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HomeMy WebLinkAboutStaff Report 2410-3650CITY OF PALO ALTO CITY COUNCIL Regular Meeting Monday, November 04, 2024 Council Chambers & Hybrid 5:30 PM     Agenda Item     14.Independent Police Auditor's (IPA) Report of Review of Investigations Between January and May 2024 and Police Department Use of Force Report for January - May 2024 City Council Staff Report From: City Manager Report Type: INFORMATION REPORTS Lead Department: City Manager Meeting Date: November 4, 2024 Report #:2410-3650 TITLE Independent Police Auditor's (IPA) Report of Review of Investigations Between January and May 2024 and Police Department Use of Force Report for January - May 2024 BACKGROUND AND ANALYSIS Since 2006, Palo Alto has utilized an Independent Police Auditor (IPA) to conduct secondary review of certain 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.1 The following report transmits the Independent Police Auditor Report on Investigations Completed in the first half of 2024. For reference, the prior IPA report was published in April 2024 as an Informational Item2. The Police Department’s website lists all past Independent Police Auditor Reports, here3. Attachment A contains the IPA report for investigations completed between January 2024 - May 2024. Per Council direction, the Police Department also shares use of force information through a report provided alongside each IPA report, included here as Attachment B and covers the same time period. The Police Department’s responses to IPA report recommendations are included here as Attachment C. Consistent with standing practice, this report is issued as informational for the City Council and the public. Within the next few weeks, a City Council session will be scheduled as the second discussion this year with the City Council to discuss general trends in criminal justice and policing, policy and training matters, recommendations made by OIR Group, and other City Council concerns. The discussion with the City Council is not intended for the IPA to elaborate 1 The City’s contract with OIR expires Dec. 31, 2024. Staff will schedule a 6-month contract extension before the end of the year. Consistent with City procurement procedures, an RFP for the IPA work will be issued in 2025. 2 April 22, 2024 Independent Police Auditor Report: https://www.cityofpaloalto.org/files/assets/public/v/1/police- department/accountability/ipa-reports/independent-police-auditors-report-and-papd-use-of-force-report-for- second-half-of-2023.pdf 3 Palo Alto Police Department Accountability Webpage: https://www.cityofpaloalto.org/Departments/Police/Accountability Independent Police Auditor Reports Webpage: https://www.cityofpaloalto.org/Departments/Police/Accountability/Independent-Police-Auditor on published reviews of specific incidents and shall not include discussion of personnel matters prohibited by law. 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: Mike Gennaco Phone: (323) 412-0334 Email: Michael.gennaco@oirgroup.com Or mail to: OIR Group 1443 E. Washington Blvd., #234 Pasadena, CA 911 FISCAL/RESOURCE IMPACT The OIR Group is already contracted with the City and this report did not incur any additional expenses. ENVIRONMENTAL REVIEW The City’s Independent Police Auditor activities are not a project under section 15378(b)(25) of the California Environmental Quality Act Guidelines (administrative activities that will not result in direct or indirect physical changes in the environment). ATTACHMENTS Attachment A: Independent Police Auditor's (IPA) Report of Review of Investigations Between January 2024 – May 2024 Attachment B: Police Department Use of Force Report for January 2024 – May 2024 Attachment C: Police Department Responses to IPA Report, October 2024 APPROVED BY: Ed Shikada, City Manager 1 INDEPENDENT POLICE AUDITORS’ REPORT (Review of Investigations Completed as of 5-31-24) Presented to the Honorable City Council City of Palo Alto 2024 Prepared by: Michael Gennaco and Stephen Connolly Independent Police Auditors for the City of Palo Alto 2 Introduction This latest product of our semi-annual audit relationship with the City of Palo Alto features just one review of a complaint investigation into an allegation of officer misconduct. The Palo Alto Police Department determined that no policy violations had occurred; we agreed, though we do offer a pair of "process" oriented recommendations regarding more effective communication with complainants. The majority of this Report is derived from two relatively new components of our scope of work: uses of force and incidents involving a "pointed firearm." We look at the internal documentation for two different force deployments that met the criteria for our review by involving injury that merited medical attention beyond mere clearance in the field. And we received and evaluated the materials for nine different firearm pointing cases. Not coincidentally, our longest discussion below relates to one relatively complex force incident that resulted in the partial severing of the subject's finger during the final moments of a lengthy and complex standoff. The man, who had allegedly assaulted two family members earlier in the day, was barricaded inside his home for an extended period, reportedly with guns available to him, as PAPD personnel engaged in a tactical operation intended to secure his safe surrender. He was struck with a round from a less lethal weapon at the culmination of the encounter. Our own review led to a number of questions, and recommendations for the Department regarding both substance and investigative procedure. For PAPD as well as ourselves, the pointed firearm cases are a relatively new subject of formal review. As we discuss below, the Department continues to make progress in establishing workable and useful mechanisms for evaluating these incidents and ensuring that officers are acting in a manner consistent with policy and training. We continue to appreciate the extent to which the Department continues to be both cooperative (in meeting the transparency obligations for our access) and collaborative (in keeping us informed of significant developments, responding promptly to our inquiries and referrals of public concerns, and giving thoughtful consideration to our findings and recommendations). And we hope this Report provides a useful window to the Palo Alto community into PAPD operations and internal accountability mechanisms. 3 External Complaint Investigations Case One: Complaint About Handling of Illegal Parking Allegations Factual Overview This case stemmed from an email complaint from a homeowner who raised concerns about the way an officer handled a call for service. The complainant had in the past repeatedly raised issues about cars blocking his driveway while they delivered packages and food to the residence behind him. The homeowner alleged particularly that the officer declined to view video evidence of a car that had blocked his driveway and that the officer cautioned him that he could face a misdemeanor charge should he scream and use profanity at the parking scofflaws. PAPD Investigation The case was handled as a supervisory inquiry, which consisted of a review of the body- worn camera footage of the encounter between the complainant and the supervisor. That review included a thorough recounting of the encounter as captured by the camera footage. The review concluded that the officer was professional and committed no violations of policy. IPA Review We concur with PAPD’s finding that no violation of policy occurred. Our review of the body-worn camera footage also found that the responding officer was professional and courteous during the conversation and suggested strategies that the homeowner could deploy, including calling the police should a car block his driveway for an extended period. The officer’s caution against using profanity in a loud and public way at any parking offender stemmed from a neighbor previously reporting that the homeowner had engaged in such conduct in the past; the homeowner admittedly confirmed to the officer he had engaged in such behavior during their conversation. The encounter ended with the homeowner and officer being cordial with each other. While we concur with PAPD’s findings, we did have concern with some apparent loose ends regarding the disposition of the case. Most significantly, there was no evidence of any response to the complainant in the file.1 Moreover, in this case, the homeowner noted 1 After we shared an initial draft of this Report for fact-checking with PAPD leadership, we learned from the Department that the issuance of a closing letter had not in fact occurred for this case – the result of an internal miscommunication and staffing issues. To its credit, PAPD rectified this by sending a letter to the complainant when the problem came to its attention. 4 that he had been in repeated contact with a higher-ranking supervisor regarding his parking concerns. Ideally, the complainant would have been advised of the results of the supervisory inquiry and advised of the continued availability of the higher-ranking supervisor should the complainant have future concerns about illegal parking. It also would have been beneficial to document notification of the higher-ranking supervisor, as a means of ensuring that potential follow-up could occur as efficiently as possible.2 RECOMMENDATION #1: PAPD should ensure that in every external complaint that the complainant is advised of the results of the internal investigation and that the closing communication is included in the investigative file. RECOMMENDATION #2: In cases in which the complainant references earlier conversations with a supervisor, the supervisor should be made aware of the complaint and incorporated into relevant approaches to follow-up. 2 Our understanding from the Department is that the situation was well-known at different rank levels. Still, in our view some form of documentation is useful as a means of ensuring awareness and continuity for addressing ongoing issues. 5 Use of Force Cases Case One: Use of Less Lethal Munition During Arrest Warrant Service Factual Background PAPD officers were alerted to a domestic violence incident in which it was reported that a man had choked his ex-wife inside a residence and then punched his adult son, causing a bloody lip, when the son tried to intervene. The ex-wife and son left the residence, leaving the man alone in the house. PAPD obtained a warrant for the arrest of the man and activated their SWAT team to respond to the location. Responding officers took various positions outside the residence, and when the man eventually appeared at the doorway, pointed firearms at the man throughout the remainder of the encounter.3 What followed was a lengthy standoff between the man and eventually at least thirty-four responding PAPD officers and supervisors. PAPD assigned an officer who had crisis negotiations experience and who spoke the man’s first language to attempt to coax the man outside of the residence so that he could be arrested.4 There was heightened concern about the threat presented by the man because the ex-wife advised that he possessed firearms in the residence, which was confirmed by the man himself. As a result of the telephone conversation, the man agreed to go to the front door in his underwear to show that he was not armed and continue to talk to the officer. Shortly thereafter, a PAPD officer assigned with a Sage less lethal launcher fired one baton round at the man, striking him in the little finger and abdomen.5 The man briefly ran back into his house then came back outside with his hands raised, and was handcuffed and taken into custody without further incident. During this process, a “flash bang”6 was detonated. 3 This tactic was reviewed separately under the Department's new protocol for capturing and evaluating these exercises of police power. It is mentioned below in the "Pointed Firearm" section of this Report. 4 It was helpful and commendable that the Department had a certified negotiator who was fluent in the man’s first language. 5 The Sage launcher is categorized as “less lethal,” which means that while the deployment of the hard baton can be lethal, it is “less lethal” than the use of a firearm. The potential lethality of the weapon calls for careful review whenever it is deployed. 6 This is the common term for a "light and sound diversionary device" – an explosive used by tactical teams to create a momentary distraction and thereby gain an advantage over a subject. 6 PAPD officers reported that they had observed that the projectile had caused the man’s little finger to be partially severed; officers had recovered the body part in the hopes it could be reattached. The man was then transported to a local hospital for treatment. Despite the commendable efforts of PAPD personnel to retrieve the finger part and transport it to the hospital, the man discussed surgical options with medical staff and the recovered body part was not reattached; instead, the damaged finger was medically amputated at the fifth distal phalanx. PAPD Review Some, but not all, of the PAPD on-scene officers completed incident and supplemental reports documenting their actions. The SWAT supervisor in the field was assigned to conduct the use of force review. The supervisor wrote that during the extended negotiation with the man, a felony warrant had been obtained for the man’s arrest. The supervisor wrote that the crisis negotiator eventually was able to convince the man to take a few steps out of his house to make face-to-face contact with the negotiator. The supervisor reported that as the man turned back towards his front door to reenter the residence, a sage rubber baton was fired at the subject. The supervisor wrote that as SWAT supervisor he had positioned lethal and less-lethal operators in various containment positions around the house. The supervisor reported instructing personnel in the following way: that if the man exits the house, appears unarmed, is not cooperating with police, and the operators believe they have a high probability to apprehend him, they “should seize the opportunity”. The supervisor reported further instructing that deployed personnel “should use the Sage less lethal baton round, the flash bang, and shield to accomplish the arrest”.7 According to the supervisor’s report, this approach would likely distract, overwhelm, and momentarily disable the man while allowing the arrest team to close the distance without him being able to fight back, procure an unseen weapon, or retreat into the house. The supervisor wrote of instructing operators that they were not to allow the man back into the house where he could access his firearms. The supervisor wrote of instructing the arrest team to prepare the flashbang. The supervisor wrote that the man took a few steps out of his residence and towards the negotiator for a face-to-face contact. The supervisor wrote that after waving towards the negotiator, the man immediately began turning back around to reenter his residence. The 7PAPD command has advised that the on-scene directives about the deployment of the Sage less lethal munitions, the flashbang, and the shield were better described as weapons and tools that deployed personnel “could” use to effectuate the arrest. However, as quoted above, the SWAT supervisor used “should” in his written evaluation of the use of force. 7 supervisor opined that by walking away despite police commands, he was “actively resisting.” The supervisor wrote that because the subject was about to reenter his residence, he told the arrest team to deploy the flashbang, but there was no immediate deployment because the “new” operator was unable to remove the pin. The supervisor wrote that as the man turned away from the negotiator to reenter the residence, the supervisor heard the firing of the less lethal Sage. The supervisor wrote that the Sage operator did not give verbal warnings prior to firing the Sage because verbal commands had already been given by the negotiator; repeating them would have endangered the deployed officers by revealing their concealed locations and would have allowed the man time to quickly re-enter his residence. The supervisor reported observing the effect of a successful impact, with the man’s phone flying out of his hand, as the man spun around. The supervisor reported that after a moment, the man ran a few feet back inside of his residence before immediately turning back around towards the front door with both of his hands up. The supervisor wrote that the operator with the flashbang removed the pin at the same time as the Sage round was fired and then deployed the flashbang into a previously designated safe area. In finding the use of the Sage round within policy, the supervisor cited PAPD policy 308.9 (Use of Less Lethal Munitions) which states: Circumstances appropriate for deployment include, but are not limited to situations in which […] (d) There is probable cause to believe that the suspect has already committed a crime of violence and is refusing to comply with lawful orders. A second level supervisor then added a review to the SWAT supervisor’s review, finding that the use of less lethal munitions and the pointing of weapons complied with PAPD’s use of force policy. In reaching that conclusion, the second level supervisor noted that the man was suspected of having committed violent felonies against his ex-wife and adult son. The second level supervisor further noted that PAPD had been advised by the ex-wife that the man had possessed several firearms, including handguns that could have been concealed on his person. The second level supervisor wrote that officers had warned the man during several hours of de-escalation attempts that force may be used if he did not comply. The second level supervisor indicated that the man willfully refused to follow orders to peacefully surrender when he exited his home and that the officer launched a baton round at the man when he started walking back inside his house. The second level supervisor 8 noted that the officer did not provide a further verbal warning to the man before launching the baton because officers had previously warned him that force might be used. Despite this purported rationale, the second level supervisor noted that a verbal warning also serves the purpose of notifying surrounding officers of the impending use of a launcher; accordingly, after the operation the second level supervisor had discussed with the officer the multiple purposes for issuing a warning. Ultimately, the second level supervisor concluded that the officer’s use of the less lethal munition had the desired effect of forcing the man to submit to a lawful arrest and concluded that the use of force was reasonable and within policy. IPA Review The IPA’s review of this incident identified the following issues: PAPD’s Decision to Use Less Lethal Force As detailed above, a PAPD officer who spoke the man’s first language and who also was trained in crisis negotiations was assigned the role of attempting to gain compliance from the man. The negotiator spoke with the man over the phone and was able to develop rapport with him. Eventually, the officer advised the man of wanting to talk with him face to face and used an armored rescue vehicle to move closer to the entrance of the house. The negotiator wrote in a supplemental report about using the armored vehicle as cover and informing the man about being able to meet with him face to face. The negotiator wrote that the man opened the front door with his hands raised up in the air and his cell phone in his right hand. The negotiator’s report then explained that an inability to fully see the man prompted the negotiator to request the man to take two additional steps outside his front door. At this time, the negotiator wrote that SWAT “executed their plan” and took the man into custody. As detailed below, it is unclear from the reports what caused the less lethal operator to deploy the less lethal munition but by doing so it ended any further opportunity for PAPD to resolve the matter short of using such force. And from the report, it appears that the negotiator had made progress in gaining compliance with the man; when the man was asked to come out, the man agreed to the request and left his house with his hands raised and when the negotiator asked the man to move further away from the entrance, the man did so. Based on the SWAT supervisor’s report, it appears instructions had been given by the supervisor to deploy the Sage munition at the discretion of the operator, and that the actual time of decision to fire the weapon was not directed by the supervisor. However, the decision by the operator to use less lethal force instead of the Department considering further negotiations with the man was not addressed in the investigative report or supervisory analyses. One of the objectives of any after-action analysis should be to 9 consider whether options short of force may have been available. Far from being speculative, a discussion of “what if” and “how might we have proceeded differently” are the type of questions agencies should ask after any significant use of force event, particularly when the deployment of less lethal force did not have the optimally desired effect.8 Certainly, in this case, the initial agreement by the man to follow the crisis negotiator’s instructions and leave the residence (albeit after several hours of failure to comply) is at least some indicia that it may have been possible to achieve compliance without resorting to less lethal force had the negotiations continued.9 PAPD should have considered its various choices in assessing whether a more optimal way of handling the matter (short of force) may have been available. RECOMMENDATION #3: PAPD should evaluate tactical negotiations with an eye toward discerning whether further negotiations could have been successful in resolving matters without resorting to force. Warnings Not Given Prior to Use of Less Lethal Launcher PAPD policy states that prior to launching a less lethal baton: A verbal warning of the intended use of the device should precede its application, unless it would otherwise endanger the safety of officers or when it is not practicable under the circumstances. As noted above, both PAPD reviewing supervisors wrote that the officer launched a baton round at the man when he started walking back inside the house. The first level supervisor further wrote that the officer did not provide warnings because the man had been previously warned that force would be used if he did not peaceably surrender. Yet the Sage operator wrote in a supplemental report that the operator launched the less lethal baton as the man was standing, talking to someone on the phone, with his phone held at his abdomen. The Sage operator noted that after the baton was launched, the man went into the house but then quickly came back out with his hands raised and complied with further instructions. The Sage operator wrote that warnings of impending 8 This discussion is not intended to suggest that the use of less lethal force was contrary to PAPD policy. But the fact that the use of less lethal force resulted in serious permanent injury to the man and did not have the desired effect (since the man immediately ran back into the house), suggests that serious discussion was warranted about whether in future similar cases, a different “tactical playbook” might be in order. 9 As detailed below, here is where PAPD could have benefitted from an interview with the negotiator to further learn more about the progress (or lack thereof) of negotiations and an assessment from that negotiator about the likelihood that further discussion with the man might have achieved compliance without the need to resort to less lethal force. 10 deployment were not given due to the likelihood of the man then re-entering the house if alerted in this way. In addition to the fact that the lack of warnings did not prevent the man from re-entering the house – and that in fact the deployment of the Sage baton initially prompted him to do so – both reviewing supervisors’ description of the incident and the stated reasons for the lack of warnings did not correlate with the Sage operator’s account.10 Moreover, a warning could have provided the man one final chance to comply with officer instructions and avoid the significant injury that resulted. Thus, the Sage operator’s report was inconsistent with the supervisors’ account that the less lethal baton was launched because the man turned to go back into his house; the operator did not claim to have made that observation before he deployed the Sage munition. The inconsistency of rationale between the involved officer and the supervisors for both the deployment itself and the failure to provide warnings created a disconnect in PAPD’s analysis relating to rationale for using the less lethal munition. After the incident, the field supervisor correctly advised the officer of an additional reason to issue a warning prior to the deployment of the less lethal munition: namely, to alert fellow on-scene officers of the impending deployment. As stated above, a number of officers had their firearms trained on the man while he stood in the front doorway area of the residence. The surprise deployment of the less lethal launcher and the man’s reaction could have caused officers to respond with lethal force, resulting in an even more problematic outcome. RECOMMENDATION #4: When PAPD provides training on use of less lethal munitions, it should stress the Department’s presumption that warnings should be given prior to deployment and explain the multiple reasons for the warning requirement as well as the policy exceptions to the “warning” advisory that are set out in policy. Incident and Supplemental Reports Provide Insufficient Fact Collection in a Serious Use of Force Case As detailed above, some, but not all responding officers were requested to provide written reports, which became the basis for evaluating the use of force. Ideally, every officer and supervisor who deployed to the scene would have written a report setting out their involvement and observations. And significantly, the reports that were submitted failed to 10 The SWAT supervisor offered another reason for the failure to provide warnings, namely, the interest in not disclosing the location of the Sage operator’s location. However, the Sage operator did not articulate this reason in the supplemental report. Moreover, this concern could have been obviated by having the negotiator (whose location was known to the man) provide the warnings prior to the Sage deployment. 11 fully address a number of issues relating to the circumstances surrounding the use of less lethal force, including the following: 1. The negotiator’s assessment of the negotiations and whether continued communication and negotiation could have resolved the incident without resorting to less lethal force. 2. Whether the “plan” was effectively communicated to all on-scene officers. 3. Further exploration of the apparent discrepancy between the less lethal operator’s observations of the man and the two reviewing supervisors’ account, relating to whether the use of force occurred because the man was turning to re-enter the house. Unfortunately, the reports do not fully address these questions. In such cases, it would be helpful for PAPD to conduct interviews of officers who played (or may have played) a significant role in this operation. In this incident, it would have included the officer who used less lethal force, the crisis negotiator, and the on-scene supervisors. On a forward-going basis, serious use of force incidents should involve interviews of involved officers and command so that these issues can be more effectively resolved. RECOMMENDATION #5: In tactical situations in which force is used resulting in significant injury, all officers and supervisors who responded to the scene and witnessed the use of less lethal force should be required to prepare a supplemental report dictating their actions and observations. RECOMMENDATION #6: In tactical situations in which the use of less lethal force results in significant injury, command, involved and other key officers (such as negotiators) should be interviewed regarding salient issues. In Reviewing Less Lethal Force, Supervisors Did Not Expressly Consider Specific Factors. PAPD’s Use of Force Policy sets out nineteen specific factors that are to be considered in determining the reasonableness of any use of force. The factors constitute a “totality of circumstances” analysis that is helpful in evaluating any use of force, particularly those involving less lethal munitions that result in significant injury. In this case, the SWAT supervisor only focused on a few articulated factors to conclude that the less lethal force was reasonable. An assessment of the force through consideration of each applicable factor would result in a more thoughtful, illuminating, and defensible finding. RECOMMENDATION# 7: In cases in which less lethal force is used and results in significant injury, supervisors should be instructed to expressly engage in a totality of circumstances analysis setting out in writing all relevant factors in evaluating the reasonableness of the force. 12 In Determining that the Use of Less Lethal Munitions Was Within Policy, the Supervisor Relied on a PAPD Policy that Provides Insufficient Guidance on Use of Less-Lethal Munitions As detailed above, in determining that the use of less lethal munition was within policy, the supervisor relied upon current policy language that states that a less lethal deployment would be appropriate when there is probable cause to believe an individual has committed a crime of violence and is refusing to comply with lawful orders. However, as written, these circumstances alone would not justify the use of less lethal force. For example, if a subject who was being arrested for a crime of violence was handcuffed and refusing instructions to step into a police car, a strike with a less lethal munition would be inappropriate. Or if a subject suspected of committing a crime of violence has his hands over his head and simply refuses police orders to get on the ground, a less lethal munition deployment would be likely violative of the Fourth Amendment. The problem with PAPD’s current policy on less lethal munitions is that it doesn’t also expressly incorporate the Department’s requirement that any less lethal deployment must also meet the factors set forth in its overarching use of force policy. PAPD’s less lethal deployment policy should expressly indicate that any such deployment must also be evaluated and supported by the multitude of factors set out in its overarching use of force policy. RECOMMENDATION #8: PAPD should revise its policy relating to use of less lethal munitions to expressly reference the need to meet the requirements of the Department’s overarching use of force policy. Case Two: Takedown in Booking Area of County Jail Factual Background Individuals were arrested by PAPD for being suspected of stealing a car and were transported to County jail. Two PAPD officers searched one of the men and were attempting to remove his handcuffs, but because the pin release was on the underside of the handcuffs, the maneuver proved difficult. The man took exception to the continued manipulation of his arms while the officers tried to release the handcuffs and began resisting officer efforts. The PAPD officers decided to keep the handcuffs on but the man continued to show signs of verbal and physical resistance so the officers advised the man if he did not stop struggling, he would be taken to the ground. The resistance continued so the officers took the man to the ground and eventually regained control of him. Later, the man complained that his shoulder had been separated because of the takedown. He was treated by a nurse and eventually booked into the jail. 13 PAPD Review The officers reported the use of force to a supervisor who traveled to the jail and interviewed the man. Based on his review of body-worn camera footage and his interview, the supervisor found the force used by the officers to be within policy. IPA Review Upon our review of body worn camera footage and incident reports, along with the supervisory review memorandum, we concurred with PAPD’s findings. The use of force was proportional and necessary to retain control of the man. We found the supervisor’s analysis of the event to be particularly detailed and thorough. "Pointed Firearm" Incidents This is the fourth audit cycle featuring a review of the Department's administrative handling of incidents in which officers point their firearms at a subject in the context of an enforcement encounter. PAPD submitted the materials for a total of nine cases. Below is a summary of the context for the nine deployments, along with the Department's supervisory assessment of each. 1. Several officers became involved in the apprehension of a fraud suspect who deliberately backed into a responding police vehicle and drove away – which led to an extensive pursuit through city streets. Officers followed him to a residential driveway, at which point he again backed into a patrol car and damaged it significantly while also injuring the two officers inside it. More officers arrived at the scene, and the subject eventually emerged from the car and was taken into custody. A total of seven different officers ended up pointing their weapons at the subject during the encounter. While the vehicle pursuit was the subject of a separate administrative review, the weapon- pointing was found to be justified and consistent with policy. The supervisory memo noted that the PAPD agent who was driving the more seriously damaged vehicle was not wearing a seat belt at the time of the collision; additionally, a profanity from one of the officers was noted and characterized as falling within the tactical exception to general policy. 2. An officer attempted a traffic stop for a Vehicle Code violation, but the driver chose not to yield. This led to an extended and low speed "pursuit" in which the driver engaged in a number of strange behaviors. Eventually, a backup unit joined with the original officer in surrounding the subject's vehicle. He was slow to comply with commands – an interval 14 during which multiple officers pointed their firearms at him until they were assured that he was unarmed. He eventually cooperated and was arrested. The weapon-pointing was found to be justified and consistent with policy. The supervisory memo made note of peripheral issues that were addressed, including profanity on the part of two different officers, and the failure of a third to activate their body-worn camera. 3. Two officers responded to a call for service regarding possible trespassers in a backyard (as captured on the homeowner's video system). Upon locating the male and female subject on the property, both pointed their respective weapons (handgun and rifle) until they could see that the two were unarmed and cooperative. They turned out to have several pending legal problems and were arrested. The weapon-pointing was found to be justified by the circumstances and consistent with policy. The supervisory memo pointed out the profanity used by one officer, and found it to be consistent with the stipulated "tactical" exception to the general prohibition. The other officer failed to follow the body-worn camera policy by activating at the outset of the search for the subjects; counseling was given in response. 4. A PAPD officer noticed a wanted vehicle from another jurisdiction and attempted to pull it over. The driver fled instead, precipitating a lengthy effort to locate the vehicle and take the subjects into custody. After the passenger was abandoned at a gas station (and arrested), PAPD officers pursued the vehicle for several miles. They lost sight of it at one point, but it was later located on the shoulder of a freeway, apparently disabled. The driver was still inside. A supervisor and two other officers surrounded the car tactically and called out the subject, pointing their respective weapons until it was clear that the person was unarmed and cooperative. They arrested the person without further incident. The weapon-pointing was found to be justified by the circumstances and consistent with policy. The supervisory memo noted that one of the three arresting officers was not equipped with a body-worn camera. The explanation was that the camera was being charged as the incident unfolded, and the officer initially forgot it and then made the conscious decision to not go back for it in light of the situational urgency. The other personnel captured the event in its entirety. 5. The attempt to pull over a car for a Vehicle Code violation in the early morning hours prompted the driver to collide with the police car and drive off. A pursuit followed, and 15 ended when the suspect vehicle collided with a light pole and was disabled. Two responding PAPD officers gave commands while pointing weapons; eventually, the four juveniles (who were driving a stolen car and who were all runaways from another state) cooperated and were safely taken into custody. The weapon-pointing was found to be justified and consistent with policy. The supervisory memo noted the use of a tactical profanity by one of the officers, the result of what the reviewer described as a "heightened state." No further action was taken. 6. Officers became aware of a stolen vehicle that was parked in the garage of a local shopping center, and several responded. One subject was seated in the car, and another approached once officers were staged and monitoring it. They moved to contact the two and take them into custody. While multiple officers had their weapons out and in "low ready" position, one briefly pointed a gun in the subject's direction. Per that officer's report, the reason was to be able to use the weapon's mounted light so as to see through the stolen car's tinted windows. The weapon pointing was characterized in a brief memo as having been done "in a manner consistent with PAPD policy." No peripheral issues were identified. 7. A team of officers was assembled to serve a "high risk" search warrant at a residence; the intended subject was wanted for robbery and had an established history of weapons possession. The process featured calling out the residents over a loudspeaker, and two SWAT members were assigned responsibility for providing cover with rifles as individuals (including the wanted suspect) came out into the street. They pointed their respective rifles briefly, until it was clear that the subjects were cooperative and unarmed. The weapon pointing was endorsed as consistent with policy and expectations. No peripheral issues were identified. 8. Six SWAT members (including a supervisor) were assisting a regional task force in serving a search warrant at a residence. They responded to activity from residents – some of whom were attempting to leave in a car, and another who exited the house on foot. All six briefly pointed firearms at one or the other of the targeted individuals as they were taken into custody without incident. This was a planned operation, and the review of the PAPD personnel's involvement was all found to be consistent with policy. However, two of the officers were slow in activating their body-worn cameras, which resulted in the weapon-pointing not being captured. 16 (Other vantage points were sufficient to show their actions.) This issue was addressed with the relevant officers. 9. This case was related to a SWAT callout involving a barricaded subject who had allegedly been involved in assaulting his spouse and adult son. Officers responded to the residence, and two had responsibility for providing lethal cover during the efforts to negotiate with the man and secure his surrender. The officers' actions were found to be justified and consistent with training and expectations. This case ultimately resulted in injury to the subject as the result of a less lethal weapon deployment; the Department's full use of force review is discussed above. (See "Case One" in the Use of Force section of this Report.) IPA Analysis This grouping of cases continues a trend that we have seen over the course of our last few semi-annual reports to the City: PAPD has made steady progress in routinizing the notification, documentation, and evaluation requirements of its shift to the formal review of incidents in which firearms were pointed. We reviewed the reports and the relevant body-worn camera recordings and concurred with the finding that all the instances listed above were justified by the circumstances. The context of each case provided a valid foundation for the officers' decision to engage in this tactic; moreover, the deployments tended to be controlled and brief in duration. We did, however, have reservations about the one case in which the officer's stated purpose for pointing a gun was to utilize the weapon-mounted light to see into the subject vehicle. The pointing was otherwise justified, and our understanding is that the use of the light is an approved tactic.11 Still, the officer's articulation of the light as the primary rationale was seemingly worthy of further inquiry, but was not identified or pursued as an issue. More favorably, we noted the several instances in which the supervisors identified collateral issues while conducting the review of the gun-pointing. As we have said before, maximizing the benefit of the new requirements by taking the opportunity to "expand the lens" of scrutiny is a constructive approach that we endorse. The volume of these cases remains relatively small, which is presumably a testament to the recognition that the tactic is not to be done without specific justification. At the same time, we were struck by the fact that four of the nine cases featured a partial deficiency 11 The light feature is designed to be physically distinct from the trigger so as to eliminate the possibility of accidental discharge of the weapon. 17 with regard to body-worn camera activation by involved personnel. Although these shortcomings happened not to preclude an overall record of what occurred (thanks to the vantage points offered by other participating officers), it was nonetheless noteworthy. A few years into its program of equipping officers with this technology, PAPD should consider taking steps to promote greater, more consistent compliance with policy and expectations. RECOMMENDATION # 9: PAPD should focus managerial attention on ways of ensuring that officers are meeting policy expectations regarding use and activation of body-worn cameras. 1 | P a g e DATE: NOVEMBER 4, 2024 TO: HONORABLE CITY COUNCIL FROM: POLICE CHIEF ANDREW BINDER SUBJECT: USE OF FORCE SUPPLEMENT TO IPA REPORT This memorandum responds to the City Council’s November 2020 direction to provide use of force summary data (which encompasses all use of force incidents in which a “Supervisor’s Report on Use of Force” has been completed by the Police Department) as an attachment to each Independent Police Auditor (IPA) report. Policy Manual §300 (“Use of Force”) requires that all uses of force by Police Department members “be documented promptly, completely, and accurately in an appropriate report.”1 The policy also requires that, under certain circumstances, a “Supervisor’s Report on Use of Force” also be completed by the supervisor, and routed for approval through the chain of command up to and including the Police Chief. Most commonly, a “Supervisor’s Report on Use of Force” is completed after an officer uses some form of force that results in a visible or apparent physical injury to a subject or the subject complains of pain or alleges they were injured. Consistent with the IPA’s expanded scope of administrative review established by the City Council in November 2020, the Department forwards the following types of use of force cases to the IPA for review and recommendations: all cases where a subject’s injuries necessitate any treatment beyond minor medical treatment in the field, and all cases where an officer uses a baton, chemical agent, TASER, less lethal projectile, canine, or firearm. The IPA’s scope of administrative review was further-expanded in July 2021 to include cases when a firearm is pointed at a subject. Consistent with the practice established in the May 2023 iteration of this memorandum, the Department is choosing to release the race of the recipient(s) of any force used. This summary covers the period of January 1, 2024 thru June 30, 2024. Use of Force Cases From January 1, 2024 thru June 30, 2024, the Police Department responded to more than 19,800 calls for service and effected more than 650 arrests. During that time, there were six cases where force requiring a “Supervisor’s Report on Use of Force” was used, one of which fell within the IPA’s scope of administrative review. The IPA’s review of that case appears in the current IPA report, along with its review of one case from December 2023. 1 The Palo Alto Police Department Policy Manual is updated quarterly and posted online at https://www.cityofpaloalto.org/Departments/Police/Public-Information-Portal/Police-Policy-Manual. 2 | P a g e The race of the subjects upon whom force was used during the first half of 2024 was Black (3), White (1), Hispanic (1), and Other (1). Firearm Pointed at Person Cases From January 1, 2024 thru June 30, 2024, officers pointed a firearm at a person on four occasions. The IPA review of these incidents will appear in a future IPA report. The current IPA report includes a review of nine incidents during which officers pointed a firearm at a person, all of which occurred in the second half of 2023 but for which administrative reports were not completed until after January 1, 2024. In their review of these nine incidents, the IPA concurred in each case with the Department’s findings that the pointing of the firearm was justified by the circumstances and consistent with policy. In the nine incidents described in the current IPA report, the race of the subjects at whom a firearm was pointed were Black (3), Hispanic (3), White (2), and Asian (1). January – June 2024 Use of Force Summary Type of Force Number of Cases Status of IPA Review Physical Strength 6 Completed Chemical Agent 0 TASER 0 Baton 0 Less-Lethal Projectile 0 Canine 0 Firearm 0 1 | P a g e DATE: NOVEMBER 4, 2024 TO: HONORABLE CITY COUNCIL FROM: POLICE CHIEF ANDREW BINDER SUBJECT: RESPONSE TO IPA RECOMMENDATIONS IN REPORT COVERING INVESTIGATIONS AS OF MAY 31, 2024 RECOMMENDATION #1: PAPD should ensure that in every external complaint that the complainant is advised of the results of the internal investigation and that the closing communication is included in the investigative file. The Department agrees and has improved its internal tracking system to ensure this occurs. RECOMMENDATION #2: In cases in which the complainant references earlier conversations with a supervisor, the supervisor should be made aware of the complaint and incorporated into relevant approaches to follow-up. The Department agrees that, where a complainant references earlier conversations with a supervisor, the Department should continue to involve that supervisor as appropriate in relevant follow-up. RECOMMENDATION #3: PAPD should evaluate tactical negotiations with an eye toward discerning whether further negotiations could have been successful in resolving matters without resorting to force. The Department agrees and will continue to evaluate the facts specific to each situation in developing its tactical response plans. RECOMMENDATION #4: When PAPD provides training on use of less lethal munitions, it should stress the Department’s presumption that warnings should be given prior to deployment and explain the multiple reasons for the warning requirement as well as the policy exceptions to the “warning” advisory that are set out in policy. 2 | P a g e The Department agrees and will continue to provide instruction to officers pertaining to the issuance of a warning, when appropriate, prior to the use of less lethal force. RECOMMENDATION #5: In tactical situations in which force is used resulting in significant injury, all officers and supervisors who responded to the scene and witnessed the use of less lethal force should be required to prepare a supplemental report dictating their actions and observations. The Department agrees that personnel involved in any use of force, including less lethal force, should document their actions consistent with existing policy. RECOMMENDATION #6: In tactical situations in which the use of less lethal force results in significant injury, command, involved and other key officers (such as negotiators) should be interviewed regarding salient issues. The Department agrees that, when completing an administrative investigation of a use of force, involved personnel should be interviewed as needed to capture a comprehensive version of the event being evaluated. RECOMMENDATION# 7: In cases in which less lethal force is used and results in significant injury, supervisors should be instructed to expressly engage in a totality of circumstances analysis setting out in writing all relevant factors in evaluating the reasonableness of the force. The Department agrees that, consistent with existing policy, when completing an administrative investigation of a use of force, supervisors should continue, per existing policy, to engage in a totality of circumstances analysis setting out in writing all relevant factors in evaluating the reasonableness of the force. RECOMMENDATION #8: PAPD should revise its policy relating to use of less lethal munitions to expressly reference the need to meet the requirements of the Department’s overarching use of force policy. The Department agrees and has updated its less lethal munitions policy to expressly conform with its existing practice of also assessing less lethal force under the overarching use of force policy. RECOMMENDATION # 9: PAPD should focus managerial attention on ways of ensuring that officers are meeting policy expectations regarding use and activation of body-worn cameras. The Department agrees and will continue to focus attention on ensuring officers are using body- worn cameras consistent with Department policy.