Recommendation 4.10: Establish robust processes for reporting and investigating uses of force.

Developing a comprehensive force policy is the first step toward reducing excessive use of force. Departmental policies should also provide clear guidance for officers to report uses of force and for supervisors to review and investigate them.^[1]Uses of force that go beyond “hand controls” and “escort techniques,” which are used to handcuff unresisting individuals and generally do not cause pain or injury, should be reported and investigated.^[2]Specifically, departments should:

Provide clear guidance on reporting, reviewing, and investigating force. After using force, officers and witness officers should orally notify supervisors of the incident.^[3]Instead of requiring officers to merely note uses of force on arrest reports, departments should maintain separate files for use-of-force reports so they can track each incident. Officers should file force reports before the end of the shift during which the incident occurred.

All involved officers should provide detailed narratives of the facts leading to the use of force.^[4]  Without accurate and timely reporting, even the most comprehensive use-of-force policies will fail. Incomplete, vague, or boilerplate language in use-of-force reports allows violations to go unchecked and cripples misconduct investigations, so this type of language should be prohibited. Officers who fail to report uses of force, or who falsify reports, should be disciplined (up to and including termination).^[5]

Departmental policies should require the review and investigation of all reported uses of force.  Supervisors should respond to the scene of all incidents involving anything beyond lower-level uses of force, such as pressure point compliance and joint manipulation (which generally do not cause injury or significant pain).^[6]While nonreportable and lower-level uses of force do not require a supervisor response, supervisors can, upon notification, opt to respond to the scene; they may conclude that the force used was excessive even if minimal.

If they do not respond to the scene, supervisors should review force reports for lower-level uses of force by the end of the shift during which the force occurred.^[7]Additionally, supervisors should visit the scene and investigate nonreportable and lower-level uses of force upon complaint of pain or injury. Departments should require officers to file use-of-force reports for non-reportable uses of force when there has been an injury or complaint of injury.[8]

Force investigations should be fair, thorough, objective, and completed in a timely manner to adhere to the principles of procedural justice. Transparent policies that detail the investigation process give both the public and officers clear expectations. Specific factors for determining reasonable uses of force reduce the appearance and occurrence of bias and arbitrariness in decisions. And timely investigations build legitimacy, give community members a sense of closure, and allow officers who did not violate policy to return to work quickly.

In determining the reasonableness of force,department leaders should consider officers’ tactical conduct and decision-making before and during the incident.^[9]In the shooting death of Dontre Hamilton, for example, internal affairs investigators at the Milwaukee Police Department found that the involved officer was within his rights at the timehe used deadly force.^[10]However, they also found that his decisions and actions leading up tothe incident created the need to use force. Because he did not apply his training and crisis intervention leading up to the use of force, and because he identified that Hamilton was in a mental health crisis, he was fired.^[11]

Some departments employ dedicated squads of specialized force investigators who conduct investigations of mid-level and serious force incidents.^[12]The New Orleans Police Department’s Force Investigation Team investigates all serious and potentially criminal uses of force, all uses of force by officers ranked higher than sergeant, and all in-custody deaths.^[13]

Respond fairly and appropriately to policy violations. When force investigations find that officers have violated policy, supervisors should impose discipline and interventions that comport with policies and procedures. Departments should commit to fairly and impartially enforcing their use-of-force policies. Lax accountability, or cultures where written policies aren’t respected or followed, render even the best-written policies powerless.^[14]

Departments should integrate use-of-force expectations into disciplinary measures and establish clear, fair penalties for policy violations. They should also publish disciplinary rules in conjunction with use-of-force policies. When policy is violated, departments should publicly disclose final disciplinary actions. The LAPD releases abridged summaries of use-of-force incidents on its website, including summaries of the incident and administrative findings.^[15]

Departments can strengthen accountability by maintaining publicly accessible electronic tracking systems for force data.^[16]To reevaluate and continuously improve policies and training, departments should track and analyze incidents that identify systemic patterns of harmful or excessive force (e.g., incidents where no force was necessary but an officer nonetheless used a Taser or other weapon).^[17]

Departments should also aggregate use-of-force data and integrate it into nondisciplinary early intervention systems to identify problematic trends in other areas (e.g., stop-and-search practices and wellness indicators) to provide professional and personal development and to prevent crises. (For more detail, see Chapters 7 and 8.)

Publicly release information about serious and lethal uses of force as soon as possible. Departments should release basic or preliminary information soon after officer-involved shootings or other serious use-of-force incidents occur and should regularly update the public as new information becomes available (to the extent permitted by concurrent criminal investigations).^[18]The Las Vegas Metropolitan Police Department, for example, releases the name, rank, tenure, and age of the involved officer to the public within 48 hours and conducts a media briefing within 72 hours.^[19]These and other practices illustrate how to quickly give the public information about uses of force even during internal or criminal investigations. Such transparency enhances community trust in police and in its internal investigative processes.

Make use-of-force policies publicly available. Although not yet standard, many departments have begun to implement publicly accessible policies and systems.^[20]Enabling the public to read police policies, especially those governing the use of force, increases people’s ability to understand and offer input on departmental practices.^[21]To promote transparency and accountability, departments should make them available upon request and publish policies online in standard as well as alternative and accessible formats.

Engage communities in developing and revising use-of-force policies. As with virtually every other aspect of democratic government, police policies should be formulated with public participation and deliberation. Communities should participate directly in developing the policies and practices that police departments use to preserve public safety, including, and especially, those regarding the use of force. As discussed elsewhere in this report, community participation in policing improves transparency, accountability, legitimacy, and trust — and protects communities and officers.^[22]

 

 

[1]See Samuel Sinyangwe, Examining the Use of Force Policies in Ending Police Violence2-3 (2016) (finding that a policy requiring officers to report both uses of force and threats/attempted uses of force led to a 25% reduction in the number of police-involved killings per population), https://static1.squarespace.com/static/56996151cbced68b170389f4/t/57e17531725e25ec2e648650/1474393399581/Use+of+Force+Study.pdf; Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 Geo. Wash. L. Rev. 453, 529-30 (2004); Kami Chavis Simmons, New Governance and the “New Paradigm” of Police Accountability: A Democratic Approach to Police Reform, 59 Cath. U. L. Rev. 373, 395-98 (2010); see alsoData, Information, and Video Footage, supraChapter 8.

[2]See, e.g.,New Orleans Police Dep’t, Operations Manual: Use of Force 3-4 (2015), https://www.nola.gov/getattachment/NOPD/NOPD-Consent-Decree/Chapter-1-3-Use-of-Force.pdf/(describing hand controls and escort techniques as non-reportable uses of force).

[3]See, e.g.,Carmen Best, Chief of Police, Seattle Police Dep’t Manual, § 8.400 – Use of Force Reporting and Investigation, Seattle.gov 121 (Sept. 1, 2015), https://www.seattle.gov/police-manual/title-8—use-of-force/8400—use-of-force-reporting-and-investigation.

[4]Consent Decree, United States v. Police Dep’t of Baltimore, No. 1:17-CV-99-JKB, ¶ 173 (D. Md. 2017), https://www.justice.gov/opa/file/925056/download(requiring a detailed narrative that includes a specific description of the acts that led to the use of force and the force options that were available to the officers).

[5]United States v. City of Ferguson, No. 4:16-CV-00180-CDP, ¶ 177 (E.D. Mo. Mar. 17, 2016), https://www.justice.gov/opa/file/833431/download.;Consent Decree, United States v. Police Dep’t of Baltimore, No. 1:17-CV-99-JKB, ¶ 138 (D. Md. 2017), https://www.justice.gov/opa/file/925056/download.

[6]SeeUnited States v. City of Ferguson, No. 4:16-CV-00180-CDP, ¶ ¶ 180, 183 (E.D. Mo. Mar. 17, 2016), https://www.justice.gov/opa/file/833431/download; Amended and Restated Consent Decree Regarding the New Orleans Police Department, United States v. City of New Orleans, No. 12-CV-01924, ¶ 84 (E.D. La. 2018), https://www.nola.gov/getattachment/NOPD/NOPD-Consent-Decree/NOPD-Consent-Decree-2018-10-2.pdf/.

[7]SeeAmended and Restated Consent Decree Regarding the New Orleans Police Department, United States v. City of New Orleans, No. 12-CV-01924, ¶ 83 (E.D. La. 2018), https://www.nola.gov/getattachment/NOPD/NOPD-Consent-Decree/NOPD-Consent-Decree-2018-10-2.pdf/.

[8]New Orleans Police Dep’t, Operations Manual: Reporting Use Of Force, 4 (2015, revised 2018),  https://nola.gov/getattachment/NOPD/Policies/Chapter-1-3-6-Reporting-Use-of-Force-EFFECTIVE-4-01-18.pdf/.

[9]See, e.g.,L.A. Police Dep’t, Vol. 1 Policies on the Use of Force, § 556.10 (“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.”), http://www.lapdonline.org/lapd_manual/volume_1.htm#556.

[10]Police Exec. Res. Forum, Guiding Principles on Use of Force 37-38(2016), http://www.policeforum.org/assets/30%20guiding%20principles.pdf.

[11]Police Exec. Res. Forum, Guiding Principles on Use of Force 37-38(2016), http://www.policeforum.org/assets/30%20guiding%20principles.pdf.

[12] New Orleans Police Dep’t, Operations Manual: Use of Force 3 (2015), https://www.nola.gov/getattachment/NOPD/NOPD-Consent-Decree/Chapter-1-3-Use-of-Force.pdf/(Force Investigation Teams investigate all serious uses of force, all potentially criminal force, all uses of force by officers above the rank of sergeant, and all in-custody deaths);see also Las Vegas Metro. Police Dep’t, Use of Force Policy 31-32 (2017), https://www.lvmpd.com/en-us/InternalOversightConstitutionalPolicing/Documents/Use-of-Force-Policy-2017.pdf(listing different Force Investigation Team and Critical Incident Review Team responsibilities); Albuquerque Police Dep’t, Prof. Accountability Bureau, SOP 7-3, at § 7-3-5 (2016),http://documents.cabq.gov/police/standard-operating-procedures/7-03-force-investigation-team-fit.pdf(providing overviewof the relationship between the Force Investigation Team and Critical Investigation Review Team).

[13]New Orleans Police Dep’t, Operations Manual: Use of Force 3 (2015), https://www.nola.gov/getattachment/NOPD/NOPD-Consent-Decree/Chapter-1-3-Use-of-Force.pdf/.

[14]Samuel Walker, Institutionalizing Police Accountability Reforms: The Problem of Making Police Reforms Endure, 32 St. Louis U. Pub. L. Rev. 57, 66-67 (2012) (pointing out that “[a] written policy (e.g., on less-than-lethal force), no matter how well crafted, is nothing more than a piece of paper and will have no meaningful impact on police conduct if it is not properly enforced through a reporting requirement, thorough investigations, and the imposition of appropriate discipline where it is warranted.”); Wesley G. Skogan, Why Reforms Fail, 18 Policing & Soc’y 23, 26-30 (2008), https://www.tandfonline.com/doi/abs/10.1080/10439460701718534; Michael D. White, Controlling Police Decisions to Use Deadly Force: Reexamining the Importance of Administrative Policy, 47 Crime & Delinq.131, 146 (2001) (noting that “absent meaningful enforcement, administrative policies that purport to control officers’ discretion are mere homilies rather than guides to action”), https://journals.sagepub.com/doi/pdf/10.1177/0011128701047001006.

[15]L.A. Police Dep’t, Categorical Use of Force, http://www.lapdonline.org/categorical_use_of_force(last visited Jan. 10, 2019).

[16]See, e.g., Consent Decree, United States v. Police Dep’t of Baltimore, No. 1:17-CV-99-JKB, ¶¶ 212-15 (D. Md. 2017), https://www.justice.gov/opa/file/925056/download; Amended and Restated Consent Decree Regarding the New Orleans Police Department, United States v. City of New Orleans, No. 12-CV-01924, ¶¶ 67, 427-29  (E.D. La. 2018), https://www.nola.gov/getattachment/NOPD/NOPD-Consent-Decree/NOPD-Consent-Decree-2018-10-2.pdf/(requiring the New Orleans Police Department to conduct “audits of ECW deployment data” and “collect and maintain all data and records necessary to facilitate and ensure transparency and wide public access to information related to NOPD decision making and activities, as permitted by law.”);Consent Decree, United States v.City of Newark, No. 2:16-CV-01731-MCA-MAH, ¶ 75 (D.N.J. 2016), https://www.justice.gov/crt/file/868131/download. (mandating Newark police to “adopt a use of force reporting system”).

[17]SeeKami Chavis Simmons, New Governance and the “New Paradigm” of Police Accountability: A Democratic Approach to Police Reform, 59 Cath. U. L. Rev. 395-98  (2010) (recommending that departments implement “early warning tracking systems” to collect and analyze data regarding use of force and to investigate incidents of use of force); David A. Harris, How Accountability-Based Policing Can Reinforce—Or Replace—The Fourth Amendment Exclusionary Rule, 7 Ohio S.J. of Crim. Law149, 166-71 (2009) (discussing implementation of “early intervention systems” to identify officers’ behavioral patterns), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1411650; Philip M. Stinson, Sr. et al., Police Integrity Lost: A Study of Law Enforcement Officers Arrested1–2 (2016), https://www.ncjrs.gov/pdffiles1/nij/grants/249850.pdf; Rachel Moran, In Police We Trust,62 Vill. L. Rev. 953, 996–97 (2017), https://ssrn.com/abstract=2843769(recommending the mandatory implementation of “early intervention systems”).

[18]Police Exec. Res. Forum, Guiding Principles on Use of Force 52(2016), http://www.policeforum.org/assets/30%20guiding%20principles.pdf.

[19]SeeLas Vegas Metro. Police Dep’t, Use of Force Policy 33 (2017), https://www.lvmpd.com/en-us/InternalOversightConstitutionalPolicing/Documents/Use-of-Force-Policy-2017.pdf;Interdepartmental Correspondence from Inspector Gen., L.A. Police Comm’n, to Honorable Bd. of Police Comm’rs, Comparative Review of Selected Agency Policies, Investigations, and Training on the Use of Force: OIG Final Report 11 (Oct. 6, 2016), http://www.lapdpolicecom.lacity.org/101116/BPC_16-0119A.pdf(“The LVMPD stands out among the selected agencies because, as soon as it is feasible, this agency posts a video statement about every incident on YouTube. Approximately 48 hours after an [officer-involved shooting] incident, the LVMPD releases the name, rank, tenure, and age of the involved officer. Then, following an internal briefing approximately 72 hours later, the Undersheriff conducts a comprehensive media briefing.”).

[20]See, e.g.,Carmen Best, Chief of Police, Seattle Police Dep’t Manual, § 8.000 – Use of Force Core Principles, Seattle.gov (Sept. 1, 2015), https://www.seattle.gov/police-manual/title-8—use-of-force/8000—use-of-force-core-principles(requiring officers to explain use of force actions “to subjects or members of the public” and including subsections that describe policies on use of force);New Orleans Police Dep’t, Operations Manual: Use of Force 4-6 (2015), https://www.nola.gov/getattachment/NOPD/NOPD-Consent-Decree/Chapter-1-3-Use-of-Force.pdf/(outlining policies on use of force);Las Vegas Metro. Police Dep’t, Use of Force Policy 19 (2017), https://www.lvmpd.com/en-us/InternalOversightConstitutionalPolicing/Documents/Use-of-Force-Policy-2017.pdf(describing policies on use of force).

[21]The idea that police policies should be subjected to traditional rulemaking procedures, including public dissemination, has been floated for a half century.  See, e.g., Herman Goldstein, Police Policy Formulation: A Proposal for Improving Police Performance, 65 Mich. L. Rev. 1123, 1145-46 (1967), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2536598;see alsoOffice of Cmty. Oriented Policing Servs., U.S. Dep’t of Justice, The State of Policing in the United States46 (2016), https://ric-zai-inc.com/Publications/cops-w0815-pub.pdf.

[22]Eric. J. Miller, Challenging Police Discretion, 58 How.L.J.521, 523, 525 (2015) (lamenting that “community members lack the ability to participate in—and especially, to challenge—police policy at the front-end during the equivalent of the drafting and comment process” and advocating a “more republican, inclusive form of public participation in law-enforcement decision-making” in order “to give local communities and disadvantaged individuals a more meaningful voice in evaluating and checking local police policy”); Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the Federal Reform of Local Law Enforcement Agencies, 98 J. Crim. L. & Crim’y489, 494, 519-41 (2008), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=7289&context=jclc;see alsoDrew Diamond & Deirdre Mead Weiss, Office of Cmty. Oriented Policing Servs., U.S. Dep’t of Justice,Advancing Community Policing Through Community Governance: A Framework Document(2009), https://www.masc.sc/SiteCollectionDocuments/Public%20Safety/advancing%20community%20policing.pdf; Office of Cmty. Oriented Policing Servs., U.S. Dep’t of Justice,Community Policing Defined(2014), https://ric-zai-inc.com/Publications/cops-p157-pub.pdf; Int’l Assoc. of Chiefs of Police,IACP National Policy Summit on Community-Police Relations: Advancing a Culture of Cohesion and Community Trust19-20 (2015), https://www.theiacp.org/sites/default/files/2018-09/CommunityPoliceRelationsSummitReport_web.pdf.