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LOPD Use of Force Policy and "8 Can't Wait"
Recently, the Lake Oswego Police Department has received several inquiries about our policies and procedures as they relate to the use of force and the "#8CantWait" initiative. Below, you will find the 8 topics listed in the initiative and our response to each. Before we answer the questions, though, we wanted to provide a little overview of the parameters of police use of force. We think it will help give some context to some of the topics and the responses. There are two very important US Supreme Court cases that deal with this topic:
Graham v. Connor https://casetext.com/case/graham-v-connor?
Tennessee v. Garner https://casetext.com/case/tennessee-v-garner-memphis-police-department-v-garner?
Essentially, these two cases supply the framework for which all force/seizures are examined to determine if they are reasonable given the circumstances presented at the time. They recognize that circumstances involving force are often tense, uncertain, and rapidly evolving but still require the actions of the officer(s) to be objectively reasonable in light of what they are encountering. These cases examine, without hindsight, the severity of the offense, the immediacy of the threat presented, and whether the person(s) was attempting to evade arrest by fight/flight. In Garner, the examination also includes an analysis of the threat of serious physical injury and/or death the person(s) may pose to the officer and/or public should they not be stopped and taken into custody. The cases don’t discuss specific tactics that could be used because each situation encountered could be completely different from the next. One type of tactic may be appropriate in one situation but completely inappropriate in another.
"8 Can't Wait" Questions
Require officers to de-escalate situations before resorting to force
We understand positive relationships and trust fostered between law enforcement and our communities are a continuous process reflected in many of our professional practices and initiatives. It is a reason why we place such an importance on training in the areas of law, our physical and technical skills, and our cognitive and behavioral skills. This includes de-escalation training in both formal (in-service) and informal (routine briefing talks) training.
De-escalation tactics have been around for years and have been useful in many situations and our officers use them whenever they are appropriate. Our officers work towards positive outcomes whenever possible and that is typically and most routinely accomplished with respectful treatment and fair application of the law. The vast majority of our community contacts end up just like this. There are circumstances where de-escalation can sometimes be less effective and that is usually when we encounter a person who is suffering from some kind of psychosis, often drug/intoxicant related, or has demonstrated an intent to harm others and is unwilling to compromise that goal. In those situations, we work to keep them and the public safe and get the right resources as quickly as we can. Those resources are often medical assets or behavioral health units. In those situations, we do our best not to inflame a situation or create our own exigency. We discuss this at every skills-based training.
Limit the kinds of force that can be used to respond to specific forms of resistance
As mentioned above, the use of force is judged by the objective reasonableness of its use given the circumstances. There are some tools, like Tasers or less-lethal projectile devices, that have recommended and discouraged uses, and we train to those protocols. But, ultimately, everything is still judged using the objective reasonableness standard with the circumstances presented. We train our officers to be very methodical and diligent in their analysis of an incident with the goal being to bring about a safe resolution to an incident using the appropriate amount of force (if any).
We do not instruct our officers in the use of the vascular neck restraint ("chokehold").
Require officers to give a verbal warning before using force
Our policy and training instruct that our officers should give a verbal warning prior to using force when feasible, knowing there may be some situations where it cannot feasibly be done due to the rapid nature of the incident or if it negatively impacts any tactical considerations.
Prohibit officers from shooting at moving vehicles
Our policies and training discourage shooting at moving vehicles as it is rarely effective, but we do not prohibit it entirely. It would depend on the objective reasonableness of the action in the absence of any other technique more likely to affect the stop. Let’s say an officer tried to stop a vehicle for only speeding and the driver tried to elude the officer and would not stop. If all that was demonstrated was that speeding violation and the elude, shooting at a vehicle would not be objectively reasonable given those circumstances. If there was a situation where a vehicle was driving around and the driver or their occupants were actively shooting at people or attempting to run people over, like the incident in France a few years back, shooting at a vehicle to get it to stop might be objectively reasonable if no other effective options were reasonable at the time.
Require officers to exhaust all alternatives to deadly force
Those types of structures are less than ideal as a blanket policy because it implies certain, exact steps/tactics should be followed in a particular order, which may not be effective and delay the appropriate response. Depending on the situation, the level of response to a threat may need to be more significant and in others, not as heightened. For example, an active shooter incident at a school could necessitate immediate lethal intervention to save lives. There is also case law from the United States Court of Appeals, 7th Circuit, (Plakas v. Drinski) that said, "[t]he Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. The only test is whether what the police officers actually did was reasonable."
Require officers to stop colleagues from exercising excessive force
Our use of force policy and teachings require our officers to intervene and promptly report the incident to a supervisor.
Require comprehensive reporting on the use of force
We thoroughly document every use of force in a police report, even those situations where force wasn’t used but was displayed (e.g. displaying a firearm). Those incidents are also reviewed each month to determine if there are any training/tactic issues that need to be addressed.