Another use of force policy issued
Here we go again. Another law is going into effect on Jan. 1, 2021, requiring that all law enforcement agencies have certain specific policies related to uses of force. It is SB 230. For the most part, LAPD is already in compliance with SB 230 and has been for years. The policies that put us in compliance, however, are somewhat scattered throughout the manual, tactical bulletins and other places. The new use of force policy gathers those policies together into one document, plus some additions based on language in SB 230 and other places.
This is the fifth use of force policy change since 2009. It is vital that you understand the new use of force policy. The new national normal is to file criminal charges on police officers to appease the mob, gain political favor or, in some cases, because the officer has actually committed a crime.
All too often, the prosecution tendency is to shoot, then aim. Witness the filing of criminal charges on the Atlanta officer involved in the shooting of the suspect who fought with the officer, grabbed the officer’s Taser and fled. The officer pursued and shot the suspect when he turned and fired the Taser at the officer. The prosecutor filed charges before the investigation had been completed.
Knowledge, articulation and accuracy are the three legs of the use of force survival stool. This article addresses knowledge. Know the policy. It can and will be held against you if you do not.
This is a list of the changes in the new use of force policy from the use of force policy that came out as Special Order No. 4, issued on Feb. 5, 2020. See my Warning Bells article in March 2020 for a list that Special Order No. 4 changed from the previous use of force policy.
1. Under the policy section, the requirement to de-escalate remains, but three other requirements are now added.
1a. Where feasible, prior to the use of any force, you must make reasonable efforts to identify yourself as an officer and warn that force may be used.
1b. A new requirement of “proportionality” has been added to the use of force policy. The language is straight out of the language of AB 230. “Officers may only use a level of force that they reasonably believe is proportional to the seriousness of the suspected offense or the reasonably perceived level of actual or threatened resistance.” The level of force that you use will be compared to the level of threat/resistance. You are expected to overcome resistance, but not expected to over-over-come resistance.
1c. SB 230 requires that a department’s policy explicitly states a requirement that “officers carry out duties, including use of force, in a manner that is fair and unbiased.” The Department came up with this language in the use of force policy. “Fair and Unbiased Policing. Officers shall carry out their duties, including use of force, in a manner that is fair and unbiased. Discriminatory conduct on the basis of race, religion, color, ethnicity, national origin, age, gender, gender identity, gender expression, sexual orientation, housing status or disability while performing any law enforcement activity is prohibited.” Know your search and seizure, turn on your BWV and know the use of force policy. This addition will be the basis of many personnel complaints and lawsuits.
2. The non-deadly force policy of using force, which is objectively reasonable to defend yourself, defend others, effect an arrest or detention, prevent escape or overcome resistance, remains the same. Under the “Factors Used To Determine Objective Reasonableness,” there has been additional language added based on AB 230 requirements. “The feasibility of using de-escalation tactics, crisis intervention or other alternatives to force.” Expect that there will be extensive discussions in your FID interview about de-escalation and all the other things you could have done before you used force. An additional factor also has been added to the factor list. “Whether a person is a member of a vulnerable population.” Pregnant, handicapped, etc., relates to the proportionality requirement.
3. SB 230 requires “clear and specific guidelines” on drawing a firearm or pointing a firearm. The result was that the LAPD Manual section 1/556.80 on drawing and exhibiting was copied into the use of force policy. What was added that is new, however, is a requirement that an “intentional pointing of a firearm at a person by an officer shall be reported” and “such reporting will be published in the Department’s year- end use of force report.” If you do point your firearm at a person (low ready doesn’t count), you must now report it by checking the box in the appropriate pull-down menu in your AFDR.
4. Under the deadly force policy, there is an additional requirement using the words of SB 230. “Before dis- charging a firearm, officers shall consider their surroundings and potential risks to bystanders to the extent reasonable under the circumstances.” IDOL should still apply, but this will undoubtedly be listed in lawsuits.
5. SB 230 requires that the use of force policy address rendering aid. This was already in an LAPD Training Bulletin, but the word “should” was changed to “shall” in the addition to the use of force policy. “Rendering Aid. After any use of force, officers shall immediately request a rescue ambulance for any person injured. In addition, officers shall promptly provide basic and emergency medical assistance to all members of the community, including victims, witnesses, subjects, suspects, persons in custody, subjects of a use of force and fellow officers: To the extent of the officer’s training and experience in first aid/CPR/AED; and to the level of equipment available to an officer at the time assistance is needed.”
6. SB 230 requires that excessive force be reported. Language taken directly from SB 230 was added to the use of force policy. “Requirement to Report Potential Excessive Force. An officer who is present and observes another officer using force that the present and observing officer believes to be beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances based upon the totality of information actually known to the officer, shall report such force to a superior officer.” LAPD policy has always required that misconduct be immediately reported to a supervisor, so this is not a change except that it is specific to uses of force.
7. SB 230 also requires that there be a duty to intercede. Again, the language in the statute has been added to the use of force policy. “Requirement to Intercede When Excessive Force is Observed. An officer shall intercede when present and observing another officer using force that is clearly beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances, taking into account the possibility that other officers may have additional information regarding the threat posed by a subject.” Again, LAPD policy has always required that officers take steps to end misconduct occurring in their presence.
8. A definition of necessary” has been added to the use of force policy. The word “necessary” is used in the deadly use of force policy. “It is the policy of this Department that 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: To defend against an imminent threat of death or serious bodily injury to the officer or to another person; or To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended.”
Necessary is now defined in the policy. “Necessary. In addition to California Penal Code 835(a), the Department shall evaluate whether deadly force was necessary by looking at: a) the totality of the circumstances from the perspective of a reasonable Los Angeles police officer with similar training and experience; b) the factors used to evaluate whether force is objectively reasonable; c) an evaluation of whether the officer exhausted the available and feasible alternatives to deadly force; and d) whether a warning was feasible and/ or given.” This gives you a map of how a Use of Force Board is going to analyze your Categorical Use of Force. Start thinking about it before your FID interview, and make sure you cover everything.
9. A definition of “vulnerable population” is added because of the previously mentioned vulnerable population factor. “Vulnerable Population. Vulnerable populations include, but are not limited to, children, elderly persons, people who are pregnant, and people with physical, mental and developmental disabilities.”
Those are the changes in the latest policy. Be aware. Uses of force are under the microscope. Prosecutors are under pressure to file criminal charges against police officers, and the Department is under equal pressure to “reform” LAPD. The fact that we have been the most progressive police department in the nation does not matter. Protect yourself with knowledge, articulation and accuracy.
Be legally careful out there.
