Before Feb. 3, 2017, the Colorado Springs Police Department didn't know how often officers pointed their guns at citizens, because they didn't track it. But since that time, officers have been required to file reports every time they point their guns at people. (They've long been required to file reports when they discharge their weapons.)
Why does it matter? Public perceptions and civil liability.
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"We recognized shifting perspectives and expectations of law enforcement by the public," CSPD spokesperson Sgt. John Koch tells the Independent via email. "Tracking pointings of a firearm allow us to review at an aggregate level these incidents, and to review reportable force for compliance with our policies and applicable law. Basically, we are being proactive and gathering information that allows us to answer questions the public has about what we do on a daily basis."
The El Paso County Sheriff's Office, too, requires reports of pointing weapons, imposing such a policy in 2016.
The policies essentially stem from a 1989 U.S. Supreme Court decision that defined use of force by police agencies using a standard of "objective reasonableness." When civilians make a claim that law enforcement officials used excessive force, they can only prevail in a lawsuit if the officers' actions are deemed to be not objectively reasonable.
- Courtesy El Paso County Sheriff's Office
- Ed Kafel
Other court decisions since that time have upheld that standard, leading the Department of Justice to require tracking of gun-pointing in consent decrees imposed on departments the DOJ investigated for using excessive force, says Sheriff's Deputy Ed Kafel, a use-of-force expert.
"Basically, based on the training we attended, and based on the 4th Amendment [to the U.S. Constitution, which protects citizens against unlawful search and seizure], any time you compel a person to do something against their will, it is considered use of force," Kafel says. "So drawing a weapon and intentionally pointing a weapon is considered a use of force."
Kafel also notes the Sheriff's Office tracks pointing weapons, because any discharge of a weapon has dangerous consequences and officials want "to ensure the citizens of our community are safe and our deputies are going along with best practices and policies."
Due to continuing situations in which cops shoot citizens, sometimes seemingly without provocation, the California Legislature is considering a bill that would change the standard for using force from objectively reasonable to only when necessary and after every other nonlethal option had been exhausted, governing.com reports. The bill states that lethal force should be used only when the public or an officer is in imminent danger and only after de-escalation strategies have been used. The bill, which, if passed, would become the strictest use-of-force law in the country, also would require investigators who analyze use of lethal force to determine whether officers provoked citizens into behavior that then resulted in a necessity to use deadly force.
Both the CSPD and the Sheriff's Office require officers to attempt to de-escalate situations, a growing trend and one that tries to discourage provocative acts, like drawing and pointing a gun at a person.
For now, there's no proposal in Colorado to change the objectively reasonable standard, but both local departments are monitoring the frequency of officers pointing weapons at people.
That move is applauded by the American Civil Liberties Union of Colorado, says legal director Mark Silverstein. "I know that we had investigated several cases in Colorado Springs where officers drawing and pointing their weapons was part of the intimidating show of force that prompted fear on the part of the person the police were dealing with," he says. "I think it was as though the CSPD had a practice of draw your weapons first and ask questions later. Then when the pointing of the weapon doesn't show up in the arresting report, the supervisors don't have the full information that allows them to evaluate the officer's use of force.
"It's still use of force or threatened use of force against somebody, even if it's a traffic stop."
He noted that officers pointed their weapons at Ryan Brown after a traffic stop, a 2015 situation that led to the city's $212,000 payout to settle the case last year.
Silverstein notes the U.S. Supreme Court's standard is the minimum standard and it doesn't prevent police departments or states from adopting more strict standards to advance police-community relations. "We think we do better community policing when we have stricter limits in using force," he says.
A step in that direction is knowing how often officers point their weapons. The CSPD has logged 1,673 instances where officers pointed their firearms at people, about 105 times per month on average, from February 2017 through June 5. (If three officers all point their weapons during the same incident, that counts as three reports, not one.) The department had three reports of discharges of weapons by officers in 2016, and 10 in 2017; figures for 2018 are not yet available, says Koch.
All the reports, Koch says, are reviewed by supervisors who were initially contacted when the incident occurred and then forwarded to the officer's lieutenant, who reviews the report again and determines if the officer's actions were objectively reasonable. If not, the officer could face discipline for violating department policy.
The same is true at the Sheriff's Office, which reports two firearm discharges per year in 2016 and 2017 (the number for 2018 is zero until the investigation is completed on the Feb. 5 shooting that claimed Deputy Micah Flick's life). Deputies pointed firearms at people 187 times from 2016 through mid-June 2018, or about 6.5 times per month. (CSPD's higher numbers likely stem from it having roughly four times more patrol officers than the Sheriff's Office and working in an urban environment as opposed to a rural one.)
But some officers tell the Indy they view the new reporting requirement as a message from top commanders to avoid drawing their guns, even if an officer's safety is at risk.
Such policies are nothing new, says Steve Ijames, a former assistant chief in Springfield, Missouri, who now consults worldwide on police issues. "It's all about the optic — how the whole thing looks," he says. "Pulling guns looks militaristic, heavy-handed." He adds that policies regarding when a weapon can be drawn have a chilling effect on officers.
- Courtesy Greg Meyer
- Greg Meyer
Greg Meyer, a retired Los Angeles Police Department captain who now consults on force and other issues, agrees, but his advice to officers is simple: "Your safety comes first. Suck it up and write the report. Your safety is more important than whatever inconvenience you feel."
Meyer also, however, suggests that management should realize that the reporting requirement "literally discourages drawing a firearm in a situation where you otherwise might clearly need to draw your firearm. It introduces an element of hesitation that's a serious officer safety issue."
Simply drawing a firearm, or a taser, or putting the "red dot" of a taser on someone can de-escalate the situation, Meyer says, because it encourages suspects to give up.