US Department of Justice

Civil Rights Division

Special Litigation Section - PHB 950 Pennsylvania Avenue NW Washington DC 20530

December 23 2008

Via Electronic Mail and First Class Mail

The Honorable Marc A Ott City ManagerCity of Austin TexasPO Box 1088 Austin TX 78767

Chief Arturo Acevedo Austin Police Chief 715 East 8th Street Austin TX 78701

Re Austin Police Department

Dear Mr Ott and Chief Acevedo

As you know on May 31 2007 the Civil Rights Divisioninitiated an investigation of the City of Austin Texas PoliceDepartment (ldquoAPDrdquo) pursuant to the Violent Crime Control and LawEnforcement Act of 1994 42 USC sect 14141 (ldquoSection 14141rdquo) We would like to take this opportunity to express our appreciationfor the cooperation we have received thus far from the City ofAustin and the APD

To date we have reviewed many relevant APD policies andprocedures and conducted interviews with City of Austinofficials APD command staff a cross-section of APD lineofficers and supervisors representatives of the Office of thePolice Monitor (ldquoOPMrdquo) the Austin Police Association (ldquoAPArdquo)numerous community leaders and other citizens

At the beginning of our investigation we committed toproviding the APD with technical assistance where appropriateto enhance APD practices and procedures and to ensure compliancewith constitutional rights During our meetings with ChiefAcevedo and the APD command staff in September and November 2007we advised that we would provide in writing more specifics aboutrecommendations our police practices experts had made orally In this letter we convey our recommendations regarding some of theAPDrsquos written policies including the revised policies providedto us in May and June 2008 We view the technical assistance

- 2 shy

provided below as recommendations and not mandates These recommendations were developed in close consultation with ourpolice practices consultants and follow the productive dialoguewe had with APD officers and Austin officials We strongly urgethe APD to consider the technical assistance recommendations in revising its policies and procedures

Significantly as will be discussed throughout this letterwhile work remains ahead our expert consultants have noted thatthe revised policies are a significant improvement over the APDrsquosprior policies We thank the APD for its work in revising thepolicies including the APDrsquos efforts at addressing many of theareas we pointed out during our on-site visits Importantaspects of our review process have yet to be completed namelyincident assessment Therefore this letter is not meant to beexhaustive but rather focuses on recommendations we can provideat this stage of our investigation

Additionally we hope this letter will assist in our mutualgoal of ensuring that the APD provides the best possible policeservice to the people of the City of Austin We look forward to continued cooperation toward this goal Though we have alreadyprovided you with some examples of policies used by other policedepartments we would be happy to provide additional exampleswhere needed

I POLICIES AND PROCEDURES

The APD should revise and update its policies and proceduresto be consistent and comprehensive

Policies and procedures are the primary means by whichpolice departments communicate their standards and expectationsto their officers Accordingly it is essential that the APDrsquospolicies be comprehensive comprehensible up-to-date andconsistent with relevant legal standards and contemporary policepractices As we discuss in detail below several of the APDrsquospolicies and procedures are inconsistent with generally acceptedpolice practices and are insufficiently detailed to provide theappropriate guidance for officer conduct

We are aware that the APD is in the process of updating bothits use of force policy and its internal affairs investigationspolicies1 It is also our understanding that in drafting its new

1 We note that during Chief Acevedorsquos relatively brieftenure with the APD the APD has not only engaged in the process

- 3 shy

policies the APD has in part utilized model policies that weprovided to the APD during the course of our investigation We base our recommendations in this letter on the most recent policies that the APD provided to us We again applaud the APDrsquosinitial efforts in updating these policies and recommend that anyadditional updates be made consistent with the feedback containedin this letter

To ensure consistency we recommend that once the APDcompletes updating each policy that the APD distribute thecompleted policy or procedure to all of its officers All officers should provide a written acknowledgment of theirreceipt review and understanding of all APD policies We suggest that the APD designate an individual responsible forreviewing any revisions to new policies and where necessary tobring to the command staffrsquos attention needed changes to ensureconsistency between APD policies This individual would also be responsible for ensuring that all officers receive completecopies of policy manuals and policy revisions and formaintaining copies of officersrsquo signed acknowledgments

II USE OF FORCE

The APD should revise its use of force policies and adopt anappropriate use of force continuum

In the course of duty police officers are sometimesrequired to use deadly and less lethal force Because the use of force can place officers civilians and subjects at serious riskof harm it is incumbent upon law enforcement agencies to ensurethat officers use force appropriately Use of force policies andprocedures must clearly set forth standards for appropriate useof force that are in accordance with constitutional standards

of updating these policies but also the APD has implemented anumber of other changes including dramatically increasingcommunity relations implementing discipline for sustained policyviolations forming a ldquoviolent crime task forcerdquo implementing aldquocriminal hotspot response strategyrdquo reorganizing commandstructure and alignment of some units beginning the ldquosafesurrenderrdquo program and introducing new uniforms and cruisersWe certainly encourage Chief Acevedo to continue working withAustinrsquos officers and the community as he assesses and makeschanges to better serve the public

- 4 shy

A Legal Standards Governing the Use of Force

Whether a particular use of force by an officer in thecourse of seizing an individual is constitutional is governed bythe Fourth Amendmentrsquos objective reasonableness standard Graham v Connor 490 US 386 394 (1989) Mace v City of Palestine333 F3d 621 623 (5th Cir 2003) Uses of excessive force bypolice officers in the course of arrest investigatory stop orother seizure are violations of the Fourth Amendment2 Id The analysis requires a balancing of the quality of intrusion on theindividualrsquos Fourth Amendment interests against the governmentalinterests Graham 490 US at 396 Gutierrez 139 F3d at 447The criteria courts apply to assess an excessive force claiminclude the severity of the crime at issue whether the suspectpresents an immediate safety threat to the officers or othersand whether the suspect is actively resisting or attempting toevade arrest Graham 490 US at 396 Gutierrez 139 F3d at447 Lack of specific policy guidance on the appropriate use offorce may lead officers to believe that they are justified inusing force in situations in which it would be unreasonable orunnecessary Conversely unclear or overly general policies mayresult in officers refraining from using necessary andappropriate force out of an unwarranted fear of using excessiveforce

2 A seizure -- ie by means of physical force or showof authority -- is the event that triggers Fourth Amendmentprotections See Petta v Rivera 143 F3d 895 900 (5th Cir1998) (discussing United States v Lanier 520 US 259 396 n10 (1997)) The Fifth Circuit has consistently held that claimsof excessive force by law enforcement in the course of a seizureshould be analyzed under the Fourth Amendmentrsquos reasonablenessstandard rather than a Fourteenth Amendment substantive due process approach Gutierrez v San Antonio 139 F3d 441 452 (5th Cir 1998) The Constitution however affords FourteenthAmendment Substantive Due Process protection from physical abuseby police officers for claims that are not susceptible to properanalysis under a different specific constitutional right -- egan excessive force claim without a seizure to trigger a FourthAmendment analysis Petta 143 F3d at 901 Similarly once anarrestee becomes a pre-trial detainee Fifth and FourteenthAmendment Due Process protections rather than the FourthAmendment are the appropriate constitutional basis for excessiveforce claims Valencia v Wiggins 981 F2d 1440 1444-45 (5th Cir 1993)

- 5 shy

3The Supreme Court held that deadly force is permissibleonly when a suspect poses an immediate threat of serious physicalharm to the officer or another person Tennessee v Garner 471 US 1 (1985) The only exception to this general rule is theldquofleeing felonrdquo rule which allows police officers to use deadlyforce to prevent the escape of a suspect in cases where there isprobable cause to believe the suspect either poses an immediatethreat of serious harm to the officer or another or hascommitted a crime involving the infliction or threatenedinfliction of serious physical harm Id Yet even in suchcircumstances police are required to provide a warning iffeasible before using deadly force Garner 471 US at 11Colston v Barhart 130 F3d 96 99 (5th Cir 1997) Deadlyforce is permissible only for as long as the threat remainsWhen the threat is over the use of deadly force must stopRusso v City of Cincinnati 953 F2d 1036 1045 (6th Cir 1992)(finding deadly force not proper after subject dropped knife)Abraham v Raso 183 F3d 279 294-95 (3d Cir 1999) (holdingthat an officer cannot continue to use force with impunity oncethe threat has stopped) APDrsquos use of force policy does notcomport with these legal standards in all respects Accordinglyas discussed in further detail below we recommend that the APDrevise its use of force policy to incorporate theseconstitutional standards

B APDrsquos Use of Force Policy

We base our review on the APDrsquos newly revised ldquoResponse toResistancerdquo policy and where applicable make reference to theAPDrsquos prior use of force policy

1 Preamble

In general a use of force policy should begin with apreamble setting forth the police departmentrsquos basic doctrine onuse of force Specifically with respect to the APD thispreamble should include a statement that the APD values theprotection and sanctity of human life Moreover the preambleshould set forth the general expectations that the APD holds forofficersrsquo use of force -- ie that officers are prohibited fromusing force unreasonably or as a means of punishment orinterrogation The use of force policy originally provided to

3 Deadly force is force ldquolsquocarry[ing] with it asubstantial risk of causing death or serious bodily harmrsquordquo SeeGutierrez 139 F3d at 446 (citing Robinette v Barnes 854 F2d909 912 (6th Cir 1988))

- 6 shy

us Use of Force General Policy B101 effective April 20 2000and revised January 26 2007 sets forth expectations of what thepolicy is not not a higher standard of care with respect tothird party claims This disclaimer overshadowed the mission statement that was part of the same policy The APDrsquos newlyrevised policy includes similar disclaimer language but only aspart of a larger preamble setting forth the APDrsquos values andexpectations of officersrsquo duties Response to Resistance PolicyB101a issued June 1 2008 The new preamble more adequatelyframes this disclaimer in context with the APDrsquos values In practice the APD should ensure that its officers not use adisclaimer to justify uses of force inconsistent with the valuesset forth in the preamble

2 Definitions

To ensure consistency in the application of the use offorce a successful use of force policy should also define keyterms such as lethal force less lethal force force etc The APDrsquos revised policy fails to define lethal force even though thepolicy sets forth criteria for use of ldquodeadlyrdquo force Responseto Resistance Policy B101a03 We recommend that the APD define ldquolethal forcerdquo to include any use of force that is likely tocause death or serious bodily injury in accordance with Tennesseev Garner supra 471 US 1

Some of the revised policyrsquos other definitions leave roomfor excluding uses of force that officers should report For example the revised definition of force includes a subjectiveldquominimal resistancerdquo threshold before force must be reported4

Response to Resistance Policy B101a01(A) We recommend that the APD modify its definition of force to eliminate the ldquominimalresistancerdquo threshold and instead include all force used beyondunresisted handcuffing Moreover the revised policyrsquos

4 As we discussed early in our investigation the priorpolicy also excluded uses of force that officers should havereported The prior policy defined force as ldquoany physical actionthat causes apparent injury or causes a person to complain ofpain or injuryrdquo Requiring a suspect to complain of pain or haveapparent pain before an action by an APD officer is consideredforce excluded the reporting of actual uses of force The definition excluded uses of force when a suspect did notcomplain The definition also excluded the reporting of uses offorce when the officer asserted that the suspectrsquos pain was notapparent to him or her We applaud the APDrsquos prompt response toour technical assistance regarding this issue

- 2 shy

provided below as recommendations and not mandates These recommendations were developed in close consultation with ourpolice practices consultants and follow the productive dialoguewe had with APD officers and Austin officials We strongly urgethe APD to consider the technical assistance recommendations in revising its policies and procedures

Significantly as will be discussed throughout this letterwhile work remains ahead our expert consultants have noted thatthe revised policies are a significant improvement over the APDrsquosprior policies We thank the APD for its work in revising thepolicies including the APDrsquos efforts at addressing many of theareas we pointed out during our on-site visits Importantaspects of our review process have yet to be completed namelyincident assessment Therefore this letter is not meant to beexhaustive but rather focuses on recommendations we can provideat this stage of our investigation

Additionally we hope this letter will assist in our mutualgoal of ensuring that the APD provides the best possible policeservice to the people of the City of Austin We look forward to continued cooperation toward this goal Though we have alreadyprovided you with some examples of policies used by other policedepartments we would be happy to provide additional exampleswhere needed

I POLICIES AND PROCEDURES

The APD should revise and update its policies and proceduresto be consistent and comprehensive

Policies and procedures are the primary means by whichpolice departments communicate their standards and expectationsto their officers Accordingly it is essential that the APDrsquospolicies be comprehensive comprehensible up-to-date andconsistent with relevant legal standards and contemporary policepractices As we discuss in detail below several of the APDrsquospolicies and procedures are inconsistent with generally acceptedpolice practices and are insufficiently detailed to provide theappropriate guidance for officer conduct

We are aware that the APD is in the process of updating bothits use of force policy and its internal affairs investigationspolicies1 It is also our understanding that in drafting its new

1 We note that during Chief Acevedorsquos relatively brieftenure with the APD the APD has not only engaged in the process

- 3 shy

policies the APD has in part utilized model policies that weprovided to the APD during the course of our investigation We base our recommendations in this letter on the most recent policies that the APD provided to us We again applaud the APDrsquosinitial efforts in updating these policies and recommend that anyadditional updates be made consistent with the feedback containedin this letter

To ensure consistency we recommend that once the APDcompletes updating each policy that the APD distribute thecompleted policy or procedure to all of its officers All officers should provide a written acknowledgment of theirreceipt review and understanding of all APD policies We suggest that the APD designate an individual responsible forreviewing any revisions to new policies and where necessary tobring to the command staffrsquos attention needed changes to ensureconsistency between APD policies This individual would also be responsible for ensuring that all officers receive completecopies of policy manuals and policy revisions and formaintaining copies of officersrsquo signed acknowledgments

II USE OF FORCE

The APD should revise its use of force policies and adopt anappropriate use of force continuum

In the course of duty police officers are sometimesrequired to use deadly and less lethal force Because the use of force can place officers civilians and subjects at serious riskof harm it is incumbent upon law enforcement agencies to ensurethat officers use force appropriately Use of force policies andprocedures must clearly set forth standards for appropriate useof force that are in accordance with constitutional standards

of updating these policies but also the APD has implemented anumber of other changes including dramatically increasingcommunity relations implementing discipline for sustained policyviolations forming a ldquoviolent crime task forcerdquo implementing aldquocriminal hotspot response strategyrdquo reorganizing commandstructure and alignment of some units beginning the ldquosafesurrenderrdquo program and introducing new uniforms and cruisersWe certainly encourage Chief Acevedo to continue working withAustinrsquos officers and the community as he assesses and makeschanges to better serve the public

- 4 shy

A Legal Standards Governing the Use of Force

Whether a particular use of force by an officer in thecourse of seizing an individual is constitutional is governed bythe Fourth Amendmentrsquos objective reasonableness standard Graham v Connor 490 US 386 394 (1989) Mace v City of Palestine333 F3d 621 623 (5th Cir 2003) Uses of excessive force bypolice officers in the course of arrest investigatory stop orother seizure are violations of the Fourth Amendment2 Id The analysis requires a balancing of the quality of intrusion on theindividualrsquos Fourth Amendment interests against the governmentalinterests Graham 490 US at 396 Gutierrez 139 F3d at 447The criteria courts apply to assess an excessive force claiminclude the severity of the crime at issue whether the suspectpresents an immediate safety threat to the officers or othersand whether the suspect is actively resisting or attempting toevade arrest Graham 490 US at 396 Gutierrez 139 F3d at447 Lack of specific policy guidance on the appropriate use offorce may lead officers to believe that they are justified inusing force in situations in which it would be unreasonable orunnecessary Conversely unclear or overly general policies mayresult in officers refraining from using necessary andappropriate force out of an unwarranted fear of using excessiveforce

2 A seizure -- ie by means of physical force or showof authority -- is the event that triggers Fourth Amendmentprotections See Petta v Rivera 143 F3d 895 900 (5th Cir1998) (discussing United States v Lanier 520 US 259 396 n10 (1997)) The Fifth Circuit has consistently held that claimsof excessive force by law enforcement in the course of a seizureshould be analyzed under the Fourth Amendmentrsquos reasonablenessstandard rather than a Fourteenth Amendment substantive due process approach Gutierrez v San Antonio 139 F3d 441 452 (5th Cir 1998) The Constitution however affords FourteenthAmendment Substantive Due Process protection from physical abuseby police officers for claims that are not susceptible to properanalysis under a different specific constitutional right -- egan excessive force claim without a seizure to trigger a FourthAmendment analysis Petta 143 F3d at 901 Similarly once anarrestee becomes a pre-trial detainee Fifth and FourteenthAmendment Due Process protections rather than the FourthAmendment are the appropriate constitutional basis for excessiveforce claims Valencia v Wiggins 981 F2d 1440 1444-45 (5th Cir 1993)

- 5 shy

3The Supreme Court held that deadly force is permissibleonly when a suspect poses an immediate threat of serious physicalharm to the officer or another person Tennessee v Garner 471 US 1 (1985) The only exception to this general rule is theldquofleeing felonrdquo rule which allows police officers to use deadlyforce to prevent the escape of a suspect in cases where there isprobable cause to believe the suspect either poses an immediatethreat of serious harm to the officer or another or hascommitted a crime involving the infliction or threatenedinfliction of serious physical harm Id Yet even in suchcircumstances police are required to provide a warning iffeasible before using deadly force Garner 471 US at 11Colston v Barhart 130 F3d 96 99 (5th Cir 1997) Deadlyforce is permissible only for as long as the threat remainsWhen the threat is over the use of deadly force must stopRusso v City of Cincinnati 953 F2d 1036 1045 (6th Cir 1992)(finding deadly force not proper after subject dropped knife)Abraham v Raso 183 F3d 279 294-95 (3d Cir 1999) (holdingthat an officer cannot continue to use force with impunity oncethe threat has stopped) APDrsquos use of force policy does notcomport with these legal standards in all respects Accordinglyas discussed in further detail below we recommend that the APDrevise its use of force policy to incorporate theseconstitutional standards

B APDrsquos Use of Force Policy

We base our review on the APDrsquos newly revised ldquoResponse toResistancerdquo policy and where applicable make reference to theAPDrsquos prior use of force policy

1 Preamble

In general a use of force policy should begin with apreamble setting forth the police departmentrsquos basic doctrine onuse of force Specifically with respect to the APD thispreamble should include a statement that the APD values theprotection and sanctity of human life Moreover the preambleshould set forth the general expectations that the APD holds forofficersrsquo use of force -- ie that officers are prohibited fromusing force unreasonably or as a means of punishment orinterrogation The use of force policy originally provided to

3 Deadly force is force ldquolsquocarry[ing] with it asubstantial risk of causing death or serious bodily harmrsquordquo SeeGutierrez 139 F3d at 446 (citing Robinette v Barnes 854 F2d909 912 (6th Cir 1988))

- 6 shy

us Use of Force General Policy B101 effective April 20 2000and revised January 26 2007 sets forth expectations of what thepolicy is not not a higher standard of care with respect tothird party claims This disclaimer overshadowed the mission statement that was part of the same policy The APDrsquos newlyrevised policy includes similar disclaimer language but only aspart of a larger preamble setting forth the APDrsquos values andexpectations of officersrsquo duties Response to Resistance PolicyB101a issued June 1 2008 The new preamble more adequatelyframes this disclaimer in context with the APDrsquos values In practice the APD should ensure that its officers not use adisclaimer to justify uses of force inconsistent with the valuesset forth in the preamble

2 Definitions

To ensure consistency in the application of the use offorce a successful use of force policy should also define keyterms such as lethal force less lethal force force etc The APDrsquos revised policy fails to define lethal force even though thepolicy sets forth criteria for use of ldquodeadlyrdquo force Responseto Resistance Policy B101a03 We recommend that the APD define ldquolethal forcerdquo to include any use of force that is likely tocause death or serious bodily injury in accordance with Tennesseev Garner supra 471 US 1

Some of the revised policyrsquos other definitions leave roomfor excluding uses of force that officers should report For example the revised definition of force includes a subjectiveldquominimal resistancerdquo threshold before force must be reported4

Response to Resistance Policy B101a01(A) We recommend that the APD modify its definition of force to eliminate the ldquominimalresistancerdquo threshold and instead include all force used beyondunresisted handcuffing Moreover the revised policyrsquos

4 As we discussed early in our investigation the priorpolicy also excluded uses of force that officers should havereported The prior policy defined force as ldquoany physical actionthat causes apparent injury or causes a person to complain ofpain or injuryrdquo Requiring a suspect to complain of pain or haveapparent pain before an action by an APD officer is consideredforce excluded the reporting of actual uses of force The definition excluded uses of force when a suspect did notcomplain The definition also excluded the reporting of uses offorce when the officer asserted that the suspectrsquos pain was notapparent to him or her We applaud the APDrsquos prompt response toour technical assistance regarding this issue

- 3 shy

policies the APD has in part utilized model policies that weprovided to the APD during the course of our investigation We base our recommendations in this letter on the most recent policies that the APD provided to us We again applaud the APDrsquosinitial efforts in updating these policies and recommend that anyadditional updates be made consistent with the feedback containedin this letter

To ensure consistency we recommend that once the APDcompletes updating each policy that the APD distribute thecompleted policy or procedure to all of its officers All officers should provide a written acknowledgment of theirreceipt review and understanding of all APD policies We suggest that the APD designate an individual responsible forreviewing any revisions to new policies and where necessary tobring to the command staffrsquos attention needed changes to ensureconsistency between APD policies This individual would also be responsible for ensuring that all officers receive completecopies of policy manuals and policy revisions and formaintaining copies of officersrsquo signed acknowledgments

II USE OF FORCE

The APD should revise its use of force policies and adopt anappropriate use of force continuum

In the course of duty police officers are sometimesrequired to use deadly and less lethal force Because the use of force can place officers civilians and subjects at serious riskof harm it is incumbent upon law enforcement agencies to ensurethat officers use force appropriately Use of force policies andprocedures must clearly set forth standards for appropriate useof force that are in accordance with constitutional standards

of updating these policies but also the APD has implemented anumber of other changes including dramatically increasingcommunity relations implementing discipline for sustained policyviolations forming a ldquoviolent crime task forcerdquo implementing aldquocriminal hotspot response strategyrdquo reorganizing commandstructure and alignment of some units beginning the ldquosafesurrenderrdquo program and introducing new uniforms and cruisersWe certainly encourage Chief Acevedo to continue working withAustinrsquos officers and the community as he assesses and makeschanges to better serve the public

- 4 shy

A Legal Standards Governing the Use of Force

Whether a particular use of force by an officer in thecourse of seizing an individual is constitutional is governed bythe Fourth Amendmentrsquos objective reasonableness standard Graham v Connor 490 US 386 394 (1989) Mace v City of Palestine333 F3d 621 623 (5th Cir 2003) Uses of excessive force bypolice officers in the course of arrest investigatory stop orother seizure are violations of the Fourth Amendment2 Id The analysis requires a balancing of the quality of intrusion on theindividualrsquos Fourth Amendment interests against the governmentalinterests Graham 490 US at 396 Gutierrez 139 F3d at 447The criteria courts apply to assess an excessive force claiminclude the severity of the crime at issue whether the suspectpresents an immediate safety threat to the officers or othersand whether the suspect is actively resisting or attempting toevade arrest Graham 490 US at 396 Gutierrez 139 F3d at447 Lack of specific policy guidance on the appropriate use offorce may lead officers to believe that they are justified inusing force in situations in which it would be unreasonable orunnecessary Conversely unclear or overly general policies mayresult in officers refraining from using necessary andappropriate force out of an unwarranted fear of using excessiveforce

2 A seizure -- ie by means of physical force or showof authority -- is the event that triggers Fourth Amendmentprotections See Petta v Rivera 143 F3d 895 900 (5th Cir1998) (discussing United States v Lanier 520 US 259 396 n10 (1997)) The Fifth Circuit has consistently held that claimsof excessive force by law enforcement in the course of a seizureshould be analyzed under the Fourth Amendmentrsquos reasonablenessstandard rather than a Fourteenth Amendment substantive due process approach Gutierrez v San Antonio 139 F3d 441 452 (5th Cir 1998) The Constitution however affords FourteenthAmendment Substantive Due Process protection from physical abuseby police officers for claims that are not susceptible to properanalysis under a different specific constitutional right -- egan excessive force claim without a seizure to trigger a FourthAmendment analysis Petta 143 F3d at 901 Similarly once anarrestee becomes a pre-trial detainee Fifth and FourteenthAmendment Due Process protections rather than the FourthAmendment are the appropriate constitutional basis for excessiveforce claims Valencia v Wiggins 981 F2d 1440 1444-45 (5th Cir 1993)

- 5 shy

3The Supreme Court held that deadly force is permissibleonly when a suspect poses an immediate threat of serious physicalharm to the officer or another person Tennessee v Garner 471 US 1 (1985) The only exception to this general rule is theldquofleeing felonrdquo rule which allows police officers to use deadlyforce to prevent the escape of a suspect in cases where there isprobable cause to believe the suspect either poses an immediatethreat of serious harm to the officer or another or hascommitted a crime involving the infliction or threatenedinfliction of serious physical harm Id Yet even in suchcircumstances police are required to provide a warning iffeasible before using deadly force Garner 471 US at 11Colston v Barhart 130 F3d 96 99 (5th Cir 1997) Deadlyforce is permissible only for as long as the threat remainsWhen the threat is over the use of deadly force must stopRusso v City of Cincinnati 953 F2d 1036 1045 (6th Cir 1992)(finding deadly force not proper after subject dropped knife)Abraham v Raso 183 F3d 279 294-95 (3d Cir 1999) (holdingthat an officer cannot continue to use force with impunity oncethe threat has stopped) APDrsquos use of force policy does notcomport with these legal standards in all respects Accordinglyas discussed in further detail below we recommend that the APDrevise its use of force policy to incorporate theseconstitutional standards

B APDrsquos Use of Force Policy

We base our review on the APDrsquos newly revised ldquoResponse toResistancerdquo policy and where applicable make reference to theAPDrsquos prior use of force policy

1 Preamble

In general a use of force policy should begin with apreamble setting forth the police departmentrsquos basic doctrine onuse of force Specifically with respect to the APD thispreamble should include a statement that the APD values theprotection and sanctity of human life Moreover the preambleshould set forth the general expectations that the APD holds forofficersrsquo use of force -- ie that officers are prohibited fromusing force unreasonably or as a means of punishment orinterrogation The use of force policy originally provided to

3 Deadly force is force ldquolsquocarry[ing] with it asubstantial risk of causing death or serious bodily harmrsquordquo SeeGutierrez 139 F3d at 446 (citing Robinette v Barnes 854 F2d909 912 (6th Cir 1988))

- 6 shy

us Use of Force General Policy B101 effective April 20 2000and revised January 26 2007 sets forth expectations of what thepolicy is not not a higher standard of care with respect tothird party claims This disclaimer overshadowed the mission statement that was part of the same policy The APDrsquos newlyrevised policy includes similar disclaimer language but only aspart of a larger preamble setting forth the APDrsquos values andexpectations of officersrsquo duties Response to Resistance PolicyB101a issued June 1 2008 The new preamble more adequatelyframes this disclaimer in context with the APDrsquos values In practice the APD should ensure that its officers not use adisclaimer to justify uses of force inconsistent with the valuesset forth in the preamble

2 Definitions

To ensure consistency in the application of the use offorce a successful use of force policy should also define keyterms such as lethal force less lethal force force etc The APDrsquos revised policy fails to define lethal force even though thepolicy sets forth criteria for use of ldquodeadlyrdquo force Responseto Resistance Policy B101a03 We recommend that the APD define ldquolethal forcerdquo to include any use of force that is likely tocause death or serious bodily injury in accordance with Tennesseev Garner supra 471 US 1

Some of the revised policyrsquos other definitions leave roomfor excluding uses of force that officers should report For example the revised definition of force includes a subjectiveldquominimal resistancerdquo threshold before force must be reported4

Response to Resistance Policy B101a01(A) We recommend that the APD modify its definition of force to eliminate the ldquominimalresistancerdquo threshold and instead include all force used beyondunresisted handcuffing Moreover the revised policyrsquos

4 As we discussed early in our investigation the priorpolicy also excluded uses of force that officers should havereported The prior policy defined force as ldquoany physical actionthat causes apparent injury or causes a person to complain ofpain or injuryrdquo Requiring a suspect to complain of pain or haveapparent pain before an action by an APD officer is consideredforce excluded the reporting of actual uses of force The definition excluded uses of force when a suspect did notcomplain The definition also excluded the reporting of uses offorce when the officer asserted that the suspectrsquos pain was notapparent to him or her We applaud the APDrsquos prompt response toour technical assistance regarding this issue

- 4 shy

A Legal Standards Governing the Use of Force

Whether a particular use of force by an officer in thecourse of seizing an individual is constitutional is governed bythe Fourth Amendmentrsquos objective reasonableness standard Graham v Connor 490 US 386 394 (1989) Mace v City of Palestine333 F3d 621 623 (5th Cir 2003) Uses of excessive force bypolice officers in the course of arrest investigatory stop orother seizure are violations of the Fourth Amendment2 Id The analysis requires a balancing of the quality of intrusion on theindividualrsquos Fourth Amendment interests against the governmentalinterests Graham 490 US at 396 Gutierrez 139 F3d at 447The criteria courts apply to assess an excessive force claiminclude the severity of the crime at issue whether the suspectpresents an immediate safety threat to the officers or othersand whether the suspect is actively resisting or attempting toevade arrest Graham 490 US at 396 Gutierrez 139 F3d at447 Lack of specific policy guidance on the appropriate use offorce may lead officers to believe that they are justified inusing force in situations in which it would be unreasonable orunnecessary Conversely unclear or overly general policies mayresult in officers refraining from using necessary andappropriate force out of an unwarranted fear of using excessiveforce

2 A seizure -- ie by means of physical force or showof authority -- is the event that triggers Fourth Amendmentprotections See Petta v Rivera 143 F3d 895 900 (5th Cir1998) (discussing United States v Lanier 520 US 259 396 n10 (1997)) The Fifth Circuit has consistently held that claimsof excessive force by law enforcement in the course of a seizureshould be analyzed under the Fourth Amendmentrsquos reasonablenessstandard rather than a Fourteenth Amendment substantive due process approach Gutierrez v San Antonio 139 F3d 441 452 (5th Cir 1998) The Constitution however affords FourteenthAmendment Substantive Due Process protection from physical abuseby police officers for claims that are not susceptible to properanalysis under a different specific constitutional right -- egan excessive force claim without a seizure to trigger a FourthAmendment analysis Petta 143 F3d at 901 Similarly once anarrestee becomes a pre-trial detainee Fifth and FourteenthAmendment Due Process protections rather than the FourthAmendment are the appropriate constitutional basis for excessiveforce claims Valencia v Wiggins 981 F2d 1440 1444-45 (5th Cir 1993)

- 5 shy

3The Supreme Court held that deadly force is permissibleonly when a suspect poses an immediate threat of serious physicalharm to the officer or another person Tennessee v Garner 471 US 1 (1985) The only exception to this general rule is theldquofleeing felonrdquo rule which allows police officers to use deadlyforce to prevent the escape of a suspect in cases where there isprobable cause to believe the suspect either poses an immediatethreat of serious harm to the officer or another or hascommitted a crime involving the infliction or threatenedinfliction of serious physical harm Id Yet even in suchcircumstances police are required to provide a warning iffeasible before using deadly force Garner 471 US at 11Colston v Barhart 130 F3d 96 99 (5th Cir 1997) Deadlyforce is permissible only for as long as the threat remainsWhen the threat is over the use of deadly force must stopRusso v City of Cincinnati 953 F2d 1036 1045 (6th Cir 1992)(finding deadly force not proper after subject dropped knife)Abraham v Raso 183 F3d 279 294-95 (3d Cir 1999) (holdingthat an officer cannot continue to use force with impunity oncethe threat has stopped) APDrsquos use of force policy does notcomport with these legal standards in all respects Accordinglyas discussed in further detail below we recommend that the APDrevise its use of force policy to incorporate theseconstitutional standards

B APDrsquos Use of Force Policy

We base our review on the APDrsquos newly revised ldquoResponse toResistancerdquo policy and where applicable make reference to theAPDrsquos prior use of force policy

1 Preamble

In general a use of force policy should begin with apreamble setting forth the police departmentrsquos basic doctrine onuse of force Specifically with respect to the APD thispreamble should include a statement that the APD values theprotection and sanctity of human life Moreover the preambleshould set forth the general expectations that the APD holds forofficersrsquo use of force -- ie that officers are prohibited fromusing force unreasonably or as a means of punishment orinterrogation The use of force policy originally provided to

3 Deadly force is force ldquolsquocarry[ing] with it asubstantial risk of causing death or serious bodily harmrsquordquo SeeGutierrez 139 F3d at 446 (citing Robinette v Barnes 854 F2d909 912 (6th Cir 1988))

- 6 shy

us Use of Force General Policy B101 effective April 20 2000and revised January 26 2007 sets forth expectations of what thepolicy is not not a higher standard of care with respect tothird party claims This disclaimer overshadowed the mission statement that was part of the same policy The APDrsquos newlyrevised policy includes similar disclaimer language but only aspart of a larger preamble setting forth the APDrsquos values andexpectations of officersrsquo duties Response to Resistance PolicyB101a issued June 1 2008 The new preamble more adequatelyframes this disclaimer in context with the APDrsquos values In practice the APD should ensure that its officers not use adisclaimer to justify uses of force inconsistent with the valuesset forth in the preamble

2 Definitions

To ensure consistency in the application of the use offorce a successful use of force policy should also define keyterms such as lethal force less lethal force force etc The APDrsquos revised policy fails to define lethal force even though thepolicy sets forth criteria for use of ldquodeadlyrdquo force Responseto Resistance Policy B101a03 We recommend that the APD define ldquolethal forcerdquo to include any use of force that is likely tocause death or serious bodily injury in accordance with Tennesseev Garner supra 471 US 1

Some of the revised policyrsquos other definitions leave roomfor excluding uses of force that officers should report For example the revised definition of force includes a subjectiveldquominimal resistancerdquo threshold before force must be reported4

Response to Resistance Policy B101a01(A) We recommend that the APD modify its definition of force to eliminate the ldquominimalresistancerdquo threshold and instead include all force used beyondunresisted handcuffing Moreover the revised policyrsquos

4 As we discussed early in our investigation the priorpolicy also excluded uses of force that officers should havereported The prior policy defined force as ldquoany physical actionthat causes apparent injury or causes a person to complain ofpain or injuryrdquo Requiring a suspect to complain of pain or haveapparent pain before an action by an APD officer is consideredforce excluded the reporting of actual uses of force The definition excluded uses of force when a suspect did notcomplain The definition also excluded the reporting of uses offorce when the officer asserted that the suspectrsquos pain was notapparent to him or her We applaud the APDrsquos prompt response toour technical assistance regarding this issue

- 5 shy

3The Supreme Court held that deadly force is permissibleonly when a suspect poses an immediate threat of serious physicalharm to the officer or another person Tennessee v Garner 471 US 1 (1985) The only exception to this general rule is theldquofleeing felonrdquo rule which allows police officers to use deadlyforce to prevent the escape of a suspect in cases where there isprobable cause to believe the suspect either poses an immediatethreat of serious harm to the officer or another or hascommitted a crime involving the infliction or threatenedinfliction of serious physical harm Id Yet even in suchcircumstances police are required to provide a warning iffeasible before using deadly force Garner 471 US at 11Colston v Barhart 130 F3d 96 99 (5th Cir 1997) Deadlyforce is permissible only for as long as the threat remainsWhen the threat is over the use of deadly force must stopRusso v City of Cincinnati 953 F2d 1036 1045 (6th Cir 1992)(finding deadly force not proper after subject dropped knife)Abraham v Raso 183 F3d 279 294-95 (3d Cir 1999) (holdingthat an officer cannot continue to use force with impunity oncethe threat has stopped) APDrsquos use of force policy does notcomport with these legal standards in all respects Accordinglyas discussed in further detail below we recommend that the APDrevise its use of force policy to incorporate theseconstitutional standards

B APDrsquos Use of Force Policy

We base our review on the APDrsquos newly revised ldquoResponse toResistancerdquo policy and where applicable make reference to theAPDrsquos prior use of force policy

1 Preamble

In general a use of force policy should begin with apreamble setting forth the police departmentrsquos basic doctrine onuse of force Specifically with respect to the APD thispreamble should include a statement that the APD values theprotection and sanctity of human life Moreover the preambleshould set forth the general expectations that the APD holds forofficersrsquo use of force -- ie that officers are prohibited fromusing force unreasonably or as a means of punishment orinterrogation The use of force policy originally provided to

3 Deadly force is force ldquolsquocarry[ing] with it asubstantial risk of causing death or serious bodily harmrsquordquo SeeGutierrez 139 F3d at 446 (citing Robinette v Barnes 854 F2d909 912 (6th Cir 1988))

- 6 shy

us Use of Force General Policy B101 effective April 20 2000and revised January 26 2007 sets forth expectations of what thepolicy is not not a higher standard of care with respect tothird party claims This disclaimer overshadowed the mission statement that was part of the same policy The APDrsquos newlyrevised policy includes similar disclaimer language but only aspart of a larger preamble setting forth the APDrsquos values andexpectations of officersrsquo duties Response to Resistance PolicyB101a issued June 1 2008 The new preamble more adequatelyframes this disclaimer in context with the APDrsquos values In practice the APD should ensure that its officers not use adisclaimer to justify uses of force inconsistent with the valuesset forth in the preamble

2 Definitions

To ensure consistency in the application of the use offorce a successful use of force policy should also define keyterms such as lethal force less lethal force force etc The APDrsquos revised policy fails to define lethal force even though thepolicy sets forth criteria for use of ldquodeadlyrdquo force Responseto Resistance Policy B101a03 We recommend that the APD define ldquolethal forcerdquo to include any use of force that is likely tocause death or serious bodily injury in accordance with Tennesseev Garner supra 471 US 1

Some of the revised policyrsquos other definitions leave roomfor excluding uses of force that officers should report For example the revised definition of force includes a subjectiveldquominimal resistancerdquo threshold before force must be reported4

Response to Resistance Policy B101a01(A) We recommend that the APD modify its definition of force to eliminate the ldquominimalresistancerdquo threshold and instead include all force used beyondunresisted handcuffing Moreover the revised policyrsquos

4 As we discussed early in our investigation the priorpolicy also excluded uses of force that officers should havereported The prior policy defined force as ldquoany physical actionthat causes apparent injury or causes a person to complain ofpain or injuryrdquo Requiring a suspect to complain of pain or haveapparent pain before an action by an APD officer is consideredforce excluded the reporting of actual uses of force The definition excluded uses of force when a suspect did notcomplain The definition also excluded the reporting of uses offorce when the officer asserted that the suspectrsquos pain was notapparent to him or her We applaud the APDrsquos prompt response toour technical assistance regarding this issue

- 6 shy

us Use of Force General Policy B101 effective April 20 2000and revised January 26 2007 sets forth expectations of what thepolicy is not not a higher standard of care with respect tothird party claims This disclaimer overshadowed the mission statement that was part of the same policy The APDrsquos newlyrevised policy includes similar disclaimer language but only aspart of a larger preamble setting forth the APDrsquos values andexpectations of officersrsquo duties Response to Resistance PolicyB101a issued June 1 2008 The new preamble more adequatelyframes this disclaimer in context with the APDrsquos values In practice the APD should ensure that its officers not use adisclaimer to justify uses of force inconsistent with the valuesset forth in the preamble

2 Definitions

To ensure consistency in the application of the use offorce a successful use of force policy should also define keyterms such as lethal force less lethal force force etc The APDrsquos revised policy fails to define lethal force even though thepolicy sets forth criteria for use of ldquodeadlyrdquo force Responseto Resistance Policy B101a03 We recommend that the APD define ldquolethal forcerdquo to include any use of force that is likely tocause death or serious bodily injury in accordance with Tennesseev Garner supra 471 US 1

Some of the revised policyrsquos other definitions leave roomfor excluding uses of force that officers should report For example the revised definition of force includes a subjectiveldquominimal resistancerdquo threshold before force must be reported4

Response to Resistance Policy B101a01(A) We recommend that the APD modify its definition of force to eliminate the ldquominimalresistancerdquo threshold and instead include all force used beyondunresisted handcuffing Moreover the revised policyrsquos

4 As we discussed early in our investigation the priorpolicy also excluded uses of force that officers should havereported The prior policy defined force as ldquoany physical actionthat causes apparent injury or causes a person to complain ofpain or injuryrdquo Requiring a suspect to complain of pain or haveapparent pain before an action by an APD officer is consideredforce excluded the reporting of actual uses of force The definition excluded uses of force when a suspect did notcomplain The definition also excluded the reporting of uses offorce when the officer asserted that the suspectrsquos pain was notapparent to him or her We applaud the APDrsquos prompt response toour technical assistance regarding this issue

- 7 shy

definitions of ldquoinjuryrdquo and of ldquoserious physical or bodilyinjuryrdquo require a complaint of pain or an ldquoapparentrdquo injuryThese definitions inappropriately exclude injury when a suspectdoes not complain or when the officer asserts that the suspectrsquosinjury is not apparent Additionally the APDrsquos reviseddefinition of physical or bodily injury does not require thereporting of all force alleged to have been used by an officerThe policy only requires the reporting of injuries ldquocausedrdquo bythe officer We recommend that the APD modify this definition toinclude injury alleged to have been caused by APD personnel We also recommend that the APD revise its definition of serious physical or bodily injury to exclude ldquolong termrdquo as a criteriaofficers should not have to attempt to determine the long termeffects of an injury in order for it to qualify as a use offorce Additionally the policy should specifically includefractures as serious injuries

3 Permitted Uses of Force

In addition to needing to include key definitions common tothe entire use of force policy we recommend that the policy setforth the APDrsquos rules on when force may be used and what force isprohibited The APDrsquos general rule on use of force is deficientThe revised policy first includes a requirement that a policeofficer be objectively reasonable in ldquolawful law enforcementobjectivesrdquo5 Response to Resistance Policy B101a02(A) A later bolded and underlined restatement in the policy howeverundermines this lawfulness requirement Specifically it saysldquoThe ultimate test is whether the use of force was objectivelyreasonablerdquo Response to Resistance Policy B101a02(C) (emphasis in original) This overarching policy statement omits anyexplicit requirement that there be a lawful law enforcementaction Also significantly while the revised policy includes agreat deal of language to shield an officerrsquos decisions onreasonableness the revised policyrsquos general rule omits anymention of necessity for the use of force The APD should revise its general statement on the use of force to permit force onlywhen the force used is objectively reasonable because it isnecessary to overcome resistance offered in a lawful policeaction to compel an unwilling subjectrsquos compliance with anofficerrsquos lawful exercise of police authority This rule should

5 The prior policyrsquos generally applicable rule on the useof force for APD officers omitted any requirement that an officerbe engaged in a lawful police action We view the APDrsquos policychange to require a ldquolawful law enforcement objectiverdquo as asignificant positive improvement over the prior policy

- 8 shy

specifically cite the Supreme Courtrsquos holding in Graham vConnor supra 490 US at 395-96 for the reasonablenessrequirement Further ldquonecessaryrdquo should be qualified as theleast amount of force necessary to overcome resistance offered6

At a minimum the policy should require that officers usethe lowest level of force objectively necessary from theofficerrsquos position to safely resolve a situation includingverbal commands and other alternative negotiation techniques We recommend that the use of force policy include alternatives tomore significant uses of force such as emphasizing announcementof officersrsquo presence the use of ldquosoft handrdquo techniques (ieusing hands to escort rather than control subjects) and otherde-escalation techniques7 APDrsquos use of force policy should alsoincorporate the de-escalation techniques appropriate tointeractions with individuals with mental illness or who are under the influence of drugs or alcohol including providingspecialized training eg crisis intervention training orguidance to officers regarding the signs or symptoms foridentifying such individuals

4 Use of Force Continuum

The APD does not currently employ a use of force continuummatrix or any other description of levels of suspect resistanceand appropriate officer use of force responses in order to teachits officers a progression and de-escalation of use of force8

6 The APD uses the term ldquonecessaryrdquo in its policy withrespect to use of lethal force Response to Resistance PolicyB101a03(A) The APD does not however use the term withrespect to objectively reasonable force Response to ResistancePolicy B101a02 Nor does the APD define ldquonecessaryrdquo in itsresponse to resistance policy

7 The revised policy includes a list of criteria anofficer should be able to articulate to justify thereasonableness of uses of force Response to Resistance PolicyB101a02(B) These criteria imply that officers should attemptto de-escalate a situation The policy does not explicitlyrequire however that officers attempt de-escalation iffeasible in the situation

8 A use of force continuum as more thoroughly describedin this section is a diagram guide or chart that illustrates aprogression of various descriptions of use of force that may beemployed consistent with policy

- 8 shy

specifically cite the Supreme Courtrsquos holding in Graham vConnor supra 490 US at 395-96 for the reasonablenessrequirement Further ldquonecessaryrdquo should be qualified as theleast amount of force necessary to overcome resistance offered6

At a minimum the policy should require that officers usethe lowest level of force objectively necessary from theofficerrsquos position to safely resolve a situation includingverbal commands and other alternative negotiation techniques We recommend that the use of force policy include alternatives tomore significant uses of force such as emphasizing announcementof officersrsquo presence the use of ldquosoft handrdquo techniques (ieusing hands to escort rather than control subjects) and otherde-escalation techniques7 APDrsquos use of force policy should alsoincorporate the de-escalation techniques appropriate tointeractions with individuals with mental illness or who are under the influence of drugs or alcohol including providingspecialized training eg crisis intervention training orguidance to officers regarding the signs or symptoms foridentifying such individuals

4 Use of Force Continuum

The APD does not currently employ a use of force continuummatrix or any other description of levels of suspect resistanceand appropriate officer use of force responses in order to teachits officers a progression and de-escalation of use of force8

6 The APD uses the term ldquonecessaryrdquo in its policy withrespect to use of lethal force Response to Resistance PolicyB101a03(A) The APD does not however use the term withrespect to objectively reasonable force Response to ResistancePolicy B101a02 Nor does the APD define ldquonecessaryrdquo in itsresponse to resistance policy

7 The revised policy includes a list of criteria anofficer should be able to articulate to justify thereasonableness of uses of force Response to Resistance PolicyB101a02(B) These criteria imply that officers should attemptto de-escalate a situation The policy does not explicitlyrequire however that officers attempt de-escalation iffeasible in the situation

8 A use of force continuum as more thoroughly describedin this section is a diagram guide or chart that illustrates aprogression of various descriptions of use of force that may beemployed consistent with policy

- 9 shy

APD should consider adopting a use of force continuum or othersimilar tool to provide officers with uniform guidelines aboutthe appropriate use of force (as noted above de-escalation andescalation techniques should be emphasized) We recommend that the APD develop a comprehensive use of force continuum thataugments and enhances a revised use of force policy as a trainingmodel to effectively assess and engage situations The use of force continuum should be a fluid and flexible policy guide toprovide effective and efficient policing The continuum should be consistent with accepted policing practices and should be usedto train officers to consider lower levels of force first whichprotects the safety of both the officer and the civilian

Specifically we recommend that the APD develop a use offorce continuum that illustrates the various uses of force that may be employed and make them consistent with the terms anddefinitions outlined in other parts of the policy The descriptions of force should be more detailed and include thelevel of force officers should initially engage given the threatpresented to them how the various applications of the optionsaffect their placement in the use of force progression and whatlevel of force is appropriate in response to different levels ofresistance by suspects including de-escalation techniques andinteractions with individuals with a mental illness or who are under the influence of drugs or alcohol The continuum should include all of the actual types of force used by APD including

9firearms conductive energy devices OC spray impact weaponscanines and any other uses of force

Though the revised policy does not incorporate a use offorce continuum the policy uses terminology that implies thatofficers should be using a continuum in determining reasonablelevels of use of force For example the policy categorizeschemical agents as ldquosoft intermediate weaponsrdquo Response toResistance Policy B101a06(A) Also the policy requiresofficers to articulate the ldquo[a]vailability and utility of lesserforce optionsrdquo Response to Resistance Policy B101a02(B)(7) A clearly articulated use of force continuum would bring clarity tothis confusing dichotomy used in the revised policy

9 Such weapons are sometimes referred to by a brand nameldquoTASERrdquo or simply called ldquostun gunsrdquo For consistency purposeswe refer in this letter to all such weapons used by the APD as anldquoconductive energy devicesrdquo or ldquoCEDsrdquo

- 10 shy

5 Lethal Force

The APDrsquos revised use of force policy appropriately restatesthe standard for use of lethal force which the APD refers to asdeadly force articulated in the Supreme Courtrsquos holding inTennessee v Garner supra 471 US 1 Response to ResistancePolicy B101a03(A) Unlike the APDrsquos prior use of force policythe revised policy includes the requirement that a threat beimminent The revised policy now also addresses the fleeingfelon rule10 which the prior policy did not However unlikethe prior policy the revised policy omits a statement that theuse of equipment other than firearms may constitute use of deadlyforce depending on the technique used The revised policy alsolacks specificity or direction on potentially lethal uses offorce Accordingly we recommend that the APDrsquos policy specifythat ldquolethal forcerdquo includes force methods that employpotentially lethal weapons (eg firearms cars etc)Additionally due to the possibility of death or serious bodilyinjury from the delivery of blows to the head with impactweapons we recommend that the APD specifically limit strikes tothe head with impact weapons11 The policy should also specify

10 The fleeing felon rule permits the use of lethal forcein the apprehension of a subject only (1) to defend the officeror a third person from what the officer objectively reasonablybelieves is an imminent threat of lethal force or force from the subject likely to cause serious bodily injury or (2) to preventthe escape of a suspect in cases where there is probable cause tobelieve the suspect either poses an imminent threat of seriousharm to the officer or another or has committed a crimeinvolving the infliction or threatened infliction of seriousphysical harm and other means of apprehension are inadequate orunavailable and if where feasible warning has been givenGarner 471 US at 11-12 The revised policy is slightly morenarrow The revised policy does not specifically permit the useof lethal force against a fleeing felon who has committed a crimeinvolving the infliction or threatened infliction of seriousphysical harm and other means of apprehension are inadequate orunavailable Response to Resistance Policy B101a03(A) APD policy properly may be more narrow than the furthestconstitutional limits on the uses of force

11 The revised policy specifies that blows with impactweapons should only be delivered to ldquovulnerable areas of the body(target areas)rdquo Response to Resistance Policy B101a07(D)This limiting language is useful but not explicit on thepotential use of impact weapons as deadly force

- 10 shy

5 Lethal Force

The APDrsquos revised use of force policy appropriately restatesthe standard for use of lethal force which the APD refers to asdeadly force articulated in the Supreme Courtrsquos holding inTennessee v Garner supra 471 US 1 Response to ResistancePolicy B101a03(A) Unlike the APDrsquos prior use of force policythe revised policy includes the requirement that a threat beimminent The revised policy now also addresses the fleeingfelon rule10 which the prior policy did not However unlikethe prior policy the revised policy omits a statement that theuse of equipment other than firearms may constitute use of deadlyforce depending on the technique used The revised policy alsolacks specificity or direction on potentially lethal uses offorce Accordingly we recommend that the APDrsquos policy specifythat ldquolethal forcerdquo includes force methods that employpotentially lethal weapons (eg firearms cars etc)Additionally due to the possibility of death or serious bodilyinjury from the delivery of blows to the head with impactweapons we recommend that the APD specifically limit strikes tothe head with impact weapons11 The policy should also specify

10 The fleeing felon rule permits the use of lethal forcein the apprehension of a subject only (1) to defend the officeror a third person from what the officer objectively reasonablybelieves is an imminent threat of lethal force or force from the subject likely to cause serious bodily injury or (2) to preventthe escape of a suspect in cases where there is probable cause tobelieve the suspect either poses an imminent threat of seriousharm to the officer or another or has committed a crimeinvolving the infliction or threatened infliction of seriousphysical harm and other means of apprehension are inadequate orunavailable and if where feasible warning has been givenGarner 471 US at 11-12 The revised policy is slightly morenarrow The revised policy does not specifically permit the useof lethal force against a fleeing felon who has committed a crimeinvolving the infliction or threatened infliction of seriousphysical harm and other means of apprehension are inadequate orunavailable Response to Resistance Policy B101a03(A) APD policy properly may be more narrow than the furthestconstitutional limits on the uses of force

11 The revised policy specifies that blows with impactweapons should only be delivered to ldquovulnerable areas of the body(target areas)rdquo Response to Resistance Policy B101a07(D)This limiting language is useful but not explicit on thepotential use of impact weapons as deadly force

- 11 shy

that head strikes with a weapon are only permitted as tactics oflast resort to be used only when the use of lethal force wouldotherwise be authorized Based on our ongoing review of APD useof force reports the APD should pay particular attention (andensure supervisory scrutiny) to the use of closed-fist strikes tothe face or head

6 Prohibited Uses of Force

We also recommend that the APDrsquos use of force policyidentify any uses of force that are specifically prohibited orrestricted to limited circumstances For example a carotid holdor choke hold is typically considered a use of deadly forceThus we recommend that the APDrsquos use of force policy explicitlyexplain that officers should use the carotid hold only incircumstances in which deadly force would be authorized The use of force policy should also prohibit using force on a subject ina manner that is likely to cause positional asphyxia12 and the methods and procedures to avoid it13

7 Firearms

The APDrsquos revised duty weapons policy fails to provide clearguidance on the use of secondary weapons As we have discussed with the APDrsquos command staff the APDrsquos policy on firearms doesnot require that line officers register with their supervisorsthe secondary weapons some line officer choose to carry while onduty We understand that officers who carry secondary weaponswhile on duty must qualify with those weapons at the APDrsquostraining academy and that the academy keeps record of suchqualification Duty Weapons Policy B101b issued June 1 2008Some mid-level supervisors we interviewed indicated that theyknew which line officers among their command carried secondary

12 Positional Asphyxia is a fatal condition arisingbecause of the adoption of particular body positions which causeinterference with breathing

13 The revised policy refers to positional asphyxia onlywith respect to transporting subjects on whom chemical weaponshave been used Response to Resistance Policy B101a06(F)(1)This does not address positional asphyxia risks with respect tosubjects on whom officers have not used chemical weapons The APDrsquos policy on transportation of prisoners however describessuch risks of positional asphyxia and certain avoidance measuresCare and Transportation of Prisoner General Policy B11302(D)(5)

- 12 shy

weapons Other supervisors were unsure what secondary firearmstheir subordinates carried Based on our expert consultantsrsquoassessments we recommend that the APD prohibit its officers fromcarrying any secondary firearm without the knowledge and approvalof their immediate supervisors All such approvals should bedocumented The documentation should include the type ofsecondary weapon officers are approved to carry and the serialnumber of that weapon

Additionally we recommend APD only permit officers to carrysecondary weapon(s) that are included on a list of tools approvedby APD command for APD officers for use as a secondary weaponThe APDrsquos prior policy on duty weapons required that firearmsrange personnel maintain a list of weapons and ammunitionauthorized for departmental use Duty Weapons General PolicyA30301(C)(2) effective April 20 2000 revised January 262007 APD personnel confirmed to us however that the APD didnot have such a list of approved secondary weapons The APDrsquos revised duty weapons policy similarly requires APDrsquos firearmsrange personnel to develop a list of weapons and ammunitionapproved for departmental use Duty Weapons PolicyB101b01(C)(2) issued June 1 2008 Given the prior absence ofthis required list we recommend that the APD ensures that itpromulgates the list of approved weapons and timely distributethe list with the revised duty weapons policy to mid-levelsupervisors The APD should authorize qualification on onlythose firearms for which the APD has a trainer qualified toassess an officerrsquos proficiency with such firearms Supervisorsshould ensure that unapproved weapons are not carried or used onduty

The revised duty weapons policy permits officers to qualifyon up to three handguns and one personally owned rifle for policeuse Duty Weapons Policy 101b02(A) The policy does not butshould limit the number of weapons an officer may carry on dutyat any one time Also we recommend that the APD revise itspolicies to make clear the APDrsquos right to remove approved weaponsfrom officersrsquo lists and under what circumstances egsustained violation of policy or unavailability of suitabletraining and qualification programs Currently the policypermits officers to remove weapons from their own list of threeapproved weapons but the policy does not indicate whether andunder what circumstances the APD is entitled to remove weaponsfrom any officerrsquos list of approved weapons Duty Weapons PolicyB101b06(D)(1)

We further recommend that the APDrsquos firearm policy clearlyidentify the equipment officers are expected to routinely carry

- 13 shy

and the appropriate exceptions The policy should specify allfirearms and ammunition that are allowed on- and off-duty The APD should establish a system of accountability for bothdepartment-issued and personal ammunition so that the APD is ableto monitor the type and quantity of ammunition used and thecircumstances in which it is used This will facilitate reviews of uses of force as well as investigations into firearmdischarges We understand that the APD is considering asingle-gun policy and a single-impact-weapon policy A singletool of each level of force use would simplify accountability andtraining

Lastly the APDrsquos duty weapons policy currently prohibitsthe use and sharing of personally owned rifles Duty WeaponsPolicy B101b11 While this general prohibition is sound thepolicy should permit an officerrsquos use of anotherrsquos rifle or otherfirearm without violation of policy when tactical circumstanceswarrant doing so in emergent situations

8 Less Lethal Weapons

We recommend that the APD set forth comprehensive policiesthat give specific guidance and restrictions on all intermediateforce weapons used including straight and expandable batonsPR24s Orcutt Nunchakus chemical weapons CEDs impactmunitions and canines14 Such guidance should be delineatedeither in a section for each tool in the use of force policy orin separate policies for each tool referenced in the use of forcepolicy The use of force policy should include among otherthings where these and other intermediate force weapons fallwithin the use of force continuum the circumstances under whichthe intermediate weapons should be used and instructions on howto properly use them prohibitions on the use of the weaponswhether all officers are required to carry them reportingprocedures and appropriate decontamination andor medicaltreatment procedures Unlike the prior use of force policy therevised Response to Resistance policy accomplishes many of thesegoals Because officers may unnecessarily resort to theirfirearms if intermediate force options are not available werecommend that the APD require all officers to carry a chemical

14 The revised Response to Resistance policy addressesldquoless or non-lethal forcerdquo generally before providing guidanceon specific tools Response to Resistance Policy B101a04 Our expert consultants have indicated that the better terminology touse is simply ldquoless lethalrdquo force thereby acknowledging that allforce is potentially lethal

- 12 shy

weapons Other supervisors were unsure what secondary firearmstheir subordinates carried Based on our expert consultantsrsquoassessments we recommend that the APD prohibit its officers fromcarrying any secondary firearm without the knowledge and approvalof their immediate supervisors All such approvals should bedocumented The documentation should include the type ofsecondary weapon officers are approved to carry and the serialnumber of that weapon

Additionally we recommend APD only permit officers to carrysecondary weapon(s) that are included on a list of tools approvedby APD command for APD officers for use as a secondary weaponThe APDrsquos prior policy on duty weapons required that firearmsrange personnel maintain a list of weapons and ammunitionauthorized for departmental use Duty Weapons General PolicyA30301(C)(2) effective April 20 2000 revised January 262007 APD personnel confirmed to us however that the APD didnot have such a list of approved secondary weapons The APDrsquos revised duty weapons policy similarly requires APDrsquos firearmsrange personnel to develop a list of weapons and ammunitionapproved for departmental use Duty Weapons PolicyB101b01(C)(2) issued June 1 2008 Given the prior absence ofthis required list we recommend that the APD ensures that itpromulgates the list of approved weapons and timely distributethe list with the revised duty weapons policy to mid-levelsupervisors The APD should authorize qualification on onlythose firearms for which the APD has a trainer qualified toassess an officerrsquos proficiency with such firearms Supervisorsshould ensure that unapproved weapons are not carried or used onduty

The revised duty weapons policy permits officers to qualifyon up to three handguns and one personally owned rifle for policeuse Duty Weapons Policy 101b02(A) The policy does not butshould limit the number of weapons an officer may carry on dutyat any one time Also we recommend that the APD revise itspolicies to make clear the APDrsquos right to remove approved weaponsfrom officersrsquo lists and under what circumstances egsustained violation of policy or unavailability of suitabletraining and qualification programs Currently the policypermits officers to remove weapons from their own list of threeapproved weapons but the policy does not indicate whether andunder what circumstances the APD is entitled to remove weaponsfrom any officerrsquos list of approved weapons Duty Weapons PolicyB101b06(D)(1)

We further recommend that the APDrsquos firearm policy clearlyidentify the equipment officers are expected to routinely carry

- 13 shy

and the appropriate exceptions The policy should specify allfirearms and ammunition that are allowed on- and off-duty The APD should establish a system of accountability for bothdepartment-issued and personal ammunition so that the APD is ableto monitor the type and quantity of ammunition used and thecircumstances in which it is used This will facilitate reviews of uses of force as well as investigations into firearmdischarges We understand that the APD is considering asingle-gun policy and a single-impact-weapon policy A singletool of each level of force use would simplify accountability andtraining

Lastly the APDrsquos duty weapons policy currently prohibitsthe use and sharing of personally owned rifles Duty WeaponsPolicy B101b11 While this general prohibition is sound thepolicy should permit an officerrsquos use of anotherrsquos rifle or otherfirearm without violation of policy when tactical circumstanceswarrant doing so in emergent situations

8 Less Lethal Weapons

We recommend that the APD set forth comprehensive policiesthat give specific guidance and restrictions on all intermediateforce weapons used including straight and expandable batonsPR24s Orcutt Nunchakus chemical weapons CEDs impactmunitions and canines14 Such guidance should be delineatedeither in a section for each tool in the use of force policy orin separate policies for each tool referenced in the use of forcepolicy The use of force policy should include among otherthings where these and other intermediate force weapons fallwithin the use of force continuum the circumstances under whichthe intermediate weapons should be used and instructions on howto properly use them prohibitions on the use of the weaponswhether all officers are required to carry them reportingprocedures and appropriate decontamination andor medicaltreatment procedures Unlike the prior use of force policy therevised Response to Resistance policy accomplishes many of thesegoals Because officers may unnecessarily resort to theirfirearms if intermediate force options are not available werecommend that the APD require all officers to carry a chemical

14 The revised Response to Resistance policy addressesldquoless or non-lethal forcerdquo generally before providing guidanceon specific tools Response to Resistance Policy B101a04 Our expert consultants have indicated that the better terminology touse is simply ldquoless lethalrdquo force thereby acknowledging that allforce is potentially lethal

- 13 shy

and the appropriate exceptions The policy should specify allfirearms and ammunition that are allowed on- and off-duty The APD should establish a system of accountability for bothdepartment-issued and personal ammunition so that the APD is ableto monitor the type and quantity of ammunition used and thecircumstances in which it is used This will facilitate reviews of uses of force as well as investigations into firearmdischarges We understand that the APD is considering asingle-gun policy and a single-impact-weapon policy A singletool of each level of force use would simplify accountability andtraining

Lastly the APDrsquos duty weapons policy currently prohibitsthe use and sharing of personally owned rifles Duty WeaponsPolicy B101b11 While this general prohibition is sound thepolicy should permit an officerrsquos use of anotherrsquos rifle or otherfirearm without violation of policy when tactical circumstanceswarrant doing so in emergent situations

8 Less Lethal Weapons

We recommend that the APD set forth comprehensive policiesthat give specific guidance and restrictions on all intermediateforce weapons used including straight and expandable batonsPR24s Orcutt Nunchakus chemical weapons CEDs impactmunitions and canines14 Such guidance should be delineatedeither in a section for each tool in the use of force policy orin separate policies for each tool referenced in the use of forcepolicy The use of force policy should include among otherthings where these and other intermediate force weapons fallwithin the use of force continuum the circumstances under whichthe intermediate weapons should be used and instructions on howto properly use them prohibitions on the use of the weaponswhether all officers are required to carry them reportingprocedures and appropriate decontamination andor medicaltreatment procedures Unlike the prior use of force policy therevised Response to Resistance policy accomplishes many of thesegoals Because officers may unnecessarily resort to theirfirearms if intermediate force options are not available werecommend that the APD require all officers to carry a chemical

14 The revised Response to Resistance policy addressesldquoless or non-lethal forcerdquo generally before providing guidanceon specific tools Response to Resistance Policy B101a04 Our expert consultants have indicated that the better terminology touse is simply ldquoless lethalrdquo force thereby acknowledging that allforce is potentially lethal

- 14 shy

weapon in addition to an impact weapon Appropriate trainingand certification on the use and deployment of all intermediateweapons should be developed and implemented

9 Impact Weapons

As previously stated we understand that the APD isconsidering a single impact weapon policy15 The revised dutyweapons policy however does not currently list impact weaponsThe revised Response to Resistance policy identifies only a batonbut permits the training division to maintain a list of otherapproved impact weapons16 Response to Resistance PolicyB101a07 While the APD certainly has discretion on the impactweapon(s) it chooses to use we recommend that officers betrained and appropriately re-certified in each tool that officerscarry -- as the APDrsquos revised Response to Resistance policy nowrequires A large number of tools may make this logisticallymore complicated If the APD chooses to continue to permit morethan one impact weapon the APD should make clear to its memberswhat impact weapons are permitted Accordingly like withfirearms we recommend that the APD ensure that it promulgate thelist of approved impact weapons and timely distribute the listwith the revised policy to mid-level supervisors therebyallowing supervisors to ensure that unapproved weapons are notcarried or used on duty We also recommend that the APD requirethat its officers carry with them their approved impact weapons

10 Conductive Energy Devices

Part of our investigation focuses on the APDrsquos use of CEDsConsistent with generally accepted police practices the priorduty weapons policy specified that CEDs should not be usedagainst a subject already in handcuffs Duty Weapons GeneralPolicy A30318(D)(3)(a) We received however a number of

15 We do not take a position on whether the APD shouldadopt a single impact weapon

16 The APDrsquos prior duty weapon policy listed only a batonand no other impact weapons Duty Weapons General PolicyA30316(B) effective April 20 2000 revised January 26 2007The prior use of force reporting form provided to us howeverlists no fewer than four separate impact weapons We were also informed that in practice the APD uses multiple impact weaponsAccordingly despite the appearance in the prior duty weaponspolicy of the APD having only one impact weapon in practice theAPD utilizes more than a single impact weapon

- 15 shy

allegations that APD officers had used CEDs on subjects who werealready restrained Even more troubling neither the APDrsquosrevised duty weapons policy nor the revised Response toResistance policy contains such a prohibition on the use of CEDsagainst a restrained subject We recommend that the APD prohibitthe use of CEDs on restrained subjects unless the subject engagesin active violent resistance We also recommend that the APD revise its policies to require a high level of scrutiny insupervisory review whenever a CED is used on a restrainedsubject

The revised Response to Resistance policy permits the use ofCEDrsquos against a subject who is ldquopotentiallyrdquo violent Responseto Resistance Policy B101a08(E)(2) This is too broad We recommend deleting this reference The policy should also statethat CEDs should not be used to threaten or brandished to intimidate a subject or to coerce a confession

11 Chemical Weapons

The APDrsquos revised policy requires that officers be trainedin the use of Oleoresin Capsicum (ldquoOCrdquo) in order to use thatchemical weapon Response to Resistance Policy B101a06(B)(1)The policy does not provide officers with guidance however onhow much OC spray to use or in the selection of appropriateanatomical targets or duration of use This is problematicbecause during our ongoing investigation we received complaintsthat the APD uses OC spray in an indiscriminate fashion iespraying a crowd without acquiring a specific threat or targetAccordingly while we are still reviewing use of force incidentswe recommend that the APD make clear in its policy limitations onuse of OC spray OC spray should only be used for a specificthreat for an appropriate target for a limited duration at alimited distance to the subject at appropriate targets on thesubjectrsquos body (eg not up the nose) and compliant withcurrent training techniques and manufacturerrsquos guidelinesMoreover the APD must ensure that its use of OC spray isconsistent with the policy changes

The APDrsquos revised policy permits the use of chemical weaponson restrained subject if the subjects are ldquoaggressivelyrdquo17

17 The APDrsquos prior use of force policy permitted use ofchemical weapons on restrained subjects who resisted ldquoviolentlyrdquoUse of Force Policy B10105(D)(3) Arguably violently was ahigher threshold than aggressive though neither term is definedin its respective policy

- 16 shy

resisting and lesser means of control have failed Response toResistance Policy B101a06(D) The policy however fails toillustrate what would constitute aggressive resistence Rather than permit the use of OC spray on restrained subjects the APDpolicy should require the use of further restraints eg hobblerestraints or restraint to a Gurney for handcuffed subjects whocontinue to resist a lawful police action

Both the previous and the revised policy also appropriatelyrequire officers to decontaminate subjects on whom chemicalweapons have been used Use of Force General PolicyB10105(D)(5) Response to Resistance Policy B101a06(F) Our review thus far has revealed various individualsrsquo accounts thatsuggest that the APD has not consistently followed adecontamination policy Many individuals informed us that theyhave not been given the opportunity to wash out OC spray or havebeen sprayed a second time because they were acting out when notgiven the opportunity to decontaminate Similarly review of theAPDrsquos use of force reports supports that APD officers havefrequently failed to timely or properly decontaminate sprayedsubjects Accordingly the APD should implement a uniformpractice to permit individuals to decontaminate as soon as it issafe to do so

Lastly with respect to OC spray the APD does not weigh OCspray canisters Spray must be tracked and accounted for tofacilitate accountability and when necessary investigationsinto use of OC spray

12 Impact Munitions

The APDrsquos prior use of force policy permitted the use ofimpact munitions in riot control situations and against unarmedsubjects whose behavior is ldquosuch that i[t] poses a serious danger rdquo Use of Force General Policy B10105(E)(2) The revised policy is more specific in the use of impact munitions againstarmed or suicidal subjects but still permits use of impactmunitions to disperse crowds Response to Resistance PolicyB101a09(B)(4) The use of impact munitions needs to beconsistent with the use of deadly force Rubber bullets should only be used when there is a deadly force option in reserve touse if an impact munition fails The use of other less lethal impact munitions should be consistent with the APDrsquos less lethalforce policy but the APDrsquos review of the use of all impactmunitions should be consistent with the same level of review as lethal force The use of an impact munition against an unarmedindividual should be appropriately limited We recommend that the APD utilize a separate policy on the control of crowds and

- 17 shy

should cross reference that policy in the use of force policy andvice versa

The current policy requires generally that the APD obtainmedical treatment for an individual whom the APD strikes with an impact munition This should be made more explicit to requirethat the struck subject be taken to a hospital and cleared forincarceration before being processed at the jail

13 Canines

There is a separate standard operating procedure for caninesthat includes an assessment of the reasonableness of the use of force in the deployment of a canine Canine Unit Standard Operating Procedure (ldquoSOPrdquo) revised January 2008 This SOP does not include the same explanation of reasonableness as iscontained in the APDrsquos Response to Resistance policy As with other uses of force that require their own detailed policies werecommend that in its use of force policy the APD list canines asa use of force on the continuum of types of uses of force andreference the separate policy governing canine use

We also have been informed that the APDrsquos canines have been on a lead ie leashed when some bites have occurred This may indicate a problem with APD canine officersrsquo control over thedogs Though we are still reviewing incident reports werecommend that the APD examine its methodology to ensure that theAPDrsquos use of canines is consistent with ldquofind and alertrdquo or ldquofind and barkrdquo practice ie requiring the dog to bark rather thanbite upon locating the subject In a ldquofind and barkrdquo standard of operation a canine is still capable of biting a subjectConsistent with generally accepted policing practices thoughthe canine handler or officer decides affirmatively whether thecanine should bite the subject The APD should not leave the decision to bite to the caninersquos discretion The APD also should ensure that canine training supports this standard

The APDrsquos definition of ldquodeploymentrdquo for canines includesuse of canines on a lead for a search regardless of the caninesrsquoinvolvement in the apprehension Canine SOP 04(B) This is an overly broad definition of deployment When inactive uses of canines are counted as deployments this has the effect ofdiluting the bite ratio ie the ratio of the number of timescanines bite (to assist in an apprehension) as compared to thenumber of times canines are deployed Accordingly we recommendthat the definition of canine deployment be limited to thosecircumstances in which canines are utilized off a lead in an actual attempt to apprehend or find a suspect

- 18 shy

When there is a need for canine deployment we recommendthat the APD ensures that deployment is subject to appropriatesupervisory oversight The canine SOP requires generalsupervisory approval for canine deployment Canine SOP 06(B)We recommend that the APD update this SOP to require approvalfrom a canine unit supervisor for deployment ie a supervisoralready trained on the appropriateness of such deployments ifavailable If no canine supervisor is available then deploymentshould require a field supervisorrsquos approval18

When canine bites occur APDrsquos policy requires its officersto report the use of force The canine SOP however is unclearas to whether the reporting and review of bites under the SOP arein addition to or the same as the reporting and reviewprocedures under the APDrsquos new Response to Resistance reportingprocedure Accordingly we recommend that the APD clarify thereporting and review procedures in its canine SOP This should include a requirement that canine supervisors are require toreport to the scene of canine bites

C Reporting Uses of Force

We recommend that the APD revise its policy to require allofficers involved in a use of force incident not just theinitially involved officer to prepare their own report detailingthe event In order to accurately report (and subsequentlyreview) uses of force the APD should also revise its use offorce form to require supervisors to collect sufficientinformation and evidence for later review oversight andtraining

1 Reportable Uses of Force

As mentioned with respect to the APDrsquos prior definition offorce the APD practice and policy have been under inclusive inwhat the APD has considered force and in turn it appears thatthe reporting of force by officers has been under inclusive The prior policy effective since April 2000 only required uses offorce to be reported when the subject presented the officer withldquoconsistent and repetitive complaint of pain beyond the initialarrest procedure which would lead a reasonable person toconclude that an injury could have occurredrdquo Use of Force Policy B10107(A)(3) revised Jan 26 2007 This definition

18 The APD should train its field supervisors on generaluses of canines and the efficacy and ability of canines to assistin law enforcement including use of force

- 16 shy

resisting and lesser means of control have failed Response toResistance Policy B101a06(D) The policy however fails toillustrate what would constitute aggressive resistence Rather than permit the use of OC spray on restrained subjects the APDpolicy should require the use of further restraints eg hobblerestraints or restraint to a Gurney for handcuffed subjects whocontinue to resist a lawful police action

Both the previous and the revised policy also appropriatelyrequire officers to decontaminate subjects on whom chemicalweapons have been used Use of Force General PolicyB10105(D)(5) Response to Resistance Policy B101a06(F) Our review thus far has revealed various individualsrsquo accounts thatsuggest that the APD has not consistently followed adecontamination policy Many individuals informed us that theyhave not been given the opportunity to wash out OC spray or havebeen sprayed a second time because they were acting out when notgiven the opportunity to decontaminate Similarly review of theAPDrsquos use of force reports supports that APD officers havefrequently failed to timely or properly decontaminate sprayedsubjects Accordingly the APD should implement a uniformpractice to permit individuals to decontaminate as soon as it issafe to do so

Lastly with respect to OC spray the APD does not weigh OCspray canisters Spray must be tracked and accounted for tofacilitate accountability and when necessary investigationsinto use of OC spray

12 Impact Munitions

The APDrsquos prior use of force policy permitted the use ofimpact munitions in riot control situations and against unarmedsubjects whose behavior is ldquosuch that i[t] poses a serious danger rdquo Use of Force General Policy B10105(E)(2) The revised policy is more specific in the use of impact munitions againstarmed or suicidal subjects but still permits use of impactmunitions to disperse crowds Response to Resistance PolicyB101a09(B)(4) The use of impact munitions needs to beconsistent with the use of deadly force Rubber bullets should only be used when there is a deadly force option in reserve touse if an impact munition fails The use of other less lethal impact munitions should be consistent with the APDrsquos less lethalforce policy but the APDrsquos review of the use of all impactmunitions should be consistent with the same level of review as lethal force The use of an impact munition against an unarmedindividual should be appropriately limited We recommend that the APD utilize a separate policy on the control of crowds and

- 17 shy

should cross reference that policy in the use of force policy andvice versa

The current policy requires generally that the APD obtainmedical treatment for an individual whom the APD strikes with an impact munition This should be made more explicit to requirethat the struck subject be taken to a hospital and cleared forincarceration before being processed at the jail

13 Canines

There is a separate standard operating procedure for caninesthat includes an assessment of the reasonableness of the use of force in the deployment of a canine Canine Unit Standard Operating Procedure (ldquoSOPrdquo) revised January 2008 This SOP does not include the same explanation of reasonableness as iscontained in the APDrsquos Response to Resistance policy As with other uses of force that require their own detailed policies werecommend that in its use of force policy the APD list canines asa use of force on the continuum of types of uses of force andreference the separate policy governing canine use

We also have been informed that the APDrsquos canines have been on a lead ie leashed when some bites have occurred This may indicate a problem with APD canine officersrsquo control over thedogs Though we are still reviewing incident reports werecommend that the APD examine its methodology to ensure that theAPDrsquos use of canines is consistent with ldquofind and alertrdquo or ldquofind and barkrdquo practice ie requiring the dog to bark rather thanbite upon locating the subject In a ldquofind and barkrdquo standard of operation a canine is still capable of biting a subjectConsistent with generally accepted policing practices thoughthe canine handler or officer decides affirmatively whether thecanine should bite the subject The APD should not leave the decision to bite to the caninersquos discretion The APD also should ensure that canine training supports this standard

The APDrsquos definition of ldquodeploymentrdquo for canines includesuse of canines on a lead for a search regardless of the caninesrsquoinvolvement in the apprehension Canine SOP 04(B) This is an overly broad definition of deployment When inactive uses of canines are counted as deployments this has the effect ofdiluting the bite ratio ie the ratio of the number of timescanines bite (to assist in an apprehension) as compared to thenumber of times canines are deployed Accordingly we recommendthat the definition of canine deployment be limited to thosecircumstances in which canines are utilized off a lead in an actual attempt to apprehend or find a suspect

- 18 shy

When there is a need for canine deployment we recommendthat the APD ensures that deployment is subject to appropriatesupervisory oversight The canine SOP requires generalsupervisory approval for canine deployment Canine SOP 06(B)We recommend that the APD update this SOP to require approvalfrom a canine unit supervisor for deployment ie a supervisoralready trained on the appropriateness of such deployments ifavailable If no canine supervisor is available then deploymentshould require a field supervisorrsquos approval18

When canine bites occur APDrsquos policy requires its officersto report the use of force The canine SOP however is unclearas to whether the reporting and review of bites under the SOP arein addition to or the same as the reporting and reviewprocedures under the APDrsquos new Response to Resistance reportingprocedure Accordingly we recommend that the APD clarify thereporting and review procedures in its canine SOP This should include a requirement that canine supervisors are require toreport to the scene of canine bites

C Reporting Uses of Force

We recommend that the APD revise its policy to require allofficers involved in a use of force incident not just theinitially involved officer to prepare their own report detailingthe event In order to accurately report (and subsequentlyreview) uses of force the APD should also revise its use offorce form to require supervisors to collect sufficientinformation and evidence for later review oversight andtraining

1 Reportable Uses of Force

As mentioned with respect to the APDrsquos prior definition offorce the APD practice and policy have been under inclusive inwhat the APD has considered force and in turn it appears thatthe reporting of force by officers has been under inclusive The prior policy effective since April 2000 only required uses offorce to be reported when the subject presented the officer withldquoconsistent and repetitive complaint of pain beyond the initialarrest procedure which would lead a reasonable person toconclude that an injury could have occurredrdquo Use of Force Policy B10107(A)(3) revised Jan 26 2007 This definition

18 The APD should train its field supervisors on generaluses of canines and the efficacy and ability of canines to assistin law enforcement including use of force

- 17 shy

should cross reference that policy in the use of force policy andvice versa

The current policy requires generally that the APD obtainmedical treatment for an individual whom the APD strikes with an impact munition This should be made more explicit to requirethat the struck subject be taken to a hospital and cleared forincarceration before being processed at the jail

13 Canines

There is a separate standard operating procedure for caninesthat includes an assessment of the reasonableness of the use of force in the deployment of a canine Canine Unit Standard Operating Procedure (ldquoSOPrdquo) revised January 2008 This SOP does not include the same explanation of reasonableness as iscontained in the APDrsquos Response to Resistance policy As with other uses of force that require their own detailed policies werecommend that in its use of force policy the APD list canines asa use of force on the continuum of types of uses of force andreference the separate policy governing canine use

We also have been informed that the APDrsquos canines have been on a lead ie leashed when some bites have occurred This may indicate a problem with APD canine officersrsquo control over thedogs Though we are still reviewing incident reports werecommend that the APD examine its methodology to ensure that theAPDrsquos use of canines is consistent with ldquofind and alertrdquo or ldquofind and barkrdquo practice ie requiring the dog to bark rather thanbite upon locating the subject In a ldquofind and barkrdquo standard of operation a canine is still capable of biting a subjectConsistent with generally accepted policing practices thoughthe canine handler or officer decides affirmatively whether thecanine should bite the subject The APD should not leave the decision to bite to the caninersquos discretion The APD also should ensure that canine training supports this standard

The APDrsquos definition of ldquodeploymentrdquo for canines includesuse of canines on a lead for a search regardless of the caninesrsquoinvolvement in the apprehension Canine SOP 04(B) This is an overly broad definition of deployment When inactive uses of canines are counted as deployments this has the effect ofdiluting the bite ratio ie the ratio of the number of timescanines bite (to assist in an apprehension) as compared to thenumber of times canines are deployed Accordingly we recommendthat the definition of canine deployment be limited to thosecircumstances in which canines are utilized off a lead in an actual attempt to apprehend or find a suspect

- 18 shy

When there is a need for canine deployment we recommendthat the APD ensures that deployment is subject to appropriatesupervisory oversight The canine SOP requires generalsupervisory approval for canine deployment Canine SOP 06(B)We recommend that the APD update this SOP to require approvalfrom a canine unit supervisor for deployment ie a supervisoralready trained on the appropriateness of such deployments ifavailable If no canine supervisor is available then deploymentshould require a field supervisorrsquos approval18

When canine bites occur APDrsquos policy requires its officersto report the use of force The canine SOP however is unclearas to whether the reporting and review of bites under the SOP arein addition to or the same as the reporting and reviewprocedures under the APDrsquos new Response to Resistance reportingprocedure Accordingly we recommend that the APD clarify thereporting and review procedures in its canine SOP This should include a requirement that canine supervisors are require toreport to the scene of canine bites

C Reporting Uses of Force

We recommend that the APD revise its policy to require allofficers involved in a use of force incident not just theinitially involved officer to prepare their own report detailingthe event In order to accurately report (and subsequentlyreview) uses of force the APD should also revise its use offorce form to require supervisors to collect sufficientinformation and evidence for later review oversight andtraining

1 Reportable Uses of Force

As mentioned with respect to the APDrsquos prior definition offorce the APD practice and policy have been under inclusive inwhat the APD has considered force and in turn it appears thatthe reporting of force by officers has been under inclusive The prior policy effective since April 2000 only required uses offorce to be reported when the subject presented the officer withldquoconsistent and repetitive complaint of pain beyond the initialarrest procedure which would lead a reasonable person toconclude that an injury could have occurredrdquo Use of Force Policy B10107(A)(3) revised Jan 26 2007 This definition

18 The APD should train its field supervisors on generaluses of canines and the efficacy and ability of canines to assistin law enforcement including use of force

- 18 shy

When there is a need for canine deployment we recommendthat the APD ensures that deployment is subject to appropriatesupervisory oversight The canine SOP requires generalsupervisory approval for canine deployment Canine SOP 06(B)We recommend that the APD update this SOP to require approvalfrom a canine unit supervisor for deployment ie a supervisoralready trained on the appropriateness of such deployments ifavailable If no canine supervisor is available then deploymentshould require a field supervisorrsquos approval18

When canine bites occur APDrsquos policy requires its officersto report the use of force The canine SOP however is unclearas to whether the reporting and review of bites under the SOP arein addition to or the same as the reporting and reviewprocedures under the APDrsquos new Response to Resistance reportingprocedure Accordingly we recommend that the APD clarify thereporting and review procedures in its canine SOP This should include a requirement that canine supervisors are require toreport to the scene of canine bites

C Reporting Uses of Force

We recommend that the APD revise its policy to require allofficers involved in a use of force incident not just theinitially involved officer to prepare their own report detailingthe event In order to accurately report (and subsequentlyreview) uses of force the APD should also revise its use offorce form to require supervisors to collect sufficientinformation and evidence for later review oversight andtraining

1 Reportable Uses of Force

As mentioned with respect to the APDrsquos prior definition offorce the APD practice and policy have been under inclusive inwhat the APD has considered force and in turn it appears thatthe reporting of force by officers has been under inclusive The prior policy effective since April 2000 only required uses offorce to be reported when the subject presented the officer withldquoconsistent and repetitive complaint of pain beyond the initialarrest procedure which would lead a reasonable person toconclude that an injury could have occurredrdquo Use of Force Policy B10107(A)(3) revised Jan 26 2007 This definition

18 The APD should train its field supervisors on generaluses of canines and the efficacy and ability of canines to assistin law enforcement including use of force

- 19 shy

allowed an escape valve from reporting requirements During oursite visits for example we were informed that an arm bartakedown19 was not a use of force under the policy then ineffect unless there was a complaint of recurrent pain or injuryAn average citizen would not know that he or she mustconsistently or repetitively report pain in order for a use offorce against them to be reported Moreover as written theprior policy permitted force during an arrest but only requiredreporting if pain or injury are apparent after an initial ldquoarrestprocedurerdquo ldquoArrest procedurerdquo was too broad and undefined aterm Requiring reporting only after arrest procedure excludeduses of force against subjects whom the APD did not arrest

The revised Response to Resistance reporting policysignificantly changes the reporting requirements and addressesmany of the recommendations our experts made at the conclusionsof our on site visits Even the revised policy however leavessome inconsistencies in the reporting requirements The revised reporting policy adopts a categorization of uses of force forreporting and review ie the most serious level one to theleast involved level three20 Response to Resistance ReportingInvestigation and Review Policy B101c03 issued June 1 2008The policy requires employees involved in a use of force to filea Response to Resistance report in Versadex21 for levels one and two uses of force Response to Resistance Reporting PolicyB101c04(A)(1)(b) This portion of the policy does not specifywhat precisely must be reported through this report Laterhowever with respect to level three uses of force the policysets forth a list of certain items to be reported through aResponse to Resistance report (though Versadex is not thenmentioned) Response to Resistance Reporting Policy

19 Arm bar is a takedown technique that enables an officerto gain pain compliance with the subject by applying pressurethat hyperextends the elbow joint driving the subjectrsquos shouldertoward the ground

20 We note that much of this policy appears to have beendrawn from one of the exemplar policies we provided to the APDAlso even though the exemplar policy defines the levels of useof force we do not recommend that the APD follow suit in theplacement of definitions of levels of force after othersubstantive provisions The APDrsquos policy would benefit fromhaving its definitions of levels of use of force appear prior toits reporting requirements

21 Versadex is the APDrsquos computerized reporting system

- 20 shy

B101c07(A)(2) This inconsistency only serves to breedconfusion as to what must be reported and what methodology shouldbe used Also the revised policy only requires one Response toResistance Report from multiple employees who each use the samelevel of force Response to Resistance Reporting PolicyB101c01(D) This does not comport with accepted policingpractices that require every officer involved in use of forceincidents to complete a separate report on his or her involvementand force used

We recommend that the APD revise its policy to make clearthe basic requirement that all involved officers or witnessofficers complete individual use of force reports for all uses ofphysical or instrumental force beyond un-resisted handcuffing

In addition to every officer being required to completeindividual reports we also recommend some other changes andclarifications to the requirements of the revised Response toResistance reporting policy

bull The revised policy permits a supervisor to re-categorize theinvestigation of uses of force level triggering internalaffairs involvement if the investigation reveals a possiblepolicy violation Response to Resistance Reporting PolicyB101c02(B) We recommend that the APD revise this section to also specify that a citizen complaint at the scene of theuse of force or after the fact will also elevate thecategory of investigation and trigger internal affairsinvolvement

bull The revised policy requires APD supervisors to notify theSpecial Investigations Unit (ldquoSIUrdquo) of potentially criminaluses of force Response to Resistance Reporting PolicyB101c02(C) If the SIU is required to respond to the sceneof potentially criminal uses of force then we recommendthat the policy state this clearly The policy should alsobe clear who leads the investigation of the incident if SIUis on scene either the supervisor or SIU

bull The revised policy requires the watch commander to appointan investigator to review a use of force involvingsupervisorrsquos use of force Response to Resistance ReportingPolicy B101c02(H) The policy should make clear thatsubordinates should not review supervisorsrsquo uses of forceunless the subordinates are trained to conduct internal affairs investigations and are operating in that capacityThe APD also should clarify whether or not the supervisorrsquos

- 21 shy

chain of commander superior is to report to the scene of asupervisorrsquos use of force

bull The revised policy places in its lowest category Level 3use of CEDs when the officer misses the intended targetResponse to Resistance Reporting Policy B101c03(C)(3) The failure to strike a target should not diminish the level ofreview of a use of force Accordingly we recommend thatCED deployments resulting in misses be reported andinvestigated at the same level as successful CEDdeployments

bull The APD has revised its policyrsquos reporting requirementsconsistent with our recommendations during our on-sitevisits to require reporting of officersrsquo active targetingof subjects (when an officer points his or her weapon at asuspect) with firearms22 The new Response to Resistancereporting policy requires reporting of active targetingusing a firearm but is still silent with respect to activetargeting with impact munitions (to the extent that firearmsare not defined to include impact munitions) We recommend that the APD require reporting of all active targeting withthese devices by an APD officer The APD provided us itsnew Response to Resistance report form from the APDrsquosVersadex That form does not list active targeting in thedata field in which other force options are listed23 We

22 The prior use of force policy prohibited APD officersfrom brandishing a firearm unless there would be a basis to usedeadly force or ldquocreate an apprehensionrdquo of deadly force use whensuch use would be necessary Use of Force General PolicyB10105(A)(1) The reporting requirements of the APDrsquos prior useof force policy however did not require brandishing of afirearm CED or impact munition weapon to be reported as a useof force Accordingly the APD policy indicated that the APD wasnot collecting data of uses of force which are prohibited by itsown policy Interviews with APD personnel confirmed that the APDdid not require officer to report brandishing We commend APD for making the change in its updated policy

23 The APD provided us an explanation of its Versadex formwhich included a field to report the number of shots fired Use of Force Detail Page in Versadex June 4 2008 The APDrsquos explanation indicates the use of ldquo0rdquo in the data field to recordthe number of shots fired indicates active targeting Howeverthe use of a ldquo0rdquo for active targeting is not distinguishable froman officer merely filling in a zero value for no shots fired or

- 21 shy

chain of commander superior is to report to the scene of asupervisorrsquos use of force

bull The revised policy places in its lowest category Level 3use of CEDs when the officer misses the intended targetResponse to Resistance Reporting Policy B101c03(C)(3) The failure to strike a target should not diminish the level ofreview of a use of force Accordingly we recommend thatCED deployments resulting in misses be reported andinvestigated at the same level as successful CEDdeployments

bull The APD has revised its policyrsquos reporting requirementsconsistent with our recommendations during our on-sitevisits to require reporting of officersrsquo active targetingof subjects (when an officer points his or her weapon at asuspect) with firearms22 The new Response to Resistancereporting policy requires reporting of active targetingusing a firearm but is still silent with respect to activetargeting with impact munitions (to the extent that firearmsare not defined to include impact munitions) We recommend that the APD require reporting of all active targeting withthese devices by an APD officer The APD provided us itsnew Response to Resistance report form from the APDrsquosVersadex That form does not list active targeting in thedata field in which other force options are listed23 We

22 The prior use of force policy prohibited APD officersfrom brandishing a firearm unless there would be a basis to usedeadly force or ldquocreate an apprehensionrdquo of deadly force use whensuch use would be necessary Use of Force General PolicyB10105(A)(1) The reporting requirements of the APDrsquos prior useof force policy however did not require brandishing of afirearm CED or impact munition weapon to be reported as a useof force Accordingly the APD policy indicated that the APD wasnot collecting data of uses of force which are prohibited by itsown policy Interviews with APD personnel confirmed that the APDdid not require officer to report brandishing We commend APD for making the change in its updated policy

23 The APD provided us an explanation of its Versadex formwhich included a field to report the number of shots fired Use of Force Detail Page in Versadex June 4 2008 The APDrsquos explanation indicates the use of ldquo0rdquo in the data field to recordthe number of shots fired indicates active targeting Howeverthe use of a ldquo0rdquo for active targeting is not distinguishable froman officer merely filling in a zero value for no shots fired or

- 22 shy

recommend that active targeting be added to this fieldTracking of active targeting with CEDs could also be usefulas a management tool Officers could report CED activetargeting on incident reports without a use of force formif no force is used

2 Reporting Forms

The APDrsquos revised use of force reporting form is stillinadequate We recommend that the form be structured so that discrete information about multiple uses of force by multipleofficers in a single incident may be recorded The form (consistent with policy) should allow officers to provide adetailed narrative description of the incident beginning withthe basis for the initial contact continuing through thespecific circumstances and actions that prompted each use offorce resulting injuries and medical treatment (if necessary)For this a narrative not the current checkbox scheme ofreporting is required The Versadex form that the APD furnished to us provides only a 50-character text box for remarks The form should continue to contain check boxes however which maysupport the narrative where appropriate The form should also include other information not on the use of force reporting formsuch as the officerrsquos assignment area the officerrsquosassignment whether the officer was on or off duty whether theofficer was in uniform and whether or not the subject allegedexcessive force or unlawful law enforcement action

It is the responsibility of the first-line supervisor toensure that all uses of force are documented We recommend that the APDrsquos policy establish a review mechanism to ensure thatofficers are complying with the reporting procedures and providesfor appropriate administrative sanctions or retraining forofficers who fail to comply Supervisors should also report tothe scene of all uses of force above unresisted handcuffingSome supervisors informed us that they already do this thisstandard should be memorialized in policy Supervisors willtherefore be aware of when use of force occurs and when toexpect report forms and from whom

D Supervisory Review of Uses of Force

Supervisory review of officer uses of force is critical to adepartmentrsquos ability to ensure officers are using force in amanner consistent with constitutional standards and the

filling in a value over zero for firearm or CED shots fired

- 23 shy

departmentrsquos policies Use of force reviews may identify bothofficer training needs and patterns of unauthorized or excessiveuses of force The information regarding each use of force alsoshould be tracked in an Early Warning System (ldquoEWSrdquo) asdiscussed below in Section VIII of this letter

1 Chain of Command Review

Like the reporting requirements already discussed the APDhas revised many of the review requirements of the revisedResponse to Resistance reporting policy which address many of therecommendations our experts made at the conclusions of our onsite visits The APDrsquos prior use of force report form providedto us included blanks for supervisor comments and signature butthe policy did not give any direction on the necessity or natureof this supervisory review Rather the prior use of forcepolicy included a provision for review of use of force reportforms only by the APDrsquos training academy24 Use of Force General Policy B1010925 According to the policy then there was norequirement that supervisors assess whether the officerrsquosreported uses of force were in compliance with the APDrsquos use offorce policy In a separate document generated in response toour request however the APD stated that supervisors are toreview use of force reports City of Austin Response to DOJFirst Request for Documents and Information Review of APD Use ofForce Incidents dated July 18 2007 This informal requirementhowever will not consistently yield effective front-linesupervisory reviews of uses of force

24 According to a document titled City of Austin Responseto DOJ First Request for Documents and Information Review of APDUse of Force Incidents dated July 18 2007 APDrsquos TrainingDivision no longer enters the use of force report data into adatabase Rather the APDrsquos central recordrsquos office completesthis task The APD had not revised its policy to reflect thischange

25 According to the old policy the APDrsquos training academywas to enter the use of force reports into a database to returnincomplete reports to supervisors for completion and to performan annual analysis of the use of force data to identify trainingneeds Use of Force General Policy B10109 Even if the academyis no longer the data entry point academy staff need to performthe qualitative analysis The subject matter experts for eachrespective use of force should review the respective use of forcereports for both individual training and supervision issues andfor systemic use of force issues

- 23 shy

departmentrsquos policies Use of force reviews may identify bothofficer training needs and patterns of unauthorized or excessiveuses of force The information regarding each use of force alsoshould be tracked in an Early Warning System (ldquoEWSrdquo) asdiscussed below in Section VIII of this letter

1 Chain of Command Review

Like the reporting requirements already discussed the APDhas revised many of the review requirements of the revisedResponse to Resistance reporting policy which address many of therecommendations our experts made at the conclusions of our onsite visits The APDrsquos prior use of force report form providedto us included blanks for supervisor comments and signature butthe policy did not give any direction on the necessity or natureof this supervisory review Rather the prior use of forcepolicy included a provision for review of use of force reportforms only by the APDrsquos training academy24 Use of Force General Policy B1010925 According to the policy then there was norequirement that supervisors assess whether the officerrsquosreported uses of force were in compliance with the APDrsquos use offorce policy In a separate document generated in response toour request however the APD stated that supervisors are toreview use of force reports City of Austin Response to DOJFirst Request for Documents and Information Review of APD Use ofForce Incidents dated July 18 2007 This informal requirementhowever will not consistently yield effective front-linesupervisory reviews of uses of force

24 According to a document titled City of Austin Responseto DOJ First Request for Documents and Information Review of APDUse of Force Incidents dated July 18 2007 APDrsquos TrainingDivision no longer enters the use of force report data into adatabase Rather the APDrsquos central recordrsquos office completesthis task The APD had not revised its policy to reflect thischange

25 According to the old policy the APDrsquos training academywas to enter the use of force reports into a database to returnincomplete reports to supervisors for completion and to performan annual analysis of the use of force data to identify trainingneeds Use of Force General Policy B10109 Even if the academyis no longer the data entry point academy staff need to performthe qualitative analysis The subject matter experts for eachrespective use of force should review the respective use of forcereports for both individual training and supervision issues andfor systemic use of force issues

- 24 shy

While on site we encountered a general lack of consistencyamong APD supervisors on use of force reporting and reviewrequirements We asked APD supervisors to walk us through use offorce incidents and reporting Despite the lack of clarity inthe APDrsquos prior use of force policy we were informed that inpractice many front-line supervisors do in fact review theirofficersrsquo use of force reports However we were also informedthat some of these supervisors (who are to review use of forcereports) are not themselves trained in up-to-date uniformtactics or use of force If these line-level and mid-level supervisors are not trained in use of force themselves thenthey are not equipped to assess or counsel on their subordinatesrsquouse of force26 Despite the improvement in the revised Responseto Resistance reporting policy this previously observed lack oftraining among supervisors impedes effective implementation ofuse of force reviews

Some of the lack of clarity regarding supervisory reviewresponsibilities for use of force that existed in the old policystill permeate the revised Response to Resistance reportingpolicy For level one and level three use of force investigations the revised response to resistance reportingpolicy requires that supervisors prepare and submit supplementsto response to resistance reports Response to ResistanceReporting Policy B101c05(C)(4) B101c07(B)(3)(b)27 For level two reports though supervisors are required to prepare aninvestigation packet but not a supplement Response toResistance Reporting Policy B101c06(A) The revised policyrsquos

26 Similarly we have been informed that the APDrsquosinternal affairs division trained all of the APDrsquos sergeants andlieutenants to handle certain investigations of potential policyviolations including possible excessive force referred back tothe chain of command If these line-level and mid-level supervisors are not trained in use of force themselves thenthey likewise are not equipped to assess or counsel on theirsubordinatesrsquo use of force

27 ldquoSupplementsrdquo are additions to the primary employeersquosResponse to Resistance Report Supplements contain the accountsof involved employees assisting employees or for certain levelone investigations supervisors Response to ResistanceReporting Policy B101c01(C) The policyrsquos definition ofsupplements omits supplements by supervisors for level two andthree investigations Accordingly the revised policyrsquosdefinition is inconsistent with the supervisory reporting andreview requirements of the policy

- 25 shy

descriptions of these supervisorsrsquo review responsibilities do notaddress the elements of qualitative analysis the supervisors mustperform in reviewing their subordinatesrsquo uses of force

The revised policy does include a chain-of-command reviewfor level one and two uses of force that require the chain ofcommand to evaluate for ldquotraining tactical or equipmentissuesrdquo Response to Resistance Reporting Policy B101c04(D)(3)This review however is of an already completed investigativepackage and therefore occurs after the front-line supervisorsshould have completed a qualitative assessment of the use offorce We recommend that the APD revise its policy to requirethat APD supervisors qualitatively review all uses of force notjust some levels The policy should specify that supervisorsshould identify uses of force that appear excessive avoidableandor indicative of potentially criminal misconduct Either on the Response to Resistance form or a separate form the APDshould require that supervisors record their substantive reviewof use of force The form should require supervisors to evaluateeach use of force used in an incident Supervisors who reviewuse of force reports must reconcile multiple use of force reportsfrom multiple officers concerning the same event The supervisors should also check involved officersrsquo training recordsto determine whether or not those officers are properly certifiedfor the force method used After these qualitative assessmentsby front-line supervisors the review should proceed up the chainof command as envisioned in the revised policy

We were informed that the internal affairs division does not perform an audit on use of force reports to ensure that chain ofcommand review is occurring28 The APD could utilize the internal affairs division to ensure that the chain of command is performing such reviews of uses of force The revised Responseto Resistence reporting policy also requires internal affairs totrack force investigations for level one and level twoinvestigations in a database Response to Resistance ReportingPolicy B101c04(c) It is unclear however who has ultimateresponsibility for tracking all use of force reports or why theAPDrsquos policy does not require tracking of level three reports

28 We were informed also however that the APD previouslyissued a general order that the APDrsquos internal affairs divisionshould receive all use of force reports and that the order hasnot been rescinded Nonetheless to ensure uniformity andconsistency APD should ensure that practice follows suit withcurrent policy and any previous contradictory orders berescinded

- 26 shy

The APD should revise its policy to provide for tracking of allforce reports and then utilize force report data for its EWS

2 Identifying Use of Force Trends

The APDrsquos prior use of force policy required that thetraining academy enter use of force reports into a database andreview that database to prepare an annual analysis of use offorce29 Use of Force General Policy B10109 While there is value in the APDrsquos training academy review the prior policyrsquosmethod of review circumvented the chain of command Consistent with many of the recommendations our experts made at theconclusions of our on site visits the revised Response toResistence reporting policy now appropriately places back in thechain of command reviews of use of force Response to ResistanceReporting Policy B101c04(D)

Also consistent with many of the recommendations our expertsmade at the conclusions of our on site visits the APD hasadopted a new force review board policy30 Force review Board Policy B101d issued June 2 2008 We commend APD for this advancement and recommend certain changes and clarifications tofurther enhance the new force review board policy

bull The review board policy requires the commander of trainingto serve as the chairperson of the board Force Review Board Policy B101d01(C)(1) We recommend that in order to place appropriate importance on the review board process andgive the board authority that an assistant-chief levelcommand staff member chair the board

bull The review board policy requires the board to considercertain factors in the uses of force it reviews but does

29 As stated we were advised that the Training Academy nolonger enters the reports into the APDrsquos database City ofAustin Response to DOJ First Request for Documents andInformation Review of APD Use of Force Incidents dated July 182007

30 APD currently employs a Critical Incident Review Boardfor incidents involving death serious injury or having a highpotential for lethality to the public Critical Incident review Board General Policy A114 effective April 2 2000 revisedJanuary 31 2003 As envisioned therein the critical incidentreview board should also continue to identify needs for trainingadjustments Id

- 27 shy

not include among these the officerrsquos ldquodecision-pointanalysisrdquo which is a review of the reasonableness of eachdecision prior to and throughout the officerrsquos use of forceand a determination of whether or not a different decision would have affected the ultimate use of force Force Review Board Policy B101d03(C) For example an officerrsquos initialuse of force to stop a subject may be appropriate (eg useof chemical spray) but if a subject stops resisting andofficers use force again (another burst of spray) thatcontinued use of force may be inappropriate Decision pointanalysis should also look at officersrsquo reactions tosubjectsrsquo verbal comments that lead to uses of force and atofficersrsquo decisions not to wait for backup resulting in theneed for use of force Decision point analysis looks ateach aspect of the officersrsquo and the subjectsrsquo action todetermine the reasonableness of officersrsquo use of force Accordingly we recommend that the APD revise its policy torequire the Board to consider the steps leading up to use offorce

bull Like the Response to Resistance reporting policy the reviewboard policy references anticipated use of the internalaffairs database Force Review Board Policy B101d03(D)(3)We recommend that the APD revise its policy to make clearthe requirement to track all uses of force and the need torecord all uses of force in the APDrsquos EWS

III COMPLAINTS OF OFFICER MISCONDUCT

The APD should implement a formal structured andconsistent system for receiving and handling complaints ofofficer misconduct

A Complaint Procedure

An open fair and impartial process of receiving andinvestigating citizen complaints serves several importantpurposes An appropriate citizen complaint procedure ensuresofficer accountability and supervision deters misconduct andhelps maintain good community relations by increasing publicconfidence and respect for the APD Improving the currentprocedure for handling citizen complaints at the APD wouldmaximize these goals

- 28 shy

1 Complaint Process Information

An effective complaint process should allow unfetteredaccess for citizens (or others) to make complaints and shouldreinforce the public trust in the integrity of the process We recommend that the APD better disseminate information to the public about its complaint process in order to garner moreconfidence in the process We recommend that each district police station and APD headquarters have information about thecomplaint process prominently posted in a visible place in thepublic reception area The APD should also make complaint formsavailable at the City Hall and other public offices Complaintprocess information and forms should be posted in multiplelanguages The APD should also consider making information aboutthe complaint process available on-line in multiple languagesFinally we recommend that the APD institute periodic customersatisfaction surveys and include feedback questions regardingthe publicrsquos perception of the complaint process so that APD hasan avenue for addressing any actual or presumed deficiencies

2 Complaint Intake

An open complaint process contemplates that complaints willnot be discouraged The APD should change aspects of its citizencomplaint process that have the potential to discourage thefiling of complaints and to impair effective tracking ofcomplaints

Under current APD policy all APD employees (sworn andunsworn) are responsible for accepting complaints againstdepartment employees regarding allegations of misconduct orunlawful activity Internal Affairs General Policy A10909(A)effective April 2 2000 reissued May 23 2006 According toofficers with whom we spoke however this process is not beingfollowed We learned that communications personnel ie 911operators on many occasions may have discouraged complainantsfrom filing complaints failed to contact supervisors regardingcomplaints and failed to document the calls and the complaintsSuch responses to complainants who call 911 may deter would-becomplainants who are unable to or otherwise unwilling to cometo a police station to file a complaint Further we wereadvised that historically some citizens who desired to file acomplaint with the APD were directed to file their complaint inperson with the Office of the Police Monitor (ldquoOPMrdquo) In these instances citizens were obliged to travel to the OPM (which wasnot easily accessible) in order to file complaints This practice too deters the filing of complaints

- 29 shy

The APD should ensure that its practice on acceptance ofcomplaints meets its policy that all police employees areresponsible for receiving and documenting public complaintsAdditionally the current policy only requires an employee tocontact a supervisor if the employee receives a complaint abouthimherself Internal Affairs General Policy A10909(A)(1) We recommend that APD adopt a policy that requires all personnelwho receive citizen complaints to immediately contact asupervisor If a supervisor is unavailable the policy shouldthen direct personnel to document the complaint which includesgathering the complainantrsquos name nature of complaint date ofcomplaint name of the officer involved in the incident andcollecting transient evidence The APD should train all its personnel particularly communications staff members on theirresponsibility to accept complaints and reporting pertinentcomplaint information to supervisors Further we recommend thatthe APD consider placing drop boxes in police stations or CityHall so that complaintants can easily submit their complaintsThe APD would then contact the attributable authors of depositedcomplaints to initiate the investigation of those complaints Byinstituting this new policy the APD should ensure that allcomplaints are referred to a supervisor and all complaints aredocumented

As soon as the APD receives a complaint the complaintinformation should be recorded in Internal Affairrsquos (ldquoIArdquo)centralized database of all complaints and the APDrsquos EWS Even complaints for which complainants refused to submit written formsor which are submitted anonymously should be listed in thisdatabase The date on which a complaint is initiated should berecorded and processed for complete investigation

3 Complaint Classification

According to current APD policy the IA Division has theprimary responsibility for classifying evaluating andinvestigating complaints Internal Affairs General PolicyA10904 Complaints regarding possible officer misconduct areeither formally or informally investigated We understand that IA classifies complaints as formal if the complainant files aformal complaint affidavit ie Complaint Contact FormConversely IA classifies complaints as informal if thecomplainant does not file a formal complaint affidavitregardless of the seriousness of the allegation Reportedly IAconducts an initial evaluation of all formal complaints before itdetermines the classification of investigation

- 30 shy

The APDrsquos current system for complaint classification isneedlessly complex and fraught with opportunities to applysubjective judgment The classification system permits far toomuch ldquogray areardquo in which some serious complaints may beminimized or disposed informally without adequate investigationand resolution The APD has seven different categories andsubcategories of classifying complaints Specifically thecategories include Class A B-internal B-external C D I andQ complaints31 It is unclear what legitimate purpose is servedby this extensive multiple categorization scheme

APDrsquos current process of complaint classification raisesconcerns because the classification categories are broad subjectto different interpretations lack uniformity and lackconsistency The current IA policy lists categories ofcomplaints that should be classified in Class A but the policyfails to define these categories Also under Class Acomplaints the policy does not clearly define what constitutesldquocriminal conductrdquo ldquoserious violations of policy rule orregulationrdquo or ldquoconduct that challenges the integrity goodorder or discipline of the Departmentrdquo As a result IAdetectives are left making subjective determinations about theclassification of complaints This raises concerns not onlyabout bias but also about the consistency and fairness in theclassification process

Similarly the classification and disposition of Class Bcomplaints raise concerns because the current policy narrowlylists examples of ldquoless serious violations of Department PolicyrdquoWe recommend that the APD expand its current list of less seriousviolations into an exhaustive list of examples that would beconsistently applied and that would reduce the probability ofsubjective judgment Further we have concerns with the manner

31 Class A complaints (allegations of a serious nature)Class B complaints (allegations of less serious nature) Class Ccomplaints (allegations that do not rise to a policy violationor complaints that can ldquobest be handled by other departmentalprocessrdquo) Class D complaints (allegations that are not policyviolations allegations that recordings show to be false andcomplaints about probable cause) Class I (informal informationonly complaints) and Class Q (catch-all category) Internal Affairs General Policy A10904 Class B complaints are furtherdivided into two subcategories internal and external Internal Class B complaints are generated by complaints filed by APDpersonnel External Class B complaints are generated bycomplaints filed from outside the APD

- 28 shy

1 Complaint Process Information

An effective complaint process should allow unfetteredaccess for citizens (or others) to make complaints and shouldreinforce the public trust in the integrity of the process We recommend that the APD better disseminate information to the public about its complaint process in order to garner moreconfidence in the process We recommend that each district police station and APD headquarters have information about thecomplaint process prominently posted in a visible place in thepublic reception area The APD should also make complaint formsavailable at the City Hall and other public offices Complaintprocess information and forms should be posted in multiplelanguages The APD should also consider making information aboutthe complaint process available on-line in multiple languagesFinally we recommend that the APD institute periodic customersatisfaction surveys and include feedback questions regardingthe publicrsquos perception of the complaint process so that APD hasan avenue for addressing any actual or presumed deficiencies

2 Complaint Intake

An open complaint process contemplates that complaints willnot be discouraged The APD should change aspects of its citizencomplaint process that have the potential to discourage thefiling of complaints and to impair effective tracking ofcomplaints

Under current APD policy all APD employees (sworn andunsworn) are responsible for accepting complaints againstdepartment employees regarding allegations of misconduct orunlawful activity Internal Affairs General Policy A10909(A)effective April 2 2000 reissued May 23 2006 According toofficers with whom we spoke however this process is not beingfollowed We learned that communications personnel ie 911operators on many occasions may have discouraged complainantsfrom filing complaints failed to contact supervisors regardingcomplaints and failed to document the calls and the complaintsSuch responses to complainants who call 911 may deter would-becomplainants who are unable to or otherwise unwilling to cometo a police station to file a complaint Further we wereadvised that historically some citizens who desired to file acomplaint with the APD were directed to file their complaint inperson with the Office of the Police Monitor (ldquoOPMrdquo) In these instances citizens were obliged to travel to the OPM (which wasnot easily accessible) in order to file complaints This practice too deters the filing of complaints

- 29 shy

The APD should ensure that its practice on acceptance ofcomplaints meets its policy that all police employees areresponsible for receiving and documenting public complaintsAdditionally the current policy only requires an employee tocontact a supervisor if the employee receives a complaint abouthimherself Internal Affairs General Policy A10909(A)(1) We recommend that APD adopt a policy that requires all personnelwho receive citizen complaints to immediately contact asupervisor If a supervisor is unavailable the policy shouldthen direct personnel to document the complaint which includesgathering the complainantrsquos name nature of complaint date ofcomplaint name of the officer involved in the incident andcollecting transient evidence The APD should train all its personnel particularly communications staff members on theirresponsibility to accept complaints and reporting pertinentcomplaint information to supervisors Further we recommend thatthe APD consider placing drop boxes in police stations or CityHall so that complaintants can easily submit their complaintsThe APD would then contact the attributable authors of depositedcomplaints to initiate the investigation of those complaints Byinstituting this new policy the APD should ensure that allcomplaints are referred to a supervisor and all complaints aredocumented

As soon as the APD receives a complaint the complaintinformation should be recorded in Internal Affairrsquos (ldquoIArdquo)centralized database of all complaints and the APDrsquos EWS Even complaints for which complainants refused to submit written formsor which are submitted anonymously should be listed in thisdatabase The date on which a complaint is initiated should berecorded and processed for complete investigation

3 Complaint Classification

According to current APD policy the IA Division has theprimary responsibility for classifying evaluating andinvestigating complaints Internal Affairs General PolicyA10904 Complaints regarding possible officer misconduct areeither formally or informally investigated We understand that IA classifies complaints as formal if the complainant files aformal complaint affidavit ie Complaint Contact FormConversely IA classifies complaints as informal if thecomplainant does not file a formal complaint affidavitregardless of the seriousness of the allegation Reportedly IAconducts an initial evaluation of all formal complaints before itdetermines the classification of investigation

- 30 shy

The APDrsquos current system for complaint classification isneedlessly complex and fraught with opportunities to applysubjective judgment The classification system permits far toomuch ldquogray areardquo in which some serious complaints may beminimized or disposed informally without adequate investigationand resolution The APD has seven different categories andsubcategories of classifying complaints Specifically thecategories include Class A B-internal B-external C D I andQ complaints31 It is unclear what legitimate purpose is servedby this extensive multiple categorization scheme

APDrsquos current process of complaint classification raisesconcerns because the classification categories are broad subjectto different interpretations lack uniformity and lackconsistency The current IA policy lists categories ofcomplaints that should be classified in Class A but the policyfails to define these categories Also under Class Acomplaints the policy does not clearly define what constitutesldquocriminal conductrdquo ldquoserious violations of policy rule orregulationrdquo or ldquoconduct that challenges the integrity goodorder or discipline of the Departmentrdquo As a result IAdetectives are left making subjective determinations about theclassification of complaints This raises concerns not onlyabout bias but also about the consistency and fairness in theclassification process

Similarly the classification and disposition of Class Bcomplaints raise concerns because the current policy narrowlylists examples of ldquoless serious violations of Department PolicyrdquoWe recommend that the APD expand its current list of less seriousviolations into an exhaustive list of examples that would beconsistently applied and that would reduce the probability ofsubjective judgment Further we have concerns with the manner

31 Class A complaints (allegations of a serious nature)Class B complaints (allegations of less serious nature) Class Ccomplaints (allegations that do not rise to a policy violationor complaints that can ldquobest be handled by other departmentalprocessrdquo) Class D complaints (allegations that are not policyviolations allegations that recordings show to be false andcomplaints about probable cause) Class I (informal informationonly complaints) and Class Q (catch-all category) Internal Affairs General Policy A10904 Class B complaints are furtherdivided into two subcategories internal and external Internal Class B complaints are generated by complaints filed by APDpersonnel External Class B complaints are generated bycomplaints filed from outside the APD

- 29 shy

The APD should ensure that its practice on acceptance ofcomplaints meets its policy that all police employees areresponsible for receiving and documenting public complaintsAdditionally the current policy only requires an employee tocontact a supervisor if the employee receives a complaint abouthimherself Internal Affairs General Policy A10909(A)(1) We recommend that APD adopt a policy that requires all personnelwho receive citizen complaints to immediately contact asupervisor If a supervisor is unavailable the policy shouldthen direct personnel to document the complaint which includesgathering the complainantrsquos name nature of complaint date ofcomplaint name of the officer involved in the incident andcollecting transient evidence The APD should train all its personnel particularly communications staff members on theirresponsibility to accept complaints and reporting pertinentcomplaint information to supervisors Further we recommend thatthe APD consider placing drop boxes in police stations or CityHall so that complaintants can easily submit their complaintsThe APD would then contact the attributable authors of depositedcomplaints to initiate the investigation of those complaints Byinstituting this new policy the APD should ensure that allcomplaints are referred to a supervisor and all complaints aredocumented

As soon as the APD receives a complaint the complaintinformation should be recorded in Internal Affairrsquos (ldquoIArdquo)centralized database of all complaints and the APDrsquos EWS Even complaints for which complainants refused to submit written formsor which are submitted anonymously should be listed in thisdatabase The date on which a complaint is initiated should berecorded and processed for complete investigation

3 Complaint Classification

According to current APD policy the IA Division has theprimary responsibility for classifying evaluating andinvestigating complaints Internal Affairs General PolicyA10904 Complaints regarding possible officer misconduct areeither formally or informally investigated We understand that IA classifies complaints as formal if the complainant files aformal complaint affidavit ie Complaint Contact FormConversely IA classifies complaints as informal if thecomplainant does not file a formal complaint affidavitregardless of the seriousness of the allegation Reportedly IAconducts an initial evaluation of all formal complaints before itdetermines the classification of investigation

- 30 shy

The APDrsquos current system for complaint classification isneedlessly complex and fraught with opportunities to applysubjective judgment The classification system permits far toomuch ldquogray areardquo in which some serious complaints may beminimized or disposed informally without adequate investigationand resolution The APD has seven different categories andsubcategories of classifying complaints Specifically thecategories include Class A B-internal B-external C D I andQ complaints31 It is unclear what legitimate purpose is servedby this extensive multiple categorization scheme

APDrsquos current process of complaint classification raisesconcerns because the classification categories are broad subjectto different interpretations lack uniformity and lackconsistency The current IA policy lists categories ofcomplaints that should be classified in Class A but the policyfails to define these categories Also under Class Acomplaints the policy does not clearly define what constitutesldquocriminal conductrdquo ldquoserious violations of policy rule orregulationrdquo or ldquoconduct that challenges the integrity goodorder or discipline of the Departmentrdquo As a result IAdetectives are left making subjective determinations about theclassification of complaints This raises concerns not onlyabout bias but also about the consistency and fairness in theclassification process

Similarly the classification and disposition of Class Bcomplaints raise concerns because the current policy narrowlylists examples of ldquoless serious violations of Department PolicyrdquoWe recommend that the APD expand its current list of less seriousviolations into an exhaustive list of examples that would beconsistently applied and that would reduce the probability ofsubjective judgment Further we have concerns with the manner

31 Class A complaints (allegations of a serious nature)Class B complaints (allegations of less serious nature) Class Ccomplaints (allegations that do not rise to a policy violationor complaints that can ldquobest be handled by other departmentalprocessrdquo) Class D complaints (allegations that are not policyviolations allegations that recordings show to be false andcomplaints about probable cause) Class I (informal informationonly complaints) and Class Q (catch-all category) Internal Affairs General Policy A10904 Class B complaints are furtherdivided into two subcategories internal and external Internal Class B complaints are generated by complaints filed by APDpersonnel External Class B complaints are generated bycomplaints filed from outside the APD

- 30 shy

The APDrsquos current system for complaint classification isneedlessly complex and fraught with opportunities to applysubjective judgment The classification system permits far toomuch ldquogray areardquo in which some serious complaints may beminimized or disposed informally without adequate investigationand resolution The APD has seven different categories andsubcategories of classifying complaints Specifically thecategories include Class A B-internal B-external C D I andQ complaints31 It is unclear what legitimate purpose is servedby this extensive multiple categorization scheme

APDrsquos current process of complaint classification raisesconcerns because the classification categories are broad subjectto different interpretations lack uniformity and lackconsistency The current IA policy lists categories ofcomplaints that should be classified in Class A but the policyfails to define these categories Also under Class Acomplaints the policy does not clearly define what constitutesldquocriminal conductrdquo ldquoserious violations of policy rule orregulationrdquo or ldquoconduct that challenges the integrity goodorder or discipline of the Departmentrdquo As a result IAdetectives are left making subjective determinations about theclassification of complaints This raises concerns not onlyabout bias but also about the consistency and fairness in theclassification process

Similarly the classification and disposition of Class Bcomplaints raise concerns because the current policy narrowlylists examples of ldquoless serious violations of Department PolicyrdquoWe recommend that the APD expand its current list of less seriousviolations into an exhaustive list of examples that would beconsistently applied and that would reduce the probability ofsubjective judgment Further we have concerns with the manner

31 Class A complaints (allegations of a serious nature)Class B complaints (allegations of less serious nature) Class Ccomplaints (allegations that do not rise to a policy violationor complaints that can ldquobest be handled by other departmentalprocessrdquo) Class D complaints (allegations that are not policyviolations allegations that recordings show to be false andcomplaints about probable cause) Class I (informal informationonly complaints) and Class Q (catch-all category) Internal Affairs General Policy A10904 Class B complaints are furtherdivided into two subcategories internal and external Internal Class B complaints are generated by complaints filed by APDpersonnel External Class B complaints are generated bycomplaints filed from outside the APD

- 31 shy

in which investigations are conducted in this complaint categorySpecifically this category is inherently complicated because itallows for two different levels of review within the same complaint class (ie external complaints investigated by IA andinternal complaints investigated by chain of command) This category is further complicated by allowing the IA commander toremove Class B complaints to Class A where allegations of moreserious or complex nature surfaces The complex and complicatednature of Class B complaints lends itself to confusioninconsistency and unfairness in the disposition of less seriousviolations of Department policy

Even more concerning were the classification and dispositionof Class C complaints In our discussions with the OPM welearned that the OPM and the APD frequently disagreed onclassification and disposition of this category of complaintsIt was reported that many of the complaints lost in this ldquograyareardquo were Class C complaints The subjective manner in whichthese complaints were classified raised concerns not only aboutbias but also about fairness and consistency in theclassification process For example this category containedcomplaints that command staff determined should be handledthrough other department process (ie grievance performanceimprovement plan (PIP) training and employeersquos chain ofcommand) As a result these complaints typically were minimizedand never investigated before they were administratively closedAccording to our expert consultants this category was an ldquoescapevalverdquo used to minimize officersrsquo misconduct

Similarly categorization of complaints as I or Q complaintsserved as ldquoescape valvesrdquo that can minimize officersrsquo misconductThe APDrsquos policy requires IA to record informal complaints on itstracking system Internal Affairs General Policy A10904(F)But the policy actually directs that informal complaints canonly be recorded ldquoas lsquoInformation (sic)rsquo onlyrdquo and cannot beused for disciplinary purposes Id IA personnel identifiedcategory ldquoQrdquo as a catch-all in the IA tracking system The IA policy however also fails to address how this category is usedThis implies that this complaint category receives no formalreview APD personnel reported that the IA did not fullyinvestigate category I and Q complaints

We recommend that the APD investigate to the extent possibleall complaints against officers regardless of the source of thecomplaint and that the APD record all findings in an EWS We recommend that the APD create only two distinct categories ofcomplaints those to be fully investigated by IA and those tobe investigated and resolved through the chain of command The

- 32 shy

APD should apply consistent objective criteria in the assignmentof complaints to IA or the chain of command The following arethe objective criteria that we recommend the APD consider usingin categorizing complaints for IA investigations (1) allallegations which if true involve serious policy violationsincluding but not limited to all violations involving use offorce (2) all allegations involving use of deadly force (3) allallegations involving failure to provide medical treatment(4) all allegations involving potentially criminal conduct(5) all allegations involving purported unlawful police actioneg unlawful arrest and (6) evidence of discriminatorypolicing Complaints that do not meet the objective criteria forinvestigation by IA would belong to the second category those to be investigated and resolved through the chain of command

The APD may develop other objective criteria for theassignment of complaints to IA Whatever criteria the APD ultimately uses the criteria should be promulgated in policyand therefore known to all personnel and complainants The use of such criteria is not intended to eliminate the exercise of discretion in the assignment of complaints Rather the use ofidentifiable criteria should make the assignment of complaintsmore consistent and objective Objective criteria should alsoinstill in complainants a sense of confidence in the complaintsystem and among personnel a sense of fairness Objectivecriteria would also permit quality control in later audits of theassignment system by IA supervisors and the OPM as discussedbelow in Section V

Once a complaint is classified we recommend that the APDcontact the complainant in writing to provide the complainantwith the name and contact information of the IA investigator orchain of command supervisor who is assigned the complaintinvestigation This notice should include the name of the complainant the unique IA number assigned to the complaint thedate of the incident the name of the officers involved and thesummary of the allegation In lengthy investigations the APDshould update the complainants on the status of theinvestigations At the conclusion of the investigations the APDshould notify all relevant parties including the complainantsof the final dispositions If a complainantrsquos allegation issustained the letter should also indicate whether remedialaction will be or has been taken

4 Chain of Command Investigations

We recommend that subject officersrsquo chains of commandinvestigate all complaints not investigated by IA As discussed

- 33 shy

IA currently refers to a subject officerrsquos chain of command allClass B internal and Class C and D complaints These are administratively closed and do not receive the benefit of aninvestigation Because these complaints are administrativelyclosed the APD fails to produce findings that could be usefuldata for the APDrsquos EWS Not every complaint will merit acomplete IA investigation but every complaint deserves the levelof investigation merited by the circumstances of the complaintIf it is readily apparent from the chain of commandrsquos review ofthe assigned complaint that the complaint is without foundationthen the complaint should be deemed as unfounded If during thecourse of any chain of command investigation the chain ofcommand supervisor determines a complaint meets the objectivecriteria for internal affairs investigation the case should bereferred back to IA for investigation The chain of command should reach a finding after investigation of all complaints itreceives All findings of potential policy violations shouldthen be reviewed by second-level supervisors before findings aresubmitted to the IA Commander for final approval

To ensure that the chain of command staff is equipped toinvestigate and resolve complaints (particularly citizencomplaints) referred to them we recommend that the APD provideappropriate training with an emphasis on interpersonal skillsFurther we recommend that APD provide training on appropriateburdens of proof ie preponderance of the evidence tosupervisors who are responsible for investigating and decidingthe outcome of a complaint and the factors to consider whenevaluating complaint or witness credibility (to ensure that theirrecommendations regarding dispositions are unbiased uniform andlegally appropriate) We also suggest that APD implement apolicy regarding complaint disposition that requires allcomplaints to be recorded in an EWS

Finally we recommend that the APD implement a uniformsystem for recording all complaints resolved through the chain ofcommand During our site visit we interviewed several sergeantswho used different methods of recording resolved informalcomplaints Several supervisors wrote memoranda that remained inofficersrsquo files while other supervisors were unable to identifyany documentation of informally resolved complaints We recommend that the APD uniformly require that officersrsquo personnelfiles include a record of all complaints resolved through theofficersrsquo chain of command We also recommend that APD implementoversight eg an audit or quality assurance mechanism toreview a sampling of chain of command complaints investigationsto ensure that complaints are properly classified andappropriately resolved

- 34 shy

5 Outside Referral of Potentially CriminalAllegations

The APD and the Travis County District Attorneyrsquos (ldquoDArdquo)should work cooperatively when they investigate APD employees forpotentially criminal conduct When an incident or complaint ofofficer misconduct indicates the possibility of criminal conductby the officer the APD should refer the matter to the DArsquosoffice and support as needed a criminal investigation An ongoing criminal investigation however should not foreclose theAPDrsquos ability to conduct a parallel administrative investigationThe APD administrative investigation should proceed on aconcurrent track to the extent it is able without interferingwith the criminal investigation

The APDrsquos current policies and procedure allow for thecompletion of a criminal investigation before the commencement ofan administrative investigation or the imposition of disciplinaryaction Internal Affairs General Policy A10907(B) Althoughthe Chief has the authority to supercede this protocol welearned during our site visit that the APD generally defers toprosecutorsrsquo requests to delay administrative investigationsuntil final disposition of criminal investigations The apparently unintended consequence of delaying the APDrsquos IAinvestigations has been that the APD may be foreclosed fromdisciplining officers that the APD eventually finds committedpolicy violations Under local government code the Chief has180-days from the occurrence of an incident to take disciplinaryaction against an officer Tex Local Govt Code sect 1431017(h)32 For complaints involving conduct that is alsopotentially criminal in nature that 180-deadline runs from thereporting of the incident We learned during our tour that therewere situations in which the final dispositions of cases were notcompleted by the 180-day deadline As a result the Chief wasunable to impose discipline and officer conduct was not reportedin the Guidance Advisory Program (ldquoGAPrdquo) system33 The OPM

32 This 180-day deadline can be extended however itappears that such an extension is rarely used If the Chief believes that he may terminate the subject officer the Chief maythen provide notice that the deadline is extended beyond the 180shyday deadline Internal Affairs General Policy A10907(C)

33 The GAP system is a data analysis program developed bythe APD The system was intended to operate as an early warningsystem to identify officers who may be at risk for behaviorinconsistent with policy The self-developed program by the APD

- 32 shy

APD should apply consistent objective criteria in the assignmentof complaints to IA or the chain of command The following arethe objective criteria that we recommend the APD consider usingin categorizing complaints for IA investigations (1) allallegations which if true involve serious policy violationsincluding but not limited to all violations involving use offorce (2) all allegations involving use of deadly force (3) allallegations involving failure to provide medical treatment(4) all allegations involving potentially criminal conduct(5) all allegations involving purported unlawful police actioneg unlawful arrest and (6) evidence of discriminatorypolicing Complaints that do not meet the objective criteria forinvestigation by IA would belong to the second category those to be investigated and resolved through the chain of command

The APD may develop other objective criteria for theassignment of complaints to IA Whatever criteria the APD ultimately uses the criteria should be promulgated in policyand therefore known to all personnel and complainants The use of such criteria is not intended to eliminate the exercise of discretion in the assignment of complaints Rather the use ofidentifiable criteria should make the assignment of complaintsmore consistent and objective Objective criteria should alsoinstill in complainants a sense of confidence in the complaintsystem and among personnel a sense of fairness Objectivecriteria would also permit quality control in later audits of theassignment system by IA supervisors and the OPM as discussedbelow in Section V

Once a complaint is classified we recommend that the APDcontact the complainant in writing to provide the complainantwith the name and contact information of the IA investigator orchain of command supervisor who is assigned the complaintinvestigation This notice should include the name of the complainant the unique IA number assigned to the complaint thedate of the incident the name of the officers involved and thesummary of the allegation In lengthy investigations the APDshould update the complainants on the status of theinvestigations At the conclusion of the investigations the APDshould notify all relevant parties including the complainantsof the final dispositions If a complainantrsquos allegation issustained the letter should also indicate whether remedialaction will be or has been taken

4 Chain of Command Investigations

We recommend that subject officersrsquo chains of commandinvestigate all complaints not investigated by IA As discussed

- 33 shy

IA currently refers to a subject officerrsquos chain of command allClass B internal and Class C and D complaints These are administratively closed and do not receive the benefit of aninvestigation Because these complaints are administrativelyclosed the APD fails to produce findings that could be usefuldata for the APDrsquos EWS Not every complaint will merit acomplete IA investigation but every complaint deserves the levelof investigation merited by the circumstances of the complaintIf it is readily apparent from the chain of commandrsquos review ofthe assigned complaint that the complaint is without foundationthen the complaint should be deemed as unfounded If during thecourse of any chain of command investigation the chain ofcommand supervisor determines a complaint meets the objectivecriteria for internal affairs investigation the case should bereferred back to IA for investigation The chain of command should reach a finding after investigation of all complaints itreceives All findings of potential policy violations shouldthen be reviewed by second-level supervisors before findings aresubmitted to the IA Commander for final approval

To ensure that the chain of command staff is equipped toinvestigate and resolve complaints (particularly citizencomplaints) referred to them we recommend that the APD provideappropriate training with an emphasis on interpersonal skillsFurther we recommend that APD provide training on appropriateburdens of proof ie preponderance of the evidence tosupervisors who are responsible for investigating and decidingthe outcome of a complaint and the factors to consider whenevaluating complaint or witness credibility (to ensure that theirrecommendations regarding dispositions are unbiased uniform andlegally appropriate) We also suggest that APD implement apolicy regarding complaint disposition that requires allcomplaints to be recorded in an EWS

Finally we recommend that the APD implement a uniformsystem for recording all complaints resolved through the chain ofcommand During our site visit we interviewed several sergeantswho used different methods of recording resolved informalcomplaints Several supervisors wrote memoranda that remained inofficersrsquo files while other supervisors were unable to identifyany documentation of informally resolved complaints We recommend that the APD uniformly require that officersrsquo personnelfiles include a record of all complaints resolved through theofficersrsquo chain of command We also recommend that APD implementoversight eg an audit or quality assurance mechanism toreview a sampling of chain of command complaints investigationsto ensure that complaints are properly classified andappropriately resolved

- 34 shy

5 Outside Referral of Potentially CriminalAllegations

The APD and the Travis County District Attorneyrsquos (ldquoDArdquo)should work cooperatively when they investigate APD employees forpotentially criminal conduct When an incident or complaint ofofficer misconduct indicates the possibility of criminal conductby the officer the APD should refer the matter to the DArsquosoffice and support as needed a criminal investigation An ongoing criminal investigation however should not foreclose theAPDrsquos ability to conduct a parallel administrative investigationThe APD administrative investigation should proceed on aconcurrent track to the extent it is able without interferingwith the criminal investigation

The APDrsquos current policies and procedure allow for thecompletion of a criminal investigation before the commencement ofan administrative investigation or the imposition of disciplinaryaction Internal Affairs General Policy A10907(B) Althoughthe Chief has the authority to supercede this protocol welearned during our site visit that the APD generally defers toprosecutorsrsquo requests to delay administrative investigationsuntil final disposition of criminal investigations The apparently unintended consequence of delaying the APDrsquos IAinvestigations has been that the APD may be foreclosed fromdisciplining officers that the APD eventually finds committedpolicy violations Under local government code the Chief has180-days from the occurrence of an incident to take disciplinaryaction against an officer Tex Local Govt Code sect 1431017(h)32 For complaints involving conduct that is alsopotentially criminal in nature that 180-deadline runs from thereporting of the incident We learned during our tour that therewere situations in which the final dispositions of cases were notcompleted by the 180-day deadline As a result the Chief wasunable to impose discipline and officer conduct was not reportedin the Guidance Advisory Program (ldquoGAPrdquo) system33 The OPM

32 This 180-day deadline can be extended however itappears that such an extension is rarely used If the Chief believes that he may terminate the subject officer the Chief maythen provide notice that the deadline is extended beyond the 180shyday deadline Internal Affairs General Policy A10907(C)

33 The GAP system is a data analysis program developed bythe APD The system was intended to operate as an early warningsystem to identify officers who may be at risk for behaviorinconsistent with policy The self-developed program by the APD

- 33 shy

IA currently refers to a subject officerrsquos chain of command allClass B internal and Class C and D complaints These are administratively closed and do not receive the benefit of aninvestigation Because these complaints are administrativelyclosed the APD fails to produce findings that could be usefuldata for the APDrsquos EWS Not every complaint will merit acomplete IA investigation but every complaint deserves the levelof investigation merited by the circumstances of the complaintIf it is readily apparent from the chain of commandrsquos review ofthe assigned complaint that the complaint is without foundationthen the complaint should be deemed as unfounded If during thecourse of any chain of command investigation the chain ofcommand supervisor determines a complaint meets the objectivecriteria for internal affairs investigation the case should bereferred back to IA for investigation The chain of command should reach a finding after investigation of all complaints itreceives All findings of potential policy violations shouldthen be reviewed by second-level supervisors before findings aresubmitted to the IA Commander for final approval

To ensure that the chain of command staff is equipped toinvestigate and resolve complaints (particularly citizencomplaints) referred to them we recommend that the APD provideappropriate training with an emphasis on interpersonal skillsFurther we recommend that APD provide training on appropriateburdens of proof ie preponderance of the evidence tosupervisors who are responsible for investigating and decidingthe outcome of a complaint and the factors to consider whenevaluating complaint or witness credibility (to ensure that theirrecommendations regarding dispositions are unbiased uniform andlegally appropriate) We also suggest that APD implement apolicy regarding complaint disposition that requires allcomplaints to be recorded in an EWS

Finally we recommend that the APD implement a uniformsystem for recording all complaints resolved through the chain ofcommand During our site visit we interviewed several sergeantswho used different methods of recording resolved informalcomplaints Several supervisors wrote memoranda that remained inofficersrsquo files while other supervisors were unable to identifyany documentation of informally resolved complaints We recommend that the APD uniformly require that officersrsquo personnelfiles include a record of all complaints resolved through theofficersrsquo chain of command We also recommend that APD implementoversight eg an audit or quality assurance mechanism toreview a sampling of chain of command complaints investigationsto ensure that complaints are properly classified andappropriately resolved

- 34 shy

5 Outside Referral of Potentially CriminalAllegations

The APD and the Travis County District Attorneyrsquos (ldquoDArdquo)should work cooperatively when they investigate APD employees forpotentially criminal conduct When an incident or complaint ofofficer misconduct indicates the possibility of criminal conductby the officer the APD should refer the matter to the DArsquosoffice and support as needed a criminal investigation An ongoing criminal investigation however should not foreclose theAPDrsquos ability to conduct a parallel administrative investigationThe APD administrative investigation should proceed on aconcurrent track to the extent it is able without interferingwith the criminal investigation

The APDrsquos current policies and procedure allow for thecompletion of a criminal investigation before the commencement ofan administrative investigation or the imposition of disciplinaryaction Internal Affairs General Policy A10907(B) Althoughthe Chief has the authority to supercede this protocol welearned during our site visit that the APD generally defers toprosecutorsrsquo requests to delay administrative investigationsuntil final disposition of criminal investigations The apparently unintended consequence of delaying the APDrsquos IAinvestigations has been that the APD may be foreclosed fromdisciplining officers that the APD eventually finds committedpolicy violations Under local government code the Chief has180-days from the occurrence of an incident to take disciplinaryaction against an officer Tex Local Govt Code sect 1431017(h)32 For complaints involving conduct that is alsopotentially criminal in nature that 180-deadline runs from thereporting of the incident We learned during our tour that therewere situations in which the final dispositions of cases were notcompleted by the 180-day deadline As a result the Chief wasunable to impose discipline and officer conduct was not reportedin the Guidance Advisory Program (ldquoGAPrdquo) system33 The OPM

32 This 180-day deadline can be extended however itappears that such an extension is rarely used If the Chief believes that he may terminate the subject officer the Chief maythen provide notice that the deadline is extended beyond the 180shyday deadline Internal Affairs General Policy A10907(C)

33 The GAP system is a data analysis program developed bythe APD The system was intended to operate as an early warningsystem to identify officers who may be at risk for behaviorinconsistent with policy The self-developed program by the APD

- 34 shy

5 Outside Referral of Potentially CriminalAllegations

The APD and the Travis County District Attorneyrsquos (ldquoDArdquo)should work cooperatively when they investigate APD employees forpotentially criminal conduct When an incident or complaint ofofficer misconduct indicates the possibility of criminal conductby the officer the APD should refer the matter to the DArsquosoffice and support as needed a criminal investigation An ongoing criminal investigation however should not foreclose theAPDrsquos ability to conduct a parallel administrative investigationThe APD administrative investigation should proceed on aconcurrent track to the extent it is able without interferingwith the criminal investigation

The APDrsquos current policies and procedure allow for thecompletion of a criminal investigation before the commencement ofan administrative investigation or the imposition of disciplinaryaction Internal Affairs General Policy A10907(B) Althoughthe Chief has the authority to supercede this protocol welearned during our site visit that the APD generally defers toprosecutorsrsquo requests to delay administrative investigationsuntil final disposition of criminal investigations The apparently unintended consequence of delaying the APDrsquos IAinvestigations has been that the APD may be foreclosed fromdisciplining officers that the APD eventually finds committedpolicy violations Under local government code the Chief has180-days from the occurrence of an incident to take disciplinaryaction against an officer Tex Local Govt Code sect 1431017(h)32 For complaints involving conduct that is alsopotentially criminal in nature that 180-deadline runs from thereporting of the incident We learned during our tour that therewere situations in which the final dispositions of cases were notcompleted by the 180-day deadline As a result the Chief wasunable to impose discipline and officer conduct was not reportedin the Guidance Advisory Program (ldquoGAPrdquo) system33 The OPM

32 This 180-day deadline can be extended however itappears that such an extension is rarely used If the Chief believes that he may terminate the subject officer the Chief maythen provide notice that the deadline is extended beyond the 180shyday deadline Internal Affairs General Policy A10907(C)

33 The GAP system is a data analysis program developed bythe APD The system was intended to operate as an early warningsystem to identify officers who may be at risk for behaviorinconsistent with policy The self-developed program by the APD

- 35 shy

reported to us that in a sampling of 146 IA investigations 243were not completed by the expiration of the 180-day deadlineThis raises concerns because the 180-day deadline should notnegate officer discipline or reporting to the GAP system The APD should apply the recommended policy revisions for parallelinvestigations to ensure that investigations are conducted in acomplete thorough and timely manner before the 180-daydeadline

Additionally we recommend that APD modify its policies andprocedure to clarify the rights of officers who may be thesubject of a misconduct investigation During an administrativeinvestigation officers suspected of potentially criminalmisconduct should be informed of their rights under Miranda vState of Arizona 384 US 436 (1966) before questioningincluding their rights against self-incrimination and to havecounsel present during questioning Likewise the APD policyshould provide clear guidance to investigators regardingprocedures for when and how to compel statements from officersfor the purposes of an administrative investigation in conformitywith Garrity v New Jersey 385 US 493 (1967)

IV INTERNAL AFFAIRS

The internal affairs component of a law enforcement agencyshould seek to ensure that the integrity of the department ismaintained through a system of internal discipline (or correctiveaction) where fairness and justice are attained by objective andimpartial investigations The APD should acknowledge andcontinue to support the core mission of IA which is to monitorthe behavior of police officers for misconduct while maintainingits objectivity and autonomy

A Staffing and Training

We understand that APD has no policy defining criteria forits selection of IA officers Training and staffing are criticalto the success of IA and the APD We recommend that the APD develop articulable selection criteria for all IA positionsSuch criteria should include an evaluation of the applicantrsquosperformance including complaint and disciplinary histories toensure that only officers with unquestioned integrity and ethicsare selected to serve as IA investigators and supervisors The APD should also take measures to assign officers with extensive

was not fully functional during our review See ldquoEarly Warning Systemrdquo below in Section VI

- 36 shy

investigative skills to IA We also recommend that APD remove investigators whose conduct while serving as IA officers wouldhave disqualified them from selection for IA

We also understand that APD has no formal IA policies fortraining witness interviewing nor advance level supervisiontraining We recommend that APD implement policies proceduresand training for IA personnel specifically to address theabove-mentioned areas According to APD personnel weinterviewed the only training in IA that they ever received wasldquoon the jobrdquo Moreover we learned that supervisors and managershave never received any advanced level training regardingsupervising and managing an internal affairs unit To ensure consistency and investigative integrity we recommend that allAPD officers responsible for investigating internal affairscomplaints receive specialized training in internal affairsinvestigations interviewing and interrogation skills ethicsand APD administrative and disciplinary procedure We also recommend that APD provide its IA supervisors with training ininternal affairs management from a certified police internalaffairs training program We suggest that the APD providecontinuing law enforcement training to both IA detectives andsupervisors concentrating on IA-specific topics AdditionallyIA should provide in-service training to first-line supervisorsregarding their roles in the complaint process and IAinvestigations As discussed later in this letter like othersupervisors IA supervisors should receive training beforeassuming supervisory responsibilities

B Investigative Process

Any revision to APDrsquos IA policy should clearly define thenature and scope of IA investigations In the course of our investigation we heard complaints that the current complaintprocedure can be erratic and irregular For example OPMpersonnel informed us that when additional policy violations arediscovered during complaint investigations IA will charge someAPD personnel with those violations but will not charge othersdue to an interest in not ldquostackingrdquo charges against officersAlso citizens informed us that IA did not always investigatetheir complaints or that some complainants were told to returnto the IA office numerous times before IA would accept acomplaint Moreover whereas the current IA policy explicitlysets forth the categorizations of citizen complaints asdiscussed above there is no such detail on the conduct of IAinvestigations Moreover the current policy for IAinvestigative process sets forth numerous protections for thesubject officers but says very little about what is actually to

- 37 shy

be done to investigate Internal Affairs General Policy A10910The lack of formal structured and consistent policies posesdifficulties to the complainants as well as the involvedofficers Both complainants and involved officers are entitledto know in advance what their rights and responsibilities are inthe course of an IA investigation

In defining the scope and nature of IA investigations theAPD policy should provide that any investigation include aninterview with the complainant and all relevant witnessescitizens or police The policy should require that the APDobtain and analyze all available forensic (such as bullets)evidence The policy should require that supervisors or IApersonnel on the scene of an incident take pictures collectevidence and conduct interviews The policy should require allsubject and witness officers to produce all statements reportsand notes completed in the course of duty that are related to theinvestigation IA investigators should keep all of these itemsin the investigative file along with the IA investigatorrsquosnotes We recommend that the policy require audio or videorecording of all interviews for IA investigations

We also recommend that the investigation of complaints begoverned by defined time lines set forth in a modified policyEach step of the investigation should have a policy-specificdeadline For example we recommend that the APDrsquos policyrequire that absent exigent circumstances the IA investigationbe completed in 90 days Further the time lines should besubject to adjustment only when approved in writing by IAsupervisory personnel Each investigative file should have achronology log attached to it on which to list dailyinvestigative activity or notes associated with theinvestigation The log should also list the location ofdocuments and evidence associated with the investigation

As discussed with respect to the classification system werecommend that IA advise complainants of the status of theinvestigation of their complaints If a complainant requests towithdraw his or her complaint we recommend that IA continue itsinvestigation to determine whether or not a violation of policyoccurred It is inappropriate for a complainant to unilaterallyterminate a complaint without an investigation Ultimately ifIA finds no policy violation occurred the record of theinvestigation should include a written acknowledgment executed bythe complainant agreeing to the resolution of the complaintThis would evidence that the APD has not pressured complainantsfor lesser forms of resolution or withdrawal of their complaintsWe recommend that at the conclusion of every investigation IA

- 38 shy

notify all relevant parties including the complainant of thefinal disposition of the complaint If the complainantrsquosallegation is sustained the letter should also indicate whetherthe APD will take remedial action

If during the course of an IA investigation collateralmisconduct is discovered IA should institute investigation ofsuch misconduct The IA policy should be clear that if a policyviolation is uncovered IA will identify that violation andinvestigate or refer it as appropriate Likewise the policyshould state that any criminal conduct uncovered will also leadto a referral for criminal investigation

If a complaint is ultimately sustained the APD should goback to the documentation regarding the incident from which thecomplaint was generated to assess supervisory and managementaccountability The APD should review these documents to ensure proper supervisory review of the incident and reporting of anyidentifiable policy violations for IA investigation If the subject officerrsquos supervisor failed to report a known policyviolation for example he or she should then be held responsiblefor failure to report

C Proactive Investigations

We learned during our tour that the APD self-describes itsIA actions as reactive rather than proactive Solely reactiveIA investigations do not comport with best police practicesProactive IA investigation should include both integrity testsand record reviews to identify potential IA issues

During our tour we also learned that IA was not randomlyreviewing use of force reports to ensure that supervisors weremaking a qualitative review of their subordinates use of forcereports We recommend that the APDrsquos IA act proactively inreviewing records to identify potential misconduct issues We also recommend that the APD review use of force reports on aquarterly basis to identify whether a basis exists to investigateany reported uses of force for potential violations of policy orfor referral if necessary for criminal investigationAdditionally many other similarly sized police departmentsroutinely have their IA unit perform an annual check of statedriving records for violations or suspended licenses IA could also perform annual checks of local court dockets for civil suitsthat may have bearing on officersrsquo behavior on duty The APD also should consider having a formalized process to solicit fromthe DA and City Attorneyrsquos office information on APD officersrsquoperformance in judicial proceedings eg showing up for court

- 39 shy

successful motions to suppress based on officersrsquo conduct orperceived truthfulness of officersrsquo court or depositiontestimony

The APD should consider developing a system to monitorevaluate and conduct affirmative investigations using targetedintegrity tests The integrity tests should be targeted todetermine whether or not evidence of criminal misconduct that violate policy exists when there is an accusation or reason tobelieve that the subject officer may violate APD law and policyAny such system should be memorialized in a policy to provideclear guidance regarding the proper and appropriate use ofintegrity tests

V OFFICE OF THE POLICE MONITORCITIZEN REVIEW PANEL

The OPM is a city department independent from the APD butit works closely with the APD to monitor in a limited fashionthe conduct of IA Though as described the IA policy providesfor the intake of complaints through all APD personnel the OPMroutinely handles the intake of citizen complaints The OPM office has become the primary but not exclusive location forreceipt of complaints We learned that citizens typically mustgo to the OPMrsquos office during business hours in order to filecomplaints We further learned that citizens encountered difficulty traveling to OPMrsquos remote office In order to facilitate citizensrsquo desired contact with legitimate OPM werecommend that the OPM conduct more community outreach byappearing at community forums and keep extended hours even if onlimited days at accessible community locations so that theprocess for accepting complaints can be made readilyaccessible34 We also recommend that the OPM make its website bilingual for the convenience and use of members of the communitywho cannot read English

OPM typically conducts initial complainant interviews thenforwards all complaints to IA for initial evaluation andcomplaint classification Depending upon IArsquos classification ofthe complaint either IA or the chain of command should theninvestigate the complaint The OPM does not conduct its own

34 We understand that the APDrsquos contract with the APA forbids the OPM from soliciting citizen complaints Provided that there is no change in this agreement establishing communitylocations for the collection of complaints should not rise to thelevel solicitation of complaints by the OPM

- 36 shy

investigative skills to IA We also recommend that APD remove investigators whose conduct while serving as IA officers wouldhave disqualified them from selection for IA

We also understand that APD has no formal IA policies fortraining witness interviewing nor advance level supervisiontraining We recommend that APD implement policies proceduresand training for IA personnel specifically to address theabove-mentioned areas According to APD personnel weinterviewed the only training in IA that they ever received wasldquoon the jobrdquo Moreover we learned that supervisors and managershave never received any advanced level training regardingsupervising and managing an internal affairs unit To ensure consistency and investigative integrity we recommend that allAPD officers responsible for investigating internal affairscomplaints receive specialized training in internal affairsinvestigations interviewing and interrogation skills ethicsand APD administrative and disciplinary procedure We also recommend that APD provide its IA supervisors with training ininternal affairs management from a certified police internalaffairs training program We suggest that the APD providecontinuing law enforcement training to both IA detectives andsupervisors concentrating on IA-specific topics AdditionallyIA should provide in-service training to first-line supervisorsregarding their roles in the complaint process and IAinvestigations As discussed later in this letter like othersupervisors IA supervisors should receive training beforeassuming supervisory responsibilities

B Investigative Process

Any revision to APDrsquos IA policy should clearly define thenature and scope of IA investigations In the course of our investigation we heard complaints that the current complaintprocedure can be erratic and irregular For example OPMpersonnel informed us that when additional policy violations arediscovered during complaint investigations IA will charge someAPD personnel with those violations but will not charge othersdue to an interest in not ldquostackingrdquo charges against officersAlso citizens informed us that IA did not always investigatetheir complaints or that some complainants were told to returnto the IA office numerous times before IA would accept acomplaint Moreover whereas the current IA policy explicitlysets forth the categorizations of citizen complaints asdiscussed above there is no such detail on the conduct of IAinvestigations Moreover the current policy for IAinvestigative process sets forth numerous protections for thesubject officers but says very little about what is actually to

- 37 shy

be done to investigate Internal Affairs General Policy A10910The lack of formal structured and consistent policies posesdifficulties to the complainants as well as the involvedofficers Both complainants and involved officers are entitledto know in advance what their rights and responsibilities are inthe course of an IA investigation

In defining the scope and nature of IA investigations theAPD policy should provide that any investigation include aninterview with the complainant and all relevant witnessescitizens or police The policy should require that the APDobtain and analyze all available forensic (such as bullets)evidence The policy should require that supervisors or IApersonnel on the scene of an incident take pictures collectevidence and conduct interviews The policy should require allsubject and witness officers to produce all statements reportsand notes completed in the course of duty that are related to theinvestigation IA investigators should keep all of these itemsin the investigative file along with the IA investigatorrsquosnotes We recommend that the policy require audio or videorecording of all interviews for IA investigations

We also recommend that the investigation of complaints begoverned by defined time lines set forth in a modified policyEach step of the investigation should have a policy-specificdeadline For example we recommend that the APDrsquos policyrequire that absent exigent circumstances the IA investigationbe completed in 90 days Further the time lines should besubject to adjustment only when approved in writing by IAsupervisory personnel Each investigative file should have achronology log attached to it on which to list dailyinvestigative activity or notes associated with theinvestigation The log should also list the location ofdocuments and evidence associated with the investigation

As discussed with respect to the classification system werecommend that IA advise complainants of the status of theinvestigation of their complaints If a complainant requests towithdraw his or her complaint we recommend that IA continue itsinvestigation to determine whether or not a violation of policyoccurred It is inappropriate for a complainant to unilaterallyterminate a complaint without an investigation Ultimately ifIA finds no policy violation occurred the record of theinvestigation should include a written acknowledgment executed bythe complainant agreeing to the resolution of the complaintThis would evidence that the APD has not pressured complainantsfor lesser forms of resolution or withdrawal of their complaintsWe recommend that at the conclusion of every investigation IA

- 38 shy

notify all relevant parties including the complainant of thefinal disposition of the complaint If the complainantrsquosallegation is sustained the letter should also indicate whetherthe APD will take remedial action

If during the course of an IA investigation collateralmisconduct is discovered IA should institute investigation ofsuch misconduct The IA policy should be clear that if a policyviolation is uncovered IA will identify that violation andinvestigate or refer it as appropriate Likewise the policyshould state that any criminal conduct uncovered will also leadto a referral for criminal investigation

If a complaint is ultimately sustained the APD should goback to the documentation regarding the incident from which thecomplaint was generated to assess supervisory and managementaccountability The APD should review these documents to ensure proper supervisory review of the incident and reporting of anyidentifiable policy violations for IA investigation If the subject officerrsquos supervisor failed to report a known policyviolation for example he or she should then be held responsiblefor failure to report

C Proactive Investigations

We learned during our tour that the APD self-describes itsIA actions as reactive rather than proactive Solely reactiveIA investigations do not comport with best police practicesProactive IA investigation should include both integrity testsand record reviews to identify potential IA issues

During our tour we also learned that IA was not randomlyreviewing use of force reports to ensure that supervisors weremaking a qualitative review of their subordinates use of forcereports We recommend that the APDrsquos IA act proactively inreviewing records to identify potential misconduct issues We also recommend that the APD review use of force reports on aquarterly basis to identify whether a basis exists to investigateany reported uses of force for potential violations of policy orfor referral if necessary for criminal investigationAdditionally many other similarly sized police departmentsroutinely have their IA unit perform an annual check of statedriving records for violations or suspended licenses IA could also perform annual checks of local court dockets for civil suitsthat may have bearing on officersrsquo behavior on duty The APD also should consider having a formalized process to solicit fromthe DA and City Attorneyrsquos office information on APD officersrsquoperformance in judicial proceedings eg showing up for court

- 39 shy

successful motions to suppress based on officersrsquo conduct orperceived truthfulness of officersrsquo court or depositiontestimony

The APD should consider developing a system to monitorevaluate and conduct affirmative investigations using targetedintegrity tests The integrity tests should be targeted todetermine whether or not evidence of criminal misconduct that violate policy exists when there is an accusation or reason tobelieve that the subject officer may violate APD law and policyAny such system should be memorialized in a policy to provideclear guidance regarding the proper and appropriate use ofintegrity tests

V OFFICE OF THE POLICE MONITORCITIZEN REVIEW PANEL

The OPM is a city department independent from the APD butit works closely with the APD to monitor in a limited fashionthe conduct of IA Though as described the IA policy providesfor the intake of complaints through all APD personnel the OPMroutinely handles the intake of citizen complaints The OPM office has become the primary but not exclusive location forreceipt of complaints We learned that citizens typically mustgo to the OPMrsquos office during business hours in order to filecomplaints We further learned that citizens encountered difficulty traveling to OPMrsquos remote office In order to facilitate citizensrsquo desired contact with legitimate OPM werecommend that the OPM conduct more community outreach byappearing at community forums and keep extended hours even if onlimited days at accessible community locations so that theprocess for accepting complaints can be made readilyaccessible34 We also recommend that the OPM make its website bilingual for the convenience and use of members of the communitywho cannot read English

OPM typically conducts initial complainant interviews thenforwards all complaints to IA for initial evaluation andcomplaint classification Depending upon IArsquos classification ofthe complaint either IA or the chain of command should theninvestigate the complaint The OPM does not conduct its own

34 We understand that the APDrsquos contract with the APA forbids the OPM from soliciting citizen complaints Provided that there is no change in this agreement establishing communitylocations for the collection of complaints should not rise to thelevel solicitation of complaints by the OPM

- 37 shy

be done to investigate Internal Affairs General Policy A10910The lack of formal structured and consistent policies posesdifficulties to the complainants as well as the involvedofficers Both complainants and involved officers are entitledto know in advance what their rights and responsibilities are inthe course of an IA investigation

In defining the scope and nature of IA investigations theAPD policy should provide that any investigation include aninterview with the complainant and all relevant witnessescitizens or police The policy should require that the APDobtain and analyze all available forensic (such as bullets)evidence The policy should require that supervisors or IApersonnel on the scene of an incident take pictures collectevidence and conduct interviews The policy should require allsubject and witness officers to produce all statements reportsand notes completed in the course of duty that are related to theinvestigation IA investigators should keep all of these itemsin the investigative file along with the IA investigatorrsquosnotes We recommend that the policy require audio or videorecording of all interviews for IA investigations

We also recommend that the investigation of complaints begoverned by defined time lines set forth in a modified policyEach step of the investigation should have a policy-specificdeadline For example we recommend that the APDrsquos policyrequire that absent exigent circumstances the IA investigationbe completed in 90 days Further the time lines should besubject to adjustment only when approved in writing by IAsupervisory personnel Each investigative file should have achronology log attached to it on which to list dailyinvestigative activity or notes associated with theinvestigation The log should also list the location ofdocuments and evidence associated with the investigation

As discussed with respect to the classification system werecommend that IA advise complainants of the status of theinvestigation of their complaints If a complainant requests towithdraw his or her complaint we recommend that IA continue itsinvestigation to determine whether or not a violation of policyoccurred It is inappropriate for a complainant to unilaterallyterminate a complaint without an investigation Ultimately ifIA finds no policy violation occurred the record of theinvestigation should include a written acknowledgment executed bythe complainant agreeing to the resolution of the complaintThis would evidence that the APD has not pressured complainantsfor lesser forms of resolution or withdrawal of their complaintsWe recommend that at the conclusion of every investigation IA

- 38 shy

notify all relevant parties including the complainant of thefinal disposition of the complaint If the complainantrsquosallegation is sustained the letter should also indicate whetherthe APD will take remedial action

If during the course of an IA investigation collateralmisconduct is discovered IA should institute investigation ofsuch misconduct The IA policy should be clear that if a policyviolation is uncovered IA will identify that violation andinvestigate or refer it as appropriate Likewise the policyshould state that any criminal conduct uncovered will also leadto a referral for criminal investigation

If a complaint is ultimately sustained the APD should goback to the documentation regarding the incident from which thecomplaint was generated to assess supervisory and managementaccountability The APD should review these documents to ensure proper supervisory review of the incident and reporting of anyidentifiable policy violations for IA investigation If the subject officerrsquos supervisor failed to report a known policyviolation for example he or she should then be held responsiblefor failure to report

C Proactive Investigations

We learned during our tour that the APD self-describes itsIA actions as reactive rather than proactive Solely reactiveIA investigations do not comport with best police practicesProactive IA investigation should include both integrity testsand record reviews to identify potential IA issues

During our tour we also learned that IA was not randomlyreviewing use of force reports to ensure that supervisors weremaking a qualitative review of their subordinates use of forcereports We recommend that the APDrsquos IA act proactively inreviewing records to identify potential misconduct issues We also recommend that the APD review use of force reports on aquarterly basis to identify whether a basis exists to investigateany reported uses of force for potential violations of policy orfor referral if necessary for criminal investigationAdditionally many other similarly sized police departmentsroutinely have their IA unit perform an annual check of statedriving records for violations or suspended licenses IA could also perform annual checks of local court dockets for civil suitsthat may have bearing on officersrsquo behavior on duty The APD also should consider having a formalized process to solicit fromthe DA and City Attorneyrsquos office information on APD officersrsquoperformance in judicial proceedings eg showing up for court

- 39 shy

successful motions to suppress based on officersrsquo conduct orperceived truthfulness of officersrsquo court or depositiontestimony

The APD should consider developing a system to monitorevaluate and conduct affirmative investigations using targetedintegrity tests The integrity tests should be targeted todetermine whether or not evidence of criminal misconduct that violate policy exists when there is an accusation or reason tobelieve that the subject officer may violate APD law and policyAny such system should be memorialized in a policy to provideclear guidance regarding the proper and appropriate use ofintegrity tests

V OFFICE OF THE POLICE MONITORCITIZEN REVIEW PANEL

The OPM is a city department independent from the APD butit works closely with the APD to monitor in a limited fashionthe conduct of IA Though as described the IA policy providesfor the intake of complaints through all APD personnel the OPMroutinely handles the intake of citizen complaints The OPM office has become the primary but not exclusive location forreceipt of complaints We learned that citizens typically mustgo to the OPMrsquos office during business hours in order to filecomplaints We further learned that citizens encountered difficulty traveling to OPMrsquos remote office In order to facilitate citizensrsquo desired contact with legitimate OPM werecommend that the OPM conduct more community outreach byappearing at community forums and keep extended hours even if onlimited days at accessible community locations so that theprocess for accepting complaints can be made readilyaccessible34 We also recommend that the OPM make its website bilingual for the convenience and use of members of the communitywho cannot read English

OPM typically conducts initial complainant interviews thenforwards all complaints to IA for initial evaluation andcomplaint classification Depending upon IArsquos classification ofthe complaint either IA or the chain of command should theninvestigate the complaint The OPM does not conduct its own

34 We understand that the APDrsquos contract with the APA forbids the OPM from soliciting citizen complaints Provided that there is no change in this agreement establishing communitylocations for the collection of complaints should not rise to thelevel solicitation of complaints by the OPM

- 38 shy

notify all relevant parties including the complainant of thefinal disposition of the complaint If the complainantrsquosallegation is sustained the letter should also indicate whetherthe APD will take remedial action

If during the course of an IA investigation collateralmisconduct is discovered IA should institute investigation ofsuch misconduct The IA policy should be clear that if a policyviolation is uncovered IA will identify that violation andinvestigate or refer it as appropriate Likewise the policyshould state that any criminal conduct uncovered will also leadto a referral for criminal investigation

If a complaint is ultimately sustained the APD should goback to the documentation regarding the incident from which thecomplaint was generated to assess supervisory and managementaccountability The APD should review these documents to ensure proper supervisory review of the incident and reporting of anyidentifiable policy violations for IA investigation If the subject officerrsquos supervisor failed to report a known policyviolation for example he or she should then be held responsiblefor failure to report

C Proactive Investigations

We learned during our tour that the APD self-describes itsIA actions as reactive rather than proactive Solely reactiveIA investigations do not comport with best police practicesProactive IA investigation should include both integrity testsand record reviews to identify potential IA issues

During our tour we also learned that IA was not randomlyreviewing use of force reports to ensure that supervisors weremaking a qualitative review of their subordinates use of forcereports We recommend that the APDrsquos IA act proactively inreviewing records to identify potential misconduct issues We also recommend that the APD review use of force reports on aquarterly basis to identify whether a basis exists to investigateany reported uses of force for potential violations of policy orfor referral if necessary for criminal investigationAdditionally many other similarly sized police departmentsroutinely have their IA unit perform an annual check of statedriving records for violations or suspended licenses IA could also perform annual checks of local court dockets for civil suitsthat may have bearing on officersrsquo behavior on duty The APD also should consider having a formalized process to solicit fromthe DA and City Attorneyrsquos office information on APD officersrsquoperformance in judicial proceedings eg showing up for court

- 39 shy

successful motions to suppress based on officersrsquo conduct orperceived truthfulness of officersrsquo court or depositiontestimony

The APD should consider developing a system to monitorevaluate and conduct affirmative investigations using targetedintegrity tests The integrity tests should be targeted todetermine whether or not evidence of criminal misconduct that violate policy exists when there is an accusation or reason tobelieve that the subject officer may violate APD law and policyAny such system should be memorialized in a policy to provideclear guidance regarding the proper and appropriate use ofintegrity tests

V OFFICE OF THE POLICE MONITORCITIZEN REVIEW PANEL

The OPM is a city department independent from the APD butit works closely with the APD to monitor in a limited fashionthe conduct of IA Though as described the IA policy providesfor the intake of complaints through all APD personnel the OPMroutinely handles the intake of citizen complaints The OPM office has become the primary but not exclusive location forreceipt of complaints We learned that citizens typically mustgo to the OPMrsquos office during business hours in order to filecomplaints We further learned that citizens encountered difficulty traveling to OPMrsquos remote office In order to facilitate citizensrsquo desired contact with legitimate OPM werecommend that the OPM conduct more community outreach byappearing at community forums and keep extended hours even if onlimited days at accessible community locations so that theprocess for accepting complaints can be made readilyaccessible34 We also recommend that the OPM make its website bilingual for the convenience and use of members of the communitywho cannot read English

OPM typically conducts initial complainant interviews thenforwards all complaints to IA for initial evaluation andcomplaint classification Depending upon IArsquos classification ofthe complaint either IA or the chain of command should theninvestigate the complaint The OPM does not conduct its own

34 We understand that the APDrsquos contract with the APA forbids the OPM from soliciting citizen complaints Provided that there is no change in this agreement establishing communitylocations for the collection of complaints should not rise to thelevel solicitation of complaints by the OPM

- 39 shy

successful motions to suppress based on officersrsquo conduct orperceived truthfulness of officersrsquo court or depositiontestimony

The APD should consider developing a system to monitorevaluate and conduct affirmative investigations using targetedintegrity tests The integrity tests should be targeted todetermine whether or not evidence of criminal misconduct that violate policy exists when there is an accusation or reason tobelieve that the subject officer may violate APD law and policyAny such system should be memorialized in a policy to provideclear guidance regarding the proper and appropriate use ofintegrity tests

V OFFICE OF THE POLICE MONITORCITIZEN REVIEW PANEL

The OPM is a city department independent from the APD butit works closely with the APD to monitor in a limited fashionthe conduct of IA Though as described the IA policy providesfor the intake of complaints through all APD personnel the OPMroutinely handles the intake of citizen complaints The OPM office has become the primary but not exclusive location forreceipt of complaints We learned that citizens typically mustgo to the OPMrsquos office during business hours in order to filecomplaints We further learned that citizens encountered difficulty traveling to OPMrsquos remote office In order to facilitate citizensrsquo desired contact with legitimate OPM werecommend that the OPM conduct more community outreach byappearing at community forums and keep extended hours even if onlimited days at accessible community locations so that theprocess for accepting complaints can be made readilyaccessible34 We also recommend that the OPM make its website bilingual for the convenience and use of members of the communitywho cannot read English

OPM typically conducts initial complainant interviews thenforwards all complaints to IA for initial evaluation andcomplaint classification Depending upon IArsquos classification ofthe complaint either IA or the chain of command should theninvestigate the complaint The OPM does not conduct its own

34 We understand that the APDrsquos contract with the APA forbids the OPM from soliciting citizen complaints Provided that there is no change in this agreement establishing communitylocations for the collection of complaints should not rise to thelevel solicitation of complaints by the OPM

- 40 shy

investigations of allegations of misconduct Instead the OPMreviews the completed investigations conducted by IA

In order for the OPM to assist citizens in the complaintprocess and for OPM to have legitimate oversight of the complaintprocess the OPM needs access to information from the APD Our interviews with OPM personnel revealed that the OPM did not haveaccess to incident reports or police reports during the initialstage of the complaint process which limited the OPMrsquos abilityto assist citizens in the complaint process Similarly the OPMreported to us that IA frequently does not respond to the OPMrsquosrequests for information The OPM has even institutionalized the expectation that IA will not respond to the OPM the OPMrsquos intake process flowchart includes two separate steps in theprocess for IArsquos failure to respond to the OPMrsquos correspondenceon informal complaints

To provide oversight over the APDrsquos complaint process and toaid in ensuring that complaints are handled in an objective andthorough manner we recommend that APD allow the OPM access topolice reports and incident reports at the inception of allinvestigations To ensure integrity of the IA process as we havesuggested herein we recommend that the APD implement policiesand procedures for the OPM to routinely review all aspects of theAPD complaint process including assignment of complaintclassification of complaints and completeness and sufficiency ofinvestigations The APD can then use this audit process toimprove accountability address issues regarding classificationand evaluate the performance of its officers and investigatorsWe also recommend that the OPM be used to review IA investigations and track records from an outside perspective forthe benefit of the community This would aid in ensuring thatcitizen complaints are handled in an objective and thoroughmanner and provide an independent informed report to thecommunity

Finally the Police Monitor also chairs the Citizen ReviewPanel (ldquoCRPrdquo) The CRP is a group of citizens assembled toreview police complaint incidents referred to them after the IAprocess concludes The CRP also makes recommendations to IA Either a complainant may refer his or her complaint to the CRPwithin 30 days of the notice of the outcome of the IAinvestigation or the OPM may refer complaints to the CRP withinfive days if complaints involve certain types of allegationseg critical incidents or bias-based misconduct Internal Affairs General Policy A10914 The policy contains norequirement that the APD respond to any recommendations by theCRP The OPM has informed us that IA responded to only 15 of 24

- 41 shy

recommendations from the CRP or OPM ie a 375 failure torespond rate We recommend that the APDrsquos policies shouldclearly set forth the expectations for the use of the CRP and theresponse the APD is required to undertake Specifically werecommend that the IA commander report to the Chief on allresponses to CRP recommendations A written copy of thisresponse should be furnished to the CRP through the OPM

VI DISCIPLINE

We understand that the APD is currently considering theimplementation of a discipline matrix35 The APD informed us that stake holders will be involved in the process of developingthe matrix The OPM was not familiar with the plannedimplementation of the matrix We recommend that the APD completethe development of a discipline matrix Community and OPMsupport are important to this process but should not delayimplementation of a matrix Such a matrix should detail the levels of discipline available -- eg retraining verbalcounseling letters of counseling forfeiture of leave timesuspension demotion and termination -- to address violations ofpolicy The matrix should specify for each type of policyviolation what level of discipline shall be utilized forsustained violations of policy in the first instance secondinstance etc and what factors may mitigate or aggravate levelsof discipline to be imposed It is critical that the APD have a transparent and fair disciplinary system and that officers areclearly informed of potential consequences of various actions

VII SUPERVISORY OVERSIGHT

The APD should ensure that clear chain of command supervision and direction is provided to APD personnel

A Direct Supervision of Line Officers

We have frequently been informed by APD personnel of theirperception that with the current management system supervisorsabrogated to IA the line supervisorsrsquo responsibility to superviseofficers Many at both the supervisory and the line officerlevel identified ldquomanagement by IArdquo as a concern APD supervisors should be empowered to take ownership of their

35 A discipline matrix is a formal schedule fordisciplinary actions specifying both the presumptive action tobe taken for each type of misconduct and any adjustment to bemade based on an officerrsquos previous disciplinary record

- 41 shy

recommendations from the CRP or OPM ie a 375 failure torespond rate We recommend that the APDrsquos policies shouldclearly set forth the expectations for the use of the CRP and theresponse the APD is required to undertake Specifically werecommend that the IA commander report to the Chief on allresponses to CRP recommendations A written copy of thisresponse should be furnished to the CRP through the OPM

VI DISCIPLINE

We understand that the APD is currently considering theimplementation of a discipline matrix35 The APD informed us that stake holders will be involved in the process of developingthe matrix The OPM was not familiar with the plannedimplementation of the matrix We recommend that the APD completethe development of a discipline matrix Community and OPMsupport are important to this process but should not delayimplementation of a matrix Such a matrix should detail the levels of discipline available -- eg retraining verbalcounseling letters of counseling forfeiture of leave timesuspension demotion and termination -- to address violations ofpolicy The matrix should specify for each type of policyviolation what level of discipline shall be utilized forsustained violations of policy in the first instance secondinstance etc and what factors may mitigate or aggravate levelsof discipline to be imposed It is critical that the APD have a transparent and fair disciplinary system and that officers areclearly informed of potential consequences of various actions

VII SUPERVISORY OVERSIGHT

The APD should ensure that clear chain of command supervision and direction is provided to APD personnel

A Direct Supervision of Line Officers

We have frequently been informed by APD personnel of theirperception that with the current management system supervisorsabrogated to IA the line supervisorsrsquo responsibility to superviseofficers Many at both the supervisory and the line officerlevel identified ldquomanagement by IArdquo as a concern APD supervisors should be empowered to take ownership of their

35 A discipline matrix is a formal schedule fordisciplinary actions specifying both the presumptive action tobe taken for each type of misconduct and any adjustment to bemade based on an officerrsquos previous disciplinary record

- 42 shy

supervisory role in order to ensure accountability forsupervision up the chain of command

In addition to the previously discussed recommendations thatAPD supervisors go on site and review all use of force incidents(above unresisted handcuffing) we recommend that the APDimplement policies and procedures for APD supervisors toroutinely review all aspects of APD officer conduct APD supervisors should review the following for officers under his orher command (1) all uses of force as set forth above(2) probable cause for arrests and the appropriateness of chargesfiled (3) reasonable suspicion for stops and searches that donot result in an arrest and (4) a minimum sample of mobile videorecording devices (ldquoMVRrdquo) recordings each month APD policyshould require supervisors to review and approve all arrestreports and search-and-seizure reports and to record theirapproval on the arrest or incident reports by handwritten orelectronic signature We also have been informed that sergeantsspend much of their time inside Even with the daunting tasks ofreview of line officerrsquos reports sergeants need to go to thefield to (1) supervise first hand and (2) investigate uses offorce on their own Accordingly front-line supervisors musttake ownership of their supervisory role and this ownershipshould likewise flow up the chain of command

We further recommend that senior supervisors meet annuallywith every APD officer to discuss positive aspects of his or herpolice work his or her complaint history if any and to discussany problems or concerns officers may have concerning thedepartment

B Supervision of Specialized Units

During our investigation we learned that the APD hasseveral specialized units including Street Response Units(ldquoSRUsrdquo) The APDrsquos supervision of specialized units is largelyoutside of the normal chain of command for patrol units We also discussed the APDrsquos SRUs with both APD personnel and citizensThe APD provided us with the order under which SRUs operatesStreet Response Standard Operating Procedure (ldquoSOPrdquo) June13 2006 The SOP gives broad latitude regarding the duties ofthe SRUs without identifying specific tasks APD personnelinformed us that the SRUs have been used for crime sweep effortsserving warrants and other high risk police procedures It is not surprising then the APD officers reported to us that SRUsmay encounter situations calling for the use of force morefrequently than conventional patrol assignments Given the SRUsrsquo

- 43 shy

high risk tasks and potential for use of force the APD should bekeenly aware of the supervision of SRUs

Supervision of SRUs is not clear however The SOP directs that SRUs are to ldquosupport Area Commandsrdquo but fails to definewhat specific tasks the SRUs are authorized to do The SOP does not set forth who -- SRUs or the area commands -- determines what support SRUs should give We understand that SRU sergeantsamong other things are to approve and coordinate search andarrest warrants and brief support lieutenants on the SRUsrsquoactivities The SOP does not specify any duties for supportlieutenants The supervision of SRUs is therefore truncated atthe sergeant level The sergeants set the tone for SRUs ratherthan direction coming from above on the chain of command

The SRUsrsquo sergeants also select who may become a member ofthe SRUs The SOP does not set forth objective selectioncriteria for membership on SRUs eg acceptable disciplinaryhistory The SOP requires only ldquocomplaint history acceptable tothe area command staffrdquo The specialized units should not selectits own members Nor should any single member stay in the samespecialized units for too great a period of time We recommend that the APD command develop objective selection criteria formembership in SRUs or other specialized units including arequirement that applicants not have any sustained findingsminimally on use of excessive force within the preceding 24months Similarly substantiated findings should subjectofficers already in specialized units to exclusion from thoseunits for 24 months

We also recommend the APD develop a clear chain of commandfor SRUs At the time of our on site visits SRUs operatedwithin each of the APDrsquos geographic area commands We have been informed however that the APD plans to consolidate the commandof SRUs from each area to a central command We are also informed that SRUs will remain stationed in the geographicregions they now serve but will answer to a centralized chain ofcommand This plan does not yet appear to address the potentialfor disagreement between area commanders and SRUs that will sharethe same command area but not the same chain of command

C Preparation for Supervisory Roles

The APD appears to be undergoing a period of transitionMuch of the APDrsquos command staff is largely new to their currentroles Through interviews with command staff we learned that itappears to be routine practice for high level supervisors torotate frequently one to one and one half years of on average to

- 44 shy

different commands These positions are critical and havingcontinuity is important We noted that there were no formal policies governing senior command training prior to reassignmentto new commands including IA Most supervisors reported havingreceived on-the-job training Some supervisors had receivedformalized supervisory training and some had not Formalized supervisory training for all supervisors would enhance effectivemanagement and communications We recommend that new commandersat the time of promotion receive training on the management ofthe division before assuming leadership of the division Command staff should be permitted the opportunity to attend appropriatesupervisory training from outside organizations when neededShifts between command assignments should include a transitionplan between the outgoing and incoming commanders We also recommend that the APD establish a more formal process for theselection of command staff This should include articulable criteria for promotion and assignment

Like command staff mid-level managers would benefit frompreparation for leadership roles We have been informed that the APD has considered a plan to mentor its sergeants We recommend that the APD bring such a plan to fruition Similarly supportlieutenants could be set up in leadership roles to prepare forpromotion

VIII EARLY WARNING SYSTEM36

APD command staff should examine and review officer conduct on a regular basis as a proactive measure to minimize and detectmisconduct and to identify training and policy issues

We understand the APD has been developing its own EWS The APDrsquos EWS is known as the Guidance Advisory Program (ldquoGAPrdquo)system The GAP is an formal data collection and analysis systemdesigned to monitor certain officer conduct The GAP focuses on six performance indicators internal affairs complaints number

36 An EWS is a data-based police management tooldesignated to identify potentially problematic behavior and allowearly intervention to correct misconduct and assist inidentifying deficiencies in supervision management andpolicies Police departments typically use EWS data regularlyand affirmatively to promote best professional police practicesaccountability and proactive management to manage the risk ofpolice misconduct and potential liability to evaluate and auditthe performance of officers and units and to identify manageand control at-risk officers conduct and situations

- 45 shy

of use of force reports compared to number of arrests officer asvictim reports sick leave issues collisions and pursuitsThrough our conversations with APD Command Staff and officers welearned that the APD recognizes that the GAP needs improvementWe also are aware that the APD is currently attempting toredesign adjust and improve the GAP As currently constructedthe GAP does not adequately identify problematic officerbehavior Moreover the APD inadequately uses the GAP to detectproblematic trends in officer behavior The APD is therefore unable to effectively use the GAP to aid in intervention andcorrection of officers as needed

The GAP is divided into two main components managementreports and predictive modeling alerts The management reportscomponent gathers information from several APD or City databasesincluding the Cityrsquos human resources data system IA computeraided dispatch records use of force reports and pursuitreports The GAP uses an automated process to identify datapoints which are then analyzed and placed in a management chartThe management chart serves as a graphical display of eachofficerrsquos measure of the six main criteria categories and theirwork units The predictive-modeling-alerts component analyzesdata to identify current officers whose data show similar workpatterns to officers who have either been disciplined orterminated According to the predictive modeling alertsofficers who are identified in need of early intervention aresupposed to be contacted by the officerrsquos chain of command

We learned that neither component of the GAP functions asthe APD anticipated The components neither set precisethresholds for identifying officer conduct nor ensure effectiveofficer management review We also learned that there was no specific threshold that the APD was using that would trigger areview of an officerrsquos conduct The APD informed us that the current system accumulated scores of confusing data whichlimited supervisory review Last we learned that the system wasinitially created as a computer-based information system but nowAPD staff is manually gathering information for review whichlends itself to likely human error in assessment

Based on information shared with us the current GAP did notserve as an effective risk management tool for the APDSupervisors informed us that most had not used the GAP toidentify potential risk management issues with officers undertheir command Therefore supervisors did not routinely use GAPas a management tool The APD informed us that historically theGAP system had returned the names of only three officers one ofwhom had already been terminated Even the APDrsquos command

- 46 shy

questioned the accuracy of this number identified in its GAPsystem Accordingly the GAP was ineffective as a predictivemodeling tool

We recommend that the APD implement policies and proceduresto collect data on individual officers for the purpose ofmaintaining integrating and retrieving information necessaryfor effective supervision and management of APD personnel The GAP should contain information on all investigations andcomplaints including non-sustained complaints and complaintsprior to final disposition discipline and other supervisorycorrective measures uses of force arrests and charges searchesand seizures service calls training awards and commendationssick leave civil lawsuits and other items relevant to anofficerrsquos conduct The effective gathering of data will requirethe support of other City departments The City law officeshould report to the APD when an officer is named in a civilcomplaint relating to policing work or risk factors Similarlythe DArsquos office should report to the APD on any matters relatingto an officerrsquos integrity or credibility

To use the GAP effectively as a management tool the APDshould then use the data gathered for the GAP regularly andproactively APD supervisors should use the GAP to (1) promotebest professional police practices (2) improve accountabilityand management (3) manage the risk of police misconduct andpotential liability (4) evaluate and audit the performance ofall levels of the APD its members and its units on an ongoingbasis and (5) evaluate and assess the effectiveness of trainingand policy We recommend that the APD require supervisorsincluding command staff to review this data for every officerthey supervise on a regular predetermined basis such as duringreviews When supervisors review their subordinatesrsquo GAP datawe recommend that the APD utilize comparisons to peersSupervisors should compare their subordinatesrsquo data concerningcomplaints use of force reports and other pertinent informationabout a particular officer with the same categories ofinformation from other officers on the same patrol team or shiftSimilarly command staff should review the GAP data for the unitsthey command and compare these data with peer units In addition the policy should provide explicit guidance tosupervisory officers reviewing reports to ensure that patterns ofpossible misconduct are identified analyzed and addressedproperly by command staff The aim of this process is to givesupervisors valuable information that if received early couldidentify potential problem officers before misconduct actuallydevelops

- 47 shy

To use the GAP effectively as a predictive model tool theGAP must have defined triggers for management intervention The policy implementing these recommendations should also establishguidelines regarding specific events that will trigger anadditional supervisory review such as a specific number of usesof force or citizen complaints within a discrete period Once an officer has been selected for this additional review a reportshould be prepared for his or her supervisor that details all useof force reports formal and informal complaints calls forservice sick leave counseling reports civil lawsuits andcommendations pertaining to the officer over an appropriate timeof review The officerrsquos immediate supervisor and command staffshould then meet to discuss the report and determine if anycorrective action is warranted The supervisorrsquos and commandstaffrsquos recommendations should then be forwarded to the appropriate Assistant Chief for his or her timely review andimplementation The effectiveness of the implementedrecommendations should be determined by monitoring the officerand drafting written reports on the officerrsquos conduct on amonthly basis The officerrsquos supervisor should retain thesupervisory recommendations and the written monthly report in hisor her supervisory file

IX OFFICER TRAINING

The APD should develop comprehensive ongoing trainingprograms for current APD officers

A Policy Re-Training

Much of the technical assistance offered in this letter calls for the creation of new policy or revision of existingpolicy We recommend that as the APD updates or creates each newpolicy the APD re-train all APD personnel including commandstaff on each new policy and its effects Such training shouldbe comprehensive to cover all aspects of the change in policy sothat APD personnel are aware of what would no longer be withinpolicy as well as what new material would then be included inthe APDrsquos revised policies

Policy re-training should be competency-based Accordinglyonce trained each APD member should demonstrate competency ofhis or her knowledge of the new subject matter throughperformance or examination Each member of the APD includingcommand staff should be required to pass competency-basedperformance or examination for each new policy

- 48 shy

B Ongoing Training

One of the most frequent comments we received from APDpersonnel was the need for in-service training37 We were advised repeatedly that officers and supervisors had not receivedtraining on perishable skills38 and use-of-force scenarios in many years The APD also identified the need for training toaddress issues with officersrsquo driving and frequency of trafficcollisions In conversations with APD command staff our expertconsultants have stressed the APDrsquos need to focus training on lowfrequency but high liability practices eg use of firearmsUse of force and pursuit driving are such areas of highliability

We recommend that the APDrsquos training for firearmqualification not focus only on skills in shooting That training time also should include review of applicable case lawA frequent comment we received from many citizen was a perceivedpoor communication between citizens and APD officers leading toescalation and ultimately use of force Accordingly werecommend that the APD ensure that its officers are trained in verbal de-escalation (eg verbal judo) We received positivecomments on the APDrsquos prior street tactics class in particularWe were informed however that only one third of the APDrsquosofficers received this training Reinstituting this training onperishable skills that affect use of force will benefit APDofficers

Like the street tactics course that the APD had previouslybegun we also encourage the APD to bring to fruition its plan touse current field training officers (ldquoFTOsrdquo) as adjunct trainersfor their units The APD had not fully developed but shouldthe concept of using its corporals as trained trainers as wellThese adjunct trainers should utilize standardized lesson plansAlso the APD units who work together should have the benefit oftraining together Training with the unit should be the standardwhether training occurs informally through adjunct trainers orthrough more formalized classes

37 The recommendations on training are not intended as anexhaustive analysis of all of the APDrsquos voluminous trainingmaterials provided to us We will continue to work with the APD to provide feedback on the APDrsquos training materials

38 With respect to policing perishable skills includebut are not limited to handcuffing hand-to-hand combat selfdefense and restraint holds

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high risk tasks and potential for use of force the APD should bekeenly aware of the supervision of SRUs

Supervision of SRUs is not clear however The SOP directs that SRUs are to ldquosupport Area Commandsrdquo but fails to definewhat specific tasks the SRUs are authorized to do The SOP does not set forth who -- SRUs or the area commands -- determines what support SRUs should give We understand that SRU sergeantsamong other things are to approve and coordinate search andarrest warrants and brief support lieutenants on the SRUsrsquoactivities The SOP does not specify any duties for supportlieutenants The supervision of SRUs is therefore truncated atthe sergeant level The sergeants set the tone for SRUs ratherthan direction coming from above on the chain of command

The SRUsrsquo sergeants also select who may become a member ofthe SRUs The SOP does not set forth objective selectioncriteria for membership on SRUs eg acceptable disciplinaryhistory The SOP requires only ldquocomplaint history acceptable tothe area command staffrdquo The specialized units should not selectits own members Nor should any single member stay in the samespecialized units for too great a period of time We recommend that the APD command develop objective selection criteria formembership in SRUs or other specialized units including arequirement that applicants not have any sustained findingsminimally on use of excessive force within the preceding 24months Similarly substantiated findings should subjectofficers already in specialized units to exclusion from thoseunits for 24 months

We also recommend the APD develop a clear chain of commandfor SRUs At the time of our on site visits SRUs operatedwithin each of the APDrsquos geographic area commands We have been informed however that the APD plans to consolidate the commandof SRUs from each area to a central command We are also informed that SRUs will remain stationed in the geographicregions they now serve but will answer to a centralized chain ofcommand This plan does not yet appear to address the potentialfor disagreement between area commanders and SRUs that will sharethe same command area but not the same chain of command

C Preparation for Supervisory Roles

The APD appears to be undergoing a period of transitionMuch of the APDrsquos command staff is largely new to their currentroles Through interviews with command staff we learned that itappears to be routine practice for high level supervisors torotate frequently one to one and one half years of on average to

- 44 shy

different commands These positions are critical and havingcontinuity is important We noted that there were no formal policies governing senior command training prior to reassignmentto new commands including IA Most supervisors reported havingreceived on-the-job training Some supervisors had receivedformalized supervisory training and some had not Formalized supervisory training for all supervisors would enhance effectivemanagement and communications We recommend that new commandersat the time of promotion receive training on the management ofthe division before assuming leadership of the division Command staff should be permitted the opportunity to attend appropriatesupervisory training from outside organizations when neededShifts between command assignments should include a transitionplan between the outgoing and incoming commanders We also recommend that the APD establish a more formal process for theselection of command staff This should include articulable criteria for promotion and assignment

Like command staff mid-level managers would benefit frompreparation for leadership roles We have been informed that the APD has considered a plan to mentor its sergeants We recommend that the APD bring such a plan to fruition Similarly supportlieutenants could be set up in leadership roles to prepare forpromotion

VIII EARLY WARNING SYSTEM36

APD command staff should examine and review officer conduct on a regular basis as a proactive measure to minimize and detectmisconduct and to identify training and policy issues

We understand the APD has been developing its own EWS The APDrsquos EWS is known as the Guidance Advisory Program (ldquoGAPrdquo)system The GAP is an formal data collection and analysis systemdesigned to monitor certain officer conduct The GAP focuses on six performance indicators internal affairs complaints number

36 An EWS is a data-based police management tooldesignated to identify potentially problematic behavior and allowearly intervention to correct misconduct and assist inidentifying deficiencies in supervision management andpolicies Police departments typically use EWS data regularlyand affirmatively to promote best professional police practicesaccountability and proactive management to manage the risk ofpolice misconduct and potential liability to evaluate and auditthe performance of officers and units and to identify manageand control at-risk officers conduct and situations

- 45 shy

of use of force reports compared to number of arrests officer asvictim reports sick leave issues collisions and pursuitsThrough our conversations with APD Command Staff and officers welearned that the APD recognizes that the GAP needs improvementWe also are aware that the APD is currently attempting toredesign adjust and improve the GAP As currently constructedthe GAP does not adequately identify problematic officerbehavior Moreover the APD inadequately uses the GAP to detectproblematic trends in officer behavior The APD is therefore unable to effectively use the GAP to aid in intervention andcorrection of officers as needed

The GAP is divided into two main components managementreports and predictive modeling alerts The management reportscomponent gathers information from several APD or City databasesincluding the Cityrsquos human resources data system IA computeraided dispatch records use of force reports and pursuitreports The GAP uses an automated process to identify datapoints which are then analyzed and placed in a management chartThe management chart serves as a graphical display of eachofficerrsquos measure of the six main criteria categories and theirwork units The predictive-modeling-alerts component analyzesdata to identify current officers whose data show similar workpatterns to officers who have either been disciplined orterminated According to the predictive modeling alertsofficers who are identified in need of early intervention aresupposed to be contacted by the officerrsquos chain of command

We learned that neither component of the GAP functions asthe APD anticipated The components neither set precisethresholds for identifying officer conduct nor ensure effectiveofficer management review We also learned that there was no specific threshold that the APD was using that would trigger areview of an officerrsquos conduct The APD informed us that the current system accumulated scores of confusing data whichlimited supervisory review Last we learned that the system wasinitially created as a computer-based information system but nowAPD staff is manually gathering information for review whichlends itself to likely human error in assessment

Based on information shared with us the current GAP did notserve as an effective risk management tool for the APDSupervisors informed us that most had not used the GAP toidentify potential risk management issues with officers undertheir command Therefore supervisors did not routinely use GAPas a management tool The APD informed us that historically theGAP system had returned the names of only three officers one ofwhom had already been terminated Even the APDrsquos command

- 46 shy

questioned the accuracy of this number identified in its GAPsystem Accordingly the GAP was ineffective as a predictivemodeling tool

We recommend that the APD implement policies and proceduresto collect data on individual officers for the purpose ofmaintaining integrating and retrieving information necessaryfor effective supervision and management of APD personnel The GAP should contain information on all investigations andcomplaints including non-sustained complaints and complaintsprior to final disposition discipline and other supervisorycorrective measures uses of force arrests and charges searchesand seizures service calls training awards and commendationssick leave civil lawsuits and other items relevant to anofficerrsquos conduct The effective gathering of data will requirethe support of other City departments The City law officeshould report to the APD when an officer is named in a civilcomplaint relating to policing work or risk factors Similarlythe DArsquos office should report to the APD on any matters relatingto an officerrsquos integrity or credibility

To use the GAP effectively as a management tool the APDshould then use the data gathered for the GAP regularly andproactively APD supervisors should use the GAP to (1) promotebest professional police practices (2) improve accountabilityand management (3) manage the risk of police misconduct andpotential liability (4) evaluate and audit the performance ofall levels of the APD its members and its units on an ongoingbasis and (5) evaluate and assess the effectiveness of trainingand policy We recommend that the APD require supervisorsincluding command staff to review this data for every officerthey supervise on a regular predetermined basis such as duringreviews When supervisors review their subordinatesrsquo GAP datawe recommend that the APD utilize comparisons to peersSupervisors should compare their subordinatesrsquo data concerningcomplaints use of force reports and other pertinent informationabout a particular officer with the same categories ofinformation from other officers on the same patrol team or shiftSimilarly command staff should review the GAP data for the unitsthey command and compare these data with peer units In addition the policy should provide explicit guidance tosupervisory officers reviewing reports to ensure that patterns ofpossible misconduct are identified analyzed and addressedproperly by command staff The aim of this process is to givesupervisors valuable information that if received early couldidentify potential problem officers before misconduct actuallydevelops

- 47 shy

To use the GAP effectively as a predictive model tool theGAP must have defined triggers for management intervention The policy implementing these recommendations should also establishguidelines regarding specific events that will trigger anadditional supervisory review such as a specific number of usesof force or citizen complaints within a discrete period Once an officer has been selected for this additional review a reportshould be prepared for his or her supervisor that details all useof force reports formal and informal complaints calls forservice sick leave counseling reports civil lawsuits andcommendations pertaining to the officer over an appropriate timeof review The officerrsquos immediate supervisor and command staffshould then meet to discuss the report and determine if anycorrective action is warranted The supervisorrsquos and commandstaffrsquos recommendations should then be forwarded to the appropriate Assistant Chief for his or her timely review andimplementation The effectiveness of the implementedrecommendations should be determined by monitoring the officerand drafting written reports on the officerrsquos conduct on amonthly basis The officerrsquos supervisor should retain thesupervisory recommendations and the written monthly report in hisor her supervisory file

IX OFFICER TRAINING

The APD should develop comprehensive ongoing trainingprograms for current APD officers

A Policy Re-Training

Much of the technical assistance offered in this letter calls for the creation of new policy or revision of existingpolicy We recommend that as the APD updates or creates each newpolicy the APD re-train all APD personnel including commandstaff on each new policy and its effects Such training shouldbe comprehensive to cover all aspects of the change in policy sothat APD personnel are aware of what would no longer be withinpolicy as well as what new material would then be included inthe APDrsquos revised policies

Policy re-training should be competency-based Accordinglyonce trained each APD member should demonstrate competency ofhis or her knowledge of the new subject matter throughperformance or examination Each member of the APD includingcommand staff should be required to pass competency-basedperformance or examination for each new policy

- 48 shy

B Ongoing Training

One of the most frequent comments we received from APDpersonnel was the need for in-service training37 We were advised repeatedly that officers and supervisors had not receivedtraining on perishable skills38 and use-of-force scenarios in many years The APD also identified the need for training toaddress issues with officersrsquo driving and frequency of trafficcollisions In conversations with APD command staff our expertconsultants have stressed the APDrsquos need to focus training on lowfrequency but high liability practices eg use of firearmsUse of force and pursuit driving are such areas of highliability

We recommend that the APDrsquos training for firearmqualification not focus only on skills in shooting That training time also should include review of applicable case lawA frequent comment we received from many citizen was a perceivedpoor communication between citizens and APD officers leading toescalation and ultimately use of force Accordingly werecommend that the APD ensure that its officers are trained in verbal de-escalation (eg verbal judo) We received positivecomments on the APDrsquos prior street tactics class in particularWe were informed however that only one third of the APDrsquosofficers received this training Reinstituting this training onperishable skills that affect use of force will benefit APDofficers

Like the street tactics course that the APD had previouslybegun we also encourage the APD to bring to fruition its plan touse current field training officers (ldquoFTOsrdquo) as adjunct trainersfor their units The APD had not fully developed but shouldthe concept of using its corporals as trained trainers as wellThese adjunct trainers should utilize standardized lesson plansAlso the APD units who work together should have the benefit oftraining together Training with the unit should be the standardwhether training occurs informally through adjunct trainers orthrough more formalized classes

37 The recommendations on training are not intended as anexhaustive analysis of all of the APDrsquos voluminous trainingmaterials provided to us We will continue to work with the APD to provide feedback on the APDrsquos training materials

38 With respect to policing perishable skills includebut are not limited to handcuffing hand-to-hand combat selfdefense and restraint holds

- 44 shy

different commands These positions are critical and havingcontinuity is important We noted that there were no formal policies governing senior command training prior to reassignmentto new commands including IA Most supervisors reported havingreceived on-the-job training Some supervisors had receivedformalized supervisory training and some had not Formalized supervisory training for all supervisors would enhance effectivemanagement and communications We recommend that new commandersat the time of promotion receive training on the management ofthe division before assuming leadership of the division Command staff should be permitted the opportunity to attend appropriatesupervisory training from outside organizations when neededShifts between command assignments should include a transitionplan between the outgoing and incoming commanders We also recommend that the APD establish a more formal process for theselection of command staff This should include articulable criteria for promotion and assignment

Like command staff mid-level managers would benefit frompreparation for leadership roles We have been informed that the APD has considered a plan to mentor its sergeants We recommend that the APD bring such a plan to fruition Similarly supportlieutenants could be set up in leadership roles to prepare forpromotion

VIII EARLY WARNING SYSTEM36

APD command staff should examine and review officer conduct on a regular basis as a proactive measure to minimize and detectmisconduct and to identify training and policy issues

We understand the APD has been developing its own EWS The APDrsquos EWS is known as the Guidance Advisory Program (ldquoGAPrdquo)system The GAP is an formal data collection and analysis systemdesigned to monitor certain officer conduct The GAP focuses on six performance indicators internal affairs complaints number

36 An EWS is a data-based police management tooldesignated to identify potentially problematic behavior and allowearly intervention to correct misconduct and assist inidentifying deficiencies in supervision management andpolicies Police departments typically use EWS data regularlyand affirmatively to promote best professional police practicesaccountability and proactive management to manage the risk ofpolice misconduct and potential liability to evaluate and auditthe performance of officers and units and to identify manageand control at-risk officers conduct and situations

- 45 shy

of use of force reports compared to number of arrests officer asvictim reports sick leave issues collisions and pursuitsThrough our conversations with APD Command Staff and officers welearned that the APD recognizes that the GAP needs improvementWe also are aware that the APD is currently attempting toredesign adjust and improve the GAP As currently constructedthe GAP does not adequately identify problematic officerbehavior Moreover the APD inadequately uses the GAP to detectproblematic trends in officer behavior The APD is therefore unable to effectively use the GAP to aid in intervention andcorrection of officers as needed

The GAP is divided into two main components managementreports and predictive modeling alerts The management reportscomponent gathers information from several APD or City databasesincluding the Cityrsquos human resources data system IA computeraided dispatch records use of force reports and pursuitreports The GAP uses an automated process to identify datapoints which are then analyzed and placed in a management chartThe management chart serves as a graphical display of eachofficerrsquos measure of the six main criteria categories and theirwork units The predictive-modeling-alerts component analyzesdata to identify current officers whose data show similar workpatterns to officers who have either been disciplined orterminated According to the predictive modeling alertsofficers who are identified in need of early intervention aresupposed to be contacted by the officerrsquos chain of command

We learned that neither component of the GAP functions asthe APD anticipated The components neither set precisethresholds for identifying officer conduct nor ensure effectiveofficer management review We also learned that there was no specific threshold that the APD was using that would trigger areview of an officerrsquos conduct The APD informed us that the current system accumulated scores of confusing data whichlimited supervisory review Last we learned that the system wasinitially created as a computer-based information system but nowAPD staff is manually gathering information for review whichlends itself to likely human error in assessment

Based on information shared with us the current GAP did notserve as an effective risk management tool for the APDSupervisors informed us that most had not used the GAP toidentify potential risk management issues with officers undertheir command Therefore supervisors did not routinely use GAPas a management tool The APD informed us that historically theGAP system had returned the names of only three officers one ofwhom had already been terminated Even the APDrsquos command

- 46 shy

questioned the accuracy of this number identified in its GAPsystem Accordingly the GAP was ineffective as a predictivemodeling tool

We recommend that the APD implement policies and proceduresto collect data on individual officers for the purpose ofmaintaining integrating and retrieving information necessaryfor effective supervision and management of APD personnel The GAP should contain information on all investigations andcomplaints including non-sustained complaints and complaintsprior to final disposition discipline and other supervisorycorrective measures uses of force arrests and charges searchesand seizures service calls training awards and commendationssick leave civil lawsuits and other items relevant to anofficerrsquos conduct The effective gathering of data will requirethe support of other City departments The City law officeshould report to the APD when an officer is named in a civilcomplaint relating to policing work or risk factors Similarlythe DArsquos office should report to the APD on any matters relatingto an officerrsquos integrity or credibility

To use the GAP effectively as a management tool the APDshould then use the data gathered for the GAP regularly andproactively APD supervisors should use the GAP to (1) promotebest professional police practices (2) improve accountabilityand management (3) manage the risk of police misconduct andpotential liability (4) evaluate and audit the performance ofall levels of the APD its members and its units on an ongoingbasis and (5) evaluate and assess the effectiveness of trainingand policy We recommend that the APD require supervisorsincluding command staff to review this data for every officerthey supervise on a regular predetermined basis such as duringreviews When supervisors review their subordinatesrsquo GAP datawe recommend that the APD utilize comparisons to peersSupervisors should compare their subordinatesrsquo data concerningcomplaints use of force reports and other pertinent informationabout a particular officer with the same categories ofinformation from other officers on the same patrol team or shiftSimilarly command staff should review the GAP data for the unitsthey command and compare these data with peer units In addition the policy should provide explicit guidance tosupervisory officers reviewing reports to ensure that patterns ofpossible misconduct are identified analyzed and addressedproperly by command staff The aim of this process is to givesupervisors valuable information that if received early couldidentify potential problem officers before misconduct actuallydevelops

- 47 shy

To use the GAP effectively as a predictive model tool theGAP must have defined triggers for management intervention The policy implementing these recommendations should also establishguidelines regarding specific events that will trigger anadditional supervisory review such as a specific number of usesof force or citizen complaints within a discrete period Once an officer has been selected for this additional review a reportshould be prepared for his or her supervisor that details all useof force reports formal and informal complaints calls forservice sick leave counseling reports civil lawsuits andcommendations pertaining to the officer over an appropriate timeof review The officerrsquos immediate supervisor and command staffshould then meet to discuss the report and determine if anycorrective action is warranted The supervisorrsquos and commandstaffrsquos recommendations should then be forwarded to the appropriate Assistant Chief for his or her timely review andimplementation The effectiveness of the implementedrecommendations should be determined by monitoring the officerand drafting written reports on the officerrsquos conduct on amonthly basis The officerrsquos supervisor should retain thesupervisory recommendations and the written monthly report in hisor her supervisory file

IX OFFICER TRAINING

The APD should develop comprehensive ongoing trainingprograms for current APD officers

A Policy Re-Training

Much of the technical assistance offered in this letter calls for the creation of new policy or revision of existingpolicy We recommend that as the APD updates or creates each newpolicy the APD re-train all APD personnel including commandstaff on each new policy and its effects Such training shouldbe comprehensive to cover all aspects of the change in policy sothat APD personnel are aware of what would no longer be withinpolicy as well as what new material would then be included inthe APDrsquos revised policies

Policy re-training should be competency-based Accordinglyonce trained each APD member should demonstrate competency ofhis or her knowledge of the new subject matter throughperformance or examination Each member of the APD includingcommand staff should be required to pass competency-basedperformance or examination for each new policy

- 48 shy

B Ongoing Training

One of the most frequent comments we received from APDpersonnel was the need for in-service training37 We were advised repeatedly that officers and supervisors had not receivedtraining on perishable skills38 and use-of-force scenarios in many years The APD also identified the need for training toaddress issues with officersrsquo driving and frequency of trafficcollisions In conversations with APD command staff our expertconsultants have stressed the APDrsquos need to focus training on lowfrequency but high liability practices eg use of firearmsUse of force and pursuit driving are such areas of highliability

We recommend that the APDrsquos training for firearmqualification not focus only on skills in shooting That training time also should include review of applicable case lawA frequent comment we received from many citizen was a perceivedpoor communication between citizens and APD officers leading toescalation and ultimately use of force Accordingly werecommend that the APD ensure that its officers are trained in verbal de-escalation (eg verbal judo) We received positivecomments on the APDrsquos prior street tactics class in particularWe were informed however that only one third of the APDrsquosofficers received this training Reinstituting this training onperishable skills that affect use of force will benefit APDofficers

Like the street tactics course that the APD had previouslybegun we also encourage the APD to bring to fruition its plan touse current field training officers (ldquoFTOsrdquo) as adjunct trainersfor their units The APD had not fully developed but shouldthe concept of using its corporals as trained trainers as wellThese adjunct trainers should utilize standardized lesson plansAlso the APD units who work together should have the benefit oftraining together Training with the unit should be the standardwhether training occurs informally through adjunct trainers orthrough more formalized classes

37 The recommendations on training are not intended as anexhaustive analysis of all of the APDrsquos voluminous trainingmaterials provided to us We will continue to work with the APD to provide feedback on the APDrsquos training materials

38 With respect to policing perishable skills includebut are not limited to handcuffing hand-to-hand combat selfdefense and restraint holds

- 45 shy

of use of force reports compared to number of arrests officer asvictim reports sick leave issues collisions and pursuitsThrough our conversations with APD Command Staff and officers welearned that the APD recognizes that the GAP needs improvementWe also are aware that the APD is currently attempting toredesign adjust and improve the GAP As currently constructedthe GAP does not adequately identify problematic officerbehavior Moreover the APD inadequately uses the GAP to detectproblematic trends in officer behavior The APD is therefore unable to effectively use the GAP to aid in intervention andcorrection of officers as needed

The GAP is divided into two main components managementreports and predictive modeling alerts The management reportscomponent gathers information from several APD or City databasesincluding the Cityrsquos human resources data system IA computeraided dispatch records use of force reports and pursuitreports The GAP uses an automated process to identify datapoints which are then analyzed and placed in a management chartThe management chart serves as a graphical display of eachofficerrsquos measure of the six main criteria categories and theirwork units The predictive-modeling-alerts component analyzesdata to identify current officers whose data show similar workpatterns to officers who have either been disciplined orterminated According to the predictive modeling alertsofficers who are identified in need of early intervention aresupposed to be contacted by the officerrsquos chain of command

We learned that neither component of the GAP functions asthe APD anticipated The components neither set precisethresholds for identifying officer conduct nor ensure effectiveofficer management review We also learned that there was no specific threshold that the APD was using that would trigger areview of an officerrsquos conduct The APD informed us that the current system accumulated scores of confusing data whichlimited supervisory review Last we learned that the system wasinitially created as a computer-based information system but nowAPD staff is manually gathering information for review whichlends itself to likely human error in assessment

Based on information shared with us the current GAP did notserve as an effective risk management tool for the APDSupervisors informed us that most had not used the GAP toidentify potential risk management issues with officers undertheir command Therefore supervisors did not routinely use GAPas a management tool The APD informed us that historically theGAP system had returned the names of only three officers one ofwhom had already been terminated Even the APDrsquos command

- 46 shy

questioned the accuracy of this number identified in its GAPsystem Accordingly the GAP was ineffective as a predictivemodeling tool

We recommend that the APD implement policies and proceduresto collect data on individual officers for the purpose ofmaintaining integrating and retrieving information necessaryfor effective supervision and management of APD personnel The GAP should contain information on all investigations andcomplaints including non-sustained complaints and complaintsprior to final disposition discipline and other supervisorycorrective measures uses of force arrests and charges searchesand seizures service calls training awards and commendationssick leave civil lawsuits and other items relevant to anofficerrsquos conduct The effective gathering of data will requirethe support of other City departments The City law officeshould report to the APD when an officer is named in a civilcomplaint relating to policing work or risk factors Similarlythe DArsquos office should report to the APD on any matters relatingto an officerrsquos integrity or credibility

To use the GAP effectively as a management tool the APDshould then use the data gathered for the GAP regularly andproactively APD supervisors should use the GAP to (1) promotebest professional police practices (2) improve accountabilityand management (3) manage the risk of police misconduct andpotential liability (4) evaluate and audit the performance ofall levels of the APD its members and its units on an ongoingbasis and (5) evaluate and assess the effectiveness of trainingand policy We recommend that the APD require supervisorsincluding command staff to review this data for every officerthey supervise on a regular predetermined basis such as duringreviews When supervisors review their subordinatesrsquo GAP datawe recommend that the APD utilize comparisons to peersSupervisors should compare their subordinatesrsquo data concerningcomplaints use of force reports and other pertinent informationabout a particular officer with the same categories ofinformation from other officers on the same patrol team or shiftSimilarly command staff should review the GAP data for the unitsthey command and compare these data with peer units In addition the policy should provide explicit guidance tosupervisory officers reviewing reports to ensure that patterns ofpossible misconduct are identified analyzed and addressedproperly by command staff The aim of this process is to givesupervisors valuable information that if received early couldidentify potential problem officers before misconduct actuallydevelops

- 47 shy

To use the GAP effectively as a predictive model tool theGAP must have defined triggers for management intervention The policy implementing these recommendations should also establishguidelines regarding specific events that will trigger anadditional supervisory review such as a specific number of usesof force or citizen complaints within a discrete period Once an officer has been selected for this additional review a reportshould be prepared for his or her supervisor that details all useof force reports formal and informal complaints calls forservice sick leave counseling reports civil lawsuits andcommendations pertaining to the officer over an appropriate timeof review The officerrsquos immediate supervisor and command staffshould then meet to discuss the report and determine if anycorrective action is warranted The supervisorrsquos and commandstaffrsquos recommendations should then be forwarded to the appropriate Assistant Chief for his or her timely review andimplementation The effectiveness of the implementedrecommendations should be determined by monitoring the officerand drafting written reports on the officerrsquos conduct on amonthly basis The officerrsquos supervisor should retain thesupervisory recommendations and the written monthly report in hisor her supervisory file

IX OFFICER TRAINING

The APD should develop comprehensive ongoing trainingprograms for current APD officers

A Policy Re-Training

Much of the technical assistance offered in this letter calls for the creation of new policy or revision of existingpolicy We recommend that as the APD updates or creates each newpolicy the APD re-train all APD personnel including commandstaff on each new policy and its effects Such training shouldbe comprehensive to cover all aspects of the change in policy sothat APD personnel are aware of what would no longer be withinpolicy as well as what new material would then be included inthe APDrsquos revised policies

Policy re-training should be competency-based Accordinglyonce trained each APD member should demonstrate competency ofhis or her knowledge of the new subject matter throughperformance or examination Each member of the APD includingcommand staff should be required to pass competency-basedperformance or examination for each new policy

- 48 shy

B Ongoing Training

One of the most frequent comments we received from APDpersonnel was the need for in-service training37 We were advised repeatedly that officers and supervisors had not receivedtraining on perishable skills38 and use-of-force scenarios in many years The APD also identified the need for training toaddress issues with officersrsquo driving and frequency of trafficcollisions In conversations with APD command staff our expertconsultants have stressed the APDrsquos need to focus training on lowfrequency but high liability practices eg use of firearmsUse of force and pursuit driving are such areas of highliability

We recommend that the APDrsquos training for firearmqualification not focus only on skills in shooting That training time also should include review of applicable case lawA frequent comment we received from many citizen was a perceivedpoor communication between citizens and APD officers leading toescalation and ultimately use of force Accordingly werecommend that the APD ensure that its officers are trained in verbal de-escalation (eg verbal judo) We received positivecomments on the APDrsquos prior street tactics class in particularWe were informed however that only one third of the APDrsquosofficers received this training Reinstituting this training onperishable skills that affect use of force will benefit APDofficers

Like the street tactics course that the APD had previouslybegun we also encourage the APD to bring to fruition its plan touse current field training officers (ldquoFTOsrdquo) as adjunct trainersfor their units The APD had not fully developed but shouldthe concept of using its corporals as trained trainers as wellThese adjunct trainers should utilize standardized lesson plansAlso the APD units who work together should have the benefit oftraining together Training with the unit should be the standardwhether training occurs informally through adjunct trainers orthrough more formalized classes

37 The recommendations on training are not intended as anexhaustive analysis of all of the APDrsquos voluminous trainingmaterials provided to us We will continue to work with the APD to provide feedback on the APDrsquos training materials

38 With respect to policing perishable skills includebut are not limited to handcuffing hand-to-hand combat selfdefense and restraint holds

- 46 shy

questioned the accuracy of this number identified in its GAPsystem Accordingly the GAP was ineffective as a predictivemodeling tool

We recommend that the APD implement policies and proceduresto collect data on individual officers for the purpose ofmaintaining integrating and retrieving information necessaryfor effective supervision and management of APD personnel The GAP should contain information on all investigations andcomplaints including non-sustained complaints and complaintsprior to final disposition discipline and other supervisorycorrective measures uses of force arrests and charges searchesand seizures service calls training awards and commendationssick leave civil lawsuits and other items relevant to anofficerrsquos conduct The effective gathering of data will requirethe support of other City departments The City law officeshould report to the APD when an officer is named in a civilcomplaint relating to policing work or risk factors Similarlythe DArsquos office should report to the APD on any matters relatingto an officerrsquos integrity or credibility

To use the GAP effectively as a management tool the APDshould then use the data gathered for the GAP regularly andproactively APD supervisors should use the GAP to (1) promotebest professional police practices (2) improve accountabilityand management (3) manage the risk of police misconduct andpotential liability (4) evaluate and audit the performance ofall levels of the APD its members and its units on an ongoingbasis and (5) evaluate and assess the effectiveness of trainingand policy We recommend that the APD require supervisorsincluding command staff to review this data for every officerthey supervise on a regular predetermined basis such as duringreviews When supervisors review their subordinatesrsquo GAP datawe recommend that the APD utilize comparisons to peersSupervisors should compare their subordinatesrsquo data concerningcomplaints use of force reports and other pertinent informationabout a particular officer with the same categories ofinformation from other officers on the same patrol team or shiftSimilarly command staff should review the GAP data for the unitsthey command and compare these data with peer units In addition the policy should provide explicit guidance tosupervisory officers reviewing reports to ensure that patterns ofpossible misconduct are identified analyzed and addressedproperly by command staff The aim of this process is to givesupervisors valuable information that if received early couldidentify potential problem officers before misconduct actuallydevelops

- 47 shy

To use the GAP effectively as a predictive model tool theGAP must have defined triggers for management intervention The policy implementing these recommendations should also establishguidelines regarding specific events that will trigger anadditional supervisory review such as a specific number of usesof force or citizen complaints within a discrete period Once an officer has been selected for this additional review a reportshould be prepared for his or her supervisor that details all useof force reports formal and informal complaints calls forservice sick leave counseling reports civil lawsuits andcommendations pertaining to the officer over an appropriate timeof review The officerrsquos immediate supervisor and command staffshould then meet to discuss the report and determine if anycorrective action is warranted The supervisorrsquos and commandstaffrsquos recommendations should then be forwarded to the appropriate Assistant Chief for his or her timely review andimplementation The effectiveness of the implementedrecommendations should be determined by monitoring the officerand drafting written reports on the officerrsquos conduct on amonthly basis The officerrsquos supervisor should retain thesupervisory recommendations and the written monthly report in hisor her supervisory file

IX OFFICER TRAINING

The APD should develop comprehensive ongoing trainingprograms for current APD officers

A Policy Re-Training

Much of the technical assistance offered in this letter calls for the creation of new policy or revision of existingpolicy We recommend that as the APD updates or creates each newpolicy the APD re-train all APD personnel including commandstaff on each new policy and its effects Such training shouldbe comprehensive to cover all aspects of the change in policy sothat APD personnel are aware of what would no longer be withinpolicy as well as what new material would then be included inthe APDrsquos revised policies

Policy re-training should be competency-based Accordinglyonce trained each APD member should demonstrate competency ofhis or her knowledge of the new subject matter throughperformance or examination Each member of the APD includingcommand staff should be required to pass competency-basedperformance or examination for each new policy

- 48 shy

B Ongoing Training

One of the most frequent comments we received from APDpersonnel was the need for in-service training37 We were advised repeatedly that officers and supervisors had not receivedtraining on perishable skills38 and use-of-force scenarios in many years The APD also identified the need for training toaddress issues with officersrsquo driving and frequency of trafficcollisions In conversations with APD command staff our expertconsultants have stressed the APDrsquos need to focus training on lowfrequency but high liability practices eg use of firearmsUse of force and pursuit driving are such areas of highliability

We recommend that the APDrsquos training for firearmqualification not focus only on skills in shooting That training time also should include review of applicable case lawA frequent comment we received from many citizen was a perceivedpoor communication between citizens and APD officers leading toescalation and ultimately use of force Accordingly werecommend that the APD ensure that its officers are trained in verbal de-escalation (eg verbal judo) We received positivecomments on the APDrsquos prior street tactics class in particularWe were informed however that only one third of the APDrsquosofficers received this training Reinstituting this training onperishable skills that affect use of force will benefit APDofficers

Like the street tactics course that the APD had previouslybegun we also encourage the APD to bring to fruition its plan touse current field training officers (ldquoFTOsrdquo) as adjunct trainersfor their units The APD had not fully developed but shouldthe concept of using its corporals as trained trainers as wellThese adjunct trainers should utilize standardized lesson plansAlso the APD units who work together should have the benefit oftraining together Training with the unit should be the standardwhether training occurs informally through adjunct trainers orthrough more formalized classes

37 The recommendations on training are not intended as anexhaustive analysis of all of the APDrsquos voluminous trainingmaterials provided to us We will continue to work with the APD to provide feedback on the APDrsquos training materials

38 With respect to policing perishable skills includebut are not limited to handcuffing hand-to-hand combat selfdefense and restraint holds

- 47 shy

To use the GAP effectively as a predictive model tool theGAP must have defined triggers for management intervention The policy implementing these recommendations should also establishguidelines regarding specific events that will trigger anadditional supervisory review such as a specific number of usesof force or citizen complaints within a discrete period Once an officer has been selected for this additional review a reportshould be prepared for his or her supervisor that details all useof force reports formal and informal complaints calls forservice sick leave counseling reports civil lawsuits andcommendations pertaining to the officer over an appropriate timeof review The officerrsquos immediate supervisor and command staffshould then meet to discuss the report and determine if anycorrective action is warranted The supervisorrsquos and commandstaffrsquos recommendations should then be forwarded to the appropriate Assistant Chief for his or her timely review andimplementation The effectiveness of the implementedrecommendations should be determined by monitoring the officerand drafting written reports on the officerrsquos conduct on amonthly basis The officerrsquos supervisor should retain thesupervisory recommendations and the written monthly report in hisor her supervisory file

IX OFFICER TRAINING

The APD should develop comprehensive ongoing trainingprograms for current APD officers

A Policy Re-Training

Much of the technical assistance offered in this letter calls for the creation of new policy or revision of existingpolicy We recommend that as the APD updates or creates each newpolicy the APD re-train all APD personnel including commandstaff on each new policy and its effects Such training shouldbe comprehensive to cover all aspects of the change in policy sothat APD personnel are aware of what would no longer be withinpolicy as well as what new material would then be included inthe APDrsquos revised policies

Policy re-training should be competency-based Accordinglyonce trained each APD member should demonstrate competency ofhis or her knowledge of the new subject matter throughperformance or examination Each member of the APD includingcommand staff should be required to pass competency-basedperformance or examination for each new policy

- 48 shy

B Ongoing Training

One of the most frequent comments we received from APDpersonnel was the need for in-service training37 We were advised repeatedly that officers and supervisors had not receivedtraining on perishable skills38 and use-of-force scenarios in many years The APD also identified the need for training toaddress issues with officersrsquo driving and frequency of trafficcollisions In conversations with APD command staff our expertconsultants have stressed the APDrsquos need to focus training on lowfrequency but high liability practices eg use of firearmsUse of force and pursuit driving are such areas of highliability

We recommend that the APDrsquos training for firearmqualification not focus only on skills in shooting That training time also should include review of applicable case lawA frequent comment we received from many citizen was a perceivedpoor communication between citizens and APD officers leading toescalation and ultimately use of force Accordingly werecommend that the APD ensure that its officers are trained in verbal de-escalation (eg verbal judo) We received positivecomments on the APDrsquos prior street tactics class in particularWe were informed however that only one third of the APDrsquosofficers received this training Reinstituting this training onperishable skills that affect use of force will benefit APDofficers

Like the street tactics course that the APD had previouslybegun we also encourage the APD to bring to fruition its plan touse current field training officers (ldquoFTOsrdquo) as adjunct trainersfor their units The APD had not fully developed but shouldthe concept of using its corporals as trained trainers as wellThese adjunct trainers should utilize standardized lesson plansAlso the APD units who work together should have the benefit oftraining together Training with the unit should be the standardwhether training occurs informally through adjunct trainers orthrough more formalized classes

37 The recommendations on training are not intended as anexhaustive analysis of all of the APDrsquos voluminous trainingmaterials provided to us We will continue to work with the APD to provide feedback on the APDrsquos training materials

38 With respect to policing perishable skills includebut are not limited to handcuffing hand-to-hand combat selfdefense and restraint holds

- 48 shy

B Ongoing Training

One of the most frequent comments we received from APDpersonnel was the need for in-service training37 We were advised repeatedly that officers and supervisors had not receivedtraining on perishable skills38 and use-of-force scenarios in many years The APD also identified the need for training toaddress issues with officersrsquo driving and frequency of trafficcollisions In conversations with APD command staff our expertconsultants have stressed the APDrsquos need to focus training on lowfrequency but high liability practices eg use of firearmsUse of force and pursuit driving are such areas of highliability

We recommend that the APDrsquos training for firearmqualification not focus only on skills in shooting That training time also should include review of applicable case lawA frequent comment we received from many citizen was a perceivedpoor communication between citizens and APD officers leading toescalation and ultimately use of force Accordingly werecommend that the APD ensure that its officers are trained in verbal de-escalation (eg verbal judo) We received positivecomments on the APDrsquos prior street tactics class in particularWe were informed however that only one third of the APDrsquosofficers received this training Reinstituting this training onperishable skills that affect use of force will benefit APDofficers

Like the street tactics course that the APD had previouslybegun we also encourage the APD to bring to fruition its plan touse current field training officers (ldquoFTOsrdquo) as adjunct trainersfor their units The APD had not fully developed but shouldthe concept of using its corporals as trained trainers as wellThese adjunct trainers should utilize standardized lesson plansAlso the APD units who work together should have the benefit oftraining together Training with the unit should be the standardwhether training occurs informally through adjunct trainers orthrough more formalized classes

37 The recommendations on training are not intended as anexhaustive analysis of all of the APDrsquos voluminous trainingmaterials provided to us We will continue to work with the APD to provide feedback on the APDrsquos training materials

38 With respect to policing perishable skills includebut are not limited to handcuffing hand-to-hand combat selfdefense and restraint holds

- 49 shy

We also recommend that the APD retain as neededconsultation for the review of policy and curriculum to furtherdevelop the APDrsquos ongoing in-service training When engaging inthis process we recommend that the APD seek the input from itscommanders as well as rank and file in assessing the needs forin-service training

We note that one potential resource for the APD inestablishing and improving in-service and field training officerprograms may be the longstanding training and grant programsadministered by other components of the Department of Justicesuch as the Office of Justice Programs While these programs areseparate and independent of the Civil Rights Divisionrsquosinvestigations we would be pleased to provide you with contactinformation for exploring the possibility of such assistance

X COMMUNITY RELATIONS

The APD has already undergone significant changes in itscommunity relations in the past year In addition to the other steps the APD has taken some of which are mentioned in thisletter we recommend that the APD clearly and prominently postits mission statement and statement of citizen rights in multiplelanguages in the public spaces in APD buildings

We also note that we were informed that the APD received accreditation but did not appear to have a completed strategicplan at the time We recommend that the APD complete itsstrategic plan and make the document open to public comment We recommend that the APDrsquos planning efforts include identificationof and plans for tracking quantifiable performance measuresThe APD should report on these measures to the communityannually The APD should use such measures to target services inneed of improvement

- 50 shy

XI CONCLUSION

The APD has made a number of advances during ourinvestigation particularly under the leadership of ChiefAcevedo We strongly urge the APD to consider and adopt thesetechnical assistance recommendations as it revises its policiesand procedures We look forward to working with you and thedepartment as our investigation proceeds If you have anyquestions please do not hesitate to contact me at(202) 514-0195 Jonas Geissler at (202) 353-8866 or CoreySanders at (202) 305-3229

Sincerely

s Shanetta Y Cutlar

Shanetta Y Cutlar Chief Special Litigation Section

cc Johnny SuttonUnited States Attorneyfor the Western District of Texas

- 50 shy

XI CONCLUSION

The APD has made a number of advances during ourinvestigation particularly under the leadership of ChiefAcevedo We strongly urge the APD to consider and adopt thesetechnical assistance recommendations as it revises its policiesand procedures We look forward to working with you and thedepartment as our investigation proceeds If you have anyquestions please do not hesitate to contact me at(202) 514-0195 Jonas Geissler at (202) 353-8866 or CoreySanders at (202) 305-3229

Sincerely

s Shanetta Y Cutlar

Shanetta Y Cutlar Chief Special Litigation Section

cc Johnny SuttonUnited States Attorneyfor the Western District of Texas