Police Department use-of-force reviews rarely find fault

Tuesday, July 14, 2009 | 12:01 a.m. CDT
GRAPHIC | Between January 2002 and March 2009, the Columbia Police Department reported and investigated 1,027 use-of-force incidents. Of the 1,027, two were found to be improper.

COLUMBIA — Of the 1,027 times Columbia Police officers used force against a suspect between 2002 and March 2009, the department’s internal review process concluded that officers acted improperly in just two cases.

The mandatory review of officers’ use of force — including strikes, batons, pepper spray, Tasers, dogs and firearms — is meant to ensure that officers are complying with department policies.

The numbers reveal a system that almost never finds fault with officers’ actions in the field, a situation that use-of-force researchers say is unrealistic yet common across the country.

“In some ways, the review process can be political camouflage,” said Kenneth Adams, professor of health and public affairs at the University of Central Florida and author of a U.S. Department of Justice report on police use of force. “We justify these situations by saying the incident was reviewed and it was justifiable. But if it operates as a rubber stamp, then what’s the point?”

The Police Department says each case is individually reviewed and should be looked at that way.

“We believe it is an effective monitor of use of force,” Deputy Chief Tom Dresner said. “If you look at all the cases together and look at everybody, you could say there’s got to be something wrong with that. But you have to look at them as individual instances.”

The use of force has become a crucial issue in policing and can be one of the most volatile issues facing police departments. Just one incident can dramatically alter the relationship between a department and the community it serves, as the Phillip Lee McDuffy incident of July 2008 made clear. The use of a Taser against McDuffy, who was threatening to jump off an Interstate 70 overpass, led to critical injuries for the individual, a $500,000 settlement offer for the city and criticism of the Police Department’s use of force.

When police are left to police themselves, there’s often a sense among the public of a camaraderie within the department, and the review process becomes inconsistent with public perceptions, Adams said.

In the case of the Columbia Police Department, the sense that the review process does not adequately address use-of-force issues is partly behind the support for a Citizen Review Board, said several members of the Citizen Oversight Committee, which was tasked with creating an outline of such a board.

“A citizen review board might hold the department more accountable for use of force, because the whole point of the board is to create a situation in which the public is able to take a look at some of the things the department is doing,” said David Tyson Smith, a member of the Citizen Oversight Committee. Smith is representing Willie Smith in his trial for resisting arrest.

Similarly, Rex Campbell, chairman of the committee, said, “There was considerable suspicion by some members of the committee that there was some level of self-justification on the part of the police. That’s part of the reason for a review board.” The current review board model focuses more on dealing with citizen complaints than on the initial police review of use-of-force incidents.

A matter of reasonableness

Police officials argue that the apparent imbalance in use-of-force review statistics can be explained by the public’s fundamental misunderstanding of the review process. Across the country, officers’ actions are judged based on a standard of reasonableness at the time of the incident, in what might be described as the heat of the moment.

“In reviewing actions you must look at the context of the situation at the time to see if they were reasonable, and not look in purely 20/20 hindsight,” said David Klinger, associate professor of criminology and criminal justice at the University of Missouri-St. Louis and former Los Angeles Police Department officer who specializes in use-of-force issues.

Issues of fairness or prudence, which members of the public are often first to consider, are not generally part of the police review process. Instead, the focus is on the guidelines and whether the use of force was justified in light of department policies.

In Columbia, as in most cities, officers are given a good deal of discretion in terms of the force they can use.

“The law gives us leeway on using force,” said Lt. John White, who heads the Professional Standards Unit, a program created in 2008 to improve the department’s internal review process. “We are allowed to be the aggressor. But we’re not just randomly using force.”

The frame of reference in reviewing cases is crucial in understanding the review’s outcome, Dresner said. Individuals against whom force was used probably have a different idea of whether it was justified than the Police Department, he said. A national survey found that almost 87 percent of people against whom force was used thought the police acted improperly. Only about 13 percent eventually filed a complaint.

“Our most significant challenge is explaining why we do the things we do,” Dresner said, referring to the need to educate the public on how the department operates.

The Police Department’s use-of-force policy states that officers are permitted to use the amount of force that is “objectively reasonable” to perform their duties. Reasonable belief is defined in the guidelines as follows: “When facts or circumstances the officer knows, or should know, are such as to cause an ordinary and prudent person to act or think in a similar way under similar circumstances.”

To ensure that officers are adhering to department policies, the Police Department conducts a mandatory review into all incidents involving the use of force, regardless of whether a complaint is filed. According to standard operational guidelines, the officer’s immediate supervisor must critically review all reports and videos relating to the incident, and then categorize the incident as “proper” — meaning lawful and within standard operational guidelines — or “investigation requested,” in which the supervisor forwards the case up the chain of command. After that review, the case can be found proper or improper.

In addition to the review by an immediate supervisor, who is generally a sergeant, use-of-force cases are also supposed to be reviewed by a shift lieutenant and captain before being sent to the Professional Standards Unit for data collection and review, if necessary. Supervisors can request an investigation at any point in the process if they are concerned with the incident, and any incident involving a complaint is sent directly to the Professional Standards Unit. There is a separate review process for citizen complaints.

“It’s kind of a checks and balance system we have,” White said.

An outdated system

The current review process is about a year-and-a-half old, having begun with the creation of the Professional Standards Unit in February 2008. Before that, most use-of-force incidents were only reviewed by an officer’s immediate supervisor.

The Professional Standards Unit was formed in response to a 2007 report from Dr. Aaron Thompson of Eastern Kentucky University. After reviewing the department’s policies and speaking with a number of employees, Thompson recommended the department significantly change its internal affairs and administrative review process.

The Police Department had not made significant changes to the review process in 20 years, even though the city grew by more than 35 percent and internal review national standards changed considerably in that time. The Thompson report provided a picture of an outdated and inefficient process for addressing concerns about employee behavior, the investigative process and the lack of transparency in determining if the actions of the department were appropriate.

Using Thompson's recommendations, the Professional Standards Unit was designed to provide a more open look at the process by which the Police Department investigates different types of incidents, including use of force and citizen complaints. The department says the new system is a significant improvement on the earlier review process.

“We don’t have anything to hide, and we want to be as transparent as possible,” White said. The two cases that were labeled improper were both reviewed under the new system. Another 261 uses of force have been reviewed since the formation of the unit and found proper.

In a Police Department news release accompanying the publication of Professional Standards Unit statistics in May, the department stated, "The very low number of uses of force and the very high, almost complete number of proper findings allow us to be confident that our Mandatory Review system and Professional Standards Unit are operating in the best interests of our citizens."

What the Thompson report found, and statistics from those years bear out, is that the Police Department’s mandatory review of use-of-force incidents has not always been an effective monitor of officer conduct.

For one, Thompson found and others have confirmed that the mandatory review process did not always involve full investigations.

“Direct supervisors conduct most use-of-force reviews but are often not called to the scene and have to rely on the officer’s own report,” Thompson wrote in his 2007 report to the City Manager’s office. “The use-of-force reviews are for reporting purposes only and considered standard operating practice.”

“There was also a general agreement (among Columbia Police Department employees) that in practice it has become more of a cursory review than a full investigative supervisory review,” the report continues.

Chris Egbert, a member of the Citizen Oversight Committee who retired as a captain in 1993 from the Columbia Police Department, agreed with those findings based on his own experience handling supervisory reviews years ago. “The reviews are not really all that comprehensive,” he said, referring to his time on the force. Supervisors were pressed for time, and many of the uses of force were not considered that serious to begin with, he said.

Even if reviews were treated as more of an investigation, they would still have to rely almost completely on the reports of those officers involved in the incident.

“The police report has to have articulable facts as to the officer's state of mind and lots of detail about why they thought such force was necessary,” Dresner said. “They should do that with any use of force because that is subject to a mandatory review by the supervisor.”

He said all officers are trained to write reports at the police academy and during field training. However, use-of-force researchers have found the reports tend to have a particular point of view.

“Police are adept at writing reports, so they know how to phrase things so they appear acceptable,” Adams said. “But it can be suspicious when every officer who comes in has exactly the same story.”

A review of police reports from 55 instances of Taser use shows that officers often justify their use of force in similar ways, sometimes using the exact same phrasing. In 11 cases of Taser use reviewed, the officer wrote in his or her report that the suspect appeared to be reaching toward his or her waistband or pockets, and the officer feared he or she might have a weapon. In only one of these cases was a weapon — a screwdriver — discovered.

Dresner said the reason “waistband” is so frequently mentioned in police reports is because that is where weapons are often found on suspects.

The Police Department notes that whatever the review process, officers are highly disciplined and rarely resort to force when making arrests. In 2008, for example, less than 4 percent of all in-custody arrests involved any use of force, according to Police Department statistics.

“The choices of whether force is necessary are made by the people we’re confronting,” Dresner said. “Most people don’t require force for arrests.”

When force is used, it generally involves less severe weapons and tactics. The most frequently used methods of force in 2008 were pepper spray and strikes, with only two uses of a baton and no uses of a firearm against a human.

The use of deadly force by Columbia Police officers is extremely rare. The last time an officer fired a handgun at a suspect with the intent to kill was 1996, when Sgt. Shelley Jones returned fire on a man who had shot her point-blank in the chest in a Gerbes parking lot, Capt. Zim Schwartze said. The suspect got away but was later arrested in a hotel in Las Vegas.

The last time a suspect was actually killed by an officer was 1986, when an officer shot a man who was pointing a shotgun at him, Schwartze said. She said the man was trying to provoke the officer to shoot him.

A lack of transparency

It’s difficult to access police use-of-force records to independently monitor the effectiveness of the department’s review process. In Missouri, unlike many other states, police disciplinary records and citizen complaints against officers are kept secret by law, closed as personnel files.

The only reason details are known about the two instances of improper use of force is because the department decided to release the information in a March report to the City Council.

The first incident occurred in September 2008 and involved the use of a Taser on a 14-year-old accused of shoplifting. The second incident occurred in December 2008 when a man was shocked with a Taser by an officer when he ran from police after being found urinating on a tree. Both incidents occurred after the creation of the Professional Standards Unit.

One of the officers involved was disciplined by the department, Dresner said. The other officer left the department to take another job, though Dresner said the officer did not leave the department because of the Taser incident. Dresner could not say who the officers were or how they were reprimanded, citing the officers' privacy.

However, in response to Missouri Sunshine Law requests and orders from Mayor Darwin Hindman, the Police Department has released a number of other reports from Taser incidents, shedding some light on the department’s use of force. The Missourian was able to review more than 1,000 pages of police reports from 55 of 94 cases involving the use of a Taser from 2006 through 2008. Other reports were closed because they involve juvenile suspects or the investigation into the incident is ongoing, among other reasons.

The Taser reports reveal inconsistency in how the department reviews some use-of-force incidents and a tendency among certain officers to use a Taser more than others.

For example, although the December 2008 use of a Taser against a suspect who fled after urinating on a tree was found improper, the use of a Taser in a similar situation in February of the same year was found proper.

Dresner said the reason one of the cases was found improper and the other proper was because the Police Department wanted to use the improper case as an example of what was no longer acceptable under the revised Taser guidelines.

Matthew Schuckmann, now a 32-year-old graduate student at MU studying molecular microbiology and immunology, admits that he shouldn’t have run from the police when he was caught urinating on a tree at Broadway and College Avenue. But he thinks the officer’s actions that night in February were out of proportion to his crime.

“This was absolutely unjustified in this case,” Schuckmann said. “My crime was less than littering. Somebody who throws a bubble gum wrapper does more harm than what I did.”

Schuckmann is also upset about the officer’s attitude following the incident, saying the officer tried to joke around with him.

"'This will be something you’ll brag about to your grand kids one day,’” Schuckmann said the officer told him. The use of force was labeled proper. Schuckmann did not file a complaint after the event because he wanted to put it behind him, he said.

The officer involved in that case was Donald Weaver, one of two Columbia Police officers who account for more than a quarter of all Taser deployments reviewed. On three separate instances, Weaver fired his Taser at a suspect who was fleeing after committing a minor offense, a practice that the Police Department has now explicitly prohibited. In total, Weaver fired his Taser at a suspect on eight instances, more than any other officer, according to the reports.

Weaver resigned from the department earlier this year and moved to Los Angeles, Public Information Officer Jessie Haden said. Weaver could not be reached for comment.

Another one of the Taser incidents found proper by the Police Department was the case of Ricky Coleman, a senior at Hickman High School in February 2008, who had just helped to break up a fight and was leaving the school with his friend when Officer Timothy Giger stopped them.

Giger is the officer who used the Taser the second most. In five of the seven cases when he used a Taser, Giger fired the weapon multiple times, including firing it five times at Coleman, the most ever by one Columbia Police officer against a suspect. Haden said officers are not permitted to comment on active cases and declined the request for comment from Giger. Giger has been with the department for more than 10 years.

Dresner said that to understand why certain officers use force more than others, it is important to know where they worked, among other factors. Both Weaver and Giger worked on aggressive patrol units in central Columbia.

According to Giger’s police report from the Hickman Taser incident, after stopping Coleman and his friend, Coleman became agitated, so Giger grabbed his arm to handcuff him.

When Coleman pulled away, Giger fired his Taser at Coleman. The probes struck Coleman in the chest and stomach. The police report states Coleman attempted to remove the probes from his body and walk away, so Giger placed the Taser directly on Coleman’s hip and used the device as a stun gun, forcing Coleman to the ground.

The report states Coleman would not follow instructions while on the ground, so Giger fired the Taser two more times and used it as a stun gun once more. Eventually he was able to put Coleman into handcuffs.

Coleman’s mother, Michelle Ray, says this was an example of abuse of the Taser. She says her son was unarmed, had committed no crime and was not fighting back.

“I was very furious with the way the officer handled the situation,” Ray said. “That officer could have handled it totally differently.” She did not file a complaint because she was having legal problems of her own at the time, she said.

‘It adds up to a trend’

In the months since Chief Kenneth Burton started the job in April, the Police Department has announced a number of policy changes, such as adopting new Taser guidelines and implementing a geographic policing plan.

However, because the department maintains the mandatory review process is an effective monitor of officers’ actions in the field, there are no changes planned for the current review system. That means uses of force will continue to be reviewed on a case-by-case basis.

“The problem with use of force is that it gets put into the context of individual situations, and each situation is passed on,” said Adams, who wrote the report for the U.S. Department of Justice on police use of force.

“But one-by-one it adds up to a trend.”

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