HomeMy WebLinkAboutStaff Report 14028
City of Palo Alto (ID # 14028)
City Council Staff Report
Meeting Date: 2/14/2022 Report Type: Information Reports
City of Palo Alto Page 1
Title: Independent Police Auditor's (IPA) Report of Review of Investigations
Completed Between 7/1/20 to 11/1/21 and the Police Department's Use of
Force Report for December 2020-December 2021
From: City Manager
Lead Department: Police
Independent Police Auditor's Report on Investigations Completed:
7/1/20 to 11/1/21
Since 2006, Palo Alto has utilized an independent police auditor (IPA) to conduct secondary
review of defined investigations of uniformed Police Department personnel and provide related
services. Since the inception of the independent police auditing program, the City has
contracted with the Office of Independent Review (OIR Group), to provide these services.
Prior to this report, the most recent IPA report was published was on August 30, 2021 as
Informational Item AA2 (starts on packet page 145) at the following link:
https://www.cityofpaloalto.org/files/assets/public/agendas-minutes-reports/agendas-
minutes/city-council-agendas-minutes/2021/08-august/20210830/20210830pccsm-amended-
for-print-linked.pdf.
For an overview of the history of the expanded scope of the IPA work, please visit the City’s
Race and Equity webpage at: www.cityofpaloalto.org/raceandequity.
POLICE DEPARTMENT'S USE OF FORCE REPORT FOR DECEMBER 2020-DECEMBER 2021
The City Council also voted in November 2020 for staff to include use of force information with
the IPA report submitted to the City Council. This information is being reported on an annual
basis. The current report (Attachment B) starts after the November 2020 City Council direction
and goes through the end of calendar year 2021. Staff shared similar information during the
2020 Racial Equity ad hoc meetings through Transmittal #3 online at:
https://www.cityofpaloalto.org/files/assets/public/city-manager/communications-office/race-
equity/race-and-equity-data-transmittal-3-august-26-2020.pdf?t=51654.01.
City of Palo Alto Page 2
PROCESS TO FILE A COMPLAINT TO THE IPA
The public can find more information about filing a complaint through the link here:
https://www.cityofpaloalto.org/Departments/Police/Accountability/Employee-Complaint
Complaints may also be directed to the Independent Police Auditor as follows:
Contact: Mr. Mike Gennaco
Phone: (323) 412-0334
Email: Michael.gennaco@oirgroup.com
Or mail to: OIR Group
1443 E. Washington Blvd., #234
Pasadena, CA 91104
Attachments:
• Attachment A: Independent Police Auditor Report Jul. 2020-Nov. 2021
• Attachment B: 2021 Annual Use of Force Report
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INDEPENDENT POLICE AUDITORS’ REPORT:
Review of Investigations Completed: 7/1/20 to 11/1/21
Presented to the Honorable City Council
City of Palo Alto
February 2022
Prepared by: Michael Gennaco and Stephen Connolly
Independent Police Auditors for
the City of Palo Alto
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Introduction
This report is both the latest in a long series and the product of a new paradigm. OIR Group has
served as the Independent Police Auditor for the City of Palo Alto since 2007. Public reporting has
been a cornerstone of our responsibilities in the City since the beginning of that relationship, and
the idea has been a straightforward one: we would utilize our access to confidential investigation
files and records to review completed cases across certain key categories, and would share our
assessment of the effectiveness of the Palo Alto Police Department (“PAPD”) handling of the
underlying issues and allegations in each matter.
The involved categories included complaint investigations, other Internal Affairs reviews, Taser
deployments, and other critical incidents.1 The reports were designed to cover six months’ worth of
material at a time and to be released on a twice-yearly basis. And the process was meant not only
to provide transparency as to how the system worked (or, at times, fell short of working) but also
insight into the types of incidents that led to complaints and investigations in the first place. It was
also a forum for us – as longtime practitioners in the field of oversight – to offer recommendations
that would ideally strengthen the rigor of the PAPD internal review systems.
That pattern continued without significant disruption for several years. Then, in 2019, we
experienced a pause as we worked with the City to sort through an ambiguous issue within our
scope of work: namely, whether internal personnel complaints about other PAPD employees
which were investigated and resolved by the City’s Human Resources Department were within our
intended purview. As that question was being clarified, we developed a backlog of completed
cases that we have been working to clear; accordingly, this report covers cases completed by
PAPD between July 1, 2020 and November 1, 2021.
More significantly, the City joined jurisdictions across the country in re-evaluating its approach to
police accountability in the aftermath of the George Floyd murder and subsequent movement for
change. We met with the City Council in September of 2020 to talk about our role in the context
of the City’s larger Racial Equity initiatives, and we responded to their questions about possible
adjustments to our scope of work.
Our new contract, which was finalized earlier this year, retains the elements of our previous model
and includes important additional opportunities to monitor the Department and inform the public.
Perhaps most significantly, we have a new window into uses of force and the process by which
PAPD investigates and evaluates them for compliance with policy. We have also clarified our
1 PAPD has had one officer-involved shooting during our tenure as IPA; it occurred on December 25, 2015,
and we provided a detailed assessment into the Department’s administrative review into the case.
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commitment to engage publicly with the Council on a regular basis, and we have a newly
established ability to engage in special audit projects at the Council’s request.
The seventeen cases covered in this report fall into several categories. There are two Taser
deployments and five other “force reviews” (including two canine bites) that we assess. There are
four Internal Affairs cases into allegations of misconduct that were initiated by the Department.
Four complaints from the public that are discussed here were handled as “supervisor inquiry
investigations” – a review and resolution that are based on initially available evidence that is
sufficient to reach the appropriate outcome. Two other public complaints required additional
investigation and therefore fall into their own category. Lastly, an encounter that drew some social
media attention at the outset of the pandemic was resolved informally; we discuss that case and our
reaction to the Department’s approach.
As in the past, our overall sense was that the dispositions reached by the Department were
reasonable and supported by the evidence. Its investigations are generally robust and undertaken
in earnest, and they often benefit from an extensive amount of recorded evidence that captures the
conduct at issue. The agency’s long-standing adoption of body-worn cameras, in conjunction with
its previously established in-car camera video system, has elevated PAPD into the top tier of
California agencies in this regard.
It was also consistent with our prior experience to note areas of concern and even disagreement
with specific elements of the conduct being scrutinized, or specific aspects of the investigative
process and its effectiveness. We discuss these below – and generally accompany such
observations with suggestions on how to improve Department operations going forward. While
law enforcement transparency and accountability have been prioritized more than ever, we have
always thought that our reports are most valuable when they also contribute to constructive change.
Whether that happens or not is very much a function of the Department’s receptivity and
engagement. Accordingly, we are happy to acknowledge that Department’s leadership has been
consistent in honoring – or going beyond – its obligations when it comes to interacting with us.
They take initiative in outreach, ensure that our access to necessary materials is unfettered,
welcome questions and input, share their own views with candor, and remain receptive to criticism
and ideas for reform.
At a time when law enforcement nationally has struggled with new expectations and a perceived
loss of support, and when the Department has dealt with high profile incidents of its own, PAPD’s
collaborative relationship to oversight is especially noteworthy. Our hope is that this public report
and the discussions it engenders will contribute to an ongoing process of improvement and
adaptation.
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Misconduct Investigations
Case 1: Allegation of Harassment
Factual Overview
The complainant alleged that an officer’s decision to run the license plate of his parked vehicle for
possible violations was an improper act of targeting him for being “residentially challenged.” The
officer at issue was one of four who responded to an unrelated call for service at an address near
the street where this individual had his S.U.V. They were assisting with the removal of an
unauthorized guest at a residential center. As other officers detained the guest on the sidewalk, the
subject of the complaint walked over and got on the radio to run a check of the complainant’s
license plate number with dispatch.
This agitated the man, who was standing by his vehicle at the time – and who had apparently
commented at the cadre of officers as they passed him while escorting their detainee away from the
center, attracting their attention. He became angry that his car (among several parked on the block)
was being singled out for the officer’s scrutiny. He confronted the officer, spoke to him somewhat
aggressively on a couple of occasions, and took the officer’s business card with the expressed
intention of complaining about him.
The vehicle’s registration was apparently current, and there were no other issues; accordingly, no
enforcement action was taken against the complainant, and the four officers left together soon
thereafter.
A supervisor interviewed the man when he came to police headquarters to file his complaint. The
supervisor then watched the body-worn camera recording of the incident. The supervisor
determined that the officer had acted in a manner consistent with Department policy by initiating
his investigation into the license plate status. Officers, of course, have the discretion to conduct
such inquiries as part of their authorized, expected patrol functions. Accordingly, the review was
closed with a finding of “Exonerated,” and the complainant was notified accordingly.
Outcome and Analysis
We found this case disappointing in terms of both the subject officer’s actions and the adequacy of
the supervisor’s review. It was clear from the body-worn camera recording that the complainant’s
own anger reflected poorly on him. But the relatively restrained nature of the officer’s responses
was undermined at times by his condescension and dismissive attitude, which at one point further –
and unhelpfully – extended the man’s last attempt at confrontation. More importantly, the
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complainant appeared to have a point – namely, that the officer’s “investigation” did seem to single
him out in a questionable fashion.
Perhaps as a reaction to the man’s earlier comments, the subject had said to a partner officer, “I’m
going to go run his S.U.V. next, see if I can get false tags or something,” and walked half a block
to engage with the man and his vehicle at the outset of the encounter.2 Though nothing came of it
in terms of citations or other enforcement actions, it nonetheless came across as the sort of
officious exercise of authority that contributes to negative stereotypes about the police. Nor did the
earlier minutes of body-camera recording (prior to his encounter with the complainant) reflect the
highest standards of professionalism, marked as they were by multiple instances of casual profanity
(though not directed at members of the public) and sardonic commentary.3
None of this, however, was discernible from the single-page review produced by the initial
reviewing supervisor, or the half-page endorsement of it by another supervisor that effectively
closed the case. Instead, the supervisor’s memo focused on the complainant’s poor behavior, on
the authority that officers have under law and policy, and on the recorded concerns that had been
expressed by a bystander as to the bothersome nature of long-term parking activity on the block –
including by the complainant. It is telling, though, that the conversation with the bystander
happened after the fractious encounter with the complainant, even though it is highlighted as a
seeming justification for the “investigation” that had already occurred.
This strikes us as a lost opportunity. Statistically, Palo Alto generates very few public complaints.
But even if there were more (thereby creating resource challenges and stronger arguments in favor
of “bottom line” efficiency), we would still advocate a rigorous approach that treats the complaints
not only as a forum for accountability but also as a chance to provide feedback and improve
performance. That rigor did not happen here – even though we are hard pressed to believe that this
is how PAPD’s leadership wishes its officers to approach their patrol responsibilities.
RECOMMENDATION ONE: PAPD should go beyond a “letter of the law”
assessment when evaluating an allegation that an officer used his discretion in a
retaliatory or otherwise improper fashion.
We were also provided with the letter that PAPD is required under state law to provide to the
complainant advising of the results of the investigation. As with prior letters we have reviewed,
this letter consists of four “boilerplate” sentences that does not provide any detail about how or
why the Department reached the conclusion it did. As we have said previously, PAPD’s failure to
2 “Go do it,” the other officer replied. “He’s fun.”
3 We recognize that officers are entitled to have a personality, and that few of us would welcome outside
scrutiny of the informal remarks we make to colleagues in a casual workplace context. However, the officer
presumably knew he was recording himself. At the very least, a reminder about the potential discoverability
of all such materials seems warranted.
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provide additional information about what was done to investigate the complainant’s allegations
and the reasons for its conclusion is a missed opportunity to “show its work” and demonstrated that
the allegations were seriously considered. In fairness, though, we note that the command staff has
expressed its acknowledgement of that point and the closing letter in this matter preceded our
initial recommendation. More importantly, PAPD has shifted its approach in more recent
communications, and provided us with examples of a more effective model. We appreciate that the
Department considered and adopted our recommendation and commend PAPD for this increase in
transparency.
Case 2: Allegation of Failure to Act
Factual Overview
This case involved a complainant’s allegation that a PAPD supervisor had failed to take
appropriate action regarding the enforcement of a Criminal Protective Order (“CPO”) against his
former spouse. The specific issue related to email correspondence that the ex-wife’s attorney had
sent to the complainant’s attorney in the context of their ongoing legal disputes. The email
concerned challenges to the legitimacy of medical claims being asserted by the complainant.
The complainant’s contention was that this correspondence, which he provided to the PAPD
supervisor, amounted to harassment that violated the terms of the CPO. Accordingly, when the
supervisor declined to take enforcement action based on his own interpretation of the email in
relation to the CPO’s terms, the complainant contacted PAPD to register his concerns.
A Department manager completed the review as a “Supervisory Inquiry Investigation,” and based
his findings and conclusions on a series of documents related to the case.
Outcome and Analysis
The manager handling the “Inquiry Investigation” determined that the supervisor had properly
assessed the underlying situation. The correspondence at issue was between attorneys of record in
the litigation between the former spouses. The reviewer determined that the content served a
legitimate purpose, was from one lawyer to another, and did not otherwise fall within the
restrictions of the CPO – a copy of which the manager had obtained and reviewed.
Accordingly, the Department found that the supervisor’s original decision had been legitimate and
that no misconduct had occurred.
We concur with this assessment. The handling manager performed the review with appropriate
due diligence and thoughtfulness, and the accompanying memo is well-written and persuasive.
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This case lent itself well to the parameters of the Inquiry Investigation, since the complainant’s
assertions revolved wholly around documents that were sufficiently available and clear. In short, a
full-scale investigation (including interviews) was not needed to conclude that the complaint
lacked substantive legitimacy.
Case 3: Allegations of Investigative Misconduct
Factual Overview
This case involved a series of claims that were made by an incarcerated individual who was
challenging the legitimacy of his conviction on arson charges. He believed that the handling
PAPD detectives who investigated his case and participated in the prosecution against him relied
on several willful misrepresentations or other acts of misconduct in order to wrongfully incriminate
him. His original complaint letter raised several specific issues and allegations, and offered to
provide court records and other documentation in support of his claims.
The complainant originally reached out to our office in the belief that the Independent Police
Auditor would facilitate the review of his complaint. We in turn directed his concerns to PAPD for
proper handling. There was some initial reticence about delving administratively into issues that
were the potential subject of a criminal appeal, but eventually the Department agreed that – apart
from the complainant’s motivations and whatever other implications might arise from further
inquiry – the allegations of misconduct against PAPD personnel merited formal attention. A
supervisor took responsibility for conducting an assessment of the claims in relation to the
extensive evidence and court history that the case had produced.
The underlying arson fire occurred several years ago, at the home of the complainant’s former
employer. The complainant had been terminated from his job several weeks before the incident,
and there was considerable physical and circumstantial evidence connecting him to the arson
crime. He was charged within days of the incident, and convicted in a jury trial that occurred
approximately a year and a half later. He was sentenced to several years in prison, and filed an
appeal of his conviction on different grounds – some of which overlapped with the misconduct
assertions in his complaint to PAPD.4
The complainant’s letter that ultimately led to the PAPD review consisted of six handwritten pages
that detailed several different claims. The allegations vary in length, clarity, and complexity but
revolve around assertions that officers acted “unethically and maliciously” in their efforts first to
4 The appeal proved to be partially successful in a ruling that was announced in 2020. But the court’s basis
for remanding the case was not related to the allegations of investigative misconduct that drove the
complaint.
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secure a search warrant and then to present the extensive evidence that was discovered either at the
scene or when the search warrant was approved by a magistrate.
Outcome and Analysis
After some initial breakdowns in communication that arose in part from the complainant’s separate
but overlapping outreach to both PAPD and the Independent Police Auditor, and some initial
reluctance to “re-litigate” matters that had presumably been addressed at trial and were the subject
of further court proceedings, PAPD agreed to review the complaint and take further action as
needed. We supported this decision. While recognizing the unique circumstances from which the
complaint emerged, we took the position that the assertions of officer misconduct were worthy of
administrative attention apart from any implications in the courts. Accordingly, we appreciated the
thoughtful consideration that the complaint was ultimately given.
The PAPD reviewer eventually produced a memorandum that addressed each of the claims in turn
– and found no legitimacy to any of them. Some of the allegations were easily refuted. For
example, the complainant argued that the affidavit in support of the search warrant had included
multiple unjustified assertions about his mental state; however, unlike the complainant’s
characterization of the relevant language, the detective who wrote the affidavit was not opining
himself but instead conveying the third-party observations of others and the deductions drawn from
prior police contacts. He also cites discrepancies between language in the affidavit and the signed
search warrant – an observation that is accurate but, per the supervisor’s review, neither unusual
nor substantively significant.
Claims regarding falsification of evidence at the scene of the crime are somewhat more detailed
and convoluted, but the supervisor’s memo refutes each one convincingly. In short, the memo
addresses seven separate allegations of supposed misconduct and explains the misunderstandings,
suppositions, or flawed assumptions upon which they rely. The supervisor concluded that none of
the claims warranted further investigation, and recommended that the matter be closed as
“Unfounded.” We were provided with a large amount of the relevant reports and documentation in
addition to the memo itself. We concurred with the Department’s findings and conclusions.
Unfortunately, the Department took several months to finalize its review after the completion of
the initial investigator’s work. We received a helpful initial briefing from the reviewing supervisor
himself, but did not get a copy of the memo or the supporting documentation until considerably
later, with no explanation as to why. Our understanding is that the materials were simply waiting
for evaluation and approval at the next rank level, and this simply did not happen in a timely
fashion.
This is regrettable in terms of best practices and operational efficiency – to say nothing of the
understandable confusion about the delay that was expressed by the complainant in his
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correspondence with our Office. The Department has acknowledged that this was far from optimal
– while reminding us of a number of other priorities that were taking precedence throughout the
agency during the months that the completed investigation sat idle, such as the special challenges
of the pandemic5, the demands placed on PAPD to engage with the new narrative on public safety
following the George Floyd murder, and the strains placed on smaller Departments. With due
respect for the competing demands on executive time and attention, we nonetheless urge PAPD to
make a commitment to the prompt resolution of all administrative matters – particularly when the
investigation itself is complete and awaiting managerial review.
RECOMMENDATION TWO: PAPD should address allegations of officer
misconduct in straightforward and timely ways, apart from concerns about parallel
proceedings that may involve some of the same concerns.
RECOMMENDATION THREE: PAPD should prioritize the timely resolution of
cases, and should hold managers accountable as needed to ensure that this occurs.
Case 4: Allegation of Officer’s Failure to Address Concerns of
Complainant and Concerns About Subsequent Investigation
Factual Overview
This allegation involved an individual who requested a patrol officer to intercede when he reported
a man behaving in a concerning manner. The complaining party said that he had seen a male
subject speaking to a female in a manner the complainant felt was inappropriate. As the
complainant spoke to the officer, the male appeared. The officer spoke to the male briefly.
Because no apparent crime had been committed, the officer did not pursue the matter.
Subsequently, the complainant alleged that the investigator assigned to the complaint did not fully
or timely investigate the concerns he had raised.
Outcome and Analysis
IPA’s independent review of the body camera footage determined that the officer responded
appropriately and there was no legal basis for any further detention of the male. IPA also reviewed
the work done by the investigator assigned to the matter and found that his investigation was both
timely and thorough.
5 With particular regard to the challenges of the pandemic, the Governor granted an extension to law
enforcement entities to complete internal investigations beyond the normal one year period.
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Case 5: Allegation of Inadequate “Missing Cell Phone”
Investigation
Factual Overview
The complainant in this case reported that she had left her cell phone at the library. When she
returned the next day, the phone was missing. The complainant reported the matter to library staff,
but a search was not able to locate the phone. The complainant reported the missing phone to
PAPD, and an officer contacted library supervision, made inquiry about the missing phone, and
prepared a police report.
The complainant then lodged a complaint against PAPD alleging that its investigation into the
missing phone was inadequate. The complainant believed, for example, that it was incumbent
upon PAPD to interview all library employees about the missing phone – a step that had not been
taken.
PAPD concluded that the inquiry into this matter met Department and industry standards and that it
was not a violation of policy to conduct the missing phone investigation as extensively as
requested by the complainant.
Outcome and Analysis
IPA has reviewed the allegation and underlying materials and concurs with PAPD’s
determination that there were no violations of policy or performance issues.
Case 6: Allegation of False Arrest, Illegal Search and Racial
Profiling
Factual Overview
The complainant alleged that during their investigation of a traffic accident, PAPD officers falsely
arrested him, illegally searched him, and subjected him to racial profiling.
The underlying incident was initiated when PAPD responded to a two car non-injury collision.
During the subsequent investigation, responding officers suspected that one of the drivers (the
eventual complainant) was under the influence of marijuana. Indicia of that suspicion was an
unsteady gait, the detected odor of marijuana emanating from the driver’s person, and eventually
an admission from the driver that he had smoked marijuana. As a result, the driver was given a
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series of field sobriety tests that he was not able to successfully perform, and he was then arrested
for driving under the influence of marijuana.
As a result of the detection of marijuana odor from the vehicle, officers conducted a search prior to
it being towed away, and did in fact discover marijuana. The driver was transported to jail, but
booking was refused by jail authorities as a result of a high blood pressure reading. As a result,
PAPD offered to transport the driver to a hospital for medical attention or to cite and release him.
Per the driver’s request, he was then cited and released.
The District Attorney declined to pursue any charges against the driver, citing the failure of PAPD
to obtain a blood draw from the driver.
Outcome and Analysis
PAPD conducted an investigation into the allegations raised by the complainant. Several attempts
to reach the complainant for an interview were not successful. Nonetheless, PAPD continued to
conduct a thorough investigation, including a review of body-worn camera6 and in-car video
evidence of the responding officer. The analysis was thorough and concluded that the arresting
officer did not violate policy, and that the allegations of false arrest, illegal search, and racial
profiling were not substantiated. The investigative report noted that the recorded evidence was
consistent with the information in the responding officer’s arrest report and that there was
sufficient cause to search the vehicle. The investigative report found a lack of evidence that the
detention and arrest were racially motivated, noting that officers were “responding” to a traffic
collision (as opposed to initiating the stop), and that both drivers were asked if they had been
drinking or under the influence of a drug.
PAPD did recommend that both responding officers be verbally counseled on their failure to obtain
a blood draw from the driver, which had resulted in the District Attorney’s decision not to
prosecute.7
IPA concurs with PAPD’s findings that the allegations were not substantiated by the evidence. It
also appreciated PAPD’s recommendation that the officers be verbally counseled as a learning
6 The report noted that after the arresting officer put on a traffic vest, it blocked any further video recording
of the incident, although the audio continued to record.
7The body-worn camera recording depicts a conversation between the newer officer and a more
tenured officer, in which the newer officer asked if they should call for a blood technician to
respond to the station. The senior officer stated that they would take care of that issue upon
arrival at the station; however, there is no indicia that any further arrangements were made to
obtain a warrant or arrange for a blood draw. The paperwork supporting the arrest notes that
the driver refused a blood draw, with no further information being provided.
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opportunity for the future. If the District Attorney is not filing certain kinds of cases without a
blood draw, in-service officers should be aware of that practice. To be sure, all PAPD officers
would benefit from the apparent need to obtain a blood draw in order to support a viable
prosecution. However, there is no evidence in the file to indicate that the verbal counseling
occurred.8
The fact that the arresting officer’s body-worn camera was blocked when he donned the traffic vest
was identified during PAPD’s investigation, but there was no apparent follow up on this issue. In
order to further guide officers on where to place a body-worn camera when donning a traffic vest,
the investigation should have determined how the equipment could still fully function while
wearing the safety equipment. With that knowledge, PAPD could then have advised the involved
officer and the Department of the appropriate “fix” to this important and recurring equipment
issue.
RECOMMENDATION FOUR: PAPD should advise its members of the
apparent need to obtain a blood draw in order to support a successful
prosecution and consider changing policy to require it in cases involving
suspected driving while intoxicated (marijuana or other drugs).
RECOMMENDATION FIVE: PAPD should ensure, through documentation,
that any recommended verbal counseling does in fact occur.
RECOMMENDATION SIX: PAPD should determine how a body-worn
camera should be placed that would still successfully video events when
wearing a traffic vest and import that knowledge to the involved officer and
the Department as a whole.
Case 7: Investigation into Improper Database Access and
Allegations of Off-Duty Misconduct
Factual Overview
This case was generated internally, when a dispatcher became aware that an unauthorized name
had been entered into the Department’s criminal records database via an in-car computer terminal.
At the time, the patrol officer who was assigned to the relevant car was working a normal shift and
8 We have been advised that recently PAPD has developed a case disposition form that will document that
any time that verbal counseling has occurred.
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accompanied by a female ride-along (with whom he also was in a dating relationship9) and whose
name had been the subject of the possibly inappropriate query.
While conducting an initial investigation in the database entry, a supervisor reviewed recordings
made by the officer on his body-worn camera at around the relevant time. In doing so, he
overheard a recorded conversation in which the officer apparently alluded to a recent recreational
use of illegal drugs. This caused the Department to put the officer on administrative leave during
the pendency of a now-expanded misconduct review.
The Department interviewed several people as witnesses, including the dispatcher who identified
the issue, the officer’s direct supervisors, and a friend of the officer who had attended the gathering
where illegal drug use had occurred. The officer himself was also interviewed about the various
issues.
Outcome and Analysis
The case presented several issues, including the circumstances under which the woman’s name had
been entered into the database, whether the officer had properly notified supervisors and
maintained appropriate control of the woman’s actions in her capacity as a ride-along, whether the
officer had knowingly been in a social context where illegal drugs were being used, and – most
significantly – whether he himself had used illegal drugs in this and/or other contexts.
As for the drug use in question, the Department (after consultation with both the City Attorney’s
Office and City Human Resources) decided not to administer a physical test of the officer.10 This
meant that the issue on possible drug use turned on different people’s testimony about the event –
in addition, of course, to the statements made by the officer on the recording as he chatted with his
ride-along about the conversation with another officer in which the drug use had been mentioned.11
Based on the representations of the woman, the other friend, and the officer himself – all of whom
acknowledged that drug use had occurred at the party, but who steadfastly denied that he had
participated as anything other than an observer, the Department determined that it could not prove
9 We recognize that the existence of a personal relationship does not inherently make applicable ride-along
pairings a bad idea. But we encourage PAPD to consider the issue and reinforce the importance of
professionalism in that distinctive context, particularly when a dating relationship is part of the dynamic.
10 One factor was the reality that even if the alleged use had occurred, enough time had passed that the
drug’s presence would no longer be detectable.
11 It is unclear as to why the officer would have had his camera activated at that point in the ride along.
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that the officer had engaged in illegal drug use.12 His attendance at that party and tacit endorsement
of other people’s illegal activities did, however, constitute a separate policy violation that was
found to be sustained.
As for the inappropriate entry in the Department computer system, the officer’s girlfriend accepted
responsibility for being the one to physically make the entry. The officer, for his part, claimed to
have no knowledge of how the entry came to be made – though he accepted responsibility for her
having done so by apparently failing to provide sufficient monitoring. This too was a violation of
policy that contributed to the disciplinary consequence the officer ultimately received.
Having reviewed the investigation, we find the Department’s different conclusions to be
reasonable. However, and especially given the seriousness of the allegations and the discrepancies
in certain of the parties’ respective stories, it is unfortunate that the investigation itself was not
more rigorous, effective, and convincing.
For example, the investigator’s interview of the officer to whom the subject officer had originally
made his supposedly “joking” reference to illegal drug use was notably short and unsatisfying.
The substantive part of the interview lasted approximately three minutes, with the inquiry largely
truncated by the officer’s assertion that he did not remember such a conversation (which had
occurred, if at all, a month earlier). This is, of course, not the same thing as denying that it ever
occurred – a distinction that the interview did not pursue.
More pointedly, we found the subject officer’s own testimony to strain credulity in several self-
serving ways.13 But the supervisor who conducted the investigation seemed to accept these at face
value rather than probing for explanations – especially in light of the other evidence that was at
least partly conflicting.14
Part of the issue may have been that most of the key interviews – including the subject interview –
were conducted only by the supervisor who handled the case. It is common investigative practice
(both in criminal cases and in our experience of internal affairs best practice) to have two people
12 In his interview, he explained that his conversational claim to the contrary had merely been an effort to
impress his girlfriend, and not a reflection of his actual behavior. The recorded exchange is ambiguous
enough to lend itself to this interpretation, particularly since it gets cuts off by radio traffic and interceding
events.
13 This included his professing to having no independent recollection of the incriminating conversation with
his girlfriend that was recorded on his body camera, and his surmising that he must have been out of the car
when the inappropriate entry of his girlfriend’s name occurred.
14 For example, the officer’s girlfriend recalled his sitting right next to her when she was using the illegal
drugs at the gathering in question, whereas he described himself as moving from room to room and
distanced from the activity itself.
15
assigned as questioners. This is for the simple reason that the presence of a “backup” listener and
participant increases the likelihood that all relevant ground will be covered and that appropriate
follow-up questions will get asked.
We acknowledge that the evidence for the allegation of drug use was insufficient, and recognize
that there was value to the accountability that did emerge from the case and the other sustained
policy violations. Nonetheless, in light of the shortcomings we noted above, we encourage the
Department to consider standardizing the staffing of administrative interviews with two
investigators to help promote appropriately robust reviews.
RECOMMENDATION SEVEN: The Department should assign two investigators
to key interviews in its internal affairs cases, and at a minimum should ensure such
staffing for the interview of the subject employee.
Case 8: Complaint about Rudeness/Interference with First
Amendment Activity
Factual Overview
This case arose in the early weeks of the COVID-19 pandemic. It involved a male subject who
approached a PAPD traffic stop on foot and began to record it. The PAPD supervisor who had
initiated the stop called for backup out of concern that the individual, who was standing nearby and
uncooperative with requests to move, presented a potential officer safety issue. Three additional
officers responded and interacted with the man over the course of approximately fifteen minutes.
Ultimately, the traffic citation was issued, and everyone left the scene.
The man who was recording on the sidewalk eventually posted a video of his encounter with the
officers. It attracted a number of views on social media, and some of the attention in that forum
centered on a moment when one of the officers (who was unmasked) coughed while standing near
the man. Though the officer did cover his mouth, the action provoked additional tension with the
subject and led to the officer making a glib reference to coronavirus that was highlighted on the
man’s resulting video version of the exchange.
The other officer took the lead on the last few minutes of monitoring this individual, who remained
verbally antagonistic. This second officer used a derogatory profanity to characterize the man
toward the end of the encounter. Meanwhile, each of the involved officers was also filming the
incident with their respective body-worn cameras. The second officer’s recording depicts the man
lowering his own mask and coughing repeatedly in her direction at one point in the incident.
16
The man’s subsequently released video shows most but not all of the various exchanges. The
Department became aware of the video via the internet soon after it appeared – approximately
three weeks prior to the subject’s emailed complaints, which separately named both the coughing
officer and the officer who had used profanity. The complaint alleged various elements of
misconduct, including interference with the man’s First Amendment rights, his potential exposure
to COVID-19, and different instances of discourtesy.
Outcome and Analysis
The Chief chose to take action after being notified of the relevant social media posting – and
before the man’s complaints were received by the Department.15 The Chief reviewed not only the
relevant social media posting, but the body camera recordings of the involved officers, which
offered a more complete version of the events. He determined that the officers’ actions did not rise
to the level of a policy violation that required formal investigation or disciplinary consequences.
Instead, he met with each officer and provided verbal counseling as to the conduct at issue and the
need to meet the Department’s expectations for professionalism.
By the time the complaint was received, then, the matter had been addressed internally to the
Chief’s satisfaction, and he did not feel the need to revisit it. Accordingly, the complaint was
lodged for tracking and retention purposes, and no further action was taken.
We have reviewed the body-worn camera recordings (as well as the video posted by the
complainant) and have a clear sense of what occurred. Although we were not privy to the
substance of the Chief’s relevant interactions with the named officers, we consider the approach
that was taken to be a reasonable one.
Much of the conflict revolved around the man’s assertions that his right to stand on a “public
sidewalk” and make a recording was being improperly impinged upon by the officers’ directing
him to move back. For their part, the officers were careful to distinguish between the man’s right
to record (which they repeatedly acknowledged) and authority of the officer who was handling the
original traffic stop and was entitled to have the man move a safe distance away so as not to create
a distraction that interfered with her investigation. Unfortunately, the explanation was not always
as clear as it might have been,16 and the officers gradually allowed their exasperation with the
15 Different third parties had also contacted the Independent Police Auditor to inform us of the issue after
viewing the video on social media.
16 It is also difficult to know how much of the man’s professed lack of understanding was more tactical in
nature, given his apparent animosity and desire to provoke. In fact, the man has produced and posted a
number of videos of himself engaging in contentious interactions with law enforcement in several different
jurisdictions.
17
man’s recalcitrance and contentious, disrespectful manner to influence aspects of the exchange for
the worse.
While the officer’s cough was apparently unintentional, his subsequent sarcastic reference to
maybe carrying the virus was obviously a poor choice – especially in the highly charged and
uncertain atmosphere of the pandemic’s earliest weeks. Similarly, the other officer’s use of
profanity betrayed her (understandable) annoyance in a way that not only fell below Department
expectations, but also played into the man’s apparent eagerness to antagonize.
None of this is optimal. At the same time, in the overall context of the encounter and in light of the
brief, passing nature of the respective lapses, it was reasonable for the Department to address the
concerns in a relatively low-level manner. Not every performance issue – even those that are
arguably or technically in violation of policy – need result in formal discipline in order for the
goals of correction and future improvement to be achieved.
Case 9: Complaint about Ineffective Response to a Medical
Emergency and Alleged Disclosure of Confidential Information
Factual Overview
This case involved the response to call for service involving an adult woman who was
experiencing a medical emergency outside her home in a residential neighborhood. Encountering a
young neighbor in her distressed condition, she was able to walk and speak, but had difficulty
completing thoughts and expressing the type of help that she needed. The young man called 911 as
well as enlisting the aid of his father.
During the communication with the Palo Alto Public Safety Dispatcher, ambiguity as to the cause
and nature of the woman’s ailment led to the Dispatcher’s decision to notify the Police Department
in addition to the Fire Department and Medic units that she initially summoned. This led to a delay
of several minutes as the Fire and Medic personnel staged a short distance away and waited for
PAPD to arrive and clear the situation as safe. PAPD personnel (an officer and a supervisor)
eventually made initial contact, with the goal of determining whether the woman was having a
mental health episode and potentially posed a danger to herself or others.
Thirteen minutes after their own arrival on scene (and shortly after the PAPD personnel had done
their initial assessment), the medics contacted the woman and began treating her. (She was
eventually taken to the hospital and admitted with a serious medical condition.) Meanwhile, the
PAPD officer who was handling the call made a search of the woman’s home in an effort to locate
possible evidence that would account for her incapacity and potentially assist with treatment.
18
Within a few weeks, the woman and her husband had initiated an inquiry with various city officials
as to what had occurred and why.17 There was a focus on several different issues, including the
delay in allowing the on-scene medical professionals to begin their work, and the propriety of the
officer’s search of the woman’s home and belongings. An additional question arose regarding the
officer’s later sharing of information about the call with her own spouse, who was acquainted with
the woman; the allegation was that confidentiality protocols had been breached by whatever
disclosures had occurred. Lastly, the absence of a body-worn camera recording from the
supervisor was investigated for possible violation of PAPD’s activation policies.
Because the incident had involved multiple entities within Palo Alto, the City ultimately decided to
hire an independent investigator to assess the possible culpability of implicated personnel. There
were three identified subjects: the PAPD officer, the supervisor who had also been at the scene
from the outset of the response, and the dispatcher who had handled the original 911 call from the
neighbor of the ailing woman.
Outcome and Analysis
Dispatcher
Much of the accountability assessment centered on the thirteen-minute gap between when the Fire
Department units first arrived on scene and when they initiated treatment of the woman. It is of
course preferable to address a medical emergency sooner rather than later. However, the woman’s
very serious physical distress was manifesting itself in ambiguous ways. She was conscious but
agitated, and had difficulty articulating complete thoughts. The young neighbor bystander who first
sought to assist her was unsure of her status, and his answers to the dispatcher who handled his 911
call led the dispatcher to request a police response to ensure that the situation was safe for medical
personnel. This decision, in turn, led to much of the ensuing time lag: both officers arrived after
the Fire Department units were in place and then took several minutes to question the woman
before summoning Fire personnel forward.
For purposes of the investigation, the dispatcher’s performance (as captured in a recording that was
transcribed) was analyzed by multiple subject-matter experts in relation to both policy and to
“Universal Standards” for Emergency Medical Dispatch. The ultimate finding was that the
dispatcher had deviated from protocol by asking the caller a “freelance” question about the
woman’s condition, and then failing to return to the standardized checklist in a way that may have
better clarified the situation. At the same time, the choice to involve the police and initially
“stage” the Fire Department for safety reasons was found to be reasonable based on the
17 She also corresponded by email and phone with our Office as she was initially exploring her options and
seeking a response to her different concerns. We clarified our role in the process and did not hear from her
subsequently.
19
dispatcher’s developing sense of the call – even though the foundation for that sense was at least
partially flawed.
Officer
As for the PAPD personnel, the investigator determined that neither the officer nor the supervisor
had violated policy in their decision-making or actions in responding to the call for service.
Overall, these outcomes seemed reasonable from our assessment of the investigation.
The officer’s five-minute wait for the supervisor obviously slowed her own response to the scene,
but it was in keeping with the supervisor’s direction (which was in itself based on standard officer
safety protocols of waiting for backup in certain contexts). The officer’s interactions with the
woman seemed well-intentioned, appropriate to the circumstances, and of limited duration.
Similarly, her search of the woman’s home (which was recorded in full on the officer’s body-worn
camera and which was authorized on a phone call with the woman’s husband) seems to have been
undertaken in a good faith effort to gain insight into the woman’s condition.
The issue of a possibly inappropriate disclosure was also explored in the investigation. The officer
acknowledged sharing information about the service call – specifically and limited to the identity
of the woman and the fact she had been transported to the hospital – with her wife, who was
familiar with the woman from different contexts.18 However, the investigator found that these
details were not of a type or nature that PAPD confidentiality restrictions forbid.19
Though the investigator’s analysis makes sense in the context of the case and existing policy, the
situation and its aftermath raise the question of whether further consideration (or guidance)
regarding disclosure of sensitive information is warranted. While the facts and overlap of
relationships here were unusual, it is far from inconceivable that similar paradigms will arise in the
future. The difference between “can” and “should” seems to be one worth pursuing by Department
management.
Supervisor
The supervisor’s actions were also evaluated and found to be reasonable, for many of the same
reasons as those of the officer. Her choice to have the other officer wait so that they could
communicate at the scene and then respond together was considered appropriate to their (limited
knowledge) of the situation. If anything, the supervisor was intent on not having the Fire
Department cede responsibility for handling a case that was medical in nature, and ultimately
18 The wife’s subsequent communications about the matter with third parties also received public attention
in the aftermath of the incident.
19 Notably, the wife was not interviewed as a witness.
20
sought to hasten the medics arrival by waving them forward and then getting on the radio when
they did not seem to react.
The independent investigator also reviewed the supervisor’s lack of a body-camera recording.
Apparently, the supervisor had inadvertently left the camera in its charging cradle within the police
vehicle upon arrival at the scene. By the time the supervisor realized her error, the thought was
that getting to the woman and beginning to engage was a higher priority than returning for the
camera. The investigator found “insufficient evidence” of a policy violation under these facts.
Because the other PAPD officer was properly equipped and had activated her camera (as the
supervisor confirmed), the investigator determined that key events were in fact being recorded and
that the supervisor’s breaking away from the scene to get her own camera would not have been
“reasonable.” Thus, per the investigator, she was not in violation of the PAPD policy that requires
officers to make all “reasonable” efforts to activate their camera system when responding to calls
for service.
This is perhaps the least convincing of the investigator’s conclusions. The supervisor’s mistake in
forgetting the camera initially may well have been an innocent one, and the decision to forego
retrieval of it made sense as well. But it was a mistake, and it compromised the totality of the
available evidence in a call that became the subject of some controversy. Moreover, her identity as
a supervisor raises expectations and makes accountability even more appropriate. In our view, a
better approach would have been to acknowledge the lapse as a violation, and consider mitigating
factors as needed with regard to any consequence.
Policy Change
Importantly, the incident itself also proved to be an occasion for a thorough revisiting of related
policies and practices. This systemic review resulted in concrete operational changes. These
included updates that refined expectations for the timelier delivery of medical aid in situations
where the police and fire department personnel are both responding. Notable shifts included the
direction for the police to employ lights and sirens in speeding their own arrival to such scenes, and
more overt references to prioritizing necessary medical care even when the subject is a candidate
for a possible mental health commitment.
To us, these steps appear to make practical sense. They also show a commendable ability to glean
lessons from experiences in the field, and to make adjustments in an effort to improve future
performance.
21
Taser Deployments
Case 1: Non-contact Deployment during Foot Pursuit
Factual Overview
Officers responded to two calls that emerged in a short span of time and involved similar
allegations. Individual female victims described being approached by two subjects while walking
in a residential neighborhood. In both instances, the females were pushed and had their cell phones
physically wrested from them. This constituted a “strong arm robbery,” an obviously serious
offense. Responding officers soon located the subjects, who were both on bicycles, and attempted
to detain them. One subject fled on foot and was pursued by an officer who used his Taser in an
effort to facilitate the apprehension. The activation failed to connect, and the foot pursuit
continued.
Soon thereafter, the subject stopped and was taken into custody without further incident. He was
found in possession of the two phones that had been taken from the victims.
Outcome and Analysis
This use of force was reviewed by a supervisor, who interviewed the subject and assessed
recordings and reports from the involved officers. The recounting of the Taser deployment was
essentially consistent across the different individual versions. The subject acknowledged
recognizing that it was a police officer who was ordering him to stop, admitted to running away,
and repeatedly confirmed that he had not been struck by the darts or otherwise injured.
That said, a few additional factors needed to be weighed in terms of reaching the supervisor’s
ultimate conclusion (which was endorsed up the chain of command): that the use of the Taser had
been objectively reasonable and consistent with Department policy. We found the underlying
analysis at this initial level of review to be less than robust, as we discuss below.
The first issue was the fact that the subject was running away at the time the officer used the Taser.
Per PAPD policy, “Mere flight from a pursuing officer, without other known circumstances or
factors, is not good cause for the use of the [device] to apprehend an individual.” The resulting
question, then, was whether “other known circumstances or factors” warranted the exception here
to the normal limitation.
The officer himself cited various reasons why he believed that such justification occurred. These
included the physical nature of the crimes the subject was believed to have recently committed and
the fact that he was “grabbing at his pockets” as he ran – thereby raising the possibility of a
weapon. The supervisor seemed to accept this representation (and not illegitimately). But his
22
memo in connection with the case did not even flag the flight issue as one worth citing and
explicating.20
The second issue was the lack of a warning. The Department’s “Conducted Energy Weapon”
policy stipulates that a verbal warning should precede activation of the device unless it “would
otherwise endanger the safety of officers or when it is not practicable due to the circumstances.”21
The officer in this case did not issue a warning, which he attributed in his report to the fact of their
running, and that the “incident was evolving.”
Again, it was disappointing that the supervisor again did not make an overt, specific analysis of
this element as part of his overall assessment of the Taser use. Nor did the subsequent memo
produced by a higher ranking officer close this gap.
An issue that the second-level reviewer did address (though the original supervisor had not) was
the subject’s status as a juvenile. The relevant PAPD policy regarding “Targeting Considerations”
cautions that “obvious juveniles” are among the groups for whom use of the Taser should
“generally be avoided.” The supervising reviewer correctly noted that the size and appearance of
the subject (6 feet tall, 205 pounds) moved him beyond the realm of an “obvious” juvenile.
Nonetheless, the supervisor’s memo should have flagged the subject’s actual age (16) and
considered it as part of the analysis.
The initial reviewer did identify and contend with an additional concern in the case: namely, the
fact that the officer wore a jacket over his body camera in a way that obscured the key parts of the
encounter (and meant that there was no visual evidence of the actual Taser discharge). This
obvious shortcoming seems to have been appropriately addressed in direct communications with
the officer, as documented in the memo.22
Lastly, the memo features an extended discussion of a profanity used by the partner officer in the
seconds before the subject surrendered and was handcuffed. Specifically, the approaching officer
(after a tiring foot pursuit of some 150 yards) yelled for the subject to “get on the fucking ground.”
To his credit, the supervisor identifies the issue in his write-up and engages in a thoughtful analysis
of it. He ultimately determined that this statement fell within the “deliberate verbal tactic”
20 Interestingly, the manager who reviewed the first supervisor’s work and prepared his own memo added a
reference to the “densely populated” neighborhood where the pursuit occurred, “where it has been
historically difficult to apprehend suspects.” This potential rationale would have been more compelling if
the officer himself had articulated it. We write elsewhere in this report about the importance of supervisors
refraining from adding their own after-the-fact supports for officer actions in the review context.
21 Interestingly, the subject made reference to this expectation when he was interviewed by the supervisor
about the force deployment; he wondered why no warning had occurred and shared his impression that the
officer was “supposed to” issue one.
22Conversely, another case discussed in this report involved the donning of a safety vest by an officer that
prevented a video account of the incident, but there was no such proof of direct intervention. (See
Misconduct Case 6, above.)
23
exception to the usual Department prohibition against profane language. We concur. However, in
our own review of that officer’s body-worn camera recording, we noted additional instances of
subsequent profanity that seemed more gratuitous in nature. More importantly, they were omitted
from the supervisor’s memo, which went so far as to (incorrectly) say that the “obscene language
ceased when the suspect was taken into custody.”
We have discussed profanity concerns in multiple prior reports, and need not belabor them here.
The supervisor’s attention to the topic as part of his review is a form of progress, and we think the
framework for analysis is a sensible one. At the same time, effectiveness in the setting and
upholding of any expectations depends on consistency and rigor, and these latter qualities were
missing from that part of the discussion in this case.
Case 2: Arrest of Carjacking Suspect
Factual Overview
A PAPD supervisor responded to a call for service involving a carjacking in progress. When the
supervisor arrived, he observed an individual sitting in the driver’s seat of a vehicle and was
advised by the victim that he was the subject who was attempting to steal her car. The supervisor
ordered the subject to get on the ground; instead of complying, the man told the supervisor to
“back the fuck up.” At that time, according to the supervisor, the subject made an abrupt move in
his direction. The supervisor, who had already unholstered his Taser, deployed it and struck the
subject, causing him to fall to the ground. The supervisor then took the man into custody.
The subject was transported to a local hospital for treatment, cleared for booking, and booked for
carjacking and resisting arrest.
Outcome and Analysis
The supervisor who reviewed the force incident determined that the use of force was within PAPD
policy. Below, we discuss our own impressions in two categories: procedural issues in the
investigation, and substantive questions about potential inconsistencies in reporting.
1. Procedural Shortcomings
Attempted Interview of Subject
The reviewing supervisor traveled to the jail in an effort to interview the subject. According to the
reviewing supervisor’s report, the subject was falling in and out of sleep and did not respond to
questions asked of him. As a result, the reviewing supervisor ended his efforts to interview the
subject.
24
The reviewing supervisor’s report regarding the physical and/or mental state of the subject
suggests that his then-condition may have precluded his ability to respond to the questions being
posed. In such cases, which presumably arise with some regularity, we recommend that the
reviewing supervisor revisit the subject when practicable to again attempt the interview under
better conditions.
RECOMMENDATION EIGHT: PAPD should revise its force review
protocols to instruct supervisors that when an initial attempt at a subject
interview is not productive as a result of an observed physical or mental
condition, the reviewer should attempt to re-interview the subject at a later,
more favorable time, or document why such an attempt was not made.
Delay in Supervisory Review of Recording
According to the reviewing supervisor’s report, fifteen days after the incident he reviewed the
footage from the supervisor’s body-worn camera. In our view, a lapse of more than two weeks
between the date of the incident and a review of body-worn camera evidence is problematic, since
it inherently slows the identification of potential issues warranting further exploration. No
explanation was documented for the delay; it is important that the reviewer examine any body-
worn camera video much closer in time to the incident.23
RECOMMENDATION NINE: PAPD should develop protocols to ensure
that body-worn camera evidence of any reportable force be reviewed by the
supervisor assigned the force review close in time to the date of the incident.
2. Substantive Review of Evidence as to Deployment
In our own review of the available evidence here, we found inconsistencies that we believe
warranted further attention. Specifically, we found that the video recording did not clearly
corroborate some aspects of either the involved supervisor’s version or the reviewer’s recounting
of it. And we noted that the report of the additional officer on scene included an observation worth
exploring further.
The reviewing supervisor wrote that he spoke with the supervisor who deployed the Taser.
According to that report, the supervisor stated that after he arrived on scene, obtained information
from the victim, and observed the subject seated in the vehicle, he called for back up and ordered
the subject to get out of the vehicle and on the ground. The subject responded by telling the
supervisor “to back the fuck up,” at which time the supervisor deployed his Taser and again
23 We were advised that a supervisor did review the body worn camera footage within 48 hours of the
incident, but this was not the supervisor assigned to conduct the force review.
25
ordered the subject to get out of the vehicle and on the ground. According to the supervisor, the
subject exited the vehicle and took an “aggressive stance,” lunging toward the officer with his left
shoulder. The supervisor said that he believed the subject was maneuvering to assault him and
therefore deployed his Taser.
In a supplemental police report, the supervisor who deployed the Taser wrote that after he arrived
on scene, he told the subject to get on the ground. The report indicated that the subject quickly
looked at the supervisor while “aggressively and threateningly” pointing his finger at the
supervisor and yelling: “back the fuck up”. The supervisor wrote that he then unholstered his
Taser, pointed it at the subject and repeatedly told the subject to get on the ground.
The supervisor wrote that the subject then paused a moment before suddenly and quickly stepping
fully out of the vehicle and towards the officer in an “aggressive” manner. The supervisor wrote
that he believed that the subject was moving to assault the officer. The supervisor wrote that he
believed that if he attempted to go hands on, the subject would fight him or resist arrest, which
would have likely caused injuries to the officer, the subject, and responding officers. The
supervisor wrote that the subject provided no indication or statement that he was going to
peacefully comply with his commands.
The supervisor reported that as the subject stepped out of the vehicle and quickly turned his head to
his left, the officer immediately activated his Taser, once, striking what appeared to be the
subject’s stomach and leg. The supervisor stated that the subject appeared to feel the effect of the
Taser application and collapsed to the ground. The supervisor advised that he did not provide a
verbal warning of his intended use of the Taser before activation because the subject could clearly
see that the officer was pointing the Taser at him and because the situation was unfolding quickly.
The supervisor indicated that he could observe the red laser dots on the subject’s body.
In contrast to the rationale offered by the supervisor, a responding PAPD officer who observed the
Taser deployment and was tasked with writing the main police report wrote that once the subject
exited the vehicle, he made an attempt to flee on foot, but police prevented his escape by using a
Taser to incapacitate him.
The force memo prepared by the reviewer also and separately summarizes what occurred and
includes the reviewer’s description of the video evidence and what it shows. For instance, the
supervisor reported that the footage begins with the involved supervisor arriving on scene and
asking “what’s going on,” to which a woman depicted in the video replied: “some guy tried to steal
my fucking car.” The supervisor reported that the video shows that the man in the car steps out
and remains within the driver’s side door area and appears agitated as he motions about “wildly.”
The reviewing supervisor reports that the footage captures the supervisor asking for emergency
backup and telling the subject: “Hey sir, get on the ground”. The supervisor review reports that the
26
subject looks back to the supervisor, waves his hand at him, and says “back the fuck up.” The
supervisor indicates that the subject does not comply with officer commands and still has one leg
inside the driver compartment of the vehicle. According to the report, the footage shows the
supervisor deploying his Taser and while pointing it at the subject continues to order him to get on
the ground. The report states that the footage shows that the subject again responds to the
supervisor to “back the fuck up” and then makes a quick turning movement toward the supervisor.
The reviewing supervisor describes the footage as showing the subject turning and pulling his leg
out while lunging outward from the driver side of the car. Finally, the reviewing supervisor notes
that the video shows the supervisor deploying the Taser which causes the subject to immediately
fall to the ground.
Based on his assessment of the evidence, the reviewing supervisor determined that the use of the
Taser was within policy. He noted the PAPD policy requiring verbal warning of the intended use
of the Taser but found that it was a “rapidly evolving event” that required immediate police
intervention; additionally, because the involved officer was by himself, there was no need to warn
other officers of the Taser activation.
The reviewing supervisor further concluded that since after the subject exited the vehicle and took
an “aggressive stance, lunging toward him with his left shoulder,” the supervisor reasonably
believed that the subject was maneuvering to assault him, which provided a sufficient threat to
justify the deployment of the Taser.
OIR Group Analysis
Current Taser policy requires a verbal warning of its intended use unless it would otherwise
endanger the safety of officers or when it is not practicable due to the circumstances. The current
policy also states that “mere flight from a pursuing officer, without other known circumstances or
factors, is not good cause for the use of the [Taser] to apprehend an individual”.24
IPA’s review of the body-worn camera of the supervisor who deployed the Taser depicts the
officer arriving on scene, asking “what’s going on”, and being advised by the victim that the
subject was trying to steal the victim’s car. The video recording further depicts the supervisor
telling the subject to get on the ground and unholstering and pointing his Taser at the subject. The
video recording also depicts the subject telling the supervisor to “back the fuck up.”
The video shows the subject gesticulating and pointing but neither the supervisor who used force
nor the video shows the subject motioning about “wildly” as written by the reviewing supervisor.
There also appears as if there would have been time to issue a verbal warning to the subject before
24 The relevant passage of the current PAPD policy had a “typo” with a critical word missing. The typo has
subsequently been corrected.
27
deployment of the Taser. And significantly, the video shows the subject stepping out of the car
and taking a step or two towards the back of the car as if he is moving to flee as opposed to moving
aggressively towards the supervisor.
The potential discrepancy between what the video shows and the arguably varying accounts from
the involved supervisor and witness officer suggests that this matter should have been elevated to a
formal internal affairs investigation. That process provides for formal interviews of witness
officers and the involved supervisor who deployed the Taser. A more formal investigation would
provide an opportunity to fully flesh out any discrepancies from PAPD personnel and potential
variances from what the video appears to portray. In turn, PAPD would have had a more complete
basis to determine whether the supervisor violated policy in failing to provide verbal warnings or
deploying the Taser on a subject whose actions may not have met the threshold of provocation.
While PAPD might have well determined after a formal investigation that the Taser use was
consistent with policy and Departmental expectations, this matter would have benefitted from a
more formal investigation to flesh out the incident.
RECOMMENDATION TEN: PAPD should ensure that in force cases for
which there is a seeming discrepancy in the evidence (as in gaps between
officer versions, or between reports and body-worn camera footage), the
review is elevated to a formal internal affairs investigation.
Other Force Cases
Case 1: K-9 Deployment in Back Yard
Police in a neighboring jurisdiction were responding to a kidnapping call with a suspect at large
and called PAPD for assistance from the K-9 unit to assist in locating the individual. PAPD
deployed a K-9 police officer, who met with the neighboring agency’s scene supervisor and then
deployed his dog to track in the area where the suspect had last been seen. Prior to this, the K-9
officer made repeated announcements of his intent to deploy the dog.
Eventually, the K-9 officer began to conduct yard to yard searches. The first yard search was of a
residence that was under construction and not inhabited. The K-9 and the handler were able to
make entry with the dog off leash; once inside the fence the handler made announcements. No one
was located in this yard.
The second house was dark and there were no signs of people awake in the house. There was no
effort to contact anyone in the house. The K9 officer made entry into the rear yard, again with the
Factual Overview
28
dog off leash, and then made announcements. The yard search was conducted but nothing was
found.
Prior to entering the residence in question, the K-9 officer and his cover team (another PAPD
officer and a K-9 officer from a neighboring agency) observed people in the front rooms of this
residence. The PAPD officer assigned to provide cover to the K-9 officer went to the door and
spoke to a resident. The information provided to the K-9 handler by the cover officer prior to his
entry into the back yard was that the residents had not heard anything, that nobody was in the
backyard, and that the officers could go into the yard and search.
The officer and the K-9 then went into a back yard with the K-9 off leash, at which time the officer
observed an individual in a small structure whom he believed was the suspect. The officer wrote in
his report that he observed the individual fighting with the dog (kicking him, choking him, and
hitting him repeatedly on the face) and then ordered the dog to bite. The individual was bitten on
the leg by the K-9. The officer said he kept the dog on the bite until the cover officers could
successfully take the individual into custody, a duration he estimated as approximately 40 seconds.
After the individual was handcuffed, officers examined the man’s wallet and it was determined that
he was not the suspect, but rather a relative of the location’s residents. The man was taken out of
handcuffs and medical attention was promptly provided to him.
Prior to entering the back yard, the K-9 officer had not provided announcements warning of the
deployment of the K-9. The officer explained it was his intent to do so once he had entered the
yard, but because the individual ended up being situated so close to the entry area, he was not able
to do so.
The K-9 handler spoke with the victim at the scene, while he was in the ambulance and awaiting
transport to the hospital. In later reviewing a recording of this interview, the investigator noted that
he was able to discern that English did not appear to be the victim’s primary language; he also
noted that understanding the man’s speech was difficult at times.
The K-9 officer asked the victim why he did not come out when he had made the earlier
announcements, and the victim replied that he had not heard them because he was sleeping. The
K-9 officer asked why he did not show his hands, why he choked the dog, and why he tried to run.
The victim responded that he did not know what was happening to him and was trying to get the
dog off of him. The victim said he did not try to run. The officer asked why the family did not
know he was in the back yard; the victim said he had left to get something to drink and had not told
them he was back.
A PAPD supervisor also interviewed the victim in the emergency room of the hospital. The victim
said he did not hear the officers make any announcement. He further said that he did not know
29
what was going on and that he was trying to stop the dog by pushing him away. The victim denied
trying to choke the dog.
PAPD Findings:
PAPD conducted an internal investigation and determined that the deployment of the K-9 was
consistent with current training and policy. However, to the Department’s credit, the review did
identify policy issues worthy of potential revision.
First, a PAPD reviewer recommended that policy be revised to clearly state that the deployment of
a canine was a use of force, with the potential for serious injury, and is accordingly governed by
the Department’s overall use of force policy. This recommendation was in fact adopted, and the
canine policy was revised.
The reviewer further recommended that the “serious offense” language in current policy that was
intended to describe the types of matters for which a K-9 deployment was authorized be replaced
by “crime of violence” or “violent felony” in order to provide more clarity on the types of offenses
that would warrant the use of a K-9. The reviewer specifically noted that the policy did not define
what constituted a “serious offense” whereas “crimes of violence” or “violent felonies” are defined
in state law. Again, this recommendation was accepted, and the policy was revised to authorize K-
9 deployment for any “violent felony as defined by PC 667.5 or misdemeanor involving the
possession or use of a deadly weapon.”
The reviewer recommended that additional language should be added to current policy clarifying
that the mere presence of a police canine can be an effective tool for facilitating a peaceful
surrender and that an announcement should be made prior to entry or deployment to provide a
meaningful opportunity for peaceful surrender to occur. Again, this language was adopted and
codified into the Department’s canine policy.
The reviewer further proposed changing the policy to permit the absence of an announcement only
when specific and articulable facts exist to indicate that making the announcement would increase
the risk of injury to officers or the public, and eliminating current language which excuses the
absence of an announcement when there is an increased risk of escape. This recommendation was
accepted and PAPD’s canine policy was revised accordingly.
The reviewer noted that the investigation had revealed that the K-9 officer had been trained to
make entry to an enclosed yard and reach a position of safety where he could assess the terrain
prior to making the announcement. The reviewer recommended reconsideration of the use of this
tactic. The reviewer opined that had the handler made an announcement prior to opening the gate
(or even after opening the gate but before making entry), it was possible the individual would have
made his presence known and avoided the bite.
30
Analysis
Interviews Not Conducted
In reviewing the investigation, the IPA determined that the victim and an officer
witness to the incident were not formally interviewed as part of the internal affairs
investigation.
With regard to the victim of the dog bite, the internal investigator reported that he
decided not to interview him because he was represented by an attorney and had filed
a claim with the City. The fact that an individual has representation does mean that
any outreach to him should go through his attorney, and it is possible that cooperation
will not be forthcoming. Still, in such situations a police agency should still make all
reasonable efforts to obtain an account of the event from the victim of a K-9
deployment. While an attorney may decide that it is in the best interests of his client
not to sit for an administrative interview, we also have experience to the contrary. It
was disappointing that PAPD used the victim’s represented status as a reason to forego
any outreach.
RECOMMENDATION ELEVEN: PAPD should revise its protocols to
ensure that PAPD personnel assigned to administrative investigations attempt
to interview all civilian victims and witnesses, even when they are represented
by counsel.
Additionally, the investigative report indicated that another agency’s K9 handler was
present during the deployment of PAPD’s K9 but was not interviewed. While there is
body-worn camera footage of the deployment, the video does not capture events
preceding the incident, and the night-time and confined conditions of the deployment
provided a less than optimal video/audio account. The K9 handler wrote a report that
was obtained by PAPD, but a written report is a poor substitute for a thorough
interview.
RECOMMENDATION TWELVE: PAPD should advise those assigned to
conduct internal investigations that witness officers to any force incident
should be interviewed if possible, even if they are employed by another police
agency.
31
Body-Worn Camera Evidence
The other agency officer wrote in his report that he had activated his body-worn
camera prior to the incident. However, there is no evidence that PAPD attempted to
retrieve the body-worn recording of that event from the other agency. Obtaining that
recording would have provided an additional vantage point from which to evaluate the
incident.
RECOMMENDATION THIRTEEN: During internal investigations into uses
of force, PAPD should retrieve and review any body-worn cameras of other
agency witness officers.
Additional Issues Identified by PAPD during the Review Process
1. Failure to Attempt to Contact Residents Before Conducting Yard Search
As detailed above, the investigation revealed that prior to the entry in question, the K-
9 officer had made at least one other backyard entry with the police dog off leash and
without contacting the residents. Current PAPD policy has no requirement that
residents be contacted prior to entering into a yard and deploying a K-9.
A failure to even attempt to contact residents prior to deploying a K-9 in their back
yard could easily lead to the sort of harmful outcome that occurred later in this
incident. While the report was that the relevant residence was dark, a knock on the
door and advisements should nonetheless have been undertaken prior to entering the
back yard of a residence with a K-9 off leash.
2. Conversation Between Resident and PAPD Cover Officer
The internal investigator reviewed the recorded conversation between the PAPD cover
officer and the resident who answered the front door. According to the investigative
report, while the officer inquired about possible pets or pools in the back yard, he did
not ask if there were any people there. Nor did the cover officer indicate to the
resident that the officers intended to search the back yard with a police dog.
While the failure of the PAPD cover officer to specifically ask whether there were any
people in the yard to be searched and to expressly advise of the Department’s intent to
deploy a K-9 was identified during the Department’s investigation, there was no
recommendation in the review documents on how to ensure that future deployments
avoid similar pitfalls. We were advised, however, that a training memorandum was
issued subsequent to this incident and were provided a copy of that memo. The
32
memorandum indicates that a policy modification will be made consistent with the
instruction in the training memorandum and urge PAPD to revise its policy
accordingly25
RECOMMENDATION FOURTEEN: Per its stated intent, PAPD should
modify its policy requiring officers to contact residents of yards prior to
searching, ensuring that specific questions are asked about potential
individuals in the back yard, the Department’s intent to deploy a K-9, an
advisement to residents to stay inside during the search, and a follow up
contact when the search has been completed.
3. Failure to Provide Warnings Before Entry into the Back Yard
PAPD’s then-policy regarding warnings read in pertinent part:
318.5.2 WARNINGS AND ANNOUNCEMENTS
Unless it would increase the risk of injury or escape, a clearly audible warning
announcing that a canine will be used if the suspect does not surrender should
be made prior to releasing a canine.
In this case, the handler asserted that by waiting to make announcements until they
breached the yard, it avoided officers getting “ambushed” or the suspect escaping, and
that they were better positioned inside the yard to ascertain the intent of the suspect.
The investigation also corroborated the K-9 handler’s statement that this approach had
been regularly approved and trained as a technique by PAPD’s K-9 program.
The internal investigator recognized that this tactic is problematic if the person sought
is within a few feet of the entry point, as in this case, and could lend itself to the
unfortunate result that occurred here. However, based on the plain language of the
policy and the training provided at the time of the incident, he found that the handler’s
actions were consistent with policy.
As noted above, the reviewer of this investigation recommended that the tactic of
having an off-leash K-9 enter the back yard prior to warnings should be reconsidered.
And the canine policy was revised consistent with the recommendation:
A clearly audible warning to announce that a canine will be released if the
person does not surrender shall be made prior to each entry, deployment, or
25 The Department should also consider in the policy modification an instruction to residents to stay inside
during the pendency of the dog search, and a provision for subsequent contact to advise of when the search
has been completed.
33
release of the canine. When a search involves entering multiple distinct
properties, a warning should precede each such entry.
4. Deployment of K-9
PAPD determined that because the handler believed that the individual in the back
yard was a person wanted for kidnaping, the situation met the criteria for deployment.
PAPD concluded that the handler perceived that the man’s attempts to fend off the dog
was violent resistance and the command given to the K-9 was appropriate under the
circumstances believed by the officer.
The investigator noted that the officer gave repeated bite commands, somewhere in
excess of 35 times. However, the investigator noted that the repeated commands were
an instruction to hold the bite, not to release the bite and continue to bite repeatedly.
PAPD found that after the cover officers had control of the man’s hands, the K-9
officer called the dog off the bite.
5. Failure to Identify Oneself During Arrest
A review of the body-worn camera of the dog deployment showed that none of the
three responding officers identified themselves as police to the man. As noted above,
the victim said that he was shocked and had no idea what was going on. However, the
investigator concluded that because the officers believed they were arresting an
individual who should have known that he was the subject of a police response, they
would not have had the mindset to advise him that they were police.
In this case, while it may have not been necessary under policy and law to identify
themselves as police officers, law enforcement is universally trained on the advantage
of doing so to eliminate any potential confusion as to their status. This provided a
learning opportunity to the responding officers that was not apparently pursued.
RECOMMENDATION FIFTEEN: The K-9 handler and PAPD cover officer
should be counseled on the importance of identifying themselves as police
officers during any attempts at apprehension.
6. On-Scene Interview of Victim by K-9 Handler
As detailed above, the K-9 handler interviewed the victim in the back of the medic
van. The internal investigator expressed concern with this conversation due to the
stance that the officer took, asking questions that were leading and accusatory. The
investigator noted that by this point, it was clear to the handler that the man was not
34
the suspect, but that it was evident from the officer’s line of questioning that he was
nonetheless trying to shift blame to the victim for fighting with the police K-9.
The investigator concluded that the victim had no intention of harming the dog but
was merely defending himself from an unprovoked attack. The investigator concluded
that the K-9 handler’s attempt to shift blame to the victim was not appropriate.
Instead, the investigator opined that the officers should have acknowledged that an
error was made and that the wrong person was bit. As the investigator aptly summed
up: “We should not try to blame the innocent person, or their response, because of
very unfortunate circumstances that fell upon them.”
While the investigator should be credited with identifying this issue, the Department
did not appear to consider any remedial action designed to address the situation. One
reform worth considering is systemic: in order to create more neutrality to any post-
incident interview, it would be more appropriate in the future to have a supervisor
exclusively handle that task.26
Moreover, as for this specific case, the handler should be counseled on the
inappropriateness of his conversation with the victim who had been wrongly bit by his
police dog. While there is no documentation indicating that such counseling did
occur, we have been advised that the dog handler was so advised.
RECOMMENDATION SIXTEEN: PAPD should revise policy to ensure that
any post-incident interview of a person subjected to a K-9 deployment be
handled by a supervisor.
Case 2: K-9 Deployment on Fleeing Suspected Felon
PAPD received a report of a carjacking occurring in a neighboring jurisdiction. One of the
subjects was reportedly armed with a long gun. A PAPD K-9 officer was on patrol when he
observed a car traveling at a high rate of speed. The license number matched the stolen car. The
officer went in pursuit of the vehicle.
Eventually the vehicle came to a stop and five occupants ran from the car. The officer, his K-9,
and two backup PAPD officers all chased after the driver of the car. The police K-9 bit the driver
who had fled from the scene, and he was arrested. It was learned subsequently that the driver was
a minor. He was transported to a hospital for medical attention after sustaining puncture wounds
and bite marks to his left shoulder, left elbow, and left thigh. He was then booked into Juvenile
Hall.
26 And as detailed above, a supervisor did interview the victim at the hospital.
35
The PAPD reviewer determined that the decision to pursue the car was within Department policy
and expectations. He also found that once the vehicle pursuit came to an end and the driver fled,
the decision to deploy the K-9 to effectuate the apprehension was also consistent with PAPD
policy.
Additionally, the reviewer considered the expectations of policy that warnings be given and
concluded that under the circumstances, the formal warnings normally provided would have been
ineffectual. However, the reviewer did recommend that K-9 handlers be advised that using a
shorter improvised verbal warning such as “Police Dog” should be considered. OIR Group agrees
with this recommendation. Such a warning would not slow down the deployment of the dog,
might cause the desired goal of self-surrender, and would provide potential warnings to uninvolved
individuals that an unleashed police dog was about to be deployed.
The reviewer also considered current policy’s restrictions regarding deployment of K-9 on
juveniles. He determined that based on the physical features of the driver, it would not have been
possible for the dog handler to know that he was a juvenile.
Finally, the reviewer noted that one of the backup officers was not wearing his body camera at the
time of the foot pursuit. The officer reported that his camera was being charged and under the
exigency of the situation, he had not remembered to retrieve it prior to going into foot pursuit. The
reviewer indicated that the officer’s oversight would be verbally addressed with him.
The review of this matter by PAPD was thorough and addressed both central and collateral issues
regarding the officer’s performance. One important internal recommendation was made to ensure
that some type of modified warning be provided when a dog is about to be released under exigent
circumstances would be helpful. There is no indication that this recommendation was
implemented. It should be.
RECOMMENDATION SEVENTEEN: PAPD should advise all members of
the K-9 program (including the involved officer in this incident) that even
when formal announcements are not practicable, officers should provide a
modified warning so that the subject and other potential uninvolved
individuals are advised of the impending intent to deploy the police dog.
36
UOF Case 1: Knee Injury After Foot Pursuit, Takedown
Factual Overview
The subject in this incident injured her knee at some point in an encounter with a PAPD officer.
She was a shoplifting suspect who attempted to run away from the scene, ignoring the officer’s
commands to stop. He ran after her, caught her, and took her to the ground from behind after
grabbing her sweater and hair and pulling her down. She was then taken into custody without
further incident.
Two different supervisors came to the scene and were notably responsive to the issue of potential
knee pain. The subject herself did not seem to initially emphasize the issue, focused as she was on
whether she should have been arrested in the first place.27 Indeed, she did not mention it at all for
several minutes, and walked a considerable distance with no issues after her initial apprehension.
However, as time passed and it became clear that she was going to be faced with multiple charges,
she began to accentuate the knee problem as if in a reactive way.
In spite of some skepticism as the severity of the injury and the sincerity of the subject’s assertions,
the Department and facilitated her transport by medics to the emergency room for treatment.28
A different officer responded to the hospital to conduct further investigation. That officer
eventually cited and released her at the hospital for the crimes of petty theft and resisting arrest.
Force Review
The force review was conducted by one of the responding supervisors, who ended up having the
majority of the interactions with the subject. She was able to make her assessment about the force
based on several factors, including a statement from the subject, the involved officer’s written
report and body-worn camera recording, and witness testimony and other evidence as to the
underlying crime. This was a comprehensive basis for evaluation – with one minor exception.
This involved documentation of the woman’s injuries. The supervisor made the decision on scene
not to attempt photographs in light of the obstacle presented by the tights the subject was wearing.
27 She repeatedly asserted that the store Loss Prevention personnel had told her she could leave after she
returned several items she was apparently intending to steal.
28 This was the criterion that brought the case within our notification protocol with the Department.
37
This seemed reasonable, but, as the force memo later explained, “volume and staffing needs” also
prevented any follow-up at the hospital as to photos or other information about her condition.29
The force itself was limited in its application: the officer’s grabbing and “takedown” of the woman
from behind lasted only a couple of seconds, and she did not offer any resistance after going to the
ground. The woman herself seemed unsure what had happened, and thought that she had tripped
either right before or right after coming into contact with the officer. Nor did she seemingly take
exception to his pulling on her long hair as part of his seizure of her – in fact, she did not allude to
that detail in her descriptions of what occurred. Again, the fact that he had taken her into custody
at all seemed much more of a preoccupation than the manner in which it happened, or the
legitimacy of the force that was used.
The supervisor determined that the use of force was justified and consistent with policy, and that
no further action was required. This analysis was endorsed by three other reviewers of higher rank.
We concur with the conclusion that this minor force event authorized to apprehend the subject and
consistent with Department policy. Although the officer neglected to identify himself as law
enforcement as he gave commands to the woman from behind (thus providing a window for her to
claim uncertainty about what was happening), he believed she had looked right at him as she
initially ran by and was undoubtedly aware of his status. He also seems to have been physically
controlled, and was quick to de-escalate when it became clear that no further force was necessary.
Apart from the claim of injury and the loose ends regarding any medical outcomes, the most
noteworthy aspect of the force deployment was the technique of grabbing the woman’s hair. This
was unorthodox – if effective – and it was interesting that the officer omitted this detail when
writing his supplemental report about the incident.30
While the reviewer’s analysis seemed reasonable on the whole, it also took pains to justify the
force through rationales that seemed unduly elaborate. This included reference not only to
potential traffic hazards and collisions had the foot pursuit continued, but also to the possibility of
the suspect retrieving a weapon from a parked vehicle, or an “ambush scenario” if accomplices
were nearby.
We question the value of – and need for – this emphasis on speculative dangers. Importantly, the
officer himself did not mention any of these factors in his own report; the use of force happened
29 The records in the case file also include a partially completed authorization for disclosure of medical
information. But it is not signed, and apparently was not pursued.
30 Notably, and to his credit, he did verbally relay it to responding supervisors, and explained it to the
handling medics so as to ensure that they would have an accurate sense of possible issues.
38
quite quickly and as a reaction to the subject’s sudden appearance, and it seems unlikely that this
detailed calculus of potential threats occurred to him in the moment.
Here, the officer had every right to apprehend her, and did so in a way that involved proportional
force. Law enforcement’s credibility with the public depends in part on taking ownership of the
choices it makes, and that credibility is strained when the potential for harm is exaggerated in this
fashion.
RECOMMENDATION EIGHTEEN: PAPD should follow through where
possible on obtaining relevant photographs of injuries and medical records in
force cases resulting in hospital visits.
RECOMMENDATION NINETEEN: PAPD supervisors should refrain from going
beyond the involved officer’s own claims in justifying force through the listing of
possible threat-based rationales.
UOF Case 2: Leg Sweep and Take Down to Effect Arrest
Factual Overview:
Officers responded to the scene after getting a report of a transient individual pushing newspaper
racks in the middle of the street. The first officer to arrive found the male subject to be
immediately confrontational – including spitting at the officer as he sat in his patrol car. The
officer eventually got out of his car and tried to verbally engage with the man (who was in his
sixties and very slender) from a safe distance, but he remained agitated and antagonistic.
As the standoff continued, a second officer arrived in response to his colleague’s radio request for
emergency backup. He approached by car from behind the subject, took a moment to observe the
situation (including the subject’s aggressive stance), and decided that his best option was to
decisively move to grab the subject and take him to the ground with a leg sweep. He was able to
effectuate this tactic, and the first officer placed the subject into handcuffs.
Seeing a small amount of blood on the man’s head from where he may have impacted the ground
(as well as scrapes on his bare feet), the officers summoned medical aid to the scene. The man was
eventually transported to the hospital for treatment and placed on a psychiatric hold in light of his
aggressive behavior and his repeated outbursts.31
31 This was the criterion which brought the case within our notification protocol with the Department.
39
Force Review
The primary memorandum regarding the use of force was prepared by a supervisor who had
responded to the scene. He followed the format/template established by the Department, which we
find to be thorough and very useful in the topics that it requires supervisors to address. One of
these, for example, relates to “De-Escalation” and requires a summary of the efforts that were
made (or an explanation as to why such attempts were not feasible).32
The supervisor showed patience and diligence in conducting an interview with the subject. He also
took photos, evaluated recorded evidence (including looking for possible surveillance cameras
from the nearby business), and did a methodical analysis of the relevant factors in reaching his
conclusion: namely, that the force was reasonable and justified.
Unfortunately, the overall body of evidence was lessened by the first officer’s initial failure to
activate his body-worn and in-car camera and audio systems. The supervisor (and the higher-
ranking manager who later reviewed the case) properly flagged this as a concern and designed an
intervention to remediate the issue.
We concur with the finding that the force was in policy.
UOF Case 3: Controlling Force and Use of Restraint System
Leading to Minor Injury
Factual Overview
Officers responded to a call for service arising from a confrontation in the street and the alleged
robbery by force of the victim’s personal property. Officers were able to locate, detain and
handcuff the alleged perpetrator, a male in his fifties. Because the victim was disabled and in a
wheelchair, officers decided to drive the subject the short distance necessary so that the victim
could provide a field identification. It was when officers tried to place the handcuffed subject in
the back of a patrol car that he began to resist energetically. The officers struggled unsuccessfully
to force him into the car, and eventually decided to change their plan. They seated the subject on a
curb and arranged for the victim to come to them. However, the subject’s ongoing lack of
cooperation, which included his getting up and attempting to walk away, made the officers decide
to deploy a restraint system that would greatly limit his ability to move.
32 Here, the supervisor credited the first officer’s efforts at verbal persuasion and non-confrontational
demeanor. The second officer made the conscious – and seemingly reasonable – choice to use the “element
of surprise” upon his own arrival in an effort to resolve the situation.
40
Officers used further force to hold the subject’s head in an effort to overcome his movements
during the attempted identification; the man repeatedly turned his face away to thwart the victim’s
efforts at seeing him. The subject then began to complain of breathing issues and neck pain. This
prompted the on-scene PAPD supervisor to call for medics to respond.
The man was transported to the hospital to be evaluated.33 Several hours later, he was cleared for
release and booking into jail. A supervisor responded to the jail (where the subject was being
housed in a special unit for those experiencing mental health concerns) for an interview; he
described lingering neck stiffness as well as swollen, painful wrists.
Force Review
The memo that was prepared by the supervisor in this case was the product of a thorough
investigation and a thoughtful, detailed analysis. It included a lengthy interview with the subject,
whose version of events largely coincided with the officer reports and other evidence (though the
man took particular exception to the “twisting” of his head, to which he attributed his neck
discomfort).34
The various body-worn camera recordings created by the responding officers establish the
persistent lack of cooperation from the subject, beginning with when he was first contacted by an
officer and refused to stop for questioning. The force was controlled and entirely driven by the
man’s ongoing lack of cooperation, which took many forms. It included his going completely limp
and his twisting and kicking to prevent officers from placing him in the back seat of the vehicle.
For their part, the officers maintained their composure and made repeated efforts to verbally
persuade the man to stop resisting. To their credit, they also regrouped and made a new plan when
the struggle to force the man into the back of the patrol car began to exceed the value of
transporting him at that moment. The decision of on-scene supervisors to enlist the “WRAP”
restraint device in order to limit the man’s movements and lessen the amount of “hands-on”
physical control they needed to exert during the waiting periods before he was finally transported
to the hospital.
The memo that resulted from the supervisor’s review ran for several pages. It documented the
events in a thorough, objective fashion and analyzed the legitimacy of the officers’ actions across a
variety of factors. The force was found to be reasonable under the circumstances – an outcome
with which we concurred.
33 This was the criterion which brought the case within our notification protocol with the Department.
34 The supervisor also spoke with the subject about the issues he had raised with jail staff concerning
possible officer misconduct in deriding his sexuality or style of dress. The subject did not substantiate any
of these concerns with specific details of any kind, but the supervisor was conscientious in asking about
them.
41
Conclusion
As we moved forward with the review process and drafting of this report, we have received
ongoing communications from PAPD management about new and developing matters, as well as
investigation materials from five cases that were completed in more recent months. We have
conducted our initial assessment of those investigations, and will feature them in our next public
report, which is scheduled to be released in August.
On the whole, the cases covered in this Report are illustrative in several ways. They show the
range of issues and allegations that generate concerns by the public and/or the Department as to
improper officer behavior. They offer insight into the process by which Taser deployments (long a
source of community concern in Palo Alto), dog bites, and lesser uses of force are scrutinized by
the agency – both for compliance with policy and (at times) thoughtful consideration of peripheral
issues. And they display the strengths, and occasional limitations with which PAPD evaluates
officer conduct and pursues appropriate remediation.
Our sense is that the Department’s leadership is attuned to the high expectations of its public as
well as the engagement of the City’s elected officials. The observations and recommendations in
this Report are meant to be useful in meeting those recommendations, and we look forward to
furthering our efforts in that regard as our enhanced role with the City continues.
1 | P a g e
DATE: JANUARY 27, 2022
TO: HONORABLE CITY COUNCIL
FROM: CHIEF OF POLICE ROBERT JONSEN
SUBJECT: 2021 USE OF FORCE REPORT
Background:
In early June 2020, the Palo Alto City Council approved a Race and Equity Framework and action plan
and guided the Human Relations Commission to collaborate with the Police Department to lead a review
of the “8 Can’t Wait” campaign in relation to Palo Alto to proactively revise the Police Department’s use
of force policy and add a greater emphasis on de-escalation and crisis intervention techniques. As the
City’s race and equity work continued into the fall of 2020, a series of community engagement
opportunities and City Council ad hoc conversations concluded with the City Council adopting new
actions in November 2020 that increased transparency with the Police Policy Manual, expanded the
scope of administrative investigations reviewed by the Independent Police Auditor (IPA), and provided
direction to include use of force information with the IPA report submitted to the City Council.
This memorandum satisfies the City Council’s direction to provide an annual use of force summary
which encompasses all use of force incidents in which a “Supervisor’s Report on Use of Force” has been
completed by the Police Department. Most commonly, a Supervisor’s Report is completed when there is
a visible or apparent physical injury, the subject complains of pain, or the subject alleges they were
injured. This initial summary covers the period from the City Council’s direction on November 16, 2020,
through December 31, 2021. Subsequent reports will be published annually in January or February
covering the prior calendar year. The Police Policy Manual requires that all uses of force by Police
Department members “be documented promptly, completely, and accurately in an appropriate report.”
Such reports are required to be reviewed by a supervisor and approved in writing. In certain
circumstances, section §300.5.2 of the Police Policy Manual enumerates the circumstances where the
“Supervisor’s Report on Use of Force” also requires review up to and including the Office of the Chief.
Summary:
From November 16, 2020, until the end of 2021, PAPD officers used force requiring a “Supervisor’s
Report on Use of Force” pursuant to §300.5.2 a total of sixteen times. Of these sixteen incidents, officers
used no more than bodily force 1 on twelve subjects, a less lethal Sage round 2 on one subject, a Taser on
one subject, and a canine on two subjects. Eleven of the sixteen reports have been or will be sent to the
1 Bodily force includes control holds, takedowns, or other uses of the body that does not involve the use of a tool.
2 A Sage round is a 37 millimeter less-lethal foam rubber projectile.
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IPA for review and recommendations, as they meet the criteria for the IPA’s expanded scope of
administrative review established by the City Council in November 2020. The expanded criteria for IPA
review of use of force reports includes all administrative use of force reports where a baton, chemical
agent, Taser, less-lethal projectile, canine, or firearm is used, and all cases where the subject’s injuries
necessitate any treatment beyond minor medical treatment in the field. The remining five cases did not
meet the criteria set forth by the City Council. The current IPA report attached to this informational
memorandum reviewed seven of those eleven force cases. The remaining cases will be reviewed and
reported on in the next IPA report due to Council in August 2022.
During this same period, Palo Alto Police Officers responded to 42,405 calls for service; this equates to
officers using force on 0.03% of dispatched calls. A call for service is generated by a dispatcher in the
Computer Aided Dispatch (CAD) system as a result of a community member calling for assistance or an
officer initiating field activity, such as traffic stops, pedestrian stops, and/or directed patrol. Of the
sixteen incidents requiring a Supervisor’s Report, thirteen were associated with calls for service initiated
by a community member, and three involved officer-initiated pedestrian stops. None of the sixteen
incidents required the disclosure of police personnel records under the California Public Records Act
pursuant to Senate Bill (SB) 1421 or Assembly Bill (AB) 748. SB 1421 amended Penal Code section 832.7
to require the release of records relating to the discharge of a firearm at a person, officer use of force
incidents resulting in death or great bodily injury, sexual assault, and acts of dishonesty. AB 748 requires
law enforcement agencies to disclose video and audio recordings of “critical incidents” involving the
discharge of a firearm at a person, or an incident in which the use of force resulted in death or great
bodily injury.
Enhanced Transparency, De-Escalation, and Training Initiatives:
Building on the significant amount of work undertaken since the summer of 2020 to revise policy,
increase transparency and build greater trust with our community, the Police Department continues to
actively seek ways to improve policy, emphasize de-escalation alternatives, and expand use of force
training opportunities. In August 2021, the Department revised its canine policy to clearly state the
deployment of a canine was a use of force and is governed by the Police Department’s overall use of
force policy. The revised policy also provided for fewer circumstances when a canine can be deployed
for apprehension purposes and fewer circumstances when a canine could be deployed off-leash for any
purpose. It also clarified pre-deployment announcement procedures and officer actions prior to
searching with a canine.
Over the summer, the Police Department acquired a Virtual Reality (V/R) Force-Options Simulator via a
grant program administered by the California Commission on Peace Officer Standards and Training (CA
POST). This simulator allows personnel to participate in “real-life” training scenarios that focus on de-
escalation strategies including skilled communication, decision making under stress, conflict resolution,
and crisis intervention. Multiple officers have already participated in this V/R training simulator and the
Police Department will expand the use of it moving forward to incorporate all sworn personnel.
Additionally, the Police Department provided use of force and de-escalation training to all Police
Department members as part of its on-going Continuous Police Training (CPT) curriculum and added a
specific heading titled “De-escalation” to the “Supervisor’s Report on Use of Force.” This heading allows
the incident reviewer to specifically highlight any de-escalation tactics used or explain why the
circumstances and/or subject behavior did not allow the officer to use de-escalation.
Lastly, in November 2021, the Police Department launched its Psychiatric Emergency Response Team
(PERT), where a police officer is paired with a licensed mental health clinician from the Santa Clara
County Behavioral Health Services Department. The team’s primary objective is to provide rapid
intervention to a person in mental health crisis by de-escalating the situation and stabilizing it in the
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least restrictive way possible. The team then strives to connect that person to services and get them the
help they need. The team is making very meaningful connections with the community thus far.
Conclusion:
As we enter 2022, the Department will continue to evaluate its use of force policies, take advantage of
de-escalation training opportunities, and continue to connect with the Palo Alto community to
institutionalize sustainable, positive, and transformative positive law enforcement interactions with the
public. This summary report will be presented annually to cover one year of use of force data as done
with this summary memorandum. The Police Department’s initial Use of Force Analysis memorandum
included in the Race and Equity Ad Hoc Transmittal #3 in August 2020, can be viewed using the following
link: https://www.cityofpaloalto.org/files/assets/public/city-manager/communications-office/race-
equity/race-and-equity-data-transmittal-3-august-26-2020.pdf?t=51654.01