Good information and much to think about in this, please read.
Dear Alders, Mayor’s Office, and Police and Fire Commissioners,
I wish to raise a question, which might warrant some thought.
Why is Madison Police Chief Koval providing misleading or false information to the Madison public and, apparently, elected officials? How should Koval’s unreliability as a source of information be compensated for in making appropriate governance decisions?
I can provide multiple more egregious examples, but here I wish to focus on deadly force policy, given its current importance to ongoing community discussions, and relevance to the task force proposal.
In multiple venues, Koval has asserted that MPD policy on deadly force is identical to deadly force policies throughout Wisconsin, and nationally, with at most slight differences in phrasing.
In reality, policies on use of deadly force vary in substantive and important ways across municipalities both nationally and in Wisconsin. Moreover, studies (by James Fyfe and others) have shown that policies that impose more stringent restrictions on use of deadly force reduce the rate of officer involved shootings without increasing rates of officer injury or mortality.
Police use of deadly force varies dramatically across U.S. cities due to departmental policy and training. The variation across cities is not explained by crime rates.
To take one dramatic example: Newark NJ has a high rate of violent crime. The homicide rate runs approximately 10-20 times higher than Madison. Overall crime rate appears to be about 2.5 times higher than Madison. Yet for the most part, the Newark Police Department does not kill people. Right now, I’m looking at data for rates of officer involved killings in 2014 for the 100 largest U.S. cities. Number of officer involved killings for Newark is 0. And this statistic has been consistently low for Newark over the years.
For the 100 largest U.S. cities, for per capita rate of officer involved killings, Madison has been running in the top third, and has been significantly accelerating. Milwaukee is consistently lower.
Here’s the deadly force policy for Madison Police Department: http://www.cityofmadison.com/police/documents/sop/ForceDeadly.pdf
I’ve looked at policies for cities nationally, and to a lesser degree in Wisconsin. Many departmental policies governing use of deadly force are more stringent than Madison. New York City is worth looking at as an example, since NYPD used to have a very high per capita rate of officer involved killings, then committed to reform which dramatically reduced the rate of officer involved shootings, and has long been much lower than Madison.
Here are the NYPD policies on use of deadly force – and, since they’re relevant, I’ve also linked NYPD policies on use of force in general, and for dealing with mentally ill or emotionally disturbed persons.
Use of deadly force: http://www.nyc.gov/html/ccrb/downloads/pdf/PG%20203-12%20Deadly%20Physical%20Force.pdf
Use of force: http://www.nyc.gov/html/ccrb/downloads/pdf/PG%20203-11%20Use%20of%20Force.pdf
Mentally ill or emotionally disturbed persons: http://www.nyc.gov/html/ccrb/downloads/pdf/PG%20216-05%20Mentally%20Ill%20or%20Emotionally%20Disturbed%20Persons.pdf
I’ll note a few important points.
In the header of the NYPD policy on deadly force, it states: “The primary duty of all members of the service is to preserve human life.”
Opening paragraph of NYPD deadly force policy:
“The New York City Police Department recognizes the value of all human life and is committed to respecting the dignity of every individual. The primary duty of all members of the service is to preserve human life.”
For police department policies on deadly force, this is sometimes referred to as the “preservation of life” standard, and policies with this specific language are considered the most restrictive on use of deadly force. That’s one very important difference from MPD policy. Nationally, a “preservation of life” standard is used by numerous police departments. I’ll also note that NYPD administration has consistently sent out directives explicitly reinforcing the importance of this policy standard.
I’ll also note that the MPD policy for use of deadly force specifies that the officer must have “reasonable cause to believe” that there is “imminent danger of death or great bodily harm”. In contrast, NYPD requires “probable cause to believe” that such force must be used to protect from “imminent death or serious physical injury” (and NYPD provides an appropriate definition of “probable cause”). The “probable cause” formulation requires articulable facts and is generally perceived as a more stringent standard (and is consistent with Tennessee v. Garner, 471 U.S. 1 [1985]).
Another feature of NYPD policies, procedures, and training are explicit policy statements (and much emphasis in training) on “firearms control” (e.g. in force policy: “All members of the service at the scene of a police incident must: a. Immediately establish firearms control”). This concept (which I believe is lacking in any explicit form in MPD policy) includes restraint in unholstering, imposition of collaborative and chain-of-command controls regarding firearms when multiple officers respond to an incident, etc. The point is, when officers arrive at a scene, to restrain and carefully control what is being done with firearms.
An example of the value of policy emphasis on firearms control.
“The 2013 toll of eight persons killed by police gunfire in 2013 — six black and two Hispanic — also ties the lowest number of deaths, reached in 2010, the data showed. In 1971 cops shot and killed 93 people, according to the department. One policing expert said changes in police firearms over the years — the current 9-mm handgun requires a heavier trigger pull than earlier revolvers — as well as relentless firearms training are responsible for the fewer shootings.
‘They have been hammering firearms control into the cops’ heads since I was a rookie cop in 1992,’ said retired Det. Sgt. Joseph Giacalone, who is a police training consultant. ‘They have made every effort to cut down on deadly force.'”
Also, when arriving at a scene where someone is emotionally disturbed/acting erratically, the emphasis is on establishing a zone of safety, and not trying to take the person into custody without careful decision-making. I expect such policies reduce rate of use of deadly force. NYPD has also sent out repeated directives emphasizing the importance of “slowing things down” in such situations (without this, there’s a heightened risk of an officer shooting in the first few minutes of an incident response).
As I noted earlier, NYPD has consistently reinforced these policy aspects. For example, here’s some material from an NYPD “Operational Guidelines” document:
“OPERATIONAL GUIDELINES
Article 35 of the New York State Penal Law, entitled Defense of Justification, authorizes public servants to use force “in the reasonable exercise of [their] official powers, duties or functions”. Section 35.30 of the article lists specific instances when a police officer may use deadly physical force.
The New York City Police Department considers the protection of human life to be the paramount concern of its officers, and as such, its guidelines governing the use of force place even further restrictions on police officers than does the New York State Penal Law.…
Deadly physical force is only to be used as last resort….In all cases, only the minimum amount of force will be used which is consistent with the accomplishment of a mission….Patrol supervisors are required to immediately respond to and direct activities at incidents involving any weapons (firearms, knives, etc.), serious crimes, and emergencies….Regarding emotionally disturbed persons (EDPs), the primary duty of all members of the service is to preserve human life. Physical force will be used only to the extent necessary to restrain the subject until delivered to a hospital. Deadly force will only be used as a last resort to protect life. If the EDP is armed or violent, no attempt will be made to take the EDP into custody without the specific direction or a supervisor UNLESS there is an immediate threat or physical harm to the EDP or others present. A policy of isolate and contain will be followed. A zone of safety will be established around EDP, and attempts will be made to maintain that zone of safety if the EDP does not remain stationary. A patrol supervisor and emergency service unit will be dispatched to all EDP radio runs. Patrol supervisor will establish firearms control and employ non-lethal restraining and rescue devices such as taserj stun gun, water cannon, velcro restraining straps, protective shields, or shepherd’s crook. If armed or violent EDP is isolated and contained but refuses to leave voluntarily, the duty captain and the hostage negotiating team will be called to the scene….”
In additional to looking at polices for various cities nationally, I looked at a few policies for use of deadly force in Wisconsin municipalities. Even with a cursory look at a few random cities, I found substantive and important variations in policy.
For example, Eau Claire imposes a set of “Target Requirements” – i.e. an officer cannot use deadly force without these criteria being fulfilled. Nationally, a number of municipalities have imposed such target requirements to further restrict the conditions under which deadly force can be used (i.e. deadly force policies that imposes such additional target requirements, which MPD does not, are considered more stringent).
http://www.ci.eau-claire.wi.us/home/showdocument?id=8245
300.4.2 Target Requirements
When an officer has determined that deadly force is necessary and all other reasonable alternatives having been precluded, the officer must fulfill certain “target requirements.” These include the following:
- TARGET ACQUISITION: Does the officer have a target?
- TARGET IDENTIFICATION: Even if the target has been “acquired,” the officer cannot shoot until the target has been identified as an individual placing the officer and/or others in “imminent danger”, and;
- TARGET ISOLATION: The officer must make every reasonable effort to isolate the target from other innocent persons. An exception to the target isolation requirement arises when withholding the application of deadly force results in a greater danger than the use of deadly force itself.
Here’s the deadly force policy for Onalaska, WI.
F. Deadly Force
- The use of deadly force is permissible under the following circumstances:
- In the defense of one’s self or another person when the officer reasonably believes there is an imminent danger of death or great bodily harm. To meet the criterion of “imminent threat,” the person to whom you are intending deadly force must have intent, weapon, and a delivery system (see Appendix B).
- To effect an arrest or prevent the escape of a fleeing felon whom the officer reasonably believes has committed a felony involving the actual or threatened use of deadly force and the officer has probable cause to believe the suspected felon poses a significant threat of death or great bodily harm to the officer or others if not immediately apprehended.
- To dispatch an animal so seriously injured that humanity dictates its removal from suffering, but only after careful consideration is given to the public’s safety and whether other dispositions may be feasible.
- Before using a firearm, police officers should identify themselves and attempt to de-escalate the situation, when feasible, considering the circumstances.
- Deadly force shall not be used under the following circumstances:
- As a warning. Warning shots are prohibited.
- At or from a moving vehicle unless 1.a. applies. Issued: 06/01/95 Use of Force Page 10
- When the target of the force is not clearly visible. This does not apply if an officer is being fired upon and there is no alternative means of cover, then the officer can return fire.
- When the officer is in doubt as to whether or not (s)he has the legal or moral justification to use deadly force.
APPENDIX B
To meet the criterion of “imminent threat,” the person to whom you are intending deadly force must have:
- INTENT–The displayed or indicated intent to cause great bodily harm or death to you or another person(s);
- WEAPON–A weapon capable of inflicting great bodily harm or death (conventional or unconventional weapon);
- DELIVERY SYSTEM–The delivery system for the utilization of that weapon. That is, the capacity for utilization of a weapon.
I’ll note that “must” in F(1)(a) is underlined in the policy.
The Onalaska policy (unlike MPD policy) effectively prohibits shooting of an unarmed subject (a subject without a weapon capable of inflicting great bodily harm or death), such as Tony Robinson Jr. or Paulie Heenan.
In addition to substantive differences in the core provisions of deadly force policies across departments, there are also differences in policies that tightly integrate with use of deadly force.
For example, MPD policy effectively prohibits use of a Taser by an officer unless another officer is present and ready to fire a gun:
“An ECD is not a substitute for deadly force—in cases where a subject is believed to be armed with a dangerous weapon, an officer may not arm him or herself with an ECD unless another officer at the scene has the immediate ability to deliver deadly force. Officers armed with an ECD should continuously monitor and evaluate the ability of other officers present to deliver deadly force.”
That means MPD officers are prohibited from using a Taser as this officer (Randolph County Sheriff’s Deputy) did: https://www.facebook.com/WFMYNews2/videos/10153336156103755/?pnref=story
In these types of situations, when the officer is alone, MPD officers are being instructed to use deadly force.
A few days ago I spoke to Captain Mark Gagan, Southern District Commander for the Richmond CA Police Department. Richmond is a city that dramatically turned around on use of deadly force (only one fatal officer involved shooting since 2007). Nationally, it’s being held up as a model.
Captain Gagan told me that Tasers have been a major part of that (for use where someone has a knife or club, where they previously would have been shot). In Gagan’s opinion, the MPD policy that prohibits use of Tasers without deadly force backup is absolutely inappropriate. In his view, officers need to be able to use the full toolbox of tactics and tools at their disposal to avoid a bad outcome; prohibiting Taser use without deadly force backup forces situations into deadly force.
I would guess that the predominant rationale for MPD officers being prohibited from using Tasers unless deadly force backup is present is that Tasers fail occasionally. For a Taser strike to work, both probes from the Taser have to make skin contact, and a sufficient distance apart.
However, the newest Taser models allow for up to three successive firings without reloading cartridges. And newer probes are designed for better penetration of clothing, etc. MPD is currently using old X26 model Tasers, which allow only one firing. Apparently MPD plans to upgrade, but I don’t know to which model. The X2 model allows two successive firings without reloading and the X3 allows three successive firings without reloading. With the possibility of three successive firings, tests have shown that the odds of failure drop close to zero.
I would argue that MPD should change policy and upgrade to the X3, removing the policy clause that prohibits use of Tasers if deadly force backup is not present and ready to shoot. MPD policy should be modified to mandate that Tasers should be used first, rather than deadly force, whenever possible (consistent with most police departments nationally).
I’ll note that in general, there’s now increasing questioning of the empirical validity of claims from some police departments that restricting use of deadly force would increase risk to officers. From an article in today’s New York Times “Police Rethink Long Tradition on Using Force”
http://www.nytimes.com/2015/05/05/us/police-start-to-reconsider-longstanding-rules-on-using-force.html?_r=0
“That focus on officer safety has underpinned many police policies, but Mr. Wexler argues that it is a false choice. Officers in Britain, most of whom do not carry guns and typically face fewer suspects with firearms than some American police officers do, regularly confront suspects carrying knives, as do their counterparts here. British officers follow what is known as the National Decision Model, which emphasizes talking, remaining patient and using no more force than necessary.
No police officer in England has died from a weapon attack during the past two years, according to the most recent published data, and none have been involved in fatal shootings during that period. (Officers with guns back up those who do not carry them.)”
Again, I’ll point out that Koval’s repeated statements that police departments in the U.S. or in Wisconsin all use identical deadly force policies (other than trivial differences in phrasing) is false.
More generally, I would suggest that, given that Chief Koval appears to be repeatedly provided false or misleading information (on this and other issues), that elected officials might be wise not to rely on factual claims from Koval without external verification; and that consultation with appropriate external experts should be used whenever possible.
Sincerely,
Gregory Gelembiuk
