Cattaraugus County Sheriff's Office on General Order A29: Use of Force and General Order A32: Critical Incident Response.

Use of Force - General Order A29

Purpose

Law enforcement officers around the country and here in New York State are authorized to use reasonable and legitimate force in specific circumstances. Federal, constitutional and state statutory standards dictate when and how much force can be used. This policy is founded in these standards, and is intended to direct the actions of the Cattaraugus County Sheriff's Office.

Policy

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 United States Constitution 4th Amendment standard of objective reasonableness. The amount of force that is used by the deputies of the Cattaraugus County Sheriff's Office 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 deputies 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." 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.

Deputies of the Cattaraugus County Sheriff's Office are expected to only use force in a lawful and justifiable manner. This means the unnecessary use of force or the use of force in an excessive or unreasonable amount or to use force in a cruel manner is an unjustified use of force and violates this policy.

Definitions

A. 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.

B. 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.

C. Physical Injury - Impairment of physical condition or substantial pain.

D. 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 of any bodily organ.

Use of Force

A. In general terms, force is authorized to be used when reasonably believed to be necessary to affect a lawful arrest or detention, prevent the escape of a person from custody, or in defense of one's self or another.

B. 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.

Determining the Objective Reasonableness of Force:

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

B. Some examples of 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;
2. The level and immediacy of threat or resistance posed by the suspect;
3. The potential for injury to citizens, officers, and suspects;
4. The risk or attempt of the suspect to escape;
5. The knowledge, training, and experience of the officer;
6. Officer/subject considerations such as age, size, relative strength, skill level, injury or exhaustion, and the number of officers or subjects;
7. Other environmental conditions or exigent circumstances.

Duty to Intervene

A. Any deputy, regardless of rank, present and observing another Law Enforcement 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.

B. Any deputy who observes another Law Enforcement officer use force that exceeds the degree of force as described in subdivision A of this section should promptly report these observations to a supervisor.

Use of Deadly Physical Force

A. Deadly physical force may be used by a deputy to protect them or another person from what the deputy reasonably believes is an imminent threat of serious physical injury or death.

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

1. The deputy 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 deputy reasonably believes that the suspect poses an imminent threat of serious physical injury to the deputy or to others.
3. If feasible and if to do so would not increase the danger to the deputy or others, then a verbal warning to submit to the authority of the officer shall be given prior to the use of deadly force.

Prohibited Uses of Force

A. 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.
5. Even when deadly force is permitted, officers should assess whether its use creates a danger to third parties that outweighs the likely benefits of its use.

Reporting, Reviewing and Investigating the Use of Force:

A. Any injuries resulting from a use of force incident shall result in the appropriate and timely medical attention being provided to the injured party.

B. Members involved in use of force incidents as described in CCSO General Order A31 & as directed by NY Executive Law 837-t, shall notify their supervisor as soon as practicable and shall complete a departmental use of force report.

C. Any member of the Cattaraugus County Sheriff's Office who takes action that results in or is alleged to result in injury or death of another person, shall notify a supervisor who in turn shall respond to the scene and initiate an investigation into the matter, utilizing GO 31 and GO 32 as necessary.

D. Consistent with agency disciplinary protocols and any collective bargaining agreements, violations of this policy will be addressed.

Training

A. All law enforcement and corrections deputies of the Cattaraugus County Sheriff's Office shall annually receive training and demonstrate their understanding concerning the proper application of force.

B. Training topics should include use of force, NYS PL Art. 35, associated case law, conflict prevention, conflict resolution and negotiation, and deescalation 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.

Critical Incident Response - General Order A32

PURPOSE

The Cattaraugus County Sheriff’s Office is committed to conducting fair, honest, transparent and complete investigations following all critical incidents involving members of the sheriff’s office. A critical incident is defined as a situation where a member of the public, experiences serious physical injury or death, after an encounter with a member of the Cattaraugus County Sheriff’s Office. In the event that an agency member is involved in such encounter, the following procedure will be used.

PROCEDURE:

Responsibilities of officers involved

• Secure the suspect.
• Provide immediate and reasonable emergency medical assistance to the suspect.
• Contact their immediate supervisor over the police radio or request such contact through the dispatch center if the immediate supervisor is unavailable.
• Secure the scene and identify potential witnesses.
• If with another officer, visually check the other officers for any obvious physical injuries, as they may be in shock and not realize that they sustained an injury.
• Cooperate with department supervisors and investigators. Provide a public safety type statement but not provide a detailed statement until they have spoken with union representation and/or counsel.
• Any request for evidence collection, photographs or medical intervention, shall be adhered to.
• Officers will be allowed to contact union representation as well as legal counsel, as soon as possible.
• The officers involved in the incident shall be required to be checked out by medical personnel for any possible injuries or trauma.
• The officers involved in the incident should not speak to anyone, including family or friends, regarding the incident until they have spoken with counsel.
• A cover officer will be assigned to you. A cover officer’s job is to look after your welfare and to protect the integrity of the investigation. Cover officers will not let you out of their sight, even to use the restroom. The cover officer must maintain custody of any evidence you may have on your person (ie- weapon, magazines, soiled hands, clothing). The cover officer will find a comfortable place for you to wait and will attend to your needs until such time that any evidence has been collected and you have completed an initial statement with investigators.
• You may initiate or receive a telephone call prior to the collection of evidence by investigators only in the presence of your cover officer. Keep in mind that this is not a private conversation.

Immediate Supervisor Responsibilities

• In situations where a member of the Cattaraugus County Sheriff’s Office is involved in a critical incident, the immediate supervisor, to avoid possible Garrity issues, should utilize the following questions when speaking directly to the officer or officers involved.
  • Are you injured?
  • If you know of anyone injured, what is their location?
  • In what direction did you fire your weapon?
  • If any suspects are at large, what are their descriptions?
  • What was their direction of travel?
  • How long ago did they flee?
  • For what crimes are they wanted?
  • With what weapons are they armed?
  • What is the location of any evidence that you may be aware of?
  • Did you observe any witnesses and if so, where are they located?
• The supervisor shall direct non-involved officers to tape off the crime scene and preserve any evidence that is present.
• A crime scene log sheet shall be started and NO ONE is to be left off the sheet.
• Notifications to the Sheriff, Undersheriff, Patrol and CIB Captains as well as a member of the District Attorney’s office shall be made.
• CIB Investigators and evidence technicians shall be notified at the direction of the CIB Captain.
• Ensure that the officers involved are checked out by medical personnel.
• Ensure that all officers involved are isolated from the scene as soon as possible and are returned to the Sheriff’s Office.
• Assign personnel to act as a cover officer for all officers directly involved in the incident.
• Ensure that notification is made to the proper union representatives.
• Ensure that all responding officers complete a supplemental report regarding their specific assignments before the end of their shift.
• Ensure that EAP is offered as well as the Sheriff’s Office Peer Support Team.
  • The Cattaraugus County Sheriff’s Office is committed to the health and well-being of its members. It is imperative that members involved in a critical incident are provided with all practical measures necessary for their care.
• Turn over control of the scene to investigators upon their arrival.

CIB Responsibilities

• The on-call Detective will immediately report to the scene. The senior Detective on scene will take control of the scene from the patrol supervisor until such time they are relieved by the CIB command staff.
• CIB is responsible for conducting a criminal investigation.
• Ensure that an entire neighborhood canvas is completed.
• Ensure that any video evidence from private cameras is obtained.
• Contact Accident Reconstruction for “Total Station” measurement if deemed necessary.
• Request evidence technicians respond to the scene.
• Evidence technicians shall conduct collection tasks as they would for any serious offence investigation. In addition, they shall collect all clothing worn by the officers involved, including all weapons, holsters and duty belt.
• The evidence technicians shall document the scene as they would in any serious offence investigation. In addition, they shall photograph the officers involved from head to feet, their uniforms, gun belts, weapons, police vehicles (inside and outside) and shall video the entire scene including any known paths the officers may have followed the suspect through.
• CIB shall take sworn statements from officers that had direct contact with the involved officer(s) or suspect. These statements shall be video recorded.
• Suspect’s social media and cell phones shall be collected and processed as soon as possible. Preservation requests shall be conducted as soon as possible.
• In the event of the suspect’s death, the Chief of Detectives or his designee shall make the death notification to the suspect’s family.

Cover Officer Responsibilities

It is the responsibility of the cover officer to look after the welfare of the officer involved as well as protect the integrity of the investigation. This occurs by:

• Not allowing the involved officer out of their sight, even to use the restroom.
• Maintain custody of any evidence on the officer, including weapon(s), duty belt, clothing, soiled hands.
• Find a location for the officer to wait at the scene until such time as they are directed to return to the Sheriff’s Office.
• Transport the officer to the sheriff’s office.
• Provide water, etc for the officer.
• Be present for and observant of, any initial phone calls made by the officer. The officer will be afforded the ability to make private calls as soon as possible.
• Control any undirected interaction the officer has with other people.
• Continue in this capacity until relieved by Detectives or Command Staff.
• Document the officer’s actions during the time that you are directed to act as a cover officer.

Review of Critical Incidents

When any member uses force against a person and the force results in death or serious physical injury to another person, the incident shall be reviewed by the internal affairs process. (G.O. A33) to insure:

• The incidents involving the use of force are properly evaluated.
• The rule and regulations of the agency were followed.
• Documentation is maintained in the event of future litigation.
• Determine if there is a need for additional training.
• Evaluation and any departmental disciplinary action or other determination shall be forwarded to the Sheriff for any further action.

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