By David M. Greenwald
Davis, CA – The City of Davis announced on Monday that its independent police auditor report showed use of force to be well below state average—a piece of good news for the department.
The report marked the first full audit recommended by the commission and undertaken by the auditor.
“The Davis Police department was found to be well below the California state average and below that of neighboring communities in use of force incidents,” said Michael Gennaco. “In addition, our audit also details seven recommendations for policy changes that we believe will increase the transparency to police incidents, improve internal procedures and benefit the public.”
The police department used force in less than 0.02% of the 44,416 total calls for service in 2020, putting the city below the state average of 0.06% reported by the Department of Justice.
The audit also compares the Davis Police Department’s current policies related to the use of force publicized in Campaign Zero’s “8 Can’t Wait” initiative, as well as reviewing practices on “no knock” warrants. Campaign Zero is a national organization committed to reducing police violence.
The audit found that Davis’ policies generally conform to the “8 Can’t Wait” model policies, with opportunities for improvement through the seven recommendations for the city to consider, including more detailed reporting and analysis of use-of-force incidents, debriefs with mental health clinicians when a subject is in mental health crisis and a revision of warning shot policy.
“This detailed report gives the City and the Davis Police Department guidance on continued improvement of police policies,” said City Manager Mike Webb. “We are gratified to see that use of force is a rare occurrence in Davis community policing and that many of the police department policies go above and beyond ‘8 Can’t Wait’ recommendations.”
Mike Gennaco said at the PAC Meeting on Monday night that in none of the seven instances was the use of force out of compliance with departmental policies.
The full report can be found here.
In his report, he wrote, “We also found that, in practice, DPD officers’ field performance generally aligned with policy requirements.”
At the same time, he did note the following:
One officer used force in five of the seven cases reviewed and in no cases did he verbally warn the subject of the potential use of force prior to deployment.
In all seven incidents, the individual upon whom force was used expressed signs of being in mental health crisis or being under the influence of drugs or both.
There is a real potential for mental health clinicians to play a role in the city’s response to those in mental health crisis, either through being part of the city’s response or by providing insight to the department through after-action review and briefing by those specially skilled in dealing with the mentally ill.
The use-of-force documentation and review process would be improved with a change that required a more complete written account and analysis both from the officer him/herself and the documentation and analysis of the supervisory review process.
In addition, the audit described in detail several of the incidents where use of force was applied.
“As a result of a court order, access to information relating to this use of force has been limited. The responding officers used their bodyweight to take the resisting individual into custody. One officer placed his knee near or on the subject’s neck, above the shoulders and directly below the head,” Grennaco wrote. “This use of force was found to be ‘in policy by DPD supervisors.”
However, there is a caveat, as the case occurred “before the new DPD policy prohibiting neck restraints was enacted and, more notably, before the murder of George Floyd, which brought attention to the issue of placing knees and/or bodyweight on the neck, and subsequent changes to state law banning all neck holds.”
In another case, the police were called out to a motel where the subject “had locked himself in a room, was yelling loudly, and possibly destroying property.” After some interaction, “the subject threw a television set out of the room window.”
The motel manager requested the man be evicted from the motel room.
The man, clearly suffering a mental health crisis, yelled, “Yes, shoot me now.”
“An officer kicked open the door and officers entered the motel room. The subject was curled up on the bed, naked, in a prone position, lying on top of his dog. The subject expressed concern over his dog’s health and safety,” the report said.
“Officers attempted to negotiate with the subject for several minutes with no result. Officers then decided to pull the subject off the bed,” the report continued. “Two other officers grabbed the subject’s feet to pull him off the bed. The subject then reached under the mattress. The officer yelled, “He’s reaching!” and deployed the Taser.”
He was detained for a 72-hour mental health hold (5150) and arrested for felony vandalism and resisting a peace officer.
“This use of force was found to be ‘in policy’ by DPD supervisors,” Gennaco writes.
The report also notes, “Since this incident occurred in the early morning hours, a mental health clinician would not have been available to respond as Davis does not have mental health professionals available around the clock.”
Gennaco evaluated the city’s compliance with the “Can’t Wait Model Policies.”
Policy 1: Ban chokeholds and strangleholds. “The current DPD Use of Force Policy prohibits the use of any neck holds,” Gennaco writes. “This update was made in June of 2020. The California legislature banned the police use of neck holds commencing January 1, 2021. DPD’s current policy complies with the 8 Can’t Wait model policy on neck holds.”
Policy 2: Require warning before shooting.
This uses language from the San Francisco Police policy: “The law enforcement officer shall issue a verbal warning, when feasible, and have a reasonable basis for believing the warning was heard and understood by the individual at whom the warning is directed prior to using deadly force against the individual.”
However, DPD’s policy “does not expressly require a verbal warning before use of deadly force.”
One area where DPD’s does not align with model policy is “[t]he model policy specifically prohibits warning shots, stating, “Law enforcement officers shall not fire warning shots under any circumstances.” We noted that the DPD policy does allow warning shots in specific circumstances…”
He noted, “The firing of warning shots is inherently dangerous, particularly in an urban environment.” He added, “While DPD’s current policy highly restricts the use of warning shots, the better contemporary practice is to prohibit their use.”
Policy 3: Require de-escalation. “Officers shall, when feasible, employ de-escalation techniques to decrease the likelihood of the need to use force during an incident, and to increase the likelihood of voluntary compliance. Officers shall, when feasible, attempt to understand and consider the possible reasons why a subject may be non-compliant or resisting arrest.”
Gennaco writes: “DPD recognizes the various principles of de-escalation throughout training and policy. DPD also addresses de-escalation directly throughout its Use of Force policy, even creating a unique section for de-escalation specifically.”
In sum, he writes: “DPD officers seem cognizant of the contemporary emphasis on de-escalation as an approach to resolving encounters without reliance on physical force.”
He added that “the City has already committed to finding more optimal ways to deal with individuals in mental health crises, seems consideration well deserved.”
Policy 4: Exhaust alternatives before shooting. “The law enforcement officer has exhausted all reasonable alternatives to the use of deadly force, including de-escalation, other reasonable means of apprehending the subject, defending themselves or others…”
Gennaco found: “DPD’s current policy regarding use of deadly force captures the spirit of this requirement, though it does not explicitly state that officers must exhaust all alternatives.”
Policy 5: Duty to intervene. “All law enforcement officers must intervene when they reasonably believe that a law enforcement officer is using or is about to use unnecessary or excessive force in violation of this mission, and must report the incident to a supervisor. Failure to report incidents involving the use of unnecessary or excessive force will result in disciplinary action.”
This provision was strengthened by the passage of state law signed by the governor last week.
Gennaco found, “DPD’s current policies regarding duty to intervene are explicit. DPD goes beyond the model policy to specifically call out a supervisor’s responsibility to intervene and to prevent retaliation from adherence to this policy.”
Policy 6 bans shooting at moving vehicles.
DPD’s policy reads: “Shots fired at the occupants of a moving vehicle are rarely effective and are quite dangerous because of the increased likelihood of causing collateral damage and/or unintended injuries to bystanders.”
Gennaco notes: “The model policy prohibits an officer from shooting into a moving vehicle unless the occupants of the vehicle are using deadly force and instructs that the moving vehicle itself cannot be the basis for an officer shooting.”
He adds, “While not entirely aligned with the 8 Can’t Wait proposed policy, current DPD policy provides sufficient guidance to officers on the inadvisability of shooting at moving vehicles.”
He adds that DPD “should revise current DPD policy to restrict shooting from a moving vehicle” as well.
Policy 7: Requires use-of-force continuum. “DPD policy regarding use of force requires personnel to use the lowest level and amount of force needed to resolve a situation,” he writes, “The use of force policy lays out an escalating scale of force that begins with crisis intervention, de-escalation and pain compliance and ends with deadly force.”
DPD goes beyond the model policy: “When feasible, officers should endeavor to do everything reasonably possible to avoid unnecessary use of force, and minimize the force that is used, while still protecting themselves and the public.”
Finally, Policy 8 is comprehensive reporting of force. The 8 Can’t Wait standards include a policy to “[r]equire officers to report each time they use force or threaten to use force against civilians. Comprehensive reporting includes requiring officers to report whenever they point a firearm at someone, in addition to all other types of force.”
DPD’s policy specifically requires officers to report pointing a firearm at someone: “The pointing of a firearm at a person shall be documented in a regular police report and will be reviewed by a supervisor for compliance with this policy.”
On the no knock warrants: “Members executing warrants and/or conducting probation/parole searches will adhere to State and constitutional requirements regarding knock and notice and, when required prior to forced entry, announce their presence and provide the residents a reasonable opportunity to allow entry.”