The Phoenix Police Department (PPD) is considering multiple policy revisions on reduced uses of force.
In all, PPD will act on five policies impacting the usage of spit socks, handheld irritants (oleoresin capsicum and Mark-9 canister sprays, which are pepper sprays, and the MK-3 Repuls Spray, a chemical spray), Tasers, impact weapons (expandable batons), and less lethal launchers (PepperBall launchers, 40mm Launcher, 37mm Launcher).
PPD says its goals in modifying these reduced use of force policies are to ensure trained officers deploy these tools, and that officers modify their use of these tools when faced with certain medical aid considerations.
Spit socks won’t be applied to individuals actively vomiting, exhibiting signs of medical distress, or having had direct or indirect contact with pepper spray. Officers may only apply one spit sock at a time to an individual, and only when two or more officers are present.
The updated policy on handheld irritants also prohibits officers from using pepper spray within three feet, and recommends against deploying chemical spray directly into the eyes. It also requires the immediate handcuffing of the individual sprayed.
Police Assistants (PAs) may carry pepper spray, since they lack authorization to arrest or restrain individuals. PAs aren’t sworn police officers; they handle calls for service not requiring the presence of sworn police officers.
As for the updated policy on Tasers, officers may not use them on females known to be pregnant or visibly pregnant, the elderly, juveniles, handcuffed arrestees, and very thin individuals.
The policy would also set limits on ranges of deployment, and the preferred targets.
Similarly, PPD set forth targeting and distance guidelines for less lethal launchers. The various launchers also come with their own restrictions on which officers may use them based on training.
Impact weapons (batons) would be carried at officer discretion and carrying officers must be trained.
The deadline for public input and comments is Friday, Oct. 31.
REMINDER: Phoenix PD is seeking public input on five policy revisions. Please visit https://t.co/qGmDZg70mN for a copy of the proposed revisions. The public is invited and encouraged to review the policy and submit feedback. The public input and comment period ends this Friday. pic.twitter.com/4jMOha2JMV
Earlier this year, PPD implemented a new use of force policy which contained similar, controversial adjectives — “necessary” and “proportional” — as these proposed policies.
Law enforcement experts questioned the vagueness and ambiguity of the descriptors in policy meant to empower officers to action. The word “reasonable” was traditionally relied upon, which critics say was more than enough.
These developments are the latest progression of PPD’s “less-than-lethal” program, which rolled out in 2021 across two precincts. The initial tools used were the 40mm launcher and pepper ball systems.
By 2022, PPD rolled out the program to all city precincts, launched new deescalation training modules, and revised its use of force policy to include the additives of “necessary” and “proportional” to “reasonable,” as well as the duties to intervene and provide medical assistance.
Additionally, PPD launched a pilot program for use of force investigations and evaluations.
In 2023, PPD expanded the less-than-lethal program to include 400 new tools and additional training.
Even with these efforts to revert to alternative weapons and deterrents for use of force, some fatalities have occurred. In January, PPD shot hard plastic projectiles at a wanted felon, Turrell Clay, who was evading police on a roof and had been armed. Clay came down off the roof after being shot by the less-than-lethal projectiles several times; he later died at the hospital during surgery after complaining of chest pains.
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It is a standard officer safety, public safety protocol for an officer to draw his or her duty weapon and point it at a suspect during a high-risk arrest. But a proposal by Phoenix PD Interim Chief Michael Sullivan would make pointing a firearm at anyone, regardless of the situation, a Level 1 reportable Use of Force action even if the gun is never discharged.
It is just one of several changes to Phoenix PD’s Use of Force policy for which Sullivan is seeking public comment, and which clearly notes the policy will be “deliberately stricter than the Constitutional and legal minimums established by the Courts.”
A number of national law enforcement organizations, however, have come out in opposition to the underlying direction of the agency’s proposal, including the International Association of Chiefs of Police (IACP).
According to a recent IACP Use of Force position paper, managing use of force by officers is “one of the most difficult challenges” facing law enforcement agencies.
“The responsibility of law enforcement officers to enforce the law, protect the public, and guard their own safety and that of innocent bystanders is very challenging,” the IACP noted. “Interactions with uncooperative subjects who are physically resistant present situations that may quickly escalate.”
Ideally, an officer is able to gain cooperation through the use of verbal persuasion and other de-escalation skills. But there are situations, the ICAP noted, where use of force is unavoidable.
In such instances, use of force to gain control and compliance of subjects must be “objectively reasonable,” according to the U.S. Supreme Court in Graham v. Connor, which acknowledged that an officer’s decision to use force is often made under varied scenarios and often on a split-second basis.
Most agencies base their Use of Force policies and training around Graham v. Connor, in which the justices recognized that officers do not need to use the minimum amount of force in any given situation. Instead, the officer’s use of any force must be “objectively reasonable” based upon the totality of the circumstances known to the officer at the time force was used.
The totality of the circumstances could include the immediate threat to the officer or others; the time available for an officer to make decisions in tense, uncertain, and rapidly evolving circumstances; the seriousness of the crime(s) involved; whether the subject is attempting to evade or escape; and the danger the subject poses to the community.
Other factors may include prior contact with the subject; the number of officers on-scene; the age, size, and strength of the subject versus the officer; specialized skills of the officer; injury or exhaustion of the officer; whether the subject appears affected by mental illness or the influence of alcohol or other drugs; crowd-related issues; and the subject’s proximity to potential weapons.
But Sullivan wants to change the Phoenix PD Use of Force policy away from the objectively reasonable standard to a standard of “reasonable, necessary, and proportional” that goes outside the Supreme Court’s analysis and relies on a more subjective review or interpretation.
IACP has “significant concerns” with any policy or legislation which replaces the Graham v. Connor standard with a standard which opens an officer’s split second decision to a new level of interpretation that results “in endless scrutiny and second-guessing by investigators, prosecutors, and civil courts.”
AZ Free News spoke with several officers about their reaction to the proposed Use of Force changes. The officers are not being identified due to concerns of retaliation although their identities and employment have been confirmed.
One Phoenix officer said his biggest worry is that he and other officers “will hesitate for fear of being disciplined” when confronted with a threatening or potentially threatening situation.
“A moment’s hesitation can cause someone their life,” the officer said, adding he expects more officers to be injured on duty under such a vastly different standard.
He also pointed out that officers would be prohibited from using “any force” on a person whose health, age, condition, or circumstances “make it likely” that death or serious physical injury will result.
The prohibition is so broadly worded to be unclear whether an officer cannot use force to subdue a gun-wielding 80 year old who has just shot a neighbor.
Another Phoenix PD officer points to concerns with the proposed change to de-escalation tactics, which Sullivan wants to expand to include withdrawing from the scene.
According to the officer, current policy allows for retreating from a volatile or dangerous scene as a method of de-escalation. This is often utilized when dealing with someone having a mental health crisis or when a criminal suspect can be apprehended in another, less risky manner.
But under the proposed policy, Phoenix officers could be disciplined for not opting to deescalate by completely withdrawing and leaving the scene. While this may appear to resolve the immediate issue at hand, the officer says the tactic could place the public “at further risk” once the police presence has left.
One example is an uncooperative trespasser on private property. If the officer withdraws from the scene to avoid escalating into physical contact, the property owner would be left to protect the property and the residents’ safety.
Or officers will be called back to the scene to deal with a now more dangerous set of circumstances.
And then there are those high-risk arrests where a suspect could have a weapon or has shown a propensity for physical violence. It is common practice to point a gun at such suspects to protect the safety of officers and the public.
Sullivan’s proposal, however, would now add a Use of Force demarcation on an officer’s record for such conduct. This means, according to another Phoenix officer, that an officer involved in a few hundred arrests over several years in which their gun was drawn could be alleged to have poor de-escalation skills because the majority of their arrests involved “force” even if no physical contact was involved.
Another activity which could result in a Use of Force report against an officer under Sullivan’s proposal involves Phoenix PD’s highly touted utilization of a Less-Lethal Launcher that fires a 40mm rubber projectile as well as a Pepperball Launcher, both of which can temporarily incapacitate a suspect.
Public records show these proven best-practice tools have been successful by officers to reduce more dangerous encounters. Yet under Sullivan’s proposed policy changes, the use of such tools could easily end up being considered “deadly force” in many instances.
Attorney Steve Serbalik explains his concerns with Chief Sullivan’s proposed Use of Force policy:
Other agencies which support the current objectively reasonable threshold for the use of force include Association of State Criminal Investigative Agencies. Commission on Accreditation for Law Enforcement Agencies, Federal Law Enforcement Officer Association, Fraternal Order of Police, Hispanic American Police Command Officer Association, International Association of Directors of Law Enforcement, National Association of Police Organizations, National Association of Women Law Enforcement Executives, National Organization Black Law Enforcement Executives, and National Tactical Officer Association.
Terri Jo Neff is a reporter for AZ Free News. Follow her latest on Twitter, or send her news tips here.
