January 18, 2008
TO: Pierce Murphy
FROM: Michael Masterson
Chief of Police
RE: OMB #07/0013
My executive staff and I, as well as members of the Office of Internal Affairs, have met and reviewed your report and findings regarding BPD's handling of a criminal investigation that occurred in the early morning hours of November 5, 2006. My response and recommendations are included in this memorandum and directly respond, in order, to match the findings in your report.
Officer #1's First Use of Force
- Evidence supports that Officer #1 told the Complainant to leave. Officer #1, Officer #2 and Witness #2 all stated that Officer #1 told Complainant to leave or words to that effect. Audio recording shows that Officer #1 and #2 spoke to Witness #1 about telling his brother to leave and he stated, "I know."
- While the video tape shows Officer #1 making physical contact by placing his right hand on the Complainant's left shoulder, I do not believe it shows any evidence that Officer #1 used his body to "bump" the Complainant during the initial physical contact.
- Consultation with the City Attorney has confirmed that an officer has the ability to use limited physical force to direct a subject out of the area when the subject is interfering with an investigation. I disagree that Officer #1 could not make any physical contact with the Complainant.
- The investigation showed that the Complainant made the statement "whoa whoa whoa" after Witness #1 had given a false name to officers and was in the process of providing identification. The Complainant had inserted himself in a criminal investigation and was clearly interfering with the officers and the investigation they were completing. A review by the City Attorney has confirmed officers had the right to order the Complainant to leave the immediate area. As your finding is based on a presumption the officer did not have the right to order the suspect to leave, I disagree with your finding.
- I agree that Officer #1's action of using force to direct the Complainant down the sidewalk should have been delayed until Officer #1 took greater time to give additional verbal direction and a warning as to the consequences of failing to conform to that direction. This direction should include a command to stop interfering and that the subject faces arrest if they fail to comply. I will ensure this training and direction are provided Department wide as well as with Officer #1. However, the officer did have the legal authority and reason to direct the Complainant to leave the immediate area of the investigation.
Officer #1's Second Use of Force
- The video clearly shows the complainant turning first his head and then his torso back towards the officers. As it is clear the complainant was being ordered to leave at this point and the officer was using limited force to escort him away, it is clear the complainant was failing to follow those orders at this time and in fact was offering at least limited physical resistance. Again, you have based your finding that Officer #1's use of force at this point was outside of policy and was due to the initial order to leave having been unlawful. This is in contradiction to the review conducted by the City Attorney and our own research. I disagree with your finding in this area. The facts available to the officer at this time were that the Complainant had tried to prevent Witness #1 from providing identifying information to officers, had refused a lawful order to leave and was now physically resisting Officer #1's attempt to escort the Complainant away from Witness #1 and the ongoing investigation.
- With reference to Officer #1's comments of a subject being taken to the ground if they are a "no person" without any other consideration; I am taking action to ensure this perception is changed with Officer #1 and to review current training practices to ensure all officers understand the need to treat each situation appropriately based on the threat posed and with the minimal use of force necessary. It is certainly not appropriate that simply initially failing to follow direction automatically dictate a person be taken to the ground.
Officer #1's Police Report
- The police report completed by Officer #1 states "while I was interviewing ...., his brother, later identified as ....., approached." The video clearly shows the Complainant was several steps behind and following Witness #1. I disagree with your conclusion that Officer #1's report was inaccurate regarding this point but do agree that the officer should have written a better description of the approach. I do not believe there is any significant relevance to the case as to if the complainant arrived a few seconds or a slightly longer time behind Witness #1.
- While your report repeatedly refers to the Complainant not being "in front" of Officer #1 the video provides clear evidence that the Complainant was in fact standing in front of the officer and approximately five feet away.
- Your report states that Witness #1 did not back away after appearing to retrieve something from his pocket. The video clearly shows that Witness #1 took a small step back immediately following this exchange.
- I agree that you may not be able to absolutely determine if this was a true statement but given that Officer #1 was investigating a case involving the said vandalism I find it would be highly likely that Officer #1 asked the Complainant if he was involved in the vandalism.
- As noted above, evidence supports that Officer #1 told the Complainant to leave. Officer #1, Officer #2 and Witness #2 all stated that Officer #1 told Complainant to leave or words to that effect. Audio recording shows that Officer #1 and #2 spoke to Witness #1 about telling his brother to leave and he stated, "I know."
- The video does not support your finding. The video clearly shows Officer #1 placing his right hand on the Complainant's left shoulder. While you can not see the left hand of Officer #1, it would appear that he indeed does try to perform a police lead (his right hand on the Complainant's left shoulder and using his left hand to take control of the Complainant's left wrist). This is a common practice and trained police technique and is referred to as a "police lead" or "escort position". It is clear that Officer #1 does not "bump" the suspect with his chest at this time. I disagree with your finding.
Failure to Record
- I agree that there was no exigent circumstance or reason for Officer #1 to have not recorded his conversation with the Complainant prior to the physical force being used. The recorder was operating, however, and it is a continuous recording without a new track having been started. It would appear the pause button was activated accidentally and as such I will not be taking disciplinary action on this point. We have a recognized issue with the current recorders which is the ease in which the buttons are accidentally activated. Production of recorders which use an activation button not susceptible to this has ceased. We are continuing to actively seek a solution to this issue. In reviewing his digital recording in the moments immediately following this incident it became apparent to Officer #1 that his recorder was not activated for a brief period of time and he was upset at the fact he did not have a recording of the full incident. I believe it was Officer #1's intent to record the entirety of the contact.
- Areas identified for improvement in your report involving BPD personnel will be addressed through counseling and training. This will include a specific review of training concerns regarding how Officers react to and the level of force used on a uncooperative subjects.
- Finally, it should be noted that the final disposition of this criminal case was a negotiated settlement in which the Complainant paid a bond forfeiture to resolve his case and the other defendant was found guilty following a jury trial.