Exclusive: A review of the new, improved Waterloo Police use-of-force policy

More than two years after outside experts recommended a “complete review” of guidelines on the use of force, the Waterloo Police Department finally adopted a new policy in December 2017. Police leaders didn’t publicize the changes, and to my knowledge, no media have reported on the revisions.

In many ways, Waterloo’s updated use-of-force policy reflects national consensus on best policing practices. Some improved passages appear to be a response to notorious local incidents of officer misconduct.

On the other hand, several important principles on the use of force are missing from Waterloo’s new document.

BETTER LATE THAN NEVER

Police brutality has been a recurring problem in Waterloo, where officers were rarely disciplined for using excessive force against African Americans, even when misconduct led to lawsuits and expensive payouts for the city. A team from the non-profit Police Executive Research Forum (PERF) visited Waterloo in June 2015 to interview officers and local stakeholders. PERF sent the department its recommendations that September. A section calling for “immediate steps to address police-community relationsincluded the following suggestion:

A review of the department’s use-of-force policy indicated there are opportunities to update the policy and clarify language on expectations related to officer use of force. A complete review of the department’s use-of-force policy could be extremely beneficial to the department.

The city of Waterloo paid $2.7 million in 2016 to settle a series of lawsuits related to police misconduct. Yet the department’s use-of-force policy remained unchanged.

After Police Chief Dan Trelka nearly lost his job in September 2016, he repeatedly promised an overhaul of policies, especially those governing the use of force. A year later, the department was still operating under its 2011 use-of-force policy, which had a number of problematic passages and omissions.

The department did not issue a press release when its new use-of-force policy went into effect in December 2017, nor has Trelka publicly discussed the changes. Here is the full six-page document.

For those who want to compare, I’ve embedded the department’s 2005 and 2011 use-of-force policies at the end of this post. Bleeding Heartland has previously discussed how “Every substantive change Trelka signed into effect in 2011 gave officers more latitude to use force or less accountability after using force.”

Waterloo Police officials did not respond to my repeated requests for further information about the new policy, such as:

• Who was involved in drafting the document?

• Did any city officials outside the police department review or comment on it?

• Did experts not affiliated with city government review or comment on it?

• Was there any public input before the revised policy took effect?

• What role, if any, did Trelka’s working group of people with felony convictions play?

Excessive use of force may be a sensitive topic for Major Joseph Leibold, the current public information officer for Waterloo police. As the chair of the department’s Shooting Review Board, he presided over a shocking whitewash of an officer’s fatal shooting of Derrick Ambrose, Jr. in 2012. The city eventually paid $2.5 million to settle a wrongful death lawsuit filed by Ambrose’s parents. Florida law enforcement officer and instructor Ken Katsaris tore apart the official investigation in this expert witness report. Pages 24 through 27 contain a harsh analysis of the Shooting Review Board’s inquiry; then Captain Leibold failed to do any fact-finding or examine any evidence other than the Internal Affairs report ratifying the officer’s misconduct.

HIGH POINTS

To assess the strengths and shortcomings of Waterloo’s new policy, I looked closely at all changes from the 2011 version. I also compared its provisions to a 2016 Police Executive Research Forum report that outlined 30 “guiding principles on the use of force.” PERF’s conclusions grew out of “18 months of research and discussion” involving “hundreds of police professionals at all ranks, as well as mental health officials and other experts.”

In addition, Lois James shared her perspective on the past and present Waterloo policies during a telephone interview with Bleeding Heartland last month. An assistant professor at Washington State University’s College of Nursing, James has studied the use of force by law enforcement for nearly a decade. Her doctoral dissertation examined how suspects’ race and ethnicity may affect officers’ decision to shoot.

Thirteen of PERF’s 30 guiding principles pertain to written policies. The Waterloo Police Department has incorporated six-and-a-half of those thirteen points.

1. Stressing the “sanctity of life” was PERF’s top recommendation: “Agency mission statements, policies, and training curricula should emphasize the sanctity of all human life—the general public, police officers, and criminal suspects—and the importance of treating all persons with dignity and respect.” Sample wording on page 34 of PERF’s report resembles this passage from the first page of Waterloo’s updated guidelines:

It is the policy of the Department that employees hold the highest regard for the dignity, life and liberty of all persons. Employees of this department shall use no more force than necessary during their performance of duties [in] accordance with the law. The application of deadly force is a measure to be employed in the most extreme circumstances.

2. PERF urged departments to adopt “more detailed policies and training” than the minimum required under the U.S. Supreme Court’s 1989 decision Graham v. Connor, spelling out rules on “shooting at moving vehicles, rules on pursuits, guidelines on the use of Electronic Control Weapons, and other use-of-force issues […].”

Several sections of Waterloo’s new policy are more comprehensive than the 2011 version. For instance:

• New passages define “deadly force,” “reasonable force,” and “serious injury,” using terms “almost word for word in agreement with national-level recommendations in policy,” according to James.

• Allowable uses of baton and chemical sprays are described in more detail, including language calling for officers to give warnings before deploying the weapon in question. James found those points “appropriate” and “consistent” with national standards.

• The firearms provisions are more specific and use language “very much in line with national standards and guidelines,” James said. The policy prohibits firing a weapon “either at or from a moving vehicle, unless it is absolutely necessary to do so to protect against imminent threat to the life of the officer or others.” Unlike the 2011 document, the new Waterloo policy states, “Before discharging a weapon, when reasonable, officers shall identify themselves and their intention to shoot, giving the subject reasonable time to respond to this directive.”

• The new policy has an eight-point section on the use of tasers, about which the 2011 document said nothing. An outrageous act of police brutality against Justin Jones in 2013 presumably inspired the taser language (click through to view damning dashboard video of that incident). The city settled Jones’ lawsuit for $70,000.

• Whereas the old policy did not mention handcuffing juvenile offenders, the new policy forbids the practice, with a few exceptions. Those lines are surely a response to an appalling 2014 incident involving a 13-year-old girl, which prompted yet another lawsuit and settlement. James found the wording on handcuffs for juveniles “appropriate” and “quite progressive.” When I explained the context, she observed, “Unfortunately, that’s often the impetus for change.”

• James was struck by the “surprisingly thorough” section on canines, which takes up about one-sixth of the use-of-force document. She particularly liked a line clarifying that “When searching for misdemeanor suspects the canine shall be on leash.” I’m not aware of any controversy or lawsuit stemming from the use of police dogs in Waterloo and would welcome insight from more knowledgeable sources.

3. PERF’s report states, “Police use of force must meet the test of proportionality,” encouraging officers to consider questions such as, “Am I using only the level of force necessary to mitigate the threat and safely achieve a lawful objective?”

As mentioned above, Waterloo’s updated policy requires employees to “use no more force than necessary during their performance of duties [in] accordance with the law.” In addition, the first paragraph of the new policy includes two sentences not found in previous documents:

The proper use of force is essential for policing during circumstances where individuals or groups will not comply with the law unless compelled or controlled by force. The departmental need must match the level of force and intrusion upon an individual’s constitutional rights.

4. PERF urges police departments to “Adopt de-escalation as formal agency policy.” Waterloo’s 2011 use-of-force guidelines said nothing about such practices, but the current policy contains de-escalation instructions.

James saw that section as a “very positive addition,” particularly the line calling for officers to “attempt to gather facts and slow the incident down and coordinate a response.” Such language is consistent with standard practice in Canada and the United Kingdom, she said, where “overall reduction of harm” may take precedence over the need to assert police authority. In contrast, in the U.S. there is more of a tendency for officers to feel they must “win every situation.” James also appreciated this point from the section on “Post Use of Force Procedures”: “Officers will begin to verbally de-escalate the situation during transport when possible.”

James identified one “unfortunate” aspect of Waterloo’s de-escalation policy, however. The section begins with the sentence, “Clearly, not every interaction can be de-escalated.” In her view, it would be better to start by saying de-escalation techniques should be employed in every situation, except where not feasible.

5. Another PERF principle: “Officers should render first aid to subjects who have been injured as a result of police actions and should promptly request medical assistance.”

Waterloo’s policy now states, “Immediately after securing the suspect the officer will check for and provide treatment for injuries that require immediate treatment.” James found the wording “very good,” if “a little vague.” Some police departments specifically call for “life-saving measures” whenever feasible after infliction of deadly force, she explained.

6. Best practices call for agencies to ban “shooting at or from a moving vehicle unless someone in the vehicle is using or threatening deadly force by means other than the vehicle itself.” The PERF report noted (pp. 15, 45-47) that the New York City Police Department’s 1972 rule against firing at or from a moving vehicle “resulted in an immediate, sharp reduction in uses of lethal force.”

Waterloo’s new policy includes such language. The wording is stronger than a similar portion of the 2011 policy, which forbade shooting at a moving vehicle only “when there is risk of injury to innocent persons.”

7. PERF recommended that departments “Document use-of-force incidents, and review data and enforcement practices to ensure that they are fair and non-discriminatory.”

The final page of Waterloo’s updated policy requires officers to photograph all injuries and “complete a detailed report” after any use of force. That report must incorporate all applicable factors from a long list (severity of crime, warnings given, time given to comply, de-escalation efforts, whether the suspect posed an immediate threat, had weapons in close proximity, was under the influence of drugs or alcohol, resisted arrest, and so on).

Despite the strained relations between people of color in Waterloo and the city’s predominantly white police department, the new policy says nothing about reviewing data to determine whether personnel are acting in a racially disparate way. The injured person’s race or ethnicity is not among the points officers must mention when writing up a use-of-force incident.

Nearly 16 percent of Waterloo residents are African American, the highest percentage of any city in Iowa. Incidents of police brutality were a major reason the former mayor sought help from the U.S. Department of Justice. During PERF’s 2015 site visit to provide technical assistance to Waterloo police, the outside experts noticed “somewhat of a racial divide in the city and a lack of trust between the minority community and some officers.” Most of their advice on how to address that problem–including a complete review of the use-of-force policy–sat on the shelf for more than two years.

Safeguards against racial discrimination aren’t the only conspicuous absence from Waterloo’s current use-of-force policy.

MISSING PIECES

1. Drawing on a national policy in the UK, PERF devised a “Critical Decision-Making Model,” explained at length in the 2016 guiding principles report (pp. 79-87). This graphic represents the concept:

The model

is designed to train officers how to think more critically about their response to various types of situations. […] While the CDM may seem complicated at first glance, officers who have used such a model told us that they quickly became accustomed to using it every day for making decisions about all types of situations, not just incidents that could end with a use of force.

The Waterloo Police could endorse “the concept of officers using a decision-making framework during critical incidents and other tactical situations.” PERF provides training materials on this model “for use by patrol officers in managing critical incidents, especially those involving subjects who are not armed with firearms and who may be experiencing a mental health or other crisis.”

2. The “duty to intervene” is another valuable piece missing from Waterloo’s policy. PERF recommends,

Officers should be obligated to intervene when they believe another officer is about to use excessive or unnecessary force, or when they witness colleagues using excessive or unnecessary force, or engaging in other misconduct. Agencies should also train officers to detect warning signs that another officer might be moving toward excessive or unnecessary force and to intervene before the situation escalates.

Waterloo could borrow from sample language PERF provided on pp. 41-42 of the 2016 report.

3. Waterloo’s policy does not forbid the use of deadly force against those whose actions threaten no one but themselves. PERF advises agencies to

prohibit the use of deadly force, and carefully consider the use of many less-lethal options, against individuals who pose a danger only to themselves and not to other members of the public or to officers. Officers should be prepared to exercise considerable discretion to wait as long as necessary so that the situation can be resolved peacefully.

4. PERF advises, “All critical police incidents resulting in death or serious bodily injury should be reviewed by specially trained personnel.”

I see nothing along those lines in Waterloo’s new use-of-force policy. The department has a process for the Internal Affairs Division and Shooting Review Board to investigate deadly incidents. But the way those bodies handled Derrick Ambrose, Jr.’s fatal shooting revealed incompetence and indifference to a tragic and avoidable loss of life.

5. Waterloo does not require transparency in the immediate aftermath of a use-of-force incident. PERF’s guidelines call on departments to “release basic, preliminary information” within hours, followed by “regular updates as new information becomes available (as they would with other serious incidents that the public is interested in).”

6. Waterloo is not providing for long-term transparency or accountability either. PERF recommends,

Agencies should publish regular reports on their officers’ use of force, including officer-involved shootings, deployment of less-lethal options, and use of canines. These reports should include demographic information about the officers and subjects involved in use-of-force incidents and the circumstances under which they occurred, and also discuss efforts to prevent all types of bias and discrimination.

For example, the Los Angeles Police Department publishes remarkably comprehensive annual reports on use-of-force incidents and posts basic information about every officer-involved shooting online.

7. One more omission is worth noting. Waterloo’s 2011 policy stipulated that “neck restraints and/or choke holds shall only be used when legal and department regulations allow the use of deadly force.” The updated policy does not refer to neck restraints.

PERF’s “guiding principles” do not address restraints designed to render suspects unconscious. As far as I can tell, policing experts have not reached consensus about such holds. Some departments ban them in all forms, since they can have deadly consequences if applied improperly or if the suspect has an underlying health condition. Other departments allow certain neck restraints in extreme situations. Many experts consider the method a good alternative to pulling out a gun when an officer is fighting for his or her life.

James speculated that the passage may have been removed because Waterloo officers are no longer being trained on choke holds. She noted that the new policy didn’t carry over language from the 2011 document about the use of horses against arrestees, probably because the department no longer has a mounted unit.

Waterloo staff have not responded to my inquiries about why this section disappeared from the use-of-force policy. If no one is permitted to use neck restraints under any circumstances, it would be better to say so explicitly. If some officers are still trained on the technique, the policy should spell out who is authorized to use a neck restraint and when.

WILL WATERLOO’S NEW POLICY HAVE TEETH?

Written policies alone cannot hold police accountable. During Chief Trelka’s tenure, a disturbing pattern has emerged: officers who use excessive force have rarely been disciplined, let alone fired–even if their misconduct sparked lawsuits, or they submitted “lies, exaggerations and falsehoods” on a police report.

Ronald Janota was an expert witness for the plaintiffs in three civil suits that the city settled in 2016. The 28-year law enforcement officer and former head of the northern Illinois Division of Internal Investigation found “common denominators” in those cases: improperly trained officers, inadequate investigations, and poor leadership.

In his expert witness statement on the officer who took a 13-year-old girl to ground, handcuffed her, and arrested her “for not telling your name,” Janota commented,

The internal investigation conducted by the Waterloo Police Department failed to address the issues of excessive force and lawful arrest. The internal investigation report prepared by Lt. Carrier, contains inaccuracies and false statements. A failure to adequately investigate a complaint of excessive force and unlawful arrest does not comply with industry standards and condones other negative police conduct within the Waterloo Police Department.

Regarding the case of a 17-year-old boy who received a $100,000 settlement after an officer assaulted him, Janota wrote in his expert report,

The internal investigation conducted by Sgt. McGeough and Lt. Carrier was flawed and lacks proper investigative fundamental techniques. If, in fact, the investigators would have juxtaposed the videos with the narrative summary written by Officer [Mark] Nissen, they would have determined that Office Nissen was lying on an official police report. Failure to identify the falsehoods in Nissen’s report demonstrates the flawed and incomplete investigation by the Internal Affairs unit.

Mr. Anderson’s mother, the complainant, was not interviewed by Internal Affairs. […] Failure to interview all witnesses in an internal investigation more often than not is selective investigating. Inadequate investigation of allegations of wrong doing regarding police conduct leads to negative police conduct and a lack of accountability. […]

Simply, Officer Nissen’s official police report is full of lies. […] Lying on a police report, by industry standards, is an offense which warrants termination. Not only did the Internal Affairs unit perform an incompetent investigation on the assault of Mr. Anderson, the intentional lies on an official police report constitutes a serious offense and crime, which were all ignored. The Internal Affairs Unit cannot be relied on to detect unwanted, aggressive, and/ or criminal behavior within their own ranks of the Waterloo Police Department. It is therefore reasonable to conclude that the leadership and supervision within the Waterloo Police Department is inferior.

By the way, Nissen was the same officer Chief Trelka didn’t discipline for using his taser on Justin Jones without justification.

Expert witness Katsaris reached a similar conclusion after analyzing the department’s review of the Derrick Ambrose shooting. Neither Internal Affairs nor the Shooting Review Board engaged in any of the following:

witness examination; officer examination; actual physical examination of physical evidence; review of photos; a scene visit at night under similar circumstances; presentations by firearms trainer on night shooting; using flashlights; a review of the IACP [International Association of Chiefs of Police] Model Policies, and Training Keys, and Concept and Issue Papers; questioning the medical examiner; hiring a ballistics expert; reviewing how the two versions of events given by [Officer] Law was reconciled, even why it was reconciled; examine the Total Station evidence, and overlay that against what was testified to about positioning, and evidence recorded; go on a fact finding mission to determine how the gun of Ambrose got on the other side ofthe fence or simply accept, by the totality of the circumstances that Ambrose did in fact comply with Law’s commands to “Drop the gun.” […]

It is my final opinion and being totally facetious, that the totality of the overwhelming ratification of the conduct by Officer Law with little assessment of the cause and effect, Policy failures, training failures, failures of implementing the training provided would suggest that after Officer Law gave his first statement on November 20, 2012, the WPD could have simply closed the file. It simply appears that nothing was done other than document facts … no evaluation. This type of result and action can have a negative affect towards professional policing which is supposed to abide by training and policy with an administration constantly
seeking out updated and current policies and procedures. It is so readily available, such as through Chief Trelka’s own organization, the IACP. And, the issues of ratifying misconduct and sending the message that the investigation of something as serious as the taking of a life was reviewed in the manner that is [sic] was, is at least embarrassing to the WPD, and carries serious consequences of officers believing their misconduct will be overlooked.

In a baffling episode last year, Trelka exhaustively documented one lieutenant’s misconduct over a period of years, culminating in lies and abuse of authority after an off-duty road rage incident. He determined that the man “has put the city in a position of negligent retention” and met “the threshold for termination of employment.” Yet he demoted the lieutenant instead of firing him.

Can the public expect police leaders to enforce the new use-of-force guidelines? One promising sign: the document ditched these closing words from the 2011 version: “It is impossible for this policy to foresee or allow for every circumstance with which an officer may be faced. Accordingly, the department reserves the right to make exceptions to this policy when it finds an officer has acted reasonably or excusably under the totality of the circumstances involved.” James agreed with my reading, saying the “final paragraph basically rendered the whole policy moot.”

I asked James about the last part of the updated policy’s section on “Authorized control techniques and defensive weapons”:

Unique circumstances may require items not listed above be utilized in a manner to protect the officers or others, assist in affecting an arrest or gain control of violently resisting individuals. These incidents will be evaluated on a case by case basis; using this policy, training, applicable State and Federal laws.

According to James, such language is not unusual, “for the rare instances” where a life-threatening situation forces officers to employ a different tactic, in good faith. She didn’t consider those words equivalent to the troubling final portion of Waterloo’s 2011 policy, which she characterized as a “cover your rear end clause.”

One worrying sign: the department kept curiously quiet about enacting the new policy. In October and November 2016, Trelka was eager to tell journalists he was working on revising the use-of-force policy. Why didn’t the chief call a press conference or announce the (belated) improvements in a written statement?

Bleeding Heartland will continue to cover police reform efforts in Waterloo. The department has yet to implement several suggestions PERF’s experts offered two and a half years ago.

Appendix A: The 2011 version of the Waterloo Police Department’s use-of-force policy, signed by Chief Dan Trelka.

Appendix B: The 2005 version of the Waterloo Police Department’s use-of-force policy, signed by Chief Thomas Jennings.

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