Palo Alto commission calls for more restrictions on use of force by police

Palo Alto’s effort to discourage excessive force by police officers advanced on Wednesday night, when the city’s Human Relations Commission recommended a series of revisions to Police Department policies, as well as broader recommendations to address racial inequality.

The commission’s task was to evaluate the department’s compliance with the national 8 Can’t Wait campaign, which aims to curb police-involved shootings. Over the course of the evening, members wrestled with such questions as: When should officers be allowed to shoot at vehicles? (Answer: Almost never.) Should officers be disciplined when they keep their body cameras off? (Answer: Yes, though it’s not clear if that currently happens.) And what types of grappling holds should officers be allowed to use? (Answer: Ones that don’t cut off oxygen supply and blood flow.)

The revision of police policies is part of the City Council’s recent push to implement police reforms in response to the wave of public protests that have swept the nation since the May 25 killing of George Floyd by a Minneapolis police officer. Last month, the council directed the city’s Human Relations Commission to take the lead on evaluating police policies as part of a broader effort to promote racial justice and inclusiveness.

Members of the commission characterized the 8 Can’t Wait assignment as an early — and relatively minor — step in the city’s effort to address systemic racism. Over the course of the long and at times tense discussion, commissioners zoomed in on each of the eight areas in the national campaign (these are: banning chokeholds; requiring de-escalation; issuing warnings before shooting; exhausting all other options before shooting; a duty to intervene when another officer is using excessive force; requiring a “use of force continuum”; and requiring officers to report every time they use force or threaten to do so) and issued recommendations for each area.

In some instances, the commission faced pushback from the Police Department’s top brass as members pressed for stronger policies to encourage de-escalation and prevent the use of force. Police Chief Bob Jonsen said he would oppose, for example, the commission’s recommendation for a policy that categorically bans shooting at moving vehicles, a tactic that current policies strongly discourage. Today, the only times such a shooting is authorized is when there are no other reasonable means to avert the threat of the vehicle (such as when a driver tries to run over a crowd) and if a deadly force other than the vehicle is directed at the officer or others (when someone is shooting from a vehicle, for example).

When the commission suggested that the city ban shooting at vehicles in all circumstances, as is done in New York City, Jonsen said he would not condone such a policy.

“If it’s the will of this commission or the council that it does not want our officers shooting at vehicles at any particular time or in any incident, that’s your prerogative,” Jonsen told the commission.

In some areas, the commission agreed that the department already complies with 8 Can’t Wait. It already requires officers to issue warnings before shooting, when feasible. It also already requires officers to report incidents where they used or threatened to use force. The commission voted unanimously on both cases, to support existing policies.

Other areas proved more contentious. The Police Department already prohibits chokeholds, strangleholds and, as of June 9, carotid holds, though the commission agreed that its policy should go further and ban other moves that restrict oxygen and blood flow, including lateral vascular neck restraints and chest compression. While the commission voted 4-1, with Commissioner Daryl Savage dissenting, to recommend the broader ban, Jonsen said he was concerned that it goes too far. An officer, he said, can inadvertently block oxygen supply when falling on another person during a scuffle. Under the revision, this would be a policy violation, he noted.

“I do have a problem with techniques that will restrict blood flow to the head and neck that are designed to do that … I’m just cautious that if someone applies pressure to the chest, that this is going to be a policy violation,” Jonsen said.

Commissioner Steven Lee said he wasn’t swayed by this argument and noted that the new language comes directly from Campaign Zero, another police-reform initiative, and that it has been adopted by other jurisdictions. Chair Kaloma Smith, who made the motion to change the language, agreed.

“Given some of the stories I have witnessed and my community has witnessed … I think it’s critical of Palo Alto being a model city to have this policy,” Smith said.

The department’s policy on de-escalation should also be improved, the commission agreed. The current policy states that officers “should consider as time and circumstances reasonably permit, conflict resolutions and de-escalation techniques.” Assistant Chief Andrew Binder said the agency is already working to strengthen the rule and make it more aligned with state law (which dispenses with the suggestive “should” in favor of the proscriptive “shall”). The commission suggested that the department go even further by adopting a policy stating that officers “must use proper de-escalation techniques” prior to using physical force and that the policy manual include a list of such techniques, as is done in the San Francisco and Mountain View police departments.

Smith and Commissioner Patricia Regehr also said that the policy should consider, in addition to physical force, the officer’s overall conduct, including verbal interactions during stops.

“It’s a fearful thing to be stopped by a police officer for anybody,” Smith said. “And tone and body language automatically set the atmosphere and that authority can lean in.”

The commission also unanimously supported adopting a policy from the San Francisco Police Department specifying that force should only be used “as a last resort when reasonable alternatives have been exhausted.” This goes beyond the department’s current language, which states that officers should “evaluate the use of other reasonably available resources and techniques when determining whether to use deadly force.”

The one area where the commission agreed to stray from the 8 Can’t Wait campaign is the “use of force continuum,” a system that creates clear policy restrictions on the use of each policy weapon and tactic. While some departments follow this policy, Binder said it hasn’t been taught in Palo Alto in over a decade. He called the policy “outdated” because it fails to account for the dynamic nature of police incidents. The department currently uses what Binder called a “force option” model, which allows officers to use “reasonable force” based on the totality of circumstances.

“Officers are required to make split-second decisions based on a lot of input coming in at one time,” Binder said. “For an officer to have to work through a series of force options to get to one that is appropriate is not always the best. It can put the officer at risk, it can put people at risk.”

The commission generally supported the department on this issue, though it also unanimously recommended that the city explore revisions to the policy manual to “optimize” the use-of-force options.

The commission was more split on the department’s “duty to intervene” policy, which directs officers to get involved when they see another officer using excessive force. The current policy requires them to intervene “when in a position to do so.” Jonsen assured the commission that the department has adjusted its policy to ensure that “if the officer had ability to do so, they shall intervene and also report that incident.”

While the commission ultimately voted 4-1, with Lee dissenting, to support the existing policy, some commissioners pointed to the cultural challenges that pose a barrier to intervening. Regehr noted that officers aren’t always comfortable challenging their colleagues and pointed to the violent arrest at Buena Vista Mobile Home Park in 2018, when an officer slammed a man on the hood of a car and the incident was not reported by either the officer or any of his colleagues.

“It is difficult for some people to speak up before their peers,” Regehr said.

Binder and Jonsen pointed to the department’s use of body-worn cameras as a key measure to ensuring all measures are captured. However, Jonsen would not give a clear answer when asked about what consequences an officer would face for turning a camera off during an incident.

Jonsen said that broadly speaking, discipline for violating department policies can range from counseling to termination. But when asked specifically about penalties for not keeping a camera on, Jonsen declined to answer and told commissioners that discussing penalties would veer off the topic of “8 Can’t Wait.”

In a perfect world, Jonsen said, the body cameras would “always be on,” though there are circumstances where an officer is focusing on what’s happening on the street in front of them and fail to turn their cameras on. Most officers, he said, have been adhering to the department’s expectations.

“Our hope is that they always comply with the policy. If there’s an exception, if it’s a reasonable exception, that would have to be determined based on the situation,” Jonsen said.

Neither Lee nor Regehr were satisfied with his response. Toward the end of the meeting, when commissioners were proposing police reforms in addition to those in the “8 Can’t Wait” campaign, Regehr argued that the city should establish policies for disciplining officers who fail to turn on their body cameras.

“I think just saying, ‘Oh, I forgot,’ is not enough,” Regehr said.

The commission followed its review of the 8 Can’t Wait platform with other recommendations for the city and the department pertaining to the broader effort to promote social justice. Lee advocated for expanding the city’s Human Services division and allocating more funds to nonprofits and expanding the “emerging needs” program, which offers grants for service providers on the forefront of dealing with new issues. He also said the city needs to “get serious about housing.”

“Housing is at the root of so many different issues, including this one. … Services are nice, but if we don’t get serious about housing, we’re missing more than half of the equation,” Lee said.

Regehr said Palo Alto needs to address the systemic racism in the city at large, which goes well beyond policing.

“We should get ourselves in order as a city,” Regehr said, “It’s not just the police, it’s our whole community. Because racism doesn’t exist in a vacuum.”

Smith went further and said the city should follow San Francisco and consider adopting what that city called the CAREN Act, which makes it illegal for residents to fabricate racially biased police calls. The acronym, which stands for Caution Against Racially Exploitative Non-Emergencies, alludes to a derogatory slang term for white women who complain about racial minorities.

“We should be looking at policies similar to San Francisco, similar to the CAREN rules,” Smith said. “We are forcing police officers to police bodies that are Black and brown just because people feel uncomfortable with them in this community. The reality becomes that we in the community need to have some responsibility for calling people just because they’re Black and brown.”

It will ultimately be up to the City Council to decide whether to adopt the commission’s recommendations or to defer to the Police Department and the police union. Binder stressed on Wednesday that the Palo Alto Police Department, like other agencies, is receptive to change.

“We have to be,” Binder said. “We ultimately serve our communities. We will maintain our opinions and be guided by case law and Supreme Court decisions and internal policies, but I think you will see how policing and service delivery of policing is going to change and is changing. … There is a huge wave of momentum.”