,"

U.S. Department of Justice

Civil Rights Division

SYC:JE:LDB:JS:ES:sjr
DJ 207-11E-1

Special Litigation Section - PHS
950 Pennsylvania Avenue, N. W.
Washington, DC 20530

April 12, 2004

By Electronic and Regular Mail

Virginia Gennaro, Esq.
City Attorney
City of Bakersfield
1501 Truxtun Avenue
Bakersfield, CA 93301
Re:

Investigation of the City of
Bakersfield Police Department

Dear Ms. Gennaro:
As you know, the Civil Rights Division is conducting an
investigation of the Bakersfield Police Department ("BPD"),
pursuant to the Violent Crime Control and Law Enforcement Act of
1994, 42 U.S.C. § 14141, and the Omnibus Crime Control and Safe
Streets Act of 1968, 42 U.S.C. § 3789d(c) (3).
We would like to
take this opportunity to express our appreciation for the
cooperation we have received thus far from the City of
Bakersfield ("City") and the BPD.
To date we have reviewed relevant BPD policies and conducted
interviews with City officials, all of the BPD command staff, and
a cross-section of BPD supervisors. We have also talked with
representatives of the Association of Bakersfield Police
Officers, community leaders, and other citizens.
At the beginning of our investigation, we committed to
providing the City with technical assistance to improve BPD's
practices and procedures and ensure compliance with
constitutional requirements.
During our meetings with you and
the BPD command staff in September and October of 2003, we told
you 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 the BPD's
written policies.
Important aspects of our fact-gathering
process have yet to be completed, most notably reviewing the

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incident reports that you have produced.
Therefore, this letter
is not meant to be exhaustive, but rather focuses on significant
recommendations we can provide at this preliminary stage of our
investigation.
Additionally, we hope this letter will assist in our mutual
goal of ensuring that the BPD provides the best possible police
service to the people of Bakersfield. We look forward to
continued cooperation towards this goal.
We would be happy to
provide examples of policies used by other police departments
that might address some of the issues we raise below.
I.

Use of Force and Force Reporting

•

The BPD's use of force policy should clearly define when
officers are permitted to use force.

The BPD's "Use and Escalation of Force Policy" does not
adequately limit officers' use of force to those cases in which
it is required to make a lawful arrest or protect an officer or
third-party from an immediate safety threat. Appropriately, the
BPD policy states that officers may use the amount of force
reasonably necessary "to gain and maintain compliance with the
law."i However, the policy fails to provide any guidance to
officers of when force is required to "maintain compliance with
the law." This ambiguity may lead officers to believe they are
justified in using force in situations in which it would be
unreasonable.
For example, BPD officers would not be justified
in using force to disperse an unlawfully assembled crowd without
first giving the group an opportunity to disperse on its own. A
well drafted use of force policy should give an officer clear
guidance on the type and level of force that is objectively
reasonable in light of the facts and circumstances confronting
him/her in a given situation.
The "Use and Escalation of Force Policy" is not the only
general order that relates to the use of force.
In fact, there
are currently eleven other general orders that relate to the use
of force. 2 However, none of these orders are cross-referenced in

("G.O.")

Use and Escalation of Force Policy, General Order
01-01-05.

Firearms Policy, G.O. 98-12-17, Suspect Behavior/Types
of Force and Authorized Restraints Policy, G.O. 98-03-04, Impact
Weapons Policy, G.O. 02-02-25, Positional Asphyxia -Addendum,
G.O. 00-04-17, positional Asphyxia-Sudden Death, G.O. 95-09-28,
Aerosol Weapons Procedures, G.O. 99-03-16, Canine Program and
Policy, G.O. 99-02-05, Patrol Rifle Program Policy, G.O. 97 05
22, Pepperball Weapons Procedure, G.O. 01-04-16, Stunbag
System-Less Lethal, G.O. 00-07-21, and Taser Electronic Control
2

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3

-

the "Use and Escalation of Force Policy." These orders should be
cross-referenced in the use of force policy because they provide
supplemental information regarding the procedures BPD officers
should follow when using the various types of force.
For
example, the stated purpose of the BPD firearms policy is "to set
forth guidelines officers should consider when they are faced
with circumstances which would cause them to resort to the use of
a firearm."3 The use of force continuum does not identify
firearms as a type of deadly force or provide a cross-reference
to the firearms policy. As such, officers may not be aware of
the guidelines for employing deadly force.
We advise the BPD to
review all of its policies and procedures and where appropriate
provide adequate cross-references.
•

The BPD should clearly define what type of force can be used
at each level along the force continuum.

The BPD has a use of force continuum in the "Use and
Escalation of Force Policy," but this continuum does not list or
define all of the use of force options that are available to BPD
officers.
It also does not adequately define the force that can
be used in response to varying levels of resistance from a
subject.
Much of the information regarding resistance levels and
description of the type of force used by the BPD is contained in
a separate general order entitled, "Suspect Behavior/Types of
Force and Authorized Restraints Policy." We recommend that the
BPD consider consolidating these two general orders into a
comprehensive use of force continuum.
This consolidation will
benefit the officers because the constitutional requirements
regarding the use of reasonable force will be conveniently
contained in one general order that they can quickly reference to
ensure compliance with the law.
The current use of force continuum classifies force levels
in three general categories: Non-Physical/Non-Deadly Force,
Physical/Non-Deadly Force and Physical/Deadly Force.
Under each
category, the policy lists force options available to an officer.
Although the policy states that "officers should begin an arrest
at the lowest level of force possible and should only escalate
through each succeeding level of force after the lower levels of
force have been tried and failed,"4 there is not an established

Device, G.O. 97-03-04.
Firearms Policy, G.O. F98-12-17.
We recommend that the BPD revise its instruction that
higher levels of force should only be used once the lower levels
of force have been "tried and failed."
This guidance may lead
an officer to believe that they must first actually use each
lower level of force before moving to a higher level of force.

-

4

-

hierarchy within the categories of force. s For example, the
policy does not make any distinction between the use of a firm
grip and the use of a baton, even though a baton strike can be
deadly force.
The current policy may lead BPD officers to
believe incorrectly that all of the types of force that are
listed under each of the three categories are of equal gravity
and can be used interchangeably.
The use of force continuum also does not provide any
guidance regarding what level of force is appropriate in response
to different types of resistance.
The failure to match the
varying levels of force with the corresponding levels of
resistance is confusing.
The policy states that "[i]t is
impossible within the confines of this policy to instruct
officers how to react in each and every situation where the need
to use force may occur."6 This statement is problematic and
should be removed because it suggests that there are no
parameters for an officer to follow when the use of force is
necessary. When properly designed and implemented, a use of
force continuum is a fluid and flexible policy guide.
The BPD
should utilize the suspect behavior descriptions that are
included elsewhere in the continuum to provide clearer
instruction on when an officer should utilize a specific type of
force.
For example, the policy could instruct officers that
control hands/pain compliance, which consists of "grasping the
suspect and applying a control hold or pain compliance technique"
should be used to overcome a suspect who is actively resisting
(i.e., using hands, arms, legs, or any body part to physically
resist arrest) .7
In addition, the continuum fails to recognize that certain
types of force can fall under more than one of the three general
categories.
For example, the use of a baton is only categorized
as a Physical/Non-Deadly type of force, but as discussed above,
the baton could constitute Physical/Deadly force.

Taken literally this would mean that in response to an armed
subject they may only use their firearms after trying chemical
spray.
Instead, officers should be instructed to "consider"
whether they can safely and effectively use a lower level type of
force before turning to a more serious type of force, keeping in
mind that all uses of force must be objectively reasonable under
the circumstances.
S

Use and Escalation of Force Policy, G.O. 01 01-05.

6

Suspect Behavior/Types of Force and Authorized
Restraints Policy, G.O. 98-03-04.

- 5 -

•

The BPD should provide officers additional guidance on the
new use of force reporting system.

During our interviews with the BPD command staff last Fall,
we were informed that the only means that the BPD utilized to
document use of force incidents were its arrest reports.
However, we were also advised that the new Records Management
System that went into operation in November 2003 now allows
officers to document use of force incidents on forms generated
specifically for that purpose.
We are pleased that the BPD has
taken steps to better monitor its officers' use of force.
In
January 2004, the BPD forwarded us copies of a memorandum
regarding the roll-out of the new use of force reporting
requirements and an exemplar of the use of force form.
We have
reviewed these documents and identify here some aspects of the
process that we recommend be clarified.
As currently written, the new reporting guidelines require
only supervisors and not officers to provide information for the
use of force forms.
We recommend that the BPD revise the use of
force reporting form to include a space for an officer narrative.
The officer would describe the facts surrounding an incident and
provide such other information that would assist the supervisor
in reviewing the use of force employed by that officer.
In addition, the reporting guidelines do not clearly
indicate when a use of force form should be completed.
They
state that a form should be filled out when an officer uses a
level of force higher than "standard searching and handcuffing
techniques." This phrase is ambiguous.
Although the memorandum
cross-references the "Use of Force Reporting Guidelines, Medical
Treatment, and Supervisor Responsibility Policy," a review of
that policy does not provide any additional guidance on what this
phrase means.
We recommend that the BPD clarify this ambiguity
by requiring officers to complete a use of force form to document
all types of physical and instrumental (i.e., baton, taser, or
firearm) acts that impose any degree of force on a civilian,
including acts that would currently be regarded as "body weight
techniques"8 under the BPD "Suspect Behavior/Types of Force and
Authorized Restraints Policy," but not including unresisted
handcuffing.
The guidance provided in the memorandum regarding the
information that should be included on the use of force forms

Body weight techniques is defined as an "application of
body weight by one or more officers to overcome resistance and
establish control of the suspect." Suspect Behavior/Types of
Force and Authorized Restraints Policy, G.O. 98-03-04.

- 6 -

should be clarified to ensure that all uses of force, including
those that may occur absent an arrest, are documented.
The
memorandum instructs supervisors that the correct entry in most
cases for the field that identifies the subject of the force
(i.e., Related Person Role), is "Arrestee." We recommend that
this instruction be deleted because it suggests that the use of
force only occurs during an arrest.
Instead of suggesting an
entry that may be appropriate for this field, the BPD should
consider providing a description of all of the various choices
that are provided on the use of force form.
Providing
explanations of the available choices would be particularly
helpful, because the application of many of these descriptors
(e.g., "missing per," "registered," "runaway," "applicant,"
"legal owner," etc.) is unclear.
Providing this additional
information would also help the supervisor to select the
descriptor that best applies to a given situation.
We also recommend that the BPD revise other aspects of the
use of force reporting form.
First, the use of force form
suggests that a supervisor is not required to respond to the
scene of a use of force.
The form gives the supervisor the
option of choosing "yes" or "no" in the field that inquires
whether a supervisor responded to the scene.
We recommend that a
supervisor be required to respond to the scene any time force is
used, and we suggest that the BPD revise this field to indicate
what time the supervisor responded to the scene.
Second, some of
the descriptors provided in the "Subject's Resistance" field
should be changed. We suggest that the BPD substitute
"aggressive" for the "assaultive" option and "aggravated active
aggression" for the "deadly" option.
These substitutions are
broader definitions that will more accurately reflect a subject's
level of resistance. 9
Finally, the BPD's 2004 training schedule does not indicate
that officers will receive training on the use of force reporting
requirements.
The memorandum regarding the roll-out of the new
system also does not mention training.
We recommend that the BPD
schedule training sessions to ensure that officers fully
understand the new reporting requirements.

The "aggressive" descriptor covers a broader category
of situations. For example, if a subject is lunging or moving
toward an officer despite orders to desist with such behavior,
the subject's actions are best described as aggressive not
assaultive. Similarly, if a subject is moving toward an officer
with a blunt object (e.g., heavy metal rod) that could
potentially cause grave injury, the "aggravated active
aggression" option is a better descriptor than "deadly" because
it is not certain that the subject intended to inflict deadly
harm.
9

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•

The BPD's policies on the use of chemical spray should be
reviewed to clarify procedures for general use and
decontamination.

We have received reports that BPD officers may be utilizing
chemical spray within too close a proximity of the subject.
None of the general orders that discuss the use of chemical spray
provide sufficient guidance on this issue. lo Using chemical
spray within too close a proximity can cause injury to a subject.
The BPD "Aerosol Weapons Procedures Policy" "recommends" that an
officer refrain from using a chemical spray less than three feet
away from a subject.
The use of the word "recommend" suggests
that whether to use spray less than three feet from the subject
is left entirely to the officer's discretion.
We suggest that
the BPD revise this policy to require, absent exceptional
circumstances, that chemical spray not be used if the officer is
less than three feet away from a subject. Additionally, the BPD
should provide regular in-service training on the proper amount
of spray to use and how to deliver the spray effectively.
We have also received information regarding the use of
chemical spray on subjects who have complied with an officer's
orders. Many of the Bakersfield citizens with whom we spoke
alleged that BPD officers occasionally continue to use chemical
spray on a resisting subject, even after that individual has
complied with an officer's orders. Although we obviously have no
way of assessing the validity of these allegations, they are, if
true, of some concern to us because force should be discontinued
as soon as the threat dissipates.
We recommend that the BPD
policy explicitly require officers to immediately discontinue the
use of chemical spray once a subject becomes compliant.
The BPD's Aerosol Weapons Procedure does not require that
subjects who have been sprayed be promptly decontaminated.
In
fact, it discourages decontamination.
The policy states that,
"[i]t is not routinely necessary to medically clear all Oleoresin
Capsicum exposures ... and [n]o medical treatment is necessary
unless a more serious reaction is evident."ll This policy is
contrary to the widely accepted police practice. 12 We recommend

10
Use and Escalation of Force Policy, G.O., 01-01-05;
Suspect Behavior/Types of Force and Authorized Restraints Policy,
G.O., 98-03-04; and Aerosol Weapons Procedures, G.O., 99-03-16.
11

Aerosol Weapons Procedures, G.O. 99-03-16.

12
The International Association of Chiefs of Police Model
Policy on Pepper Aerosol Restraint Spray states that
"[i]mmediately after spraying a suspect, officers shall be alert
to any indications that the individual needs medical care." The

- 8 -

that the policy be amended to require BPD officers to
decontaminate subjects within a short period of time after order
has been restored to the scene.
Finally, the BPD currently utilizes a chemical spray that
contains a flammable carrier that could cause a fire if used
where there is exposure to an open flame or where sparks may
exist.
The aerosol policy and the "Taser Electronic Control
Device Policy" caution officers that chemical spray should not be
used in conjunction with the taser device because the electrical
current from the taser could cause the flammable carrier in the
chemical spray to ignite. We recommend that the BPD review
recent research regarding chemical spray and switch to a
different product that does not contain a flammable carrier.
•

The BPD should clarify its policy regarding positional
asphyxia.

The BPD has experienced at least three in-custody deaths in
recent years that may be related to complications due to
positional asphyxia. Although this letter is not intended to
reflect a judgment by the Department of Justice regarding any
individual cases, the BPD's policy related to positional asphyxia
should be clarified. The BPD has two general orders on the issue
and has classified one as an addendum to the other. 13 In
general, we believe that the BPD's "Positional Asphyxia
Sudden
Death Policy" adequately identifies factors that precipitate this
condition and provides good guidelines in order to help minimize
the risk of it occurring. Most importantly, the BPD's policy
explicitly prohibits officers from using hogtie restraints. 14
However, the legal analysis and discussion of a case involving
positional asphyxia contained in the "General Order Addendum positional Asphyxia Policy" creates ambiguity regarding BPD's
prohibition on hogtie restraints.
Instead of providing additional information to clarify the
BPD's policy on positional asphyxia, the addendum provides only
a lengthy discussion of Price v. County of San Diego, 990 F.
Supp. 1230 (S.D. Cal. 1998).
The BPD suggests that the Price
court does not believe that there is medical evidence to support
the idea that hogtying subjects causes positional asphyxia which

policy further states that "once the suspect has been restrained,
officers shall assist him by rinsing and drying the exposed
area."
13
positional Asphyxia-Sudden Death, G.O 95-09-28i
Positional Asphyxia-Addendum, G.O. 00-04-17.

14

Positional Asphyxia-Sudden Death, G.O. 95 09 28.

- 9 -

in turn can lead to death. 1s This interpretation creates
ambiguity with respect to whether the broad prohibition against
hogtie restraints that was set forth in the "Positional Asphyxia
- Sudden Death Policy" has been modified by the Price decision.
We recommend that the legal analysis be deleted from the
addendum.
In fact, if the legal analysis is deleted, little else
remains, so the BPD should consolidate any remaining information
from the addendum into the "Positional Asphyxia - Sudden Death
Policy."
The BPD should revise its canine deployment policy and track
and monitor the frequency with which BPD canines bite
subjects.

During our interviews with the command staff, we were
informed that the BPD employs the "find and bark" methodology
that trains canines to bark, rather than bite, upon locating a
subject.
Such a policy is a good practice because it prevents
canines from biting subjects in situations in which such force is
not necessary. However, the BPD should develop appropriate
safeguards to ensure that its canine unit actually operates in
conformance with this methodology.
The BPD canine policy states that the decision to use or
deploy a police canine during a specific law enforcement
operation rests "solely" with the canine handler. 16 According to
the policy, and conversations with canine unit supervisors, there
is no oversight of canine handlers when it comes to the
deployment of canines.
The policy does not require, nor is it a
practice of canine handlers, to seek approval from a supervisor
before a dog is deployed.
Moreover, the policy only requires a
deployment to be reported if the canine bites a subject.
We
recommend that the canine policy be changed to require, absent
exigent circumstances, supervisory approval prior to the
deployment of a canine unit and that guidelines for deployment be
established.
In general, canine deployment for purposes of apprehending a
person should be limited to searches for serious felons, and
cases where a subject is armed, or has the potential to use force
or cause harm to the officer, the subject or others.
Many of the
descriptions contained in the policy regarding how the BPD
utilizes canines are contrary to this practice.
For example, the
policy states that canine units will be "primarily utilized" in
domestic disturbance calls, and to apprehend persons under the
influence of drugs and/or alcohol or persons with mental

IS

Positional Asphyxia-Addendum, G.O. 00-04-17.

16

Canine Program and Policy, G.O. 99-02-05.

- 10 -

illness. 17 The use of a canine in such situations, unless they
involve armed subjects or an imminent threat to an officer or a
civilian, should be prohibited. 18 The policy should also
prohibit the release of a canine from the leash prior to a
deployment, unless the canine is conducting a building search.
The supervisors who command the canine program should have
the expertise to be able to assess appropriately a particular
situation and decide whether canine deployment should be
authorized. However, we understand that the canine coordinator
and other supervisors who have direct responsibility for the
canine program (i.e., watch commander/field sergeant) do not
receive formal standardized training in canine handling
procedures.
Such training should be provided to the canine
coordinator as well as any officer in the chain of command who
exercises supervisory authority over the canine unit.
The BPD canine policy provides no guidelines on how officers
should document deployments and apprehensions. All deployments,
regardless of the outcome, should be reported. A canine
deployment refers to any situation in which a canine is brought
to the scene and either:
1) the canine is released from the
police car; or 2) the suspect surrenders to the police
immediately after an announcement is made that if the suspect
does not surrender the canine will be released.
Properly
documenting and tracking deployments will allow the BPD to
monitor the use of canines.
Similarly, it is important for BPD
to track apprehensions because BPD needs to be able to properly
calculate bite ratios. An apprehension is defined as any time
the canine is deployed and plays a clear and well documented role
in the capture of a person. A bite ratio is the number of
apprehensions accomplished by means of a dog bite divided by the
total number of canine apprehensions (both with or without a
bite).
Bite ratios enable a police department to assess its
canine unit and individual canine teams. Additionally, the ratio
will help the department determine whether canines are
functioning under the "find and bark" methodology employed by the
BPD.

17

Id.

The BPD has authorized the use of canines for routine
crowd control and disturbances inside of bars. However, during
our meetings with canine supervisors, we were informed that the
BPD canines have not been trained for use in large crowds.
The
BPD's deployment of untrained canines in crowd situations places
citizens at an unreasonable risk of harm.
We recommend that the
BPD refrain from deploying canines in situations that necessitate
specialized training that the canines have not received.
18

- 11 Finally, the BPD's canine policy lacks clarity with respect
to the warnings that should be provided prior to releasing a dog.
We recommend that the canine policy be revised to ensure that
deployments are made in accordance with appropriate safeguards.
The BPD's canine policy states that a handler should give a
warning prior to the release of a canine dog unless it is
tactically inappropriate. 19 However, the policy does not set a
certain time period between the warning and the release to allow
the subject to surrender.
Proper verbal warnings, in English and
Spanish, should precede the release of a canine. 20
II.

Firearms and Impact Weapons

•

BPD officers should only carry weapons that are authorized
by BPD policy and BPD policy should require all officers to
be trained and certified on the weapons they carry.

During our meetings with the BPD command staff and officers,
we learned that officers in the department carry weapons that are
not authorized by BPD policy. Officers should only be allowed to
carry authorized equipment.
The BPD cannot effectively manage
the risk of injury associated with the use of weapons by officers
if there is no control or accounting of the weapons that officers
carry.
For example, the BPD "Firearms Policy" prohibits BPD
officers from carrying "weapons or ammunition other than that
authorized by the Chief of Police or his designee."21 The policy
does not say, however, which weapons and type of ammunition are
authorized.
We recommend that the BPD conduct a review and
inventory of all of its weapons in order to determine what
weapons should be authorized. A comprehensive list of the
authorized weapons, including the intended purpose of each one,
should be set forth in the general orders. With respect to
firearms, the list should identify the weapons that are
authorized as well as the specific type of ammunition.
To ensure
that officers are only carrying authorized equipment, we
recommend that supervisors conduct regular integrity checks for
unauthorized weapons and ammunition.

19

Canine Program and Policy, G.O. 99-02-06.

20
Mexican-Americans comprise thirty-two percent of the
population in Bakersfield.
See U.S. Census Bureau, Fact Sheet
for Bakersfield, California, available at
http://www.factfinder.census.gov.
Reportedly, many of these
individuals are recent immigrants who speak very little or no
English.
21

Firearms Policy, G.O. F98-12-17.

- 12 -

We were told that a majority of BPD officers carry a sap,22
but the sap is not listed as an authorized weapon anywhere within
the BPD's policies. Moreover, no BPD officer could articulate a
valid law enforcement purpose that would require the use of a
sap.
BPD officers are not trained to use the sap nor is it
included in the BPD's use of force continuum. We recommend that
the BPD prohibit use of the sap.
The high rate of injury
associated with saps has led many police agencies to discontinue
their use.
There are other non-deadly force options available
that have lower risks of injury to citizens.
•

The BPD should clarify the language within its firearm
guidelines that prohibits officers from shooting at moving
vehicles.

The language in the firearm policy prohibiting officers from
shooting at moving vehicles is ambiguous. Although the policy
states that "no officer shall discharge a firearm at a suspect in
a vehicle unless the officer has reasonable belief the suspect
poses a significant threat of death or serious physical injury to
the officer or another person," the policy also permits "shooting
at persons in moving vehicles ... under the direst of
circumstances. "23 The language "direst of circumstances" may
cause an officer to believe that a circumstance other than the
threat of death or serious injury to an officer or citizen could
justify shooting at a moving vehicle. We recommend that this
ambiguous language be removed from the policy.
In addition, the
firearms policy is silent with respect to how officers should
handle those situations when the subject uses the car as a weapon
(e.g., the subject attempts to run an officer down with a
vehicle).
We recommend that the policy prohibit officers from
shooting at vehicles that are used as weapons, unless the
officer is unable to move out of the path of the oncoming vehicle
or the driver or occupants of the car (for some reason other than
the fact that they are using the car as a weapon) pose an
imminent threat of death or serious injury to the officer or the
public.
The potential for serious injury, including death, is high
when officers are allowed to shoot at moving vehicles.
The
bullets could ricochet off the moving target and hit the officer
or an innocent bystander, or the bullet could disable the driver
of the vehicle causing the car to crash into the officer or a
third party.
Since the risks presented by officers firing at

A sap is a small impact weapon that generally measures
eight to eleven inches in length and is constructed of durable
leather. This weapon is commonly used to strike subjects at
close range in the head and upper torso area of the body.
22

23

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moving vehicles far outweighs any benefit that could be attained
by such an action, because it is very difficult to disable a
moving vehicle by shooting at it, officers should be prohibited
from firing at moving vehicles.
III. Policy Development
•

The BPD should revise its policy development process and
seek input from the community on policies that are of
particular concern to citizens.

During our meetings with supervisors from the Planning and
Research Division, we learned that the BPD does not have a formal
process for policy development. As a result, there is no
mechanism to ensure that policies are being developed with the
benefit of feedback from the entire police department or the
community. We recommend that the BPD create a policy development
committee, and that this committee seek input from the community
on policies of particular interest to the community, including
gang enforcement. While we recognize that all changes and
recommendations by the community may not be practical, the very
act of asking for such feedback increases community acceptance
and provides an opportunity for public education.
The BPD could
also involve the community in the implementation of new policy by
holding outreach meetings when policies that relate to community
policing, such as the Special Enforcement Unit procedures that we
discuss below, are developed.
This will give the BPD the
opportunity to explain the purpose of the new policies and how
the policy might affect community/police relations.
We also recommend that major policy changes that impact the
policing practices of the BPD be evaluated by the City Attorney's
office to ensure that the policies comply with federal and state
law.
The Planning Section should retain all the comments that
they receive from the policy development committee, the public
and the City Attorney's Office in a central file.
This
information can be used to justify the adoption of new policy and
changes to existing BPD policy.
•

The BPD should develop a formal policy for the operation of
the Special Enforcement Unit.

We were told that the Special Enforcement Unit's ("SEU")
primary mission is to partner with the community to stop gang
violence.
We have received complaints from minority citizens
that the SEU tends to target members of their community for
investigative stops, regardless of whether these individuals are
suspected of planning or engaging in criminal activity. There is
also a perception that the SEU conducts unlawful searches of the
minority citizens that they encounter during these stops.
We
have no way of assessing the validity of these allegations, and
we pass no judgment here.

- 14 -

We are nevertheless concerned that there is no policy or
procedure in the BPD General Orders that governs the operation of
the SED.
To be sure, our interviews with the BPD command staff
revealed that there are informal procedures that have been
devised by the command staff that supervises the SED that govern
the operation of the unit. Although it appears that thoughtful
consideration has been taken to devise informal procedures that
officers can use on the street, the lack of a formal policy may
lead to inconsistency and create the perception that BPD officers
treat members of racial minorities differently. We recommend
that the BPD develop formal policies and procedures for the SED
that will give the officers in this unit clear guidance on SED
operational issues including the mission of the unit, the role of
the community, selection procedures for officers assigned to the
unit, and procedures for deployment of the unit.
In addition,
the SED policy should have cross-references to the proposed
discriminatory policy and the Search and Seizure General Order.
IV.

Public Accountability
The BPD should establish procedures for internal affairs
investigations.

Our interviews with community members revealed a perception
that the BPD citizen complaint process is not an effective tool
for citizens to complain about police misconduct.
We heard
complaints that there are discrepancies in how individual
complaints are handled and that the investigations that are
conducted are often deficient. There is no policy or procedure
in the BPD General Orders governing the operation of Internal
Affairs ("IA").
In addition, our interviews with the BPD command
staff revealed that there is no consistent procedure that IA
investigators follow when conducting an investigation.
For
example, our interviews with the command staff indicated that IA
investigators do not always interview all of the available
witnesses. Although some IA detectives return to the scene of an
alleged incident of misconduct to track down independent
witnesses, others only contact the witnesses that have been
identified by the complainant, or by the involved officer.
We recommend that formal procedures governing IA
investigations be promulgated to ensure that there is consistency
in the investigation process.
The BPD may also want to consider
revising the provision of the citizen complaint policy that
states that interviews with police officers "may be recorded" to
"shall be recorded." (emphasis added).
We recommend this
revision because it will ensure that there is a complete and
accurate transcript of all interviews that are conducted in
conjunction with investigations. This revision will serve the
interests of all parties concerned and preserve the integrity of
the investigation process.

- 15 We have received a number of complaints from the community
alleging that they have been harassed by members of the BPD
shortly after filing a citizen complaint against an officer.
In
devising an IA investigations procedure! the BPD should consider
adding a provision that would prohibit officers from having
contact with citizens who file a complaint (or citizens who
witnessed the alleged police misconduct) that could be
characterized as harassing or intimidating. Violation of this
provision should be subject to disciplinary action.
Implementing
this provision might help to allay concerns that the community
has expressed regarding harassment and intimidation.
•

All citizen complaints should be forwarded to the Internal
Affairs Division where the complaint can be designated as a
"Citizen Complaint" or "Citizen Inquiry."

The BPD citizen complaint policy mandates that BPD personnel
accepting complaints from citizens determine whether a complaint
will be handled through IA! or whether it will be handled more
informally at the division level.
We were told that the latter
complaint is designated a citizen inquiry! while the former is
called a citizen complaint. According to BPD policy! a citizen
complaint is "an allegation of employee misconduct. 1I24 A citizen
inquiry is defined as a "complaint regarding service! department
policy or procedures
[that] should be handled at the
1I25
division level.
An inquiry is also defined as an
"[a]llegation of misconduct which is minor in nature
1126
No further clarification beyond these ambiguous definitions is
provided to guide personnel in making a proper designation! nor
are there any examples provided to assist personnel in
determining what constitutes a "minor allegation of misconduct.
Given the ambiguity surrounding these designations! some citizen
complaints that should be forwarded to IA may actually end up
being handled more informally as an inquiry.
ll

To alleviate this confusion! we recommend that the BPD
provide additional guidance on the distinction between a citizen
inquiry and a citizen complaint.
Furthermore! we suggest that
IA review all complaints and be responsible for designating them
as a citizen inquiry or a citizen complaint.
The implementation
of these recommendations will increase the likelihood that
complaints are handled properly.

24

Citizen Complaint Procedure! G.O. 95-01-18.

25

Id.

26

Id.

- 16 •

The citizen complaint policy should explicitly explain the
different means citizens can use to file complaints.

During our interviews with the command staff, we were told
that the BPD accepts complaints from citizens through a variety
of means including in person at the station, by telephone, or by
letter.
We were also told that the BPD accepts complaints on
unsigned forms, or that are filed anonymously.
We recommend that
the complaint policy explicitly describe the different methods
citizens can use to file a complaint. Once this revision is
made, the new policy should be disseminated to the community and
to BPD personnel.
Additionally, we understand that citizen complaint forms are
not available on the BPD website, nor are they available in any
language other than English.
To ensure that information
regarding the citizen complaint process is available to as many
residents as possible, we recommend that the BPD make an
electronic version of the citizen complaint form available on the
internet, and that a complaint form be developed for members of
the community who only speak Spanish.
The BPD should revise the disposition provision of the
citizen complaint policy.

The citizen complaint policy provides that the Chief of
Police can choose one or more of the following dispositions after
completing a review of an IA investigation:
unfounded,
exonerated, not sustained, sustained and commended. 27
In general, we recommend that a single disposition be
selected after an IA investigation is completed to eliminate any
confusion that might be generated by inconsistent findings.
However, it may be appropriate, in certain situations, to combine
the "policy review" finding with one of the other dispositions.
For example, the Chief might conclude that a citizen complaint,
which involves an issue that is not covered by BPD policy, should
be "sustained" in light of evidence corroborating a citizen
complaint. Nevertheless, there could not be any discipline meted
out because there is no underlying policy violation.
In this
case, it would be appropriate to select the "policy review"
finding as well as "sustained."
•

The BPD should revise its uofficer involved shooting"
procedures.

It is not clear from BPD policy whether the IA division is
involved in administrative investigations concerning officer
involved shootings ("OIS").
We recommend that the BPD clarify
27

Citizen Complaint Procedure G.O., 95-01-18.

- 17 -

lA's role in the administrative OIS investigations.
The guidelines and procedures regarding use of force
(including shooting incidents) and the citizen complaint process
are silent with respect to how the BPD should proceed with
parallel administrative and criminal investigations.
However, it
appears that BPD initiates an administrative investigation before
any criminal investigation when a shooting incident occurs.
The
"Officer Involved Shooting Procedures" states that "[i]f during
an [administrative] investigation, evidence suggests that an
involved officer may be responsible for a criminal act, the OIS
investigator will immediately notify the duty chief before
continuing his/her investigation."28 In addition, the policy
directs the responding supervisor and the assigned OIS
investigator to obtain "public safety statements" from the
involved officer(s).
The timing of these investigations is
imprudent in light of the Supreme Court's ruling in Garrity v.
New Jersey, 385 U.S. 493 (1967) with regard to the use of
compelled statements in criminal proceedings.
Protocols should
be developed to provide guidance on how parallel investigations
should proceed to avoid evidence contamination in the event that
the criminal investigation leads to prosecution.
There are other aspects of the OIS procedures that should
also be revised. An OIS is defined as a "shooting incident
directed toward a human being, whether intentional or accidental
"29
The policy should be revised to cover all instances
when an officer discharges his/her weapon, including those
instances when an animal is involved. 3o The only exception
should be discharges that occur on the firing range.
Under the
current policy, officers that are involved in a shooting are not
relieved of their weapon.
The policy directs supervisors
arriving on the scene to, " [r]emind involved officer(s) not to
unload or reload their weapons; however, allow them to maintain
control of their weapon unless you have probable cause to believe
the officer (s) have committed a criminal act. "31 This policy is
unwise because it can lead to contamination of the evidence and
because it requires the supervisor to make a legal determination
in what is already a very stressful situation.
The policy should

28

Officer Involved Shooting Procedures, G.O. 01-01-05.

29

Id.

30
A full-scale shooting investigation should not be done
when there is an incident involving an animal.
The investigation
should be limited to interviews of the pet owner, any available
witnesses and the involved officer.
Furthermore, the incident
should be documented on a use of force form.
31

Officer Involved Shooting Procedures, G.O. 01-01-05.

- 18 -

be revised to require the involved officer(s)to relinquish
his/her weapon following an OIS.

v.

Monitoring Officer Conduct
The BPD should develop a risk management system to track
trends and patterns related to officer conduct.

As discussed above, during our interviews with the BPD
command staff, we learned that the BPD has a new Records
Management System ("RMS").
It was unclear whether the RMS has an
adequate risk management system component, but the command staff
expressed interest in learning how such a component could be
developed and utilized.
We recommend that the BPD evaluate the
risk management system component of the RMS to determine whether
the RMS will allow it to adequately track and monitor any trends
or patterns related to officer conduct.
If the RMS does not have
a risk management component, the BPD should determine whether the
system can be so modified. Alternatively, the BPD may be able to
procure a low-cost risk management software program or develop a
non-computerized system that could track officer conduct.
The
BPD should be able to obtain a great deal of information
regarding the development of risk management systems from other
police agencies and national and state law enforcement
organizations, which will assist them in developing an
appropriate and economical system.
A risk management system is most effective if it accounts
for shootings, uses of force, citizen complaints, criminal
charges against officers, civil lawsuits alleging officer
misconduct, and disciplinary actions (including counseling,
redirecting, and reinforcing).
The system should also track the
conduct over a reasonable period of time.
The BPD currently
retains citizen complaints for a period of five years.
We
recommend that the BPD track all forms of officer conduct for the
same period of time.
Finally, with respect to the tracking of
citizen complaints, the BPD should track all citizen complaints,
including those complaints that are designated "not sustained."
It is important to track such complaints because they may be
indicative of a problem if they involve similar types of alleged
misconduct.
The benefit of a well-designed risk management system is
that it will allow the BPD to have relevant information regarding
officers' conduct to ensure effective management and early
intervention.
It is important to be mindful of the fact that a
risk management system is not meant to be used punitively, but as
a tool to identify and take proactive steps in regard to those
officers who may be in need of supervisory counseling and nondisciplinary corrective action (i.e., remedial training).
It can
be used by the BPD Training Division to determine the need for
curriculum revision and supplementation as well as remedial

- 19 -

training.
Finally/ the risk management system can also be used
to identify those officers who are providing exemplary service
and should be commended.
VI.

Officer Accountability

•

The BPD should develop a formal disciplinary framework to
bolster the Rules of Conduct and the citizen complaint
process.

There is no policy or procedure in the BPD General Orders
that sets forth a disciplinary framework.
In addition/ our
interviews with the BPD command staff revealed that there is no
consistent procedure that is followed when discipline is meted
out.
Such discretionary practices with respect to discipline can
lead to lack of fairness. An appropriate disciplinary framework
should allow for a flexible range of discipline to fit the
offense.
For example/ there should be a range of discipline that
can be meted out when an officer engages in a less serious
offense like tardiness.
The disciplinary framework should be
more rigid with respect to serious offenses.
For instance/ if a
citizen complaint alleging that an officer provided false
information in an arrest report is sustained against an officer,
he/she should be terminated.
We recommend that the BPD devise a disciplinary framework
that contains levels of discipline within the framework that are
progressively more serious and ultimately culminate in
termination.
Furthermore/ training mechanisms should be
incorporated to make the framework even more useful.
Remedial
training should not be considered a form of discipline.
Instead
it should be considered a mechanism that is used to correct
behavior that needs to be improved or changed.
However/ remedial
training is not a substitute for disciplinary action.
•

The BPD should revise certain aspects of the Rules of
Conduct.

Portions of the BPD Rules of Conduct should be revised to
provide clear guidance on the subject areas covered.
Rule eight
provides that/ "[n]o officer or employee of the Department shall
knowingly and willfully commit any act or neglect any duty which
violates any Federal statute/ State law/ local ordinance/ or any
rule of the Department. a32 This rule should be revised to cover
violations that are not knowing and willful.
Rule fifteen
provides that II [o]fficers and employees shall not consume
intoxicants while off duty to the extent that evidence of such

32

Rules of Conduct G.O./ 96-04-05.

/s/ Shanetta Y. Cutlar