Resource

Response to Resistance and Violence

The City of Ferndale Police Department maintains a comprehensive guide to the Department's use of force and response to resistance and violence. The full report is outlined below, or access a pdf copy for download.


PURPOSE

To establish policy and procedure regarding the appropriate and acceptable use of force and to provide for the treatment of any injury or complaint of injury as a result of the appropriate application of use of force.

POLICY

It is the policy of this department to utilize the amount of force that is objectively reasonable considering the totality of circumstances that are confronted in order to affect an arrest and/or accomplish the lawful performance of duty while protecting the public.

OBJECTIVELY REASONABLE USE OF FORCE (MLEAC 3.3.1 a)

The United States Supreme Court has ruled that an officer’s use of force will be judged in light of an objectively reasonable standard. This reasonableness shall be determined by balancing the nature and quality of the intrusions with the countervailing governmental interests. The standard takes into consideration:

  1. The severity of the crime,
  2. Whether the suspect poses an immediate threat to the safety of officers or others, and
  3. Whetherthe suspect is actively resisting arrest or attempting to evade arrest by flight (Graham"Three Part Test").

This reasonableness shall be judged on the scene and at the moment the force is used, rather than from 20/20 hindsight, and will take into consideration the fact that police officers are often forced to make split-second decisions in circumstances that are tense, uncertain, and rapidly evolving.

DUTY TO INTERVENE (MLEAC 3.3.1 b)

It is the obligation of each officer to intervene when witnessing another officer utilizing force that is inappropriate or excessive and to report this incident to their commanding officer. The Department’s highest priority is the protection of human life. In all aspects of their conduct, Department members will act with the foremost regard for the preservation of human life and the safety of all persons involved.

APPLICATION

This policy constitutes department policy, intended for internal use only, and is not intended to enlarge the employee’s civil or criminal liability in any way. It should not be construed as a creation of a higher legal standard of safety or care in the evidentiary sense with respect to third-party claims insofar as the employee’s legal duty is imposed by law. Violations of this directive, if substantiated, can only form the basis for interdepartmental administrative review and action.

DEFINITIONS (MLEAC 3.3.1 c; 3.3.2 b-d)

CONTROL

An officer’s response to neutralize the unlawful actions of a subject, or to protect the subject from injuring him/herself or others.

DEADLY FORCE

Force that creates a substantial likelihood of death or serious bodily harm.

FORCE

The attempt to establish control through physical means in the presence of resistance given the totality of circumstances. All force is a means of control; however, control can at times be achieved without the use of physical force.

LAST RESORT

Those situations in which certain immediate and drastic measures must be undertaken by an officer in order to protect human life. Force used in these situations may involve the use of techniques or objects not covered by this protocol; however, they remain to be measured by objectively reasonable use of force standards.

NON-DEADLY FORCE

Force that will not likely result in death or serious physical injury.

REASONABLENESS

Means within reason, moderate action suitable to the situation, consistent with department-approved training and policies. The final decision as to the reasonableness of an officer’s response will be determined on a case-by-case basis by those members of the department called upon to review the appropriateness of those tactics or actions, based on what a “reasonable” officer would have done under like circumstances.

RESISTANCE

A subject’s actions to evade an officer’s attempts to establish control.

SERIOUS PHYSICAL INJURY

Any injury that causes significant physical impairment.

TOTALITY OF CIRCUMSTANCES

Whether an officer’s actions are “reasonable” in light of all the facts and circumstances confronting the officer at the time the force is used.

POSITIONAL ASPHYXIA

Occurs when a person is immobilized in a position which impairs adequate pulmonary ventilation and thus, results in respiratory failure.

STRANGULATION

Intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person. Also includes headlock, chokehold, neck or carotid hold.

DE MINIMIS FORCE

Physical interaction meant to separate, guide, and/or control that does not cause pain or injury. Examples include using hands or equipment to stop, push back, separate, or escort the use of compliance holds without the use of sufficient force to cause pain, and uncontested handcuffing.

TYPE I FORCE

Use of force that causes temporary pain, disorientation. This level of force includes the aiming of a firearm, less-lethal firearm, or Taser at a subject. Examples include takedowns, a strike with sufficient force to cause pain or complaint of pain, and open-hand techniques with sufficient force to cause complaint or indication of pain.

TYPE II FORCE

Use of force that causes physical injury (greater than temporary pain) or reasonably expected to cause physical injury, a complaint of injury, including use of a Taser and the use of OC spray, use of an impact weapon causing less than a Type III injury, use of a bean bag shotgun or other less lethal weapon resulting in less than a Type III injury, canine deployment with less than a Type III injury or complaint of a less than Type III injury, vehicle tactics, PIT, hobble restraint. Examples include force that results in injuries or are likely to result in injuries less than great bodily harm (abrasions, bruising, or sprains).

TYPE III FORCE

Use of force that causes loss of consciousness, substantial bodily harm, great bodily harm, and deadly force. Such acts include but are not limited to strangulation, headlock, chokehold, neck and carotid holds, criminal conduct by officers, serious misconduct by officers, use of stop sticks against a motorcycle, and impact weapon strikes to the head. Examples of Type III injuries include broken bones, internal injuries, and excessive bleeding. Any discharging of a firearm at a person is a Type III use of force.

USE OF FORCE OFFICER

The use of force officer is a lieutenant or sergeant appointed by the Chief of Police to retain and analyze the information documented in the Use of Force Report. The information will be published in an Annual Use of Force Report to identify trends, the tendencies of individual officers, and the department as a whole and to identify areas for training in the future. The Annual Use of Force Report will be completed no later than January 31 and turned into the Captain's office (MLEAC 3.3.1 k).

HIGH-LEVEL USE OF FORCE

Police actions resulting in death, great bodily harm, or extended hospitalization to anyone, whether or not the person harmed was the intended recipient. The intentional discharging of a firearm other than for training or to euthanize an animal.

CONSIDERATION OF CIRCUMSTANCES (MLEAC 3.3.1 d)

The officer should consider the following circumstances when deciding the appropriate level of officer response (list is not all-inclusive):

  1. Type of crime committed or attempted
  2. Relative size/stature
  3. Exigent Conditions: a. Number of officers; b. Number of subjects involved; c. Availability of backup
  4. Reaction time (officers must consider that action is faster than reaction)
  5. Immediacy of danger
  6. Relative strength
  7. Subject(s)' access to weapons
  8. Whether subject(s) is/are under the influence of alcohol or drugs
  9. Exceptional abilities/skill (e.g. martial arts)
  10. Injury to, or exhaustion of, the officer
  11. Distance from the subject
  12. Special knowledge (e.g., subject's prior history of violence)
  13. Weather or terrain conditions
  14. Relative security or safety of the scene and/or environment.

DE-ESCALATION AND ESCALATION OF FORCE

Officers will utilize tactical options when time and circumstances permit, to enhance the safety of officers, offenders, and the public; to increase the likelihood of safely handling a potential use of force situation; and to attempt to reduce the need for physical force or the amount of force necessary. Tactical options include but are not limited to:

  • Prior planning
  • Cautious approach
  • Effective communication
  • Utilizing time and distance
  • Proper positioning
  • Movement and repositioning
  • Use of barriers
  • Use of containment, cover, and concealment

Officers shall not knowingly place themselves into the path of a moving vehicle or into the likely path of a vehicle that is currently stopped but is under the immediate control of a driver. When reasonable, officers should attempt to move out of the path of any moving vehicle to a position of cover.

Escalation of force may be justified when an officer reasonably believes that the level of force being used is insufficient to stop or control the resistance.

Officers may escalate to the level of force that is objectively reasonable and necessary to control the situation, based on the level of resistance encountered. The officer will take into consideration when the subject begins to de-escalate or lessen the resistance offered.

USE OF FORCE PROCEDURES

Officers should assess the totality of the circumstances in order to determine the appropriate response to gain control. When possible, officers should attempt to gain control by means of verbal directives or commands.

When reasonable, and without compromising officer safety or public safety, sworn personnel shall provide a verbal warning prior to any force.

If verbal directives or commands are ineffective, or not feasible given the circumstances of the situation, the officer may escalate to control methods that involve the use of physical force. If force is necessary, the officer must decide what technique(s) or authorized equipment will best de-escalate the incident and bring it under control in a safe manner (MLEAC 3.3.1 f).

Officers are authorized to use department-approved control techniques and authorized equipment for resolution of incidents (MLEAC 3.3.1 f), as follows:

  • To stop potentially dangerous and unlawful behavior
  • To protect a person or the officer from injury or death
  • To protect subjects from injuring themselves; the use of control methods and/or weapons shall not be used as punishment or retaliation.

Officers using force shall render assistance to the subject, after control has been established. Officers shall observe the extent of any injuries and assess the need for medical assistance.

When a person is handcuffed the officer will “check for fit” to make sure the handcuffs are not too tight and that the handcuffs are double locked. If a person handcuffed complains the handcuffs are too tight the officer will “recheck for fit” and adjust if needed.

WEAPONS OF LAST RESORT

Situations may occur in which certain immediate and drastic measures must be taken by an officer in order to protect human life. Force used in these situations may involve the use of techniques or weapons not covered in this policy. These situations will also be judged by the objectively reasonable use of force standard (MLEAC 3.3.1 e).

DEADLY FORCE PROCEDURES

The use of deadly force is authorized in either of the following situations (MLEAC3.3.1 e):

  1. To protect another person or the officer from what is reasonably believed to be an immediate threat of death or serious physical injury.
  2. To prevent the escape of a subject who is fleeing from an inherently violent felony crime, and the officer has probable cause to believe that the subject poses an immediate threat of death or serious physical injury to others or the officer.

Officers are prohibited from firing “warning shots”.

Officers are prohibited from shooting at or from a moving vehicle, except as a "last resort" as defined in this policy.

POSITIONAL ASPHYXIA

Occurs when a person is immobilized in a position which impairs adequate pulmonary ventilation and thus, results in respiratory failure

Certain factors may render some individuals more susceptible to positional asphyxia following a violent struggle, particularly when placed in a face-down position after the fact:

  • Obesity
  • Alcohol and drug use
  • An enlarged heart (renders an individual more susceptible to a cardiac arrhythmia under conditions of low blood oxygen and stress)
  • Violent Struggle
  • Excited Delirium

Officers shall not: leave a handcuffed subject lying on their back or stomach; put weight on the subject's back or neck for a prolonged period; or wait for transportation with a resisting subject in a restrained position without proper monitoring.

MEDICAL CONSIDERATIONS (MLEAC 3.3.1 i)

Officers using force on a subject shall make medical treatment available to that subject when:

  • The subject requests medical treatment;
  • The subject complains of injury, continued pain, or respiratory distress;
  • The subject is or was rendered unconscious Any officer observes or suspects injury to the subject;
  • The subject does not substantially recover from the effects of an aerosol subject restraint (ASR) after following the manufacturer's decontamination instructions; and;
  • When directed to do so by a supervisor.

Officers providing a subject with medical treatment shall document the treatment given in an incident report.

Officers providing a subject with medical treatment shall notify their supervisor as soon as possible.

Should a subject be transported to a medical treatment facility, a supervisor shall be notified as soon as possible.

Officers providing a subject with medical treatment shall receive written authorization from the attending physician stating he/she is cleared for incarceration prior to removing the subject from the medical care facility.

REPORTING AND INVESTIGATION OF USE OF FORCE: OFFICER RESPONSIBILITY

All uses of force shall be immediately reported to a supervisor by the involved officer(s) and documented in the form of an incident report. This requirement includes firearm discharges for other than recreational or training purposes and accidental CEW or firearm discharges (MLEAC 3.3.2 a, e).

The involved officer(s) in all levels of use of force shall complete an incident report (CR) in a timely manner. This includes investigative stops where subjects were handcuffed and later released. An incident report is sufficient for recording De Minimis force. When the use of force used is Type I or greater, all officers at the scene will complete an incident report (CR) describing their actions. Officers involved in a Type I use of force or greater will also complete a Ferndale Police Department Use of Force Report and submit it to the OIC. The report should include the following documentation:

  • Legal basis for initial contact;
  • Amount of resistance encountered;
  • Control methods used; handcuffing of subject detailed, (check for fit, double locked);
  • Injuries to any persons;
  • Treatment of injuries to parties involved;
  • Damage to property;
  • Identity of officers involved;
  • Identity of known witnesses;
  • Available supporting evidence (e.g., pictures of injuries);
  • Must be able to articulate their state of mind during the incident;
  • It is imperative to document their concerns, fears, what they saw, what they heard, what they felt, and their physical condition as the incident occurred.
  • Officers must account for how they established "officer's presence." For example, were they in full uniform, and/or did they utilize voice commands stating that they were police officers, etc.

Supervisor Responsibilities (MLEAC 3.3.1 j): The supervisor shall review all use of force incidents. When reviewing a use of force incident, the supervisor shall (MLEAC 3.3.3):

  • Respond to the scene, when practical.
  • Upon arrival, the supervisor should focus their attention to officer safety and public safety concerns. The supervisor will need to determine a brief accounting of what happened. However, this early stage should focus on what happened and what areas are to be included in the scope of the investigation. Detailed explanation or justifications of officer's actions are premature and not necessary at this point in time.
  • Ensure that the proper jurisdiction has been notified if the high-level use of force by a Ferndale police officer occurs outside the boundaries of the city of Ferndale.
  • Require written reports from all officers present in a timely manner.
  • Review all written reports submitted by officers for inconsistencies.
  • Review all in-car audio and video.
  • Photograph all injuries and alleged injury, injuries may not be visible initially, but develop over time.
  • Supervise the collection of evidence.
  • Canvass the area for private video that may have captured the incident.
  • Review and obtain a copy of any available video.
  • Interview all witnesses.
  • Interview the subject of the use of force.
  • Interview all of the officers involved.
  • Complete the supervisor’s review portion of the department use of force report (Shift commander will review use of force reports initially reviewed by the sergeant).
  • Upon completion of the use of force report, the shift commander will upload an electronic copy to Guardian Tracker and email an electronic copy to the use of force officer
  • Conduct an AAR (After Actions Review) with the officer involved. Discuss whether or not the officer’s tactics or decisions could be improved upon.
  • If the use of force is a Type III, the supervisor will forward the report to the captain for further review.
  • The chief of police and the captain shall be notified immediately upon determining that the subject of the use of force has suffered great bodily harm.
  • The chief of police will determine if the incident is investigated by another law enforcement agency to ensure objectivity.
  • A supervisor shall not conduct a meaningful review of a use of force that they were personally involved in at the incident level. Exception: The annual use of force report, an aggregate review of incidents, shall be conducted by the Use of Force Officer as each incident has previously been meaningfully reviewed by a supervisor NOT involved in the incident. The annual review is focused on identifying trends, training issues, equipment needs or adjustments, and policy implications.

SUPERVISORY RESPONSE TO HIGH-LEVEL USE OF FORCE

The fundamental supervisor responsibilities listed above remain consistent when responding to a High-Level Use of Force, however there are additional concerns given the gravity of the situation, as well as the physical and emotional toll that these encounters take on the officers involved, as well as the witnesses. These additional measures must be taken by supervisory personnel.

Upon arrival, the supervisor should focus their attention to officer safety and public safety concerns. The supervisor will need to determine a brief accounting of what happened. However, this early stage should focus on what happened and what areas are to be included in the scope of the investigation, see Appendix A Public Safety Statement. Detailed explanation or justifications of officer's actions are premature and not necessary at this point in time.

Request additional officers to respond. To include, the chief, captain, evidence technician, detectives, and additional patrol officers to properly secure the scene and investigate the incident.

After securing the scene and witnesses, focus should be moved to the involved officers. The department recognizes that officers involved in shooting situations or other high-level uses of force are likely to experience one or more of the following physiological reactions:

  • A sense of slow motion, caused by accelerated thought process
  • A sense of detachment, including auditory blocking
  • Tunnel vision
  • A skewed sense of time and space relations
  • Nausea or vomiting
  • An increase in blood pressure
  • Rapid heart rate
  • Involuntary urination or defecation
  • Speech impairment
  • Uncontrollable crying
  • Shock.
  • Guilt
  • Anger
  • Disbelief

The department's goal is to minimize the negative effects and potential threat to officer’s health by these reactions.

Remove the involved officers from the scene as soon as possible. The officer involved shall be transported as soon as possible to the hospital for evaluation. Assign a supportive peer officer to accompany and remain with the officer to provide assistance. A supervisor will secure all equipment of the involved officer. The equipment shall remain in the identical condition as when secured. No weapon will be unloaded or changed in condition.

Assist the involved officer with contact family, clergy, and/or legal counsel. Under no circumstances will an officer involved either directly or as a witness be placed in the rear seat of a police car. No officer will be held or isolated in any area without a peer support officer.

The Chief of Police or his designee shall, when feasible, personally go to the home of the officer involved to make notification to family members and provide transportation to the hospital or other location as required. If the officer involved is injured, every reasonable effort will be made to make the notification in person or cause the notification to be made in person by a member of another agency. If it is not feasible to make and "in person" contact, only then shall telephone contact be initiated. Every effort will be made to assist the family members with transportation and to provide the family members with a support person. Preferably one that the family is comfortable with.

After medical evaluation and treatment, the assigned support officer shall transport the officer home. Under no circumstances will the officer involved be permitted to drive themselves home.

No investigative examination or interview of the officer will take place until authorized by the Chief of Police or his designee.

Should the incident take place outside the jurisdictional boundaries of the city of Ferndale, the first responding Ferndale officer or supervisor will immediately take charge and control of the involved officer. They will remain with the officer at all times. The involved officer and the responding officers should take into consideration the direction or assistance of the officer of the jurisdiction in which the incident occurred. However, where directions or orders of another agency are contrary to the general orders or procedures of the Ferndale Police Department, the officers shall not be required to follow any without the express authorization of the Chief of Police or his designee. Every attempt shall be made by the supervisor, or senior officer on scene, to politely advise the ranking officer of the agency with jurisdiction of the existence of the conflict in orders and that the orders of that jurisdiction cannot be carried out by Ferndale police personnel.

RELEASE OF INFORMATION

The Chief of Police, or his designee, will be responsible for the issuance of any statements to the public, including the news media. No identification of the involved personnel will be made without authorization from the Chief of Police or his designee. No member of the department will make any comment or release any information to any person outside of the Ferndale Police Department without authorization from the Chief of Police.

ADMINISTRATIVE LEAVE

Officers involved in the high-level use of force resulting in serious injury or death to any person shall be:

  • Temporarily removed from duty pending a documented meaningful review of the incident. (MLEAC 3.3.4)
  • Assigned to meet with a trained and licensed psychologist or licensed social worker, experienced in counselling and treating officer involved in high-use of force incidents. A minimum of one counselling session shall be required prior to the officer being authorized to return to duty.
  • Ordered to take administrative leave at the discretion of the Chief of Police, or his designee.

EVIDENCE

Any firearms, less-lethal tools, other instruments, or items involved in the incident will be identified and collected by evidence technicians and held for investigation. Firearms or other equipment not involved in the incident shall not be taken into evidence, unless there is a specific identifiable need to do so. In the event an officer's duty handgun is taken for evidentiary purposes, it will be replaced with another department-issued handgun as soon as feasible.

Appendix A: PUBLIC SAFETY STATEMENT

“Officer, I am ordering you to give me a Public Safety Statement. Due to the immediate need to take action, you do not have the right to wait for representation to answer these limited questions."

  • Were you involved in an officer-involved shooting?
  • Approximately how many rounds did you fire and in what direction did you fire them?
  • Do you know if any other officers fired any rounds?
  • Is it possible the suspect fired rounds at you?
  • Is anyone injured? If so, where are they located
  • Are you aware of any witnesses? If so, what is their location?
  • Approximately, where were you when you fired the rounds?
  • Are there any outstanding suspects? If so, what is the description, direction, and mode of travel?
  • How long have they been gone? What crime(s) are they wanted for? What weapons are they armed with?
  • Are there any weapons or evidence that need to be secured/protected? Where are they located?

FAQs

Are Ferndale Police Department officers trained to deescalate altercations by using peaceful conflict resolution strategies?

Yes. Ferndale Police officers are trained in both deescalation and conflict resolution. This is something we believe in, and is a requirement of the rigorous accreditation process we are working to complete. We also ensure that our policy maintains its effectiveness by:

  • Training/educating staff;
  • Ensuring that it's fully understood by employees;
  • Supervising and overseeing for violations; and
  • Taking corrective action and discipline for violations.

Are Ferndale Police officers forbidden from using certain kinds of invasive restraint techniques?

Ferndale Police Department officers are forbidden from using carotid restraints (chokeholds, strangleholds, etc.), "hog-tying" restraints, transporting civilians in uncomfortable positions (such as face-down in a vehicle), and other similar invasive restraint techniques. These forbidden techniques are all outlined in our policy, above.

Are Ferndale Police officers permitted and/or required to intervene if they witness a fellow officer using excessive force?

Yes. Ferndale Police officers are not just permitted but required to intervene if they witness another officer using excessive force. Furthermore, any officer who witnesses use of excessive force and fails to intervene will be reprimanded.

Are Ferndale Police officers required to give a verbal warning to civilians before drawing their weapon or using excessive force?

This depends on the situation. In most cases, yes, if they are able to.

A good example: an officer is searching a dark yard for a suspect accused of committing a violent crime. The officer likely will have a weapon drawn as a means of protection without announcing that he or she is doing so. Once the suspect is located, the officer will announce themselves and their weapon and deliver commands.

Are Ferndale Police officers required to report each time they threaten to or use force on civilians?

Anytime an officer draws a pistol, rifle, or taser, whether they use the weapon or not, it is considered use of force and is required to be documented per Department policy.

Are Ferndale Police officers vetted to ensure they don't have a history with abuse, racism, xenophobia, homophobia/transphobia, or discrimination?

Yes, 100%. The Ferndale Police Department has zero tolerance for abusive and discriminatory behavior, and we spend considerable resources having officers thoroughly vetted by background investigators before hire.

Is there a clear and enforced use-of-force continuum that details which weapons and techniques are acceptable in civilian-police interactions?

Use of force is dynamic and fluid, allowing for a continuum of responses that flow up and down in tune with a subject's actions. This is a newer, more modern way of approaching use-of-force education, and is a move away from the older "if X occurs, you are authorized to perform Y" style. We train officers to recognize that all options are on the table at all times, including talking, getting some distance, and finding cover. Our officers are often in fast-moving, potentially violent encounters; a fluid continuum provides options for law enforcement professionals who are forced to make incredibly rapid decisions.

Is there an early intervention system to correct officers who use excessive force?

Every use of force gets reviewed on at least 3-4 different levels:

  1. Review by immediate supervisors
  2. Review by Shift Lieutenant
  3. Review by Use of Force Command Officer
  4. Review by the Patrol Division Captain

Every incident is added into a electronic personnel file. The Police Chief personally reviews each entry and engages with the officer in question. The Ferndale Police Department is relatively small, comparatively, and top-to-bottom supervision and interaction are constant.

What can I do, as a concerned citizen, to educate myself and help set good policing policies in motion?

The Ferndale Police Department works incredibly hard to set and enforce smart, effective policies and provide rigorous education and training. If you have ideas about policies, procedures, or improvements, the best place to start is by enrolling in a citizen police academy. Get to know our officers, our current policies, why we created them, and how they work. Not all police departments are alike, and we're happy to show you the inner workings of ours. The best place to start a conversation is from a place of involvement and education, so let's work together to start that conversation.

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