of Force Policy The National Sheriffs Association (NSA) and the Major County Sheriffs of American (MCSA) both decided not to endorse the so-called National Consensus Policy on Use of Force advanced by the International Association of Chiefs of Police (IACP). In response, and to provide assistance, to Sheriffs moving forward, NSA and MCSA formed a working group chaired by Sheriff Bob Gualtieri of Pinellas County, Florida to develop a guide for Sheriffs to use in developing a Use of Force Policy which would fit the needs of their particular office. In addition to Sheriff Gualtieri, the working group consisted of NSA President, Sheriff Greg Champagne of St. Charles Parish, Louisiana; Sheriff Rich Stanek, Hennepin County, Minnesota; Robert Spence, Esq., Tuscaloosa County Sheriff s Office; Robert Faigin, Esq., of the San Diego County Sheriff s Office, California; Richard Hodsdon, Esq., Minnesota Sheriffs Association; Missy O Linn, Esq., California State Sheriffs Association; Chief Deputy Joseph Cardella and Captain Maurice Bostick, Esq., both of the St. Charles Parish Sheriff s Office, Louisiana. The following is the document produced by the work group: The federal and state constitutions, case law at all levels, and federal, state, and local laws set the boundaries for law enforcement use of force. Across the nation, differences in those legal parameters, community expectations and tolerances, as well as individual sheriffs perspective must also be considered when developing and implementing an individual agency s use of force policy. In accordance with those parameters, a sheriff has some discretion regarding the type of force options, tactics, weapons, and equipment that are authorized and when use of such force is appropriate. Those legal variances, tolerances, and perspectives make it impractical to develop a specific national model use of force policy. Therefore, NSA and MCSA developed this guide to assist sheriffs in developing use of force policies for their agencies. This guide contains baseline recommendations as to what a use of force policy should address but does not require or recommend specific or individual components of a policy. It is designed to allow sheriffs maximum flexibility in developing policies while identifying the legally permissible parameters.
If a sheriff would like to view actual polices of other agencies, NSA and MCSA have developed a library of use of force polices and we are willing to share a set with any sheriff to facilitate the drafting and decision-making process. Reviewing existing polices will assist the sheriff in identifying some of the more specific areas that need to be addressed to have a comprehensive use of force policy. The following are components of a use of force policy: Introduction A use of force policy should have an introduction that emphasizes the agency s philosophy as it relates to use of force. Definitions A use of force or response to resistance policy should contain a definition section. Some of the terms that should be defined include, for example: Subjects Actions and Types of Resistance (for example: Cooperative; Passive/Non- Compliant; Active Resistance; Assaultive; and Life Threatening) Deadly Force Reasonable Force Great Bodily Harm Immediate Imminent Physical Force/Control Reasonable Belief Restraints/Types of Restraints Escalation De-escalation Totality of the Circumstances Circumstances Regarding Use of Force The policy should set forth the circumstances under which force may be used, such as to make an arrest; to overcome resistance; in self-defense; in defense of another; to prevent escape of a prisoner; or to take someone into protective custody. Levels and Types of Force The policy should define the levels and types of force, including deadly force, intermediate force, and non-deadly force. 2
Legal Principles The sheriff s policy should be consistent with the legal standards established by federal, state, and local law. The policy should also be consistent with and reflect changes and developments in the laws as set forth by applicable state and federal court decisions. The policy should take into consideration that encounters with individuals during consensual contacts, investigative detentions, the course of arrests, and dealing with those who are being held in custody as pre-trial detainees are governed by the Fourth and Fourteenth Amendments to the United States Constitution. Policies dealing with incarcerated individuals should reflect that those who have been convicted of crimes are protected by the Eighth Amendment to the United States Constitution, which prohibits cruel and unusual punishment. Factors Addressing Reasonableness The policy should include a discussion of important factors to consider in determining the type and level of force to be used, including: the immediate threat to the safety of the deputies or others at the time force was used; whether the subject was actively resisting; the time available to the deputy to make a decision; the severity of the crimes involved; and whether the subject was attempting to evade arrest or escape. The policy should also list other factors that may be relevant in determining whether a particular use of force may be appropriate, including: prior contacts with the subject or the location; number of deputies versus the number of subjects; age, size, gender, and relative strength; subject s demeanor and actions; specialized knowledge, skills, or abilities; injuries or exhaustion; mental illness or impairments, including drugs or alcohol; environmental factors, such as lighting, footing, sound, or crowd conditions; and proximity to potential weapons. Warnings The policy should address warnings as they relate to use of force by deputies. Other Use of Force Considerations It is recommended that agency policy address whether warning shots or shots intended to wound are permissible. Options include strictly prohibiting, regulating/restricting, or allowing warning shots. The policy may address when and under what circumstances, if any, a deputy may shoot at or from a moving vehicle. Options include: strictly prohibiting, regulating/ restricting or allowing shooting at or from moving vehicles. Circumstances for consideration may include necessity and where life is in imminent danger if the action is not taken. The policy should also consider whether to place an affirmative duty on deputies to avoid placing themselves in harm s way of a vehicle to avoid a confrontation. The policy should inform deputies when and under what circumstances they may unholster their firearms. As an example, the policy might read that deputies may unholster their firearms when 3
they reasonably believe there exists the potential for death or great bodily harm to the deputy or another person. The policy should state that only agency authorized firearms are to be used and the policy should identify those firearms authorized by your agency. The policy should specify the types of specialty weapons the agency permits, how the weapons may be used, and any specific restrictions on use. The types of weapons to consider within this section of the policy would include bean bag rounds, electronic control weapons, and O.C. spray. The policy should also specify the types of standard impact weapons permitted by the agency (e.g. baton) and guidelines for their use. The policy should establish use of force training requirements, including proficiency standards and training frequency for defensive tactics and each authorized weapon. Agencies should consider including a discussion of the various manual physical force techniques and the particular circumstances whether and/or when such techniques may be used (e.g. carotid restraint). The policy should also address the use of manual restraint devices including how and when they should be used (e.g. a hobble, restraint chairs, and spit masks, etc.). The policy should address the use of canines as a force option. Unique issues agencies may consider in formulating use of force policies are forced blood draws and involuntary collection of DNA. The manner and limits upon which these collections may be accomplished should be addressed in the policy. The policy should address off-duty conduct and should require that provisions of the use of force policy apply to deputies on-duty as well as off-duty conduct, including the carrying of authorized weapons and acts performed during off-duty or secondary employment. Aftercare The policy should set forth the deputy s obligation to provide and/or summon medical attention for a person injured or complaining of injury after a use of force incident. The policy should also establish procedures for documenting aftercare actions requested and/or provided by deputies or others. Post-Incident Concerns A comprehensive policy needs to address administrative relief from duty as a result of a deputy using deadly force and whether the agency will require that the deputy be cleared by an agency psychologist before returning to duty. 4
If not controlled by state law or some other regulation, the policy should provide direction on who will conduct any use of force investigation. Note that agency policies vary widely on this issue with some agencies conducting their own administrative and/or criminal investigations to determine if policy and law were followed. There is no consensus on whether the deputy s own agency should conduct the administrative and/or criminal investigation or whether either or both should be done by another entity. Supervisory Responsibilities Supervisor responsibilities regarding use of force incidents should be well defined. Areas of concern may include: initial evaluation of the incident for further investigation; witness identification and statements; evidence collection and preservation; and review and approval of reports. Uses of Force Reporting The policy should contain use of force reporting requirements. Some of the considerations here include whether to require a use of force report when there is a show of force, including a deputy unholstering a firearm and/or pointing a firearm at someone. The policy should also address when the use of force report must be completed and if there are circumstances when the deputy will not author a report (e.g. deadly force used and the deputy is interviewed by investigators taking a sworn statement). The policy should also state when photographs are required as a result of a use of force incident. If deputies are required to author a use of force report, the policy should address whether each individual deputy using force is required to complete a separate use of force report or whether one deputy may write a report and all involved deputies may adopt the report. The policy should also clarify whether witness deputies are required to complete a report of observed use of force. The policy should set forth how civilian witness (citizens and civilian employees) statements will be taken and preserved. The policy should also contain a section regarding when a deputy is required to notify a supervisor of a use of force and how soon after the use of force the deputy is required to make the notification (e.g. when a suspect complains of injury or an injury requires medical treatment). In conclusion, this is not an actual use of force policy but is a resource for sheriffs to help them develop an effective policy. We hope this guide is useful and results in use of force policies that are within accepted legal parameters and reflect community expectations and tolerances, as well as individual sheriffs perspectives on a very important topic. 5