HomeMy WebLinkAboutItem 5: Approval of SB111 Use of Force Plan
ECC
UGENE ITY OUNCIL
AIS
GENDA TEM UMMARY
Action: SB111 Use of Deadly Physical Force Plan
Meeting Date: March 10, 2008 Agenda Item Number: 5
Department: Eugene Police Staff Contact: Chief Robert Lehner
www.eugene-or.gov Contact Telephone Number: 541-682-5102
ISSUE STATEMENT
This is a request for council approval of SB111 Use of Deadly Physical Force Plan. SB111 requires
counties to create a plan to be adopted by two-thirds of the governing bodies employing law
enforcement agencies in that county. This plan provides step-by-step procedures for the planning
authority, law enforcement agencies, the District Attorney, and the involved officer in the event of the
use of deadly physical force by an officer.
BACKGROUND
SB111 was adopted by the 2007 Oregon Legislature and requires each county to create a Deadly
Physical Force Planning Authority that is responsible for development of a plan that meets the
requirements set forth in SB111. The District Attorney and Sheriff are co-chairpersons of each county’s
planning authority. Every county’s plan must be adopted by two-thirds of the governing bodies
employing law enforcement agencies in that county and must be approved by the Attorney General.
Attachment A includes a letter from the Lane County Deadly Force Planning Authority requesting the
City of Eugene’s approval of the Lane County plan. Attachment B provides a copy of the Interagency
Deadly Force Investigations Team Memorandum of Understanding, detailing how investigations will
occur once the Lane County plan is in effect.
The use of deadly physical force by law enforcement personnel is a matter of critical concern both to the
public and to the law enforcement community. The purpose of the Lane County Use of Deadly Physical
Force Plan (attachment C) is to provide a framework for a consistent response to an officer’s use of
deadly physical force that treats the law enforcement officer fairly, and promotes public confidence in
the criminal justice system. Deadly physical force means physical force that under the circumstances in
which it is used is readily capable of causing death or serious physical injury.
The Eugene Police Department (EPD) participated in the development of the Lane County plan and with
minor exception, finds the provisions of the plan to be in accord with existing EPD policy and
procedures. In addition, the Lane County plan has been provided to other counties by the Oregon
Attorney General’s Office to use as a model policy. In the past, EPD has conducted its own criminal
investigation in advance of the administrative investigation associated with these events. The new plan
provides for a standing multi-agency investigations team under the supervision of an Oregon State
Police (OSP) supervisor. EPD is in agreement with this change. The plan has been evaluated by both
F:\CMO\2008 Council Agendas\M080310\S0803105.doc
the Eugene Police Chief and Eugene Police Auditor. Both concluded that the plan does not affect the
scope and responsibility of the Police Auditor’s position.
The new provisions of this 2007 Legislative Act will become operative on July 1, 2008. Assuming the
plan will have been approved by two-thirds of the governing bodies in the county, the Lane County Use
of Deadly Physical Force Plan will be applicable to any use of deadly physical force by a police officer
acting in the course of and in furtherance of his/her official duties, occurring within Lane County,
regardless of jurisdiction.
RELATED CITY POLICIES
The City Council’s goals of “A Safe Community - Where People Feel Safe, Valued and Welcome” and
“Effective, Accountable Municipal Government – A Government That Works Openly, Collaboratively,
And Fairly With The Community To Achieve Measurable And Positive Outcomes” are applicable to this
2007 Use of Deadly Physical Force Plan.
The City of Eugene has a long history of cooperating with other law enforcement entities through
interagency agreements that pertain to joint law enforcement procedures and shared resources.
COUNCIL OPTIONS
The council has two clear options regarding adoption of the SB111 Use of Deadly Physical Force Plan.
Option A: The council may choose to adopt the Lane County Use of Deadly Physical Force plan as
presented; or
Option B: The council may not choose to adopt the SB111 Use of Deadly Physical Force Plan, although
by Oregon Revised Statutes the provisions of the Lane County plan will still apply to the
Eugene Police Department.
CITY MANAGER’S RECOMMENDATION
The City Manager recommends adoption of the Lane County Use of Deadly Physical Force Plan.
SUGGESTED MOTION
I move to adopt the Lane County Use of Deadly Physical Force Plan.
ATTACHMENTS
A. Letter from Lane County Deadly Force Planning Authority
B. Interagency Deadly Force Investigations Team Memorandum of Understanding
C. Lane County Use of Deadly Physical Force Plan
FOR MORE INFORMATION
Staff Contact: Linda Phelps, Police Planner
Telephone: 541-682-6308
Staff E-Mail: linda.m.phelps@ci.eugene.or.us
F:\CMO\2008 Council Agendas\M080310\S0803105.doc
ATTACHMENT C
DEADLY
PHYSICAL
FORCE
PLAN
Lane County
Use of Deadly Physical Force
Planning Authority
Table of contents
MEMBERS OF THE PLANNING AUTHORITY....................................................2
PREAMBLE..........................................................................................................3
SECTION 1: ADMINISTRATION..........................................................................3
SECTION 2: APPLICABILITY OF THE PLAN.....................................................3
SECTION 3: DEFINITIONS..................................................................................3
SECTION 4: IMMEDIATE AFTERMATH.............................................................4
SECTION 5: SERIOUS PHYSICAL INJURY/DEATH..........................................5
SECTION 6: INVESTIGATION PROTOCOLS.....................................................8
SECTION 7: DISTRICT ATTORNEY....................................................................9
SECTION 8: DEBRIEFING.................................................................................10
SECTION 9: REPORTING, TRAINING, OUTREACH........................................10
SECTION 10: FISCAL IMPACT.........................................................................12
SECTION 11: PLAN REVISION.........................................................................12
SECTION 12: AGENCY POLICIES....................................................................12
Plan page 1
Members of the Planning Authority
Doug Harcleroad, Lane County District Attorney (co-chair)
Russ Burger, Lane County Sheriff (co-chair)
Lt. Mike Bloom, Oregon State Police
Chief Jerry Smith, Springfield Police Department
Deputy Les Sieczkowski, Labor Union Representative
David Crowell, Public Member
Officer Corey Mertz (non-voting member)
On January 2, 2007, this Plan was approved by the Planning Authority, and submitted for
approval to governing bodies of the following jurisdictions:
Lane County------------------------------------------------------
Approved/Disapproved (date)
City of Coburg---------------------------------------------------
Approved/Disapproved (date)
City of Cottage Grove-------------------------------------------
Approved/Disapproved (date)
City of Eugene----------------------------------------------------
Approved/Disapproved (date)
City of Florence--------------------------------------------------
Approved/Disapproved (date)
City of Junction City---------------------------------------------
Approved/Disapproved (date)
City of Oakridge-------------------------------------------------
Approved/Disapproved (date)
City of Springfield-----------------------------------------------
Approved/Disapproved (date)
Plan page 2
Preamble
The use of deadly physical force by law enforcement personnel is a matter of critical
concern both to the public and to the law enforcement community. The purpose of this
Plan is not to set the standards for the use of such force, or to be a substitute for agency
policy regarding use of force, but rather to provide a framework for a consistent response
to an officer’s use of deadly physical force that treats the law enforcement officer fairly,
and promotes public confidence in the criminal justice system.
Section 1: Administration
(1) In the event that a member of the planning authority is unable to continue to
serve, a replacement shall be appointed as provided in Section 2(1) of Senate Bill
111, Oregon Laws 2007.
(2) There shall be six voting members of the Planning Authority. The approval of the
Plan, elements or revisions thereof, shall be by majority vote.
(3) The presence of 2/3 of the voting members shall be required in order to hold any
vote.
(4) Any meeting of a quorum of the voting members of the Planning Authority is
subject to Oregon’s open meeting law.
Section 2: Applicability of the Plan
(1) This plan shall be applicable, as set forth herein, to any use of deadly physical
force by a police officer acting in the course of and in furtherance of his/her
official duties, occurring within Lane County.
Section 3: Definitions
Agency
– Means the law enforcement organization employing the officer who used
deadly physical force.
Plan
- Means the final document approved by the Planning Authority, adopted by
two-thirds of the governing bodies employing law enforcement agencies,
and approved by the Attorney General. Any approved revisions shall
become a part of the Plan.
Plan page 3
Police-
Means a police officer or reserve officer as defined in ORS 181.610 and
Officer
who is employed by a law enforcement agency to enforce the criminal
laws of the State of Oregon.
Deadly
– Means physical force that under the circumstances in which it is used is
Physical
readily capable of causing death or serious physical injury.
Force
Serious-
Has the same meaning as “serious physical injury” as defined in ORS
Physical
161.015(8).
Injury
Physical-
Means impairment of physical condition or substantial pain that does not
Injury
amount to “serious physical injury.”
Involved-
Means the person whose official conduct, or official order, was the cause
Officer
in fact of the death of a person. “Involved Officer” also means an officer
whose conduct was not the cause in fact of the death, but who was
involved in the incident before or during the use of deadly physical force,
and this involvement was reasonably likely to expose the officer to a
heightened level of stress or trauma.
Section 4: Immediate Aftermath
(1) When an officer uses deadly physical force, the officer shall immediately take
whatever steps are reasonable and necessary to protect the safety of the officer
and any member of the public.
(a) After taking such steps, the officer shall immediately notify his or her
agency of the use of deadly physical force.
(b) Thereafter, the officer, if able, shall take such steps as are reasonably
necessary to preserve the integrity of the scene and to preserve evidence.
(c) Upon request, the officer shall provide information regarding the
circumstances as necessary to protect persons and property, preserve any
evidence, and to provide a framework for the investigation.
(2) If the use of deadly physical force results in physical injury, the Agency may
employ its own resources to investigate and document the incident.
Plan page 4
(a) This section does not prohibit the Agency from requesting
assistance from an outside law enforcement agency.
Section 5: Serious Physical Injury/Death
When the use of deadly physical force results in death or serious physical injury to any
person, in addition to the requirements of Section 4 (1) of this Plan, and notwithstanding
agency policy, the following provisions apply:
(1) Upon the arrival of additional officers, sufficient to manage the scene, each
Involved Officer shall be relieved of the above duties set forth in Section 4 (1) of
the Plan, and the duties shall be re-assigned to uninvolved policepersonnel.
(2) As soon as practicable, each Involved Officer shall leave the scene, as directed by
his or her supervisor, and be offered an opportunity for a medical examination.
If the officer is not in need of medical treatment, the officer shall be taken to the
Agency offices. If requested by the Involved Officer, the officer’s union
representative shall be notified.
(3) As soon as practicable, the duty weapon of any officer who fired their weapon or
who was in the immediate vicinity where weapons were fired, shall be seized by
investigators, and replaced with a substitute weapon, if appropriate.
(4) Interview of an “Involved Officer”:
As used in this section “interview” refers to formal interview of the officer by
assigned investigative personnel that occurs a reasonable time after the
incident, and after the officer has had an opportunity to consult with
counsel, if so desired.
(a) The interview of the involved officer(s) who discharged a firearm during
a use of deadly physical force incident resulting in death or serious
physical injury, shall occur after a reasonable period of time to prepare for the
interview and taking into account the emotional and physical state of the
officer(s). The interview shall occur no sooner than 48 hours after the incident,
unless this waiting period is waived by the officer.
(b) The waiting period does not preclude an initial on-scene conversation with the
officer to assess and make an initial evaluation of the incident.
(c) The on-scene supervisor shall take immediate action to stabilize the situation,
ensure notification of the appropriate staff and agencies, and shall obtain a
Plan page 5
preliminary statement from the involved officer as soon as possible. The
purpose in obtaining this statement will be to obtain public safety information
(e.g. outstanding suspects, location of evidence, direction of travel, etc.).
(d) The scene shall be secured and managed consistent with the control of any
other major crime scene. Only personnel necessary to conduct the investigation
shall be permitted access to the scene. When it is determined that no evidence
will be contaminated or destroyed, the officer (s) involved may conduct a “walk
through) to assist in the investigation.
(5) For at least 72 hours immediately following an incident in which the use of
deadly physical force by a police officer resulted in the death of a person, a law
enforcement agency may not return an Involved Officer to duties that might
place the officer in a situation in which the officer has to use deadly force.
(a) Officer (s) involved in discharging his or her firearm that results in
death or serious physical injury shall immediately be placed on
administrative leave until such time as sufficient information exists to
determine the justification in the use of deadly physical force and that
the officer (s) have had an opportunity for mental health counseling
with an outcome that no issues would preclude the officer (s) from
performing the duties of a police officer.
(6) In the 6 months following a use of deadly physical force incident that
results in a death, the Agency shall offer each Involved Officer a minimum
of two opportunities for mental health counseling. The officer shall be
required to attend at least one session of mental health counseling.
(a) At agency expense, the involved officer (s) shall be scheduled for
an appointment with a licensed mental health counselor for a
counseling session with a follow-up session scheduled
at a date determined by the mental health professional.
(b) The counseling sessions are not to be considered fitness for duty
evaluations, and are to be considered privileged between the
officer and counselor.
(7) After consultation with the involved officer, the Agency or officer shall notify the
officer’s family according to the Agency’s General Order, or other policy
regarding such notification.
(8) As soon as practicable after the arrival of a supervisor, notification shall be made
to the District Attorney as provided in Section 8 (1) of this Plan.
Plan page 6
(a) This provision does not prevent the Agency from requiring
additional notification requirements within their respective
agency policies.
(9) In the event of a use of deadly force that results in death or serious physical
injury, the investigation shall be conducted by the Interagency Deadly Force
Investigations Team (IDFIT). A written agreement shall be adopted and approved
by each jurisdiction employing a law enforcement agency. At a minimum, the
agreement shall provide for:
(a) A mission statement.
(b) Who will be the supervisor of the investigating officers, and the
manner in which conflicts of interest will be resolved.
(c) The membership of the team, and the manner for selecting the
members.
(d) Investigative protocols that do not conflict with the requirements
of this Plan.
(e) Training of the members in the investigation of use of deadly
force incidents.
(f) The assignment of at least one officer from an agency other than
the involved officer’s agency.
(g) The assignment of at least one officer from the involved officer’s
agency.
(10) In the event that a conflict exists in the use of the IDFIT, the Involved
Officer’s Agency and the District Attorney shall consult and determine the
appropriate manner in which the investigation will proceed.
(11) The assignment of outside investigative personnel does not
preclude the agency involved from conducting a concurrent
investigation for administrative purposes as established by that
agency. Such investigations may be necessary for civil
preparation, determination of policy violations or training issues.
(12) In order to preserve the integrity of the investigation and prosecution, if one
occurs, the scene supervisor and investigative supervisor shall notify all involved
officers to refrain from making public statements about the investigation, until
Plan page 7
such time as the investigation has concluded and the District Attorney has made
a determination regarding the criminal responsibility of all involved persons.
(13) The Agency shall designate a representative to make an initial public
statement about the incident. Such statement shall include:
(a) The time and place of the incident.
(b) The condition of any suspect.
(c) The nature of the use of deadly physical force.
(14) Prior to a final determination being made by the District Attorney, the District
Attorney and the primary investigative agency shall consult with each other and
make a public release of information as is deemed appropriate.
Section 6: Investigation Protocols
(1) The investigation, at a minimum, shall consist of:
(a) Eyewitness interviews.
(b) Evidence collection.
(c) Scene documentation.
(d) Background interviews.
(e) Involved Officer interview(s)
(2) The investigation shall be documented in written reports.
(a) The IDFIT shall include in the Standard Operating Procedure, a provision
regarding the filing of reports regarding the criminal investigation. All
police reports regarding the criminal investigation shall be made available
to the IDFIT.
(b) All police reports shall be provided to the District Attorney.
Plan page 8
Section 7: District Attorney
(1) When an incident of the use of deadly physical force by an officer occurs, and
death or serious physical injury results, the agency shall, as soon as practicable
notify the District Attorney’s Office.
(a) Notification shall be made to the District Attorney, Chief Deputy, or other
senior member of the District Attorney’s staff.
(2) When a use of deadly physical force by an officer occurs, and death or serious
physical injury results, the District Attorney, and/or a senior member of his staff
will consult with the agency regarding the investigation and implementation of
the other elements of this plan.
(3) The District Attorney has the sole statutory and constitutional duty to make the
decision on whether to present a matter to a Grand Jury.
(a) Preliminary Hearings will not be used as a method of reviewing an
officer’s use of deadly force.
(b) The District Attorney will consult with the investigating agency and make
the decision on whether to present the case to a Grand Jury.
(1) The timing of the decision will be made by the District Attorney at
such time as he has determined that sufficient information is
available to competently make the decision.
(c) If the District Attorney decides to present a case to the Grand Jury, the
District Attorney shall promptly notify the investigating agency, the
involved officer’s agency, and the involved officer’s representative.
(d) If the District Attorney decides that the investigation reveals that the
officers use of deadly force was justified under Oregon law, and that
Grand Jury review is unnecessary, the District Attorney shall so notify the
Agency, the involved officer, the involved officer’s representative, and the
public.
(4) If the use of deadly physical force results in physical injury to someone other than
a police officer, upon completion of the investigation, all investigative
information shall be forwarded to the District Attorney for review.
Plan page 9
Section 8: Debriefing
The use of deadly physical force by an officer has the potential to create strong
emotional reactions which have the potential to interfere with an officer’s ability to
function. These reactions may be manifested immediately, or over time. Further, these
reactions may occur not only in an officer directly involved in the incident, but also in
other officers within the Agency.
The requirements of this section provide a minimum framework, and are not
intended to take the place of Agency policy. Agencies are encouraged to develop formal
procedures to deal withan officer’s stress response following a use of deadly force
incident. Such policies should include a procedure thatis implemented from the time of
the incident and continue over time.
(1) Upon a final determination by the District Attorney, the Agency shall conduct an
internal review of the matter for compliance with agency policy. Such review, at
a minimum shall include a review of the incident with the involved officer.
(2) If the incident is of such a magnitude that agency-wide morale is implicated, the
Agency shall take such steps as it deems necessary to ensure professional police
services are provided, and to develop strategies to restore morale.
(3) Each agency shall provide for a process for any officer who makes a request, to
participate in a critical incident debriefing.
(4) If available, agencies should encourage officers to take advantage of Employee
Assistance Programs, and if appropriate, agencies should request assistance from
other agencies that may have in place formal programs for dealing with critical
incidents.
Section 9: Reporting, training, outreach
(1) Each law enforcement agency within Lane County, shall include in the agency
policy regarding the use of deadly force, a provision regarding engaging members
of the community in a discussion regarding the Agency’s policies on the use of
deadly force, and well as discussions regarding the use of deadly force by the
Agency’s personnel.
Plan page 10
(2) Each law enforcement agency within Lane County shall provide a copy of this
Plan to every officer, incorporate the plan into agency policy documents and
provide training to officers on the implementation of the plan.
(3) Upon the conclusion of the investigation, the announcement by the District
Attorney pursuant to Section 8 (3) of this Plan, and the debriefing, the Agency
shall complete the Attorney General’s report regarding the use of force, and
submit the report to the Attorney General.
(4) The Board and Department of Public Safety Standards and Training
requires 8 hours per year, 24 hours over a 3 year period of training from either the
“firearms” or “use of force” subject areas. Each agency subject to this Plan shall
require that a minimum of 4 hours per year, 12 hours over a 3 year period, of that
training be on the use of force. The training must include education on the
agency’s use of force policy. This training may also include, but is not limited to:
a. Defensive Tactics.
b. Tactical Shooting.
c. SWAT training.
d. Use of force in making an arrest.
e. Use of less than lethal force.
f. Crisis intervention and the use of force.
g. Use of force in dealing with the mentally ill.
Each agency shall have a written policy and monitoring system to ensure that
the standards are met.
(5) Upon adoption of this Plan, to the extent they are fiscally able, each agency shall
take steps to publicize the Plan to their respective communities, by providing
information to the media, general public, community organizations, and quasi-
governmental bodies.
(6) At least once per calendar year, the Agencies subject to this Plan shall collectively
conduct a seminar intended to educate the media, government lawyers, and
selected members of the Lane County community in the use of force by law
enforcement officers ,and the investigation of such incidents.
(7) Prior to the adoption of this Plan, the Planning Authority shall take steps to
engage the Lane County community in a discussion regarding the purpose of the
Plan page 11
Plan, and the elements contained therein. Such steps shall include, but are not
limited to general public release of the draft, discussion with the media, providing
the draft to agency employees, union representatives, elected officials, and
members of relevant boards or commissions.
Section 10: Fiscal Impact
(1) At the conclusion of each fiscal year following the adoption of the Plan, each
agency shall submit to the administrator of the Plan, a report outlining the fiscal
impact of each element of the Plan as described in sections (a) to (e) of Section 2
(4) of Senate Bill 111, Oregon Laws 2006.
Section 11: Plan Revision
(1) As provided in the IDFIT written agreement, the Planning Authority shall meet to
review and discuss the operation of the Plan and the IDIFT.
(2) If a revision of the Plan becomes advisable, the Planning Authority shall meet and
discuss such a revision. If the Planning Authority adopts a revision, such revision
shall be submitted for approval as provided by statute.
Section 12: Agency Policies
Plan page 12