August 2015 Warning Bells article

One more way to get an out of policy use of force on your record

In April 2014, the Police Commission added one sentence to the shooting policy under the Deadly Force heading. That sentence is, The reasonableness of an officer’s use of deadly force includes consideration of the officer’s tactical conduct and decisions leading up to the use of force.” In other words, your previous alleged tactical mistakes and poor decisions are wrapped around you like chains as you go into the fight. The spotlight is no longer on the reasonableness of the decision that you made at the moment you pulled the trigger. The spotlight is now a floodlight that looks at the tactics and decisions you made before you ever reached the decision to use force. It may be an out of policy use of force before you draw your gun.

“Not so,” says the Police Commission. this will only be rarely used in extreme circumstances. Trust us!”

However, that is not what the policy says and, as of this writing, management refuses to put in any language that limits its use. -e sentence stands alone and has whatever meaning the reader understands from the words it contains. “Extreme circumstances” and “rarely” are not in that sentence.

Could some captain, jury, prosecutor, or plaintiff’s attorney read that sentence and decide that an officer made a pedestrian stop without sufficient probable cause and, therefore that poor decision resulted in the use of force because the suspect would never have pulled the knife out of his pocket if he wasn’t illegally stopped? If there was no stop, there would have been no shooting, the logic would go. Just look at the Police Commission ruling in the Ezell Ford case.

The IG report recommending this policy change was based on two cases, both of which illustrate how the totality of the circumstances test imposed by this change was used in the past.

The California Supreme Court case of Hayes v. County of San Diego had the following facts. San Diego County Sheriff’s Deputy Michael King arrived at Shane Hayes’ residence in response to a neighbor’s call that she had heard screaming. Hayes’ girlfriend met Deputy King at the front door and told him that Hayes had tried to kill himself earlier that evening by inhaling exhaust fumes from his car. Hayes had tried to harm himself on other occasions, and she was concerned for his safety. Deputy King asked if there were any guns in the house and she said no.

A few minutes later, Deputy Sue Geer arrived. The two deputies entered the house to determine whether Hayes was a danger to himself. With their guns holstered, the deputies walked into the living room and saw Hayes standing in the kitchen. Deputy King ordered Hayes to show his hands. As Hayes did so, he walked toward the deputies, holding in his raised right hand a large knife. The deputies simultaneously drew their guns and fired two shots each at Hayes, who was then between 2 and 8 feet away. Hayes died from the gunshot wounds.

The California Supreme Court ruled that under negligence tort law, the officer’s pre-shooting conduct (such as failure to get psychiatric advice prior to entering) could be considered in deciding whether the shooting was negligent. In other words, it could be an out of policy use of force because the deputies did not call mental health services before they went in. That previous poor decision went in the door with them and any use of violence, no matter how necessary at the moment they used it, could be negligent because they provoked the dangerous situation that resulted in the use of deadly force.

The Eula Love case came out of Los Angeles. Love used a shovel to strike a gas company employee who came to turn off her gas because she hadn’t paid the bill, causing a contusion. She prepared to hit him again. He later described her as “frothing at the mouth,” and he prudently decided to leave. He called the police and signed an ADW report. Two LAPD officers, Hopson and O’Callaghan were called to the scene when the gas company supervisor returned to the scene and were advised of the ADW report that had been filed.

What they observed when they arrived at the scene was a woman walking back and forth in front of her house waving a knife and screaming at the gas company employees. They drew their guns as they approached and ordered her to drop the knife. She began making thrusting motions with the knife. Officer O’Callaghan drew his baton. A child came out of the house. They ordered her back inside. They could hear other children in the house. She then started to move towards the house’s door. Officer O’Callaghan knocked the knife from her hand with his baton. She reached down, grabbed the knife and brought it up to throw. She threw and both officers fired all at the same time.

Chief Gates analyzed the decision to use force at the time the officers fired. He found that they were both in policy because at the time that they decided to fire, they were in danger of great bodily harm.

It became a media event. The Police Commission ruled the use of force was out of policy based on the decision the officers made to draw their guns when they approached Love. That decision to draw elevated the situation to the point where they had to use force, said the Commission; therefore, the decision to draw caused the force to be out of policy. Also, both officers fired six rounds in rapid re. The commission opined that there were too many shots fired, so that also violated policy and made it out of policy. Therefore, tactics before the decision to shoot and after the decision to shoot were used to make it an out of policy use of force.

Given that background, and the Ford case, there is a distinct possibility that a future use of force could be ruled out of policy because of insufficient probable cause to do a pedestrian stop; or any other violation of rules, especially if it is a controversial use of force.

The use of force policy in effect before this change was based on constitutional principles laid down by Graham v. Connor.  It is derived from a Fourth Amendment legal standard, “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 new sentence added to the use of force policy is based on the Hayes v. County of San Diego case.  This is a California Supreme Court case that is based on California negligence law. What is being done now is that a use of force policy based on the federal constitution has a California negligence case grafted onto it. Sort of like grafting a bean stalk onto an oak tree or mixing water and oil. It won’t be pretty and more importantly it won’t be easily understood.

For instance “reasonable” has different meanings between the federal standard and the tort standard.  As Hayes itself says: The Fourth Amendment’s ‘reasonableness’ standard is not the same as the standard of ‘reasonable care’ under tort law, and negligent acts do not incur constitutional liability.” Explain that to a probationer! The Department has been derelict in providing training in these distinctions, if they are even aware of them.

The Police Commission tells us that this is only a clarification” of the policy, not a change. They have been applying these principles of the total circumstances of a use of force for a long time, they said.

Not really. It is true that when an officer’s state of mind is an issue, facts leading up to the use of force are considered, such as knowledge concerning the suspect, or the suspect’s gang, or roll call information, etc. This is like comparing apples and oranges when talking about tactics and decisions leading up to a use of force being used to decide if the use of force is in policy. Furthermore, if the Commission has been applying these principles for a long time, why the need for a change (clarification)?

Categorical uses of force are currently broken down into three logical components: tactics, drawing and exhibiting your weapon, and the use of force itself. Each component is examined by a Use of Force Board, and each component receives its own adjudication. A substantial deviation from Department policy and/or training results in Administrative Disapproval. Before the addition of the new wording, a wrong decision prior to the use of force or bad tactics results in Administrative Disapproval for tactics, but not for the use of force. The use of force itself was adjudicated under the Graham v. Conner standard.  If you make a bad tactical decision would you rather have Administrative Disapproval-Tactics on your TEAMS, or Administrative Disapproval-Use of Force? Which does more damage to your future career, do you think?

More seriously, how does this “clarification” affect the ability of the City Attorney to protect you and the taxpayer’s money in a civil suit? What kind of complications does this make for the District Attorney trying to prosecute suspects who assault police officers? And finally, what impact will this more confusing standard have on the officer on the street? Hesitation? Disengagement? Fewer observational stops for fear of being accused of making mistakes?

This addition to the use of force policy was a bad idea. The question is can the League do anything about it? The best case scenario is for the Hayes language to be withdrawn from the policy. Second best is for the Police Commission to add a few extra sentences to the policy to “clarify” what they have been claiming, i.e., that this is meant to be rarely used and then only in situations where the wrong decision or bad tactics actually cause the use of force.

Until then, you better be very sure that your stop passes constitutional standards, and even more important, that you can independently prove it. Your word is not good enough for the media or the activists, and the Police Commission all too often may sway with the political wind.

Be legally careful out there.


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