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1915 • 2015

MI ANA I F.A C H OFFICE OF THE CITY MANAGER

NO. LTC# 375-2015 LETTER TO COMMISSION

TO: Mayor Philip Levine and Members .f the City C mmissicfll

FROM: Jimmy L. Morales, City Manager

DATE: September 21, 2015

SUBJECT: Changes in Conducted Electn al Weapon Equipment and Policy

This Letter to Commission is prepared to inform the Mayor and Commission regarding several policy changes being implemented within the Police Department with regard to the use of the Conducted Electrical Weapon (CEW) (commonly referred to as the "laser"), as well as to update the Commission on the deployment of the newest and safest version of this less-lethal weapon.

HISTORY / BACKGROUND

In February 2014, the City of Miami Beach contracted with the Police Executive Research Forum (PERF) to provide a review and assessment of the Miami Beach Police Department (MBPD). The study was requested as a result of several high-profile police incidents that occurred during preceding years, including one in August, 2013 that involved the death of a person following the deployment of a Conducted Electrical Weapon (CEW). In June, 2014 PERF published its recommendations to the MBPD concerning CEW policy, documentation and practices. The MBPD is now implementing the revisions recommended by the Police Executive Research Forum (PERF), along with other modest changes to the policy, and is deploying an improved and safer version of the CEW.

CEW EQUIPMENT CHANGES

Since 2003 the MBPD has utilized the Taser X-26 ECW. The X-26 reached its end-of-service life in December, 2014, giving the MBPD the opportunity to transition to the new Taser X-2 Smart-weapon. The X-2 is a more compassionate and technologically advanced weapon with enhancements that include:

• Technology that uses less energy to produce the same neuromuscular incapacitation. To maximize safety and effectiveness, the X2 uses "current metering" to monitor and adjust the current output to achieve a constant 1.2 milliamperes through clothing.

• The X2 captures important data for diagnostics, analytics and reporting use of force.

• Dual laser sights allow the officer better opportunity to attempt contact with preferred deployment areas. So the device is much easier to aim and to reduce potential injury because the officer is more likely to strike the body of the person in the manufacturer's recommended target area.

• The new X-2 CEW is yellow in color. This change from the previous black color is done for safety reasons. The yellow readily distinguishes the CaN from a handgun for everyone involved in a tense street encounter, including fellow officers and the intended target.

The Commission authorized the purchase of 345 new Taser X-2 Smart weapons and related accessories in January, 2015, at a cost of $499,000. Officer training and deployment of the new Taser X-2 Smart-weapon will begin this month, with full deployment to the entire patrol force occurring by November, 2015.

POLICY CHANGES Nomenclature -

• The terms "Conducted Electrical Weapon (CEW)," "Electronic Control Weapon (ECW)" and "Electronic Control Device (ECD)" will now be read synonymously in all Departmental policies, procedures, directives and forms. These different terms have been used in various Department policies and documents. The consistent term the Department is choosing to use going forward is "Conducted Electrical Weapon."

• The use of the CEW shall be referred to in all documentation and practices, including Supervisor's Report of Control of Persons, as "Less-Lethal" rather than "Non-Lethal" force. This nomenclature change is consistent with PERF's recommendation and industry best practices. The Department's position remains that the CEW is an intermediate force weapon that, when deployed in a manner consistent with the officer's training and Department policy, is not considered the use of deadly force.

Authorized Use — The CEW is designed to be used in two modes. The first is a "drive stun" mode in which the device makes direct contact and provides a localized shock to an area of the body. The full deployment of the CEW (the "probe" mode) occurs when two probes are fired from the weapon and make contact on the body, providing a completed electrical circuit and usually incapacitating the full body of the person targeted.

Under the new policy, the CEW may be used in drive-stun mode to supplement the probe mode in order to:

• Complete the incapacitation circuit; or • As a countermeasure to gain separation between the officer and the

subject so that the officer can consider another force option; or • When alternative compliance options pose a greater risk of harm or injury

to the subject, officers, or other persons.

Under the new policy, officers are prohibited from using the CEW:

• When the subject does not pose or appear to pose an immediate threat of physical force against an officer, other persons or himself/herself.

• On a handcuffed or otherwise restrained individual except in extraordinary articulable circumstances where such person violently attacks an officer or another and places the officer or another at risk of serious bodily injury or death and lesser means have been attempted and failed or are not feasible.

• As an intimidation device, whether displayed or pointed directly at a person, unless the officer reasonably believes justification exists to deploy the device and it will be necessary to deploy the device. CEW's shall not be deployed or displayed with the sole intent of coercing or intimidating an individual or crowd.

Under the new policy, officers deploying the CEW are required to: • Utilize the minimum number of CEW activations necessary to control the

situation or stop the threat. The CEW should not be activated against a subject more than three (3) times or longer than 15 seconds in either a single application or cumulative applications.

• Articulate independent justification in the Case Report, "Complaint/Arrest Affidavit" and "Supervisor's Report of Control of Persons" forms for each initial and subsequent (multiple) activation of a CEW on the same subject.

• Discontinue use of the CEW once compliance is achieved or when activation has little or no effect.

• Target preferred deployment areas when possible. The recommended points of aim are the rear torso below the neck area; and, front torso lower center of mass (below the chest or heart area).

The revised policy with highlighted changes is attached.

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GENERAL ORDER GO #15-04

CONDUCTED ELECTRICAL WEAPON

CALEA Standard(s): 1.3.4; 1.3.5; 1.3.9a; 1.3.10; 1.3.11, 1.3.11a, 1.3.11b, 1.3.11c

PURPOSE: To clarify the terms "Conducted Electrical Weapon (CEW)," "Electronic Control Weapon (ECW)" and "Electronic Control Device (ECD)" shall be read synonymously in Department policy, forms and reports; and, to establish guidelines and procedures for the use of Conducted Electrical Weapons (CEW).

SCOPE: This General Order (GO) applies to all sworn law enforcement, Auxiliary and/or Reserve Police Officers, Detention Officers and Crime Scene Squad (CSS) employees. This GO shall supersede GO #13-03, supplement SOP #017 — Use of Force, and supersede SOP #017 at Section III.C.4.b.1-7.c.

POLICY: It is the policy of the Department that the use of force, both deadly and non-deadly, is authorized when officers reasonably believe it to be necessary to respond to a subject's resistance while making an arrest or to defend themselves or another from bodily harm or death. A law enforcement officer need not retreat or desist from efforts to accomplish their lawful objectives. The decision to resort to force and the degree of force to be used shall be based on objective reasonableness and the totality of the circumstances. The use of force by Department employees shall be investigated and documented as appropriate. The terms "Conducted Electrical Weapon (CEW)," "Electronic Control Weapon (ECW)" and "Electronic Control Device (ECD)" shall be read synonymously in all Departmental policies, procedures, directives, forms and reports. [1.2.2][1.3.1111.3.21[1.3.6][26.1.1]

PROCEDURE:

III. Officer Response Options

* * *

C. Less Lethal Weapons (Non-Deadly Force)

* * *

4. Only the following Department authorized and issued less lethal weapons shall be carried or used by employees: [1.3.4] [1.3.9a]

b. Conducted Electrical Weapon (CEW). The Department approved CEW are the "Taser X26" and "Taser X2." [1.3.4] [1.3.9a]

1) The CEW may be used:

a) When the officer, based on objective reasonableness, perceives an imminent threat of physical force against himself, other persons, or subject self-inflicted injuries;

b) When an animal poses an immediate threat to the officer or another person; or

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c) In drive-stun mode:

(1) To supplement the probe mode in order to complete the incapacitation circuit; or

(2) As a countermeasure to gain separation between the officer and the subject so the officer can consider another force option; or

(3) When alternative compliance options pose a greater risk of harm or injury to the subject, officers, or other persons.

2) The CEW shall not be used:

a) When the subject does not pose or appear to pose an immediate threat of physical force against an officer, other persons, or themselves;

b) When the subject is at an elevated location which poses a risk of great bodily harm or death to the subject should he fall, unless deadly force is authorized;

c) When flammable gases or liquids are in close proximity to the subject or officer;

d) When the subject is known or appears to be:

(1) A pregnant woman (unless the use of deadly force is justified);

(2) A child under the age of 13 (unless the use of deadly force is justified); or

(3) An elderly person (unless the use of deadly force is justified).

e) When the subject is inside and the operator of a motor vehicle;

f) To intentionally contact the eyes, groin, neck, face or heart unless deadly force is authorized;

9) On a handcuffed or otherwise restrained individuals except in extraordinary articulable circumstances where such person violently attacks an officer or another and places the officer or another at risk of serious bodily injury or death and lesser means have been attempted and failed or are not feasible;

h) As an intimidation device, whether displayed or pointed directly at a person, unless the officer reasonably believes justification exists to deploy the device and it will be necessary to deploy the device. CEW's shall not be deployed or displayed with the sole intent of coercing or intimidating an individual or a crowd.

3) Fleeing Subjects

a) An officer's decision to deploy the CEW upon a person subject to arrest for a felony or violent misdemeanor crime should be predicated upon the subject exhibiting flight, flight risk, or physically evasive movements to defeat the officer's attempt to control. A "violent misdemeanor crime" involves the infliction or threat of physical harm to an officer or any other person.

b) An officer's decision to deploy the CEW upon a fleeing subject who is being taken into custody pursuant to the Mental Health Act should be based upon the subject exhibiting behavior likely to cause harm to themselves or others and the apparent ability to carry out those intentions.

4) Authorized possession of the CEW

a) Officers shall complete the CEW training program.

(1) The initial training course shall include both classroom and hands-on training and be at least six (6) hours in length.

(a) Only officers who demonstrate proficiency and successfully pass the courses shall be permitted to carry the CEW. [1.3.10]

(b) As part of the initial training course, the officer shall be required to pass a

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practical hands-on portion which shall include firing the CEW at a target.

(c) An officer who fails to demonstrate proficiency in either the initial or refresher courses shall surrender the CEW and be scheduled for the first available remedial training date.

(d) Upon successful completion of remedial training the officer will be issued a CEW. [1.3.11c]

(2) Authorized officers transitioning from the Taser X26-CEW to the Taser X2-CEW shall complete a two (2) hour transition training course which shall include both classroom and hands-on training.

(a) Only officers who demonstrate proficiency and successfully pass the transition course shall be permitted to carry the Taser X2-CEW. [1.3.101

(b) As part of the transition training course, officers shall be required to pass a practical hands-on portion which shall include firing the Taser X2-CEW at a target.

(c) An officer who fails to demonstrate proficiency in the transition course shall surrender the Taser X2-CEW and be scheduled for the first available remedial training date.

(d) Upon successful completion of remedial training the officer will be issued the Taser X2-CEW. [1.3.11c]

(3) An annual one hour refresher course shall be required of all CEW authorized officers. [1.3.11]

(4) Proficiency training shall be monitored by a certified weapons or tactics instructor. All CEW instructors shall also be certified by the CEW manufacturer. [1.3.11a]

(5) The Training Section shall be responsible for maintaining documentation of all initial, transitional, refresher and remedial weapons training. [1.3.11b]

b) Supervisors shall relieve any officer of the CEW if the supervisor discovers the officer using the CEW in an unacceptable manner. The incident shall be documented on an "Allegation of Employee Misconduct" form and shall be investigated in accordance with SOP# 010 — Internal Affairs Investigations, Counseling and the Discipline Process.

5) Deploying the CEW

a) The CEW can be utilized by deploying the probes or using the drive stun.

b) Verbal warnings shall be issued to the subject prior to deploying the CEW to allow him the opportunity to comply with the officer's commands, unless the warning would provide a tactical advantage to the subject.

(1) In addition to the verbal warnings to the subject, the deploying officer shall announce "Taser" to alert others of the impending use of the CEW.

c) The officer deploying the CEW shall:

(1) Verbally direct the subject; and

(2) Ensure the subject is controlled and handcuffed.

(3) Utilize the minimum number of CEW activations necessary to control the situation or stop the threat. The CEW should not be activated against a subject more than three (3) times or longer than 15 seconds in either a single application or cumulative applications.

(4) Articulate independent justification in the Case Report, "Complaint/Arrest

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Affidavit" and "Supervisor's Report of Control of Persons" forms for each initial and subsequent (multiple) activation of a CEW on the same subject.

(5) Discontinue use of the CEW once compliance is achieved or when activation has little or no effect.

d) The preferred CEW deployment target areas (recommended points of aim) are the rear of the body below the neck; and, front torso lower center of mass (below the chest or heart area). Although chest hits are not prohibited, lowering the point of aim results in increased effectiveness by allowing the bottom probe to affect the lower extremities such as the pelvic girdle and legs. The preferred deployment target zones also apply to the use of drive stuns.

6) Removal of Probes and Officer Responsibilities

a) After the subject is under control and handcuffed, officers deploying the CEW shall:

(1) Remove the CEW probes while wearing protective gloves;

(a) Fire Rescue employees or trained medical professionals shall remove probes that have struck a subject's head, throat, groin or any other sensitive area.

(2) Request Fire Rescue to respond to incidents where the subject complains of being injured by the CEW or injuries sustained prior to or subsequent to the deployment of the CEW; [1.3.5]

(3) Collect the CEW cartridge from the scene. Invert the CEW probes and insert them into the cartridge's empty portal(s). Gather the cartridge, probes and wires in a paper bag. Do not wrap the wires around the cartridge.

(a) The CEW probes that have penetrated a person's skin shall be considered a biological hazard and shall be handled as such.

(b) Tape shall be placed over the portals to secure the probes. If practical, the coded material shall also be collected from the scene and impounded by the Crime Scene Squad.

b) Officers shall impound the CEW cartridge along with copies of the Case Report, "Complaint/Arrest Affidavit" and "Supervisor's Report of Control of Persons" forms in the Property and Evidence Unit (PEU).

c) Officers shall request a supervisor respond to the scene of all incidents involving the use of the CEW.

d) Photographs of the subject shall be taken by the CSS in all instances where the CEW is deployed.

e) The arresting officer shall note on the back of the MDPD Records copy (yellow copy) of the "Complaint/Arrest Affidavit" form that the CEW was used on the subject.

f) In situations requiring multiple discharges of the CEW on the same subject, the officer shall articulate to the supervisor the circumstances leading to the need for each discharge. This justification shall be documented on the "Supervisor's Report of Control of Persons" form.

7) CEW Maintenance

a) Officers shall replace the cartridges prior to their expiration date. Expired cartridges shall be returned to the PEU to be used for training purposes only.

b) Officers shall be issued two (2) cartridges. It shall be the officer's responsibility to replace any discharged cartridges as soon as practical. Replacement cartridges

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can be obtained from the PEU.

c) Officers shall check the batteries of their CEW and the expiration date of their cartridges on a regular basis.

d) It is the responsibility of the user to immediately report any malfunction or operation failure to their supervisor.

e) No alterations, changes, modifications or substitutions shall be made to the CEW. No officer shall be permitted to carry any cartridges that have not been authorized by the Department. All repairs shall be coordinated through the PEU.

8) Carrying, safety and security of the CEW

a) Officers shall carry the CEW in a Department approved cross-draw/support-side holster.

(1) Officers working in a plain clothes capacity may carry their CEW in a Department approved cross-draw/support-side holster with their Division Commander's approval.

b) In all instances, the CEW shall be carried on the side of the body opposite the firearm.

c) CEWs shall be handled using the same precautions and security used for firearms.

d) Officers shall ensure their CEW is locked and secured while off-duty.

DEFINITIONS:

CONDUCTED ELECTRICAL WEAPON (CEW) — A device designed to conduct and deliver battery-powered energy which causes neuromuscular incapacitation to a person's motor functions within the central nervous system. A CEW is an intermediate force weapon that, when deployed in a manner consistent with the officer's training and Department policy, is not considered the use of deadly force. The term Conducted Electrical Weapon (CEW) shall be synonymous with terms Electronic Control Device (ECD) and Electronic Control Weapon (ECW).

LESS LETHAL FORCE — An amount of force that when properly used is not likely to cause death.

LESS LETHAL WEAPONS — Weapons designed to incapacitate to affect a safer transition of the subject into custody. Less lethal to, the Conducted Electrical Weapon (CEW).

a subject or gain compliance from a subject weapon options include, but are not limited

DJO/LH/VVRG/CL/DM/VVC/JAB/EMG F:\POLI\TECHSERV\PSUSOP\GENERAL ORDERS \Conducted Electrical Weapon \ GO 15-04 (Rev.9 4.15).docx

APPROVED BY:

ObGnuAtq• ae

Daniel J. Oates Chief of Police

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