Force Investigations

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This directive is for internal use only and does not enlarge an employee’s civil liability in any way. The directive should not be construed as creating a higher duty of care, in an evidentiary sense, with respect to third party civil claims against employees. Violations of this directive, if proven, can only form the basis of a complaint by the San Juan County Sheriff’s Office for non-judicial administrative action in accordance with the rules and laws governing employee discipline.
DIRECTIVE TYPE: Policy SUBJECT: Force Investigations NUMBER: OPER-305.00
APPROVED BY: Sheriff Ken Christesen EFFECTIVE DATE: 6/25/2017
NMLEA STANDARDS: ADM.05.04 a LAST MODIFIED: 6/7/2017 LAST REVIEW: 6/7/2017



PURPOSE:


The professional investigation and documentation of use of force incidents is critical to maintaining accountability and public trust. Supervisory oversight of a deputy’s use of force ensures that force is being used in a manner pursuant to Sheriff’s Office’s policies and can identify concerns with training, equipment, and procedures. Furthermore, a thoroughly investigated and documented use of force incident helps protect deputies from false perceptions and allegations of excessive force. The purpose of this policy is to establish a standardized structure governing the investigation, documentation, and review of use of force incidents by Sheriff’s Office personnel.


POLICY:


To ensure that agency personnel remain within the parameters of the Use of Force Policy, the San Juan County Sheriff’s Office requires deputies to document all reportable use of force incidents in a timely, complete, and accurate manner; and requires supervisors to conduct fair, impartial, and professional investigations.


DEFINITIONS:


The following definitions will apply for the purposes of this policy:


  • Deadly Force – Any force application that is reasonably likely to cause death or great bodily harm.


  • Deputy – All sworn Sheriff’s Office personnel regardless of rank as well as reserve deputies while acting in their official capacity for the Sheriff’s Office.


  • Force – Any action, with or without a weapon, used to resist or control.


  • Force Tools – Any Sheriff’s Office issued and/or approved less-lethal device. This includes, but is not limited to, electronic control device (ECD), oleoresin capsicum spray (OC), batons, etc.


  • Great Bodily Harm – Any injury which creates a high probability of death; causes serious disfigurement; or results in permanent or protracted loss or impairment of the function of any member or organ of the body.


  • Physical Technique – Any hand-to-hand technique used to control a subject. This includes, but is not limited to, forms of grabbing, pulling, pushing, punching, and kicking.


  • Unintentional Discharge – Any firearms discharge that was caused by either negligence or a mechanical failure of the firearm itself.


PROCEDURE:


FORCE TYPES


Incidents involving use of force are categorized into three types for reporting and supervisory response/investigative purposes. The highest degree of force applied during an incident is used to determine the appropriate type.


Un-resisted handcuffing and escorting, as well as a show of force with an ECD by means of covering a subject in an area other than the head or neck, or by “sparking” as a deterrent without contact, are not considered a use of force.


All force types require reporting. These types are:


  • Type 1:
    • Any use of force involving physical techniques, excluding strikes, and not resulting in direct or indirect injury to any person;
    • Covering a subject’s head/neck area with a ECD; and/or
    • Pointing a firearm at a subject.


  • Type 2:
    • Any Type 1 use of force resulting in direct or indirect injury;
    • Any Type 1 use of force resulting in a complaint of injury;
    • The use of physical techniques consisting of strikes, regardless of injury;
    • The use of any force tool regardless of contact or injuries (excluding strikes to the head or neck with an impact weapon or intentional discharges with an ECD to the head or neck);
    • The use of handcuffs or other device to apply leverage to a subject; and/or
    • Any use of force which results in injury to a deputy.


  • Type 3:
    • Any use of force involving the use or attempted use of deadly force;
    • Intentional strikes to the head or neck with an impact weapon;
    • Intentional discharges with an ECD to the head or neck; and/or
    • Any type of force which results in great bodily harm or death to any subject.


The primary concern immediately following a use of force incident is citizen, deputy, and suspect safety. After ensuring the safety of all involved, to include providing and/or requesting medical treatment for injured subjects, a supervisor will be notified without delay of any incident under the following circumstances:


  • Any Type 2 use of force;
  • Any Type 3 use of force;
  • When any subject requests medical treatment as the result of a deputy’s actions, regardless of the type; or
  • Any time a deputy feels that they need supervisory assistance.


USE OF FORCE REPORTING (ADM.05.04 (A))


Uses of force will be reported by deputies on a Use of Force Report as well as the incident report narrative. The Use of Force Report and incident narrative will be completed in their entirety, without minimizations or omissions, and will indicate each and every type of force that was used in a particular incident, regardless of effectiveness.


If a deputy uses force on more than one subject during the same incident, a separate Use of Force Report will be completed for each subject. Multiple uses of force on a single subject that are distinctly separated by a period of compliance will require a separate Use of Force Report. In each of these cases, a single incident report narrative will be used for the detailed force explanation.


Narratives regarding a use of force will include a detailed description, from the deputy’s perspective, of the facts and circumstances surrounding the use of force. Narratives will not contain conclusory language such as “aggressive posture” or “furtive movement” but must rather provide detailed, factual information regarding the specific actions of the subject that created the need for force and the deputy’s response.


All Use of Force Reports and incident narratives will be submitted to the shift supervisor before the end of the shift absent specific permission to submit it later. If there are multiple deputies involved in an incident, each deputy who takes any action requiring a Use of Force Report will submit a separate report.


If a deputy is unable to fill out the Use of Force Report because of an injury, a supervisor will interview the deputy as soon as practical and fill out the report to the extent possible based on information learned from the injured deputy.


Any deputy who engages in a reportable use of force, but fails to notify a supervisor or fails to document the incident as outlined by this policy, will be subject to disciplinary action.


The reporting requirements of this policy do not apply to discharging a firearm for reasons other than as a use of force against a person. All other firearms discharges (e.g., unintentional discharges and animal destructions) require written documentation which will be forwarded through an administrative review. Firearms training does not require any documentation.


SUPERVISORY USE OF FORCE INVESTIGATION


Supervisors will follow the Sheriff’s Office Direction & Supervision Policy regarding command staff notifications for uses of force.


Uses of force will be investigated and reviewed by a supervisor of a higher rank than the person using force. Supervisors who use force or authorize a use of force will not conduct the use of force investigation and review. In these circumstances, the next ranking supervisor in the chain of command will assume the investigative position. This does not apply to situations when a supervisor authorizes a Type 1 use of force.


Once notified of a Type 2 or Type 3 use of force, supervisors will immediately respond to the scene to begin the force investigation which will be conducted and documented pursuant to this policy. In the event a corporal is the acting supervisor when a use of force incident occurs, the corporal should contact an available sergeant or lieutenant to assume the investigative position.


Should a supervisor be unavailable to respond to a use of force scene, he or she will designate an uninvolved deputy to immediately respond and begin the investigative process as outlined in this policy, until the supervisor can respond. This delegation may only be used for a Type 2 use of force under extreme situations and not as a regular substitute for supervisory response.


A supervisor’s investigative response and review responsibilities are dictated by the type of force used. At a minimum the following responses will take place.


  • Supervisors will obtain and review Use of Force Reports and any supporting documentation generated from a Type 1 use of force to make a conclusion as to whether or not the use of force was within policy. This determination, along with the documentation of their findings, will be completed and forwarded to the chain of command within one week from the date of occurrence unless prior arrangements have been made with their supervisor.


  • Supervisors will respond to the scene of all Type 2 use of force incidents to:
    • Visually inspect all involved persons for injuries, ask if they are injured, where they are injured, and if they need medical treatment. If not already in progress, arrangements should be made for needed medical attention.
    • Begin the investigative process which includes documenting the scene of the incident, obtaining medical records, obtaining audio and video recordings, collecting physical evidence, etc.
    • Take photographs of the subject to document their condition at the time of the incident, even when no injuries are visible or complained of. For injuries to the genital areas or female breasts on subjects of the opposite gender, supervisors will locate a same-gender deputy, guard, or medical professional to take the photographs. A subject’s refusal to be photographed should be documented in the supervisor’s report.
    • If injured, photographs should also be taken of deputy(s) and/or citizen(s).
    • Obtain a statement from the person who was subjected to force.
    • Identify/canvass for witnesses, both law enforcement and civilian, and ensure that they are segregated for interviewing purposes.
    • Supervisors will obtain and review Use of Force Reports and any supporting documentation generated from a Type 2 use of force to make a conclusion as to whether or not the use of force was within policy. This determination, along with the documentation of their findings, will be completed and forwarded to the chain of command within one week from the date of occurrence unless prior arrangements have been made with their supervisor.


  • Supervisors will respond to the scene of all Type 3 use of force incidents to: (ADM.05.04 (A))
    • Make immediate notification to the administrative captain and their direct supervisor.
    • Visually inspect all involved persons for injuries, ask if they are injured, where they are injured, and if they need medical treatment. If not already in progress, arrangements should be made for needed medical attention.
    • Secure, or cause to be secured, the scene and other potentially perishable evidence.
    • Take photographs of the subject to document their condition at the time of the incident, even when no injuries are visible or complained of. For injuries to the genital areas or female breasts on subjects of the opposite gender, supervisors will locate a same-gender deputy, guard, or medical professional to take the photographs. A subject’s refusal to be photographed should be documented in the supervisor’s report.
    • If injured, photographs should also be taken of the deputy(s) and/or citizen(s).
    • Identify/canvass for witnesses, both law enforcement and civilian, and ensure that they are segregated for interviewing.
    • As soon as practical, secure the weapon(s) used by the involved deputy(s).
    • Pursuant to the Deputy Involved Critical Incidents Policy, the Administrative Captain will handle all internal investigations regarding a Type 3 use of force. This administrative investigation is independent from any criminal investigation occurring at the same time.


Interviews of deputies will adhere to the regulations set forth in “Peace Officer’s Employer-Employee Relations” (NMSA 29-14-3 through 29-14-11). At no time should a supervisor question a deputy for the purposes of an internal investigation in the presence of a criminal investigator.


Any time a non-law enforcement witness to a use of force is identified, he or she should be encouraged to provide a written statement in their own words. Group interviews should never be conducted in a force investigation and all individual parties, law enforcement and citizens alike, should be separated from each other to avoid collaboration of accounts. Furthermore, leading questions should never be asked as well as questions that may suggest justification for the deputy’s actions. It is strongly recommended that, when possible and practical, all interviews be audio recorded for documentation purposes.


Supervisors investigating a use of force should make all reasonable efforts to resolve material inconsistencies between the deputy, subject, and witness statements, as well as inconsistencies between the type of force described by the deputy and any injuries sustained by involved parties.


Supervisors will analyze each separate use of force indicated on the Use of Force Report for policy compliance, regardless of effectiveness. The supervisor’s reasoning behind this determination, to include a precise description of the evidence that either justifies or fails to justify the deputy’s actions, will be documented in the supervisor’s investigative report.


In the event a supervisor identifies the possibility of intentional misconduct on the part of the deputy, he or she will immediately notify their direct supervisor who will notify the appropriate chain of command for additional investigation.


If additional concerns not related to the use of force incident are identified during the review process, these concerns should be documented along with what corrective measures will be, or have been, taken to correct the issue.


USE OF FORCE REVIEW


At a minimum, all Use of Force Reports required by this policy will be reviewed by the appropriate chain of command up to the captain. The purpose of this review is to:


  • Ensure that the deputy's use of force complied with Sheriff’s Office policy;
  • Determine if the deputy's use of force indicates a need for special counseling, training, or disciplinary action;
  • Determine whether the situation requires further action; and
  • Evaluate the need for additional or future agency training.


All supervisory completed use of force reviews, to include all supporting documentation, will be forwarded through the chain of command specific to the deputy’s division. All completed use of force investigations, regardless of type or disposition, are maintained by the Administrative Captain.


In each level of the review, the reviewing supervisor will verify that all applicable Use of Force Reports and supporting documentation were submitted pursuant to this policy. It should also be verified that the use of force is reported accurately and completely and that all information concerning the incident is consistent in all reports.


Where unexplainable discrepancies are found between reports, or the command level supervisor determines that further investigation is required, he or she will return the investigation to the appropriate deputy or supervisor for corrections, clarification, and/or additional investigative steps as needed to assist in resolving the inconsistencies or improving the reliability and credibility of the findings. Deputies or supervisors receiving a returned investigation will have no more than 2 working days to complete the follow-up unless prior authorization is received by the returning supervisor.


At the completion of a use of force investigation and review, if the force is found to be out of policy, appropriate discipline will be administered pursuant to the Sheriff’s Office Discipline Policy. Where the use of force indicates a policy, training, or equipment concern, the necessary training will be delivered and the policy or equipment concerns will be resolved.


All supervisors will hold their subordinates accountable for the quality of their use of force reviews and investigations. Appropriate non-disciplinary corrective action and/or disciplinary action will be taken when a supervisor fails to conduct a timely and thorough investigation.


DISPOSITIONS


Dispositions for completed use of force investigations are documented as either “Within Policy” or “Not Within Policy.”


ADMINISTRATIVE:


TRAINING


Sheriff’s Office supervisors will receive training on the processes of this policy upon promotion as well as anytime a change to the policy or procedure has been made. Additional training may be conducted on an as-needed basis.


All newly hired lateral-transfer deputies and academy graduates will receive initial training on this policy prior to beginning the field training program.


ANNUAL ANALYSIS


The Administrative Captain is responsible for conducting or assigning an annual analysis of all use of force incidents. The purpose of the analysis is to reveal any possible patterns or trends that indicate training needs or policy and procedure modifications.


CROSS REFERENCES:


  1. SJCSO Policy OPER-304 “Use of Force”
  2. SJCSO Policy ADMN-121 “Direction & Supervision”
  3. SJCSO Policy OPER-307 “Deputy Involved Critical Incidents”
  4. Peace Officer’s Employer-Employee Relations [29-14-3 – 29-14-11 NMSA 1978]
  5. SJCSO Policy PERS-500 “Discipline”