December 2018 – Warning Bells article

Use of force “Clarification” clear as mud


The Department’s “Clarification” notice issued on Jan. 22, 2018, says this: “The courts have held that Less-Lethal force are capable of inflicting significant pain and may cause serious injury. Therefore, consistent with the Department’s Use of Force Policy, Less-Lethal force options are only permissible when: An officer reasonably believes the suspect or subject is violently resisting arrest or poses an immediate threat of violence or physical harm. Less-Lethal force options shall not be used for a suspect or subject who is passively resisting or merely failing to comply with commands. Verbal threats of violence or mere non-compliance do not alone justify the use of Less-Lethal force.”

The notice, however, doesn’t say what you should do instead of what you now cannot do. The option that an officer formerly had, to use less-than-lethal force because a suspect was unsafe to approach, has been eliminated. An officer is now required to go “hands on” with a suspect, and less-than-lethal tools cannot be used until the suspect violently resists. When that happens, the officer may be hurt or disarmed and required to use deadly force.

For example: There is a broadcast of a “415 man with a gun” radio call. When the officers arrive, the suspect is standing on the street with his hands in his pockets. Repeated orders to show his hands are ignored. Now what? Approach? What if he is armed?

Or this example: There is a broadcast of an “ADW just occurred” radio call. When the officers arrive, the suspect is standing in the street, holding a bloody knife. He does not advance or retreat. Repeated orders to drop the knife are ignored. Now what? Approach? Take the first stab?

In both cases, any use of less-lethal force would be Administratively Disapproved because the subject is not violently resisting arrest and does not pose an IMMEDIATE threat of violence or physical harm.

For decades (including my Academy class in 1970), the Department has taught that less-lethal force could, and should, be used when “there is a reasonable expectation that it will be unsafe for officers to approach within contact range of the suspect.” An officer does not want to tie up with a suspect who may be armed or who is likely to fight, ending up in a tussle over who controls an officer’s weapon. The Taser and beanbag shotgun solved these types of problems from a distance.

This tactical philosophy was in writing at least through the December 2015 Use of Force-Tactics Directive, Electronic Control Device Taser (Directive No. 4.4), which states: “The TASER may be used on suspects who are violent, or who pose an immediate threat to themselves or others, when an officer reasonably believes: Attempts to subdue the suspect with other tactics have been, or will likely be, ineffective in the situation; or 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.” [emphasis added] Although, violent and immediate
threat were required.

Then came the “clarification” followed by the July 2018 Use of Force-Tactics Directive, Electronic Control Device Taser (Directive No. 4.5), which significantly alters the previous policy on the use of the Taser by completely eliminating the unsafe-to-approach language. The directive states: “The courts have held that Less-Lethal force options are `capable of inflicting significant pain and may cause serious injury.’ Therefore, consistent with the Department’s Use of Force Policy, Less-Lethal force options are only permissible when: An officer reasonably believes the suspect or subject is violently resisting arrest or poses an immediate threat of violence or physical harm. Less-Lethal force options shall not be used for a suspect or subject who is passively resisting or merely failing to comply with commands. Verbal threats of violence or mere non-compliance by a suspect do not alone justify the use of Less-Lethal force. An officer may use the TASER as a reasonable force option to control a suspect when the suspect poses an immediate threat to the safety of the officer or others.” Unsafe to approach as a concept is gone.

What has happened is a Department overreaction to case law. The 9th Circuit Federal Appeals case Bryan v. MacPherson, 630 F.3d 805, (2010) is usually cited as the seminal case raising the use of the Taser to an intermediate level of force capable of inflicting significant pain and that may cause serious injury. Other cases bring other less-lethal tools
into the same category. But the raising of the categorization of the Taser, OC and beanbag to an intermediate level of force does not ban their use. It only means that the Graham v. Connor balancing test adds an increased weight to the use of the tools whose use can still be justified. The Department’s overreaction consists of banning these tools in place
of training officers to properly evaluate and articulate when the tools can be legally used.

This overreaction was completely unnecessary. When Bryan v. McPherson was decided in 2010, Councilmember Bernard Parks made a motion in City Council for “an evaluation of the Bryan v. McPherson case and its impacts on the City of Los Angeles and LA PD’s existing policy for the use of stun guns and whether this policy is within use-of- force guidelines.” The Department and the City Attorney evaluated the issue and reached this conclusion: “The Bryan v. 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.”

And yet the July 2018 Use of Force Directives did just that, to your detriment. The good news is that there are elements in the command staff who are uneasy with the confusion that the clarification has caused. The League is not done with this issue either. We are talking to the Department with the hope that we can solve these issues, but should that fail, we will file an Unfair Labor Practice against the Department for failing to meet and confer before altering the policy and changing our members’ working conditions.

The policy should reflect the fact that less-lethal uses of force are subject to the Graham v. Connor balancing test. Officers should be trained that Tasers, batons, beanbags and OC are considered intermediate levels of use of force requiring a greater government interest to deploy, but it is still a fact-specific balancing test. The factors considered by the courts should be taught to the officers. The result would be that the 415 man with a gun suspect, and the suspect holding the bloody knife, would be tasered, or bean-bagged, within Department policy. No need for an officer to be shot or stabbed before less-lethal options could be deployed.

The bottom line is the safety of our officers and the public. Everyone should keep that in mind.

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