Aurora Police Department Use of Force Adjudication PDF

05.08 5.8.01 USE OF FORCE ADJUDICATION Approved By: Art Acevedo, Interim Chief of Police Effective: Aug-18-2023 Revised: Aug-18-2023 Associated Policy: DM 05.01, 05.02, 05.06, 08.32, 09.06 References: C.R.S. § 18-1-707, 18-8-802, 24-31-905, SO 23-03 Review Authority: Professional Standards and Train...

05.08 5.8.01 USE OF FORCE ADJUDICATION Approved By: Art Acevedo, Interim Chief of Police Effective: Aug-18-2023 Revised: Aug-18-2023 Associated Policy: DM 05.01, 05.02, 05.06, 08.32, 09.06 References: C.R.S. § 18-1-707, 18-8-802, 24-31-905, SO 23-03 Review Authority: Professional Standards and Training Division Chief and APD Legal Advisor(s) PURPOSE The purpose of this directive is to provide sworn members of the Aurora Police Department (APD) with clear and direct guidelines to follow when adjudicating Tier One, Two, and Three uses of force. This directive also defines the membership, mandate, and operational workflow of the Force Review Board (FRB). Through a thorough adjudication process, APD seeks to establish and sustain a culture of continuous improvement, critical self-evaluation, and promotion of APD’s mission and values. 5.8.02 SCOPE This directive applies to all sworn members of APD tasked with adjudicating use of force incidents. Uses of force will be reviewed for policy compliance, conformance to law, and the objective reasonableness of the application of force. 5.8.03 DEFINITIONS Definitions from the following directives apply to this directive: 5.8.04 - DM 05.01 - Use of Force - DM 05.02 - Use of Force Model - DM 05.03 - Less-Lethal Devices, Weapons, and Techniques - DM 05.04 - Authorized Firearms, Weapons, and Ammunition - DM 05.05 - Reporting Use of Force - DM 05.06 - Investigating Use of Force - DM 05.07 - Investigating Use of Lethal Force POLICY The policy of the Aurora Police Department is that all uses of force are adjudicated in a timely, thorough, impartial, and accurate manner. APD commits to using a transparent adjudication process and a process of critical analysis leading to continuous improvement to further the legitimacy of the agency by the public and promoting trust between the APD and the community we serve. Page 1 of 10 DM 5.08 - Adjudicating Uses of Force 5.8.05 Revised: Aug-18-2023 CORE PRINCIPLES The following core principles are provided to guide sworn members regarding when the adjudication of useof-force incidents: Accountability: We are responsible for our actions and decisions. We are committed to holding ourselves and each other responsible for misconduct and performance failures. Continuous Improvement: Building a culture dedicated to bettering performance individually and as a department is crucial for a professional law enforcement agency. Use of force review can provide valuable lessons for individual sworn members as well as show trends, patterns, and areas where the agency needs strengthening or where the department is excelling in training (such as baseline arrest control proficiency) and policy updates that can be used to enhance department operations. Critical Assessment: Evaluation of use of force incidents should identify successes, failures, and constructive steps needed to improve for individual members and collectively as an agency. Objectivity: Use of force adjudications shall focus on the facts and circumstances pertinent to the use of force and precipitating events. The review and determination of whether the use of force complies with department policies and state, federal, and binding case law shall be free of personal bias or agenda. Opinions or statements that are not a component of conducting a fair and unbiased analysis shall not be included in the review. 5.8.06 USE OF FORCE REVIEW RESPONSIBILITIES Chain of Command: The review and adjudication of a Tier One use of force will be handled by the involved sworn member’s chain of command up to their captain or commander. Force Review Board: Tier Two and Three uses of force will be reviewed and adjudicated by the Force Review Board (FRB). The FRB will also review Tier One cases at the request of the subject member’s chain of command, which require further review or as directed by the Chief of Police or designee. The FRB will evaluate the need for department-wide improvements relative to the following: - Tactics - Training - Policy - Supervisory incident management, investigation, and documentation of the use of force incident. Generally, use-of-force incidents can have significant training value. A sworn member of any level of the review process may recommend that material from a use-of-force incident be used for training. The sworn member shall be notified before their reports and videos are used for training. Videos shall be approved for training by the Chief of Police or designee DM 16.04.22 - Body-Worn Cameras and requested for download through the Electronic Support Section (ESS). No use of force shall be used for training until the chain of command or FRB has adjudicated it. Page 2 of 10 DM 5.08 - Adjudicating Uses of Force 5.8.07 Revised: Aug-18-2023 FACTORS CONSIDERED IN THE ADJUDICATION OF USES OF FORCE The following dimensions should be considered when adjudicating a use of force at any level of review (also see Use of Force Report Considerations: - Information Sharing: Available information sought and obtained pre-contact. Aurora911 information, CAD/RMS location history, RP statements, other sworn members, etc. - Pre-Event Decision-Making: Efforts made prior to contact. Coordination of resources, avenue of approach, contact/cover, use of cover/concealment. - Communication: Efficacy of communication between sworn members, assignment of sworn member roles, airing of new/changing information, and communication between Aurora911 and sworn members. - Lawful Presence: Legal basis for contact, including the lawful authority for all actions. Dispatched call or proactive contact, Private/Public area, Consent/Reasonable Suspicion/Probable Cause, Implications of bias DM 08.32 - Bias-Based Policing - De-Escalation: Taking action or communicating verbally or nonverbally during a potential force encounter in an attempt to stabilize the situation and reduce the immediacy of the threat so that more time, options, and resources can be called upon to resolve the situation without the use of force. - Use of Force Analysis: Objective reasonableness of the actions taken by sworn members in light of the facts and circumstances confronting them at the time of the incident. The review of each use of force shall be based on the totality of the circumstances faced by sworn members, including: Graham v. Connor, 490 US 386 - Supreme Court 1989 - The severity of the crime. - The immediate threat to the sworn member(s) or others. - Whether the subject was actively resisting arrest or attempting to evade arrest by flight. Per C.R.S. § 18-1-707(1), a peace officer may use physical force only if nonviolent means would be ineffective in: - effecting an arrest; - preventing an escape or; - preventing an imminent threat of injury to the peace officer or another person. Per C.R.S. § 18-1-707(2), when physical force is used, a peace officer shall: - Not use deadly physical force to apprehend a person who is suspected of only a minor or nonviolent offense; - Use only a degree of force consistent with the minimization of injury to others; - Ensure that assistance and medical aid are rendered to any injured or affected persons as soon as practicable; and Page 3 of 10 DM 5.08 - Adjudicating Uses of Force - Revised: Aug-18-2023 Ensure that any identified relatives or next of kin of persons who have sustained serious bodily injury or death are notified as soon as practicable. Per C.R.S. § 18-1-707(3), a peace officer is justified in using deadly physical force to make an arrest only when all other means of apprehension are unreasonable given the circumstances and: - The arrest is for a felony involving conduct including the use or threatened use of deadly physical force; - The suspect poses an immediate threat of death or serious bodily injury to the peace officer or another person; - The force employed does not create a substantial risk of injury to other persons. Other factors pertaining to the use of force analysis MAY include: - Information as to the subject’s proximity and access to weapons. - Subject’s apparent intoxication. - Subject’s apparent size, strength, physical skill, and ability. - Subject’s perceived mental health. - Time available to the sworn members to make a decision or attempt to resolve the situation through non-violent means. - Environmental factors. - Risk posed to the public and other exigent circumstances. - Additionally, APD uses the criteria of the non-binding decision of Hill v. Miracle - Court of Appeals, 6th Circuit 2017, to evaluate the use of force on subjects experiencing a medical or mental health-related emergency in which no criminal charges exist. The non-exhaustive factors listed in the above decision for determining whether officers’ actions were objectively reasonable are: - Subject was experiencing a medical or mental health-related emergency and incapable of making rational decisions. - Some degree of force objectively reasonable to ameliorate the immediate threat (to the subject and others). - Force was objectively reasonable under the circumstances. - Medical Response/ intervention: Monitoring of the subject, offering and provision of medical attention in a timely manner and compliant with DM 09.06 - Coordination with Aurora Fire Rescue and Emergency Medical Services - Officer Relief Protocol: Replacement of involved officers as soon as practical, consistent with DM 05.10 Officer Relief Process. Page 4 of 10 DM 5.08 - Adjudicating Uses of Force 5.8.08 Revised: Aug-18-2023 - Incident Management: Appropriateness of the incident and scene management, including supervisory response and oversight. Clarity and appropriateness of directions from supervisors at the scene. Whether police actions placed sworn members or civilians at unnecessary risk. - Policy Compliance: Compliance with DM 05.01 - Use of Force and other APD policies. - Equipment: Availability and functionality of all equipment. - Report Writing: Quality of written reports. Thorough articulation of the event, all facts and circumstances confronting sworn members, the force used, factors members relied on in making their decisions, and legal justifications for all actions. - Evaluation of Tactics and Training: Efficacy of the tactics used, proficiency of the involved sworn members, and currency of their certifications, as well as the viability of other options and the possibility that engaging sooner would have been more effective and possibly led to a better, safer outcome for officers and civilians. - Evaluation of Supervisory Review: Quality of the supervisor’s initial investigation and evaluation of factors considered for adjudication of the use of force and review of written reports. - Sworn Member History: A sworn member’s use of force history shall not be used to determine whether the use of force under consideration is within policy. However, it should be utilized to determine an appropriate level of remediation, if any, including training, coaching for improvement (CFI), or enhanced supervision. ASSIGNED MEMBERS OF THE FORCE REVIEW BOARD The Force Review Board (FRB) shall be chaired by the Professional Standards and Training Division Chief or designee and shall consist of the following members: Seats Required for a Quorum / Voting Seats: - Professional Standards and Training Division Chief or designee (Chair) - Aurora City Attorney's Office Police Legal Advisor - Training Section Sworn Member - At-Large Command Officer from any Division - Operations Sergeant (Peer) - Operations Officer (Peer) Non-voting Seats: - Chief of Police - Deputy Chief of Police - Patrol Division Chief or designee - Investigations Division Chief or designee Page 5 of 10 DM 5.08 - Adjudicating Uses of Force - Special Operations Bureau Division Chief or designee - Police Chief of Staff or designee - Business Services Division Manager or designee - Training Section Commanding Officer or designee Revised: Aug-18-2023 Ad Hoc Seats: - Subject Matter Experts (SMEs) - Internal Affairs Bureau (IAB) Sworn Member Observer Seats: - Consent Decree Monitor(s) - Consultant(s) Two (2) sworn members will be designated for each quorum position; one member will be the primary, and the other will be a backup if the primary cannot attend. Only the primary quorum member for that position will vote if both members are present. The FRB Chair will assign/ appoint members to the peer and at-large command officer positions based on their training and qualifications. Other Chiefs may attend FRB meetings at their discretion. Any member of the FRB may be excused from a particular use of force review by the Chair, Deputy Chief, or Chief of Police because of a conflict of interest. The FRB may call upon experts or other informed individuals to help determine if the use of force under review was legal and policy compliant. 5.8.09 QUALIFICATION, SELECTION, AND TERM OF FRB MEMBERS The Chief of Police will determine the qualifications and selection process for members and may rely on the members’ knowledge and/or experience regarding use of force. The Chief of Police or designee will approve all FRB members. For consistency, members of the FRB should remain for at least an entire year. 5.8.10 TRAINING OF FRB MEMBERS The Training Division Commander shall ensure all FRB members receive continuing professional training in the following subjects: - Expectations, goals, and mission of the FRB. - Department use of force policies. - Aurora Arrest Control Techniques (ACT). - Demonstrations of training techniques and properly using department-issued tools, e.g., less lethal options and firearms. - FIU procedures Page 6 of 10 DM 5.08 - Adjudicating Uses of Force 5.8.11 Revised: Aug-18-2023 - Investigative Process Criminal and administrative techniques, practices, and standards presented and/or coordinated by the Training Academy. - Legal updates on use of force case law presented by representatives from the City Attorney’s or the District Attorney’s Office. - Officer-involved shootings (OIS), vehicle pursuits resulting in serious bodily injury or death, and in-custody death investigations. - Human performance factors. - Value of critical assessment and culture of continuous improvement. - Appropriate methodology in conducting a critical assessment. FREQUENCY OF MEETINGS The FRB meets weekly at the discretion of the Chair but no less frequently than monthly. 5.8.12 PARTICIPATION IN FORCE REVIEW BOARD MEETINGS Only FRB quorum/voting members may actively participate in the meeting discussion unless called upon by the board chair. 5.8.13 OBSERVATION OF FORCE REVIEW BOARD MEETINGS Sworn members are invited and encouraged to attend FRB meetings in observation status as coordinated by the FIU Supervisor or designee. Currently, sworn members are not allowed to observe presentations of uses of force in which they were involved. Representatives of the labor organizations are also invited and encouraged to attend in an observation status subject to the approval of the FIU Supervisor or designee. Labor organization observers will adhere to observer conditions defined in DM 10.2.4 to avoid a conflict of interest or the appearance of a conflict of interest. All members assigned to the FRB and observers shall read, understand, and sign the APD Form 236 - Chief's Office Confidentiality Acknowledgement located in PowerDMS. 5.8.14 CONDUCT OF MEETINGS During FRB meetings, FIU investigators present cases to the board on the relevant information about using force for analysis and discussion. After the presentation, the FRB Chair will facilitate a discussion in which each quorum member contributes their evaluation of the use of force incident. Following that discussion, the FRB Chair will oversee a vote of the primary quorum members (or, if not present, their backup) on whether the use of force was reasonable. FIU presentations include the following: - Date, time, and location of the event. - Agency case number. Page 7 of 10 DM 5.08 - Adjudicating Uses of Force Revised: Aug-18-2023 - Involved officers’ names, identification numbers, and weapon type (including serial number if applicable). - Witness officers’ names and identification numbers. - Investigating supervisor. - Subject’s name and date of birth. - Identification of each use of force and level thereof. - Synopsis of event. - Information that led to the officer(s)’ initial encounter with the subject. - BWC of each use of force. - Identification of post-force actions, including when applicable: - Placing the subject in the recovery position when safe (after the subject is under control and a search for weapons has been done). - Call for Aurora Fire Rescue (AFR) to respond, evaluate the subject, and render aid if necessary. - Provision of first aid until the arrival of AFR/EMS. - Turnover to AFR. - Processing of subject at the Aurora Detention Center (ADC). - Compliance with Body-Worn Camera Policy - Presentations may also include any of the following if relevant to the case: - CAD Notes - Map of the area both zoomed out and zoomed in. - Photographs or still frames of BWC footage. - TASER Downloads - Weapons Inspections - Weapons Specifications (e.g., CS Vapor Canister information) - Statements of civilian witnesses identified by the investigating supervisor. Page 8 of 10 DM 5.08 - Adjudicating Uses of Force 5.8.15 Revised: Aug-18-2023 VOTING BY CONSTITUENT MEMBERSHIP Following the quorum discussion, the FRB Chair will oversee a vote of the primary quorum members (or, if not present, their backup) as to the objective reasonability of the use of force. The vote is by the majority and will determine the board’s findings. In the case of a split decision, the dissenting opinion will be summarized in writing, and the case will be presented to the Chief of Police by the FIU to make the final determination. Decisions on follow-up recommendations will be made through a consensus of the quorum. The FRB can reach the following findings: - - - The use of force was within policy. This means the use of force was objectively reasonable and comported with all statutory and policy requirements. The following recommendations may accompany this finding: - No follow-up training is required. - Referral to Chain of Command for after-action debrief. - Referral to training - Referral for Coaching for Improvement - Referral for Enhanced Supervision - Referral to IAB The use of force was outside of policy. This means the use of force was not objectively reasonable and/or did not comport with statutory and/or policy requirements. The following recommendations may accompany this finding: - Referral to the District Attorney (DA) for a potential criminal investigation where not previously referred. - Referral to IAB - Referral to Training Section - Referral for Coaching for Improvement - Referral for Enhanced Supervision Determination relative to supervisory oversight and responsibilities: - Referral to IAB - Referral to training - Referral for Coaching for Improvement - Referral for Enhanced Supervision Page 9 of 10 DM 5.08 - Adjudicating Uses of Force 5.8.16 Revised: Aug-18-2023 REFERRAL FOR CRIMINAL OR INTERNAL REVIEW If there is insufficient information for the board to determine whether the force was within policy, the FRB Chair will decide whether the case will be routed to the FIU or IAB for additional investigation. If routed to FIU, the supervisor will conduct a clarification inquiry according to DM 05.06 – Investigating Uses of Force. If the force used is believed to be excessive, the use of force report shall be routed to the IAB for investigation. The IAB Commander shall initiate an investigation and assign it to the appropriate level in the organization. Generally, uses of force involving a criminal or internal investigation will not be adjudicated until those investigations have concluded. Nothing will preclude the Chief of Police from adjudicating a use of force prior to the receipt of the declination letter or closure of the internal investigation. 5.8.17 RETENTION OF RECORDS To include voting tabulations of the Committee. 5.8.18 FOLLOW-UP AND TRACKING PROCESS Once the use of force has been adjudicated, a summary of the decision/ determination will be included in the use of force report workflow and routed to the involved member through their chain of command. The member’s supervisor will ensure any referrals for training, CFI, or enhanced supervision are done/satisfied. The training shall be documented by the person providing it and included in their workflow notes. 5.8.19 PERIODIC ANALYSIS OF THE USE OF FORCE REPORTS The Training Section shall coordinate with FIU to analyze the use of force reports every quarter. This analysis shall be used to make suggestions to the command staff regarding the policy or training that needs revisions based on the identified issues, patterns, or trends. Quarterly, FIU performs a random body-worn camera audit of a case adjudicated by the FRB to determine policy compliance and training value. Page 10 of 10