Motions for CRA Board meeting, 3/04/09 (as passed, with amendment)

Submitted by CRA Policy Committee

Motion #1: CED (Taser® device) Policy Inquiries

Whereas, the Civilian Review Authority Working Group Final Report, in 2006, established a process for submitting policy inquiries from the CRA to the Police Accountability Coordinating Committee (PACC), and;

Whereas, the change to the text of the Conducted Energy Devices (CED) policy in the MPD Policy and Procedure Manual (now in Section 5-314) that was made on August 17, 2007 has created uncertainty as to the provisions of the current policy, and;

Whereas, policies provided in their entirety in the MPD Policy and Procedure Manual are readily available online for the CRA and the public, but policies contained in training are much more difficult to access, and;

Whereas, it is difficult to know which training materials are current or were in place at a given time in the past, and;

Whereas, some or all of the CED training materials may be proprietary or copyrighted, and not available for copying and distribution, and;

Whereas, the lack of transparency regarding CED policies has led to concerns that policies may be changed with insufficient input and oversight from the City Council, the City Attorney’s Office, and others, and;

Whereas, it is the responsibility of the CRA to make determinations regarding officer misconduct based upon whether that officer followed MPD policy in effect at the time of the incident, and;

Whereas, the CRA cannot properly carry out its mission without clear knowledge of MPD policy, so as to be fair to both the complainant and the officer;

Therefore, be it resolved that the board of the CRA submits the following inquiries to be placed on the agenda of the PACC, to be responded to in accordance with the established process:
1) Why was the text of the CED policy in the MPD Policy and Procedure Manual changed on 8/17/07?

2) Who was consulted before this change was made? In particular, were the following consulted:
a) Police Chief Dolan
b) Mayor Rybak
c) City Attorney’s office
d) City Council, including any of its members, or any of its Committee chairs
e) Civil Rights Department
f) CRA staff or board

3) Who was notified of the change by means other than publishing the new policy on the MPD website? In particular, were the following notified:
a) Police Chief Dolan
b) Mayor Rybak
c) City Attorney’s office
d) City Council, including any of its members, or any of its Committee chairs
e) Civil Rights Department
f) CRA staff or board

4) Are all provisions of the CED policy as it existed before 8/17/07 now included in training? If so, are they in written form as part of the training? Are they provided to officers in materials that they may keep for their future reference?

5) Please provide any existing written policy provisions from the training materials and handouts.

6) What data, studies, reports and/or guidelines regarding CED policy, device operating procedures and safety has the MPD relied upon in formulating its CED policies, including product manuals and literature from the manufacturer(s)?

7) Is there a method for controlling and documenting changes to training, such that it may be determined which policies were included in any given officer’s training, or which policies were current at the time of any given incident?

8) Is the “MPD 2007 CED Recertification” (included in CED training binder in CRA office) in current use for recertification training for CEDs? If not, when was it used? Was it prepared and/or put into use shortly after the 8/17/07 change in CED policy?

9) Page 6 of “MPD 2007 CED Recertification” includes the following text: “MPD Policy & Procedure Updates”, “New Use of Force Policy Changes”, and “Notes: Policy – Explain that new policy gives the Officer more flexibility in the judgement and decision making areas during an incident. The Officer needs to use the ‘totality of circumstances’ factor to deploy the CED.” Do these passages refer to the 8/17/07 policy change? Does the greater “flexibility” indicate that there has been a substantive change in policy, rather than moving the existing policy to training? Which restrictions on the officer’s flexibility have been removed from the CED policy?

10) Page 8 of “MPD 2007 CED Recertification” includes the following text: “Why the change?” and “Advantages: Officer has more discression (sic) & is looked at by others with the ‘totality of circumstances’ at the time & the ‘reasonableness standards’ theories vs the strict Do’s and don’ts policy.” What policy does the “strict Do’s and don’ts policy” refer to? Is it the CED policy that was in section 5-318 of the MPD Policy and Procedure Manual prior to 8/17/07? Which “strict Do’s and don’ts” no longer apply? In particular, are the following policies still in effect:

a) “Tasers shall not be used on passive subjects or as a come-along tool.”
b) “When activating a Taser, officers should use it for one standard cycle and stop to evaluate the effectiveness and the situation (a standard cycle is five seconds). Tasers should only be used for more than two cycles if the subject continues to be serious threat of bodily harm to the officers or citizens. If the Taser is being effective, a longer cycle facilitating handcuffing is appropriate.”
c) “The Taser shall not be intentionally aimed at the head neck, face or genitalia.”
d) “Only one officer should activate a Taser against a person at a time.”
e) “Tasers may only be used on fleeing persons if the subject’s actions justify the use of hard empty hand or “intermediate weapons” as outlined on the MPD Use of Force Continuum. This level is appropriate for fleeing felons or the arrest of a subject who is actively aggressive, i.e., actually fighting against police officers.”
f) “Tasers may only be used on children, visibly frail persons, women who are known to be pregnant, and people with known heart problems when other hard empty-hand control methods have failed or deadly force is justified.”
g) “Tasers may only be used on those in control of a motorized vehicle or bicycle in motion or those in a location where a fall may cause substantial injury or death when the subject’s actions justify deadly force.”

11) If restrictions on CED use have been modified or removed, that is, if the Officer has more discretion: Why was this done? Who gave approval? Who was notified? Why was the CRA not notified of a change that may affect our determinations? How might this affect the city’s legal liability?

— passed by CRA Board, March 4, 2009.

Motion #2: CED (Taser® device) Data Inquiries:

Whereas, the Civilian Review Authority Working Group Final Report, in 2006, established a process for submitting policy inquiries from the CRA to the Police Accountability Coordinating Committee (PACC), and;

Whereas, Conducted Energy Device (CED) usage is a controversial subject, locally, nationally, and internationally, of interest to both the CRA and the public, and;

Whereas, little data is available to the CRA and public regarding CED deployments, especially in 2007 and 2008, and;

Whereas, the CRA Policy Committee is reviewing MPD CED policy in accordance with its duties and powers expressed in CRA ordinance section 172.60(f), and current data is necessary to evaluate the importance or desirability of any changes to that policy;

Therefore, be it resolved that the board of the CRA submits the following inquiries to be placed on the agenda of the PACC, to be responded to in accordance with the established process:

1) What data is collected regarding each incident when a CED is used? What data regarding CED usage is contained in the CAPRS report (e.g. number of cycles, location on body)?
2) Is any CED usage data collected on a separate form? Please provide a copy of that form. Who receives and stores that information?
3) Are any periodic reports or statistical summaries prepared containing data on CED usage? Are those reports public data, in whole or in part? Please provide any public reports, or portions thereof, to the CRA. If any data is private, please indicate the nature of that data and the reason for its private classification.
— passed by CRA Board, March 4, 2009.

Motion #3: CED (Taser® device) Policy Recommendation:

Whereas, the Civilian Review Authority Working Group Final Report, in 2006, established a process for the CRA to submit recommended changes to the MPD Policy and Procedure Manual to the Police Accountability Coordinating Committee (PACC), and;

Whereas, the CRA Policy Committee has completed a review of the following policy issue and conducted preliminary research in accordance with the established process, and;

Whereas, the CRA was tasked in early 2006 with developing Conducted Energy Device (CED) policy and training recommendations, and;

Whereas, the CRA Taser working group consulted with employees of the MPD and members of the community, and considered printed information from past CRA complaints, the October 2005 Police Executive Research Forum (PERF) report, and the September 2005 American Civil Liberties Union (ACLU) of Northern California report, and;

Whereas, on February 1, 2006, the CRA board unanimously passed the task force report, titled, “Taser Policy and Training Recommendations,” and on February 15, 2006 the MPD accepted that report, and;

Whereas, on February 24, 2006, the City Council directed the MPD to incorporate the “Taser Policy and Training Recommendations” into their CED policy, and;

Whereas, on April 14, 2006, “Taser Policy and Training Recommendations” were adopted by their incorporation into Section 5-318 of the MPD Policy and Procedure Manual, and;

Whereas, on August 17, 2007, the CED section of the MPD Policy and Procedure Manual was changed in a manner that substantially shortened the text of the CED policy, and added the directive that, “The use of CED’s shall be consistent with current MPD training”;

Therefore, be it resolved that the CRA board recommends that Section 5-314 of the MPD Policy and Procedure Manual be revised to contain exactly the same text as appeared in Section 5-318 of the MPD Policy and Procedure Manual prior to the change made on August 17, 2007, and;

Be it further resolved that the CRA board submits the above recommendation to be placed on the agenda of the PACC, to be responded to in accordance with the established process, and;

Be it further resolved that the CRA board provides the following preliminary documentation in support of this change: (These documents are to be considered for final approval at the April CRA board meeting.)
1) “Reasons for CRA Recommendation that CED Policy be Explicitly Incorporated in the MPD Policy and Procedure Manual”
2) “MPD CED Policy Timeline and Documentation”

— passed by CRA Board, March 4, 2009, as amended