University Police Use of Force Policy

Definitions related to this policy include:

Objectively Reasonable — An objective standard used to judge an officer’s actions. Under this standard, a particular application of force must be judged through the perspective of a reasonable officer facing the same set of circumstances, without the benefit of 20/20 hindsight, and be based on the totality of the facts that are known to that officer at the time that the force was used. (Graham, 490 U.S. 396 (1989))

Deadly Physical Force — Physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury. (NY Penal Law § 10 (11))

De-escalation — Taking action or communicating verbally or non-verbally during a potential force encounter in an attempt to stabilize the situation and reduce the immediacy of the threat so that more time, options, and resources can be called upon to resolve the situation without the use of force or with a reduction in the force necessary. De-escalation may include the use of such techniques as command presence, advisements, warnings, verbal persuasion, and tactical repositioning.

Force — The application of physical techniques or tactics, chemical agents or weapons to another person. It is not a use of force when a person allows him/herself to be searched, escorted, handcuffed or restrained.

Physical Injury — Impairment of physical condition or substantial pain. (NY Penal Law § 10 (9))

Serious Physical Injury — Physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function 

The federal and state standards by which use of force is measured are both founded in the basic premise of objective reasonableness. (Force which is objectively reasonable is insulated from criminal liability through Article 35 of the NYS Penal Law and civil liability by the 4th Amendment standard of objective reasonableness)  

The amount of force that is used by the officers shall be the amount of force that is objectively reasonable under the circumstances for the officer involved to effect an arrest, prevent an escape, or in defense of themselves or others. The standard of objective reasonableness, established by the United States Supreme Court in Graham v. Connor, is used in this policy and is intended to provide officers with guidelines for the use of force, including deadly physical force. 

As the Supreme Court has recognized, this reasonableness inquiry embodies “allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” (Graham v. Connor, 490 U.S. 386 at 396 (1989))

This policy is written in recognition of the value of all human life and dignity without prejudice to anyone. Vesting officers with the authority to use reasonable force and to protect the public welfare requires a careful balancing of all interests.

If possible, officers should attempt to de-escalate situations by communicating with subjects, maintaining distance, and otherwise eliminating the need to use force.  

Any officer present and observing another officer using force that he/she reasonably believes to be clearly beyond that which is objectively reasonable under the circumstances shall intercede to prevent the use of unreasonable force, if and when the officer has a realistic opportunity to prevent harm.

An officer who observes another officer use force that exceeds the degree of force as described in this section shall promptly report these observations to a supervisor.

In general terms, force is authorized to be used when reasonably believed to be necessary to effect a lawful arrest or detention, prevent the escape of a person from custody, or in defense of one’s self or another. (NY Penal Law and § 35.30(1)) 

Under the 4th Amendment, a police officer may use only such force as is “objectively reasonable” under the circumstances. The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene. (Graham, 490 U.S. at 396 (1989)) 

Given that no policy can realistically predict every possible situation an officer might encounter, officers are entrusted to use well-reasoned discretion in determining the appropriate use of force in each incident.

Officers should use de-escalation techniques and other alternatives to higher levels of force consistent with their training whenever possible and appropriate before resorting to force and to reduce the need for force.  Officers should allow an individual time and opportunity to submit to verbal commands before force is used whenever possible and when such delay will not compromise the safety of the officer or another and will not result in the destruction of evidence, escape of a suspect, or commission of a crime.

It is also recognized that circumstances may arise in which officers reasonably believe that it would be impractical or ineffective to use any of the tools, weapons or methods provided by this department.   Officers may find it more effective or reasonable to improvise their response to rapidly unfolding conditions that they are confronting.  In such circumstances, the use of any improvised device or method must nonetheless be reasonable and utilized only to the degree that reasonably appears necessary to accomplish a legitimate law enforcement purpose.

While the ultimate objective of every law enforcement encounter is to avoid or minimize injury, nothing in this policy requires an officer to retreat or be exposed to possible physical injury before applying reasonable force.

A police officer or a peace officer may use reasonable physical force to effect an arrest or prevent escape (Penal Law § 35.30).

When used, force should be only that which is objectively reasonable given the circumstances perceived by the officer at the time of the event. 

Factors that may be used in determining the reasonableness of force include, but are not limited to:

1. The severity of the crime or circumstance; (Ibid)
2. The level and immediacy of threat or resistance posed by the suspect; (Ibid)
3. The potential for injury to citizens, officers, and suspects; (Scott v. Harris, 550 U.S. 372 (2007)) 
4. The risk or attempt of the suspect to escape; (Graham, 490 U.S. at 396 (1989))
5. The knowledge, training, and experience of the officer; (Graham v. Connor, 490 U.S. 386 (1989), Terry v. Ohio, 392 U.S. 1 (1968)) 
6. Officer/subject considerations such as age, size, relative strength, skill level, injury or exhaustion, and the number of officers or subjects; (Sharrar v. Felsing, 128 F. 3d 810 (3rd Cir. 1997)) 
7. Other environmental conditions or exigent circumstances. (Chew v. Gates, 27 F. 3d 1432, 1475 n.5 9th Cir. (1994)) 

Pain compliance techniques may be effective in controlling a physically or actively resisting individual. Officers may only apply those pain compliance techniques for which they have successfully completed department-approved training. Officers utilizing any pain compliance technique should consider:

1. The degree to which the application of the technique may be controlled given the level of resistance.
2. Whether the individual can comply with the direction or orders of the officer.
3. Whether the individual has been given sufficient opportunity to comply.

The application of any pain compliance technique shall be discontinued once the officer determines that compliance has been achieved.

Deadly physical force may be used by an officer to protect themselves or another person from what the officer reasonably believes is an imminent threat of serious physical injury or death. ( NY Penal Law and § 35.30(1)(c)

Deadly physical force may be used to stop a fleeing suspect where: 

1. The officer has probable cause to believe the suspect has committed a felony involving the infliction or threat of serious physical injury or death; and,  
2. The officer reasonably believes that the suspect poses an imminent threat of serious physical injury to the officer or to others. 
3. Where feasible, some warning should be given prior to the use of deadly physical force. (NY Penal Law and § 35.30(1), as restricted by Tennessee v. Garner, 471 U.S. 1 (1985) (restricting the use of deadly physical force as it relates to fleeing felons) In Garner, the Supreme Court uses “significant threat of serious physical harm, either to the officer or others” in describing the limited circumstances under which deadly force can be used to prevent the escape of a felon.)

Chokeholds and Obstruction of Breathing or Blood Circulation 

1. Any application of pressure to the throat, windpipe, neck, or blocking the mouth or nose of a person in a manner that may hinder breathing, reduce intake of air or obstruct blood circulation, is prohibited unless deadly physical force is authorized. (NY Penal Law § 121.13-a establishes the crime of Aggravated Strangulation)

Force shall not be used by an officer for the following reasons:

1. To extract an item from the anus or vagina of a subject without a warrant, except where exigent circumstances are present;   
2. To coerce a confession from a subject in custody;  
3. To obtain blood, saliva, urine, or other bodily fluid or cells, from an individual for the purposes of scientific testing in lieu of a court order where required;  
4. Against persons who are handcuffed or restrained unless it is used to prevent injury, escape, or otherwise overcome active or passive resistance posed by the subject

Shots fired at or from a moving vehicle pose significant risks to the public and may not effective. 

Firearms shall not be discharged at a moving vehicle unless:

1. a person in the vehicle is threatening the officer or another person with deadly force by means other than the vehicle; or
2. the vehicle is operated in a manner deliberately intended to strike an officer or another person, and all other reasonable means of defense have been exhausted (or are not present or practical), which includes moving out of the path of the vehicle.

Firearms shall not be discharged from a moving vehicle except in exigent circumstances. In these situations, an officer must have an articulable reason for this use of deadly force. Officers should not shoot at any part of a vehicle in an attempt to disable the vehicle.

1. A police or peace officer or other law enforcement entity who has custody of a person must provide attention to the medical and mental health needs of a person in their custody and obtain assistance and treatment of such needs, which are reasonable and provided in good faith. (N.Y. Civil Rights Law § 28)
   1. This includes appropriate and timely medical attention being provided to a party injured as a result of a use of force incident.
   2. The immediate mental health needs of a person shall be based upon the reasonable cause to believe that a person, who appears to be mentally ill, is conducting themselves in a manner which is likely to result in a serious harm to themselves or others. (N.Y. Mental Hygiene Law § 9.41)
2. Members involved in use of force incidents as described below shall notify their supervisor as soon as practicable and shall complete a departmental use of force report.
   1. Use of force that results in a physical injury.
   2. Use of force incidents that a reasonable person would believe is likely to cause an injury.
   3. Incidents that result in a complaint of pain from the suspect except complaints of minor discomfort from compliant handcuffing. 
   4. Incidents where a conducted energy device (CED) was intentionally discharged or accidentally discharged after being displayed. 
   5. Incidents where a firearm was discharged at a subject.  (NY EXC § 837-v requires that any discharge of a weapon, while either on duty or off duty, in the direction of a person be verbally reported to the involved officer’s supervisor within six hours and a written report prepared within forty-eight hours of occurrence)
   6. The individual indicates intent to pursue litigation.
   7. An individual was struck or kicked.
3. A standardized use of force form should be used to document any reportable use of force incident. (Chiefs of police departments, County Sheriffs, and the Superintendent of State Police should consider utilizing these forms to ensure compliance with the administrative reporting requirement of EXC §837-t.)
4. Officers should document any requests for necessary medical or mental health treatment as well as efforts of police to arrange for such treatment

Any use of force by a member of this department shall be documented promptly, completely and accurately in an appropriate report, depending on the nature of the incident. The officer should articulate the factors perceived and why he/she believed the use of force was reasonable under the circumstances. To collect data for purposes of training, resource allocation, analysis and related purposes, the department may require the completion of additional report forms, as specified in department policy, procedure or law.

Law enforcement agencies are required to submit details of the incident to DCJS, including, but not limited to date of incident, agency involved, county, town/city, description of circumstances, and demographics of all persons engaging in the use of force or suffering such injury.
 
For reporting purposes, Executive Law 837-t requires each police department, county sheriff and the state police to report any occurrence in which a police officer or peace officer employs use of force as listed below: 

• When an officer engages in conduct which results in the death or serious bodily injury of another person. Serious bodily injury is defined as bodily injury that involves a substantial risk of death, unconsciousness, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty.
• When one of the following is initiated by an officer:
  • Brandishes, uses or discharges a firearm at or in the direction of another person;
  • Uses a chokehold or similar restraint that applies pressure to the throat or windpipe of a   person in a manner that may hinder breathing or reduce intake of air;
  • Displays, uses or deploys a chemical agent, including, but not limited to, oleoresin capsicum, pepper spray or tear gas;
  • Brandishes, uses or deploys an impact weapon, including, but not limited to, a baton or billy;
  • Brandishes, uses or deploys an electronic control weapon, including, but not limited to, an electronic stun gun, flash bomb, or long-range acoustic device. 

Law enforcement agencies are responsible for reporting information for their officers who are involved in use-of-force incidents that meet the criteria of the data collection listed above. Law enforcement agencies are required to submit details of the incident to DCJS, including, but not limited to:

• date of incident;
• agency involved;
• county, town/city;
• description of circumstances; and
• demographics of all persons engaging in the use of force or suffering such injury.

How to Report:  State mandated reporting to DCJS for Use of Force Incidents and Death reporting is available through the eJusticeNY IJ Portal. A guide to submitting incidents involving Use of Force and Arrest Related Deaths to the New York State Crime Reporting program via the Integrated Justice Portal (IJPortal) interface can be found here: New York State Use of Force and Arrest Related Death Data Entry Interface User Guide
 
More information about the New York State Use of Force Collection program can be found on the DCJS Use of Force Reporting website including answers to frequently asked questions.

Prior to booking or release, medical assistance shall be obtained for any person who exhibits signs of physical distress, has sustained visible injury, expresses a complaint of injury or continuing pain, or was rendered unconscious. Any individual exhibiting signs of physical distress after an encounter should be continuously monitored until he/she can be medically assessed.

Based upon the officer’s initial assessment of the nature and extent of the individual’s injuries, medical assistance may consist of examination by an emergency medical services provider or medical personnel at a hospital or jail. If any such individual refuses medical attention, such a refusal shall be fully documented in related reports and, whenever practicable, should be witnessed by another officer and/or medical personnel. If a recording is made of the contact or an interview with the individual, any refusal should be included in the recording, if possible.

The on-scene supervisor, or if not available, the primary handling officer shall ensure that any person providing medical care or receiving custody of a person following any use of force is informed that the person was subjected to force. This notification shall include a description of the force used and any other circumstances the officer reasonably believes would be potential safety or medical risks to the subject (e.g., prolonged struggle, extreme agitation, impaired respiration).

Individuals who exhibit extreme agitation, violent irrational behavior accompanied by profuse sweating, extraordinary strength beyond their physical characteristics and imperviousness to pain (sometimes called “excited delirium”), or who require a protracted physical encounter with multiple officers to be brought under control, may be at an increased risk of sudden death. Calls involving these persons should be considered medical emergencies. Officers who reasonably suspect a medical emergency should request medical assistance as soon as practicable and have medical personnel stage away (see the Medical Aid and Response Policy).

1. Where practicable, a supervisor should respond to the scene to begin the preliminary force investigation.
2. A supervisor that is made aware of a force incident shall ensure the completion of a use of force report by all officers engaging in reportable use of force and, to the extent practical, make a record of all officers present.
3. Photographs should be taken which sufficiently document any injuries or lack thereof to officers or suspects.
4. The Chief of Police through chain of command will receive the supervisor’s report and conduct an investigation.
5. Consistent with campus disciplinary protocols and any applicable collective bargaining agreements, agency policy should establish standards for addressing the failure to adhere to use of force guidelines. (NYS EXECUTIVE LAW §840(4)(d)(2)(vi)) 

When a supervisor is able to respond to an incident in which there has been a reported application of force, the supervisor is expected to:

1. Obtain the basic facts from the involved officers. Absent an allegation of misconduct or excessive force, this will be considered a routine contact in the normal course of duties.
2. Ensure that any injured parties are examined and treated.
3. When possible, obtain the basic facts of the incident from the individual upon whom force was applied.
4. Once any initial medical assessment has been completed or first aid has been rendered, ensure that photographs have been taken of any areas involving visible injury or complaint of pain, as well as overall photographs of uninjured areas.
5. Identify any witnesses not already included in related reports.
6. Review and approve all related reports.
7. Evaluate the circumstances surrounding the incident and refer to the Chief of Police through chain of command if there is a question of policy noncompliance or if for any reason further investigation may be appropriate.

In the event that a supervisor is unable to respond to the scene of an incident involving the reported application of force, the supervisor is expected to complete as many of the above items as circumstances permit.

The supervisor shall review each use of force by any personnel within his/her command to ensure compliance with this policy and to address any training issues.

All officers should receive training and demonstrate their understanding on the proper application of force. 

Training topics will include use of force, conflict prevention, conflict resolution and negotiation, and de-escalation techniques and strategies, including, but not limited to, interacting with persons presenting in an agitated condition as well as duty to intervene and prohibited conduct. (EXC §840(4)(d)(2)(vii))

This policy is not intended to be a substitute for proper training in the use of force. Comprehensive training is the key to the real-world application of the concepts discussed within this policy.

All officers shall receive training, at least annually, on this agency’s use of force policy and related legal updates. All use-of-force training shall be documented.