Here are key documents in the Police Reform Task Force’s recommendations on use of force by Denver police.
Text of the cover letter from the Police Reform Task Force to Mayor Hickenlooper:
June 18, 2004
The Honorable John W. Hickenlooper
c/o Cole Finegan, City Attorney
1437 Bannock Street, Suite 353
Denver, Colorado 80202
Re: Mayor’s Denver Police Department Task Force
Dear Mayor Hickenlooper:
We tender to you the work product of the Denver Police Department Task Force. This includes recommendations of the Task Force, minority reports as further described herein, and some subcommittee recommendations. In some instances, the Task Force considered language but did not arrive at a consensus or agreed to disagree, which we noted. Last, we also tender two oversight proposals from separate individuals on the Task Force; although these individuals were also part of the consensus on the portions of the proposal which the Task Force discussed in its meetings. Our conclusion is that this work product represents those agreements that could be achieved given the nature of the subject and the broad spectrum of participants in the Task Force itself and also identifies areas of disagreement.
Initially, the Task Force includes drafted language regarding the Denver Police Department’s Use of Force policy. Largely, this language is the consensus of the Task Force members. It includes some language recommended by the administration and existing policy but the Task Force also researched other sources and utilized what it concluded was most appropriate. This language was originally drafted by subcommittee but discussed by the Task Force and either adopted, modified, or rejected.
These recommendations include proposed: 1) changes to the Preamble; 2) addition to Operations Manual Sec. 105.04(4); 3) changes to Sec. 105.00, language regarding requesting a CIT officer; 4) language regarding edged weapons; and, 5) vehicles. In the language regarding edged weapons, the word “barriers” is in bold italics because after considerable discussion the Task Force did not reach consensus on it. The Task Force also discussed proposed language regarding Drug and Alcohol Testing after a death but reached no consensus regarding it. This language in bold italics remains for your information and consideration.
The Task Force work product on the issue of civilian oversight is more complex. First, a subcommittee of the Task Force presented a draft for review by the entire Task Force. Again, the Task Force attempted to achieve consensus on this or revised language. The Task Force achieved consensus on a portion of the draft. Some portions were in contention such that the Task Force clearly did not achieve consensus. Last, the dialogue became hindered as representatives of the Denver Police Protective Association terminated their participation. As other members of the Task Force left due to the late hour, we then concluded that we lacked the mass sufficient to continue. We tender the results of this effort, the Oversight Recommendations.
First, the Task Force adopted paragraphs 1 through 4 of this draft by consensus. In paragraph 2, the Task Force believed that “background checks” were appropriate for the prospective members of the Board, presently the Public Safety Review Commission, but did not specify what the checks should consist of. The staff drafting any proposed ordinance would identify this, consistent with other municipal authorities. The Task Force then skipped paragraph 5 and subsequent related paragraphs on the premise that it was premature to discuss staffing for the office of the Independent Monitor prior to arriving at consensus on any specific structure or scope of authority or duties.
The Task Force considered the draft again at paragraph 16 and adopted by consensus paragraphs 16 through 37. Paragraph 16 includes “Fire Department Employee” in parenthesis. The Task Force intended to make arson investigators subject to the oversight as they are certified peace officers and carry weapons on the job.
In paragraph 17, the Task Force again intended that the staff drafting any proposed ordinance make the language regarding sexual orientation consistent with other municipal authorities in this regard. It also intended to define “complaint” as the current methods by which members of the community may complain about law enforcement officers to the Public Safety Review Commission. It did not intend to extend the oversight to complaints that a law enforcement officer may make against another law enforcement officer.
In paragraph 26, the Task Force intended that when the Independent Monitor directs the IAB to initiate an investigation, the officer be provided a stated reason which generated the investigation, and also that the investigation have a defined scope.
The Task Force specifically agreed to disagree on paragraph 38. The point of contention was whether or not the Monitor could participate in “deliberations” by the Firearms Discharge Review Board. (A similar issue was raised regarding the Monitor’s presence during deliberations of the Disciplinary Review Board.) The Task Force achieved consensus on the Monitor’s attendance at the presentations and other discussions. However, members of the Task Force felt strongly that either the Independent Monitor should or should not participate in the deliberations.
The Task Force next achieved consensus on paragraphs 39 through 51. It did not reach consensus on Paragraph 52 due to the implications of the Garrity case. The Task Force achieved consensus on paragraphs 53 and 56, but had no agreement on paragraphs 54, 55, and 57.
At the point that the Task Force discussed paragraph 57, the representatives of the DPPA terminated their participation although other law enforcement officers remained. However, with the departure of other members due to the late hour, the remaining Task Force members concluded that it would not be appropriate to purport to speak for the entire Task Force. We instead concluded that we should advise you that we did not complete the dialogue of the Oversight Recommendation’s paragraphs 57 through 69, nor did we return to paragraphs 5 through 15. The proposed modifications on these paragraphs represent the subcommittee’s work.
The Task Force did not discuss the DPPA’s Independent Auditor Proposal, attached here, as it was disclosed after the DPPA representatives walked out of the last meeting. In addition, we did not discuss the 100% Civilian Review and Oversight Proposal, submitted by seven community members and also attached, as it was submitted after the DPPA representatives left and at a late hour, although members had advocated for the model in an informal fashion at times in our discussions. One representative of the DPPA advised upon leaving that he would submit written material later. However, evidently the DPPA had submitted their proposal to you prior to the Task Force’s last meeting and the Task Force received nothing else later.
The DPPA representatives had significant concerns with the proposed interaction between the Monitor and the Board. They indicated that the title Independent Monitor suggested that these entities would be distinct from one another, but now believed that the Board in fact influenced the Monitor significantly. The subcommittee and most members of the Task Force had viewed this cooperative relationship between the Monitor and the Board as quite natural and appropriate. The differences on this point precluded a consensus; therefore this product is the maximum that the Task Force could achieve.
We remain grateful for the opportunity to make this contribution to the City and County of Denver. It has been at times a difficult process but nevertheless a rewarding one. We believe the work product to be beneficial. Hopefully you and the Denver City Council will agree. Last, we remain especially grateful for the participation of all of our colleagues on the Task Force and appreciate all the support that we received from members of various municipal departments. Please contact either of us should you have any questions about this report.
Sincerely,
Federico C. Alvarez, Co-Chair
Penfield Tate, Co-Chair
Text of Task Force Report on Use of Force Policy:
(Items in bold type represent the consensus of the entire Task Force. The language in light type represents the language proposed by the Oversight Subcommittee, but upon which the full Task Force did not agree. The language in italics represents the language that the Subcommittee forwarded to the full Task Force although it did not have the full support of the Subcommittee.
I. INTRODUCTION.
1. There shall be a Board (“BOARD”), which shall consist of seven persons selected by the Mayor with the approval of City Council.
2. At least one of the persons on the BOARD must have previously worked in law enforcement for a minimum of five years but must not have worked for the Denver Police Department or the Denver Sheriff Department. (All members should be subject to Background Checks)
3. At least one of the persons on the BOARD must be an attorney with a minimum of five years of relevant experience.
4. The members of the BOARD shall not be City employees.
5. There shall also be an Office of the Independent Monitor (“IM”), which shall consist of at least seven persons – an executive director, and at least one attorney, policy analyst, an investigator, and clerical employee.
6. The executive director of the IM shall have previously worked for a minimum of five years as a (specific qualification to be decided).
7. The BOARD shall interview candidates for the position of executive director of the IM and shall forward the names of the three best candidates to the Mayor.
8. The executive director shall be appointed by the Mayor from the list submitted by the BOARD and shall be approved by the City Council.
9. The executive director can only be removed by the Mayor for malfeasance or misfeasance with the concurrence of ten votes by City Council members.
10. All seven employees of the IM shall be employees of the City and County of Denver.
11. None of those seven persons shall be former employees of the Denver Police Department or the Denver Sheriff Department.
12. The two investigators shall have experience investigating allegations of misconduct by law enforcement officers, experience in major criminal cases (e.g., homicide, kidnapping, sexual assault, arson, and explosives), crime scene investigation, or comparable experience.
13. All seven members of the BOARD, the IM’s executive director, the IM’s attorney, the IM’s policy analyst, and the IM’s two investigators shall develop a thorough knowledge of the DPD’s and DSD’s policies, procedures, and practices and of best practices for addressing officer misconduct.
14. The BOARD shall establish standards of professional conduct and a comprehensive training program in order for the BOARD to evaluate whether investigations have been properly conducted, to make recommendations as to the sustaining of rule violations and disciplinary sanctions, and to make policy and training recommendations.
15. The BOARD shall establish standards of professional conduct and a comprehensive training program in order for the IM to properly review investigations, to determine whether investigations have been properly conducted, and to make policy and training recommendations.
16. The IM shall be required to monitor any investigation involving a DPD or DSD officer-involved shooting or an in-custody death within the City and County of Denver. (Fire Department Employees)
17. In addition, the IM shall have the discretion to monitor the investigation of: (a) any use of force; (b) any allegation of discrimination based upon race, national origin, gender, sexual orientation (not a point of disagreement, simply add the City’s current ordinance and/or language regarding sexual orientation), age, disability, religion, or political affiliation; (c) any allegation of retaliation for making a complaint against the DPD, the DSD, or any DPD or DSD officer; or (d) any allegation of discourtesy. (Existing definition of complaint)
18. During each calendar year, the IM shall monitor the investigation of at least 20% of all investigations regarding the matters identified in paragraph 17 above.
19. The executive director of the IM may make recommendations to the BOARD for changes to DPD and DSD policies, rules, and training.
20. The BOARD shall submit an annual report to the Mayor and City Council, setting forth the work of both the BOARD and the IM for the past year; identifying trends regarding complaints and investigations of DPD and DSD officers, including repeat officers, repeat complainants, and repeat complaint circumstances; and making recommendations regarding investigations and changes to policies, rules, and training.
21. The BOARD and the IM shall be physically located somewhere other than the police headquarters building.
22. Citizens can file complaints against DPD and DSD officers with the BOARD, the IM, and/or the DPD or DSD.
23. The City Attorney’s Office shall provide an assistant city attorney to provide legal advice for the BOARD and the IM.
II. REVIEW OF USE OF FORCE REPORTS
24. DPD and DSD shall forward to the IM use of force reports involving injury during arrest and injury while in custody reports within three working days of the incident that is subject of the report.
25. The IM shall review those reports within five working days of receiving them.
26. Upon his or her initiative or upon the direction of the BOARD, the executive director of the IM shall have the authority to direct IAB to initiate an investigation of any use of force event, regardless of whether a citizen or anyone else has complained about the use of force (add: notice shall be sent to the officer of the reason for the investigation and the scope of the investigation).
III. INVESTIGATIONS OF OFFICER INVOLVED SHOOTINGS BY THE DISTRICT ATTORNEY’S OFFICE
27. The Denver District Attorney’s office, together with the DPD homicide unit and the DPD criminalistics bureau, has the primary responsibility for conducting the initial investigation of all officer involved shootings to determine whether criminal charges will be filed against any of the persons involved in the shooting.
28. The IM shall monitor the investigation until the DA’s office completes its investigation.
29. The DA’s investigation will be considered to be complete:
(a) if the DA files criminal charges against any law enforcement officer involved in the shooting, all legal proceedings, including trials and direct appeals of trials and trial related rulings, have been exhausted or the time has expired for initiating any of those events; or
(b) if the DA does not file criminal charges against any of the officers involved in the shooting, the DA issues its public letter explaining why it has decided not to file charges against any of the officers.
30. The IM shall be part of the critical incident call-out team but may not physically enter the crime scene without the approval of the ranking officer of crimes against persons and the District Attorney’s Office present on the scene.
31. All interviews of subject and witness officers and civilian witnesses shall be conducted by the DA’s office and the DPD homicide unit.
32. The IM shall not interview any subject or witness officer or civilian witness until the DA investigation is complete.
33. During interviews of subject or witness officers or civilian witnesses, the IM shall be allowed to observe those interviews on a TV monitor from a room other than that in which the interviews are conducted.
34. Both prior to, and during, those interviews, the IM may suggest to the interviewers that certain questions be asked of the interviewees.
35. However, the DA’s office retains sole discretion as to the subject matter and form of all questions to be addressed to the interviewees.
36. During the pendency of the DA’s investigation, the DA’s office, in its sole discretion, may allow the IM access to evidentiary items, including: videotapes, audiotapes, and transcripts of interviews; documentary evidence, and all other items of evidence.
IV. INVESTIGATIONS BY THE FIREARMS DISCHARGE REVIEW BOARD
37. The IM may attend any hearings of the Firearms Discharge Review Board (“FDRB”).
38. The IM may participate in FDRB deliberations but shall not be a voting member of the FDRB.
39. The IM shall have access to all materials considered by the FDRB in evaluating the propriety of a firearms discharge.
40. The IM shall be permitted to attend interviews of subject officers and witnesses conducted by the FDRB and may suggest through an intermediary questions to be asked of the interviewees.
a. Regardless of the findings of the FDRB the Monitor or the Board may direct IAB to investigate the firearm discharge.
V. INTERNAL INVESTIGATIONS
41. In all officer involved shootings and in-custody deaths, the IM shall monitor any investigation by the DPD’s or the DSD’s Internal Affairs Bureau (“IAB”).
42. In all other matters within its jurisdiction, the IM shall have the discretion to determine whether or not it will monitor any particular investigation conducted by the IAB, provided that it investigates the percentage of cases identified in paragraph 18 above.
43. If the IM intends to monitor an investigation, it shall notify the IAB in writing of that intention.
44. The IM shall have complete access to all DPD and DSD documents, paper and electronic files, relating to any complaints against officers, investigations of officers, and personnel files, to include work history, officer statements, but not including documents relating to medical or benefits information and documents protected by the attorney-client privilege or the attorney work product privilege.
45. The IM shall treat all documents regarding specific investigations or officers as confidential.
46. The IAB shall conduct the interviews of all subject officers, witness officers, and civilian witnesses.
47. The IM may attend the interviews of subject officers, witness officers, and civilian officers.
48. The IM may suggest questions for the IAB interviewers to ask of subject officers, witness officers, and civilian witnesses but the IAB interviewer retains the discretion to determine the subject matter and form of the questions to be asked. (LINKED TO 52)
49. For any investigation that it monitors, the IM shall review the investigation to ensure that it is thorough.
50. The IM may discuss the investigation with IAB, including recommending additional investigation.
51. Of the investigations that the IM monitors, if IAB completes its investigation and the Monitor cannot certify that it is closed or complete, the Monitor may request IAB do additional investigation. If IAB does not complete the additional investigation to the Monitor’s satisfaction, the Board may request the Monitor to conduct additional investigations.
52. The monitor may compel IAB to ask certain questions.
VI. THE DISCIPLINARY REVIEW BOARD (DRB) PROCESS (DRB only considers complaints that have been sustained against an officer in order to make a disciplinary recommendation for the Chief of DPD to consider.)
53. The IM may attend the DPD’s DRB hearing but may not participate in the presentations or the questioning of the presenters.
54. The IM may be present during the DRB deliberations but cannot participate in the deliberation.
55. The IM may be present when the DRB announces its decision and, if the DRB chairperson makes a “gravity statement” to the officer, the IM may be present for that statement.
56. The IM shall have access to all materials to which the DRB members have access.
57. The Monitor shall confer with the Board after the DRB decision on discipline and the Board may make recommendations to the Manager within 30 days concerning a disciplinary recommendation on each case.
VII. REVIEW BY THE BOARD
58. All investigative files with a finding of unfounded, unsustained or exonerated shall be forwarded to the Monitor for a disciplinary recommendation to the Board.
59. On investigations that have been completed by DPD, those investigations will follow the current PSRC model, i.e., the Board will ask the complainant if they would like the Board to review.
60. The BOARD shall treat all documents and information regarding specific investigations or specific individuals as confidential.
61. If the BOARD decides that further investigation is required, it shall notify the IM within 15 days of receiving the file as to the additional investigation that the BOARD believes is required.
62. The Board shall direct the IM to conduct additional investigation or direct the IM to contact the IAB to conduct the additional investigation.
63. Any additional investigation must be completed within 30 days unless the BOARD grants additional time, for the investigation.
64. The Board and the Monitor shall have subpoena power to subpoena witnesses or documents before the Board.
65. After the BOARD receives the additional investigative materials, the BOARD must make recommendations within 60 days as to whether it believes any rule violations should be sustained and, if so, the appropriate disciplinary sanctions to be imposed.
66. The Board’s recommendations shall be provided to the Chief of Police and the Manager of Safety which recommendations shall be binding unless they are found to be arbitrary and capricious by the Mayor.
67. The IM shall have complete access to all DPD and DSD documents and files, relating to any complaints against officers, investigations of officers, and personnel files including officer statements, but not including documents relating to medical or benefits information and documents protected by the attorney-client privilege or the attorney work product privilege.
68. Board members shall be paid $150.00 per meeting with a limit of $300.00 per month for attendance at Board meetings.
VIII. THE DISCIPLINARY PROCESS
69. The Chief of Police and Manager of Safety shall determine the disciplinary sanctions, if any, to be imposed upon the subject officer in accordance with the procedures defined in the Denver City Charter.
Text of Task Force Report on Civilian Oversight:
STUDY GROUP’S POSSIBLE CHANGES TO USE OF FORCE POLICY (AS OF JUNE 2004)
The following is a compilation of possible changes to the Denver Police Department’s use of force policy that one or more members of the Task Force study group has proposed as of May 12, 2004. Language on which the study group could not reach consensus is italicized.
(1) Preamble:
The Denver Police Department recognizes the value of all human life and is committed to respecting human rights and the dignity of every individual. The use of a firearm is in all probability the most serious act in which a law enforcement officer will engage. When deciding whether to use a firearm, officers shall act within the boundaries of law, ethics, good judgment, this use of force policy, and all accepted Denver Police Department policies, practices and training. With these values in mind, an officer shall use only that degree of force necessary and reasonable under the circumstances. An officer may use deadly force in the circumstances permitted by this policy when all reasonable alternatives appear impracticable and the officer reasonably believes that the use of deadly force is necessary. However, the Police Department recognizes that the objective reasonableness of an officer’s decision to use deadly force must allow for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving. Above all, the safety of the public and the officer must be the overriding concern whenever the use of force is considered.
It is important for officers to bear in mind that there are many reasons a suspect may be resisting arrest or may be unresponsive. The person in question may not be capable of understanding the gravity of the situation. The person’s reasoning ability may be dramatically affected by a number of factors, including but not limited to a medical condition, mental impairment, developmental disability, physical limitation, language, drug interaction, or emotional crisis. Therefore, it is possible that a person’s mental state may prevent a proper understanding of an officer’s commands or actions. In such circumstances, the person’s lack of compliance may not be a deliberate attempt to resist the officer. An officer’s awareness of these possibilities, when time and circumstances reasonably permit, should then be balanced against the facts of the incident facing the officer when deciding which tactical options are the most appropriate to bring the situation to a safe resolution.
Policing requires that at times an officer must exercise control of a violent, assaultive, or resisting individual to make an arrest, or to protect the officer, other officers, or members of the general public from risk of imminent harm. Officers may either escalate or de-escalate the use of force as the situation progresses or circumstances change. Officers should recognize that their conduct immediately connected to the use of force may be a factor which can influence the level of force necessary in a given situation. When reasonable under the totality of circumstances, officers should use advisements, warnings, verbal persuasion, and other tactics and recognize that an officer may withdraw to a position that is tactically more secure or allows an officer greater distance in order to consider or deploy a greater variety of force options. When a suspect is under control, either through the application of physical restraint or the suspect’s compliance, the degree of force shall be de-escalated accordingly.
(2) Add a subsection (e) to Operations manual sec. 105.04(4): “Officers will not discharge firearms under the following conditions: (e) solely to protect property.”
(3) Changes to 105.00:
Policing requires that at times an officer must exercise control of a violent, assaultive, or resisting individual to make an arrest, or to protect the officer, other officers, or members of the general public from risk of imminent harm. Officers may either escalate or de-escalate the use of force as the situation progresses or circumstances change. Officers should recognize that their conduct immediately connected to the use of force may be a factor which can influence the level of force necessary in a given situation. When reasonable under the totality of the circumstances, officers should use advisements, warnings, verbal persuasion, and other tactics and recognize that an officer may withdraw to a position that is tactically more secure or allows an officer greater distance in order to consider or deploy a greater variety of force options. When a suspect is under control, either through the application of physical restraint or the suspect’s compliance, the degree of force shall be de-escalated accordingly.
(4) Requesting a CIT officer:
Whenever an officer learns, through his or her observations or otherwise, that a person with whom the officer is dealing may be a mentally ill, developmentally disabled, or emotionally disturbed individual, the officer will, if time and circumstances reasonably permit, contact dispatch and request that a CIT officer respond to the scene. If time and circumstances reasonably permit, officers will use distance, time, verbal tactics, or other tactics, to de-escalate the situation when dealing with such persons. When a CIT officer arrives on the scene, he or she should be the primary officer responsible for coordinating negotiations with the mentally ill, developmentally disabled, or emotionally disturbed individual unless determined otherwise by the CIT officer or a superior officer.
(5) Edged weapons:
When confronted by a suspect armed with a deadly weapon, including edged weapons, an officer should weigh the totality of the facts and circumstances of each situation. Practical considerations may include, but are not limited to, the proximity of the suspect to the officer(s) and other persons, how rapidly the circumstances are evolving, and the use of force options that may be necessary, appropriate, and available. Officers should recognize that, when reasonable to do so with safety to officers and other persons in the vicinity, disengagement, repositioning, cover, concealment, barriers, or retreat, although not required by law, may be a tactically preferable police response to a confrontation. The value of all human life should be appropriately weighed in the decision process. Above all, the safety of the public and the officer must be the overriding concern whenever the use of force is considered.
(6) Drug and alcohol testing:
Officers whose actions result in the death of a suspect or other individual will be tested as soon as practicable for drugs and/or alcohol. (No Agreement on this subsection)
(7) Vehicles:
Firing at or from moving vehicles: Except in self defense or defense of another from what the officer reasonably believes to be the use or imminent use of deadly physical force. Firing at or from a moving vehicle may increase the risk of harm to other officers or citizens. Accuracy may be severely impacted when firing from a moving vehicle; firing at a moving vehicle may have very little impact on stopping the vehicle. Disabling the driver may result in an uncontrolled vehicle, and the likelihood of injury to occupants of the vehicle (who may not be involved in the crime) may be increased when the vehicle is either out of control or shots are fired into the passenger compartment. If officers find themselves in danger from a moving vehicle, they should attempt to move out of the way, if possible, rather than discharging their firearm. Above all, the safety of the public and the officer must be the overriding concern whenever the use of force is considered.
