Use of Force Policy changed
again on Feb. 4, 2020
A new state law on using force went into effect on Jan. 1, 2020. Basically, LAPD policy was elevated to the status of state law, but some policy changes are still needed apparently. Although you have been subjected to the state law since Jan. 1, 2020, policy changes apparently move slower than the California legislature, which is not a high bar for speed.
The new Use of Force Policy is supposed to bring our policy in line with state law. You are also supposed to be going through training to make sure you understand the state law change, but as of this writing, the training hasn’t been figured out yet. Hopefully, you haven’t been involved in a use of force since New Year’s Eve.
For those of you who have more than 10 years on the job, let’s go through a little history to make sure you are not functioning under some of the old policy rules. Those with fewer than 10 years on the job have also lived with some policy changes in use of force, so let’s make sure you are also up to date.
Prior to 2009, the Use of Force Policy was spread out through about 14 LAPD Manual sections. Officers were to use a “minimum” amount of force that is “necessary” for achieving the police objective. A firearm was to be used to “protect himself or others from immediate threat of death or serious bodily injury.” You were to minimize the risk of death. “An officer does not shoot with the intent to kill; the officer shoots when it is necessary to prevent the individual from completing what he/she is attempting. In the extreme stress of a shooting situation, an officer may not have the opportunity or ability to direct his shot to a nonfatal area … however, in keeping with the philosophy that the minimum force that is necessary should be used, officers should be aware that, even in the rare cases where the use of firearms reasonably appears necessary, the risk of death to any person should be minimized.” The policy also stated: “Deadly force shall only be exercised when all reasonable alternatives have been exhausted or appear impracticable.” There were also sections on not shooting at vehicles, misdemeanor fleeing suspects or warning shots.
In 2009, Chief Bratton created a Best Practices Committee on the use of force, and trainers, researchers, command staff, City Attorneys, national use of force experts, a Board of Police Commission sub-committee and the League all had countless meetings to come up with a single use of force document that could be understood by everyone. The recommendations of the International Association of Chiefs of Police were heavily relied upon to develop the policy. Consistent with the IACP recommendations, the objective reasonableness standard of Graham v. Connor was used.
On July 14, 2009, the new Use of Force Policy was issued as Special Order No. 36 after approval by the Police Commission. Most importantly, the previous manual sections about “minimal” use of force and “all reasonable alternatives have been exhausted” were not in the new policy at the express recommen- dation of the IACP guidelines. (IACP National Law Enforcement Policy Center, Use of Force, Concepts and Issues Paper, February 2006, pg. 4)
Then in 2014, the Inspector General thought the use of force policy should be modified to fit the case of Hayes v. County of San Diego. And so, a sentence and a lot of trouble were added to the policy by Special Order No. 4, making previous tactical mistakes imported to whether a use of force was in policy. The words added were: “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 deadly force.”
In 2017, de-escalation became the flavor of the month, like it was some-thing new (even though I was taught to de-escalate at the Academy in 1970). The Police Commission insisted that they wanted to see it in writing in the policy. So, on April 18, 2017, Special Order No. 5 came out. It added: “Officers shall attempt to control an incident by using time, distance, communications, and available resources in an effort to de-escalate the situation, whenever it is safe and reasonable to do so.”
And then, state law was changed and signed by the governor on Aug. 19, 2019, to take effect on Jan. 1, 2020. The Department responded by revising the Use of Force Policy and getting it approved by the Police Commission, except it had to go out for public comment for 30 days.
Twelve organizations recommended changes, and the Department responded to all of them and revised their previous policy. And here we are with Special Order No. 4 (No. 4 again, by coincidence) now dated Feb. 5, 2020. A day late and a dollar short for those who had a categorical use of force after Jan. 1. And still a dollar short until you have received the promised re-training. The new Special Order No. 4 specifically states that it is meant to conform to the new state law, 835 (a) of the Penal Code.
Here are the changes made to the previous 2017 Use of Force Policy.
1. The sentence in the preamble requiring an effort to de-escalate has an added term. “Officers shall attempt to control an incident by using time, distance, communication, and available resources in an effort to de-escalate the situation, whenever it is safe, feasible, and reasonable to do so.” An extra descriptor can be helpful.
2. Again in the preamble, the following sentence is added. “Officers may use deadly force only when they reasonably believe, based on the totality of circumstances, that such force is necessary in defense of human life.” This is language used by the new law. Sneakily, “totality of circumstances” now has a new definition.
3. Preamble again. “Or unnecessary deadly force” is added to unreasonable force as subjecting the Department to potential civil and criminal liability.
4. The requirement to de-escalate now gets its own paragraph under the Policy section. “Use of De-Escalation Techniques. It is the policy of this Department that, whenever practicable, officers shall use techniques and tools consistent with Department de-escalation training to reduce the intensity of any encounter with a suspect and enable an officer to have additional options to mitigate the need to use a higher level of force while maintaining control of the situation.”
5. “Non-Deadly” has been added to the use of force paragraph to make sure that you know that deadly force is a different matter.
6. Another factor has been added to the “Factors Used To Determine Objective Reasonableness” stan-dards: “The feasibility of using de-escalation tactics.” Are you sensing a pattern here?
7. The Use of Force-Deadly section restates the preamble: “Officers shall use deadly force upon another person only when the officer reasonably believes, based on the totality of circumstances, that such force is necessary for either of the following reasons.” Both reasons remain substantially the same.
8. New paragraph: “In determining whether deadly force is necessary, officers shall evaluate each sit-uation in light of the particular circumstances of each case and shall use other available resources and techniques if reasonably safe and feasible.” De-escalation again.
9. New paragraph: “Note: Because the application of deadly force is limited to the above scenarios, an officer shall not use deadly force against a person based on the danger that person poses to themselves, if an objectively reasonable officer would believe the person does not pose an imminent threat of death or serious bodily injury to the officer or another person.” This mirrors language in the statute. Call MEU or walk away if this fits.
10. New paragraph: “The Department’s Evaluation of Deadly Force. The Department will analyze an officer’s use of deadly force by evaluating the totality of the circumstances of each case consistent with the California Penal Code Section 835 (a), as well as the factors articulated in Graham v. Connor.” An extra source of administrative disapproval imported by reference into the Use of Force Policy has been added.
11. The exception for shooting at or from moving vehicles has an added requirement. It must be “consistent with this policy in regard to the use of Deadly Force.”
12. Feasible gets a definition: “Feasible means reasonably capable of being done or carried out under the circumstances to successfully achieve the arrest or lawful objective with- out increasing risk to the officer or another person.”
13. Hayes sneaks back in. The definition of “Totality of the Circumstances” now has a twist. It is defined as “All facts known to or reasonably perceived by the officer at the time, including the conduct of the officer and the subject leading up to the use of force.” At least now we get to look at the subject, too.
The bottom line is that the three-legged stool of use of force survival—Knowledge, Articulation and Accuracy, are now more important than ever. You need to know the above changes well enough to react without thinking of them. You need to articulate during that all-important initial FID interview. And you must be accurate in the face of all those videos.
Even the Chief says so. See his message to the troops from December 2019 about the new law at the Department’s YouTube video titled “Chief’s December 2019, AB 392 Message.”
You need to know de-escalation. You need to articulate your reasons for not using certain options. And you better be accurate, or it will look like you are using lame excuses rather than reasons.
And make sure you are part of the League’s Legal Plan, and may you never need it.
Be legally careful out there.
