U.S. Department of Justice
Civil Rights Division

Special Litigation Section - PHB
950 Pennsylvania Avenue, NW
Washington, DC 20530

December 23, 2008

Via Electronic Mail and First Class Mail

The Honorable Marc A. Ott 

City Manager

City of Austin, Texas

P.O. Box 1088

Austin, TX 78767

Chief Arturo Acevedo

Austin Police Chief

715 East 8th Street

Austin, TX 78701

Re:

Austin Police Department


Dear Mr. Ott and Chief Acevedo:

As you know, on May 31, 2007, the Civil Rights Division

initiated an investigation of the City of Austin, Texas Police

Department (“APD”), pursuant to the Violent Crime Control and Law

Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141”). We

would like to take this opportunity to express our appreciation

for the cooperation we have received thus far from the City of

Austin and the APD.

To date we have reviewed many relevant APD policies and

procedures, and conducted interviews with City of Austin

officials, APD command staff, a cross-section of APD line

officers and supervisors, representatives of the Office of the

Police Monitor (“OPM”), the Austin Police Association (“APA”),

numerous community leaders, and other citizens.

At the beginning of our investigation, we committed to

providing the APD with technical assistance, where appropriate,

to enhance APD practices and procedures and to ensure compliance

with constitutional rights. During our meetings with Chief

Acevedo and the APD command staff in September and November 2007,

we advised that we would provide in writing more specifics about

recommendations our police practices experts had made orally. In

this letter, we convey our recommendations regarding some of the

APD’s written policies, including the revised policies provided

to us in May and June 2008. We view the technical assistance


- 2 ­
provided below as recommendations and not mandates. These

recommendations were developed in close consultation with our

police practices consultants and follow the productive dialogue

we had with APD officers and Austin officials. We strongly urge

the APD to consider the technical assistance recommendations in

revising its policies and procedures. 

Significantly, as will be discussed throughout this letter,

while work remains ahead, our expert consultants have noted that

the revised policies are a significant improvement over the APD’s

prior policies. We thank the APD for its work in revising the

policies, including the APD’s efforts at addressing many of the

areas we pointed out during our on-site visits. Important

aspects of our review process have yet to be completed, namely

incident assessment. Therefore, this letter is not meant to be

exhaustive, but rather focuses on recommendations we can provide

at this stage of our investigation.

Additionally, we hope this letter will assist in our mutual

goal of ensuring that the APD provides the best possible police

service to the people of the City of Austin. We look forward to

continued cooperation toward this goal. Though we have already

provided you with some examples of policies used by other police

departments, we would be happy to provide additional examples

where needed. 

I.

POLICIES AND PROCEDURES


The APD should revise and update its policies and procedures

to be consistent and comprehensive.

Policies and procedures are the primary means by which

police departments communicate their standards and expectations

to their officers. Accordingly, it is essential that the APD’s

policies be comprehensive, comprehensible, up-to-date, and

consistent with relevant legal standards and contemporary police

practices. As we discuss in detail below, several of the APD’s

policies and procedures are inconsistent with generally accepted

police practices and are insufficiently detailed to provide the

appropriate guidance for officer conduct.

We are aware that the APD is in the process of updating both

its use of force policy and its internal affairs investigations

policies.1 It is also our understanding that in drafting its new


1


We note that during Chief Acevedo’s relatively brief

tenure with the APD, the APD has not only engaged in the process


- 3 ­
policies, the APD has in part utilized model policies that we

provided to the APD during the course of our investigation. We

base our recommendations in this letter on the most recent

policies that the APD provided to us. We again applaud the APD’s

initial efforts in updating these policies and recommend that any

additional updates be made consistent with the feedback contained

in this letter. 

To ensure consistency, we recommend that once the APD

completes updating each policy, that the APD distribute the

completed policy or procedure to all of its officers. All

officers should provide a written acknowledgment of their

receipt, review, and understanding of all APD policies. We

suggest that the APD designate an individual responsible for

reviewing any revisions to new policies and, where necessary, to

bring to the command staff’s attention needed changes to ensure

consistency between APD policies. This individual would also be

responsible for ensuring that all officers receive complete

copies of policy manuals and policy revisions, and for

maintaining copies of officers’ signed acknowledgments.

II.

USE OF FORCE


The APD should revise its use of force policies and adopt an

appropriate use of force continuum.

In the course of duty, police officers are sometimes

required to use deadly and less lethal force. Because the use of

force can place officers, civilians, and subjects at serious risk

of harm, it is incumbent upon law enforcement agencies to ensure

that officers use force appropriately. Use of force policies and

procedures must clearly set forth standards for appropriate use

of force that are in accordance with constitutional standards. 


of updating these policies, but also the APD has implemented a

number of other changes, including: dramatically increasing

community relations, implementing discipline for sustained policy

violations, forming a “violent crime task force,” implementing a

“criminal hotspot response strategy,” reorganizing command

structure and alignment of some units, beginning the “safe

surrender” program, and introducing new uniforms and cruisers.

We certainly encourage Chief Acevedo to continue working with

Austin’s officers and the community as he assesses and makes

changes to better serve the public. 


- 4 ­
A.

Legal Standards Governing the Use of Force 


Whether a particular use of force by an officer in the

course of seizing an individual is constitutional is governed by

the Fourth Amendment’s objective reasonableness standard. Graham

v. Connor, 490 U.S. 386, 394 (1989); Mace v. City of Palestine,

333 F.3d 621, 623 (5th Cir. 2003). Uses of excessive force by

police officers in the course of arrest, investigatory stop, or

other seizure are violations of the Fourth Amendment.2 Id. The

analysis requires a balancing of the quality of intrusion on the

individual’s Fourth Amendment interests against the governmental

interests. Graham, 490 U.S. at 396; Gutierrez, 139 F.3d at 447.

The criteria courts apply to assess an excessive force claim

include the severity of the crime at issue, whether the suspect

presents an immediate safety threat to the officers or others,

and whether the suspect is actively resisting or attempting to

evade arrest. Graham, 490 U.S. at 396; Gutierrez, 139 F.3d at

447. Lack of specific policy guidance on the appropriate use of

force may lead officers to believe that they are justified in

using force in situations in which it would be unreasonable or

unnecessary. Conversely, unclear or overly general policies may

result in officers refraining from using necessary and

appropriate force out of an unwarranted fear of using excessive

force. 


2

A seizure -- i.e., by means of physical force or show

of authority -- is the event that triggers Fourth Amendment

protections. See Petta v. Rivera, 143 F.3d 895, 900 (5th Cir.

1998) (discussing United States v. Lanier, 520 U.S. 259, 396 n.

10 (1997)). The Fifth Circuit has consistently held that claims

of excessive force by law enforcement in the course of a seizure

should be analyzed under the Fourth Amendment’s reasonableness

standard rather than a Fourteenth Amendment substantive due

process approach. Gutierrez v. San Antonio, 139 F.3d 441, 452

(5th Cir. 1998). The Constitution, however, affords Fourteenth

Amendment Substantive Due Process protection from physical abuse

by police officers for claims that are not susceptible to proper

analysis under a different specific constitutional right -- e.g.,

an excessive force claim without a seizure to trigger a Fourth

Amendment analysis. Petta, 143 F.3d at 901. Similarly, once an

arrestee becomes a pre-trial detainee, Fifth and Fourteenth

Amendment Due Process protections, rather than the Fourth

Amendment, are the appropriate constitutional basis for excessive

force claims. Valencia v. Wiggins, 981 F.2d 1440, 1444-45 (5th

Cir. 1993).


- 5 ­
The Supreme Court held that deadly force3
 is permissible

only when a suspect poses an immediate threat of serious physical

harm to the officer or another person. Tennessee v. Garner, 471

U.S. 1 (1985). The only exception to this general rule is the

“fleeing felon” rule, which allows police officers to use deadly

force to prevent the escape of a suspect in cases where there is

probable cause to believe the suspect either poses an immediate

threat of serious harm to the officer or another, or has

committed a crime involving the infliction or threatened

infliction of serious physical harm. Id. Yet, even in such

circumstances, police are required to provide a warning, if

feasible, before using deadly force. Garner, 471 U.S. at 11;

Colston v. Barhart, 130 F.3d 96, 99 (5th Cir. 1997). Deadly

force is permissible only for as long as the threat remains.

When the threat is over, the use of deadly force must stop.

Russo v. City of Cincinnati, 953 F.2d 1036, 1045 (6th Cir. 1992)

(finding deadly force not proper after subject dropped knife);

Abraham v. Raso, 183 F.3d 279, 294-95 (3d Cir. 1999) (holding

that an officer cannot continue to use force with impunity once

the threat has stopped). APD’s use of force policy does not

comport with these legal standards in all respects. Accordingly,

as discussed in further detail below, we recommend that the APD

revise its use of force policy to incorporate these

constitutional standards.

B.

APD’s Use of Force Policy


We base our review on the APD’s newly revised “Response to

Resistance” policy and, where applicable, make reference to the

APD’s prior use of force policy. 

1.

Preamble


In general, a use of force policy should begin with a

preamble setting forth the police department’s basic doctrine on

use of force. Specifically, with respect to the APD, this

preamble should include a statement that the APD values the

protection and sanctity of human life. Moreover, the preamble

should set forth the general expectations that the APD holds for

officers’ use of force -- i.e., that officers are prohibited from

using force unreasonably or as a means of punishment or

interrogation. The use of force policy originally provided to


3


Deadly force is force “‘carry[ing] with it a

substantial risk of causing death or serious bodily harm.’” See

Gutierrez, 139 F.3d at 446 (citing Robinette v. Barnes, 854 F.2d

909, 912 (6th Cir. 1988)).


- 6 ­
us, Use of Force General Policy B101, effective April 20, 2000,

and revised January 26, 2007, sets forth expectations of what the

policy is not: not a higher standard of care with respect to

third party claims. This disclaimer overshadowed the mission

statement that was part of the same policy. The APD’s newly

revised policy includes similar disclaimer language but only as

part of a larger preamble setting forth the APD’s values and

expectations of officers’ duties. Response to Resistance Policy

B101a, issued June 1, 2008. The new preamble more adequately

frames this disclaimer in context with the APD’s values. In

practice, the APD should ensure that its officers not use a

disclaimer to justify uses of force inconsistent with the values

set forth in the preamble. 

2.

Definitions


To ensure consistency in the application of the use of

force, a successful use of force policy should also define key

terms such as lethal force, less lethal force, force, etc. The

APD’s revised policy fails to define lethal force even though the

policy sets forth criteria for use of “deadly” force. Response

to Resistance Policy B101a.03. We recommend that the APD define

“lethal force” to include any use of force that is likely to

cause death or serious bodily injury in accordance with Tennessee

v. Garner, supra, 471 U.S. 1. 

Some of the revised policy’s other definitions leave room

for excluding uses of force that officers should report. For

example, the revised definition of force includes a subjective

“minimal resistance” threshold before force must be reported.4

Response to Resistance Policy B101a.01(A). We recommend that 

the APD modify its definition of force to eliminate the “minimal

resistance” threshold and, instead, include all force used beyond

unresisted handcuffing. Moreover, the revised policy’s


4

As we discussed early in our investigation, the prior

policy also excluded uses of force that officers should have

reported. The prior policy defined force as “any physical action

that causes apparent injury, or causes a person to complain of

pain or injury.” Requiring a suspect to complain of pain or have

apparent pain before an action by an APD officer is considered

force excluded the reporting of actual uses of force. The

definition excluded uses of force when a suspect did not

complain. The definition also excluded the reporting of uses of

force when the officer asserted that the suspect’s pain was not

apparent to him or her. We applaud the APD’s prompt response to

our technical assistance regarding this issue. 


- 7 ­
definitions of “injury” and of “serious physical or bodily

injury,” require a complaint of pain, or an “apparent” injury.

These definitions inappropriately exclude injury when a suspect

does not complain or when the officer asserts that the suspect’s

injury is not apparent. Additionally, the APD’s revised

definition of physical or bodily injury does not require the

reporting of all force alleged to have been used by an officer.

The policy only requires the reporting of injuries “caused” by

the officer. We recommend that the APD modify this definition to

include injury alleged to have been caused by APD personnel. We

also recommend that the APD revise its definition of serious

physical or bodily injury to exclude “long term” as a criteria;

officers should not have to attempt to determine the long term

effects of an injury in order for it to qualify as a use of

force. Additionally, the policy should specifically include

fractures as serious injuries. 

3.

Permitted Uses of Force


In addition to needing to include key definitions common to

the entire use of force policy, we recommend that the policy set

forth the APD’s rules on when force may be used and what force is

prohibited. The APD’s general rule on use of force is deficient.

The revised policy first includes a requirement that a police

officer be objectively reasonable in “lawful law enforcement

objectives.”5 Response to Resistance Policy B101a.02(A). A

later bolded and underlined restatement in the policy, however,

undermines this lawfulness requirement. Specifically, it says:

“The ultimate test is whether the use of force was objectively

reasonable.” Response to Resistance Policy B101a.02(C) (emphasis

in original). This overarching policy statement omits any

explicit requirement that there be a lawful law enforcement

action. Also, significantly, while the revised policy includes a

great deal of language to shield an officer’s decisions on

reasonableness, the revised policy’s general rule omits any

mention of necessity for the use of force. The APD should revise

its general statement on the use of force to permit force only

when the force used is objectively reasonable because it is

necessary to overcome resistance offered in a lawful police

action to compel an unwilling subject’s compliance with an

officer’s lawful exercise of police authority. This rule should


5


The prior policy’s generally applicable rule on the use

of force for APD officers omitted any requirement that an officer

be engaged in a lawful police action. We view the APD’s policy

change to require a “lawful law enforcement objective,” as a

significant, positive improvement over the prior policy.


- 8 ­
specifically cite the Supreme Court’s holding in Graham v.

Connor, supra, 490 U.S. at 395-96, for the reasonableness

requirement. Further, “necessary” should be qualified as the

least amount of force necessary to overcome resistance offered.6

At a minimum, the policy should require that officers use

the lowest level of force objectively necessary from the

officer’s position to safely resolve a situation, including

verbal commands and other alternative negotiation techniques. We

recommend that the use of force policy include alternatives to

more significant uses of force, such as emphasizing announcement

of officers’ presence, the use of “soft hand” techniques (i.e.,

using hands to escort rather than control subjects), and other

de-escalation techniques.7 APD’s use of force policy should also

incorporate the de-escalation techniques appropriate to

interactions with individuals with mental illness or who are

under the influence of drugs or alcohol, including providing

specialized training, e.g., crisis intervention training, or

guidance to officers regarding the signs or symptoms for

identifying such individuals. 

4.

Use of Force Continuum


The APD does not currently employ a use of force continuum,

matrix, or any other description of levels of suspect resistance

and appropriate officer use of force responses in order to teach

its officers a progression and de-escalation of use of force.8


6

The APD uses the term “necessary” in its policy with

respect to use of lethal force. Response to Resistance Policy

B101a.03(A). The APD does not, however, use the term with

respect to objectively reasonable force. Response to Resistance

Policy B101a.02. Nor does the APD define “necessary” in its

response to resistance policy. 

7

The revised policy includes a list of criteria an

officer should be able to articulate to justify the

reasonableness of uses of force. Response to Resistance Policy

B101a.02(B). These criteria imply that officers should attempt

to de-escalate a situation. The policy does not explicitly

require, however, that officers attempt de-escalation, if

feasible in the situation.

8


A use of force continuum, as more thoroughly described

in this section, is a diagram, guide, or chart that illustrates a

progression of various descriptions of use of force that may be

employed consistent with policy. 


- 9 ­
APD should consider adopting a use of force continuum or other

similar tool to provide officers with uniform guidelines about

the appropriate use of force (as noted above de-escalation and

escalation techniques should be emphasized). We recommend that

the APD develop a comprehensive use of force continuum that

augments and enhances a revised use of force policy as a training

model to effectively assess and engage situations. The use of

force continuum should be a fluid and flexible policy guide to

provide effective and efficient policing. The continuum should

be consistent with accepted policing practices and should be used

to train officers to consider lower levels of force first, which

protects the safety of both the officer and the civilian. 

Specifically, we recommend that the APD develop a use of

force continuum that illustrates the various uses of force that

may be employed and make them consistent with the terms and

definitions outlined in other parts of the policy. The

descriptions of force should be more detailed and include the

level of force officers should initially engage given the threat

presented to them, how the various applications of the options

affect their placement in the use of force progression, and what

level of force is appropriate in response to different levels of

resistance by suspects, including de-escalation techniques and

interactions with individuals with a mental illness or who are

under the influence of drugs or alcohol. The continuum should

include all of the actual types of force used by APD, including:

firearms, conductive energy devices,9
 OC spray, impact weapons,

canines, and any other uses of force.

Though the revised policy does not incorporate a use of

force continuum, the policy uses terminology that implies that

officers should be using a continuum in determining reasonable

levels of use of force. For example, the policy categorizes

chemical agents as “soft intermediate weapons.” Response to

Resistance Policy B101a.06(A). Also, the policy requires

officers to articulate the “[a]vailability and utility of lesser

force options.” Response to Resistance Policy B101a.02(B)(7). A

clearly articulated use of force continuum would bring clarity to

this confusing dichotomy used in the revised policy. 


9


Such weapons are sometimes referred to by a brand name,

“TASER,” or simply called “stun guns.” For consistency purposes,

we refer in this letter to all such weapons used by the APD as an

“conductive energy devices” or “CEDs.” 


- 10 ­
5.

Lethal Force


The APD’s revised use of force policy appropriately restates

the standard for use of lethal force, which the APD refers to as

deadly force, articulated in the Supreme Court’s holding in

Tennessee v. Garner, supra, 471 U.S. 1. Response to Resistance

Policy B101a.03(A). Unlike the APD’s prior use of force policy,

the revised policy includes the requirement that a threat be

imminent. The revised policy now also addresses the fleeing

felon rule,10 which the prior policy did not. However, unlike

the prior policy, the revised policy omits a statement that the

use of equipment other than firearms may constitute use of deadly

force depending on the technique used. The revised policy also

lacks specificity or direction on potentially lethal uses of

force. Accordingly, we recommend that the APD’s policy specify

that “lethal force” includes force methods that employ

potentially lethal weapons (e.g., firearms, cars, etc.).

Additionally, due to the possibility of death or serious bodily

injury from the delivery of blows to the head with impact

weapons, we recommend that the APD specifically limit strikes to

the head with impact weapons.11 The policy should also specify


10

The fleeing felon rule permits the use of lethal force

in the apprehension of a subject only: (1) to defend the officer

or a third person from what the officer objectively reasonably

believes is an imminent threat of lethal force or force from the

subject likely to cause serious bodily injury; or (2) to prevent

the escape of a suspect in cases where there is probable cause to

believe the suspect either poses an imminent threat of serious

harm to the officer or another, or has committed a crime

involving the infliction or threatened infliction of serious

physical harm, and other means of apprehension are inadequate or

unavailable, and if, where feasible, warning has been given.

Garner, 471 U.S. at 11-12. The revised policy is slightly more

narrow. The revised policy does not specifically permit the use

of lethal force against a fleeing felon who has committed a crime

involving the infliction or threatened infliction of serious

physical harm, and other means of apprehension are inadequate or

unavailable. Response to Resistance Policy B101a.03(A). APD

policy properly may be more narrow than the furthest

constitutional limits on the uses of force. 

11


The revised policy specifies that blows with impact

weapons should only be delivered to “vulnerable areas of the body

(target areas).” Response to Resistance Policy B101a.07(D).

This limiting language is useful, but not explicit on the

potential use of impact weapons as deadly force. 


- 11 ­
that head strikes with a weapon are only permitted as tactics of

last resort, to be used only when the use of lethal force would

otherwise be authorized. Based on our ongoing review of APD use

of force reports, the APD should pay particular attention (and

ensure supervisory scrutiny) to the use of closed-fist strikes to

the face or head. 

6.

Prohibited Uses of Force


We also recommend that the APD’s use of force policy

identify any uses of force that are specifically prohibited or

restricted to limited circumstances. For example, a carotid hold

or choke hold is typically considered a use of deadly force.

Thus, we recommend that the APD’s use of force policy explicitly

explain that officers should use the carotid hold only in

circumstances in which deadly force would be authorized. The use

of force policy should also prohibit using force on a subject in

a manner that is likely to cause positional asphyxia12 and the

methods and procedures to avoid it.13

7.

Firearms


The APD’s revised duty weapons policy fails to provide clear

guidance on the use of secondary weapons. As we have discussed

with the APD’s command staff, the APD’s policy on firearms does

not require that line officers register with their supervisors

the secondary weapons some line officer choose to carry while on

duty. We understand that officers who carry secondary weapons

while on duty must qualify with those weapons at the APD’s

training academy and that the academy keeps record of such

qualification. Duty Weapons Policy B101b, issued June 1, 2008.

Some mid-level supervisors we interviewed indicated that they

knew which line officers among their command carried secondary


12

Positional Asphyxia is a fatal condition arising

because of the adoption of particular body positions, which cause

interference with breathing. 

13


The revised policy refers to positional asphyxia only

with respect to transporting subjects on whom chemical weapons

have been used. Response to Resistance Policy B101a06(F)(1).

This does not address positional asphyxia risks with respect to

subjects on whom officers have not used chemical weapons. The

APD’s policy on transportation of prisoners, however, describes

such risks of positional asphyxia and certain avoidance measures.

Care and Transportation of Prisoner General Policy B113.02(D)(5).


- 12 ­
weapons. Other supervisors were unsure what secondary firearms

their subordinates carried. Based on our expert consultants’

assessments, we recommend that the APD prohibit its officers from

carrying any secondary firearm without the knowledge and approval

of their immediate supervisors. All such approvals should be

documented. The documentation should include the type of

secondary weapon officers are approved to carry and the serial

number of that weapon. 

Additionally, we recommend APD only permit officers to carry

secondary weapon(s) that are included on a list of tools approved

by APD command for APD officers for use as a secondary weapon.

The APD’s prior policy on duty weapons required that firearms

range personnel maintain a list of weapons and ammunition

authorized for departmental use. Duty Weapons General Policy

A303.01(C)(2), effective April 20, 2000, revised January 26,

2007. APD personnel confirmed to us, however, that the APD did

not have such a list of approved secondary weapons. The APD’s

revised duty weapons policy similarly requires APD’s firearms

range personnel to develop a list of weapons and ammunition

approved for departmental use. Duty Weapons Policy

B101b.01(C)(2), issued June 1, 2008. Given the prior absence of

this required list, we recommend that the APD ensures that it

promulgates the list of approved weapons and timely distribute

the list with the revised duty weapons policy to mid-level

supervisors. The APD should authorize qualification on only

those firearms for which the APD has a trainer qualified to

assess an officer’s proficiency with such firearms. Supervisors

should ensure that unapproved weapons are not carried or used on

duty. 

The revised duty weapons policy permits officers to qualify

on up to three handguns and one personally owned rifle for police

use. Duty Weapons Policy 101b.02(A). The policy does not, but

should, limit the number of weapons an officer may carry on duty

at any one time. Also, we recommend that the APD revise its

policies to make clear the APD’s right to remove approved weapons

from officers’ lists and under what circumstances, e.g.,

sustained violation of policy or unavailability of suitable

training and qualification programs. Currently, the policy

permits officers to remove weapons from their own list of three

approved weapons, but the policy does not indicate whether and

under what circumstances the APD is entitled to remove weapons

from any officer’s list of approved weapons. Duty Weapons Policy

B101b.06(D)(1). 

We further recommend that the APD’s firearm policy clearly

identify the equipment officers are expected to routinely carry


- 13 ­
and the appropriate exceptions. The policy should specify all

firearms and ammunition that are allowed on- and off-duty. The

APD should establish a system of accountability for both

department-issued and personal ammunition so that the APD is able

to monitor the type and quantity of ammunition used and the

circumstances in which it is used. This will facilitate reviews

of uses of force, as well as investigations into firearm

discharges. We understand that the APD is considering a

single-gun policy and a single-impact-weapon policy. A single

tool of each level of force use would simplify accountability and

training. 

Lastly, the APD’s duty weapons policy currently prohibits

the use and sharing of personally owned rifles. Duty Weapons

Policy B101b.11. While this general prohibition is sound, the

policy should permit an officer’s use of another’s rifle or other

firearm, without violation of policy, when tactical circumstances

warrant doing so in emergent situations. 

8.

Less Lethal Weapons


We recommend that the APD set forth comprehensive policies

that give specific guidance and restrictions on all intermediate

force weapons used, including straight and expandable batons,

PR24s, Orcutt Nunchakus, chemical weapons, CEDs, impact

munitions, and canines.14 Such guidance should be delineated

either in a section for each tool in the use of force policy, or

in separate policies for each tool referenced in the use of force

policy. The use of force policy should include, among other

things: where these and other intermediate force weapons fall

within the use of force continuum; the circumstances under which

the intermediate weapons should be used and instructions on how

to properly use them; prohibitions on the use of the weapons;

whether all officers are required to carry them; reporting

procedures; and appropriate decontamination and/or medical

treatment procedures. Unlike the prior use of force policy, the

revised Response to Resistance policy accomplishes many of these

goals. Because officers may unnecessarily resort to their

firearms if intermediate force options are not available, we

recommend that the APD require all officers to carry a chemical


14


The revised Response to Resistance policy addresses

“less or non-lethal force” generally, before providing guidance

on specific tools. Response to Resistance Policy B101a.04. Our

expert consultants have indicated that the better terminology to

use is simply “less lethal” force, thereby acknowledging that all

force is potentially lethal. 


- 14 ­
weapon, in addition to an impact weapon. Appropriate training

and certification on the use and deployment of all intermediate

weapons should be developed and implemented.

9.

Impact Weapons


As previously stated, we understand that the APD is

considering a single impact weapon policy.15 The revised duty

weapons policy, however, does not currently list impact weapons.

The revised Response to Resistance policy identifies only a baton

but permits the training division to maintain a list of other

approved impact weapons.16 Response to Resistance Policy

B101a.07. While the APD certainly has discretion on the impact

weapon(s) it chooses to use, we recommend that officers be

trained and appropriately re-certified in each tool that officers

carry -- as the APD’s revised Response to Resistance policy now

requires. A large number of tools may make this logistically

more complicated. If the APD chooses to continue to permit more

than one impact weapon, the APD should make clear to its members

what impact weapons are permitted. Accordingly, like with

firearms, we recommend that the APD ensure that it promulgate the

list of approved impact weapons and timely distribute the list

with the revised policy to mid-level supervisors; thereby

allowing supervisors to ensure that unapproved weapons are not

carried or used on duty. We also recommend that the APD require

that its officers carry with them their approved impact weapons. 

10.

Conductive Energy Devices


Part of our investigation focuses on the APD’s use of CEDs.

Consistent with generally accepted police practices, the prior

duty weapons policy specified that CEDs should not be used

against a subject already in handcuffs. Duty Weapons General

Policy A303.18(D)(3)(a). We received, however, a number of


15

We do not take a position on whether the APD should

adopt a single impact weapon. 

16


The APD’s prior duty weapon policy listed only a baton

and no other impact weapons. Duty Weapons General Policy

A303.16(B), effective April 20, 2000, revised January 26, 2007.

The prior use of force reporting form provided to us, however,

lists no fewer than four separate impact weapons. We were also

informed that, in practice, the APD uses multiple impact weapons.

Accordingly, despite the appearance in the prior duty weapons

policy of the APD having only one impact weapon, in practice, the

APD utilizes more than a single impact weapon.


- 15 ­
allegations that APD officers had used CEDs on subjects who were

already restrained. Even more troubling, neither the APD’s

revised duty weapons policy, nor the revised Response to

Resistance policy contains such a prohibition on the use of CEDs

against a restrained subject. We recommend that the APD prohibit

the use of CEDs on restrained subjects unless the subject engages

in active, violent resistance. We also recommend that the APD

revise its policies to require a high level of scrutiny in

supervisory review whenever a CED is used on a restrained

subject.

The revised Response to Resistance policy permits the use of

CED’s against a subject who is “potentially” violent. Response

to Resistance Policy B101a.08(E)(2). This is too broad. We

recommend deleting this reference. The policy should also state

that CEDs should not be used to threaten or brandished to

intimidate a subject or to coerce a confession. 

11.

Chemical Weapons


The APD’s revised policy requires that officers be trained

in the use of Oleoresin Capsicum (“OC”) in order to use that

chemical weapon. Response to Resistance Policy B101a.06(B)(1).

The policy does not provide officers with guidance, however, on

how much OC spray to use or in the selection of appropriate

anatomical targets or duration of use. This is problematic

because during our ongoing investigation, we received complaints

that the APD uses OC spray in an indiscriminate fashion, i.e.,

spraying a crowd without acquiring a specific threat or target.

Accordingly, while we are still reviewing use of force incidents,

we recommend that the APD make clear in its policy limitations on

use of OC spray. OC spray should only be used for a specific

threat, for an appropriate target, for a limited duration, at a

limited distance to the subject, at appropriate targets on the

subject’s body (e.g., not up the nose), and compliant with

current training techniques and manufacturer’s guidelines.

Moreover, the APD must ensure that its use of OC spray is

consistent with the policy changes.

The APD’s revised policy permits the use of chemical weapons

on restrained subject, if the subjects are “aggressively”17


17


The APD’s prior use of force policy permitted use of

chemical weapons on restrained subjects who resisted “violently.”

Use of Force Policy B101.05(D)(3). Arguably violently was a

higher threshold than aggressive, though neither term is defined

in its respective policy.


- 16 ­
resisting and lesser means of control have failed. Response to

Resistance Policy B101a.06(D). The policy, however, fails to

illustrate what would constitute aggressive resistence. Rather

than permit the use of OC spray on restrained subjects, the APD

policy should require the use of further restraints, e.g., hobble

restraints or restraint to a Gurney, for handcuffed subjects who

continue to resist a lawful police action. 

Both the previous and the revised policy also appropriately

require officers to decontaminate subjects on whom chemical

weapons have been used. Use of Force General Policy

B101.05(D)(5); Response to Resistance Policy B101a.06(F). Our

review, thus far, has revealed various individuals’ accounts that

suggest that the APD has not consistently followed a

decontamination policy. Many individuals informed us that they

have not been given the opportunity to wash out OC spray or have

been sprayed a second time because they were acting out when not

given the opportunity to decontaminate. Similarly, review of the

APD’s use of force reports supports that APD officers have

frequently failed to timely or properly decontaminate sprayed

subjects. Accordingly, the APD should implement a uniform

practice to permit individuals to decontaminate as soon as it is

safe to do so.

Lastly, with respect to OC spray, the APD does not weigh OC

spray canisters. Spray must be tracked and accounted for, to

facilitate accountability and, when necessary, investigations

into use of OC spray.

12.

Impact Munitions


The APD’s prior use of force policy permitted the use of

impact munitions in riot control situations and against unarmed

subjects whose behavior is “such that i[t] poses a serious danger

. . . .” Use of Force General Policy B101.05(E)(2). The revised

policy is more specific in the use of impact munitions against

armed or suicidal subjects but still permits use of impact

munitions to disperse crowds. Response to Resistance Policy

B101a.09(B)(4). The use of impact munitions needs to be

consistent with the use of deadly force. Rubber bullets should

only be used when there is a deadly force option in reserve to

use if an impact munition fails. The use of other less lethal

impact munitions should be consistent with the APD’s less lethal

force policy, but the APD’s review of the use of all impact

munitions should be consistent with the same level of review as

lethal force. The use of an impact munition against an unarmed

individual should be appropriately limited. We recommend that

the APD utilize a separate policy on the control of crowds and


- 17 ­
should cross reference that policy in the use of force policy and

vice versa. 

The current policy requires, generally, that the APD obtain

medical treatment for an individual whom the APD strikes with an

impact munition. This should be made more explicit, to require

that the struck subject be taken to a hospital and cleared for

incarceration before being processed at the jail. 

13.

Canines


There is a separate standard operating procedure for canines

that includes an assessment of the reasonableness of the use of

force in the deployment of a canine. Canine Unit Standard

Operating Procedure (“SOP”), revised January 2008. This SOP does

not include the same explanation of reasonableness as is

contained in the APD’s Response to Resistance policy. As with

other uses of force that require their own detailed policies, we

recommend that in its use of force policy the APD list canines as

a use of force on the continuum of types of uses of force and

reference the separate policy governing canine use. 

We also have been informed that the APD’s canines have been

on a lead, i.e., leashed, when some bites have occurred. This

may indicate a problem with APD canine officers’ control over the

dogs. Though we are still reviewing incident reports, we

recommend that the APD examine its methodology to ensure that the

APD’s use of canines is consistent with “find and alert” or “find

and bark” practice, i.e., requiring the dog to bark, rather than

bite, upon locating the subject. In a “find and bark” standard

of operation, a canine is still capable of biting a subject.

Consistent with generally accepted policing practices, though,

the canine handler or officer decides affirmatively whether the

canine should bite the subject. The APD should not leave the

decision to bite to the canine’s discretion. The APD also should

ensure that canine training supports this standard.

The APD’s definition of “deployment” for canines includes

use of canines on a lead for a search regardless of the canines’

involvement in the apprehension. Canine SOP .04(B). This is an

overly broad definition of deployment. When inactive uses of

canines are counted as deployments this has the effect of

diluting the bite ratio, i.e., the ratio of the number of times

canines bite (to assist in an apprehension) as compared to the

number of times canines are deployed. Accordingly, we recommend

that the definition of canine deployment be limited to those

circumstances in which canines are utilized off a lead in an

actual attempt to apprehend or find a suspect. 


- 18 ­
When there is a need for canine deployment, we recommend

that the APD ensures that deployment is subject to appropriate

supervisory oversight. The canine SOP requires general

supervisory approval for canine deployment. Canine SOP .06(B).

We recommend that the APD update this SOP to require approval

from a canine unit supervisor for deployment, i.e., a supervisor

already trained on the appropriateness of such deployments, if

available. If no canine supervisor is available, then deployment

should require a field supervisor’s approval.18

When canine bites occur, APD’s policy requires its officers

to report the use of force. The canine SOP, however, is unclear

as to whether the reporting and review of bites under the SOP are

in addition to, or the same as, the reporting and review

procedures under the APD’s new Response to Resistance reporting

procedure. Accordingly, we recommend that the APD clarify the

reporting and review procedures in its canine SOP. This should

include a requirement that canine supervisors are require to

report to the scene of canine bites. 

C.

Reporting Uses of Force


We recommend that the APD revise its policy to require all

officers involved in a use of force incident, not just the

initially involved officer, to prepare their own report detailing

the event. In order to accurately report (and subsequently

review) uses of force, the APD should also revise its use of

force form to require supervisors to collect sufficient

information and evidence for later review, oversight, and

training.

1.

Reportable Uses of Force


As mentioned with respect to the APD’s prior definition of

force, the APD practice and policy have been under inclusive in

what the APD has considered force, and, in turn, it appears that

the reporting of force by officers has been under inclusive. The

prior policy, effective since April 2000, only required uses of

force to be reported when the subject presented the officer with

“consistent and repetitive complaint of pain beyond the initial

arrest procedure, which would lead a reasonable person to

conclude that an injury could have occurred.” Use of Force

Policy B101.07(A)(3), revised Jan. 26, 2007. This definition


18


The APD should train its field supervisors on general

uses of canines and the efficacy and ability of canines to assist

in law enforcement, including use of force.


- 19 ­
allowed an escape valve from reporting requirements. During our

site visits, for example, we were informed that an arm bar

takedown19 was not a use of force under the policy then in

effect, unless there was a complaint of recurrent pain or injury.

An average citizen would not know that he or she must

consistently or repetitively report pain in order for a use of

force against them to be reported. Moreover, as written, the

prior policy permitted force during an arrest, but only required

reporting if pain or injury are apparent after an initial “arrest

procedure.” “Arrest procedure” was too broad and undefined a

term. Requiring reporting only after arrest procedure excluded

uses of force against subjects whom the APD did not arrest. 

The revised Response to Resistance reporting policy

significantly changes the reporting requirements and addresses

many of the recommendations our experts made at the conclusions

of our on site visits. Even the revised policy, however, leaves

some inconsistencies in the reporting requirements. The revised

reporting policy adopts a categorization of uses of force for

reporting and review, i.e., the most serious, level one, to the

least involved, level three.20 Response to Resistance Reporting,

Investigation, and Review Policy B101c.03, issued June 1, 2008.

The policy requires employees involved in a use of force to file

a Response to Resistance report in Versadex21 for levels one and

two uses of force. Response to Resistance Reporting Policy

B101c.04(A)(1)(b). This portion of the policy does not specify

what precisely must be reported through this report. Later,

however, with respect to level three uses of force, the policy

sets forth a list of certain items to be reported through a

Response to Resistance report (though Versadex is not then

mentioned). Response to Resistance Reporting Policy


19

Arm bar is a takedown technique that enables an officer

to gain pain compliance with the subject by applying pressure

that hyperextends the elbow joint driving the subject’s shoulder

toward the ground.

20


We note that much of this policy appears to have been

drawn from one of the exemplar policies we provided to the APD.

Also, even though the exemplar policy defines the levels of use

of force, we do not recommend that the APD follow suit in the

placement of definitions of levels of force after other

substantive provisions. The APD’s policy would benefit from

having its definitions of levels of use of force appear prior to

its reporting requirements. 

21


Versadex is the APD’s computerized reporting system.


- 20 ­
B101c.07(A)(2). This inconsistency only serves to breed

confusion as to what must be reported and what methodology should

be used. Also, the revised policy only requires one Response to

Resistance Report from multiple employees who each use the same

level of force. Response to Resistance Reporting Policy

B101c.01(D). This does not comport with accepted policing

practices that require every officer involved in use of force

incidents to complete a separate report on his or her involvement

and force used. 

We recommend that the APD revise its policy to make clear

the basic requirement that all involved officers or witness

officers complete individual use of force reports for all uses of

physical or instrumental force beyond un-resisted handcuffing. 

In addition to every officer being required to complete

individual reports, we also recommend some other changes and

clarifications to the requirements of the revised Response to

Resistance reporting policy:

•	

The revised policy permits a supervisor to re-categorize the

investigation of uses of force level, triggering internal

affairs involvement, if the investigation reveals a possible

policy violation. Response to Resistance Reporting Policy

B101c.02(B). We recommend that the APD revise this section

to also specify that a citizen complaint at the scene of the

use of force, or after the fact, will also elevate the

category of investigation and trigger internal affairs

involvement. 


•	

The revised policy requires APD supervisors to notify the

Special Investigations Unit (“SIU”) of potentially criminal

uses of force. Response to Resistance Reporting Policy

B101c.02(C). If the SIU is required to respond to the scene

of potentially criminal uses of force, then we recommend

that the policy state this clearly. The policy should also

be clear who leads the investigation of the incident if SIU

is on scene, either the supervisor or SIU. 


•	

The revised policy requires the watch commander to appoint

an investigator to review a use of force involving

supervisor’s use of force. Response to Resistance Reporting

Policy B101c.02(H). The policy should make clear that

subordinates should not review supervisors’ uses of force,

unless the subordinates are trained to conduct internal

affairs investigations and are operating in that capacity.

The APD also should clarify whether or not the supervisor’s


- 21 ­
chain of commander superior is to report to the scene of a

supervisor’s use of force. 

•	

The revised policy places in its lowest category, Level 3,

use of CEDs when the officer misses the intended target.

Response to Resistance Reporting Policy B101c.03(C)(3). The

failure to strike a target should not diminish the level of

review of a use of force. Accordingly, we recommend that

CED deployments resulting in misses be reported and

investigated at the same level as successful CED

deployments. 


•	

The APD has revised its policy’s reporting requirements,

consistent with our recommendations during our on-site

visits, to require reporting of officers’ active targeting

of subjects (when an officer points his or her weapon at a

suspect) with firearms.22 The new Response to Resistance

reporting policy requires reporting of active targeting

using a firearm, but is still silent with respect to active

targeting with impact munitions (to the extent that firearms

are not defined to include impact munitions). We recommend

that the APD require reporting of all active targeting with

these devices by an APD officer. The APD provided us its

new Response to Resistance report form from the APD’s

Versadex. That form does not list active targeting in the

data field in which other force options are listed.23 We


22

The prior use of force policy prohibited APD officers

from brandishing a firearm unless there would be a basis to use

deadly force or “create an apprehension” of deadly force use when

such use would be necessary. Use of Force General Policy

B101.05(A)(1). The reporting requirements of the APD’s prior use

of force policy, however, did not require brandishing of a

firearm, CED, or impact munition weapon to be reported as a use

of force. Accordingly, the APD policy indicated that the APD was

not collecting data of uses of force which are prohibited by its

own policy. Interviews with APD personnel confirmed that the APD

did not require officer to report brandishing. We commend APD

for making the change in its updated policy. 

23


The APD provided us an explanation of its Versadex form

which included a field to report the number of shots fired. Use

of Force Detail Page in Versadex, June 4, 2008. The APD’s

explanation indicates the use of “0” in the data field to record

the number of shots fired indicates active targeting. However,

the use of a “0” for active targeting is not distinguishable from

an officer merely filling in a zero value for no shots fired, or


- 22 ­
recommend that active targeting be added to this field.

Tracking of active targeting with CEDs could also be useful

as a management tool. Officers could report CED active

targeting on incident reports, without a use of force form,

if no force is used.

2.

Reporting Forms


The APD’s revised use of force reporting form is still

inadequate. We recommend that the form be structured so that

discrete information about multiple uses of force by multiple

officers in a single incident may be recorded. The form

(consistent with policy) should allow officers to provide a

detailed narrative description of the incident, beginning with

the basis for the initial contact, continuing through the

specific circumstances and actions that prompted each use of

force, resulting injuries, and medical treatment (if necessary).

For this, a narrative, not the current checkbox scheme of

reporting, is required. The Versadex form that the APD furnished

to us provides only a 50-character text box for remarks. The

form should continue to contain check boxes, however, which may

support the narrative, where appropriate. The form should also

include other information not on the use of force reporting form,

such as: the officer’s assignment area; the officer’s

assignment; whether the officer was on or off duty; whether the

officer was in uniform; and whether or not the subject alleged

excessive force or unlawful law enforcement action. 

It is the responsibility of the first-line supervisor to

ensure that all uses of force are documented. We recommend that

the APD’s policy establish a review mechanism to ensure that

officers are complying with the reporting procedures and provides

for appropriate administrative sanctions or retraining for

officers who fail to comply. Supervisors should also report to

the scene of all uses of force above unresisted handcuffing.

Some supervisors informed us that they already do this; this

standard should be memorialized in policy. Supervisors will,

therefore, be aware of when use of force occurs and when to

expect report forms, and from whom. 

D.

Supervisory Review of Uses of Force


Supervisory review of officer uses of force is critical to a

department’s ability to ensure officers are using force in a

manner consistent with constitutional standards and the


filling in a value over zero for firearm or CED shots fired. 


- 23 ­
department’s policies. Use of force reviews may identify both

officer training needs and patterns of unauthorized or excessive

uses of force. The information regarding each use of force also

should be tracked in an Early Warning System (“EWS”), as

discussed below in Section VIII of this letter. 

1.

Chain of Command Review


Like the reporting requirements already discussed, the APD

has revised many of the review requirements of the revised

Response to Resistance reporting policy which address many of the

recommendations our experts made at the conclusions of our on

site visits. The APD’s prior use of force report form provided

to us, included blanks for supervisor comments and signature, but

the policy did not give any direction on the necessity or nature

of this supervisory review. Rather, the prior use of force

policy included a provision for review of use of force report

forms only by the APD’s training academy.24 Use of Force General

Policy B101.09.25 According to the policy, then, there was no

requirement that supervisors assess whether the officer’s

reported uses of force were in compliance with the APD’s use of

force policy. In a separate document generated in response to

our request, however, the APD stated that supervisors are to

review use of force reports. City of Austin Response to DOJ

First Request for Documents and Information, Review of APD Use of

Force Incidents, dated July 18, 2007. This informal requirement,

however, will not consistently yield effective front-line

supervisory reviews of uses of force.


24

According to a document titled City of Austin Response

to DOJ First Request for Documents and Information, Review of APD

Use of Force Incidents, dated July 18, 2007, APD’s Training

Division no longer enters the use of force report data into a

database. Rather the APD’s central record’s office completes

this task. The APD had not revised its policy to reflect this

change. 

25


According to the old policy, the APD’s training academy

was to enter the use of force reports into a database, to return

incomplete reports to supervisors for completion, and to perform

an annual analysis of the use of force data to identify training

needs. Use of Force General Policy B101.09. Even if the academy

is no longer the data entry point, academy staff need to perform

the qualitative analysis. The subject matter experts for each

respective use of force should review the respective use of force

reports for both individual training and supervision issues and

for systemic use of force issues.


- 24 ­
While on site, we encountered a general lack of consistency

among APD supervisors on use of force reporting and review

requirements. We asked APD supervisors to walk us through use of

force incidents and reporting. Despite the lack of clarity in

the APD’s prior use of force policy, we were informed that, in

practice, many front-line supervisors do, in fact, review their

officers’ use of force reports. However, we were also informed

that some of these supervisors (who are to review use of force

reports) are not themselves trained in up-to-date, uniform

tactics or use of force. If these line-level and mid-level

supervisors are not trained in use of force, themselves, then

they are not equipped to assess or counsel on their subordinates’

use of force.26 Despite the improvement in the revised Response

to Resistance reporting policy, this previously observed lack of

training among supervisors impedes effective implementation of

use of force reviews. 

Some of the lack of clarity regarding supervisory review

responsibilities for use of force that existed in the old policy

still permeate the revised Response to Resistance reporting

policy. For level one and level three use of force

investigations, the revised response to resistance reporting

policy requires that supervisors prepare and submit supplements

to response to resistance reports. Response to Resistance

Reporting Policy B101c.05(C)(4), B101c.07(B)(3)(b).27 For level

two reports, though, supervisors are required to prepare an

investigation packet, but not a supplement. Response to

Resistance Reporting Policy B101c.06(A). The revised policy’s


26

Similarly, we have been informed that the APD’s

internal affairs division trained all of the APD’s sergeants and

lieutenants to handle certain investigations of potential policy

violations, including possible excessive force, referred back to

the chain of command. If these line-level and mid-level

supervisors are not trained in use of force, themselves, then

they likewise are not equipped to assess or counsel on their

subordinates’ use of force. 

27


“Supplements” are additions to the primary employee’s

Response to Resistance Report. Supplements contain the accounts

of involved employees, assisting employees, or, for certain level

one investigations, supervisors. Response to Resistance

Reporting Policy B101c.01(C). The policy’s definition of

supplements omits supplements by supervisors for level two and

three investigations. Accordingly, the revised policy’s

definition is inconsistent with the supervisory reporting and

review requirements of the policy.


- 25 ­
descriptions of these supervisors’ review responsibilities do not

address the elements of qualitative analysis the supervisors must

perform in reviewing their subordinates’ uses of force. 

The revised policy does include a chain-of-command review

for level one and two uses of force that require the chain of

command to evaluate for “training, tactical, or equipment

issues.” Response to Resistance Reporting Policy B101c.04(D)(3).

This review, however, is of an already completed investigative

package and, therefore, occurs after the front-line supervisors

should have completed a qualitative assessment of the use of

force. We recommend that the APD revise its policy to require

that APD supervisors qualitatively review all uses of force, not

just some levels. The policy should specify that supervisors

should identify uses of force that appear excessive, avoidable,

and/or indicative of potentially criminal misconduct. Either on

the Response to Resistance form or a separate form, the APD

should require that supervisors record their substantive review

of use of force. The form should require supervisors to evaluate

each use of force used in an incident. Supervisors who review

use of force reports must reconcile multiple use of force reports

from multiple officers concerning the same event. The

supervisors should also check involved officers’ training records

to determine whether or not those officers are properly certified

for the force method used. After these qualitative assessments

by front-line supervisors, the review should proceed up the chain

of command, as envisioned in the revised policy.

We were informed that the internal affairs division does not

perform an audit on use of force reports to ensure that chain of

command review is occurring.28 The APD could utilize the

internal affairs division to ensure that the chain of command is

performing such reviews of uses of force. The revised Response

to Resistence reporting policy also requires internal affairs to

track force investigations for level one and level two

investigations in a database. Response to Resistance Reporting

Policy B101c.04(c). It is unclear, however, who has ultimate

responsibility for tracking all use of force reports or why the

APD’s policy does not require tracking of level three reports. 


28


We were informed also, however, that the APD previously

issued a general order that the APD’s internal affairs division

should receive all use of force reports, and that the order has

not been rescinded. Nonetheless, to ensure uniformity and

consistency, APD should ensure that practice follows suit with

current policy and any previous, contradictory orders be

rescinded. 


- 26 ­
The APD should revise its policy to provide for tracking of all

force reports and then utilize force report data for its EWS. 

2.	

Identifying Use of Force Trends


The APD’s prior use of force policy required that the

training academy enter use of force reports into a database and

review that database to prepare an annual analysis of use of

force.29 Use of Force General Policy B101.09. While there is

value in the APD’s training academy review, the prior policy’s

method of review circumvented the chain of command. Consistent

with many of the recommendations our experts made at the

conclusions of our on site visits, the revised Response to

Resistence reporting policy now appropriately places back in the

chain of command reviews of use of force. Response to Resistance

Reporting Policy B101c.04(D). 

Also consistent with many of the recommendations our experts

made at the conclusions of our on site visits, the APD has

adopted a new force review board policy.30 Force review Board

Policy B101d, issued June 2, 2008. We commend APD for this

advancement and recommend certain changes and clarifications to

further enhance the new force review board policy:

•	

The review board policy requires the commander of training

to serve as the chairperson of the board. Force Review

Board Policy B101d.01(C)(1). We recommend that in order to

place appropriate importance on the review board process and

give the board authority, that an assistant-chief level

command staff member chair the board. 


•	

The review board policy requires the board to consider

certain factors in the uses of force it reviews, but does


29

As stated, we were advised that the Training Academy no

longer enters the reports into the APD’s database. City of

Austin Response to DOJ First Request for Documents and

Information, Review of APD Use of Force Incidents, dated July 18,

2007.

30


APD currently employs a Critical Incident Review Board

for incidents involving death, serious injury, or having a high

potential for lethality to the public. Critical Incident review

Board General Policy A114, effective April 2, 2000, revised

January 31, 2003. As envisioned therein, the critical incident

review board should also continue to identify needs for training

adjustments. Id.


- 27 ­
not include among these the officer’s “decision-point

analysis,” which is a review of the reasonableness of each

decision prior to and throughout the officer’s use of force,

and a determination of whether or not a different decision

would have affected the ultimate use of force. Force Review

Board Policy B101d.03(C). For example, an officer’s initial

use of force to stop a subject may be appropriate (e.g., use

of chemical spray), but if a subject stops resisting, and

officers use force again (another burst of spray) that

continued use of force may be inappropriate. Decision point

analysis should also look at officers’ reactions to

subjects’ verbal comments that lead to uses of force, and at

officers’ decisions not to wait for backup resulting in the

need for use of force. Decision point analysis looks at

each aspect of the officers’ and the subjects’ action to

determine the reasonableness of officers’ use of force. 

Accordingly, we recommend that the APD revise its policy to

require the Board to consider the steps leading up to use of

force.

•	

III.

Like the Response to Resistance reporting policy, the review

board policy references anticipated use of the internal

affairs database. Force Review Board Policy B101d.03(D)(3).

We recommend that the APD revise its policy to make clear

the requirement to track all uses of force and the need to

record all uses of force in the APD’s EWS. 

COMPLAINTS OF OFFICER MISCONDUCT


The APD should implement a formal, structured, and

consistent system for receiving and handling complaints of

officer misconduct.

A.	

Complaint Procedure


An open, fair, and impartial process of receiving and

investigating citizen complaints serves several important

purposes. An appropriate citizen complaint procedure ensures

officer accountability and supervision, deters misconduct, and

helps maintain good community relations by increasing public

confidence and respect for the APD. Improving the current

procedure for handling citizen complaints at the APD would

maximize these goals.


- 28 ­
1.

Complaint Process Information


An effective complaint process should allow unfettered

access for citizens (or others) to make complaints, and should

reinforce the public trust in the integrity of the process. We

recommend that the APD better disseminate information to the

public about its complaint process, in order to garner more

confidence in the process. We recommend that each district

police station and APD headquarters have information about the

complaint process prominently posted in a visible place in the

public reception area. The APD should also make complaint forms

available at the City Hall and other public offices. Complaint

process information and forms should be posted in multiple

languages. The APD should also consider making information about

the complaint process available on-line, in multiple languages.

Finally, we recommend that the APD institute periodic customer

satisfaction surveys, and include feedback questions regarding

the public’s perception of the complaint process, so that APD has

an avenue for addressing any actual or presumed deficiencies. 

2.

Complaint Intake 


An open complaint process contemplates that complaints will

not be discouraged. The APD should change aspects of its citizen

complaint process that have the potential to discourage the

filing of complaints, and to impair effective tracking of

complaints. 

Under current APD policy, all APD employees (sworn and

unsworn) are responsible for accepting complaints against

department employees regarding allegations of misconduct or

unlawful activity. Internal Affairs General Policy A109.09(A),

effective April 2, 2000, reissued May 23, 2006. According to

officers with whom we spoke, however, this process is not being

followed. We learned that communications personnel, i.e., 911

operators, on many occasions may have discouraged complainants

from filing complaints, failed to contact supervisors regarding

complaints, and failed to document the calls and the complaints.

Such responses to complainants who call 911 may deter would-be

complainants who are unable to, or otherwise unwilling to, come

to a police station to file a complaint. Further, we were

advised that historically some citizens who desired to file a

complaint with the APD were directed to file their complaint in

person with the Office of the Police Monitor (“OPM”). In these

instances, citizens were obliged to travel to the OPM (which was

not easily accessible) in order to file complaints. This

practice, too, deters the filing of complaints. 


- 29 ­
The APD should ensure that its practice on acceptance of

complaints meets its policy that all police employees are

responsible for receiving and documenting public complaints.

Additionally, the current policy only requires an employee to

contact a supervisor if the employee receives a complaint about

him/herself. Internal Affairs General Policy A109.09(A)(1). We

recommend that APD adopt a policy that requires all personnel,

who receive citizen complaints, to immediately contact a

supervisor. If a supervisor is unavailable, the policy should

then direct personnel to document the complaint, which includes

gathering the complainant’s name, nature of complaint, date of

complaint, name of the officer involved in the incident, and

collecting transient evidence. The APD should train all its

personnel, particularly communications staff members, on their

responsibility to accept complaints and reporting pertinent

complaint information to supervisors. Further, we recommend that

the APD consider placing drop boxes in police stations or City

Hall so that complaintants can easily submit their complaints.

The APD would then contact the attributable authors of deposited

complaints to initiate the investigation of those complaints. By

instituting this new policy, the APD should ensure that all

complaints are referred to a supervisor and all complaints are

documented.

As soon as the APD receives a complaint, the complaint

information should be recorded in Internal Affair’s (“IA”)

centralized database of all complaints and the APD’s EWS. Even

complaints for which complainants refused to submit written forms

or which are submitted anonymously should be listed in this

database. The date on which a complaint is initiated should be

recorded, and processed for complete investigation.

3.

Complaint Classification


According to current APD policy, the IA Division has the

primary responsibility for classifying, evaluating, and

investigating complaints. Internal Affairs General Policy

A109.04. Complaints regarding possible officer misconduct are

either formally or informally investigated. We understand that

IA classifies complaints as formal if the complainant files a

formal complaint affidavit, i.e., Complaint Contact Form.

Conversely, IA classifies complaints as informal if the

complainant does not file a formal complaint affidavit,

regardless of the seriousness of the allegation. Reportedly, IA

conducts an initial evaluation of all formal complaints before it

determines the classification of investigation.


- 30 ­
The APD’s current system for complaint classification is

needlessly complex and fraught with opportunities to apply

subjective judgment. The classification system permits far too

much “gray area” in which some serious complaints may be

minimized or disposed informally without adequate investigation

and resolution. The APD has seven different categories and

subcategories of classifying complaints. Specifically, the

categories include Class A, B-internal, B-external, C, D, I, and

Q complaints.31 It is unclear what legitimate purpose is served

by this extensive multiple categorization scheme. 

APD’s current process of complaint classification raises

concerns because the classification categories are broad, subject

to different interpretations, lack uniformity, and lack

consistency. The current IA policy lists categories of

complaints that should be classified in Class A, but the policy

fails to define these categories. Also, under Class A

complaints, the policy does not clearly define what constitutes

“criminal conduct,” “serious violations of policy, rule or

regulation,” or “conduct that challenges the integrity, good

order, or discipline of the Department.” As a result, IA

detectives are left making subjective determinations about the

classification of complaints. This raises concerns not only

about bias, but also about the consistency and fairness in the

classification process. 

Similarly, the classification and disposition of Class B

complaints raise concerns because the current policy narrowly

lists examples of “less serious violations of Department Policy.”

We recommend that the APD expand its current list of less serious

violations into an exhaustive list of examples that would be

consistently applied and that would reduce the probability of

subjective judgment. Further, we have concerns with the manner


31

Class A complaints (allegations of a serious nature);

Class B complaints (allegations of less serious nature); Class C

complaints (allegations that do not rise to a policy violation,

or complaints that can “best be handled by other departmental

process”); Class D complaints (allegations that are not policy

violations, allegations that recordings show to be false, and

complaints about probable cause); Class I (informal information

only complaints); and Class Q (catch-all category). Internal

Affairs General Policy A109.04. Class B complaints are further

divided into two subcategories: internal and external. Internal

Class B complaints are generated by complaints filed by APD

personnel. External Class B complaints are generated by

complaints filed from outside the APD. 


- 31 ­
in which investigations are conducted in this complaint category.

Specifically, this category is inherently complicated because it

allows for two different levels of review within the same

complaint class (i.e., external complaints investigated by IA and

internal complaints investigated by chain of command). This

category is further complicated by allowing the IA commander to

remove Class B complaints to Class A where allegations of more

serious or complex nature surfaces. The complex and complicated

nature of Class B complaints lends itself to confusion,

inconsistency, and unfairness in the disposition of less serious

violations of Department policy.

Even more concerning were the classification and disposition

of Class C complaints. In our discussions with the OPM, we

learned that the OPM and the APD frequently disagreed on

classification and disposition of this category of complaints.

It was reported that many of the complaints lost in this “gray

area” were Class C complaints. The subjective manner in which

these complaints were classified raised concerns not only about

bias, but also about fairness and consistency in the

classification process. For example, this category contained

complaints that command staff determined should be handled

through other department process (i.e., grievance, performance

improvement plan (PIP), training, and employee’s chain of

command). As a result, these complaints typically were minimized

and never investigated before they were administratively closed.

According to our expert consultants, this category was an “escape

valve” used to minimize officers’ misconduct.

Similarly, categorization of complaints as I or Q complaints

served as “escape valves” that can minimize officers’ misconduct.

The APD’s policy requires IA to record informal complaints on its

tracking system. Internal Affairs General Policy A109.04(F).

But, the policy actually directs that informal complaints can

only be recorded “as ‘Information (sic)’ only,” and cannot be

used for disciplinary purposes. Id. IA personnel identified

category “Q” as a catch-all in the IA tracking system. The IA

policy, however, also fails to address how this category is used.

This implies that this complaint category receives no formal

review. APD personnel reported that the IA did not fully

investigate category I and Q complaints. 

We recommend that the APD investigate to the extent possible

all complaints against officers, regardless of the source of the

complaint, and that the APD record all findings in an EWS. We

recommend that the APD create only two distinct categories of

complaints: those to be fully investigated by IA, and those to

be investigated and resolved through the chain of command. The


- 32 ­
APD should apply consistent, objective criteria in the assignment

of complaints to IA or the chain of command. The following are

the objective criteria that we recommend the APD consider using

in categorizing complaints for IA investigations: (1) all

allegations which, if true, involve serious policy violations,

including, but not limited to, all violations involving use of

force; (2) all allegations involving use of deadly force; (3) all

allegations involving failure to provide medical treatment;

(4) all allegations involving potentially criminal conduct;

(5) all allegations involving purported unlawful police action,

e.g., unlawful arrest; and (6) evidence of discriminatory

policing. Complaints that do not meet the objective criteria for

investigation by IA would belong to the second category: those

to be investigated and resolved through the chain of command. 

The APD may develop other objective criteria for the

assignment of complaints to IA. Whatever criteria the APD

ultimately uses, the criteria should be promulgated in policy

and, therefore, known to all personnel and complainants. The use

of such criteria is not intended to eliminate the exercise of

discretion in the assignment of complaints. Rather, the use of

identifiable criteria should make the assignment of complaints

more consistent and objective. Objective criteria should also

instill in complainants a sense of confidence in the complaint

system and among personnel a sense of fairness. Objective

criteria would also permit quality control in later audits of the

assignment system by IA supervisors and the OPM, as discussed

below in Section V. 

Once a complaint is classified, we recommend that the APD

contact the complainant in writing to provide the complainant

with the name and contact information of the IA investigator or

chain of command supervisor who is assigned the complaint

investigation. This notice should include the name of the

complainant, the unique IA number assigned to the complaint, the

date of the incident, the name of the officers involved, and the

summary of the allegation. In lengthy investigations, the APD

should update the complainants on the status of the

investigations. At the conclusion of the investigations, the APD

should notify all relevant parties, including the complainants,

of the final dispositions. If a complainant’s allegation is

sustained, the letter should also indicate whether remedial

action will be or has been taken.

4.

Chain of Command Investigations


We recommend that subject officers’ chains of command

investigate all complaints not investigated by IA. As discussed,


- 33 ­
IA currently refers to a subject officer’s chain of command all

Class B internal, and Class C and D complaints. These are

administratively closed and do not receive the benefit of an

investigation. Because these complaints are administratively

closed, the APD fails to produce findings that could be useful

data for the APD’s EWS. Not every complaint will merit a

complete IA investigation, but every complaint deserves the level

of investigation merited by the circumstances of the complaint.

If it is readily apparent from the chain of command’s review of

the assigned complaint that the complaint is without foundation,

then the complaint should be deemed as unfounded. If, during the

course of any chain of command investigation, the chain of

command supervisor determines a complaint meets the objective

criteria for internal affairs investigation, the case should be

referred back to IA for investigation. The chain of command

should reach a finding after investigation of all complaints it

receives. All findings of potential policy violations should

then be reviewed by second-level supervisors before findings are

submitted to the IA Commander for final approval. 

To ensure that the chain of command staff is equipped to

investigate and resolve complaints (particularly citizen

complaints) referred to them, we recommend that the APD provide

appropriate training, with an emphasis on interpersonal skills.

Further, we recommend that APD provide training on appropriate

burdens of proof, i.e., preponderance of the evidence, to

supervisors who are responsible for investigating and deciding

the outcome of a complaint, and the factors to consider when

evaluating complaint or witness credibility (to ensure that their

recommendations regarding dispositions are unbiased, uniform, and

legally appropriate). We also suggest that APD implement a

policy regarding complaint disposition that requires all

complaints to be recorded in an EWS. 

Finally, we recommend that the APD implement a uniform

system for recording all complaints resolved through the chain of

command. During our site visit, we interviewed several sergeants

who used different methods of recording resolved informal

complaints. Several supervisors wrote memoranda that remained in

officers’ files while other supervisors were unable to identify

any documentation of informally resolved complaints. We

recommend that the APD uniformly require that officers’ personnel

files include a record of all complaints resolved through the

officers’ chain of command. We also recommend that APD implement

oversight, e.g., an audit or quality assurance mechanism, to

review a sampling of chain of command complaints investigations

to ensure that complaints are properly classified and

appropriately resolved. 


- 34 ­
5.

Outside Referral of Potentially Criminal

Allegations


The APD and the Travis County District Attorney’s (“DA”)

should work cooperatively when they investigate APD employees for

potentially criminal conduct. When an incident or complaint of

officer misconduct indicates the possibility of criminal conduct

by the officer, the APD should refer the matter to the DA’s

office and support, as needed, a criminal investigation. An

ongoing criminal investigation, however, should not foreclose the

APD’s ability to conduct a parallel administrative investigation.

The APD administrative investigation should proceed on a

concurrent track to the extent it is able without interfering

with the criminal investigation.

The APD’s current policies and procedure allow for the

completion of a criminal investigation before the commencement of

an administrative investigation or the imposition of disciplinary

action. Internal Affairs General Policy A109.07(B). Although

the Chief has the authority to supercede this protocol, we

learned during our site visit that the APD generally defers to

prosecutors’ requests to delay administrative investigations

until final disposition of criminal investigations. The

apparently unintended consequence of delaying the APD’s IA

investigations has been that the APD may be foreclosed from

disciplining officers that the APD eventually finds committed

policy violations. Under local government code, the Chief has

180-days from the occurrence of an incident to take disciplinary

action against an officer. Tex. Local Govt. Code

§ 143.1017(h).32 For complaints involving conduct that is also

potentially criminal in nature, that 180-deadline runs from the

reporting of the incident. We learned during our tour that there

were situations in which the final dispositions of cases were not

completed by the 180-day deadline. As a result, the Chief was

unable to impose discipline and officer conduct was not reported

in the Guidance Advisory Program (“GAP”) system.33 The OPM


32


This 180-day deadline can be extended; however, it

appears that such an extension is rarely used. If the Chief

believes that he may terminate the subject officer, the Chief may

then provide notice that the deadline is extended beyond the 180­
day deadline. Internal Affairs General Policy A109.07(C). 

33


The GAP system is a data analysis program developed by

the APD. The system was intended to operate as an early warning

system to identify officers who may be at risk for behavior

inconsistent with policy. The self-developed program by the APD


- 35 ­
reported to us that in a sampling of 146 IA investigations, 24.3%

were not completed by the expiration of the 180-day deadline.

This raises concerns because the 180-day deadline should not

negate officer discipline or reporting to the GAP system. The

APD should apply the recommended policy revisions for parallel

investigations to ensure that investigations are conducted in a

complete, thorough, and timely manner before the 180-day

deadline.

Additionally, we recommend that APD modify its policies and

procedure to clarify the rights of officers who may be the

subject of a misconduct investigation. During an administrative

investigation, officers suspected of potentially criminal

misconduct should be informed of their rights under Miranda v.

State of Arizona, 384. U.S. 436 (1966), before questioning,

including their rights against self-incrimination and to have

counsel present during questioning. Likewise, the APD policy

should provide clear guidance to investigators regarding

procedures for when and how to compel statements from officers

for the purposes of an administrative investigation in conformity

with Garrity v. New Jersey, 385 U.S. 493 (1967). 

IV.

INTERNAL AFFAIRS


The internal affairs component of a law enforcement agency

should seek to ensure that the integrity of the department is

maintained through a system of internal discipline (or corrective

action) where fairness and justice are attained by objective and

impartial investigations. The APD should acknowledge and

continue to support the core mission of IA, which is to monitor

the behavior of police officers for misconduct, while maintaining

its objectivity and autonomy. 

A.

Staffing and Training


We understand that APD has no policy defining criteria for

its selection of IA officers. Training and staffing are critical

to the success of IA and the APD. We recommend that the APD

develop articulable selection criteria for all IA positions.

Such criteria should include an evaluation of the applicant’s

performance, including complaint and disciplinary histories to

ensure that only officers with unquestioned integrity and ethics

are selected to serve as IA investigators and supervisors. The

APD should also take measures to assign officers with extensive


was not fully functional during our review.
System,” below in Section VI. 


See “Early Warning


- 36 ­
investigative skills to IA. We also recommend that APD remove

investigators whose conduct while serving as IA officers would

have disqualified them from selection for IA.

We also understand that APD has no formal IA policies for

training, witness interviewing, nor advance level supervision

training. We recommend that APD implement policies, procedures,

and training for IA personnel, specifically to address the

above-mentioned areas. According to APD personnel we

interviewed, the only training in IA that they ever received was

“on the job.” Moreover, we learned that supervisors and managers

have never received any advanced level training regarding

supervising and managing an internal affairs unit. To ensure

consistency and investigative integrity, we recommend that all

APD officers responsible for investigating internal affairs

complaints receive specialized training in internal affairs

investigations, interviewing and interrogation skills, ethics,

and APD administrative and disciplinary procedure. We also

recommend that APD provide its IA supervisors with training in

internal affairs management from a certified police internal

affairs training program. We suggest that the APD provide

continuing law enforcement training to both IA detectives and

supervisors, concentrating on IA-specific topics. Additionally,

IA should provide in-service training to first-line supervisors

regarding their roles in the complaint process and IA

investigations. As discussed later in this letter, like other

supervisors, IA supervisors should receive training before

assuming supervisory responsibilities.

B.

Investigative Process


Any revision to APD’s IA policy should clearly define the

nature and scope of IA investigations. In the course of our

investigation, we heard complaints that the current complaint

procedure can be erratic and irregular. For example, OPM

personnel informed us that when additional policy violations are

discovered during complaint investigations, IA will charge some

APD personnel with those violations, but will not charge others

due to an interest in not “stacking” charges against officers.

Also, citizens informed us that IA did not always investigate

their complaints, or that some complainants were told to return

to the IA office numerous times before IA would accept a

complaint. Moreover, whereas the current IA policy explicitly

sets forth the categorizations of citizen complaints, as

discussed above, there is no such detail on the conduct of IA

investigations. Moreover, the current policy for IA

investigative process sets forth numerous protections for the

subject officers, but says very little about what is actually to


- 37 ­
be done to investigate. Internal Affairs General Policy A109.10.

The lack of formal, structured, and consistent policies poses

difficulties to the complainants as well as the involved

officers. Both complainants and involved officers are entitled

to know in advance what their rights and responsibilities are in

the course of an IA investigation. 

In defining the scope and nature of IA investigations, the

APD policy should provide that any investigation include an

interview with the complainant and all relevant witnesses,

citizens, or police. The policy should require that the APD

obtain and analyze all available forensic (such as bullets)

evidence. The policy should require that supervisors or IA

personnel on the scene of an incident take pictures, collect

evidence, and conduct interviews. The policy should require all

subject and witness officers to produce all statements, reports,

and notes completed in the course of duty that are related to the

investigation. IA investigators should keep all of these items

in the investigative file, along with the IA investigator’s

notes. We recommend that the policy require audio or video

recording of all interviews for IA investigations. 

We also recommend that the investigation of complaints be

governed by defined time lines set forth in a modified policy.

Each step of the investigation should have a policy-specific

deadline. For example, we recommend that the APD’s policy

require that, absent exigent circumstances, the IA investigation

be completed in 90 days. Further, the time lines should be

subject to adjustment only when approved in writing by IA

supervisory personnel. Each investigative file should have a

chronology log attached to it on which to list daily

investigative activity or notes associated with the

investigation. The log should also list the location of

documents and evidence associated with the investigation. 

As discussed with respect to the classification system, we

recommend that IA advise complainants of the status of the

investigation of their complaints. If a complainant requests to

withdraw his or her complaint, we recommend that IA continue its

investigation to determine whether or not a violation of policy

occurred. It is inappropriate for a complainant to unilaterally

terminate a complaint without an investigation. Ultimately, if

IA finds no policy violation occurred, the record of the

investigation should include a written acknowledgment executed by

the complainant agreeing to the resolution of the complaint.

This would evidence that the APD has not pressured complainants

for lesser forms of resolution or withdrawal of their complaints.

We recommend that, at the conclusion of every investigation, IA


- 38 ­
notify all relevant parties, including the complainant, of the

final disposition of the complaint. If the complainant’s

allegation is sustained, the letter should also indicate whether

the APD will take remedial action. 

If, during the course of an IA investigation, collateral

misconduct is discovered, IA should institute investigation of

such misconduct. The IA policy should be clear that if a policy

violation is uncovered, IA will identify that violation and

investigate or refer it as appropriate. Likewise, the policy

should state that any criminal conduct uncovered will also lead

to a referral for criminal investigation. 

If a complaint is ultimately sustained, the APD should go

back to the documentation regarding the incident from which the

complaint was generated to assess supervisory and management

accountability. The APD should review these documents to ensure

proper supervisory review of the incident and reporting of any

identifiable policy violations for IA investigation. If the

subject officer’s supervisor failed to report a known policy

violation, for example, he or she should then be held responsible

for failure to report. 

C.

Proactive Investigations


We learned during our tour that the APD self-describes its

IA actions as reactive, rather than proactive. Solely reactive

IA investigations do not comport with best police practices.

Proactive IA investigation should include both integrity tests

and record reviews to identify potential IA issues. 

During our tour, we also learned that IA was not randomly

reviewing use of force reports to ensure that supervisors were

making a qualitative review of their subordinates use of force

reports. We recommend that the APD’s IA act proactively in

reviewing records to identify potential misconduct issues. We

also recommend that the APD review use of force reports on a

quarterly basis to identify whether a basis exists to investigate

any reported uses of force for potential violations of policy or

for referral, if necessary, for criminal investigation.

Additionally, many other similarly sized police departments

routinely have their IA unit perform an annual check of state

driving records for violations or suspended licenses. IA could

also perform annual checks of local court dockets for civil suits

that may have bearing on officers’ behavior on duty. The APD

also should consider having a formalized process to solicit from

the DA and City Attorney’s office information on APD officers’

performance in judicial proceedings, e.g., showing up for court,


- 39 ­
successful motions to suppress based on officers’ conduct, or

perceived truthfulness of officers’ court or deposition

testimony. 

The APD should consider developing a system to monitor,

evaluate, and conduct affirmative investigations using targeted

integrity tests. The integrity tests should be targeted to

determine whether or not evidence of criminal misconduct that

violate policy exists when there is an accusation or reason to

believe that the subject officer may violate APD law and policy.

Any such system should be memorialized in a policy to provide

clear guidance regarding the proper and appropriate use of

integrity tests. 

V.

OFFICE OF THE POLICE MONITOR/CITIZEN REVIEW PANEL


The OPM is a city department independent from the APD, but

it works closely with the APD to monitor, in a limited fashion,

the conduct of IA. Though, as described, the IA policy provides

for the intake of complaints through all APD personnel, the OPM

routinely handles the intake of citizen complaints. The OPM

office has become the primary, but not exclusive, location for

receipt of complaints. We learned that citizens typically must

go to the OPM’s office during business hours in order to file

complaints. We further learned that citizens encountered

difficulty traveling to OPM’s remote office. In order to

facilitate citizens’ desired contact with legitimate OPM, we

recommend that the OPM conduct more community outreach by

appearing at community forums and keep extended hours, even if on

limited days, at accessible community locations so that the

process for accepting complaints can be made readily

accessible.34 We also recommend that the OPM make its website

bilingual for the convenience and use of members of the community

who cannot read English. 

OPM typically conducts initial complainant interviews, then

forwards all complaints to IA for initial evaluation and

complaint classification. Depending upon IA’s classification of

the complaint, either IA or the chain of command should then

investigate the complaint. The OPM does not conduct its own


34


We understand that the APD’s contract with the APA

forbids the OPM from soliciting citizen complaints. Provided

that there is no change in this agreement, establishing community

locations for the collection of complaints should not rise to the

level solicitation of complaints by the OPM. 


- 40 ­
investigations of allegations of misconduct. Instead, the OPM

reviews the completed investigations conducted by IA. 

In order for the OPM to assist citizens in the complaint

process and for OPM to have legitimate oversight of the complaint

process, the OPM needs access to information from the APD. Our

interviews with OPM personnel revealed that the OPM did not have

access to incident reports or police reports during the initial

stage of the complaint process, which limited the OPM’s ability

to assist citizens in the complaint process. Similarly, the OPM

reported to us that IA frequently does not respond to the OPM’s

requests for information. The OPM has even institutionalized the

expectation that IA will not respond to the OPM: the OPM’s

intake process flowchart includes two separate steps in the

process for IA’s failure to respond to the OPM’s correspondence

on informal complaints. 

To provide oversight over the APD’s complaint process and to

aid in ensuring that complaints are handled in an objective and

thorough manner, we recommend that APD allow the OPM access to

police reports and incident reports at the inception of all

investigations. To ensure integrity of the IA process as we have

suggested herein, we recommend that the APD implement policies

and procedures for the OPM to routinely review all aspects of the

APD complaint process, including assignment of complaint,

classification of complaints, and completeness and sufficiency of

investigations. The APD can then use this audit process to

improve accountability, address issues regarding classification,

and evaluate the performance of its officers and investigators.

We also recommend that the OPM be used to review IA

investigations and track records from an outside perspective for

the benefit of the community. This would aid in ensuring that

citizen complaints are handled in an objective and thorough

manner, and provide an independent, informed report to the

community. 

Finally, the Police Monitor also chairs the Citizen Review

Panel (“CRP”). The CRP is a group of citizens assembled to

review police complaint incidents referred to them after the IA

process concludes. The CRP also makes recommendations to IA. 

Either a complainant may refer his or her complaint to the CRP

within 30 days of the notice of the outcome of the IA

investigation, or the OPM may refer complaints to the CRP within

five days if complaints involve certain types of allegations,

e.g., critical incidents or bias-based misconduct. Internal

Affairs General Policy A109.14. The policy contains no

requirement that the APD respond to any recommendations by the

CRP. The OPM has informed us that IA responded to only 15 of 24


- 41 ­
recommendations from the CRP or OPM, i.e., a 37.5% failure to

respond rate. We recommend that the APD’s policies should

clearly set forth the expectations for the use of the CRP and the

response the APD is required to undertake. Specifically, we

recommend that the IA commander report to the Chief on all

responses to CRP recommendations. A written copy of this

response should be furnished to the CRP through the OPM.

VI.

DISCIPLINE


We understand that the APD is currently considering the

implementation of a discipline matrix.35 The APD informed us

that stake holders will be involved in the process of developing

the matrix. The OPM was not familiar with the planned

implementation of the matrix. We recommend that the APD complete

the development of a discipline matrix. Community and OPM

support are important to this process but should not delay

implementation of a matrix. Such a matrix should detail the

levels of discipline available -- e.g., retraining, verbal

counseling, letters of counseling, forfeiture of leave time,

suspension, demotion, and termination -- to address violations of

policy. The matrix should specify for each type of policy

violation what level of discipline shall be utilized for

sustained violations of policy in the first instance, second

instance, etc., and what factors may mitigate or aggravate levels

of discipline to be imposed. It is critical that the APD have a

transparent and fair disciplinary system and that officers are

clearly informed of potential consequences of various actions. 

VII. SUPERVISORY OVERSIGHT

The APD should ensure that clear chain of command

supervision and direction is provided to APD personnel. 

A.

Direct Supervision of Line Officers


We have frequently been informed by APD personnel of their

perception that with the current management system, supervisors

abrogated to IA the line supervisors’ responsibility to supervise

officers. Many at both the supervisory and the line officer

level identified “management by IA” as a concern. APD

supervisors should be empowered to take ownership of their

35


A discipline matrix is a formal schedule for

disciplinary actions, specifying both the presumptive action to

be taken for each type of misconduct and any adjustment to be

made based on an officer’s previous disciplinary record. 


- 42 ­
supervisory role in order to ensure accountability for

supervision up the chain of command. 

In addition to the previously discussed recommendations that

APD supervisors go on site and review all use of force incidents

(above unresisted handcuffing), we recommend that the APD

implement policies and procedures for APD supervisors to

routinely review all aspects of APD officer conduct. APD

supervisors should review the following for officers under his or

her command: (1) all uses of force, as set forth above;

(2) probable cause for arrests and the appropriateness of charges

filed; (3) reasonable suspicion for stops and searches that do

not result in an arrest; and (4) a minimum sample of mobile video

recording devices (“MVR”) recordings each month. APD policy

should require supervisors to review and approve all arrest

reports and search-and-seizure reports, and to record their

approval on the arrest or incident reports by handwritten or

electronic signature. We also have been informed that sergeants

spend much of their time inside. Even with the daunting tasks of

review of line officer’s reports, sergeants need to go to the

field to: (1) supervise first hand; and (2) investigate uses of

force on their own. Accordingly, front-line supervisors must

take ownership of their supervisory role and this ownership

should likewise flow up the chain of command. 

We further recommend that senior supervisors meet annually

with every APD officer to discuss positive aspects of his or her

police work, his or her complaint history, if any, and to discuss

any problems or concerns officers may have concerning the

department. 

B.

Supervision of Specialized Units


During our investigation, we learned that the APD has

several specialized units, including Street Response Units

(“SRUs”). The APD’s supervision of specialized units is largely

outside of the normal chain of command for patrol units. We also

discussed the APD’s SRUs with both APD personnel and citizens.

The APD provided us with the order under which SRUs operates.

Street Response Standard Operating Procedure (“SOP”), June

13, 2006. The SOP gives broad latitude regarding the duties of

the SRUs, without identifying specific tasks. APD personnel

informed us that the SRUs have been used for crime sweep efforts,

serving warrants, and other high risk police procedures. It is

not surprising, then, the APD officers reported to us that SRUs

may encounter situations calling for the use of force more

frequently than conventional patrol assignments. Given the SRUs’


- 43 ­
high risk tasks and potential for use of force, the APD should be

keenly aware of the supervision of SRUs. 

Supervision of SRUs is not clear, however. The SOP directs

that SRUs are to “support Area Commands,” but fails to define

what specific tasks the SRUs are authorized to do. The SOP does

not set forth who -- SRUs or the area commands -- determines what

support SRUs should give. We understand that SRU sergeants,

among other things, are to approve and coordinate search and

arrest warrants, and brief support lieutenants on the SRUs’

activities. The SOP does not specify any duties for support

lieutenants. The supervision of SRUs is, therefore, truncated at

the sergeant level. The sergeants set the tone for SRUs rather

than direction coming from above on the chain of command. 

The SRUs’ sergeants also select who may become a member of

the SRUs. The SOP does not set forth objective selection

criteria for membership on SRUs, e.g., acceptable disciplinary

history. The SOP requires only “complaint history acceptable to

the area command staff.” The specialized units should not select

its own members. Nor should any single member stay in the same

specialized units for too great a period of time. We recommend

that the APD command develop objective selection criteria for

membership in SRUs or other specialized units, including a

requirement that applicants not have any sustained findings,

minimally on use of excessive force, within the preceding 24

months. Similarly, substantiated findings should subject

officers already in specialized units to exclusion from those

units for 24 months.

We also recommend the APD develop a clear chain of command

for SRUs. At the time of our on site visits, SRUs operated

within each of the APD’s geographic area commands. We have been

informed, however, that the APD plans to consolidate the command

of SRUs from each area to a central command. We are also

informed that SRUs will remain stationed in the geographic

regions they now serve but will answer to a centralized chain of

command. This plan does not yet appear to address the potential

for disagreement between area commanders and SRUs that will share

the same command area but not the same chain of command. 

C.

Preparation for Supervisory Roles


The APD appears to be undergoing a period of transition.

Much of the APD’s command staff is largely new to their current

roles. Through interviews with command staff, we learned that it

appears to be routine practice for high level supervisors to

rotate frequently one to one and one half years of on average to


- 44 ­
different commands. These positions are critical and having

continuity is important. We noted that there were no formal

policies governing senior command training prior to reassignment

to new commands, including IA. Most supervisors reported having

received on-the-job training. Some supervisors had received

formalized supervisory training, and some had not. Formalized

supervisory training for all supervisors would enhance effective

management and communications. We recommend that new commanders,

at the time of promotion, receive training on the management of

the division before assuming leadership of the division. Command

staff should be permitted the opportunity to attend appropriate

supervisory training from outside organizations, when needed.

Shifts between command assignments should include a transition

plan between the outgoing and incoming commanders. We also

recommend that the APD establish a more formal process for the

selection of command staff. This should include articulable

criteria for promotion and assignment. 

Like command staff, mid-level managers would benefit from

preparation for leadership roles. We have been informed that the

APD has considered a plan to mentor its sergeants. We recommend

that the APD bring such a plan to fruition. Similarly, support

lieutenants could be set up in leadership roles to prepare for

promotion. 

VIII.

EARLY WARNING SYSTEM36


APD command staff should examine and review officer conduct

on a regular basis as a proactive measure to minimize and detect

misconduct, and to identify training and policy issues.

We understand the APD has been developing its own EWS. The

APD’s EWS is known as the Guidance Advisory Program (“GAP”)

system. The GAP is an formal data collection and analysis system

designed to monitor certain officer conduct. The GAP focuses on

six performance indicators: internal affairs complaints; number

36


An EWS is a data-based police management tool

designated to identify potentially problematic behavior and allow

early intervention to correct misconduct and assist in

identifying deficiencies in supervision, management, and

policies. Police departments typically use EWS data regularly

and affirmatively to promote best professional police practices,

accountability and proactive management; to manage the risk of

police misconduct and potential liability; to evaluate and audit

the performance of officers and units; and to identify, manage,

and control at-risk officers, conduct, and situations.


- 45 ­
of use of force reports compared to number of arrests; officer as

victim reports; sick leave issues; collisions; and pursuits.

Through our conversations with APD Command Staff and officers, we

learned that the APD recognizes that the GAP needs improvement.

We also are aware that the APD is currently attempting to

redesign, adjust, and improve the GAP. As currently constructed,

the GAP does not adequately identify problematic officer

behavior. Moreover, the APD inadequately uses the GAP to detect

problematic trends in officer behavior. The APD is therefore

unable to effectively use the GAP to aid in intervention and

correction of officers as needed.

The GAP is divided into two main components: management

reports and predictive modeling alerts. The management reports

component gathers information from several APD or City databases,

including the City’s human resources data system, IA, computer

aided dispatch records, use of force reports, and pursuit

reports. The GAP uses an automated process to identify data

points, which are then analyzed and placed in a management chart.

The management chart serves as a graphical display of each

officer’s measure of the six main criteria categories and their

work units. The predictive-modeling-alerts component analyzes

data to identify current officers whose data show similar work

patterns to officers who have either been disciplined or

terminated. According to the predictive modeling alerts,

officers who are identified in need of early intervention are

supposed to be contacted by the officer’s chain of command. 

We learned that neither component of the GAP functions as

the APD anticipated. The components neither set precise

thresholds for identifying officer conduct nor ensure effective

officer management review. We also learned that there was no

specific threshold that the APD was using that would trigger a

review of an officer’s conduct. The APD informed us that the

current system accumulated scores of confusing data, which

limited supervisory review. Last, we learned that the system was

initially created as a computer-based information system, but now

APD staff is manually gathering information for review, which

lends itself to likely human error in assessment. 

Based on information shared with us, the current GAP did not

serve as an effective risk management tool for the APD.

Supervisors informed us that most had not used the GAP to

identify potential risk management issues with officers under

their command. Therefore, supervisors did not routinely use GAP

as a management tool. The APD informed us that historically the

GAP system had returned the names of only three officers, one of

whom had already been terminated. Even the APD’s command


- 46 ­
questioned the accuracy of this number identified in its GAP

system. Accordingly, the GAP was ineffective as a predictive

modeling tool. 

We recommend that the APD implement policies and procedures

to collect data on individual officers for the purpose of

maintaining, integrating, and retrieving information necessary

for effective supervision and management of APD personnel. The

GAP should contain information on all investigations and

complaints, including non-sustained complaints and complaints

prior to final disposition, discipline and other supervisory

corrective measures, uses of force, arrests and charges, searches

and seizures, service calls, training, awards and commendations,

sick leave, civil lawsuits, and other items relevant to an

officer’s conduct. The effective gathering of data will require

the support of other City departments. The City law office

should report to the APD when an officer is named in a civil

complaint relating to policing work or risk factors. Similarly,

the DA’s office should report to the APD on any matters relating

to an officer’s integrity or credibility. 

To use the GAP effectively as a management tool, the APD

should then use the data gathered for the GAP regularly and

proactively. APD supervisors should use the GAP to: (1) promote

best professional police practices; (2) improve accountability

and management; (3) manage the risk of police misconduct and

potential liability; (4) evaluate and audit the performance of

all levels of the APD, its members, and its units on an ongoing

basis; and (5) evaluate and assess the effectiveness of training

and policy. We recommend that the APD require supervisors,

including command staff, to review this data for every officer

they supervise on a regular, predetermined basis, such as during

reviews. When supervisors review their subordinates’ GAP data,

we recommend that the APD utilize comparisons to peers.

Supervisors should compare their subordinates’ data concerning

complaints, use of force reports, and other pertinent information

about a particular officer with the same categories of

information from other officers on the same patrol team or shift.

Similarly, command staff should review the GAP data for the units

they command and compare these data with peer units. In

addition, the policy should provide explicit guidance to

supervisory officers reviewing reports to ensure that patterns of

possible misconduct are identified, analyzed, and addressed

properly by command staff. The aim of this process is to give

supervisors valuable information that, if received early, could

identify potential problem officers before misconduct actually

develops. 


- 47 ­
To use the GAP effectively as a predictive model tool, the

GAP must have defined triggers for management intervention. The

policy implementing these recommendations should also establish

guidelines regarding specific events that will trigger an

additional supervisory review, such as a specific number of uses

of force or citizen complaints within a discrete period. Once an

officer has been selected for this additional review, a report

should be prepared for his or her supervisor that details all use

of force reports, formal and informal complaints, calls for

service, sick leave, counseling reports, civil lawsuits, and

commendations pertaining to the officer over an appropriate time

of review. The officer’s immediate supervisor and command staff

should then meet to discuss the report and determine if any

corrective action is warranted. The supervisor’s and command

staff’s recommendations should then be forwarded to the

appropriate Assistant Chief for his or her timely review and

implementation. The effectiveness of the implemented

recommendations should be determined by monitoring the officer

and drafting written reports on the officer’s conduct on a

monthly basis. The officer’s supervisor should retain the

supervisory recommendations and the written monthly report in his

or her supervisory file. 

IX.

OFFICER TRAINING


The APD should develop comprehensive ongoing training

programs for current APD officers.

A.

Policy Re-Training


Much of the technical assistance offered in this letter

calls for the creation of new policy or revision of existing

policy. We recommend that as the APD updates or creates each new

policy, the APD re-train all APD personnel, including command

staff, on each new policy and its effects. Such training should

be comprehensive to cover all aspects of the change in policy so

that APD personnel are aware of what would no longer be within

policy, as well as what new material would then be included in

the APD’s revised policies. 

Policy re-training should be competency-based. Accordingly,

once trained, each APD member should demonstrate competency of

his or her knowledge of the new subject matter through

performance or examination. Each member of the APD, including

command staff, should be required to pass competency-based

performance or examination for each new policy. 


- 48 ­
B.

Ongoing Training 


One of the most frequent comments we received from APD

personnel was the need for in-service training.37 We were

advised repeatedly that officers and supervisors had not received

training on perishable skills38 and use-of-force scenarios in

many years. The APD also identified the need for training to

address issues with officers’ driving and frequency of traffic

collisions. In conversations with APD command staff, our expert

consultants have stressed the APD’s need to focus training on low

frequency but high liability practices, e.g., use of firearms.

Use of force and pursuit driving are such areas of high

liability. 

We recommend that the APD’s training for firearm

qualification not focus only on skills in shooting. That

training time also should include review of applicable case law.

A frequent comment we received from many citizen was a perceived

poor communication between citizens and APD officers leading to

escalation and, ultimately, use of force. Accordingly, we

recommend that the APD ensure that its officers are trained in

verbal de-escalation (e.g., verbal judo). We received positive

comments on the APD’s prior street tactics class in particular.

We were informed, however, that only one third of the APD’s

officers received this training. Reinstituting this training on

perishable skills that affect use of force will benefit APD

officers. 

Like the street tactics course that the APD had previously

begun, we also encourage the APD to bring to fruition its plan to

use current field training officers (“FTOs”) as adjunct trainers

for their units. The APD had not fully developed, but should,

the concept of using its corporals as trained trainers, as well.

These adjunct trainers should utilize standardized lesson plans.

Also, the APD units who work together should have the benefit of

training together. Training with the unit should be the standard

whether training occurs informally through adjunct trainers, or

through more formalized classes.


37


The recommendations on training are not intended as an

exhaustive analysis of all of the APD’s voluminous training

materials provided to us. We will continue to work with the APD

to provide feedback on the APD’s training materials.

38


With respect to policing, perishable skills include,

but are not limited to: handcuffing, hand-to-hand combat, self

defense, and restraint holds.


- 49 ­
We also recommend that the APD retain, as needed,

consultation for the review of policy and curriculum to further

develop the APD’s ongoing in-service training. When engaging in

this process, we recommend that the APD seek the input from its

commanders, as well as rank and file, in assessing the needs for

in-service training.

We note that one potential resource for the APD in

establishing and improving in-service and field training officer

programs may be the longstanding training and grant programs

administered by other components of the Department of Justice,

such as the Office of Justice Programs. While these programs are

separate and independent of the Civil Rights Division’s

investigations, we would be pleased to provide you with contact

information for exploring the possibility of such assistance.

X.

COMMUNITY RELATIONS


The APD has already undergone significant changes in its

community relations in the past year. In addition to the other

steps the APD has taken, some of which are mentioned in this

letter, we recommend that the APD clearly and prominently post

its mission statement and statement of citizen rights in multiple

languages in the public spaces in APD buildings.

We also note that we were informed that the APD received

accreditation but did not appear to have a completed strategic

plan at the time. We recommend that the APD complete its

strategic plan and make the document open to public comment. We

recommend that the APD’s planning efforts include identification

of, and plans for, tracking quantifiable performance measures.

The APD should report on these measures to the community

annually. The APD should use such measures to target services in

need of improvement.


- 50 ­
XI.	 CONCLUSION

The APD has made a number of advances during our

investigation, particularly under the leadership of Chief

Acevedo. We strongly urge the APD to consider and adopt these

technical assistance recommendations as it revises its policies

and procedures. We look forward to working with you and the

department as our investigation proceeds. If you have any

questions, please do not hesitate to contact me at

(202) 514-0195, Jonas Geissler at (202) 353-8866, or Corey

Sanders at (202) 305-3229.

Sincerely,

/s/ Shanetta Y. Cutlar

Shanetta Y. Cutlar

Chief

Special Litigation Section

cc: 	Johnny Sutton

United States Attorney

for the Western District of Texas