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Cripa Beacon Pd Ny Recommendations 6-21-05

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u.s. Department of Justice
Civil Rights Division

Special Litigation Section - PHB
950 Pennsylvania Avenue, N. W.
Washington, DC 20530

June 21, 2005
Gerard J. Pisanelli, Esq.
Law Offices of Gerard J. Pisanelli
2 Cannon Street
Poughkeepsie, NY 12601
Re:

Beacon Police Department

Dear Mr. Pisanelli:
As you know, the Civil Rights Division and the United States
Attorney's Office for the Southern District of New York are
conducting an investigation of the Beacon Police Department
("BPD") pursuant to the Violent Crime Control and Law Enforcement
Act of 1994, 42 U.S.C. § 14141. We would like to take this
opportunity to express our appreciation for the cooperation we
have received thus far from the City of Beacon ("City") and the
BPD.
To date we have reviewed relevant BPD policies and conducted
interviews with City officials, BPD command staff and a crosssection of BPD supervisors and patrol officers, and reviewed
hundreds of BPD arrest reports.
We have also talked with
representatives of the Patrolmen's Benevolent Association,
community leaders, and other concerned citizens.
At the beginning of our investigation, we committed to
providing the City with technical assistance to improve the BPD's
practices and procedures and ensure compliance with
constitutional rights.
During our meetings with you and the BPD
command staff in November 2004, we told you that we would provide
in writing more specifics about recommendations our police
practices expert had made orally.
In this letter, we convey our
recommendations regarding the BPD's written policies.
Important
aspects of our fact-gathering process have yet to be completed,
most notably completing review of arrest reports and other
documents you have produced.
Therefore, this letter is not meant
to be exhaustive, but rather focuses on significant
recommendations we can provide at this preliminary stage of our
investigation.

- 2 Additionally, we hope this letter will assist in our mutual
goal of ensuring that the BPD provides the best possible police
service to the people of Beacon. We look forward to continued
cooperation toward this goal. We would be happy to provide
examples of policies used by other police departments that might
address some of the issues we raise below.
I.

BPD Policies and Procedures
The BPD should revise and update its policies and procedures
to be consistent and comprehensive.

Policies and procedures are the primary means by which
police departments communicate their standards and expectations
to their officers. Accordingly, it is essential that the BPD's
policies be comprehensive, comprehensible, up-to-date and
consistent with contemporary police practices.
BPD's policy and procedure manual was developed in 1987 and
has not been revised significantly since its development.
Although some policies and procedures have been revised or added
over the years, the manual contains a number of policies that are
out-of-date, inconsistent with accepted police practices, and
lacking in sufficient detail to appropriately guide officer
conduct.
Specific examples of such policies are discussed below.
Further, significant BPD policies such as those relating to the
use of force, the use of firearms, and canines are not organized
by subject matter, but are found in a number of different
policies spread throughout the manual, as detailed more fully
below. We understand that the BPD is currently in the process of
updating its policies and procedures manual and we trust that the
technical assistance recommendations contained in this letter
will assist that endeavor.
II.

Use of Force
The BPD should revise its use of force policies regarding
the use of force by BPD officers and adopt an appropriate
use of force continuum.

In the course of their duties, police officers may be
required to use deadly or non-deadly force.
Because such uses of
force can place officers, civilians, and subjects at serious risk
of harm, it is incumbent upon police agencies to ensure that
their officers use force appropriately.
Use of force policies
and procedures must clearly set forth standards for the
appropriate use of force.
We recommend that the BPD force
policies be revised to provide a comprehensive policy that

-

3 -

contains the following critical elements:
appropriate
definitions of deadly and non-deadly force, a use of force
continuum, and specific guidance on the circumstances in which
officers may justifiably use force that is consistent with the
use of force continuum.
A.

Use of Force Definitions

Officers should be provided with clearly written policies
that establish guidelines for the use of force, including
appropriate limitations on the use of deadly and non-deadly
force, and prohibitions on the use of unauthorized types of
force.
An essential component to a clearly written use of force
policy is a definition of deadly force and non-deadly force.
BPD's force-related policies fail to fully address what
constitutes "deadly force." Article 18 sets forth BPD policy on
the use of deadly force, and limits the use of such force to
"self defense or in defense of the life of another and always
only to the extend [sic] permitted by law." Article 18A, which
relates to the investigation of uses of deadly force, indicates
that it applies to uses of firearms or "other deadly physical
force," but neither policy describes the actions that constitute
"deadly force" or offers sufficient guidance to officers who may
be required to use deadly force.
Article 19 describes the circumstances in which BPD officers
are authorized to use physical force, but does not describe the
actions that constitute physical force.
The only apparent
limitation in this policy is that BPD officers".
. will use
only the amount of physical force necessary to accomplish the
police goal, and will cease the use of such physical force once
the goal is accomplished." Article 5 (44) similarly provides
that officers "shall not use more force in any situation than is
reasonably necessary under the circumstances."
We recommend that the BPD adopt a definition of deadly force
that would include any use of force that is likely to cause death
or serious bodily injury.
We recommend also that the BPD's use
of force policy be revised to limit strikes to the head with
impact weapons, such as nightsticks or flashlights, as tactics of
last resort to be used only when the use of deadly force would
otherwise be authorized.
Due to the possibility of death or
serious bodily injury from the delivery of blows to the head, we
recommend that BPD's policy be revised to reflect the potential
deadliness of such uses of force.
Similarly, the revised policy
should identify uses of physical force that may constitute deadly
force, such as the application of the carotid hold.

- 4 In addition to defining deadly force, BPD's policy should
define "non-deadly force." We recommend that the BPD's
definition include all uses of force beyond un-resisted
handcuffing including, but not limited to, the use of hard hand
tactics, Oleoresin Capsicum ("OC"), and strikes with impact
weapons.
We also recommend that the BPD's use of force policy
identify any uses of force that are specifically prohibited or
restricted to limited circumstances (e.g., choke holds).l
B.

Use of Force Continuum

Although BPD officers are authorized to carry a variety of
weapons, from OC spray, to nightsticks, to their service
firearms, the BPD does not employ a use of force continuum,
matrix, or any other description of levels of suspect resistance
and appropriate officer use of force responses.
As noted above,
the BPD's policies on non-deadly force are provided in Article 19
that provides general guidelines for when the use of non-deadly
force may be appropriate.
Article 19 does not include a
comprehensive list of actions that are considered uses of force,
a description of the permissible uses of force, or a force
continuum which would indicate the appropriate level of police
response to a subject's actions.
The BDP's use of force policies
do not mandate or describe de-escalation techniques that can
minimize officers' use of serious force.
Central to developing a comprehensive use of force policy is
the inclusion of a use of force continuum.
When properly
designed and implemented, a use of force continuum is a fluid and
flexible policy guide.
Many departments employ the continuum
because it provides a useful tool in training officers to
consider lower levels of force first, which protects the safety
of both the officer and the civilian.
Moreover, a use of force
continuum that emphasizes officers' presence, verbal commands,
de-escalation strategies, and the use of "soft hand" techniques
(using hands to escort rather than control subjects) can often be
used as alternatives to more significant uses of force.
We
recommend that BPD's use of force policy include a use of force
continuum.
BPD's force policy should describe how the various
force options may be used, how the various applications of the
options affect their placement in the use of force progression,
and what level of force is appropriate in response to what type
of resistance by suspects.
The continuum should include the

Most police departments have prohibited the use of the
carotid hold except under circumstances in which deadly force is
authorized.

-

5 -

actual types of force used by BPD, including canines and OC
spray.
Because officers are often confronted with difficult use of
force decisions with respect to persons with mental illness or
who are under the influence of drugs or alcohol, we recommend
that BPD's use of force policy and force continuum include the
de-escalation techniques appropriate to interactions with such
persons. We understand that BPD officers are trained to identify
persons who are under the influence of drugs and/or alcohol. We
recommend that all BPD officers receive additional training on
identifying persons with mental illness and the appropriate
techniques for interacting with such persons. We recommend that
the BPD establish a working relationship with the local public
mental health provider as a resource for training and support.
Whenever practical, the local mental health provider should be
called to the scene of incidents involving persons with mental
illness so that BPD officers can utilize their knowledge and
training.
C.

Legal Standards Governing the Use of Force

Current BPD policy instructs officers that they may use
force as permitted by law, but the policy does not provide
sufficient guidance on the applicable legal standards.
Given the
current absence of in-service training for BPD officers, we
recommend that BPD's use of force policy describe in some detail
the applicable legal standards.
Uses of excessive force by police officers are violations of
the Fourth Amendment, and are analyzed under the Fourth
Amendment's objective reasonableness standard.
Graham v. Connor,
490 U.s. 386, 394 (1989).
The analysis requires a balancing of
the quality of intrusion on the individual's Fourth Amendment
interests against the governmental interests.
Id. at 396.
The
criteria courts apply to assess an excessive force claim include
the severity of the crime at issue, whether the suspect presents
an immediate safety threat to the officers or others, and whether
the suspect is actively resisting or attempting to evade arrest.
Id.; Sullivan v. Gaugnier, 225 F.3d 161, 165 (2d Cir. 2000).
Lack of specific policy guidance on the appropriate use of force
may lead officers to believe that they are justified in using
force in situations in which it would be unreasonable or
unnecessary.
Conversely, unclear or overly general policies may
result in officers refraining from using necessary and
appropriate force out of an unwarranted fear of using excessive
force.

-

6 -

The Supreme Court has determined that deadly force is
permissible only when a suspect poses an immediate threat of
serious physical harm to the officer or another person.
Tennessee v. Garner, 471 u.S. 1 (1985).
The only exception to
this general rule is the "fleeing felon u rule, which allows
police officers to use deadly force to prevent the escape of a
suspect in cases where there is probable cause to believe the
suspect either poses an immediate threat of serious harm to the
officer or another or has committed a crime involving the
infliction or threatened infliction of serious physical harm.
Id.; Davis v. Little, 851 F.2d 605, 608 (2d Cir. 1988).
Yet
even in those circumstances, police are required to provide a
warning (if feasible) before using deadly force.
Garner, 471
U.S. at 11.
Deadly force is permissible only for as long as the
threat remains.
When the threat is over, the use of deadly force
must stop.
New York has its own statute covering the situations in
which law enforcement agents may employ deadly force.
Specifically, McKinney's Penal Law § 35.30 provides in relevant
part:
. deadly physical force may be used for such
purposes only when [the officer] reasonably believes that:
(a) The offense committed by such person was:
(i) a felony or an attempt to commit a felony involving
the use or attempted use or threatened imminent use of
physical force against a person; or
(ii) kidnaping, arson, escape in the first degree,
burglary in the first degree or any attempt to commit
such a crime; or
(b) The offense committed or attempted by such person was a
felony and that, in the course of resisting arrest therefor
or attempting to escape from custody, such person is armed
with a firearm or deadly weapon; or
(c) Regardless of the particular offense which is the
subject of the arrest or attempted escape, the use of deadly
physical force is necessary to defend the police officer or
peace officer or another person from what the officer
reasonably believes to be the use or imminent use of deadly
physical force.
Although our jurisdiction is, of course, limited to federal law,
we recommend that the BPD's use of force policy be revised to
track both the federal constitutional and state standards.

-

D.

7 -

Specific Uses of Force

We have reviewed BPD's use of force policies regarding
specific uses of force and have the following comments.
1.

Firearms

The BPD should revise its policies and procedures relating
to firearms to ensure consistency and officer
accountability.

As noted above, the BPD's policies relating to the use of
firearms are found in separate policies in the current policy
manual; Article 7, Article 18, and Article 18A all relate to the
use of firearms.
We recommend that the policies relating to
firearms be consolidated as part of a single use of force policy.
Current BPD policy requires officers to carry at least two
extra magazines (Art. 7, l(A.)) but there is no limit on the
number of magazines or the number of rounds an officer can carry
and no indication of what ammunition is authorized.
Through our
interviews with BPD staff, we understand that supervisors do not
inspect officers to determine how many magazines and/or rounds
they carry, or whether the standard issue ammunition is being
carried.
In the event BPD officers discharge their firearms, it
is critical that supervisors and investigating officers be able
to ascertain quickly the number of rounds fired and how much
ammunition was on the scene. We recommend that the BPD establish
a system of accountability for both the number and type of BPDissued ammunition.
In addition to inadequate controls on the number of rounds
carried by BPD officers, we understand that officers are
permitted to carry any number of secondary firearms, so long as
officers qualify with these weapons.
The requirement that
officers be qualified to use such secondary weapons off duty is
contained in Firearms Policy (12).
However, BPD policy is
somewhat ambiguous on the use of secondary firearms by BPD
officers while on duty.2 Our interviews confirmed that BPD
officers can and, at times, do carry secondary weapons without
supervisory review or approval. As discussed above with regard
to a system of accountability for Department-issued ammunition,
we recommend that the BPD establish a system of accountability

2

Section 11 indicates that "an officer who carries an
off duty weapon must safeguard that weapon and insure the safety
of the citizens of the community."

- 8 for the use of secondary weapons.
In the event a BPD officer
carries his secondary weapon, it is vital for police supervisors
and investigators to know what weapons and what type of
ammunition was used.
2.

Shotguns

The BPD should revise its policies and procedures to ensure
the proper use of shotguns.
We understand that BPD officers have discretion to carry
shotguns while on patrol and that, pursuant to a recent policy
directive, at least one patrol officer is required to have a
shotgun in his/her car on every shift.
Despite this directive,
BPD policy does not provide sufficient controls regarding the
circumstances in which officers are authorized to deploy the
shotgun.
As with service firearms, there is no indication in
policy regarding the type or amount of ammunition to be carried
by officers for use with the shotgun.
Shotgun ammunition comes
in a variety of types, with differing degrees of lethality, and
which can be used for different purposes.
We recommend that the BPD develop a clear policy for the
authorized deployment of shotguns, and that such policy include a
list of approved shotgun ammunition and guidance for the use of
the different types of shotgun ammunition.
3.

Impact Weapons

The BPD should revise its policies and procedures to
identify standard issue impact weapons and ensure that all
BPD officers are properly trained to carry and use such
weapons.
Impact weapons, used by a trained officer and in accord with
an appropriate use of force continuum, can be effective tools for
officers to control suspects without resorting to more
significant or lethal uses of force.
BPD policy does not require
officers to carry impact weapons.
Article 17(31) requires that
officers carry only their service revolver, a minimum of one set
of handcuffs, 12 extra rounds of ammunition, a police whistle,
and a ballpoint pen with black ink. 3 Other weapons, like an

3

This policy appears to be out of date.
We understand
that the BPD service firearm is the Glock pistol, not a revolver.
Further, BPD officers are required to carry at least two extra
magazines of ammunition which would contain either 26 or 30 extra

- 9 expandable baton, are not required.
Although BPD officers are
permitted to carry intermediate weapons, there is no requirement
that officers carry any intermediate weapon and no uniformity in
the weapons they carry.4 Consequently, officers who elect not to
carry intermediate weapons may use inappropriate alternatives,
like police radios, and are also left with fewer alternatives to
the use of deadly force.
Moreover, BPD policy allows officers to
carry intermediate weapons, such as the blackjack, the use of
which is inconsistent with generally accepted police standards. 5
We recommend that the BPD select a standard issue
intermediate weapon for all officers to carry while on duty,
specify the use of such weapon in the use of force continuum,
ensure that all officers are appropriately trained on the use of
such weapon, and prohibit the use of all other weapons.
4.

OC Spray

The BPD should revise its OC Spray policies and procedures
to ensure that OC spray is appropriately used and that all
uses are reported.
BPD policy on OC spray is contained in an addendum to the
policy manual.
Because using OC spray is a use of force and
should be appropriately identified in a use of force continuum
and its use reported, we recommend that policies relating to OC
spray be contained in a comprehensive use of force policy.
BPD's
OC policy is generally adequate in content.
However, we
recommend that the policy require that officers, where
practicable, warn subjects before employing OC spray.
In
developing a form for reporting uses of force, we recommend that
OC spray be specifically identified on that form.
Further, we
recommend that the OC policy explicitly describe the requirement
and procedures for decontamination following the use of OC spray.
As noted with regard to intermediate weapons, BPD does not
require that all officers carry OC spray.
We recommend that OC
spray be required equipment for all officers and that all

rounds, depending on which model of Glock the officer carries.
The BPD requires that officers be trained on the
particular weapon they carry.
5
BPD Policy on Uniforms and Equipment, Article 17(18)
permits officers to carry blackjacks, nightsticks, flashlights or
the combination thereof.

- 10 officers be trained to use OC spray consistent with the use of
force continuum.
5.

Canines

The BPD should revise its policies and procedures regarding
the use of canines to ensure consistency with the current
BPD staffing and to ensure consistency with generally
accepted police practices.
As a preliminary matter, we note that BPD policies relating
to canines are found in three locations:
a "Duties of Police K-9
Unit" policy, a separate document relating to additional
compensation for canine officers, and a separate "Canine Unit"
policy.
We recommend that these policies be consolidated into a
single comprehensive policy regarding the use of canines, and
that they be incorporated into or cross-referenced to a
comprehensive use of force policy.
We understand that the BPD's current canine unit has been
reconfigured recently and reduced in size.
The current policy
references a designated trainer, a supervisor, (and others), but
the current unit is comprised of only two officers.
We
understand also that the canines currently on duty are trained
only to search for and apprehend suspects, and that the BPD does
not currently have narcotics detection canines.
We recommend
that the BPD policies be updated to reflect the current
configuration and duties of the BPD canine unit.
The current "Canine Unit" policy is consistent with several
provisions of the International Association of Chiefs of Police
model policy, but does not address the following concerns for
which the technical assistance recommendations are provided
below.
We understand that the BPD canine unit follows a "find and
bark" policy.
This is appropriate and should be explicitly set
forth in the BPD canine policy.
We recommend also that the BPD
policy requirement that all canines meet the requirements
established by the Bureau of Municipal Police explicitly list
those requirements.
We recommend that the policy require canine handlers to have
approval from a supervisor before a canine can be deployed,
except in extraordinary circumstances where time does not allow
for the securing of such approval.
This policy should make clear
that the supervisory canine officer can not authorize deployment

-

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of his or her dog, except in the extraordinary circumstances just
described.
It is generally accepted practice for canines conducting
building searches for suspects to be unleashed but within visual
observation of their handlers unless there are exigent
circumstances. We recommend that these requirements also be
included explicitly in BPD's canine policy.
BPD's policy appropriately requires that, before commencing
a search, the canine handler shall make and repeat an amplified
announcement.
However, the policy does not detail the content of
that announcement.
Current generally accepted police practices
call for canine officers to announce that police officers are on
the premises, that a trained police canine is on the scene, and
that there is a risk that the canine may bite.
This complete
announcement should be repeated at least once and a reasonable
time allotted to allow a suspect the opportunity to voluntarily
surrender before the canine is deployed.
If the structure being
searched is a multi-level structure, the complete announcement
should, if feasible, be made and repeated on each level to ensure
that appropriate warning and opportunity to surrender is
provided.
As noted above, current BPD canine policy refers to canine
searches for narcotics, although there are presently no canine
units on duty trained to conduct such searches.
In the event BPD
deploys canine narcotics searching units, we recommend that the
policy be revised to provide explicit guidance to officers on the
appropriate use of canines to conduct narcotics searches.
This
is an area in which there is a great deal of case law. A
description of the rules and guidelines established by these
cases should be provided in policy and annual in-service
training, as discussed below. We note that the u.s. Supreme
Court recently decided Illinois v. Caballes, 125 S. Ct. 834 (U.S.
2005), holding that the use of a narcotics-detection dog to sniff
around the exterior of a vehicle did not violate the Fourth
Amendment rights of a motorist who was lawfully stopped where the
length of the stop did not exceed the time necessary to issue a
traffic ticket and make the necessary related inquiries.
E.

Use of Force Reporting

The BPD should develop and implement a system for BPD
officers to record, and BPD management to effectively
review, the use of force by BPD officers.
The routine review of officer uses of force is critical to a

- 12 -

department's ability to ensure officers are using force in a
manner consistent with constitutional standards and the
department's policies.
Use of force reviews may identify both
officer training needs and patterns of unauthorized or excessive
uses of force.
BPD lacks a clear policy on reviewing uses of
force and investigating those that appear excessive, avoidable,
inconsistent with BPD policy and/or indicative of potentially
criminal conduct.
BPD current policies and procedures do not clearly indicate
the manner in which uses of force are to be reported.
Article
19(6) requires that uses of physical force be reported in writing
to the Chief, but this policy does not describe the manner in
which such reports are made to direct supervisors or the nature
of any supervisory review of such uses of force.
The arrest
reports we have reviewed to date do not indicate that they have
been expressly reviewed or approved by supervisors.
In contrast,
BPO policy regarding the use of firearms requires that such use
be immediately reported to the officer's immediate supervisor,
that a written report be submitted to the Chief, and that the
incident be "completely investigated by the Detective Division."6
In the case of firearms discharges, however, no further
description of the nature of any investigation is provided. 7
Finally, no specific form for reporting use of force is used by
BPD officers which would permit a systematic review of uses of
force by type and by individual officer.
We recommend that the BPD establish a policy requiring the
review and/or investigation of all uses of force beyond unresisted handcuffing.
We recommend that the BPD establish
guidelines regarding the supervisory review and investigation of
such uses of force.
Further, we recommend that the BPD develop
and implement a standardized form for reporting all uses of
force, including the use of OC·spray.
The form should record
discrete information regarding the particular use of force.
The
form should require an officer to provide a detailed description
of the incident, beginning with the basis for the initial
contact, continuing through the specific circumstances and

6

Article 18A(6).

It is accepted police practice for uses of deadly force
by police officers, including firearms discharges, to be
investigated thoroughly by a designated team of officers, and
that such investigation be reviewed by the chain of command and
the local prosecutor.
Such practices should be memorialized in
policy.

- 13 actions that prompted each use of force, the specific use of
force employed (i.e., hard hands, OC spray, ASP baton),
describing the effectiveness of each use of force, and including
any resulting injuries and medical treatment.
The narrative
should include a detailed description of both the subject's level
of resistance and the police response.
The use of such phrases
as "resistance overcome with minimal force necessary" should not
be considered adequately detailed descriptions.
The form should
also record the identity of all witnesses to the use of force.
If OC spray is used, the form should record the number of OC
bursts used, the distance from the subject, the effectiveness of
the OC spray, and whether the subject was decontaminated.
The use of force reporting policy should specify a time
frame in which the report must be completed that ensures that the
report and any other supporting documentation is prepared.
This
time frame should be as soon as possible following the incident,
and before the officer goes off duty.
The policy should also
describe the responsibility of the first-line supervisor to
ensure that the use of force is documented, and a procedure for
the information to be provided up the chain-of-command.
The
policy should require that supervisory review be explicitly
indicated by signature or other indication of approval.
Policy
guidelines should identify the circumstances in which an
officer's supervisor is required to make command notifications,
to respond to the scene to gather and preserve evidence, and to
ensure that the injured person(s) receives prompt medical
attention.
The information regarding each use of force should be
tracked in an Early Warning System (EWS) as discussed below.
The
BPD should train all officers in use of force reporting and in
the use of the use of force form.
With regard to firearms discharges and other uses of deadly
force (such as head strikes with impact weapons), we recommend
that the BPD develop standard operating procedures for the
investigation of such uses of force, including uses of force in
which the subject is injured or complains of excessive use of
force, uses of force that require hospitalization or result in
death, and all head strikes and firearms discharges, except
discharges in the course of training, certification, or humane
animal destruction.
The policy should require the officer(s)
assigned to investigate an incident to evaluate each use of
force, as well as any instance of potential officer misconduct
discovered in the course of the investigation.
The policy should
include appropriate investigative safeguards to ensure that any

- 14 administrative investigation not taint any possible criminal
investigation.
The investigating officer(s) should be required
to refer any incident of potential misconduct through the chain
of command to the Chief.
III. Vehicle Pursuits/Roadblocks
The BPD should revise its vehicle pursuit/roadblock policy
to clarify the circumstances in which pursuits should be
authorized and the responsibilities of BPD supervisors.

Well-defined guidelines that identify circumstances in which
it is appropriate to initiate a vehicle pursuit are critical
elements of a vehicle pursuit policy.
BPD's vehicle pursuit
polices are set forth in Article 9 and describe the policies and
procedures that guide BPD officers' pursuit of known or suspected
criminals.
Article 10 sets forth BPD's policies relating to
roadblocks of pursued vehicles.
High-speed vehicle pursuits
present a great risk of harm to the officer, the subject,
innocent bystanders, and other drivers.
Article 9 (2) provides that
A pursuit will not be instituted if:
a.
b.

the violator has too much lead time
the identity of the operator is known.

This vehicle pursuit policy does not provide officers with
affirmative guidance on when it is permissible to engage in a
vehicle pursuit.
Rather, the policy states in the negative the
circumstances in which pursuits will not be instituted.
The
policy, on its face, would prohibit the pursuit of a violent
felon whose identity was known.
We recommend that the BPD revise
and clarify its pursuit policy to affirmatively state the
circumstances in which vehicle pursuits may be authorized.
This
policy should appropriately balance the danger to the public of
foregoing the pursuit of a violent or otherwise imminently
dangerous suspect against the danger to the public of the pursuit
itself.
Further, we recommend that the policy clarify that a
supervisor shall take command of the pursuit and that in all
cases of pursuit a supervisor should be responsible for
continuance or discontinuance of the pursuit.
Following each
pursuit, BPD should conduct a supervisory review of the pursuit
for consistency with BPD policy.
Finally, we recommend that the
BPD consolidate the vehicle pursuit and roadblock policies and
that the revised policy provide guidance on interjurisdictional
pursuits.

- 15 IV.

Public Complaint Investigations
The BPD should implement a formal, structured, and
consistent system for handling complaints.
A.

Complaint Procedure

An open and accessible process for receiving and
investigating complaints by members of the public serves several
important purposes. An appropriate complaint procedure ensures
officer accountability and supervision, deters misconduct, and
helps maintain good community relations, increasing public
confidence in, and respect for, the BPD.
Improving the current
procedure for handling complaints would maximize these goals.
1.

Intake and Tracking of Complaints

The BPD should change aspects of its complaint process that
have the potential to discourage the filing of complaints
and to impair the effective tracking and resolution of
complaints.
The BPD manual of rules and regulations does not include a
complaint policy.
In addition, at the time of the initiation of
our investigation there did not appear to be a formalized system
for the intake and tracking of complaints.
Our investigation
thus far has revealed that if an individual seeks to file a
complaint, he or she would be required to appear at the BPD.
The
Sergeant on duty at the time would be notified, and would discuss
the matter with the complainant.
The Sergeant would also ask the
complainant what he or she believed should be done about the
matter.
Following that discussion, the complainant would then
evaluate whether he or she wished to pursue the matter further
and, if so, would fill out a complaint form provided by the
Sergeant.
It does not appear that complainants had access to
complaint forms unless they first had this discussion with the
Sergeant on duty.
It also does not appear that the complaint was
logged by the desk officer.
We also learned of instances in
which some complainants would contact higher-level BPD personnel
with complaints, which would then be referred down the chain of
command for investigation.
This informal complaint intake and tracking system could be
improved in several ways that should be memorialized in policy.
First, we recommend that the BPD adopt a standard complaint form.
Although we have seen various versions of a complaint form in the
course of our investigation, it does not appear that there is a
standard form.
One form that we have seen, entitled the "City of

- 16 -

Beacon Police Department Civilian Complaint Form," includes only
information from the complainant, and does not have any space to
record statements from the officers in question, comments from a
supervisor, or the eventual disposition of the complaint.
This
complaint form should be redesigned to include the name of the
officer investigating the complaint, and the names of those
individuals interviewed about the complaint.
We further recommend that the BPO adopt a policy that
requires that the complaint form be readily accessible and
provided to any person who wishes to lodge a complaint without
inquiry as to the nature or basis of the complaint.
The form
should be available at BPO headquarters, other public facilities,
and in locations which should permit the forms to be obtained
without a specific request by a member of the public.
We
recommend that BPD policy explicitly state that a member of the
public has the right to file a complaint, and that no BPO officer
should discourage any such complaint.
The BPD should also
provide a copy of its complaint policy, or a summary thereof, for
example in the form of a brochure, to each complainant.
BPO policy should require the investigation of all
complaints received, including anonymous or confidential
complaints and those submitted in forms other than the standard
complaint form (i.e., by telephone, e-mail, TOO, or other means).
Further, we recommend that the policy require that every
complaint be documented, even if it is resolved.
We recommend
also that all complaints be logged by the desk officer and
assigned a unique control number to ensure that there is a record
of every complaint received by the department.
Finally, our investigation has indicated that a complainant,
when presenting a complaint, is asked what he or she proposes be
done about the matter.
This question is not appropriate.
It is
not the burden of the complainant to propose a resolution to the
matter.
Complainants are not familiar with the intricacies of
police administration and discipline.
2.

Outside Referrals of Potentially Criminal Allegations

The BPD should develop a policy and protocol that requires
instances of allegedly serious misconduct that potentially
implicate criminal liability to be referred outside the BPD
for investigation and appropriate action.

In developing its policy regarding complaints, the BPO
should delineate which complaints are appropriate for internal
review and which complaints should be referred outside the BPD

- 17 for potential criminal investigation.
Some allegations of
misconduct, including those that are the subject of complaints
from a member of the public, may be so serious as to warrant an
outside referral to the Office of the District Attorney or other
appropriate entity.
The BPD policies and procedures make no
reference to this possibility.
The determination of whether the
allegations of a complaint would potentially require a criminal
investigation should be made as early as possible.
We also recommend that, in instances where internal review
or complaint reveals misconduct that qualifies as serious under
the BPD's policies, the Chief should make the ultimate
determination as to whether and how an allegation is referred for
investigation within the BPD.
The Chief's determination should
be memorialized in writing.
The policy and procedure that the BPD implements should also
clarify the rights of officers involved.
If the complaint
involves allegations of criminal misconduct, the Chief may choose
to refer the matter to an outside law enforcement agency for
investigation.
During investigations of potentially criminal
misconduct, officers may be read Miranda rights before
questioning, may be required to have counsel present, and may be
required to be polygraphed.
This policy should be consistent and
coordinated with the policy regarding the investigation and
evaluation of complaints.
This coordination will prevent a
situation in which the investigative protocol used to investigate
a complaint turns out to be incompatible with the requirements
for the investigation of serious misconduct, thus compromising
the integrity of each.
For example, if a complaint alleges that
serious misconduct might have occurred, BPD policy should require
that such a complaint be investigated under the heightened
standards, rather than the standards applicable to complaints
that do not involve allegations of potentially serious
misconduct.
3.

Investigation of Complaints

The BPD should have a fo~al, structured, and consistent
policy regarding the investigation by appropriately trained
supervisors of complaints from members of the public.
Under the current system of complaint investigation and
resolution, as described to us in the course of the
investigation, the Sergeant on duty receives the complaint and
refers it to the Captain.
The Captain investigates the
complaint, decides whether it is founded or unfounded, and then
resolves it in some manner.
Based upon the complaint files we

- 18 have reviewed, it appears that some of the complaints are treated
much the same as any criminal investigation, pursuant to an
identical protocol.
Many of the questions applicable to a
criminal investigation, however, have little to no relevance to
assessing the merits of a complaint.
Additionally, our
investigation found that the Chief mayor may not become aware of
the existence of a complaint, that the Sergeant who ordinarily
supervises the officer concerned (as opposed to the Sergeant on
duty when the citizen presents his or her complaint) mayor may
not learn of the complaint, and that the member of the public who
initiated the complaint mayor may not learn how (or whether) it
was resolved.
We recommend that the BPD adopt a policy concerning the
investigation of complaints from members of the public.
The
policy should provide that the Chief be notified of complaints as
soon as possible.
For complaints alleging the excessive use of
force or violation of a person's constitutional rights,
the
Chief should be notified no less than twenty-four hours after
receipt of a complaint.
The policy should delineate and specify responsibility for
the citizen complaint investigation process.
A designated
supervisory officer(s) should be responsible for the
investigation and recommended resolution of complaints.
We
recommend that all BPD officers charged with handling complaints,
whether conducting intake or investigating complaints, receive
specialized training before beginning intake or investigative
responsibilities.
The training should include investigative and
interview techniques for formal complaints, including examining
and interrogating witnesses; identifying misconduct even if it is
not specifically named in a complaint; ethics; integrity;
professionalism; the factors to consider when evaluating
complainant or witness credibility; and the appropriate burdens
of proof (i.e., preponderance of the evidence).
The training
should also clarify the limited circumstances in which informal
complaints are appropriate, and discuss the methods for
investigating those complaints.
We also recommend that the BPD policy on complaints specify
a clear time line under which the complaint will be investigated
and adjudicated.
We recommend that the policy require that,
absent exigent circumstances, any investigation be completed
within 30 days.
Extensions beyond the 30-day period should
require the Chief's written approval and be communicated in
writing to the complainant.

- 19 The BPD policy should clearly define the nature and scope of
the investigation.
In the course of our investigation we heard
complaints both from citizens and from officers that the
complaint procedure can be erratic and irregular.
The lack of a
formal, structured, and consistent policy poses difficulties to
the complainant as well as the officer involved in the incident,
both of whom are entitled to know in advance what their rights
and responsibilities are in the course of the investigation.
In defining the scope and nature of the investigation, the
BPD policy should provide that any investigation include an
interview with the complainant and all witnesses, citizen or
police.
The policy should require that all forensic or other
evidence be obtained and analyzed. A subject officer should also
be required to produce all statements, reports and notes
completed in his or her course of duties that are related to the
allegations.
We recommend that the BPD policy require that all
interviews be mechanically recorded using an audio or video tape.
The BPD should also establish guidelines as to when to compel
statements from officers pursuant to Garrity v. New Jersey, 385
u.s. 493 (1967). The BPD should ensure that, to the extent that
the citizen complaint implicates possible criminal activity by
the officer, officers are adequately informed of their rights
against self-incrimination. As noted above, the investigative
protocol for complaints should require an early assessment of
whether serious misconduct may have occurred that may warrant a
referral to the Office of the District Attorney.
The BPD rules and regulations do not explicitly state that
officers must report violations of law or BPD codes of conduct
that would be subject to disciplinary action. We recommend that
a BPD policy require that officers who witness misconduct by
other officers must report such conduct to the Sergeant on duty
and, in the event that such misconduct is the subject of a
citizen complaint, to any supervisory officer investigating such
complaint.
Finally, we recommend that the failure of an officer
to report the misconduct of another officer be subject to a
serious level of discipline.
4.

Adjudication and Resolution of Complaints

The BPD should develop a protocol for the adjudication and
resolution of complaints.

We recommend that the BPD develop a protocol for the
adjudication and resolution of complaints that requires a summary
of the investigation and an assessment of the alleged misconduct
be presented to the Chief.
The policy should address the fact

- 20 that a complaint may, or may not, require disciplinary action.
The officer conducting the investigation of the complaint should
be required to recommend a finding concerning the complaint.
Whether any disciplinary measures should be imposed based upon
the complaint should be left up to the supervisor of the officer
concerned.
(In some cases, however, the officer conducting the
investigation could be the subject officer's supervisor, in which
case that officer would both recommend disposition of the
complaint as well as disciplinary measures.)
Both the
recommended adjudication of the complaint and the recommended
discipline of the officer should be provided to the Chief.
The policy should require a finding as to whether:
(1) the
police action was in compliance with policy, training and legal
standards; (2) the incident involved additional misconduct; (3)
investigation of the incident revealed other incidents of
misconduct by the same officer, or instances of similar
misconduct by other officers; (4) the use of different tactics
should or could have been employed; (5) the incident indicates a
need for additional training, counseling or other nondisciplinary corrective measures; or (6) the incident suggests
that BPD should revise its policies, training, tactics, or
equipment.
The BPD protocol should state that the preponderance of the
evidence is the standard of proof for an administrative
investigation.
The recommended finding should note whether any
disciplinary measures have been recommended by the subject
officer's supervisor.
We recommend that the BPD policy regarding complaints
require a clear resolution to every complaint from a member of a
the public, with notice provided to all relevant parties. At the
conclusion of the investigation, the complainant should receive a
letter from the Chief setting forth the key facts of the
complaint, including the name of the complainant, the internal
control number, the date of the incident, the name of the
officer(s) involved, and whether the complaint was withdrawn,
exonerated, deemed unfounded, or sustained.
If sustained, the
letter should indicate whether remedial actions will be taken. 8
The letter advising the citizen of the resolution of the
complaint should be prepared by the supervisor conducting the

8 The protocol should also permit a finding that the subject
officer acted in accordance with policy, but that the citizen
complaint reveals a policy failure.

- 21 investigation, and then provided to the Chief at the conclusion
of the investigation.
If the Chief modifies the supervisor's
recommendation, the reason for such modification should be in
writing, and kept with the original recommendation in the
complaint file.
Thus, every complaint should begin with a
citizen complaint form, and end with a letter, each document
reflecting the same control number for ease of reference and
later review, if any.
After the BPD revises its complaint policy, the new policy
should be distributed to the community through a variety of
outlets, including but not limited to distribution to local
newspapers and posting at public buildings, where the policy
should be maintained and preserved, to put the public on notice
of these procedures.
B.

Policy Development

The BPD should seek input from the community on policies
that are of particular concern to members of the public.
The absence of any substantial revisions to the policies and
procedures manual promulgated by the BPD in 1987 reflects that
the BPD does not have a formal process for policy development.
There is, as a result, no mechanism to ensure that policies are
developed with feedback from the community.
We recommend that
the BPD create a policy development committee.
This committee
should seek input from the community on policies of particular
interest to the community.
While not all changes and
recommendations by the community may be practical or appropriate,
asking for feedback could increase community understanding and
awareness of law enforcement issues and provide an opportunity
for public education.
C.

Name Plates

All BPD officers should wear name plates indicating
their rank and surname.
In the course of our investigation, we observed that BPD
officers did not wear name plates.
The lack of name plates
complicates efforts by citizens to report complaints of
misconduct, and may lead to instances of officers incorrectly
being the subject of citizen complaints. We understand that a
request was made for funds to purchase name plates, but that the
name plates have not yet been purchased.
We recommend that these
name plates be obtained and worn as part of the BPD uniform.

- 22 -

V.

Supervisory Oversight
A.

Risk Assessment and Management

BPD command staff should examine and review officer conduct
on a regular basis as a proactive measure to minimize and
detect misconduct, and to identify training and policy
issues.

Our investigation thus far has revealed a lack of
structured, formal oversight of BPO officers by command staff.
There did not appear to be regular review procedures formalized
in policy.
To the contrary, review of officer activity appeared
informal and ad hoc.
We recommend that the BPO implement policies and procedures
for BPO supervisors to routinely review all aspects of BPO
officer conduct, including a review of (1) probable cause for
arrests and the appropriateness of charges filed, (2) reasonable
suspicion for stops and searches that do not result in an arrest,
and (3) uses of force as discussed above.
We recommend that BPO
policy require supervisors to review and approve all arrest
reports, recording their approval on the arrest reports by
handwritten or electronic signature, and review and approve a
random sample of traffic citations to ensure that sufficient
reasonable suspicion supports officer actions and that
appropriate charges are filed.
We recommend that the BPO implement policies and procedures
to collect data on individual officers for the purpose of
maintaining, integrating, and retrieving information necessary
for effective supervision and management of BPO personnel. We
recommend that uses of force, citizen complaints, arrests and
charges, searches and seizures, internal affairs investigations,
service calls, training, awards and commendations, sick leave,
civil lawsuits and other items relevant to an officer's conduct
be included in the data collected. The BPO can then use this
data regularly and proactively to promote best professional
police practices; improve accountability and management; manage
the risk of police misconduct and potential liability; and
evaluate and audit the performance of officers and units on a
regular basis.
The BPO can develop a risk assessment system appropriate to
its needs and size.
Such systems are often referred to as Early
Warnings Systems (EWS). Whether paper-based or computer-based,
even a simple EWS could provide a useful assessment of each
officer's conduct.
The EWS should contain information on all

-

23 -

investigations and complaints, including non-sustained complaints
and complaints prior to final disposition, uses of force,
criminal arrests and charges, civil lawsuits, training history,
supervisory reviews, discipline, and other corrective actions, as
well as awards and commendations. We recommend that the BPD
require supervisors, including command staff, to review this data
for every officer they supervise on a regular, predetermined
basis, such as every quarter.
The policy implementing these recommendations should also
establish guidelines regarding specific events that will trigger
an additional supervisory review, such as a specific number of
uses of force or citizen complaints within a discrete period.
Once an officer has been selected for this additional review, a
report should be prepared that details all use of force reports,
formal and informal complaints, calls for service, sick leave,
counseling reports, civil lawsuits, commendations, and "no
complaints" pertaining to the officer within the past ten years.
The officer's supervisory sergeant and command staff should then
meet to discuss the report and determine if any corrective action
is warranted.
The supervisory sergeant and command staff's
recommendations should then be forwarded to the Chief for his
review and implementation.
The effectiveness of the implemented
recommendations should be determined by monitoring the officer
and drafting written reports on the officer's conduct on a
monthly basis.
Both the supervisory recommendations and the
written monthly report should be included in the officer's file.
We recommend that the BPD consider utilizing peer reviews of
the information contained in the reports by comparing complaints,
use of force reports, and other pertinent information about a
particular officer with similar information from other officers
on the same patrol team or shift.
In addition, the policy should
provide explicit guidance to supervisory officers reviewing
reports to ensure that patterns of possible misconduct are
identified, analyzed, and addressed properly by command staff.
The aim of this process is to give supervisors valuable
information that, if received early, could identify potential
problem officers before misconduct actually develops.
VI.

Officer Training
A.

Field Training

The BPD should develop a field training program for new BPD
officers.

A structured field training program is essential for

- 24 training new recruits.
Field training for new officers is an
integral component of any comprehensive officer training program,
and minimizes the risk of officers engaging in problematic
behaviors, including the use of excessive force.
Field training
typically occurs during an officer's first twelve weeks on duty
following police academy training.
The BPD does not have a
structured field training program for new officers.
Well-qualified field training officers (FTOs) are critical
to ensuring well-trained police recruits.
BPD has no policy
regarding a field training program and, we understand, has only
one officer who is currently certified to be an FTO.
We
recommend that the BPD develop and implement a field training
program that utilizes FTOs to supervise and train new BPD
officers.
FTOs should have at least three years experience on
the BPD.
Additionally, FTO instructors should have completed a
course on how to serve in that capacity. An FTO candidate's
experience and interpersonal skills should also be considered as
selection criteria.
We recommend also that the BPD take measures
to recruit and train qualified FTOs, including providing
incentives to current officers to encourage them to apply to
become FTOs.
The BPD should develop and implement a
comprehensive policy regarding field training, including a
mechanism for evaluating FTOs and for removing FTOs who fail to
perform adequately, and whose actions while serving as FTOs would
have disqualified them from selection.
B.

In-service Training

The BPD should develop and implement in-service training for
all BPD officers.
In-service training is a valuable tool for ensuring that
officers maintain familiarity with issues that are essential to
police work.
Although BPD officers receive firearms training biannually, there is no other structured training program on use of
force, defensive tactics, policies and procedures, current legal
issues or other issues that are essential to police work.
We
recommend that the BPD develop and implement an in-service
training program for all officers.
This program should provide a
minimum of sixteen hours per year of training (excluding firearms
re-qualification) on police topics as determined by BPD's Chief.
We recommend that the training topics include the use of force,
searches and seizures, legal developments and police integrity.
This training should be in addition to the bi-annual firearms
training.
We recommend that training be conducted by instructors
who have been trained and certified to be instructors, and who
are competent in the subject matter.

/s/ David N. Kelley

/s/ Bradley J. Schlozman

-25/s/ David J. Kennedy

/s/ Shanetta Y. Cutlar

As discussed above, we recommend that the BPD in-service
training include de-escalation techniques for interactions with
persons with mental illness and those who may be under the
influence of drugs or alcohol.
We note that one potential resource for the BPD in
establishing and improving in-service and field training officer
programs may be the longstanding training and grant programs
administered by other components of the Department of Justice,
such as the Office of Justice Programs.
While these programs are
completely separate and independent of the Civil Rights
Division's investigations, we would be pleased to provide you
with contact information for exploring the possibility of such
assistance.
IV.

Conclusion

We strongly urge the BPD to adopt these technical assistance
recommendations as it revises its policies and procedures.
We
look forward to working with you and the BPD as our investigation
proceeds.

Sincerely,
DAVID N. KELLEY
United States Attorney
Southern District
Of New York

BRADLEY J. SCHLOZMAN
Acting Assistant Attorney General
Civil Rights Division

DAVID J. KENNEDY
Assistant U.S. Attorney
86 Chambers Street
3 rd Floor
New York, NY 10007
(212) 637-2733

SHANETTA Y. CUTLAR
Chief
Special Litigation Section

By:

cc:

Chief Richard Sassi
City Manager Joe Braun

 

 

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