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When I joined the military, some 50 years ago, I swore an oath to support and defend the Constitution. Never did I dream that troops taking that same oath would be ordered under any circumstance to violate the Constitutional rights of their fellow citizensmuch less to provide a bizarre photo op for the elected commander-in-chief, with military leadership standing alongside.

Under what circumstances may the government use lethal and non- or lesser-lethal force in the face of unlawful protests, riots, and looting? The answer is context dependent. But the use of such forcewhether exercised by state or federal armed forcesis always constrained by a fundamental constitutional principle of reasonableness, so long as no armed conflict exists. Although I agree with everything Mark Nevitt wrote in his Just Security article on the powers and limitations of the Presidents response to the recent protests, it is important to ground the discussion in constitutional norms rather than just Department of Defense understandings or policy which would apply to use of the US military as well as federal and state law enforcement authorities.

It is critical to understand the scope of the state and federal governments authority to use physical force against individuals. Although federal and state authorities generally have authority to control domestic violence and discretion to determine the means necessary to do so, they must exercise that authority and discretion reasonably under the U.S. Constitution. In fact, the use of force continuum to which law enforcement agencies generally adhere as policy should be understood to be a constitutional requirement.

The Use of Force and the Constitution

All uses of lethal and non- or lesser-lethal physical force by government agents must be reasonable under the circumstances. This is not only wise policy, it is a constitutional demand. Reasonableness is required either by the Fourth Amendment or by the general constitutional demand that all government action be reasonable and non-arbitrary. In this context, the latter reasonableness requirementthat all government action be reasonable and non-arbitrarycan also be based in the Due Process Clauses of the Fifth and Fourteenth Amendments which protect against government infringements of personal liberty, including the infliction of physical injury.

Although not all measures to control crowds, riots, or looting necessarily implicate the Fourth Amendment, some certainly would. The Fourth Amendment protects [t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures. Searches and seizures always entail the use of some measure of actual or constructive forcebroadly construedagainst persons and property.

The Fourth Amendment requires that all searches and seizures be reasonable. Courts interpret this requirement contextually. Reasonableness has substantive and procedural components. Substantively, there must be a legitimate constitutional basis for a search or seizure. Procedurally, both must always be conducted or executed reasonably. Measures adopted to control riots, looting, and crowds typically restrict or deprive individual movement, and therefore implicate arrests and other seizures.

Arrests involve substantial restraints on ones freedom of movement, typically taking someone from a public or private place where they have a right to be and placing them in government custody. Substantively, arrests require probable cause that the individual committed a crime. Procedurally, police may make arrests without a warrant for any crime committed in the officers presence or for a felony committed outside of an officers presence. Additionally, police may use only reasonable force to effect an arrest.

Seizures occur when someones movement is temporarily restricted in some meaningful way by an intentional show or use of government authority, including force short of an arrest. Substantively, in a law enforcement context, seizures are constitutional if they are based upon a reasonable suspicion that criminal activity is afoot or if there is some other specific, legitimate law enforcement purpose. Criminal behavior could include looting, assault, trespassing or a curfew violation. Other legitimate purposes for a temporary stop might include checking identification for a limited access area (such as by verifying press credentials, employment or residency) or seeking information related to a recent crime in the area. Procedurally, seizures are constitutional if the measures taken to effect a seizure, and during it, are reasonable under the circumstances. For example, stopping a suspicious person and conducting a non-intrusive frisk for weapons is appropriate if there is a reasonable suspicion both that the person may be involved in criminal activity and that they are armed and potentially dangerous.

Riot- and crowd-control measures include arrests and seizures, but not all measures would necessarily involve one or the other. Often, in these situations, an individuals movement or behavior is restricted or limited in some way, but they are free to leavein Fourth Amendment termsto go somewhere or do something else. A seizure occurs only when an individual is temporarily and intentionally immobilized, whether voluntarily or involuntarily, by a government agent. Efforts to effect a seizure or arrest must always be reasonable under a totality of the circumstances.

Notwithstanding the Fourth Amendment, there is also a strong argument that all government action must be reasonable in order to be constitutional. Generally speaking, government action must be reasonably calculated to achieve (or rationally related to) a legitimate government purpose. The government action must also be a reasonable and permissible means of achieving that legitimate purpose. As Justice Marshall wrote in McCulloch v. Maryland:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

This is a general principle of constitutional law. Government action must be appropriate and plainly adapted to its alleged purpose. Not only must it not be prohibited by the Constitutions text, it must be consistent with the Constitution. Every use of physical force not amounting to a search or seizure must also, therefore, be reasonably directed to a legitimate end and reasonably necessary under a totality of the circumstances.

The Insurrection Act Does Not Alter These Constitutional Requirements.

The Insurrection Act allows a president broad discretion to use as much of the federal armed forces and state national guard units as he or she deems necessary to quell insurrections against the authority of a state or to remove substantial interferences with the enforcement of federal laws. A president could invoke either of these justifications in response to widespread riots and looting.

These statutes allow a president to take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination or conspiracy. Despite this broad language, the president may not authorize the armed forces to do anything he would like. Although the exigencies of a situation may require some deference to on-the-spot judgement calls, Congress cannot empower a president to violate specifically applicable aspects of the Constitution. The requirement that the use of all physical force be reasonable under the circumstances is one such specifically applicable constitutional requirement.

Recent Examples

Unreasonable use of lethal force that violates the Fourth Amendment.

The President has infamously tweeted that when the looting starts, the shooting starts. In Tennessee v. Garner, the Supreme Court held that the use of lethal force to stop a fleeing suspected felon is a Fourth Amendment seizure that must be reasonable. In this context, lethal force is reasonable only if the suspect presents a threat of serious harm to the officers or others. Shooting unarmed looters who are not engaging in any form of violence against a person would therefore clearly violate the Fourth Amendment as interpreted by the Supreme Court.

Unreasonable use of non-lethal force that violates the Fourth Amendment.

A viral video on social media apparently shows Minneapolis law enforcement shooting several people with rubber bullets or paint balls to force them to go inside a house rather than stand on a private porch. The officers were allegedly enforcing a curfew order. That order, however, prohibited only travel on public streets or places (with certain exceptions not relevant here). Violating the order is a misdemeanor. The curfew is likely a constitutionally reasonable response to the disorder and turmoil that has been taking place in Minneapolis. The Citys website containing the order specifically clarified, however, that people may be outside a home as long as they were on private property.

Under these circumstances, the use of non-lethal force to compel someone on private property to go inside a home was not rationally related to enforcing the curfew order. It also appears to lack any other basis in law and was undertaken without warning. Police were apparently shouting that people go inside their homes. When these individuals did not do so and continued recording, an officer said only light em up before the police fired. No additional warning and no explanation for the over-enforcement of curfew order were given. It would therefore amount to an unreasonable use of non-lethal force. Because the purpose was to confine someone in their home, and doing so is likely a seizure, it also violated the Fourth Amendment. The officers undertaking this action are guilty of an assault. The city is also subject to a civil action under federal law.

Another viral video shows several Georgia police officers apparently arresting two college students inside a car, smashing the cars windows and using tasers on both individuals despite no visible resistance. Under these circumstances, the use of force would not reasonably necessary to effectuate the arrest to enforce the curfew order. Indeed, two days later, the Georgia chief of police fired two of the officers pictured in the video, and the Atlanta mayor condemned the officers actions.

Unreasonable uses of force not implicating the Fourth Amendment.

On Saturday night, May 31, 2020, there were reports of Minneapolis police firing rubber bullets and using tear gas and flash-bang devices to disperse allegedly peaceful crowds or protesters, all without warning. Numerous videos indicate that reporters and their cameramen have been pushed and shoved without warning despite their obvious status. And police in Washington D.C. reportedly used rubber bullets and tear gas to break up peaceful protesters outside the White House this past Monday night on June 1, 2020. This included a now-viral video of police and/or national guard, without warning, striking an Australian reporter and her cameraman with a baton and riot shield, respectively, before also being shot with rubber bullets. And several videos from New York City and Los Angeles over the past week seem to show police driving cars into protesters.

Lets assume the police were correct that a lawful government directive or purpose required the people affected to disperse or leave the area at the time and place that these forcible measures were used. Using such non-, lesser-, or potentially-lethal force without prior warning would be unreasonable if less stringent measures were feasible. Invasions of liberty and personal integrity such as occurred in these incidents must have some specific justification, including the absence or failure of feasible, less-intrusive coercive measures.

These examples do not involve a Fourth Amendment search or seizure. Not only were the individuals free to leavemeaning they were not seized under court precedentthey were forced to do so. But even assuming that end was appropriate, can we say the use of tear gas, flash-bang grenades and less- or non-lethal bullets was proper? Can we say that potentially grievously injuring a person by running into them with a car is a reasonable response? Was it consistent with the Fifth and Fourteenth Amendments to the Constitution? Absent some reasonable justification for failing to use lesser coercive measures, the answer is almost certainly no.

Because reasonableness surrounding the use of physical force is a constitutional requirement, nothing in the Insurrection Act would change the above legal analysis. It does not matter if the government agents are members of the national guard or federal armed forces or of the city police or state troopers. Whether acting under state or federal authority, the U.S. Constitution imposes the same constraints.

* * *

The authority to quell riots and looting must be exercised responsibly, meaning reasonably, at every level. All law enforcement officers, members of the National Guard and members of the federal armed forces must be told and trained to use force only when necessary and only when it reasonably appears that lesser means of coercion are not feasible under the circumstances or have failed. Warnings should be given before using physical force when possible. The Department of Justice and many law enforcement agencies refer to this as the use of force continuum. The continuum is not merely policy, however. It must be understood as a constitutional demand. Reasonableness is determined by what a government agent reasonably perceived in good faith under a totality of the circumstances. Those who have sworn to protect this country and its population have been vested with great power and must therefore show great restraint in the use of physical force.

Read more from the original source:
The US Constitution and Limits on Detention and Use of Force in Handling Civil Unrest - Just Security

Updated 9:35am EDT, Saturday, June 6, 2020

FORT WAYNE, Ind. (AP) A lawsuit alleging that a northeastern Indiana sheriff violated a teenage boy's constitutional rights during an altercation last year at a festival has been transferred to federal court.

The lawsuit against Allen County Sheriff David Gladieux was filed by the parents of a 15-year-old boy in a county court, but it was moved to U.S. District Court in Fort Wayne after Gladieuxs attorneys filed a notice of removal.

The suit claims that Gladieux injured the teen and violated his rights under the Fourth Amendment during a July 2019 altercation. Removal to federal court is common when constitutional questions are raised, The Journal Gazette reported.

Brad and Erin Bullermans son was a volunteer during Fort Waynes Three Rivers Festival in July 2019. The couple's suit alleges that Gladieux smelled of alcohol and pushed their son to the ground, injuring him when he fell onto a metal stake, after the teen asked to see Gladieuxs VIP pass to a restroom area.

Their suit is seeking $300,000 for medical costs, emotional distress and other damages, according to documents now filed in federal court.

Gladieux, who was charged with misdemeanor battery in September, has said he used a sweeping motion to move the boys hands from the sheriffs chest before the youth fell. Gladieux was placed in a pretrial diversion program and ordered to pay a $334 fine and complete accredited anger management and alcohol treatment courses.

If he complies with all the programs terms, the battery charge will be dismissed Oct. 18.

The sheriff has apologized for his actions but says he did not commit battery. In a statement after he was charged, Gladieux said he failed to conduct myself in a manner fitting my office.

Continue reading here:
Suit against NE Indiana sheriff transferred to federal court - Huron Daily Tribune

DENVER We've all seen the images of what's taken place around the capitol as part of the recent protests and the tear gas used by police.

"We got to the Civic Center, and that's when we encountered our first round of tear gas," 27-year-old protester Darrell Hampton said.

Hampton was at the protest a week ago. He says they remained peaceful, and then officers got ready to take off.

"I was recording them as they were leaving, and I ended up getting shot in the face with a pepper ball," Hampton said.

The impact knocked Hampton's phone into his face, as seen in his video.

"I was afraid I wasn't going to be able to open my eye again, and so I was just dealing with the pain of the impact, and then the pepper spray started," Hampton said.

Hampton wasn't the only one injured. A group of protesters filed suit against the Denver Police Department and other agencies working the protest. Hampton's video was used as evidence.

"When they reached out to us, I said I'd be willing to testify or whatever it took," Hampton said.

Late Friday, the judge issued a 14-day temporary restraining order.

Under the order:

In the order, the judge says there is a strong case that police violated protesters' first and fourth amendment rights.

He said, "If a store's windows must be broken to protect a protester's facial bones, that is a fair trade."

A ruling Hampton was happy to hear.

"I was just super proud. Pretty crazy to be a part of something like that. Hopefully, other states follow the same precedent," Hampton said.

DPD said via Twitter that while they will comply with the temporary restraining order, they are asking for modifications "that would account for limitations on staffing and body-worn cameras so the directions can be operationalized."

Meanwhile, the protests continue.

"We're just out here wanting our voices heard, and hopefully, this order contributes to the focus being on the protests," Hampton said.

Read the original:
Injured protester reacts to temporary restraining order on use of force issued against DPD - The Denver Channel

STEAMBOAT SPRINGS As protests across the nation demand sweeping reforms in law enforcement, Colorado lawmakers are making their own attempt to fix a system many claim has been broken for decades.

On Thursday, the state legislature began fast-tracking a bill,SB20-217, known as the Law Enforcement Integrity and Accountability Act. Its proponents see it as a way to address problems in criminal justice and hold officers more accountable for misconduct.

Its critics, from law enforcement officials to public prosecutors, agree with the intent of the bill but raise serious concerns over unintended consequences it could have, not only for those enforcing the law but for the people the law is meant to protect.

Lawmakers developed the bill following more than a week of protests that sparked after George Floyd, a black man from Minneapolis, died while in police custody. Videos from bystanders surfaced of a white police officer pressing his knee against Floyds neck for 8 minutes and 46 seconds, a time that has become a poignant symbol at rallies and at Floydsown memorial.

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The officer, Derek Chauvin, initially was charged with third-degree murder and second-degree manslaughter. On Wednesday, prosecutors charged Chauvin with the more serious crime of second-degree murder. His bail has been set at$1 million, according to news reports.

Three other officers at the scene, J. Alexander Kueng, Thomas Lane and Tou Thao, have beencharged with aiding and abetting second-degree murder. All four of the men have been fired from the Minneapolis Police Department.

While peace officers rarely are convicted over their use of lethal force, Minnesota Attorney General Keith Ellison said he is confident the facts of this particular case support the charges against the men.

George Floyd mattered. He was loved. His family was important. His life had value, Ellison said in an announcement of the new charges against Chauvin on Wednesday. We will seek justice for him and for you, and we will find it.

But the protests are not just about demanding justice for Floyd. The rallies that originally erupted in the wake of his death have grown more organized, calling for fundamental changes to biased policing thatdisproportionately kill and incarcerate people of color.

Since 2015, the Washington Post has maintained a database to track and document every fatal shooting in the United States by a police officer in the line of duty. According to that database, police kill black Americans at a rate more than double that of white Americans, despite black people accounting for just 13% of the countrys population. Findings also show that police shoot and kill Hispanic Americans at a disproportionate rate.

This is evidence of widespread, systemic biases in how officers enforce the law. Matt Karzen, district attorney for the 14th Judicial District, which includes Routt County, described a culture among certain law enforcement agencies that creates an us versus them mentality. Many officers are taught to treat all citizens as potential threats and to be prepared, even in nonviolent situations, to use lethal force.

For domestic law enforcement function in America in 2020, that is a recipe for disaster, Karzen said.

In light of these issues, Colorados Law Enforcement Integrity and Accountability Act seeks sweeping reforms aimed at ridding agencies of bad cops and increasing public transparency.

Among its many provisions would be a requirement for all peace officers to wear body cameras while on duty. Except in certain circumstances, law enforcement must make public all recordings of an incident within 14 days of the incident occurring.

Officers could use deadly force to arrest someone or to prevent a suspect from fleeing only if that person is using a deadly weapon or likely to cause imminent danger.

The bill establishes a database of police misconduct and requires agencies to compile annual reports to the attorney general. The reports would include information on every time an officer used force that resulted in death or serious bodily injury, all instances when an officer resigned while under investigation for violating department policy, all data relating to stops conducted by peace officers and every instance when an officer conducted an unannounced entry.

On these points, Routt County Sheriff Garrett Wiggins generally agrees. His deputies already use body cameras, and he said a database on officers misconduct would be a helpful tool to enforce policies and prevent agencies from hiring people with a history of violations.

As president of the County Sheriffs of Colorado, Wiggins sees a need for reform and supports the intent of the bill.

I do believe there are always ways we can improve how we interact with the public and our policies and procedures, he said.

But Wiggins has his concerns about the bills language and some provisions he said could make it harder for officers to do their primary job of protecting the public.

With regards to the restrictions against using deadly force, the sheriff worried that it could cause a delay in an officers response who is trying to assess if a suspect has a weapon or could cause imminent danger. Those moments of hesitation could let a suspect flee or cause harm to civilians and officers.

Law enforcement officers have to make millisecond-split decisions. Until youve been in that situation, its really hard to understand what law enforcement officers go through, Wiggins said.

His other major disagreement is over a section of the bill that would strip peace officers of qualified immunity. This protection has been in place to safeguard officers from frivolous lawsuits alleging they violated a plaintiffs rights.

Currently, it is not enough for an officer to violate someones rights for that person to file a lawsuit. A plaintiff has to prove an officer violated a clearly established law, such as the current case against the officers involved in Floyds death.

Under the original version of the bill, the officer would have no immunity to these types of lawsuits and would be required to pay 5% or up to $100,000, whichever is less.

Recruiting new peace officers has been a challenge in recent years, Wiggins said. Agencies across the country are having troublekeeping and hiring positions. If officers lose their qualified immunity and are liable for such hefty lawsuits, Wiggins worried it could cause a mass exodus among law enforcement officials.

Overall, he wants lawmakers to take more time reviewing the bill and considering its effects rather than let heightened emotions lead to knee-jerk action.

Others support the elimination of qualified immunity. The American Civil Liberties Union of Colorado started a petition to garner support for the bill. The stock message that the ACLU asks petitioners to sign and send to state senators describes qualified immunity as a legal doctrine that prevents the community from holding police responsible when they violate laws, policies, and community trust. It states that people of color should not have to live in constant fear of the officials meant to protect them.

An amendment to the bill would protect officers from lawsuits as long as they believed their actions were lawful and that belief was objectively reasonable. As Karzen explained, this means an officer would remain immune to a lawsuit if he or she could prove that his or her actions were appropriate and a reasonable person would agree.

This amendment to the bill gives Karzen more confidence that law enforcement would be held to a higher standard while continuing to protect peace officers that act in good faith. Still, it opens up officers to more litigation and punishment, even in cases where lethal force is not used.

Without (the amendment), the job of law enforcement would have been effectively impossible, Karzen said in an email.

The good-faith approach has legal precedent among civil rights cases, Karzen explained. He recalled a case from Georgia in which he represented a client who argued the local sheriff had violated the clients Fourth Amendment right during a search of his home without a warrant. Karzen was able to prove that the sheriff did not have an objectively reasonable cause to search his clients home, awarding the client an $85,000 jury verdict.

The district attorney has other concerns.

The bill, as currently written, only applies to local and county peace officers not state law enforcement, such as Colorado State Patrol or the Colorado Bureau of Investigation. That exclusion confuses Karzen, who does not understand why one type of officer should be held more accountable than another.

It shows (certain state legislators) will go a long way to protect themselves, but not cities and counties, Karzen said, adding that they effectively customized the legislation to protect their interests, namely the state budget.

The district attorney worried the rules requiring the release of body camera footage could harm due process in criminal trials by publicizing sensitive information, such as confessions, before a judge has a chance to review them. The footage also could include information on juvenile suspects or of victims who do not want their interviews to be public, such as survivors of sexual assault. While the bill allows the redaction of nudity or highly personal circumstances, it does not clearly define what circumstances would qualify.

While Karzen is supportive of the bills intent, these and other lingering issues might not survive constitutional challenges, he said.

The Law Enforcement Integrity and Accountability Act has only just begun its journey through the state legislature, and more amendments are likely in the days ahead.

Rep. Dylan Roberts, a Democrat who represents Routt and Eagle counties, signed on as a co-sponsor of the bill. Two of the bills original sponsors, Sens. Leroy Garcia and Rhona Fields, did not respond to requests for comment.

I agree that the legislation should be proposed, and we need to debate it here, Roberts said, adding that the protests make it particularly timely.

He plans to continue conversations with colleagues and stakeholders, from law enforcement officials to civil rights groups, on making further changes. Many of the provisions are not new concepts, Roberts said, and have long been priorities for him and his colleagues.

There may be a perception that this bill is moving fast, but these are conversations we have been having for years, Roberts said.

As a lawmaker, he wants to use his position of power to create more a more equitable criminal justice system that protects, not endangers, Coloradans. The issues will not be solved overnight, but Roberts believes the state cannot wait any longer to seek substantial change.

Given the national unrest and many events that have led us to this point, I think it has called us as legislators to action to get something done, he said.

To reach Derek Maiolo, call 970-871-4247, emaildmaiolo@SteamboatPilot.comor follow him on Twitter@derek_maiolo.

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Policing the police: A controversial bill intended to hold law enforcement accountable could have unintended consequences - Steamboat Pilot and Today

More than ever, the public is demanding restraint and civilityfrom the men and women who take an oath to protect and serve us.

In the past week, as Black Lives Matter protests continuedin southeastern Connecticut and nationwidefollowing the death of George Floyd, The Day filed Freedom of Information requestswith nine area departments for civilian complaints and use-of-force reports for the past two years.

The region's police departmentsvary in size and structure, and thecommunitiesthey serve range from rural to urban. Some of the departments have civilian review boards or police commissions. Shootings and other deadly use of force are rare and are investigated by outside agencies and prosecutors.

As of Friday afternoon,New London and Norwich police, both city departments under close scrutiny by the NAACP, provided preliminary information. Groton Town and Groton City police, who said they were preparing for a Black Lives Matter protest Sunday, provided partial responses.

Three of the smaller, suburban police departments East Lyme, Ledyard and Stonington complied withThe Day's requests.

Montville police,a municipalforce overseen by the state police, said it would work on providing the information.The Day has not yet requested information of Old Lyme, a small police force also overseen by state police.

Waterford policesaid therequest has been sent to the town attorney for review and the department wasgathering the information necessary to comply.

Officers are required to file reports on use of force every time an officer uses their hands or a weapon tocontrola suspect. The reports are submitted annually to the state.

The civilian complaint process is available to those who want to report misconduct of officers. Departments are required tomake complaint forms easily available to the public,thoroughly investigatethemand communicate the findings of complaints. If unsatisfied, the person can sue.

New London

City policehave been accused of "institutional racism" byattorney Jacques Parenteau, who is representingSgt. Cornelius Rodgers, an AfricanAmerican, in a legal action claiming Rodgers wasunjustly suspended for 20 days afterpunching a handcuffed prisoner in April 2019 in the booking area of the Waterford Police Department. An internal investigation by the New London Police Department into the matter determined Rodgers' use of force was unjustified given the circumstances.

Rodgers, who says he punched the man in defense of himself and another officer, because he thoughtthe manhad a knife, claims he was investigated more intensively and punished more harshly than white officers, including union President Todd Lynch, a white man who was recently cleared in a use-of-force investigation conducted by the union's vice president, Officer Charles Flynn,after striking a prisoner twice in the face.

The city has hired an outside investigator to look into Rodgers' claims, and Parenteau said Rodgers intends to file a lawsuit after the case is reviewed by the state Commission on Human Rights and Opportunities.

On Friday, Parenteau wrote to Mayor Michael Passero alleging Lynch attempted to bypass Rodgers for approval of an arrest report just this past week, taking it instead to a white sergeant.

"If the New London Police Department is unable to police itself on the issue of race, how will it ever be able to be a police force that can effectively deal with race relations in the community?" said the letter, copied to NAACP officials.

Since 2018, the New London Police Department has taken approximately 160 reports of use of force, ranging from soft-hand control to use of a baton.

The records showed that there were approximately 61 reports of use of force in 2017, 46 in 2018 and 52 in 2019.

Chief Peter Reichard said that police have not discharged a firearm at a person since 2015. He said that stun guns are deployed 20 to 30 times a year in New London, on average, and in most of those instances thestun gunisn't actually used merely the show of it is effective in subduing a subject.

In 2015, NLPD enacted new use-of-force policies, constructed by a law firm that specializes in the issue. The policies require officers to report every instance of use of force, defined asany force that is more intense than handcuffing a person who is not resisting.

Reichard said that after enacting the new policy, theyrealizedtheir reporting of use of force "wasn't that strong" and the city saw an uptick in use-of-force reports filed in 2015. Before that, he said, the city had been underreporting.

In New London, civilian complaints must be made in writingwithin 10 days after the incident or 10 days after the final disposition of criminal charges. Reichard said that every civilian complaint is investigated and that there were probably about 10 to 15 per year.

The department uses a computer system that tracks civilian complaints, use-of-force reports and supervisors' complaints and automatically applies a "red flag" whenever an officer has multiple instances of use of force or civilian complaints. Supervisors are notified when red flags are applied, Reichard said.

The city also has a Police Community Relations Committee, but critics say the panel lacks authority to be effective.

Norwich

The Norwich NAACP and its Robertsine Duncan Youth Council want more than demonstrations and pleas for police and city government to hear their frustrations over persistent "senseless" attacks on African Americans by police and civilians alike including the racially motivated intimidation incident Tuesday morninginvolvingtwo womenat the Norwich Starbucks.

The NAACP issued a news release Thursday saying the branch "will work with our elected and appointed officials, police department, community partners and residents" on a five-point action plan to improve the community's race relations. The plan includes establishing a citizens review board to handle complaints of police behavior.

The plan calls for reviewing the 2018-19 state law enforcement database, the 2019 community survey commissioned by Norwich police, the Norwich police use-of-force policy, including whether knee holds, rubber bullets and stun guns are acceptable and thedepartment's record of disciplining or charging officers with misconduct.

The group also wants to review incidents of hate crimes and falsified reporting of crimes.

City Manager John Salomone said the city receives "a few" complaints per year about Norwich police none that he or Daley could recall that led to discipline of an officer.

Chief Patrick Daley said Norwich's use-of-force policy is a mixture of the city's own wording and state and national accreditation standards. It was last updated two years ago, when language was added regarding respect for the sanctity of human life, that human life is precious, and it is a police officer's job to protect human life.

The Norwich police written use-of-force policy explicitly prohibits "the use of neck restraints, chokeholds or other similar weaponless control techniques," unless the use of deadly force is authorized in the incident. The policy defines "hard hand controls" to include knee or elbow "strikes," punches and kicks, including to the side of the neck.

East Lyme

Chief Michael Finkelstein saidhehas receivedfew civilian complaints during his tenure in the department, and nonehas alleged race-based discrimination.

"These aren't complaints of malfeasance or abuse, but more about the officers' attitude or how they presented themselves during a situation," Finkelstein said. In those situations where an officer may not have actually broken policy, Finkelstein said he will have conversations with officers to help them "understand why the (complainant) had this impression."

"It's about how we can present ourselves better or communicate better. It's important for us to observe," Finkelstein said, and to learn how "to handle the situation better."

Complaints of misconduct, as well as use-of-force incidents,are investigated by a supervisor and presentedto Finkelstein for review and a determination.

Should disciplinary action be warranted, Finkelstein will forward the incidentto the town's Police Commission, which is appointed by the Boardof Selectmen andmade up of civilians,and was formed in 2017 when the town's police force left the state's Resident StateTrooper program and became independent. The commission then willmake a decision on which disciplinary action to take based on the evidence presented from both sides.

Finkelstein, who has been East Lyme's police chief since 2017, said the department has had "extremely low instances of use of force." He added no seriousinjuries have been caused because of an officer's use of force since he has been with the department.

Out of the approximate 450 arrests the department has made since June 1, 2018, there have been five instances where force was used during arrests. All of those instancestook place in 2020, Finkelstein said, andall those instances were deemedwarranted and appropriate and did not require disciplinary action. Hegave an example ofan instancewhen an intoxicated arrestee had tried to run from police into an occupied hotelafter recklessly driving his vehiclethrough town. Police used a stun gun to subdue the person.

Ledyard

Between June 1, 2018, and June 1, 2020, Ledyard police, with 23 sworn officers, reportednine instances of use of force and 17 complaints. Ninewere civilian complaints, and the remainingeight were initiated internally.

Ledyard police Chief John Rich said anyone in the department can take a civilian complaint, whether over the phone, in person or through a form available at the department and on the town website. Per department policy, all complaints are sent to a supervisor as soon as they come in. He said they do accept anonymous complaints, though it makes it more difficult to follow up when more clarifying information is needed.

When possible,the department also secures video or audio recordings to assist in the investigation.

Rich said all instances of use of force are documented with accompanying information, such as witness statements,photos of any injuries and medical release forms, and submitted to a lieutenant within 72 hours. If an incident is found to be an unnecessary use of force, the department conducts an internal affairs investigation.

He said corrective action can include discipline, such as suspension, and mandatory retraining in areas such as use-of-force policies or constitutional law. In December, the department reviews all instances of use of force from the year to determine the department's training needs for the coming year.

"Everybody understands that when you use force on somebody, just expect it to be reviewed," he said.

A recent use of force reported by The Day in March involved the use of a stun gun of a man who was fleeing on foot after officers found marijuana and cocaine in his car. The report found the use of force was justified, and the man's injuries were the result of tripping and falling while fleeing.

Groton City

Police Chief Michael Spellman provided The Day with seven use-of-force reports submitted between January 2018 and November 2019 and said the department is working to provide the civilian complaints. In every case, the reports were reviewed by command staff at every level and signed off by Spellman, and each time the officer who used force was determined to have been justified and within policy.

One report says a man who held a door shut with his body while undercover officers attempted to serve a warrant at Motel 6 was struck in the mouth whenthe officerpushed the door open.The reports in those cases indicate only that the people involved were"non-Hispanic."

Inanother case, a white man who wrestled while resisting handcuffing directed a racial slur at a black officer and attempted to spit at officers.

"I hear a lot about walls in today's world, and I talk about doors, and doors are open," Spellman said. "Ifyou have a concern, we'll hear it and listen to it. If we can make it better, we will. If we screwed up, we'll own it."

Groton Town

TheGroton Town Police Department provided an August 2019 complaint made by a woman who said an officer endangeredthe public by speedingthrough the intersection of Route 12 and Walker Hill Road to pursue a speeding car without activating lights or siren. Theofficer pulled over the woman after she flashed her high beams at his car and issued her a written warning. He said he had to look away from the car he was pursuing and lost sight of it.

The investigation included more than 13 minutes of body camera video, and asergeant concluded the officer had acted respectfully toward the woman and that his actions were "lawful, ethical, moral and within the scope of his training." The findings went up the chain of command to the chief for review, and Deputy Chief Paul Gately notified the complainant of the findings by letter.

The department said it was unable to immediately provide use-of-force reports, but Chief Louis J. Fusaro Jr. mentioned a recent incident in which an officer used a stun gun on a man who had a knife and was threatening to harm himself and others.

"Officers are trained on use of force and legal standards," Fusaro said, citing the Fourth Amendment, which limits police powers, and U.S. Supreme Court cases that set the precedent for use of force, Tennessee v. Garner and Graham v. Connor

"Anofficer doesn't have to wait to be assaulted or threatened to be killed," Fusaro said. "You don't haveto wait for someone to hit you over the head before you defend yourself. Anofficer can't stabilize the situation if they're incapacitated."

Stonington

In Stonington, where police respond to about 20,000 calls and 600 arrests a year, police Chief J. Darren Stewart provided The Day with the 39 use-of-force reports filed by his officers since the beginning of 2018. Six of them involve the same Pawcatuck man, who reports show often fights with police when they are called to his home.

Stewart also provided The Day with a summary of complaints showing that nine have been filed against officers since the start of 2018. Five of those were filed by the department itself against officers who did not follow procedures. That left four filed by civilians. Stewart said none of those involved the use of force. Stewart said his department would provide The Daywith copies of those complaints.

Stewart and Cap. Todd Olson explained that all use-of-force reports are reviewed by two of three supervisors to ensure officers followed department policy. They also pointed out that force is not only used during an arrest but may take place when officers are dealing with someone who is emotionally disturbed or under the influence.

"We have a good group of officers who talk to people. They come to work and they respect the community," Stewart said. "It's about treating all people fairly. Ultimately, police officers are judged on their fairness."

Waterford

Police Chief Brett Mahoney said the department typically has two to three use-of-force incidents a monthand follows the state model for review. If the investigation finds the use of force was justified, the chief can impose discipline of up to 30 days' suspension. Any recommendation beyond 30 daysgoes to the town's police commission, and any suspected criminal activity would be reviewed by the state's attorney's office.

Mahoneysaid the department had just closed its first civilian complaint investigation of the year,in which a person who was putting fliers on cars at police headquarters complained about an officer who approached him andasked what he was doing.The complainingperson refused to to identify themselves, Mahoney said, so he has no way of of getting him the finding, which indicates the officer's action was justified.

Staff Writers Claire Bessette, Mary Biekert,Taylor Hartz, Amanda Hutchinson and Joe Wojtas contributed to this report.

k.florin@theday.com

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A review of police use-of-force policies and complaints in southeastern Connecticut - theday.com