Use of Force & Use of Force Reporting.pdf

MOOSIC BOROUGH POLICE DEPARTMENT Moosic, Pennsylvania Section 3.14.1 Subject: Distribution: Use of Force & Use of Force Reporting All Police Personnel Date of Issue: Expiration Date: 01/01/2021 Until Rescinded By Authority of: Chief of Police PURPOSE The purpose of this general order is to set forth...

MOOSIC BOROUGH POLICE DEPARTMENT Moosic, Pennsylvania Section 3.14.1 Subject: Distribution: Use of Force & Use of Force Reporting All Police Personnel Date of Issue: Expiration Date: 01/01/2021 Until Rescinded By Authority of: Chief of Police PURPOSE The purpose of this general order is to set forth agency policy in the use of force. This general order will provide guidelines and instruction to law enforcement officers in the use of force. It is recognized that some individuals will not comply with the law or comply with lawful orders unless compelled to do so through the use of force. Officers are justified in the use of force, based upon what is objectively reasonable given the officer’s evaluation of the situation in light of the totality of the circumstances known to the officer at the time and within the limits permitted by law. United States Supreme Court Case Graham v. Conner, 490 U.S. 386 (1989) states in part that “The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split- second judgements – in circumstances that are tense, uncertain and rapidly evolving – about the amount of force that is necessary in a particular situation. The test of reasonableness is not capable of precise definition or mechanical application.” POLICY It is the policy of the Moosic Borough Police Department (MBPD) that officers may only use force when it is objectively reasonable, proportional and necessary given the totality of the circumstances. These circumstances include, but are not limited to, the force necessary to effect an arrest, control an individual, lawfully detain a subject, prevent escape, or to protect themselves or others. Officers will attempt to gain the voluntary compliance of subjects when feasible and consistent with personal and public safety. Officers will us de-escalation techniques to reduce or prevent the need for force when it is safe and feasible to do so based on the totality of the circumstances. Officers will continually assess the situation, modifying the use of force as circumstances dictate and increasing or decreasing the level of force as circumstances evolve. Officers may enter or exit the use of force continuum at whichever level of force is appropriate. While no policy can anticipate every possible situation or exceptional circumstance which an officer will face, officers are expected to exercise critical decision making and sound judgement. It is the policy of the MBPD to protect and serve the community with professionalism, respect and courtesy. This general order is for MBPD use only and does not apply in a criminal or civil proceeding. This general order should not be construed as the creation of a higher legal standard for safety or care in an evidentiary sense with respect to third-party claims. Violations of this general order will only form the basis for MBPD administrative sanctions. DEFENITIONS As they relate to this general order, the following terms are defined: Deadly Force – Any force which, under the circumstances in which it is used, is readily capable of causing death or serious bodily injury. De-Escalation – Action or communication intended to increase the likelihood of voluntary compliance and potentially resolve the situation without the need for force or with a reduced amount of force when safe and feasible. Excessive Force – Use of force greater than which a reasonable officer, in the same situation would use under the circumstances that existed and were known to the officer at the time of the incident. Excited Delirium – A state of extreme mental and physiological excitement, characterized by extreme agitation (including shouting and disruptive behavior), hyperthermia, excessive watering of the eyes, hostility, paranoia or panic, inappropriate nudity, exceptional strength and endurance without fatigue. Feasible – Capable of being done or carried out to successfully achieve the desired result without increasing the risk to the officer or the public. Immediate Threat – A subject is an immediate threat if the officer reasonably believes the person has the present intent, means, opportunity and ability to complete the threat regardless if the threatened action has been initiated. Imminent – “Near at hand: impending, on point of happening.” (Black’s Law Dictionary). Intervene – Come between so as to prevent or alter a result or course of events. Necessary Force – The level of force within the range of objectively reasonable force that is necessary to effect an arrest or to achieve a lawful objective without increasing the risk to others. Objectively Reasonable – Is the legal standard used to determine the lawfulness of force used. Using the legal standards established in Graham v. Connor and subsequent defining case law and from articulated facts it is the determination that the need to use force and the level of force used was objectively reasonable in light of the totality of the circumstances known to the officer at the time. OIC – Chief of Police or his Designee. Proportional – The amount of force utilized being rationally related to the severity of the offense committed, the level of resistance applied by the suspect and the totality of the circumstances known or perceived by the officer. Resistance – Varying levels of conduct intended by a person to prevent an officer from effecting a lawful arrest or discharging any other lawful duty. Psychological Resistance – Nonverbal cues indicating the subject’s attitude, appearance and physical readiness (i.e. clenching fists, fighting stance, etc.). Verbal Non-Compliance – Verbal responses indicating unwillingness or threats, but otherwise offers no physical resistance or attempt the harm the officer (i.e. verbally indicating they will not comply with officer commands). Passive Resistance – Physical actions that passively attempt to prevent an officer from taking control, but otherwise offers no attempt to harm the officer (i.e. grabbing onto an object, using “dead weight” to remain in place, etc.). Defensive Resistance – Physical actions that physically attempt to prevent the officer’s exercise of control but otherwise offers to attempt to harm the officer (i.e. pulling arm away, running away, etc.) Active Aggression Resistance – Physical actions of assault (i.e. grab, pull, push, wrestling or levering any technique designed to unbalance the officer, a strike, punch, kick or any method that employs a means by which the officer would be assaulted – short of death or serious bodily injury). Deadly Force Assault – Any kind of resistance, either armed or unarmed, that puts the officer in fear of serious bodily injury or death. Serious Bodily Injury – Is bodily injury which creates substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ. Use of Force Continuum – Is the scale of force options available to an officer in response to varying degrees of resistance offered by a subject. An officer can move up or down the scale as is appropriate, necessary and reasonable. An officer may begin at whichever level of force is initially appropriate and then move up or down the use of force continuum as is objectively reasonable and necessary given the totality of the circumstances. Vulnerable Person – Includes but are not limited to children, elderly persons, pregnant women, people with physical and mental disabilities and people with limited communication ability. USE OF FORCE A. Peace officers (law enforcement officers), as defined in the Pa Crimes Code, Title 18, §501, shall only use the amount of force necessary and justified, up to and including deadly force, to effect a lawful objective in conformance to the provisions of the Pennsylvania Crimes Code, other Pennsylvania statutory provisions and applicable Pennsylvania and Federal court decisions. B. The primary purpose of all police officers is the preservation of human life. Excessive force will not be tolerated and will be subject to discipline. C. Police officers may use only force that is objectively reasonable, necessary and proportional for a lawful purpose which include, but are not limited to, effecting a lawful arrest, overcoming resistance, preventing escape, preventing the commission of a crime, in defense of others, in self-defense, to gain compliance with a lawful order, prevent suicide or to ensure the safety of the public (reference 18 Pa.C.S. §508(a)(c) and (d)). D. Levels of control: 1. Officer presence – The officer assumes control of the situation or suspect through his announced and/or uniformed presence. 2. Verbal direction – Officer presence has failed. The officer begins a verbal persuasion/dialogue and, if needed, command/warning mode to take control of the incident. 3. Soft/open hand/escort – The officer places hands on the suspect and advises the suspect they are under arrest. This may include: a. Soft, empty hand control. b. Escort touches. 4. Restraint and control – The officer employs pain compliance and/or mechanical compliance, which may include: a. OC. b. Pressure points. c. Wristlocks, arm bars or other “come along” techniques. 5. Intermediate force – The officer employs these methods when restraint and control methods are ineffective or inappropriate, which includes: a. b. c. d. Impact weapons (ASP, baton). Hard, empty hand control (i.e. strikes/punches). TASER. Shotgun (i.e. bean bag rounds/other less lethal rounds) 6. Deadly force – This is the ultimate step which is appropriate to protect the officer or another person from death or serious bodily injury, or to apprehend a fleeing forcible felon when the officer has exhausted all other means or apprehension and the suspect presents an imminent risk to the community, if not immediately apprehended, which includes: a. Firearm. b. Any implement to defend an officer’s life or the life of another with implements or devices not normally intended to be weapons, or issued as public safety equipment or empty hand techniques which would have the capacity to cause unconsciousness, serious bodily injury or death, when used as a last resort when deadly force is otherwise justified. E. The use of force continuum is the scale of force options available to an officer in response to varying degrees of resistance offered by a subject, and the totality of the circumstances. An officer can move up or down the scale as is appropriate and reasonable. An officer may begin at whichever level of force is initially appropriate and then move up or down the use of force continuum as is objectively reasonable given the totality of the circumstances. Levels of control 6. Deadly force 5. Intermediate force 4. Restraint and control 3. Soft/open hand/escort 2. Verbal direction 1. Officer presence Use of Force Continuum Deadly Not permitted Intermediate Restraint/Control Restraint/Control Soft hand/escort Verbal direction Likely to be ineffective or unsafe Verbal direction Officer presence Psychological resistance Verbal noncompliance Passive resistance Defensive resistance Active aggression Subject’s level of resistance F. Totality of the Circumstances – The following factors are those that shall be used to evaluate objective reasonableness of the use of force. The standard to be applied by the MBPD needs to be a uniform standard regardless of the suspect/individual. The primary consideration should be the capacity of the person to inflict bodily injury, serious bodily injury or death. They include, but are not limited to: 1. The severity of the crime at issue. 2. The immediate level of threat of the subject poses to the officer or the community. Deadly force assault 3. The potential of injury to citizens, officers and subjects. 4. The level of resistance the subject is offering. 5. Whether the subject is armed and his proximity to weapons. 6. Whether the subject is attempting to evade arrest, and if the subject’s escape poses a threat to the community. 7. The conduct of the subject as objectively and reasonably perceived by the officer at the time. 8. The number of subjects in comparison to the number of officers. 9. Subject’s history, if known. 10. Presence of hostile crowd or agitators. 11. Injury of exhaustion of officer. 12. Weather or terrain conditions. 13. Influence of drugs or alcohol. 14. Officer/subject size and gender. 15. Exigent circumstances. G. Additional requirements regarding the use of force: 1. The use of force shall cease to be applied when the subject is restrained or otherwise controlled. 2. Department members shall not use chokeholds or strangulation techniques as a means of control except as a last resort during a life and death struggle. 3. Officers should, whenever feasible, identify themselves and give appropriate warnings prior to the use of force in an attempt to gain voluntary compliance and eliminate or reduce the level of force, when doing so does not increase the risk to the officer or the public. USE OF DEADLY FORCE A. Peace officers (law enforcement officers), as defined in the Pa Crimes Code, Title 18, §501, shall only use the amount of force necessary and justified, up to and including deadly force, to effect a lawful objective in conformance to the provisions of the Pennsylvania Crimes Code, other Pennsylvania statutory provisions and applicable Pennsylvania and Federal court decisions. B. Police officers are authorized to use deadly force in the following circumstances: 1. When the police officer believes that such force is necessary to prevent death or serious bodily injury to himself or another person. 2. When the police officer believes both that: a. Such force is necessary to prevent the arrest from being defeated by resistance or escape; AND b. The person to be arrested has committed or attempted to commit a forcible felony or is attempting to escape and possesses a deadly weapon, or otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested without delay. C. Officers will fire their weapon to stop and incapacitate an assailant from completing a potentially deadly act. For maximum stopping effectiveness and minimal danger to innocent bystanders, officers should shoot at “center body mass,” or the largest body mass exposed. WARNING SHOTS & FIRING FROM OR AT A MOVING VEHICLE A. Warning shots are not permitted as an attempt to cause a fleeing suspect to stop or surrender. B. Firing AT a Moving Vehicle – Officers shall not discharge their firearms AT a moving vehicle unless a person inside the vehicle is immediately threatening the officer or another person with deadly force. 1. A moving vehicle alone shall not presumptively constitute a threat that justifies an officer’s use of deadly force. 2. Officers should not move into or remain in the path of a moving vehicle. Moving into or remaining in the path of a moving vehicle, whether deliberate or inadvertent, shall not be justification for discharging a firearm at the vehicle or any of its occupants, unless the use of deadly force is otherwise justified. An officer in the path of an approaching vehicle should attempt to move to a position of safety rather than discharging a firearm at the vehicle or any of the occupants inside the vehicle. D. Firing FROM a Moving Vehicle – Officers shall not discharge their firearms FROM a moving vehicle unless the officer is being fired upon. Shooting accurately from a moving vehicle is extremely difficult and therefore, unlikely to successfully stop a threat of another person. LESS-LETHAL WEAPONS A. Less-Lethal Weapons – The following less-lethal weapons are approved for use by MBPD officers who have successfully completed training prior to use (these are listed in alphabetical order, not in any rank order). This section is intended to provide officers with the general guidelines for the use of less-lethal weapons. The use of less-lethal weapons shall be used in accordance with the use of force continuum contained in this general order. 1. 2. 3. 4. ASP or straight baton (including expandable batons) OC sprays or chemical agents TASER Less-Lethal Shotgun (i.e. Less Lethal Extended Range Impact Projectiles) B. ASP or straight baton (including expandable baton) – Officers may use an ASP or straight baton anytime they are on duty if they have a current certification or recertification from a qualified instructor after demonstrating satisfactory skill and proficiency. If the officer does not possess such certification, then they must use a straight baton. 1. General situations and requirements for use: a. Approved to be used to overcome resistance to an arrest. b. Approved to be used to protect the life of the officer or another person from bodily injury. c. Approved to prevent suicide, or an individual from injuring themselves. d. Officers will not intentionally strike in any vital area including the head or the neck. Batons will be used to strike a subject’s long bones (i.e. arms, legs, joints, hips, shoulders or elbows). e. Batons will not be used to intentionally choke unless the use of deadly force is otherwise justified. f. Officers shall use ASP and straight batons in a manner consistent with their training. C. OC sprays – Officers may use OC sprays anytime they are on duty if they have a current certification or re-certification from a qualified instructor after demonstrating satisfactory skill and proficiency. If the officer does not possess such certification, they may not use OC. 1. Definitions – the following terms are defined as they relate to OC sprays: OC – Any agent made from cayenne pepper. OC Spray – Any individual protective device that is issued for less-lethal defense that sprays OC. 2. General situations and requirements for use: a. Approved to be used to overcome resistance to arrest. b. Approved to be used to protect the officer or another person from bodily injury. c. Approved to prevent a suicide or a person from injuring themselves. d. Officers are permitted to carry OC sprays while they are on duty, and are to be used lawfully in accordance with this general order. e. Officers shall only carry OC sprays that are issued by the MBPD. f. Officers shall only use OC in a manner consistent with their training. 3. OC spray procedure: a. OC should be sprayed directly onto the subject’s face (eyes, nose, mouth). Usually a direct spray to the face will instantly shut the eyes and affect the respiratory system. b. Officers shall use OC spray in consistent with their training. 4. OC spray prohibited use: a. Once a person who has been sprayed with OC becomes subdued and brought under control, there is no longer any justification for additional spraying. 5. Recommended storage of OC spray: a. OC sprays should not be stored near heat or open flames. b. OC sprays should not be subject to prolonged exposure to sunlight and temperatures above 120°F or below 32°F. Proper storage is important to maintain the proper aerosol pressure. 6. Post-exposure cleaning – Once the OC has been deployed, the following procedures shall be adhered to: a. Subjects in-custody who have been exposed to OC shall be afforded with first aid at the scene or as close thereto as possible, when circumstances permit. In any instance, first aid shall be provided within 30 minutes. Applying cool, clear water to the exposed area is considered adequate first aid. b. Contact lenses and exposed clothing should be removed. c. The exposed area should be flushed with large quantities of cold water and exposed to fresh air as soon as reasonably practical. d. Salves, creams, oils or lotions should not be applied to the exposed area because they may trap the irritant agent. e. In any instance where first aid fails to grant relief, the subject should be afforded medical treatment. D. TASER – Officers may use a TASER anytime they are on duty if they have a current certification or re-certification from a qualified instructor after demonstrating satisfactory skill and proficiency. If the officer does not possess such certification, then they may not use a TASER. Reference - Taser Procedure 3.14.3. RENDERING AID AFTER USE OF FORCE A. Duty of Officers – It is the duty of all officers to render aid and attention to any person who is injured, is suspected of being injured or alleges to have been injured as the result of an officer using less-lethal or lethal force. Such aid is to be rendered to the injured person until such time as medical personnel arrive at the scene. Officers should keep their own safety in mind when rendering such aid and may restrain the subject as needed to preserve officer safety. Such aid may be as simple as observation of the subject until medical personnel arrive or rendering first aid, CPR or bleeding control until medical personnel arrive, depending on the injury. INVESTIGATIVE REPORTING A. Use of Force Written Reporting – All use of force incidents shall be reduced to writing, providing a detailed explanation of all the circumstances related to the use of force. 1. Incidents requiring written reporting – A MBPD Use of Force Report shall be completed in any of the following circumstance(s): a. Anytime an officer applies force at Level 4 (restraint and control), Level 5 (intermediate force) or Level 6 (deadly force). b. Anytime a TASER has been activated on someone (i.e. “sparked” but no contact was made). c. Anytime a firearm is intentionally pointed at someone. d. Anytime a firearm is discharged, intentionally or unintentionally. e. Anytime a K9 actually bites someone. f. Anytime there is an actual injury, suspected injury or alleged injury to a person during a use of force situation. g. Anytime an officer uses force or is alleged to have used physical force upon another person. h. Anytime an officer is directed by a supervisor to submit a report. 2. Timeliness – Officers are required to submit the use of force report prior to the end of the shift which the use of force occurred, unless there are extenuating circumstances (i.e. the officer is injured, etc.). In that instance, the officer shall complete the use of force report as soon as reasonably practical. 3. Companion Reporting – All officers who are involved in the application of force shall individually submit a use of force report. If officers from another agency are involved in the use of force, they too should submit a use of force report. 4. Completeness – All areas and components of the use of force report shall be completed to the best of the officer’s knowledge and recollection. 5. Submission – Completed use of force reports shall be initially submitted to a Sergeant for review. Upon review, the supervisor shall forward the use of force report to the Chief of Police for an administrative review to ensure the officer’s application of force was consistent with this general order. 6. Exceptions – Officers are not required to complete a use of force report when they discharge a firearm at an approved training range, during approved training exercises and situations, animal disposal and during recreational shooting. B. Notifications – Whenever a MBPD uses force, the officer shall notify a supervisor as soon as reasonably practical and verbally provide the details surrounding the application of force. C. Officer-Involved Shooting – Any discharge of a firearm by a police officer acting in an official capacity which results in death or serious bodily injury to another person shall be investigated by Pennsylvania State Police (Independent Outside Agency) and the Lackawanna County District Attorney’s Office shall render a decision regarding the justification. This will create transparency in the investigative process. Reference - Officer Involved Shooting 3.14.4. D. Public Safety Statement Requirement – Anytime an officer is involved in an officerinvolved shooting, the first arriving officer shall obtain a “public safety statement” from the officer who fired their weapon. This statement is not of a criminal or administrative nature, but rather, is intended only to determine if there are any other threat(s) remaining to officer or public safety that need to be addressed (i.e. another armed subject at large, unaccounted for weapon, etc.). The officer who fired his/her weapon shall immediately provide answers to these questions to the best of his/her knowledge and belief. REASSIGNMENT AFTER USE OF FORCE A. Following the application of force which results in serious bodily injury or death, the officer who applied that force shall be released from field duty as soon as reasonably practical pending a full investigation of the incident. B. During the period of investigation, the Chief of Police or his designee, at the Chief’s discretion, shall assign the officer to administrative duties within the department or may allow for administrative leave. Such leave shall not be considered a suspension or other discipline, but rather, an administrative course of action for the purpose of relieving the officer from further performance of field duties while undergoing the extreme emotional stress of having used force resulting in seriously bodily injury or death, and to allow an objective investigation into the incident. C. If the officer is provided administrative leave, the officer shall be available at all times and subject to recall. During this period of leave, the officer may be required to resolve any unanswered questions enabling a quick resolution and conclusion into the investigation and review process. D. At all times, the officer involved will have the right to consult legal counsel and will not be disciplined or otherwise penalized or criticized for seeking such counsel and for heeding the advice of counsel. E. The period of time of the administrative leave shall be determined by the Chief of Police. F. In any instance where the use of lethal force is used, the officer who used lethal force shall be required to undergo a mental health evaluation for post-traumatic stress disorder. G. All guidelines within the Moosic Borough Police Officer’s Association (MBPOA) shall be followed when a member is being investigated. DE-ESCALATAION A. De-Escalation in Law Enforcement – The concept of de-escalation tactics is an essential part of the framework that MBPD officers use to assess and manage risk through justifiable and reasonable intervention. The officer selects an appropriate option for control, based on the situation. 1. De-escalation includes acting or communicating either verbally or non-verbally during a potential use-of-force encounter to stabilize the situation and reduce the immediacy of the threat(s) involved with the encounter. 2. MBPD officers shall apply the use of de-escalation techniques and other alternatives to force consistent with his or her training whenever tactically feasible and appropriate before resorting to force applications to reduce the need for force or the level of force applied. 3. MBPD officers will whenever possible and when such a delay is without bad outcomes (will not compromise the safety of the officer or another person and will not result in the destruction of evidence, enhance or allow for the risk of escape or promote further criminal commission or crimes), the officer should attempt to allow the individual whom force is to be directed the time and opportunity to submit to verbal commands prior to the time force is applied. B. Successful uses of De-Escalation – This process forms a small but critical portion of what is known as the officer's risk assessment and plan. The process where an officer clearly, concisely and effectively analyses and later explains the events that occurred before, during and after a use of force incident is called "legal articulation." Officers will not necessarily be judged by what they believe. Their intervention will be measured against what a reasonable, trained, prudent police officer would do faced with a similar set of circumstances. Police officers are also trained to continually monitor risk during an interaction with the public as things can change very quickly. Police officers must always be ready to shift tactics. C. De-Escalation Techniques – De-escalation techniques may include one or more of the following techniques: 1. 2. 3. 4. 5. 6. Advisements and identification. Warnings. Command presence. Tactical repositioning. Verbal persuasion. Containment. D. Potential for De-Escalation – The list below is a partial list of events where de-escalation techniques may be applied when situationally appropriate: 1. 2. 3. 4. 5. Mental health crisis. Personal crisis Developmental disabilities. Victims and witnesses. Arrestees. E. Factors in Decision to De-Escalate – 1. 2. 3. 4. 5. 6. 7. 8. 9. Medical conditions. Physical limitations. Language or communication barrier. Drug interaction or influence of substances. Mental impairment. Developmental disability. Behavioral crisis. Environmental. Time. F. Essential Understandings by MBPD Officers in the De-Escalation Process: 1. Tactical repositioning does not equate to total retreat by the police from the “hot zone” or require surrender of any tactical advantage. Instead this is the technique where officers create a “buffer” allowing more distance between the subject and the responding officers. This enlarged area has many benefits including increased time for decision making and increased time for compliance with commands. 2. De-escalation tactics and techniques are actions used by officers, when safe and without compromising law enforcement priorities, that seek to minimize the likelihood of the need to use force during an incident and increase the likelihood of voluntary compliance. 3. When safe and feasible under the totality of the circumstances, officers shall attempt to slow down or stabilize the situation so that more time, options and resources are available for incident resolution. 4. De-escalation may take the form of scene management, team tactics, and/or individual engagement. Even when individual engagement is not feasible, deescalation techniques including scene management and team tactics such as time, distance and shielding should still be used unless doing so would create undue risk of harm to any person due to the exigency/threat of the situation. 5. The overall goal of de-escalation is to promote thoughtful resolutions to situations and to reduce the likelihood of harm to all persons involved. Deescalation is reviewed and evaluated under the totality of the circumstances present at the time of the incident. FAILURE TO ACT A. Officers are restricted to using only force that is necessary and reasonable, but officers will not avoid using force, including deadly force, if failure to do so unnecessarily permits the defeat of arrest or other law enforcement, or endangers the safety of themselves or others. DUTY TO INTERVENE A. Every employee has the duty to intervene when the intervening employee reasonably believes that: Force, action or inaction occurring is inconsistent with agency policies, procedures or training. 2. Criminal conduct is occurring 3. Unconstitutional behavior is occurring. 1. B. The intervening employee shall then submit a written report to his/her supervisor which documents the observed use-of-force, action or inaction inconsistent with MBPD policies, procedures or training that constituted criminal conduct or resulted in Constitutional violation(s). RESPONSIBILITIES It is the responsibility of all Supervisory Personnel to ensure that all officers under their supervision comply with this policy.