Use of Force: Policies & Procedures

PURPOSE AND SCOPE:

This policy recognizes that the use of force by law enforcement requires constant evaluation. Even at its lowest level, the use of force is a serious responsibility. The purpose of this policy is to provide officers of this department with guidelines on the reasonable use of force. While there is no way to specify the exact amount or type of reasonable force to be applied in any situation, each officer is expected to use these guidelines to make such decisions in a professional, impartial and reasonable manner.

POLICY:

It is the policy of this department that officers shall use only that amount of force that reasonably appears necessary, given the facts and circumstances perceived by the officer at the time of the event to effectively bring an incident under control.  The amount of force used by the officer must be consistent with the Municipal Police Training Council Use of Force Model Policy pursuant to Executive Law 840(4)(d)(3), Executive Law 837-t and NYCRR 6058. Reasonableness of the force used must be judged from the perspective of a reasonable officer on the scene at the time of the incident. Any interpretation of reasonableness must allow for the fact that police officers are often forced to make split-second decisions in circumstances that are tense, uncertain and rapidly evolving about the amount of force that is necessary in a particular situation.

Given that no policy can realistically predict every possible situation an officer might encounter in the field, it is recognized that each officer must be entrusted with well-reasoned discretion in determining the appropriate use of force in each incident. While it is the ultimate objective of every law enforcement encounter to minimize injury to everyone involved, nothing in this policy requires an officer to actually sustain physical injury before applying reasonable force.

DEFINITIONS:

• Authorized weapon – A weapon approved by the agency and sanctioned for use by its officers.  No weapon is authorized for carry or use by an officer unless the agency expressly approves it and the officer has demonstrated proficiency with the weapon type in accordance with agency guidelines.
• Auxiliary weapons of availability – An officer may become separated from their agency issued firearm or intermediate weapons.  Should this occur the officer might have access to a weapon of opportunity, including but not limited to a flash light, citation holder, handcuffs, or any object that could be used as a weapon in the defense of self or another.
• Baton or expandable baton – An impact weapon capable of inflicting bodily injury by striking with a portion of the weapon.  Only batons authorized by the agency are carried or used.  Carrying or using saps, Billy clubs, or slapjacks is prohibited.
• Chemical weapon – Weapons capable of temporarily incapacitating a person through the controlled release of some chemical irritant or agent.
• Certification with weapon – Officer has demonstrated proficiency with a particular weapon, and been tested in its safe care and use.  The officer is thereby authorized to carry and use this weapon in the performance of his/her official duties regardless of whether the officer is on-duty or off-duty.  Without such certification, the officer may not carry or use this or a similar weapon.
• Deadly physical force – Means physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injuries.
• Electronic Control Device – Devices and weapons that use short bursts of electrical energy to temporarily incapacitate a person without the intent of causing death or serious bodily injury.  The device may work by touching the combative individual with electrical probes or by shooting electrical probes from a handheld device.
• Exigent circumstances – Conditions that are of such urgency and seriousness as to justify a warrantless entry, search, or seizure by police when a warrant would ordinarily be required.
• Firearm – Any device designated, made, or adapted to expel a projectile through a barrel by using energy generated by rapidly expanding gases or any device readily convertible to that use; including all handguns, rifles, and shotguns.
• Force, non-deadly force, or less-lethal force – Actions not calculated under the circumstances to cause death or serious bodily injury.
• Knife – Any edged weapon that is designed to inflict serious bodily injury or death by stabbing, cutting, slicing, whether legal or illegal, and including swords, daggers, axes, hatchets, etc.
• Less than lethal or intermediate weapons – Procedures or weapons designed to provide force, but usually less than deadly force.  Less than lethal is sometimes referred to as less-lethal or non-deadly force.  Regardless of the name, officers know that any force, especially when applied under dangerous, tense, uncertain, and rapidly evolving situations, may cause harm, serious bodily harm, or death, despite the best intentions of the officer.
• Physical strength and skill – Any physical actions by one or more officers (e.g., holding, restraining, pushing, and pulling) which may include special skills (e.g., boxing, karate, and judo) but do not include the use of deadly force or any weapon.
• Probable cause (Reasonable cause to believe) – Sufficient reason, based upon known facts, to believe a crime has been committed or that certain property is connected with a crime.  Probable cause must exist for a law enforcement officer to make an arrest without a warrant, search without a warrant, or seize property in the belief the items were evidence of a crime.  Probable cause is often subjective, but if the police officer’s belief or even hunch was correct, finding stolen goods, the hidden weapon, or drugs may be claimed as self-fulfilling proof of probable cause.  Technically, probable cause has to exist prior to arrest, search, or seizure.
• Serious physical injury – Means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily injury.

When determining whether or not to apply any level of force and evaluating whether an officer has used reasonable force, a number of factors should be taken into consideration. These factors include, but are not limited to:

1. The conduct of the individual being confronted (as reasonably perceived by the officer at the time)
2. Officer/subject factors (age, size, relative strength, skill level, injury/exhaustion and number of officers vs. subjects)
3. Influence of drugs/alcohol (mental capacity)
4. Proximity of weapons
5. Time and circumstances permitting, the availability of other options (what resources are reasonably available to the officer under the circumstances).
6. Seriousness of the suspected offense or reason for contact with the individual
7. Training and experience of the officer
8. Potential for injury to citizens, officers and suspects
9. Risk of escape
10. Other exigent circumstances

It is recognized that officers are expected to make split-second decisions and that the amount of an officer’s time available to evaluate and respond to changing circumstances may impact his/her decision. While various degrees of force exist, each officer is expected to use only that degree of force reasonable under the circumstances to successfully accomplish the legitimate law enforcement purpose in accordance with this policy.

It is recognized however, that circumstances may arise in which officers reasonably believe that it would be impractical or ineffective to use any of the standard tools, weapons or methods provided by the department. Officers may find it more effective or practical to improvise their response to rapidly unfolding conditions they are confronting. In such circumstances, the use of any improvised device or method must nonetheless be objectively reasonable and utilized only to the degree reasonably necessary to accomplish a legitimate law enforcement purpose

1. PROCEDURES:

Levels of Use of Force:

Use of force or deadly force is controlled by the basic elements of a reasonable officer’s perception and a reasonable officer’s response.  Officers may use only the level of force that is reasonably necessary to stop the perceived threat.

To better understand and explain use of force and force issues, officer perceptions and officer force options are illustrated in the Use of Force Continuum or force continuum that is located on the last page of this policy.  This chart illustrates five levels of perception and five corresponding levels of response.  Officers must be familiar with, and know how to apply and explain this continuum.  Refer to the Use of Force Continuum, at the end of this policy.

Officer’s general perception and corresponding force options are:

Level 1 – (Compliant) The suspect is perceived by the officer to be compliant.  The appropriate level of response is cooperative controls, including officer presence, hand signals, verbal commands and instructions, light touching or patting, etc.  In other words cooperation at this level is a two way street.

Level 2 – (Passively Resistant): The suspect is perceived by the officer to be passively resistant.  The appropriate level of response is contact controls, including strong or forceful soft hand, hand and arm holds, pressured physical movement of the suspect, removal, etc.

Level 3 – (Actively Resistant): The suspect is perceived by the officer to be actively resistant.  The appropriate response is compliance techniques.  This is the threshold for any reasonable officer to consider this suspect to be a potential threat to himself, the officer, or other citizens.  Compliance techniques may include all reasonable means to cause the suspect to comply as soon as reasonably possible. These techniques may include use of chemical weapons, use of restraints, forced movement, forcing a suspect’s limbs behind his back, forcing a suspect down on the floor or against a wall, or using other forms of physical force, etc.  Once suspects are perceived as actively resistant, officers should not relax care until the subject is fully secured.

Level 4 – (Assaultive & A Threat to Bodily Harm): The suspect is perceived by the officer to be assaultive – and a threat to bodily harm.  The appropriate level of response is immediate defensive tactics.  The original assaultive behavior may have been directed at a fellow suspect, apparent victim, or the officer.  Defensive tactics may include impact weapons, hard fist, electrical control devices, or any other reasonable means available and at hand to stop the aggression, defend against the attack, and bring the suspect into compliance.  It is contemplated and understood that reasonable officers, while employing defensive tactics, may cause injury, serious injury, and in some isolated instances, death without intending such consequences.

Level 5 – (Assaultive & Serious Threat of Bodily Harm or Death): The suspect is perceived by the officer to be assaultive – serious bodily harm or death.  The appropriate level of response is deadly force.  Deadly force includes firearms, knives, or any other means immediately available that a reasonable officer, in the same circumstance, would consider as potentially causing death or serious bodily injury.

2. TACTICS, APPLICATIONS, & OFFICER’S PERCEPTIONS:

Level 1 – (Compliant) No or Slight Apparent Potential for Harm

Arrival & Presence: Officer present at the scene.  This includes proper voice and/or other identification, body language, and awareness by the subject that he is dealing with an officer of the law.  This may also include presence of the officer’s vehicle, seeing the officer in his uniform, hearing officer identification, etc.  A reasonable person seeing and hearing these things will normally alter their behavior, and respond to the officers instructions.

Interview Stance:  The officer adopts a stance outside his danger zone that provides appropriate protection and forms the basis of an effective physical response if attacked.

Level 2 – (Passively Resistant) Moderate Potential for Physical Harm

Dialogue Between Parties:  A two way, controlled, non-emotional communications between the officer and the subject, aimed at a problem identification and/or resolution.

Verbal Direction:  Officer asks, advises, or commands subject to engage in, or refrain from, a specific action or non-action.

Soft Hand Techniques:  Officer may choose to employ some assistance in movement, compliance, or removal from the immediate scene.

Level 3 – (Actively Resistant) Moderate Potential for Physical Harm

Restraint Devices: Mechanical tools used to restrict a subject’s movement and facilitate searching such as, handcuffs, flex cuffs, leg irons, belly chains, optional nylon restraining devices etc.

Chemical Agents Individual Protection Devices: CS/OC spray agent used to subdue or bring a subject into compliance. Refer to section 20.6(a).

Transporters: Techniques used to control and/or move a subject from point A to point B with the minimum effort by the officer or to gain and retain control over the subject.

Takedown: Techniques that redirect a subject to the ground in a controlled manner to limit physical resistance and to facilitate the application of a restraint device, and to prevent intentional injury to the subject.

Pain Compliance: Techniques designed to force a subject to comply with an officer, as a result of the officer inflicting controlled pain upon specific points in the subject’s body such as pressure point techniques.

Level 4 – (Assaultive & A Threat to Bodily Harm) Serious Potential for Physical Harm

Electronic Control Device: Is a Level 4 application of force, when properly employed.  Such devices will not be used on persons suspected to have implanted medical devices such as pace makers or time medical dispensing mechanisms. Refer to section 20.6(b).

Intermediate Weapon: Impact weapons that are primarily used to control a subject such as a baton, expandable baton, Electronic Control Device, and/or police canine. These techniques may be an impact weapon, such as a strike to a major nerve area.

Level 5 – (Assaultive & Serious Threat of Bodily Harm or Death) High Potential for Great Bodily Harm or Death

Deadly Force:  Techniques and implements that by their very nature are known to cause death or serious injury.  To employ deadly force officers must perceive that an imminent threat to their life or the life of another is present.

It is important to remember that almost all incidents faced by police are not scripted, easy to understand, or predictable as to outcome.  Officers use their best effort to determine the threat level and apply the corresponding response.  Time permitting, officers must use care in evaluating a suspect’s actions and perceived threat level.  If there is reasonable doubt and time permits, seek assistance before acting.  Justification for the use of force and deadly force must be limited to what is known or reasonably perceived by the officer at the time of the incident.  Facts unknown at the time force is used should not be considered later to determine whether the force was justified.

Officers may not intentionally use more force than is necessary and reasonable under the circumstances.  Officers may never use force in response to mere verbal provocation or abusive language directed at the officer.  Officers must never use deadly force, except to protect his/her life, or the life of other human being.

3. APPLICATION OF USE OF FORCE/DEADLY FORCE:

While the use of a firearm is expressly considered deadly force, other force might also be considered deadly force if the officer reasonably anticipates and intends that the force applied will create a substantial likelihood of causing death or serious physical injury under the circumstances.

Use of deadly physical force is justified in the following circumstances:

1. An officer may use deadly physical force to protect himself/herself or another from what he/she reasonably believes to be an imminent threat of death or serious physical injury.
2. An officer may use deadly force to stop a fleeing suspect when the officer has probable cause to believe that the suspect has committed, or intends to commit, a felony involving the infliction, or threatened infliction of serious physical injury or death, and, the officer reasonably believes that there is an imminent or future potential risk of serious physical injury or death to others if the suspect is not immediately apprehended. Under such circumstances, and when feasible, a verbal warning should precede the use of deadly force.

Chokeholds and Obstruction of Breathing or Blood Circulation:

Any application of pressure to the throat, windpipe, neck, or blocking the mouth or nose of a person in a manner that may hinder breathing, reduce intake or air or obstruct blood circulation, is prohibited unless deadly physical force is authorized.

4. RESTRICTIONS ON THE USE OF DEADLY PHYSICAL FORCE:

Deadly force may not be used under the following circumstances:

1. As a warning or threat;
2. With the intent to maim or cripple a person;
3. On a person who has not caused or threatened to cause serious physical injury or death to another person, including the officer;
4. On a person who simply flees or evades arrest;
5. At or from a moving vehicle, except in exigent circumstances, and only in an attempt to save human life;
6. Merely to prevent the destruction or theft of property; or
7. When the officer has any doubt as to the justification for using deadly force.

5. USE OF NON-DEADLY FORCE:

Officers use physical strength and skill, restraint devices, chemical weapons, electronic weapons, or impact weapons to apply non-deadly force only.

Officers have no obligation to retreat or back down before resorting to approved use of force, including deadly force.  Officers may consider retreat or withdrawal where delay could make a more peaceable arrest, or stop, likely if such tactics would not increase risk to self or others.  In some cases, an increased show of force may reduce the amount of force necessary to accomplish the officer’s objective.

Officers may not attempt to affect arrests alone if there is substantial risk to self from the arrestee or another party unless there are no available reasonable alternatives.

Officers use handcuffs or other restraining devices on all arrestees unless it is obviously unnecessary or impractical (e.g. the elderly, young juveniles, amputees, crippled, injured, or other applicable subjects).  Officers must take reasonable precautions to protect arrestees from injury caused by handcuffs or other restraining devices.  Only restraining devices and techniques approved by the agency may be used.

Officers may use chemical weapons for self-protection, or to subdue a person unlawfully resisting arrest.  Any person upon whom a chemical weapon has been used must be treated or decontaminated for exposure to the chemical agent as soon as practical and thereafter monitored for possible latent effects. Refer to policy 20.6(a).

Officers may use approved electronic weapons in accordance with department policy 20.6(b).  An electronic weapon is only to be used to protect persons from assaultive behavior and to subdue persons physically resisting arrest.

Officers may use impact weapons to protect self or another from assault or to arrest a person who unlawfully and violently resists arrest if lesser methods have failed, or if circumstances warrant the immediate use of the baton.  However, officers should:

1. Avoid baton blows that are capable of inflicting serious bodily injury;
2. Not raise the baton above the head to strike someone or use the baton as a club or bludgeon;
3. Deliver only short snappy body blows to vulnerable areas in order to temporarily incapacitate subjects; &
4. Not deliberately strike the face, head, neck, collarbone, spine, kidney area, solar plexus, knees, or elbows.

Officers not trained and currently certified with impact weapons are not authorized to use flashlights or other similar devices as substitutes, except in extreme life-threatening emergencies.

Officers shall receive initial training with all less-than-lethal weapons prior to deploying such weapon. Officers will receive annual training during the spring range on all weapons deployed by the police department.

6. PROHIBITED USE OF FORCE:

Force shall not be used by an officer for the following reasons:

1. To extract an item from the anus or vagina of a subject without a warrant, except where exigent circumstances are present;
2. To coerce a confession from a subject in custody;
3. To obtain blood, saliva, urine, or other bodily fluid or cells, from an individual for the purposes of scientific testing in lieu of a court order where required;
4. Against persons who are handcuffed or restrained unless it is used to prevent injury, escape or otherwise overcome active or passive resistance posed by the subject.

7. DUTY TO INTERVENE:

A. Any officer present and observing another officer using force that he/she reasonably believes to be clearly beyond that which is objectively reasonable under the circumstances shall intercede to prevent the use of unreasonable force, if and when the officer has a realistic opportunity to prevent harm.

b. An officer who observes another officer use force that exceeds the degree of force as described in subdivision A of this section shall promptly report these observations to a supervisor.

8. MEDICAL ATTENTION FOR INJURIES SUSTAINED USING FORCE

Prior to booking or release, medical assistance shall be obtained for any person(s) who has sustained visible injury, expressed a complaint of significant pain, or who has been rendered unconscious. If any individual refuses medical attention, such a refusal shall be fully documented in related reports and, whenever practical, should be witnessed by another officer and/or medical personnel. If an audio recording is made of contact or an interview with the individual, any refusal should be included, if possible.

Persons who exhibit extreme agitation, violent irrational behavior accompanied by profuse sweating, extraordinary strength beyond physical characteristics, unusually high tolerance to pain or who require a protracted physical encounter with multiple officers to bring under control may be at an increased risk of sudden death and should be examined by qualified medical personnel as soon as practicable. Any individual exhibiting signs of distress after such an encounter shall be transported by ambulance to a hospital to be medically cleared before booking.

The immediate mental health needs of a person shall be based upon the reasonable cause to believe that a person, who appears to be mentally ill, is conducting themselves in a manner which is likely to result in a serious harm to themselves or others.

9. OFFICER RESPONSIBILITY

Officers, who discharge a firearm, use chemical weapons, electronic weapons, impact weapons, special weapons, knives, or who cause or reasonably believe they may have caused bodily injury or death to other persons by use of force or deadly force must notify their direct supervisor immediately.

Officers are required to complete a written report detailing the circumstances surrounding the use of force incident.  This written use of force report requirement must be met even though other required reports may have already covered the situation.

In incidents where officers cause, or are alleged to cause, a physical injury or death through the application of force, they must first call for medical assistance, secure the scene as well as possible, and then notify their direct supervisor.  Upon arrival, the supervisor takes charge of the scene and will conduct an investigation concerning the incident. A notification of the incident is made to the Chief of Police.

In incidents involving the use of force, all officers assist in every way possible with the investigation.  Any report required by this policy receives executive review in an effort to:

1. Protect the integrity of the facts and the evidence;
2. Ensure that the officer’s use of force complied with all appropriate state and federal laws, and agency policy;
3. Determine if the officer’s use of force indicates a need for special counseling, training, or disciplinary action;
4. Determine whether the situation requires further action; &
5. Evaluate the need for additional or future, training.

10. SUPERVISOR RESPONSIBILITY

A supervisor should respond to any incident in which there has been a reported application of force. The supervisory responsibilities include, but are not limited to the following:

1. Obtain the basic facts from the involved officer(s)
2. Ensure that any injured parties are examined and treated
3. Separately interview the subject(s) upon whom force was applied
4. Ensure that photographs have been taken of any areas involving visible injury or complaint of pain as well as overall photographs of uninjured areas
5. Identify any witnesses not already included in related reports
6. Review and approve all related reports
7. Ensure that all officers present submit a report
8. Complete the “Supervisor” portion of the “Use of Force” report and submit it through the Chain of Command.

Should the supervisor determine that any application of force was not within policy, a separate internal complaint investigation will be initiated.

In the event that a supervisor is unable to respond to the scene of an incident involving the reported application of force, the supervisor is still expected to complete as many of the above items as circumstances permit prior to the end of the shift.

11. ADDITIONAL REPORTING REQUIREMENTS:

Each officer who witnessed the incident or responded to the scene must complete a written report.  These witness reports must be completed no later than the conclusion of the shift in which the incident occurred and filed with the Chief of Police or designee.

Officers shall be required to make notification to the OIC when any of the following events are initiated by an officer:

1. Brandishing of a firearm at or in the direction of another person;
2. Displaying of oleoresin capsicum spray;
3. Brandishing of an impact weapon;
4. Brandishing of an electronic control weapon;
5. Uses a chokehold or similar restraint that applies pressure to the throat or windpipe of a person in a manner that may hinder breathing or reduce intake of air.

The OIC will then make notification of the event to the chief or his designee via e-mail. Furthermore, the officer(s) shall document the details of the event in a case/blotter narrative. Should any of the above events result in a situation requiring that a use of force report be completed the above described event can be detailed there and no additional reporting shall be required.

The officer(s) who actually used or employed the deadly force will be relieved of duty at the scene, and follow-up action handled in accordance post-shooting procedures.  Refer to section 21.1 Review of Firearms Use.

All reports completed by the officers using force, other officers or witnesses must include the following:

1. A description of the events leading to the use of force or deadly force;
2. The original offense or probable cause for the stop or action;
3. An accurate description of the incident and reasons for employing force;
4. A description of the weapon or device used and the manner in which it was used;
5. A description of the injuries suffered, and the treatment given or received;
6. A list of all participants and witnesses to the incident; &
7. A copy of all incident reports compiled because of the incident.

12. ADMINISTRATIVE REPORTING REQUIREMENTS:

NYS Executive Law 837-t requires each police department to report any occurrence in which a police officer employs use of force as noted below:

A. When an officer engages in conduct which results in the death or serious bodily injury to another person. Serious body injury is described as bodily injury that involves a substantial risk of death, unconsciousness, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

B. When one of the following is initiated by an officer:

1. Brandishes, uses or discharges a firearm at or in the direction of another person;
2. Uses a chokehold or similar restraint that applies pressure to the throat or windpipe of a person in a manner that may hinder breathing or reduce intake of air;
3. Displays, uses or deploys a chemical agent, including, but not limited to oleoresin capsicum, pepper spray or tear gas;
4. Brandishes, uses or deploys an impact weapon, including, but not limited to, a baton or billy;
5. Brandishes, uses or deploys an electronic control weapon.

The Chief of Police or his/her designee will be responsible for reporting the required information to DCJS in the situations that meet the criteria as indicated above. The Chief of Police formalizes criteria for reporting incidents.

13. ALLEGATIONS AGAINST STAFF:

The Chief of Police or his designee investigates all allegations of improper use of force & deadly force, after notifying the Chief of Police.  In cases where possible criminal acts are involved, the appropriate law enforcement agency or prosecutor office must be notified.

Authority:

G. Joseph Boisclair

Chief of Police