INTRADEPARTMENTAL CORRESPONDENCE

July 13, 20111.10CB#11-0018

TO: The Honorable Board of Police Commissioners

FROM: Chief of Police

SUBJECT: REVIEW OF NINTH CIRCUIT DISTRICT COURT DECISION BRYAN v.McPHERSON AND THE LOS ANGELES POLICE DEPARTMENT'S USE OFFORCE POLICY

RECOMMENDED ACTION

1. That the Board of Police Commissioners APPROVE the Department's report and TRANSMITto the Public Safety Committee for REVIEW.

DISCUSSION

On December 28, 2009, Judge Wardlaw of the U.S. 9th Circuit Court of Appeals issued a ruling in thecase of Bryan v. McPherson. The case involved the deployment and use of an Electronic ControlDevice (TASER), subsequent to a lawful traffic stop. The suspect, Bryan, while not combative, wasuncooperative. Bryan exited his vehicle shirtless, wearing only boxer type undershorts, and speakingunintelligibly. Bryan was subsequently tased by Officer McPherson and as a result, fell to the ground,breaking four teeth and sustaining injuries to his face. The U.S. 9 th Circuit Court of Appeals decidedthat these facts did not rise to a level of danger to the officer or bystanders which would warrant thedeployment of the TASER.

As a result of this decision, the Los Angeles Police Department conducted an analysis of its Use ofForce policy to ensure that it meets the Use of Force standard set by this decision. The Departmentconcluded that the court decision has no impact on the current Use of Force policy. The Department'sUse of Force policy regarding the deployment of the TASER was found to be more restrictive than thestandard set by the U.S. 9 th Circuit Court of Appeals.

If you have any questions, please contact Lieutenant Michelle Richards, Officer in Charge, Firearms andTactics Section, Training Division, at (818) 832-3710.

Respectfully,

CHARLfl)--\E BECKChief of Police

Attachments

FACT SHEET

NINTH CIRCUIT DISTRICT COURT DECISIONBRYAN VS. McPHERSON AND USE OF FORCE POLICY

June 9, 2011

PURPOSE

On May 26, 2011, Training Division (TD) was directed to review the court decision in the caseof Bryan vs. McPherson and identify its impact on the Department's Use of Force (UOF) policyand training.

BACKGROUND

On December 28, 2009, Judge Wardlaw of the U.S. 9 th Circuit Court of Appeals issued a rulingin the case of Bryan vs. McPherson. The case involved the deployment and use of the Taser®Electronic Control Device (ECD) subsequent to a lawful traffic stop. The suspect, while notcombative, was uncooperative. It should also be noted that the suspect was shirtless, wearingonly boxer type undershorts, and speaking unintelligibly. The suspect, Bryan, was tased byOfficer McPherson and fell to the ground, breaking four teeth and sustaining injuries to his face.At the core of the decision was the argument that while it is not refuted that the suspect was halfnaked, speaking unintelligibly, and uncooperative, these facts did not rise to the level of dangerto the officer or bystanders and did not warrant the deployment of the ECD.

FINDINGS

Currently, the Department teaches that the ECD is to be deployed for suspects whose "behavioractions" under the Graham vs. Conner "Objective, Reasonable Standard," leads the officer tobelieve that there is a risk that the suspect's actions may cause harm to the officer, bystanders, oreven the suspect himself. This policy and related training do not conflict with the Ninth CircuitCourt Decision case referred to as Bryan vs. McPherson. Furthermore, the Departmenthistorically placed the deployment of the ECD in the "Aggressive and/or Combative" levelwithin the UOF policy prior to adopting the Graham vs. Conner model in July of 2009(Attachment No. 1).

The fact that the Department already mandates a verbal warning be given when it is tacticallyfeasible, prior to deployment, also places the Department's ECD deployment criteria at a higherlevel of scrutiny than many other law enforcement agencies.

Deputy City Attorneys Cory Brente and Julie Raffish reviewed relevant Department Directives,manuals, and related materials and made several suggestions regarding verbiage. Theserecommendations are currently being reviewed by the Tactics Training Review Committee(TTRC).

Page 1 of 2

FACT SHEET

NINTH CIRCUIT DISTRICT COURT DECISIONBRYAN VS. McPHERSON AND USE OF FORCE POLICY

June 9, 2011

CONCLUSION

The Bryan vs. McPherson court decision has no policy impact on the Department's UOF policy.It is recommended that the Department make no changes to either its current training philosophyor training scenarios.

Minor verbiage modifications to Use of Force-Tactics Directive No. 4.2: Electronic Control

Device TASER, February 2011, (Attachment No. 2) is under final review by the TTRC. CityAttorney Brente is a standing member of the TTRC and will be a collaborating member of thefinal publication. The revised Directive is expected to be published within the next 90 days.Once the Directive is published, TD staff will review all related lesson plans to ensureconsistency in training materials and learning objectives.

Prepared by:Firearms and Tactics SectionTraining Division

Attachments

Page 2 of 2

Directive No. 1 July 2009

USE OF FORCE POLICY- REVISED

PURPOSE

The purpose of this Order is to provide Department personnel with a Use of ForcePolicy that is concise, easily understood, and consistent with prevailing law and industrybest practices.

Preamble to Use of Force

The use of force by members of law enforcement is a matter of critical concern both tothe public and the law enforcement community. It is recognized that some individualswill not comply with the law or submit to control unless compelled to do so by the use offorce; therefore, law enforcement officers are sometimes called upon to use force in theperformance of their duties. It is also recognized that members of law enforcementderive their authority from the public and therefore must be ever mindful that they arenot only the guardians, but also the servants of the public.

The Department's guiding value when using force shall be reverence for human life.When warranted, Department personnel may objectively use reasonable force to carryout their duties. Officers who use unreasonable force degrade the confidence of thecommunity we serve, expose the Department and fellow officers to legal and physicalhazards, and violate the rights of individuals upon whom unreasonable force is used.Conversely, officers who fail to use force when warranted may endanger themselves,the community and fellow officers.

DEFINITIONS

Objectively Reasonable: The legal standard used to determine the lawfulness of a useof force is the Fourth Amendment to the United States Constitution. See Grahamversus Connor, 490 U.S. 386 (1989). Graham states in part, "The reasonableness of aparticular use of force must be judged from the perspective of a reasonable officer onthe scene, rather than with the 20/20 vision of hindsight. The calculus ofreasonableness must embody allowance for the fact that police officers are often forcedto make split-second judgments - in circumstances that are tense, uncertain and rapidlyevolving - about the amount of force that is necessary in a particular situation. The testof reasonableness is not capable of precise definition or mechanical application." Theforce must be reasonable under the circumstances known to the officer at the time theforce was used. Therefore, the Department examines all uses of force from anobjective standard, rather than a subjective standard.

Use of Force — Tactics DirectiveUse of Force Policy-RevisedPage 2

Factors Used to Determine Reasonableness: The Department examinesreasonableness using Graham and from the articulated facts from the perspective of aLos Angeles Police Officer with similar training and experience placed in generally thesame set of circumstances. In determining the appropriate level of force, officers shallevaluate each situation in light of facts and circumstances of each particular case.

Those factors may include, but are not limited to:

• The seriousness of the crime or suspected offense;• The level of threat or resistance presented by the subject;• Whether the subject was posing an imminent threat to officers or a danger to the

community;• The potential for injury to citizens, officers or subjects;• The risk or apparent attempt by the subject to escape;• The conduct of the subject being confronted (as reasonably perceived by the

officer at the time);• The time available to an officer to make a decision;• The availability of other resources;• The training and experience of the officer;• The proximity or access of weapons to the subject;• Officer versus subject factors such as age, size, relative strength, skill level,

injury/exhaustion and number officers versus subjects; and,• The environmental factors and/or other exigent circumstances.

Deadly Force: Deadly Force is defined as that force which creates a substantial risk ofcausing death or serious bodily injury.

Imminent: Black's Law Dictionary defines imminent as, "Near at hand; impending; onthe point of happening."

Serious Bodily Injury: California Penal Code Section 243 (f) (4) defines Serious BodilyInjury as including, but not limited to:

• Loss of consciousness;• Concussion;• Bone fracture;• Protracted loss or impairment of function of any bodily member or organ;• A wound requiring extensive suturing; and• Serious disfigurement.

Warning Shots: The intentional discharge of a firearm off target, not intended to hit aperson, to warn others that deadly force is imminent.

Use of Force — Tactics DirectiveUse of Force Policy-RevisedPage 3

POLICY

Use of Force — General

It is the policy of this Department that personnel may use only that force which is"objectively reasonable" to:

• Defend themselves;• Defend others;• Effect an arrest or detention;• Prevent escape; or,• Overcome resistance.

Deadly Force

Law enforcement officers are authorized to use deadly force to:

• Protect themselves or others from what is reasonably believed to be an imminentthreat of death or serious bodily injury; or,

• Prevent a crime where the subject's actions place person(s) in imminent jeopardyof death or serious bodily injury; or

• Prevent the escape of a violent fleeing felon when there is probable cause tobelieve the escape will pose a significant threat of death or serious bodily injuryto the officer or others if apprehension is delayed. In this circumstance, officersshall, to the extent practical, avoid using deadly force that might subject innocentbystanders or hostages to possible death or injury.

Warning Shots

Warning shots shall only be used in exceptional circumstances where it mightreasonably be expected to avoid the need to use deadly force. Generally, warningshots shall be directed in a manner that minimizes the risk of injury to innocent persons,ricochet dangers and property damage.

Shooting At or From Moving Vehicles

Firearms shall not be discharged at a moving vehicle unless a person in the vehicle isimmediately threatening the officer or another person with deadly force by means otherthan the vehicle. The moving vehicle itself shall not presumptively constitute a threatthat justifies an officer's use of deadly force. An officer threatened by an oncomingvehicle shall move out of its path instead of discharging a firearm at it or any of itsoccupants. Firearms shall not be discharged from a moving vehicle, except in exigentcircumstances and in the immediate defense of life.

4

11pwo/ .A11114.111-1

III 1111WILLIAM J.Chief of Police

Use of Force — Tactics DirectiveUse of Force Policy-RevisedPage 4

Note: It is understood that the policy in regards to discharging a firearm at orfrom a moving vehicle may not cover every situation that may arise. In allsituations, Department members are expected to act with intelligence andexercise sound judgment, attending to the spirit of this policy. Any deviationsfrom the provisions of this policy shall be examined rigorously on a case by casebasis. The involved officer must be able to articulate clearly the reasons for theuse of deadly force. Factors that may be considered include whether the officer'slife or the lives of others were in immediate peril and there was no reasonable orapparent means of escape.

AMENDMENTS

This Directive cancels Training Bulletin Volume X, Issue 11, Use of Force Part II, datedMay 1978.

DISTRIBUTION "D"

■■•

Legal StandingPolicy / Law

FOURTH AMENDMENT

Objectively Reasonable StandardIn Light of the Facts and Circumstances Confronting

Officer 6rahom vs. Connor, 490 U.S. 386 (1989)

Factors include but are not limited to:• Facts and circumstances of a particular case;• Severity of the crime at issue:• Suspect posing immediate threat to safety of officers/

others;• Suspect actively resisting arrest or attempting to evade '"

arrest by flight;• Time available to officer to make decision;• Reasonable officer's perspective, based upon training and

experience, without 20/20 hindsight;• Officer/ suspect factors such as: number of officers vs.

number of suspects; proximity of potential weapons; age/size/ relative strength; suspect's special knowledge/ skilllevel; officer injury/ exhaustion; suspect's mental illness/drug usage; officer's knowledge of prior contacts; risk ofescape; environmental factors; other exigentcircumstances.

Officer(s) ReactionsType and amount of force

used in response to suspectactions! behaviors

Suspects BehaviorsFacts & circumstances

known to officer at the timeof the incident

YesIn Policy

NoOut of Policy

ADJUDICATION

CarotidRestraint

Control Hold

Assault orFleeing

TASERLess LethImpact DevicesTeam Take

DownsGround Grappling

(kicks, strikes)

Suspect'sBehaviors

Officer'sResponse

ObjectiveReasonableness

No Action,Counseling, or

Training

Counseling,Training, or

Discipline

Serious BodilyInjury or LifeThreatenin

PolicePresenceFirm Grip

Verbalization

Deadly ForceFirearms

Reasonabfr,Response

Los Angeles Police Department Use of Force Standard

PA F.7':r j,

p yik A (7j: r. (7;DIP E: C

Directive No. 4.2 February 2011

ELECTRONIC CONTROL DEVICETASER

PURPOSE

Currently, the Model X-26 is being usedby the Department. This Directive willdiscuss the policy, procedure andapplication pertaining to the TASER.Specific key points of the TASER, aswell as definitions used, are listed in theback of this Directive.

PROTOCOL

The TASER may be deployed onsuspects who are violent, or who pose a threat to themselves or others, when an officerbelieves:

• Attempts to subdue the suspect with other tactics have been, or will likely be,ineffective in the situation; or

• There is a reasonable belief that it will be unsafe for officers to approach withincontact range of the suspect.

Verbal threats of violence by a suspect do not alone justify the use of the TASER. Any- threat must be a credible one.

Reporting

The use of a TASER is a reportable use of force when the probes and/or contacts makecontact with the suspect's clothing or skin. If no contact is made, the circumstancesshall be documented in the appropriate report such as a crime, arrest or Employee'sReport, Form 15.7. Supervisors shall photograph all visible as well as complained ofinjuries, even when evidence is not present.

Medical Treatment

Whenever the TASER is used and the probes and/or contacts make contact with thesuspect's clothing or skin, the suspect shall be examined by medical personnel as soonas tactically sound. If the suspect loses consciousness, officers shall immediatelyrequest an ambulance.

Use of Force - Tactics DirectiveElectronic Control Device - TASERPage 2

Note: Medical personnel shall include a doctor or a nurse at a contract hospitalor jail dispensary.

Use of Force Warning

An officer shall give a verbal warning in situations which require the use of a TASER,Bean Bag Shotgun, less lethal munitions or impact device to control an individual, whenfeasible. The warning is not required when an officer is attacked and must respond tothe suspect's actions. Additionally, if a tactical plan requires the element of surprise inorder to stabilize the situation a warning is not necessary. Examples of this would be ahostage situation or a subject threatening suicide.

The verbal warning should include a command and a warning of potentialconsequences of the use of force. The command should be similar to, "drop theweapon," or "stop what you are doing" and followed by "or we may use the TASER, andthat may cause you serious injury."

The use of force warning, or why it was not given, must be documented. The officergiving the warning and what was said shall be documented in the Non-Categorical Useof Force Report, Form 1.67.05, under the Use of Force Summary heading. If nowarning was given, an explanation shall be documented with an appropriatejustification. Simply stating that the "element of surprise was needed" or "for officersafety" reasons will not satisfy this requirement. The explanation must clearly articulatethe reason why the element of surprise, officer safety consideration or any otherappropriate reason caused the officers(s) not to provide the warning. The giving of awarning, or the reasons for the failure to do so, will be one factor in determining whetherthe use of force is objectively reasonable.

PROCEDURES

The TASER officer should be within 21 feet of the suspect, which is the length of thecartridge wire. Officers should target the navel area to place one probe above the waistand one probe below the waist for effectiveness. When an officer needs a TASER, theofficer shall broadcast the unit designation, location and "Code Tom" over the radio. Ifpossible, officers should have a second TASER in case the first one fails to operate. Asin any volatile situation, the suspect should be contained as soon as tactically possible.

Generally, officers should avoid deploying the TASER when the suspect is:

• In control of a motor vehicle;• In danger of falling which would likely result in death or serious bodily injury;• Near flammable or combustible fumes;• Near a pool, lake or similar body of water to avoid drowning;• Known to be pregnant or have a pacemaker.

Use of Force - Tactics DirectiveElectronic Control Device - TASERPage 3

DEFINITIONS

Drive Stun/Direct Stun: Two contacts on the cartridge receiver that conduct energy toaffect the suspect's sensory functions. This feature may be used with or without acartridge in place. If a cartridge is in place, the probes will deploy when the trigger ispressed.

Ideal Range: The ideal range for the TASER is 7-15 feet.

Optimum Target Areas: Back, navel or belt line for probes. Forearm, outside of thigh,calf muscle for drive stun/direct stun. Avoid using the stun feature on the head, face,throat, and groin.

Note: There are many factors that go into an officer's ability to hit the intendedtargeted area of a suspect. When a suspect is struck in a location outside of theoptimum target area the officers should be prepared to explain the deviation.

TASER: An electronic control device that uses low amperage electrical currents todisrupt normal nerve signals to skeletal muscles, achieving control through neuro-muscular incapacitation. The electrical current is delivered through probes attached towires and/or through the two contacts located on the cartridge receiver.

AMENDMENTS

This Directive replaces Use of Force-Tactics Directive No. 1, 2010, Electronic ControlDevice, TASER.

CHARLIE BECKChief of Police

DISTRIBUTION "A"

Attachments

TASER CHARACTERISTICS

KEY POINTS

Neuro-MuscularIncapacitation

•••••

No long term effects on the suspectContracts skeletal muscles by overriding the central nervous systemElectrical output is 50,000 volts, with 6.5-wattsEmits TASER waves (T-waves) similar to normal electric signals in the bodyUsually causes the suspect to fall to the ground

System • Activated for 5-seconds (automatic pulse regulation) by pressing and releasing the trigger• Automatic pulse regulation can be overridden by placing the safety down• Suspect can be touched while TASER is activated except between or within 2" of the probes• Effective in water, as long as both probes hit and attach to the suspect

• Spark tests should be conducted at the start of watch, despite the % life remaining feature. Onespark for less than a second is adequate to determine that the TASER device is working and thatthe batteries are performing and are adequately charged.

• Never place your hand in front of or inside the cartridge chamberWeapon • Visually check to ensure there is not a cartridge in the chamber

Inspection • Point at a wall or other object away from other people• Place the safety up, activating the laser sight, ensuring the laser sight is functioning properly (one

dot representing the path of the top probe)• Press the trigger and listen for rapid sparking• Put the safety in the safe (down) position and load• Each time the spark check is conducted it should be recorded on the DFAR

• Only the yellow/black striped or solid silver faced cartridges should be used in the field• Field cartridges have 21-feet length of TASER wire

TASER • Reversible loadingCartridges • 5-year shelf life with expiration date listed on the rear in the right corner

• Do not use TASER cartridges when the front blast door is missing• Anti-Felon Identification (AFID) Tags, marked with the cartridge serial number are released each

time the TASER is fired and give the general location of where the device was fired

Holster • Shall be worn on the support side of the duty belt in either a cross draw or support side draw(Wearing) position

• Primary target areas are the back, navel or belt line• If practicable, deploy the TASER at the suspect's back where the clothes fit tighter and there is

Optimum Target more muscle massAreas • Officers should target the navel area to place one probe above the waist and one probe below the

waist for effectiveness• Avoid targeting the head, face, throat, and groin

• Not as effective as deploying probes, no neuro-muscular incapacitation. Affects only the sensorynervous system

• Situations in which the stun mode may be advantageous:- Officers are under attack and unable to deploy probes

Stun Feature - Officers are within close quarters of the suspect- Officers are in contact with the suspect and the deployment of probes may affectthose officers

• Drive stun can be used without a cartridge, with an expended cartridge or a live cartridge;however, with a live cartridge the probes will deploy into the suspect

• For maximum effectiveness in drive stun mode, drive the TASER into the suspect's forearm,outside of thigh, or calf muscle

• Avoid using the drive stun on the carotid (sides of neck) and groin areas

UOF-TAC DIR NO. 4.2

TASER CHARACTERISTICS

KEY POINTS

MaintenanceandCare

•••••

Avoid dropping the TASER and cartridgesAlways store the TASER in its protective holster with a cartridge loadedAvoid exposing to excessive moistureOccasionally wipe out cartridge firing bay with a dry clothCheck expiration date of TASER cartridges

• 2 x 3 volt lithium energy cells, within the Digital Power Magazine (DPM), that do not requirerecharging

• 10-year shelf lifeBatteries • Provides up to 195 five-second cycles at room temperature

• DPM requires replacement when percentage of battery life is less than 10%• Note: Continued use at 0% could damage the X-26 TASER• X-26 must be stored with the DPM inserted at all times

Central • Percentage of battery life remaining displayed when safety in the down positionInformation • 5,4,3,2,1,1111 countdown when weapon is triggered

Display (CID) • Illumination status of weapon when light selector button is activated

• Stores the date and time of each activation, duration, battery, and temperatureData Port • Information accessed via the dataport on rear of device

• If the dataport's rubber cover is missing, the TASER should be taken out of service.

• Place the safety switch in the down position and unload the TASER cartridge• Press and hold the illumination selector for approximately one second until the CID display

illuminatesIllumination • Press and release the illumination selector to toggle through the four available modes until the

Selector setting desired is displayed on the CID

LO: Laser only will illuminate OF: Only light will illuminateLF: Laser and light illuminate 00: No laser or light; CID dims

• The selected mode will display on the CID for 5 seconds when activated

UOF-TAC DIR NO. 4.2

17:14.9 ePr..10.* Lira Training Bulleting Synopsis: Bulletin 15.0

ADVISORY: We have lowered the preferred point of aim for frontal TASEW Electronic ControlDevice (ECD) discharges by about 5 inches to avoid the head, neck, and chest area when possible.

PREFERRED TARGET ZONES (DARKER AREAS)

RATIONALE: 1. Avoiding chest/breast shots with ECDs, whenever possible, helps minimize the controversy

about whether ECDs do or do not affect the human heart because the farther away from theheart the darts are deployed, the less it can be argued that the ECD affected the heart.

2. For frontal shots. ECDs have been found to be more effective if the probes are In theabdominal to pelvic region rather than in the chest/breast (more nerves, more muscle, lessbony structures, and critical balance functions in the mid body)

3. We believe this recommendation will improve the effective use of ECDs while furtherincreasing safety margins and enhancing the ability to defend such cases in post-event legalproceedings.

4. Back shots, below the neck, remain the preferred target area when practical.

REMINDER: Once officers engage In detention and restraint procedures, regardless of the type offorce option, it is important to minimize the duration of the physical struggle and amount of forceused. The longer the struggle, the greater the risk of injury or death related to overexertion, trauma.or escalation.

The risk of an adverse cardiac event related to an ECD discharge isdeemed to be extremely low. These guidelines further reduce this remote risk and improve riskmanagement,

NOTE: ECD discharges to sensitive areas are n9/ prohibited. It is expressly understood thatconfrontation, capture, control, and restraint situations are dynamic and fluid and that ECDdischarges to these areas will occur. These guidelines are intended to improve effectiveness whilereducing risk and post-incident litigation.

This bulletin is not intended to be a substitute for any agency's individual policies and/or procedures.More Information: www.TASER.com/bulletin

Released: November 6, 2009. Distribution of this Training Bulletin Synopsis eliminates the need to distribute Training Bulletin 15.0,Medical Research Update and Revised Warnings. Version 1.0. 9/30/2009, to all ECD-certined officers.

A note from ...

CHIEF OF POLICECHARLIE BECK

RECEIVEDMAY 23 2011

Office of Administrative Services

CB #11-0018

May 23, 2011

ASSISTANT CHIEF SANDY JO MACARTHUROFFICE OF ADMINISTRATIVE SERVICES

CITY COUNCIL MOTION RELATIVE TO BRYAN V. MCPHERSON CASE

The attached City Council motion requests the City Attorney's Office and the City's lawenforcement agencies report back to the Public Safety Committee with an evaluation of theBryan v. McPherson case and its impacts on the City of Los Angeles and LAPD's existing policyfor the use of stun guns and whether this policy is within use-of-force guidelines.

The written report is due to my office no later than June 23, 2011. The report should be routedthrough the Special Assistant and Chief of Staff.

CARLIE\

ICL,Attachment

PUBLIC SAFETY

MOTION

In December 2010, in the case of Bryan v. McPherson, a federal court of appeals foundthat a Coronado police officer used excessive force when he used a stun gun on an unarmedmotorist. This decision would allow California police officers to be liable for injuries that occuras a result of using a stun gun and set a rigorous precedent for when law enforcement may bepermitted to use stun guns.

The Bryan v. McPherson decision could have implications on use-of-force policies forlaw enforcement agencies around the state, including the Los Angeles Police Department(LAPD). To avoid subjecting the City to potential liability from such lawsuits, the City shouldconduct an evaluation on its existing use-of-force policy as it pertains to the use of stun guns.

I THEREFORE MOVE that the City Attorney's Office be requested and City lawenforcement agencies be instructed to report back to the Public Safety Committee on thefollowing:

An evaluation of the Bryan v. McPherson case and its impact on the City of LosAngeles.

LAPD's existing policy for the use of stun guns and whether this policy is withinuse-of-force guidelines.

PRESENTED BYBERNARD C. PARKSCouncilmember, 8 th District

SECONDED BY

ADM