Section Six - Use of Force by The Cleveland Consent Decree Lyrics
45. DOJ acknowledges that CDP recently has made important changes to some of its force policies. Building on these improvements, CDP will revise, develop, and implement force policies, training, supervision, and accountability systems with the goal of ensuring that force is used in accordance with the Constitution and laws of the United States and the requirements of this Agreement and that any use of unreasonable force is promptly identified and responded to appropriately. The force policies, training, supervision, and accountability systems will be designed with the goal of ensuring that officers use techniques other than force to effect compliance with police orders whenever feasible; use force only when necessary, and in a manner that avoids unnecessary injury to officers and civilians; de-escalate the use of force at the earliest possible moment; and accurately and completely report all uses of force
A. Use of Force Principles
46. The City will implement the terms of this Agreement with the goal of ensuring that use of force by CDP officers, regardless of the type of force, tactics, or weapon used, will comply with the following requirements:
A. officers will allow individuals the opportunity to submit to arrest before force is used wherever possible;
B. officers will use de-escalation techniques whenever possible and appropriate, before resorting to force and to reduce the need for force. De-escalation techniques may include verbal persuasion and warnings and tactical deescalation techniques, such as slowing down the pace or an incident, waiting out subjects, creating distance (and thus the reactionary gap) between the officer and the threat, and requesting additional resources (e.g. specialized CIT officers or negotiators). Officers will be trained to consider the possibility that a subject may be noncompliant due to a medical or mental condition, physical or hearing impairment, language barrier, drug interaction,or emotional crisis;
C. if force becomes necessary, officers will be limited to using only the amount or force objectively reasonable as necessary to control the person
D. in applying force, officers will reduce the level of force as the threat diminishes;
E. officers normally will not use force against persons who are handcuffed or otherwise restrained, unless it is objectively reasonable and necessary under the circumstances to stop an assault, escape, or as necessary to fulfill other law enforcement objectives;
F. officers will not use force against persons who only verbally confront them and do not impede a legitimate law enforcement function;
G. CDP will explicitly prohibit the use of retaliatory force by officers. Retaliatory force includes, for example, force in excess of what is objectively reasonable to prevent an escape to punish individuals for fleeing or otherwise resisting arrest; and force used to punish an individual for disrespecting officers;
H. officers will not use head strikes with hard objects, except where lethal force is justified. Officers will be trained that a strike to the head with any impact weapon could result in death;
I. other than to protect an officer’s or other person’s safety, officers will not use force to subdue an individual who is not suspected of any criminal conduct;
J. CDP’s policy will expressly provide that using a firearm as an impact weapon is never an authorized tactic. Officers will be trained that use of a firearm as an impact weapon could result in death to suspects, bystanders, and themselves;
K. officers will not use neck holds;
L. CDP will continue to limit vehicle pursuits to those in which the need to capture the suspect outweighs the danger to the public. CDP will continue to limit the number of CDP vehicles that may be involved in a vehicle pursuit; and
M. immediately following a use or force, officers and, upon arrival, a supervisor will inspect and observe subjects for injury or complaints of pain resulting from the use of force, and immediately obtain any necessary medical care. As necessary, officers will provide emergency first aid until professional medical care providers are on scene
47. As soon as practical following a use of force, CDP will ensure that the incident is accurately and properly reported, documented, and investigated. A fundamental goal of the revised use of force policy will be to account for, review, and investigate every reportable use of force and reduce any improper uses of force
48. CDP will track and analyze officers’ uses of force to hold officers accountable for unreasonable uses of force; to guide training and policy; and to identify poor tactics and emerging trends
B. Use of Force Policies
49. CDP will develop and implement use of force policies that comply with applicable law and are adequate to achieve the goals described in paragraph 45. The use of force policies will incorporate the use of force principles above, and will specify that the unreasonable use of force will subject officers to the disciplinary process, possible criminal prosecution, and/or possible civil liability
50. CDP’s policies will address the use and deployment of its authorized force techniques, technologies, and weapons that are available to CDP officers, including standard-issue weapons that are made available to all officers and weapons that are made available only to specialized units. The policies will clearly define and describe each force option and the circumstances under which use of such force is appropriate
51. CDP’s policies related to specific weapons will include training and certification requirements that each officer must meet before being permitted to carry and use the authorized weapon
52. No officer will carry any weapon that is not authorized or approved by CDP
53. Prior to the use of any approved weapon, the officer, when possible and appropriate, will communicate to the subject and other officers that the use of the weapon is imminent, and allow the subject an opportunity to comply
54. CDP will implement policies for each of the following weapons using the following guidelines
1. Firearms
55. Officers will not unholster and display a firearm unless the circumstances create a reasonable belief that lethal force may become necessary. CDP’s policies will require and training will teach proper techniques for unholstering, displaying, pointing, and aiming a firearm, and for determining when it is appropriate to do so. The Monitor will review CDP’s policies and training to ensure that they comply with this paragraph. If an officer unholsters a firearm during an incident, interaction, or event that would otherwise trigger a reporting or data collection requirement, officers will document that a firearm was unholstered. CDP will annually collect and analyze this data
56. Unholstering a firearm and pointing it at a subject constitutes a Level 1 reportable use of force and will be reported and investigated as such. The following exceptions to this reporting requirement will apply:
A. SWAT Team Officers will not be required to report the pointing of a firearm at a subject as a use of force during the execution of SWAT Team duties;
B. officers who are deputized and assigned to a Federal Task Force will not be required to report the pointing of a firearm at a subject as a use of force when conducting federal task force operations during which a supervisor is present. Reports or forms regarding any such incidents that are otherwise prepared by a Task Force supervisor will be provided to CDP;
C. officers assigned to the Gang Impact, Narcotics, Homicide, Sex Crimes, Domestic Violence, and Financial Crimes Units will not be required to report the pointing of a firearm at a subject as a use of force if done solely while entering and securing a building in connection with the execution of an arrest or search warrant and a supervisor prepares a report detailing the incident
57. Officers will not fire warning shots
58. Officers will consider their surroundings before discharging their firearms and will avoid unnecessary risk to bystanders, victims, and other officers
59. Officers will not discharge a firearm from or at a moving vehicle, unless use of lethal force is justified by something other than the threat from the moving vehicle; officers will not intentionally place themselves in the path of or reach inside a moving vehicle; and, where possible, officers will attempt to move out of the path of a moving vehicle
60. CDP annually will provide at least 16 hours of firearms training which will include pistol, shotgun, and policy training. In consultation with the Monitor, CDP will develop a plan lo provide appropriate night, reduced light, and stress training for officers. Officers will successfully qualify with each firearm they are authorized to use or carry on-duty at least annually. Officers will be required to qualify using proficiency standards and will not be permitted to carry any firearm on which they failed to qualify
2. Electronic Control Weapons
61. Officers will use Electronic Control Weapons (“ECWs”) only where: (1) grounds for arrest or detention are present and the subject is actively or aggressively resisting, and lesser means would be ineffective; or (2) such force is necessary to protect the officer, the subject, or another party from immediate physical harm, and lesser means would be ineffective or have been tried and failed
62. Each standard 5-second ECW application is a separate use of force that officers must individually justify as reasonable. After the first ECW application, the officer will reevaluate the situation to determine if subsequent cycles are reasonable. In determining whether any additional application is reasonable, officers will consider that a subject may not be able to respond to commands during or immediately following an ECW application. Officers will not employ more than three cycles of an ECW against a subject during a single incident
63. Officers will consider transitioning to alternative control measures if the subject does not respond to ECW applications
64. Officers will not use ECWs in drive stun mode solely as a pain compliance technique. Officers may use ECWs in drive stun mode only to supplement the probe mode to complete the incapacitation circuit, or as a countermeasure to gain separation between officers and the subject so that officers can consider another force option
65. Officers will determine the reasonableness of ECW use based upon all the relevant circumstances, including the subject’s apparent age, size, physical, and mental condition, and the feasibility of lesser force options
66. Except where lethal force is authorized, officers will not use ECWs where: (1) a deployment may cause serious physical injury or death from situational hazards, including falling, losing control of a moving vehicle, or becoming ignited from the presence of potentially explosive or flammable materials or substances; or (2) the subject is visibly pregnant, apparently elderly, a child, visibly frail, has obviously low body mass, or is in apparent medical crisis
67. Officers will not use ECWs on fleeing persons who do not pose a threat of physical harm to officers, other civilians, or themselves
68. Officers will not intentionally target ECWs to a subject’s head, neck, or genitalia
69. Officers will not normally use ECWs on handcuffed or restrained persons. ECWs will be used on handcuffed or restrained persons only where the subject is displaying aggressive physical resistance and lesser means would be ineffective or have been tried and failed
70. Officers will carry ECWs in a weak-side holster to reduce the chances of accidentally drawing and/or firing a firearm
71. Officers will be trained in and follow protocols developed by CDP, in conjunction with the City’s EMS professionals, on the officer’s responsibilities following ECW use, including:
A. restrictions on removing ECW probes, including the requirements described in the next paragraph;
B. understanding the risks of positional asphyxia, and using restraint techniques that do not impair the subject’s respiration following a ECW application;
C. monitoring all subjects who have received an ECW application while in police custody; and
D. informing medical personnel of all subjects who have been subjected to multiple ECW applications, including prolonged applications (more than 15 seconds); or who appear to be under the influence of drugs or exhibiting symptoms associated with excited delirium; or who were kept in prone restraints after ECW use
72. The City will ensure that all subjects who have been exposed to an ECW application receive a medical evaluation by emergency medical responders in the field or at a medical facility. Absent exigent circumstances, probes will be removed from a subject’s skin only by medical personnel or properly trained officers
73. In addition to the force reporting requirements outlined in paragraph 88, officers will clearly articulate and justify the following regarding their ECW use in a written narrative:
A. each and every ECW cycle used on a subject or attempted against a subject;
B. use of the ECW in drive stun mode;
E. ECW application for more than 15 seconds;
D. continuous cycling of an ECW;
E. ECW application on a fleeing person; and
F. ECW application by more than one officer
74. Officers who have been issued ECWs will receive annual ECW certifications, which will consist of physical competency; weapon retention; CDP policy, including any policy changes; technology changes; and scenario-based training
75. CDP will develop and implement integrity safeguards on the use of ECWs to ensure compliance with CDP policy. CDP will conduct quarterly downloads of all ECWs. CDP will conduct random and directed audits of ECW application data, which will be provided to the Monitor for review. The audits should include a comparison of the downloaded data to the officer’s Use of Force Reports. Discrepancies within the audit should be addressed and appropriately investigated
76. ECW application data will be tracked and analyzed in CDP’s Officer Intervention Program
3. Oleoresin Capsicum Spray (“OC Spray”)
77. Officers will apply OC spray only: (1) when such force is reasonable to protect the officer, the subject, or another party from physical ha1m and lesser means would be ineffective; or (2) for crowd dispersal or protection and other means would be more intrusive or less effective
78. After one standard OC spray (one second), each subsequent application is a separate use of force that officers must individually justify as reasonable
79. Officers will not normally use OC spray on handcuffed or restrained persons. OC spray will be used on handcuffed or restrained persons only where the subject is displaying aggressive physical resistance and lesser means would be ineffective or have been tried and failed
80. Officers will be trained in and follow protocols developed by CDP in conjunction with the City’s EMS professionals, on the officer’s responsibilities following OC spray use, including:
A. decontaminating every subject exposed to chemical spray by using cool water to flush the subject’s face and eyes within 20 minutes of gaining control of the scene. Officers need not decontaminate subjects who were only secondarily exposed to OC spray, for example, when OC spray is used for crowd control, unless requested by the subject;
B. understanding the risks of positional asphyxia, and using restraint techniques that do not impair the subject’s respiration following an OC spray application;
C. requesting medical response or assistance for subjects exposed to OC spray when they complain of continued effects after having been decontaminated, or they indicate that they have a pre-existing medical condition (e.g., asthma, emphysema, bronchitis, heart ailment, etc.) that may be aggravated by OC spray
81. Officers will carry only CDP issued OC spray
82. CDP will maintain documentation of the number of OC spray canisters distributed to and utilized by each officer
83. OC spray application data will be tracked and analyzed in CDP’s Officer Intervention Program
C. Use of Force Training
84. As part of its training requirements in Section XI of this Agreement, within 365 days of the Effective Date, CDP will provide all current officers use of force training that is adequate in quality, quantity, scope, and type and that includes:
A. proper use of force decision-making;
B. use of force reporting requirements;
C. the Fourth Amendment and related law;
D. de-escalation techniques, both verbal and tactical, that empower officers to make arrests without using force and instruction that disengagement, area containment, surveillance, waiting out a subject, summoning reinforcements, using cover, calling in specialized units, or delaying arrest may be the appropriate response to a situation, even when the use of force would be legally justified;
E. role-playing scenarios and interactive exercises that illustrate proper use of force decision-making, including training on the importance of peer intervention;
F. the proper deployment and use of all intermediate weapons or technologies;
G. the risks of prolonged or repeated ECW exposure, including that exposure to ECWs for longer than 15 seconds (whether due to multiple applications or continuous cycling) may increase the risk of death or serious physical injury;
H. the increased risks ECWs may present to a subject who is pregnant, elderly, a child, frail, has low body mass, or is in medical crisis;
I. that when using an ECW the drive stun mode is generally less effective than the probe mode and, when used repeatedly, may exacerbate the situation;
J. firearms training, as described in paragraph 60;
K. factors to consider in initiating or continuing a vehicle pursuit; and
L. for supervisors of all ranks, as part of their initial and annual in-service supervisory training, training in conducting use of force investigations; strategies for effectively directing officers to minimize uses of force and to intervene effectively to prevent or stop unreasonable force; and supporting officers who report unreasonable or unreported force, or who are retaliated against for attempting to prevent unreasonable force
85. CDP also will provide the use of force training described in paragraph 84 to all new officers as part of its training Academy
86. CDP will provide all officers with annual use of force in-service training that is adequate in quality, quantity, type, and scope
D. Use of Force Reporting Policy and Use of Force Reports
87. Within 365 days of the Effective Date, CDP will develop and implement a single, uniform, reporting system pursuant to a Use of Force Reporting policy. CDP uses of force will be divided into three levels. The three levels for the reporting, investigation, and review of use of force correspond to the amount of force used and/or the outcome of the force. This Agreement’s categorization of these types of uses of force is based on the following factors: potential of the technique or weapon to cause injury; degree of injury caused; degree of pain experienced; degree of disability experienced by the subject; complaint by the subject; degree of restraint of the subject; impairment of the functioning of any organ; duration of force; and physical vulnerability of the subject. Each level of force will require increasingly rigorous reporting, investigation, and review. The levels of force are defined as follows:
A. Level 1 is force that is reasonably expected to cause only transient pain and/or disorientation during its application as a means of gaining compliance, including pressure point compliance and joint manipulation techniques, but that is not reasonably expected to cause injury, does not result in an actual injury, and does not result in a complaint of injury. It does not include escorting, touching, or handcuffing a person with no or minimal resistance. Unholstering a firearm and pointing it at a subject is reportable as a Level 1 use of force with the exceptions set forth in paragraph 56
B. Level 2 is force that causes an injury, could reasonably be expected to cause an injury, or results in a complaint of an injury, but does not rise to the level of a Level 3 use of force. Level 2 includes the use of an ECW, including where an ECW is fired at a person but misses; OC Spray application; weaponless defense techniques (e.g., elbow or closed-fist strikes, kicks, leg sweeps, and takedowns); use of an impact weapon, except for a strike to the head, neck or face with an impact weapon; and any canine apprehension
C. Level 3 is force that includes: (1) uses of lethal force; (2) uses of force resulting in death or serious physical injury; (3) uses of force resulting in hospital admission; (3) all neck holds; (4) uses of force resulting in a loss of consciousness; (5) canine bites; (6) more than three applications of an ECW on an individual during a single interaction, regardless of the mode or duration of the application, and regardless of whether the applications are by the same or different officers, or an ECW application for longer than 15 seconds, whether continuous or consecutive; and (7) any Level 2 use of force against a handcuffed subject
88. All officers using or observing force will report in writing, before the end of their shift, the use of force in a Use of Force Report. The Use of Force Report will include: (1) a detailed account of the incident from the officer’s perspective; (2) the reason for the initial police presence; (3) a specific description of the acts that led to the use of force; (4) the level of resistance encountered; and (5) a complete and accurate description of every type of force used or observed. The use of force reporting policy will explicitly prohibit the use of conclusory statements, “boilerplate,” or “canned” language (e.g., “furtive movement” or “lighting stance”), without supporting detail
89. Officers will be subject to the disciplinary process for material omissions or misrepresentations in their Use of Force Reports
90. Officers who use or observe force and fail to report it will be subject to the disciplinary process, up to and including termination, regardless of whether the force was reasonable
91. Officers who use or observe force will notify their supervisors, or ensure that their supervisors have been notified, as soon as practical following any use of force. An officer who becomes aware of an allegation of unreasonable or unreported force by another officer must immediately notify his or her supervisor of that allegation
92. Use of Force Reports will be maintained centrally
E. Use of Force Investigations
93. A supervisor who was involved in a use of force, including by participating in or ordering the force under investigation, will not investigate the incident or review the Use of Force Reports for approval or disapproval
1. Investigations of Level 1 Uses of Force
94. The direct supervisor of the officer(s) employing a Level 1 use of force will review and approve the use of force in writing, return the Use of Force Report to the officer for revision, or elevate the Level 1 use of force before the end of the supervisor’s shift following the shift on which the Level 1 force was used. If the Use of Force Report is returned to the officer for revision, all revisions and additional reviews will be completed within 5 days of the use of force. It is not mandatory for supervisors to report to the scene of a Level 1 use of force. Supervisors will elevate and investigate any Level 1 use of force that appears to have violated policy or was improperly categorized as a Level 1 use of force. If a supervisor determines that an officer’s report reveals evidence of a use of force involving potential criminal conduct, he or she will immediately notify Internal Affairs
2. Investigations of Level 2 Uses of Force
95. The direct supervisor of the officer(s) using force, upon notification of a Level 2 use of force incident or allegation of excessive force, will respond to the location of the occurrence. Where the force is a Level 1 but the subject has alleged excessive force, the supervisor will respond to the scene to determine whether a Level 1 or Level 2 investigation should be conducted
96. If a CDP supervisor uses a Level 2 use of force, a supervisor of a higher rank will respond to the location of the occurrence and comply with the requirements of this section
97. For all Level 2 uses of force, the direct supervisor wlll:
A. respond to the scene, examine the subject of the force for injury, and interview the subject for complaints of pain after advising the subject that the interview pertains only to the use or force and not to any underlying alleged crime and that the subject need not answer questions;
B. where appropriate, ensure that the subject receives medical attention from an appropriate medical provider;
C. obtain an identifying number that allows CDP to track the use of force;
D. identify and collect all evidence relevant to the use of force and evaluate that evidence to determine whether the use of force: (1) was consistent with CDP policy; and/or (2) raises any policy, training, tactical, or equipment concerns;
E. ensure that all evidence that could establish material facts related to the use of force, including audio and video recordings, photographs, and other documentation of injuries or the absence of injuries is collected;
F. ensure that a canvass for civilian witnesses is conducted and interview all civilian witnesses. Supervisors will either record the interview or encourage civilian witnesses to provide and sign a written statement in their own words;
G. ensure that all officers witnessing a use of force incident by another officer complete a Use of Force Report. Supervisors will ensure that all Use of Force Reports identify all officers who were involved in the incident, witnessed the incident, or were on the scene when it occurred;
H. ensure that involved officers are interviewed separately from one another. Group interviews will be prohibited. Supervisors will not ask officers or other witnesses leading questions that suggest legal justifications for the officers’ conduct, where such questions are contrary to appropriate law enforcement techniques; and
I. each investigating supervisor will provide a brief written synopsis to their immediate supervisor, which will be forwarded through the chain of command to the District Commander by the end of the shift on which the force occurred, documenting the supervisor’s preliminary determination of the appropriateness or the use of force
98. The investigating supervisor will ensure that all Use of Force Reports include the information required by this Agreement and CDP policy; consider all relevant evidence, including circumstantial, direct, and physical evidence, as appropriate; and make credibility determinations, if feasible. Supervisors will make all reasonable efforts through the investigation to resolve material inconsistencies between the officer, subject, and witness statements, as well as inconsistencies between the level of force claimed by the officer and the subject’s injuries, and inconsistencies between multiple officers. CDP will train all investigating supervisors on how to effectively complete these tasks
99. Whenever a supervisor determines that there may have been misconduct, the supervisor will immediately notify Internal Affairs and Internal Affairs will determine if it should respond to the scene and/or conduct or take over the investigation
100. Within five days of learning of the use of force, each supervisor will complete and document his/her investigation using a supervisor’s Use of Force Report. Any extension to this deadline must be authorized by a District Commander. This Report will include the following:
A. the supervisor’s narrative description of the incident, including a precise description of the evidence that either justifies or fails to justify the officers’ conduct based on the supervisor’s independent review of the facts and circumstances of the incident;
B. documentation of all evidence that was gathered, including names, phone numbers, and addresses of witnesses to the incident. In situations in which there are no known witnesses, the report will specifically state that fact. In situations in which witnesses were present but circumstances prevented the supervisor from determining the identification, phone number, or address of those witnesses, the report will state the reasons why. The report should also include all available identifying information for anyone who refused to provide a statement;
C. the names of all CDP employees who used force or witnessed the use of force;
D. the investigating supervisor’s evaluation of the use of force, based on the supervisor’s review of the evidence gathered, including a determination of whether the officers’ actions appear to be within CDP policy and consistent with state and federal law; and an assessment of the incident for policy, training, tactical or equipment concerns, including whether the use of force may have been avoided through the use of de-escalation techniques or lesser force options; and
E. documentation of any non-disciplinary corrective action taken
101. Investigatory supervisors will be subject to the disciplinary process for failing to adequately investigate and document a use of force and material omissions or misrepresentations in the supervisory investigation. An investigatory supervisor’s failure to adequately investigate a use of force will be addressed in their performance review
102. Upon completion of the supervisor’s Use of Force Report, the investigating supervisor will forward the report through their chain of command to the District Commander, who will review the report to ensure that it is complete and that the findings are supported using the preponderance of the evidence standard. Each level in the chain of command will review the report within 72 hours of receiving it. Reviewing supervisors in the chain of command will order additional investigation when it appears that there is additional relevant evidence that may assist in resolving inconsistencies or improve the reliability or credibility of the findings
103. Where the findings of the Use of Force Report are not supported by a preponderance of the evidence, the investigating supervisor’s chain of command will document the reasons for this determination and will include this documentation as an addendum to the original investigation. The investigating supervisor’s superior will counsel the investigating supervisor regarding the inadequately supported determination and of any investigative deficiencies that led to it. The District Commander will be responsible for the accuracy and completeness of Use of Force Reports prepared by supervisors under their command
104. Where an investigating supervisor conducts deficient investigations, the supervisor will receive the appropriate corrective action, including training or demotion, in accordance with performance evaluation procedures and/or the disciplinary process
105. Whenever an investigating supervisor, reviewing supervisor, or District Commander finds evidence of a use of force involving potential criminal conduct by an officer, he or she will suspend the force investigation immediately and notify Internal Affairs. Internal Affairs will immediately notify FIT. which will take over both the criminal and administrative investigation
106. When the District Commander finds that the investigation is complete and the findings are supported by the evidence, the investigation file will be promptly forwarded to Internal Affairs. Internal Affairs will review the investigation to ensure that it is complete and that the findings arc supported by the evidence
107. When Internal Affairs completes its review, it will forward the complete file to the Chief of CDP for disposition
108. At the discretion of the Chief, his or her designee, or Internal Affairs, a use of force investigation may be assigned or re-assigned for investigation to FIT or to another supervisor, whether within or outside of the District in which the incident occurred, or may be returned to the District for further investigation or analysis. This assignment or re-assignment will be explained in writing
109. Where, after investigation, a use of force is found to be out of policy, the Chief will direct and ensure the appropriate disciplinary process. Where the use of force indicates policy, training, tactical, or equipment concerns, the Chief will ensure also that necessary training is delivered and that policy, tactical, or equipment concerns are resolved
3. Force Investigation Team and Investigations of Level 3 Uses of Force
110. CDP may refer criminal investigations of uses of force to an independent and highly competent agency outside CDP where appropriate to ensure the fact and/or appearance of impartiality of investigations
111. The Internal Affairs Unit will include CDP’s Force Investigation Team (“FIT”). Each FIT will be a team comprised of personnel from various units and will not be a new unit to which officers are permanently assigned. The FIT will conduct administrative investigations in all of the following instances and, where appropriate and where not assigned to an outside agency as permitted above, will conduct criminal investigations of: (1) all Level 3 uses of force; (2) uses of force involving potential criminal conduct by an officer; (3) all instances in which an individual died while in, or as an apparent result of being in, CDP custody; and (4) any uses of force reassigned to FIT by the Chief or his or her designee. The FIT will be designed to ensure that these incidents are investigated fully and fairly by individuals with appropriate expertise, independence, and investigative skills to ensure that uses of force that are contrary to law or policy are identified; that training, tactical, and equipment deficiencies related to the use of force are identified; and that investigations are of sufficient quality
112. FIT will be comprised of personnel who have specialized training and expertise. The FIT membership will be tailored to the circumstances of each investigation, but will normally include one or more FIT detectives, the FIT sergeant, an Office of Professional Standards investigator, an Internal Affairs investigator, and a Homicide Unit supervisory officer, who will serve as the Team’s leader. OPS investigators will not participate in criminal investigations. At least one member of the FIT will be available at all times to evaluate potential referrals from CDP supervisors
113. Prior to performing FIT duties, FIT members will receive FIT-specific training that is adequate in quality, quantity, scope, and type, including FIT procedures, including callout and investigative protocols; the differences between administrative and criminal investigations and how each should be conducted; investigations of officer-involved shootings; investigative equipment and techniques; and proper roles of the following: on-scene counterparts, such as crime scene technicians; the Monitor; any outside investigating agency; the prosecutor’s office; and OPS. The training also will address techniques for objective fact-gathering and evaluation and the factors to consider when evaluating credibility. FIT investigators also will receive annual in-service training that is adequate in quantity, quality, type, and scope
114. Within days from the Effective Date, CDP will identify, assign, and train personnel for the FIT to fulfill the requirements of this Agreement
115. FIT will respond to the scene of every incident involving a use of force for which it is required to conduct an investigation. The FIT leader will immediately notify the appropriate prosecutor’s office. If the City elects to utilize an outside agency to conduct the criminal investigation, the FIT leader will notify the designated outside agency to respond to the scene to conduct the criminal investigation
116. CDP will develop and implement policies to ensure that, where an outside agency conducts the criminal investigation, FIT conducts a concurrent and thorough administrative investigation
117. Before using an outside agency to conduct criminal investigations, CDP will develop a memorandum of understanding with the outside agency to ensure that, after an appropriate prosecutor review, completed criminal investigations are provided to FIT and the Monitor, and that information obtained from or as a result of any compelled interviews of officers is not provided to criminal investigators. The memorandum of understanding also will delineate responsibilities between the two agencies and establish investigative protocols to ensure, to the extent possible, thorough, objective and timely administrative and criminal investigations
118. FIT will:
A. assume control of the use of force investigation upon their arrival, unless an outside agency is conducting the criminal investigation and control of the scene by the criminal investigating body is appropriate;
B. ensure that a canvass for, and interview of, civilian witnesses is conducted by FIT team members. FIT members will either record the interview or encourage civilian witnesses to provide and sign written statements in their own words, but will take information from civilian witnesses who have pertinent information even if they refuse to be recorded or refuse to complete or sign a formal statement;
C. arrange for photographing and processing of the scene;
D. ensure that all evidence that could establish material facts related to the use of force, including audio and video recordings, photographs, and other documentation of injuries or the absence of injuries is collected;
E. examine the subject for injury, photograph areas of injury or complaint of injury, interview the subject for complaints of pain after advising the subject that the interview pertains only to the use of force and not to any underlying alleged crime and that the subject need not answer questions, and ensure that the subject receives medical attention from an appropriate medical provider;
F. ensure that all officers witnessing the use of force by another officer complete a use of force report regarding the incident;
G. review all use of force reports to ensure that they include the information required by CDP policy;
H. consistent with applicable law, interview all officers who witness or are otherwise involved in the incident. To the extent possible, officers will be separated until interviewed. Group interviews will be prohibited. FIT will not ask officers or other witnesses leading questions that suggest legal justifications for the officers’ conduct, when such questions are contrary to appropriate law enforcement techniques. FIT will record all interviews. FIT will ensure that all FIT investigation reports identify all officers who were involved in the incident, witnessed the incident, or were on the scene when it occurred;
I. arrange for body worn camera video downloads;
J. provide an initial briefing to a training representative at the start of the investigation to ensure that any training issues that require immediate attention are identified, and continue to consult as appropriate with the training representative; and
K. make all reasonable efforts through the investigation to resolve material inconsistencies between the officer, subject, and witness statements, as well as inconsistencies between the level of force claimed by the officer and the subject’s injuries
119. On at least an annual basis, the Monitor will determine whether the criminal investigations conducted by the outside agency are consistently objective, timely, and comprehensive. If the Monitor determines that they are not and the City disagrees, the Court will resolve the disagreement. If a determination is made that the investigations are not consistently objective, timely, and comprehensive, the memorandum of understanding will be terminated and the FIT will assume responsibility for conducting all criminal investigations of uses of force
120. If the FIT leader determines that a case has the potential to proceed criminally, compelled interviews of the subject officer(s) will be delayed. No other part of the investigation will be held in abeyance unless specifically authorized by the Chief in consultation with the agency conducting the criminal investigation and the appropriate prosecutor’s office
121. The FIT leader will complete a preliminary report that will be presented to the Chief of Police or the Chief’s designee as soon as possible, but absent exigent circumstances, no later than 24 hours after learning of the use of force
122. With the exception of compelled interviews as described in parngraph 120, FIT will complete its administrative investigation within 60 days. Any request for an extension of time must be supported by a written justification and approved in writing by the Chief or the Chief’s designee. CDP’s inability to complete the investigation because it is awaiting information from an outside agency, such as the medical examiner’s office, will constitute sufficient basis for such an extension for that portion of the investigation. Within seven days of the conclusion of each use of force investigation, FIT will prepare an investigation report and recommend whether the preponderance of the evidence establishes that the involved officer(s) violated CDP policy, and whether any training or policy concerns are presented. FIT’s investigative report and recommendations will be reviewed by the head of Internal Affairs. Within three business days, the head of Internal Affairs will approve or disapprove FIT’s recommendations, or request that FIT conduct additional investigation. Any request for additional investigation and the FIT’s response will be documented and maintained in the investigatory file. Internal Affairs will forward the investigative report to the Chief of Police for review and approval
123. CDP will revise the FIT manual to ensure that it is consistent with the force principles outlined in this Agreement and includes the following:
A. guidance on an appropriate approach when providing Garrity warnings and protections to officers for answering questions regarding their uses of force;
B. clear procedures to ensure appropriate separation of criminal and administrative investigations in the event of compelled subject officer statements;
C. definitions of all relevant terms;
D. clear statements of the mission and authority of FIT;
E. procedures for report writing;
F. procedures for objective fact-gathering and evaluation and the factors to consider when evaluating credibility;
G. procedures for collecting and processing evidence;
H. procedures for consulting with the law department, including ensuring that administrative investigations are not unnecessarily delayed while a criminal investigation is pending; and
I. scene management procedures
F. Force Review Board
124. CDP will develop and implement a Force Review Board (“FRB”) to serve as a quality control mechanism for uses of force and force investigations, and to appraise use of force incidents from a tactics, training, policy, and agency improvement perspective. The FRB will review all FIT investigations, all Level 2 investigations where there was a determination of force related misconduct, and a sample of Level 2 use of force investigations. The Force Review Board (“FRB”) will be comprised of the Chief of Police or his or her designee, who will chair the FRB; a supervisor from the training section; a representative from Office of Professional Standards; and a representative from Internal Affairs. One representative from each District, to be selected by the District Commander, will participate in all Force Review Board reviews involving a use of force in that District. The Chair may include any subject matter experts the Chair feels would be helpful in reviewing particular incidents. The FRB also may consult with other advisors as necessary
125. Each member will receive training on legal updates, updates to CDP’s policies, and CDP training curriculum related to the use of force
126. The Force Review Board will conduct comprehensive and reliable reviews of investigations within 90 days of submission to the FRB. The scope of the Board’s review will not be limited to assessing an officer’s decision-making at the moment the officer employed force. Rather, the FRB’s review will include the circumstances leading up to the use of force, tactical decisions, information sharing and communication, adequacy of supervision, equipment, training, CDP’s medical response, when applicable, and any commendable actions. The review will include the actions and inactions of all officers, supervisors, commanders, and dispatchers involved in the incident, as appropriate
127. In conducting these reviews, the Force Review Board will:
A. ensure that it is objective and complete and that the findings are supported by a preponderance of the evidence. Where the findings are not supported by a preponderance of the evidence, the FRB will document the reasons for this determination, including the specific evidence or analysis supporting its conclusions, and forward its determination to the Chief of Police;
B. hear the case presentation from the lead investigator, or for supervisory investigations, the representative from the District where the force occurred;
C. review any written or recorded statements from the officer, and discuss the case as necessary with the investigator or District representative to gain a full understanding of the facts of the incident;
D. order additional investigation when it appears that there is additional relevant evidence that may assist in resolving inconsistencies or improve the reliability or credibility of the force investigation;
E. determine whether the incident raises concerns regarding policy, training, equipment, supervision, medical response by officers on the scene, communication, or tactics, and refer such incidents to the appropriate unit within CDP to ensure they are resolved;
F. recommend non-disciplinary connective action to enable or encourage an officer to improve his/her performance; and
G. document its findings and recommendations in a report within 15 days of each FRB case presentation
128. The FRB will assess the quality of the investigations it reviews, including whether investigations are objective and comprehensive and recommendations are supported by a preponderance of the evidence. The FRB will identify and document any deficiencies that indicate a need for corrective action
129. Annually, the FRB will examine the data related to use of force provided by the Data Collection and Analysis Coordinator pursuant to paragraph 261, to detect any patterns, trends, and training deficiencies and make recommendations for correction, as appropriate. The analysis will be provided to the Monitor. To avoid duplication of effort in developing the public report required by paragraph 266, this analysis will be conducted in conjunction with the Data Collection and Analysis Coordinator
130. The FRB will work with the Data Collection and Analysis Coordinator to develop a tracking system to ensure that each of its recommendations has been forwarded to the appropriate personnel. The Chief and his or her designee will ensure that the FRB’s recommendations, including non-disciplinary corrective action, are implemented as appropriate
A. Use of Force Principles
46. The City will implement the terms of this Agreement with the goal of ensuring that use of force by CDP officers, regardless of the type of force, tactics, or weapon used, will comply with the following requirements:
A. officers will allow individuals the opportunity to submit to arrest before force is used wherever possible;
B. officers will use de-escalation techniques whenever possible and appropriate, before resorting to force and to reduce the need for force. De-escalation techniques may include verbal persuasion and warnings and tactical deescalation techniques, such as slowing down the pace or an incident, waiting out subjects, creating distance (and thus the reactionary gap) between the officer and the threat, and requesting additional resources (e.g. specialized CIT officers or negotiators). Officers will be trained to consider the possibility that a subject may be noncompliant due to a medical or mental condition, physical or hearing impairment, language barrier, drug interaction,or emotional crisis;
C. if force becomes necessary, officers will be limited to using only the amount or force objectively reasonable as necessary to control the person
D. in applying force, officers will reduce the level of force as the threat diminishes;
E. officers normally will not use force against persons who are handcuffed or otherwise restrained, unless it is objectively reasonable and necessary under the circumstances to stop an assault, escape, or as necessary to fulfill other law enforcement objectives;
F. officers will not use force against persons who only verbally confront them and do not impede a legitimate law enforcement function;
G. CDP will explicitly prohibit the use of retaliatory force by officers. Retaliatory force includes, for example, force in excess of what is objectively reasonable to prevent an escape to punish individuals for fleeing or otherwise resisting arrest; and force used to punish an individual for disrespecting officers;
H. officers will not use head strikes with hard objects, except where lethal force is justified. Officers will be trained that a strike to the head with any impact weapon could result in death;
I. other than to protect an officer’s or other person’s safety, officers will not use force to subdue an individual who is not suspected of any criminal conduct;
J. CDP’s policy will expressly provide that using a firearm as an impact weapon is never an authorized tactic. Officers will be trained that use of a firearm as an impact weapon could result in death to suspects, bystanders, and themselves;
K. officers will not use neck holds;
L. CDP will continue to limit vehicle pursuits to those in which the need to capture the suspect outweighs the danger to the public. CDP will continue to limit the number of CDP vehicles that may be involved in a vehicle pursuit; and
M. immediately following a use or force, officers and, upon arrival, a supervisor will inspect and observe subjects for injury or complaints of pain resulting from the use of force, and immediately obtain any necessary medical care. As necessary, officers will provide emergency first aid until professional medical care providers are on scene
47. As soon as practical following a use of force, CDP will ensure that the incident is accurately and properly reported, documented, and investigated. A fundamental goal of the revised use of force policy will be to account for, review, and investigate every reportable use of force and reduce any improper uses of force
48. CDP will track and analyze officers’ uses of force to hold officers accountable for unreasonable uses of force; to guide training and policy; and to identify poor tactics and emerging trends
B. Use of Force Policies
49. CDP will develop and implement use of force policies that comply with applicable law and are adequate to achieve the goals described in paragraph 45. The use of force policies will incorporate the use of force principles above, and will specify that the unreasonable use of force will subject officers to the disciplinary process, possible criminal prosecution, and/or possible civil liability
50. CDP’s policies will address the use and deployment of its authorized force techniques, technologies, and weapons that are available to CDP officers, including standard-issue weapons that are made available to all officers and weapons that are made available only to specialized units. The policies will clearly define and describe each force option and the circumstances under which use of such force is appropriate
51. CDP’s policies related to specific weapons will include training and certification requirements that each officer must meet before being permitted to carry and use the authorized weapon
52. No officer will carry any weapon that is not authorized or approved by CDP
53. Prior to the use of any approved weapon, the officer, when possible and appropriate, will communicate to the subject and other officers that the use of the weapon is imminent, and allow the subject an opportunity to comply
54. CDP will implement policies for each of the following weapons using the following guidelines
1. Firearms
55. Officers will not unholster and display a firearm unless the circumstances create a reasonable belief that lethal force may become necessary. CDP’s policies will require and training will teach proper techniques for unholstering, displaying, pointing, and aiming a firearm, and for determining when it is appropriate to do so. The Monitor will review CDP’s policies and training to ensure that they comply with this paragraph. If an officer unholsters a firearm during an incident, interaction, or event that would otherwise trigger a reporting or data collection requirement, officers will document that a firearm was unholstered. CDP will annually collect and analyze this data
56. Unholstering a firearm and pointing it at a subject constitutes a Level 1 reportable use of force and will be reported and investigated as such. The following exceptions to this reporting requirement will apply:
A. SWAT Team Officers will not be required to report the pointing of a firearm at a subject as a use of force during the execution of SWAT Team duties;
B. officers who are deputized and assigned to a Federal Task Force will not be required to report the pointing of a firearm at a subject as a use of force when conducting federal task force operations during which a supervisor is present. Reports or forms regarding any such incidents that are otherwise prepared by a Task Force supervisor will be provided to CDP;
C. officers assigned to the Gang Impact, Narcotics, Homicide, Sex Crimes, Domestic Violence, and Financial Crimes Units will not be required to report the pointing of a firearm at a subject as a use of force if done solely while entering and securing a building in connection with the execution of an arrest or search warrant and a supervisor prepares a report detailing the incident
57. Officers will not fire warning shots
58. Officers will consider their surroundings before discharging their firearms and will avoid unnecessary risk to bystanders, victims, and other officers
59. Officers will not discharge a firearm from or at a moving vehicle, unless use of lethal force is justified by something other than the threat from the moving vehicle; officers will not intentionally place themselves in the path of or reach inside a moving vehicle; and, where possible, officers will attempt to move out of the path of a moving vehicle
60. CDP annually will provide at least 16 hours of firearms training which will include pistol, shotgun, and policy training. In consultation with the Monitor, CDP will develop a plan lo provide appropriate night, reduced light, and stress training for officers. Officers will successfully qualify with each firearm they are authorized to use or carry on-duty at least annually. Officers will be required to qualify using proficiency standards and will not be permitted to carry any firearm on which they failed to qualify
2. Electronic Control Weapons
61. Officers will use Electronic Control Weapons (“ECWs”) only where: (1) grounds for arrest or detention are present and the subject is actively or aggressively resisting, and lesser means would be ineffective; or (2) such force is necessary to protect the officer, the subject, or another party from immediate physical harm, and lesser means would be ineffective or have been tried and failed
62. Each standard 5-second ECW application is a separate use of force that officers must individually justify as reasonable. After the first ECW application, the officer will reevaluate the situation to determine if subsequent cycles are reasonable. In determining whether any additional application is reasonable, officers will consider that a subject may not be able to respond to commands during or immediately following an ECW application. Officers will not employ more than three cycles of an ECW against a subject during a single incident
63. Officers will consider transitioning to alternative control measures if the subject does not respond to ECW applications
64. Officers will not use ECWs in drive stun mode solely as a pain compliance technique. Officers may use ECWs in drive stun mode only to supplement the probe mode to complete the incapacitation circuit, or as a countermeasure to gain separation between officers and the subject so that officers can consider another force option
65. Officers will determine the reasonableness of ECW use based upon all the relevant circumstances, including the subject’s apparent age, size, physical, and mental condition, and the feasibility of lesser force options
66. Except where lethal force is authorized, officers will not use ECWs where: (1) a deployment may cause serious physical injury or death from situational hazards, including falling, losing control of a moving vehicle, or becoming ignited from the presence of potentially explosive or flammable materials or substances; or (2) the subject is visibly pregnant, apparently elderly, a child, visibly frail, has obviously low body mass, or is in apparent medical crisis
67. Officers will not use ECWs on fleeing persons who do not pose a threat of physical harm to officers, other civilians, or themselves
68. Officers will not intentionally target ECWs to a subject’s head, neck, or genitalia
69. Officers will not normally use ECWs on handcuffed or restrained persons. ECWs will be used on handcuffed or restrained persons only where the subject is displaying aggressive physical resistance and lesser means would be ineffective or have been tried and failed
70. Officers will carry ECWs in a weak-side holster to reduce the chances of accidentally drawing and/or firing a firearm
71. Officers will be trained in and follow protocols developed by CDP, in conjunction with the City’s EMS professionals, on the officer’s responsibilities following ECW use, including:
A. restrictions on removing ECW probes, including the requirements described in the next paragraph;
B. understanding the risks of positional asphyxia, and using restraint techniques that do not impair the subject’s respiration following a ECW application;
C. monitoring all subjects who have received an ECW application while in police custody; and
D. informing medical personnel of all subjects who have been subjected to multiple ECW applications, including prolonged applications (more than 15 seconds); or who appear to be under the influence of drugs or exhibiting symptoms associated with excited delirium; or who were kept in prone restraints after ECW use
72. The City will ensure that all subjects who have been exposed to an ECW application receive a medical evaluation by emergency medical responders in the field or at a medical facility. Absent exigent circumstances, probes will be removed from a subject’s skin only by medical personnel or properly trained officers
73. In addition to the force reporting requirements outlined in paragraph 88, officers will clearly articulate and justify the following regarding their ECW use in a written narrative:
A. each and every ECW cycle used on a subject or attempted against a subject;
B. use of the ECW in drive stun mode;
E. ECW application for more than 15 seconds;
D. continuous cycling of an ECW;
E. ECW application on a fleeing person; and
F. ECW application by more than one officer
74. Officers who have been issued ECWs will receive annual ECW certifications, which will consist of physical competency; weapon retention; CDP policy, including any policy changes; technology changes; and scenario-based training
75. CDP will develop and implement integrity safeguards on the use of ECWs to ensure compliance with CDP policy. CDP will conduct quarterly downloads of all ECWs. CDP will conduct random and directed audits of ECW application data, which will be provided to the Monitor for review. The audits should include a comparison of the downloaded data to the officer’s Use of Force Reports. Discrepancies within the audit should be addressed and appropriately investigated
76. ECW application data will be tracked and analyzed in CDP’s Officer Intervention Program
3. Oleoresin Capsicum Spray (“OC Spray”)
77. Officers will apply OC spray only: (1) when such force is reasonable to protect the officer, the subject, or another party from physical ha1m and lesser means would be ineffective; or (2) for crowd dispersal or protection and other means would be more intrusive or less effective
78. After one standard OC spray (one second), each subsequent application is a separate use of force that officers must individually justify as reasonable
79. Officers will not normally use OC spray on handcuffed or restrained persons. OC spray will be used on handcuffed or restrained persons only where the subject is displaying aggressive physical resistance and lesser means would be ineffective or have been tried and failed
80. Officers will be trained in and follow protocols developed by CDP in conjunction with the City’s EMS professionals, on the officer’s responsibilities following OC spray use, including:
A. decontaminating every subject exposed to chemical spray by using cool water to flush the subject’s face and eyes within 20 minutes of gaining control of the scene. Officers need not decontaminate subjects who were only secondarily exposed to OC spray, for example, when OC spray is used for crowd control, unless requested by the subject;
B. understanding the risks of positional asphyxia, and using restraint techniques that do not impair the subject’s respiration following an OC spray application;
C. requesting medical response or assistance for subjects exposed to OC spray when they complain of continued effects after having been decontaminated, or they indicate that they have a pre-existing medical condition (e.g., asthma, emphysema, bronchitis, heart ailment, etc.) that may be aggravated by OC spray
81. Officers will carry only CDP issued OC spray
82. CDP will maintain documentation of the number of OC spray canisters distributed to and utilized by each officer
83. OC spray application data will be tracked and analyzed in CDP’s Officer Intervention Program
C. Use of Force Training
84. As part of its training requirements in Section XI of this Agreement, within 365 days of the Effective Date, CDP will provide all current officers use of force training that is adequate in quality, quantity, scope, and type and that includes:
A. proper use of force decision-making;
B. use of force reporting requirements;
C. the Fourth Amendment and related law;
D. de-escalation techniques, both verbal and tactical, that empower officers to make arrests without using force and instruction that disengagement, area containment, surveillance, waiting out a subject, summoning reinforcements, using cover, calling in specialized units, or delaying arrest may be the appropriate response to a situation, even when the use of force would be legally justified;
E. role-playing scenarios and interactive exercises that illustrate proper use of force decision-making, including training on the importance of peer intervention;
F. the proper deployment and use of all intermediate weapons or technologies;
G. the risks of prolonged or repeated ECW exposure, including that exposure to ECWs for longer than 15 seconds (whether due to multiple applications or continuous cycling) may increase the risk of death or serious physical injury;
H. the increased risks ECWs may present to a subject who is pregnant, elderly, a child, frail, has low body mass, or is in medical crisis;
I. that when using an ECW the drive stun mode is generally less effective than the probe mode and, when used repeatedly, may exacerbate the situation;
J. firearms training, as described in paragraph 60;
K. factors to consider in initiating or continuing a vehicle pursuit; and
L. for supervisors of all ranks, as part of their initial and annual in-service supervisory training, training in conducting use of force investigations; strategies for effectively directing officers to minimize uses of force and to intervene effectively to prevent or stop unreasonable force; and supporting officers who report unreasonable or unreported force, or who are retaliated against for attempting to prevent unreasonable force
85. CDP also will provide the use of force training described in paragraph 84 to all new officers as part of its training Academy
86. CDP will provide all officers with annual use of force in-service training that is adequate in quality, quantity, type, and scope
D. Use of Force Reporting Policy and Use of Force Reports
87. Within 365 days of the Effective Date, CDP will develop and implement a single, uniform, reporting system pursuant to a Use of Force Reporting policy. CDP uses of force will be divided into three levels. The three levels for the reporting, investigation, and review of use of force correspond to the amount of force used and/or the outcome of the force. This Agreement’s categorization of these types of uses of force is based on the following factors: potential of the technique or weapon to cause injury; degree of injury caused; degree of pain experienced; degree of disability experienced by the subject; complaint by the subject; degree of restraint of the subject; impairment of the functioning of any organ; duration of force; and physical vulnerability of the subject. Each level of force will require increasingly rigorous reporting, investigation, and review. The levels of force are defined as follows:
A. Level 1 is force that is reasonably expected to cause only transient pain and/or disorientation during its application as a means of gaining compliance, including pressure point compliance and joint manipulation techniques, but that is not reasonably expected to cause injury, does not result in an actual injury, and does not result in a complaint of injury. It does not include escorting, touching, or handcuffing a person with no or minimal resistance. Unholstering a firearm and pointing it at a subject is reportable as a Level 1 use of force with the exceptions set forth in paragraph 56
B. Level 2 is force that causes an injury, could reasonably be expected to cause an injury, or results in a complaint of an injury, but does not rise to the level of a Level 3 use of force. Level 2 includes the use of an ECW, including where an ECW is fired at a person but misses; OC Spray application; weaponless defense techniques (e.g., elbow or closed-fist strikes, kicks, leg sweeps, and takedowns); use of an impact weapon, except for a strike to the head, neck or face with an impact weapon; and any canine apprehension
C. Level 3 is force that includes: (1) uses of lethal force; (2) uses of force resulting in death or serious physical injury; (3) uses of force resulting in hospital admission; (3) all neck holds; (4) uses of force resulting in a loss of consciousness; (5) canine bites; (6) more than three applications of an ECW on an individual during a single interaction, regardless of the mode or duration of the application, and regardless of whether the applications are by the same or different officers, or an ECW application for longer than 15 seconds, whether continuous or consecutive; and (7) any Level 2 use of force against a handcuffed subject
88. All officers using or observing force will report in writing, before the end of their shift, the use of force in a Use of Force Report. The Use of Force Report will include: (1) a detailed account of the incident from the officer’s perspective; (2) the reason for the initial police presence; (3) a specific description of the acts that led to the use of force; (4) the level of resistance encountered; and (5) a complete and accurate description of every type of force used or observed. The use of force reporting policy will explicitly prohibit the use of conclusory statements, “boilerplate,” or “canned” language (e.g., “furtive movement” or “lighting stance”), without supporting detail
89. Officers will be subject to the disciplinary process for material omissions or misrepresentations in their Use of Force Reports
90. Officers who use or observe force and fail to report it will be subject to the disciplinary process, up to and including termination, regardless of whether the force was reasonable
91. Officers who use or observe force will notify their supervisors, or ensure that their supervisors have been notified, as soon as practical following any use of force. An officer who becomes aware of an allegation of unreasonable or unreported force by another officer must immediately notify his or her supervisor of that allegation
92. Use of Force Reports will be maintained centrally
E. Use of Force Investigations
93. A supervisor who was involved in a use of force, including by participating in or ordering the force under investigation, will not investigate the incident or review the Use of Force Reports for approval or disapproval
1. Investigations of Level 1 Uses of Force
94. The direct supervisor of the officer(s) employing a Level 1 use of force will review and approve the use of force in writing, return the Use of Force Report to the officer for revision, or elevate the Level 1 use of force before the end of the supervisor’s shift following the shift on which the Level 1 force was used. If the Use of Force Report is returned to the officer for revision, all revisions and additional reviews will be completed within 5 days of the use of force. It is not mandatory for supervisors to report to the scene of a Level 1 use of force. Supervisors will elevate and investigate any Level 1 use of force that appears to have violated policy or was improperly categorized as a Level 1 use of force. If a supervisor determines that an officer’s report reveals evidence of a use of force involving potential criminal conduct, he or she will immediately notify Internal Affairs
2. Investigations of Level 2 Uses of Force
95. The direct supervisor of the officer(s) using force, upon notification of a Level 2 use of force incident or allegation of excessive force, will respond to the location of the occurrence. Where the force is a Level 1 but the subject has alleged excessive force, the supervisor will respond to the scene to determine whether a Level 1 or Level 2 investigation should be conducted
96. If a CDP supervisor uses a Level 2 use of force, a supervisor of a higher rank will respond to the location of the occurrence and comply with the requirements of this section
97. For all Level 2 uses of force, the direct supervisor wlll:
A. respond to the scene, examine the subject of the force for injury, and interview the subject for complaints of pain after advising the subject that the interview pertains only to the use or force and not to any underlying alleged crime and that the subject need not answer questions;
B. where appropriate, ensure that the subject receives medical attention from an appropriate medical provider;
C. obtain an identifying number that allows CDP to track the use of force;
D. identify and collect all evidence relevant to the use of force and evaluate that evidence to determine whether the use of force: (1) was consistent with CDP policy; and/or (2) raises any policy, training, tactical, or equipment concerns;
E. ensure that all evidence that could establish material facts related to the use of force, including audio and video recordings, photographs, and other documentation of injuries or the absence of injuries is collected;
F. ensure that a canvass for civilian witnesses is conducted and interview all civilian witnesses. Supervisors will either record the interview or encourage civilian witnesses to provide and sign a written statement in their own words;
G. ensure that all officers witnessing a use of force incident by another officer complete a Use of Force Report. Supervisors will ensure that all Use of Force Reports identify all officers who were involved in the incident, witnessed the incident, or were on the scene when it occurred;
H. ensure that involved officers are interviewed separately from one another. Group interviews will be prohibited. Supervisors will not ask officers or other witnesses leading questions that suggest legal justifications for the officers’ conduct, where such questions are contrary to appropriate law enforcement techniques; and
I. each investigating supervisor will provide a brief written synopsis to their immediate supervisor, which will be forwarded through the chain of command to the District Commander by the end of the shift on which the force occurred, documenting the supervisor’s preliminary determination of the appropriateness or the use of force
98. The investigating supervisor will ensure that all Use of Force Reports include the information required by this Agreement and CDP policy; consider all relevant evidence, including circumstantial, direct, and physical evidence, as appropriate; and make credibility determinations, if feasible. Supervisors will make all reasonable efforts through the investigation to resolve material inconsistencies between the officer, subject, and witness statements, as well as inconsistencies between the level of force claimed by the officer and the subject’s injuries, and inconsistencies between multiple officers. CDP will train all investigating supervisors on how to effectively complete these tasks
99. Whenever a supervisor determines that there may have been misconduct, the supervisor will immediately notify Internal Affairs and Internal Affairs will determine if it should respond to the scene and/or conduct or take over the investigation
100. Within five days of learning of the use of force, each supervisor will complete and document his/her investigation using a supervisor’s Use of Force Report. Any extension to this deadline must be authorized by a District Commander. This Report will include the following:
A. the supervisor’s narrative description of the incident, including a precise description of the evidence that either justifies or fails to justify the officers’ conduct based on the supervisor’s independent review of the facts and circumstances of the incident;
B. documentation of all evidence that was gathered, including names, phone numbers, and addresses of witnesses to the incident. In situations in which there are no known witnesses, the report will specifically state that fact. In situations in which witnesses were present but circumstances prevented the supervisor from determining the identification, phone number, or address of those witnesses, the report will state the reasons why. The report should also include all available identifying information for anyone who refused to provide a statement;
C. the names of all CDP employees who used force or witnessed the use of force;
D. the investigating supervisor’s evaluation of the use of force, based on the supervisor’s review of the evidence gathered, including a determination of whether the officers’ actions appear to be within CDP policy and consistent with state and federal law; and an assessment of the incident for policy, training, tactical or equipment concerns, including whether the use of force may have been avoided through the use of de-escalation techniques or lesser force options; and
E. documentation of any non-disciplinary corrective action taken
101. Investigatory supervisors will be subject to the disciplinary process for failing to adequately investigate and document a use of force and material omissions or misrepresentations in the supervisory investigation. An investigatory supervisor’s failure to adequately investigate a use of force will be addressed in their performance review
102. Upon completion of the supervisor’s Use of Force Report, the investigating supervisor will forward the report through their chain of command to the District Commander, who will review the report to ensure that it is complete and that the findings are supported using the preponderance of the evidence standard. Each level in the chain of command will review the report within 72 hours of receiving it. Reviewing supervisors in the chain of command will order additional investigation when it appears that there is additional relevant evidence that may assist in resolving inconsistencies or improve the reliability or credibility of the findings
103. Where the findings of the Use of Force Report are not supported by a preponderance of the evidence, the investigating supervisor’s chain of command will document the reasons for this determination and will include this documentation as an addendum to the original investigation. The investigating supervisor’s superior will counsel the investigating supervisor regarding the inadequately supported determination and of any investigative deficiencies that led to it. The District Commander will be responsible for the accuracy and completeness of Use of Force Reports prepared by supervisors under their command
104. Where an investigating supervisor conducts deficient investigations, the supervisor will receive the appropriate corrective action, including training or demotion, in accordance with performance evaluation procedures and/or the disciplinary process
105. Whenever an investigating supervisor, reviewing supervisor, or District Commander finds evidence of a use of force involving potential criminal conduct by an officer, he or she will suspend the force investigation immediately and notify Internal Affairs. Internal Affairs will immediately notify FIT. which will take over both the criminal and administrative investigation
106. When the District Commander finds that the investigation is complete and the findings are supported by the evidence, the investigation file will be promptly forwarded to Internal Affairs. Internal Affairs will review the investigation to ensure that it is complete and that the findings arc supported by the evidence
107. When Internal Affairs completes its review, it will forward the complete file to the Chief of CDP for disposition
108. At the discretion of the Chief, his or her designee, or Internal Affairs, a use of force investigation may be assigned or re-assigned for investigation to FIT or to another supervisor, whether within or outside of the District in which the incident occurred, or may be returned to the District for further investigation or analysis. This assignment or re-assignment will be explained in writing
109. Where, after investigation, a use of force is found to be out of policy, the Chief will direct and ensure the appropriate disciplinary process. Where the use of force indicates policy, training, tactical, or equipment concerns, the Chief will ensure also that necessary training is delivered and that policy, tactical, or equipment concerns are resolved
3. Force Investigation Team and Investigations of Level 3 Uses of Force
110. CDP may refer criminal investigations of uses of force to an independent and highly competent agency outside CDP where appropriate to ensure the fact and/or appearance of impartiality of investigations
111. The Internal Affairs Unit will include CDP’s Force Investigation Team (“FIT”). Each FIT will be a team comprised of personnel from various units and will not be a new unit to which officers are permanently assigned. The FIT will conduct administrative investigations in all of the following instances and, where appropriate and where not assigned to an outside agency as permitted above, will conduct criminal investigations of: (1) all Level 3 uses of force; (2) uses of force involving potential criminal conduct by an officer; (3) all instances in which an individual died while in, or as an apparent result of being in, CDP custody; and (4) any uses of force reassigned to FIT by the Chief or his or her designee. The FIT will be designed to ensure that these incidents are investigated fully and fairly by individuals with appropriate expertise, independence, and investigative skills to ensure that uses of force that are contrary to law or policy are identified; that training, tactical, and equipment deficiencies related to the use of force are identified; and that investigations are of sufficient quality
112. FIT will be comprised of personnel who have specialized training and expertise. The FIT membership will be tailored to the circumstances of each investigation, but will normally include one or more FIT detectives, the FIT sergeant, an Office of Professional Standards investigator, an Internal Affairs investigator, and a Homicide Unit supervisory officer, who will serve as the Team’s leader. OPS investigators will not participate in criminal investigations. At least one member of the FIT will be available at all times to evaluate potential referrals from CDP supervisors
113. Prior to performing FIT duties, FIT members will receive FIT-specific training that is adequate in quality, quantity, scope, and type, including FIT procedures, including callout and investigative protocols; the differences between administrative and criminal investigations and how each should be conducted; investigations of officer-involved shootings; investigative equipment and techniques; and proper roles of the following: on-scene counterparts, such as crime scene technicians; the Monitor; any outside investigating agency; the prosecutor’s office; and OPS. The training also will address techniques for objective fact-gathering and evaluation and the factors to consider when evaluating credibility. FIT investigators also will receive annual in-service training that is adequate in quantity, quality, type, and scope
114. Within days from the Effective Date, CDP will identify, assign, and train personnel for the FIT to fulfill the requirements of this Agreement
115. FIT will respond to the scene of every incident involving a use of force for which it is required to conduct an investigation. The FIT leader will immediately notify the appropriate prosecutor’s office. If the City elects to utilize an outside agency to conduct the criminal investigation, the FIT leader will notify the designated outside agency to respond to the scene to conduct the criminal investigation
116. CDP will develop and implement policies to ensure that, where an outside agency conducts the criminal investigation, FIT conducts a concurrent and thorough administrative investigation
117. Before using an outside agency to conduct criminal investigations, CDP will develop a memorandum of understanding with the outside agency to ensure that, after an appropriate prosecutor review, completed criminal investigations are provided to FIT and the Monitor, and that information obtained from or as a result of any compelled interviews of officers is not provided to criminal investigators. The memorandum of understanding also will delineate responsibilities between the two agencies and establish investigative protocols to ensure, to the extent possible, thorough, objective and timely administrative and criminal investigations
118. FIT will:
A. assume control of the use of force investigation upon their arrival, unless an outside agency is conducting the criminal investigation and control of the scene by the criminal investigating body is appropriate;
B. ensure that a canvass for, and interview of, civilian witnesses is conducted by FIT team members. FIT members will either record the interview or encourage civilian witnesses to provide and sign written statements in their own words, but will take information from civilian witnesses who have pertinent information even if they refuse to be recorded or refuse to complete or sign a formal statement;
C. arrange for photographing and processing of the scene;
D. ensure that all evidence that could establish material facts related to the use of force, including audio and video recordings, photographs, and other documentation of injuries or the absence of injuries is collected;
E. examine the subject for injury, photograph areas of injury or complaint of injury, interview the subject for complaints of pain after advising the subject that the interview pertains only to the use of force and not to any underlying alleged crime and that the subject need not answer questions, and ensure that the subject receives medical attention from an appropriate medical provider;
F. ensure that all officers witnessing the use of force by another officer complete a use of force report regarding the incident;
G. review all use of force reports to ensure that they include the information required by CDP policy;
H. consistent with applicable law, interview all officers who witness or are otherwise involved in the incident. To the extent possible, officers will be separated until interviewed. Group interviews will be prohibited. FIT will not ask officers or other witnesses leading questions that suggest legal justifications for the officers’ conduct, when such questions are contrary to appropriate law enforcement techniques. FIT will record all interviews. FIT will ensure that all FIT investigation reports identify all officers who were involved in the incident, witnessed the incident, or were on the scene when it occurred;
I. arrange for body worn camera video downloads;
J. provide an initial briefing to a training representative at the start of the investigation to ensure that any training issues that require immediate attention are identified, and continue to consult as appropriate with the training representative; and
K. make all reasonable efforts through the investigation to resolve material inconsistencies between the officer, subject, and witness statements, as well as inconsistencies between the level of force claimed by the officer and the subject’s injuries
119. On at least an annual basis, the Monitor will determine whether the criminal investigations conducted by the outside agency are consistently objective, timely, and comprehensive. If the Monitor determines that they are not and the City disagrees, the Court will resolve the disagreement. If a determination is made that the investigations are not consistently objective, timely, and comprehensive, the memorandum of understanding will be terminated and the FIT will assume responsibility for conducting all criminal investigations of uses of force
120. If the FIT leader determines that a case has the potential to proceed criminally, compelled interviews of the subject officer(s) will be delayed. No other part of the investigation will be held in abeyance unless specifically authorized by the Chief in consultation with the agency conducting the criminal investigation and the appropriate prosecutor’s office
121. The FIT leader will complete a preliminary report that will be presented to the Chief of Police or the Chief’s designee as soon as possible, but absent exigent circumstances, no later than 24 hours after learning of the use of force
122. With the exception of compelled interviews as described in parngraph 120, FIT will complete its administrative investigation within 60 days. Any request for an extension of time must be supported by a written justification and approved in writing by the Chief or the Chief’s designee. CDP’s inability to complete the investigation because it is awaiting information from an outside agency, such as the medical examiner’s office, will constitute sufficient basis for such an extension for that portion of the investigation. Within seven days of the conclusion of each use of force investigation, FIT will prepare an investigation report and recommend whether the preponderance of the evidence establishes that the involved officer(s) violated CDP policy, and whether any training or policy concerns are presented. FIT’s investigative report and recommendations will be reviewed by the head of Internal Affairs. Within three business days, the head of Internal Affairs will approve or disapprove FIT’s recommendations, or request that FIT conduct additional investigation. Any request for additional investigation and the FIT’s response will be documented and maintained in the investigatory file. Internal Affairs will forward the investigative report to the Chief of Police for review and approval
123. CDP will revise the FIT manual to ensure that it is consistent with the force principles outlined in this Agreement and includes the following:
A. guidance on an appropriate approach when providing Garrity warnings and protections to officers for answering questions regarding their uses of force;
B. clear procedures to ensure appropriate separation of criminal and administrative investigations in the event of compelled subject officer statements;
C. definitions of all relevant terms;
D. clear statements of the mission and authority of FIT;
E. procedures for report writing;
F. procedures for objective fact-gathering and evaluation and the factors to consider when evaluating credibility;
G. procedures for collecting and processing evidence;
H. procedures for consulting with the law department, including ensuring that administrative investigations are not unnecessarily delayed while a criminal investigation is pending; and
I. scene management procedures
F. Force Review Board
124. CDP will develop and implement a Force Review Board (“FRB”) to serve as a quality control mechanism for uses of force and force investigations, and to appraise use of force incidents from a tactics, training, policy, and agency improvement perspective. The FRB will review all FIT investigations, all Level 2 investigations where there was a determination of force related misconduct, and a sample of Level 2 use of force investigations. The Force Review Board (“FRB”) will be comprised of the Chief of Police or his or her designee, who will chair the FRB; a supervisor from the training section; a representative from Office of Professional Standards; and a representative from Internal Affairs. One representative from each District, to be selected by the District Commander, will participate in all Force Review Board reviews involving a use of force in that District. The Chair may include any subject matter experts the Chair feels would be helpful in reviewing particular incidents. The FRB also may consult with other advisors as necessary
125. Each member will receive training on legal updates, updates to CDP’s policies, and CDP training curriculum related to the use of force
126. The Force Review Board will conduct comprehensive and reliable reviews of investigations within 90 days of submission to the FRB. The scope of the Board’s review will not be limited to assessing an officer’s decision-making at the moment the officer employed force. Rather, the FRB’s review will include the circumstances leading up to the use of force, tactical decisions, information sharing and communication, adequacy of supervision, equipment, training, CDP’s medical response, when applicable, and any commendable actions. The review will include the actions and inactions of all officers, supervisors, commanders, and dispatchers involved in the incident, as appropriate
127. In conducting these reviews, the Force Review Board will:
A. ensure that it is objective and complete and that the findings are supported by a preponderance of the evidence. Where the findings are not supported by a preponderance of the evidence, the FRB will document the reasons for this determination, including the specific evidence or analysis supporting its conclusions, and forward its determination to the Chief of Police;
B. hear the case presentation from the lead investigator, or for supervisory investigations, the representative from the District where the force occurred;
C. review any written or recorded statements from the officer, and discuss the case as necessary with the investigator or District representative to gain a full understanding of the facts of the incident;
D. order additional investigation when it appears that there is additional relevant evidence that may assist in resolving inconsistencies or improve the reliability or credibility of the force investigation;
E. determine whether the incident raises concerns regarding policy, training, equipment, supervision, medical response by officers on the scene, communication, or tactics, and refer such incidents to the appropriate unit within CDP to ensure they are resolved;
F. recommend non-disciplinary connective action to enable or encourage an officer to improve his/her performance; and
G. document its findings and recommendations in a report within 15 days of each FRB case presentation
128. The FRB will assess the quality of the investigations it reviews, including whether investigations are objective and comprehensive and recommendations are supported by a preponderance of the evidence. The FRB will identify and document any deficiencies that indicate a need for corrective action
129. Annually, the FRB will examine the data related to use of force provided by the Data Collection and Analysis Coordinator pursuant to paragraph 261, to detect any patterns, trends, and training deficiencies and make recommendations for correction, as appropriate. The analysis will be provided to the Monitor. To avoid duplication of effort in developing the public report required by paragraph 266, this analysis will be conducted in conjunction with the Data Collection and Analysis Coordinator
130. The FRB will work with the Data Collection and Analysis Coordinator to develop a tracking system to ensure that each of its recommendations has been forwarded to the appropriate personnel. The Chief and his or her designee will ensure that the FRB’s recommendations, including non-disciplinary corrective action, are implemented as appropriate