The Los Angeles Police Commission is changing how officers are evaluated when they use deadly force, placing emphasis on reviewing all of the circumstances during an incident, including what an officer does before deciding to take someone's life or severely hurt them.
The civilian panel voted Tuesday to add language to the LAPD's use-of-force policy that would affect how officer-involved shootings and other instances of deadly force are investigated.
The police department and the commission have traditionally reviewed deadly force incidents in three parts: tactical steps taken, the drawing of the weapon, and the use of force itself.
Most times that three-part evaluation will show that an officer’s mistakes did not solely lead to the need to use deadly force. But there are rare occasions, said Inspector General Alex Bustamante, where that may not be the case.
"The intent is to clarify, as we said, those exceptional circumstances where if the officer had followed policy and procedure and had done everything that they should have from the outset, that we would not have had this shooting," Bustamante said.
Bustamante said another way to look at it is to ask whether the officer’s actions were the sole cause of the deadly force. It’s a rare instance that probably happens in less than 1 percent of the deadly force cases the Police Commission reviews, he said.
An audit report prepared by the Office of the Inspector General recommended language added to the department’s use of force policy to clarify that adjudicators may consider “the tactical conduct and decisions leading up to the use deadly force.” The audit said adding the language would reinforce the original intent behind current practices:
The Commission is not restricted from considering preshooting conduct in its evaluation of the reasonableness of a use of force, and the OIG has noted instances in the past where the Commission has considered incidents in their totality. Nonetheless, without clarification, the language of the current policy — combined with the adjudicative separation of findings for tactics and the use of force — creates the impression that an adjudicator should focus simply on the circumstances present in the exact moment that deadly force was used. Without clarification, the existing policy would appear to suggest that adjudicators should ignore all preshooting decision- making when deciding when a use of lethal force is in policy, no matter how otherwise relevant those actions were.
The change stems from a state Supreme Court case in which the high court ruled last August that a “law enforcement personnel’s tactical conduct and decisions preceding the use of deadly force are relevant considerations under California law in determining whether the use of deadly force gives rise to negligence liability.”
In that case, Hayes vs. the County of San Diego, two sheriff’s deputies shot and killed a man while responding to a domestic disturbance call. When they arrived, the man’s girlfriend said he had attempted suicide earlier that day. The two deputies entered the home and when they saw the man in the kitchen, ordered him to show his hands. As the man took a step toward the deputies, he had a knife in his hands and the deputies fired killing him.
The family of the man killed sued the county alleging negligence for the deputies the lack of caution and training in approaching the man. Thought the state Supreme Court case did not decide whether the deputies acted reasonably when they fatally shot the man, it ruled liability can arise from a law enforcement officer’s pre-shooting conduct when evaluating the situation in totality.
Some legal experts say the change in the review policy could have an affect on officers who have specialized training such as dealing with mentally ill people and, for whatever reasons, choose not to use it. But that is likely a rare occasion and would have many layers of evaluations that could find an officer’s decisions prior to the shooting had no affect on the outcome.
LAPD Chief Charlie Beck said his the department’s policy is to bring in a county psychological clinical expert with the officers to help deal with situations involving people with mental health needs. But Beck said the officer is also responsible for making sure any threats are neutralized.
"Police have to deal with the violence of an incident first before you can bring clinicians in," he said.
Beck said the policy change would not affect the day-to-day activities of police officers but it codifies the fact that sometime the tactics can cross over and affect the judgment of the use of force.
The L.A. Police Commission is set to take a final vote on the change in two weeks.
This story has been updated.