2022 Recommendations

Number Recommendation PD Response Status
22-01 Subject matter experts should be required to document any assessment and analysis they provide and recommendations as a matter of policy. This will support any officer or supervisor that relies on this assessment and adds a level of accountability to the SME’s evaluations. The Chain of Command shall document conversations with staff who are being consulted for their technical expertise if the reviewer is relying on the input provided to make a decision regarding the investigation. The person providing the technical expertise will not make the final determination or finding in an investigation but may provide advice or guidance with regard to their particular area of expertise or specialized training. Supervisors are still ultimately responsible for making the final determination, considering all the facts involved in the incident, and are accountable for formulating their own independent conclusion. If the supervisor relies in whole or part on the input of another based on their expertise or training, the person providing the input to the supervisor should formally document their recommendation to provide clarity and avoid confusion. The reviewing supervisor is ultimately responsible for his or her own recommendation, regardless of the input he or she may have received from another. Implemented
22-02 To improve future analysis, I recommend SPD use the reasoning in this case as a case study to determine the type of analysis that supervisors, administrative review panels and review boards are expected to conduct. The chain of command review and Administrative Review Panel (ARP) is intended to allow each reviewer to analyze each incident based on their own training, knowledge and experience. Each reviewer has their own perspective and experiences that shape their analysis of the incident under investigation. The incident referenced in this recommendation did include a detailed analysis that was agreed upon by the majority of the ARP; an analysis by the Chief did not agree with. Ultimately, it is up to the final arbiter to take all considerations brought forward in the investigation to make the final decision, while encouraging independent thought by all those involved in the review. In summary, the ARP review did show an analysis supporting the views of the ARP, and the Chief is mindful of not discouraging independent thought if dutifully analyzed, because the Chief may not agree with the analysis and conclusion.
However the Chief believes the Arbitrator’s analysis did provide a perspective that is of value for those reviewing allegations of excessive force, and that same analysis by the arbitrator supported the Chief’s analysis. He has directed IA to provide copies of the ARP review and Arbitrator’s final analysis to Sergeants and above for review and discussion.		 Implemented
22-03 The OPO recommends that the ARP or IA identify disputed facts and incorporate disputed facts as part of their analysis. The OPO previously recommended to SPD in C19-040, Recommendation #1 that IA investigators should identify disputed facts and provide available evidence for both sides of the dispute, document them clearly so the designated person can make fully informed determinations on how to view the facts. IA Investigators previously implemented this recommendation, adding “Disputed Facts” as a section in the IA Additional form for all investigations. It is incorporated into their analysis. We recently updated the ARP template to include a “Disputed Facts” analysis section for ARP members to use and ARP members were advised of the update. Implemented
22-04 The OPO recommends SPD carefully consider an officer’s intent when evaluating any use of force incident. The Spokane Police Department has and will continue to consider the officer’s intent when evaluating any use of force incident.
The Spokane Police Department relies on Graham v Connor and Tennessee v Garner as the foundation for all justified legal use of force.
The 1989 U.S. Supreme Court case Graham versus Connor, reads in part:
“Determining whether the force used to effect a particular seizure is “reasonable” under the Fourth Amendment requires a careful balancing of “’the nature and quality of the intrusion on the individual’s Fourth Amendment interests’” against the countervailing governmental interests at stake. Id., at 8, quoting United States v. Place, 462 U.S. 696, 703 (1983). Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. See Terry v. Ohio, 392 U.S., at 22 -27. Because “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” (emphasis added) Bell v. Wolfish, 441 U.S. 520, 559 (1979), however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U.S., at 8 -9 (the question is “whether the totality of the circumstances justifie[s] a particular sort of ... seizure”). The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. See Terry v. Ohio, supra, at 20-22. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested, Hill v. California, 401 U.S. 797 (1971), nor by the mistaken execution of a valid search warrant on the wrong premises, Maryland v. Garrison, 480 U.S. 79 (1987). With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” Johnson v. Glick, 481 F.2d, at 1033, violates the Fourth Amendment. The calculus of reasonableness must embody (490 U.S. 386, 397] allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation.		 Implemented
22-05 The OPO recommends any department review include a dissenting opinion if a reviewer feels like their opinion or concerns have not been addressed by the majority. Further, if a member of the ARP or chain of command review feels the IA investigation did not address an issue in its investigation, the ARP or reviewer should send the issue back to IA for further investigation. Dissenting opinion is part of the ARP template, and Internal Affairs has set up a process for the ARP to send back an investigation if an ARP member feels that an issue has not been addressed. This process is also outlined in an email to the ARP by Internal Affairs staff when notification of the assignment is sent to the panel. In Chain of Command reviews, this process is already in place; supervisors are expected to provide their analysis and recommendations regarding the incident under review. The Chain of Command sends complaint investigations back to IA when further investigation is desired. Implemented
22-06 The OPO recommends SPD update its policy to unambiguously prohibit allowing striking handcuffed subjects, with few caveats. Force used against handcuffed persons should be deemed significant and immediate notification of the Chief/Command duty officer should be made detailing the circumstances. The Spokane Police Department strongly discourages the striking of handcuffed prisoners. If officers strike a handcuffed subject, immediate notification will be made to an on-duty supervisor who will review the facts of the use of force to ensure a complete and thorough investigation occurs.
The Spokane Police Department is willing to work with the OPO to determine appropriate language related to strikes of handcuffed individuals and we share your concerns related to this topic, while acknowledging the categorical prohibition is not reasonable in all situations.
Policy 308 will be updated to include this notification requirement. 		In progress
22-07 As previously recommended in C19-040, Recommendation #2 and R21-9, the OPO recommends SPD either update the function of the review boards to critically analyze the officer’s tactical conduct and make findings like LVMPD and /or enhance the chain of command function of the categorical uses of force like LAPD that examine an officer’s tactics and uses of force that result in specific findings. All uses of force are reviewed through the Chain of Command with final determination of appropriateness made by the Chiefs office or designee. Each review has its own unique set of circumstances and requires a critical examination surrounding all elements of the use of force. Ideally, most items that need to be addressed are addressed through the Chain of Command. The Use of Force Review Board provides an additional level of review for each incident to ensure that the Chain of Command has captured relevant information and data, and to address other areas important to SPD and the community, including Chain of Command review issues, tactical planning (approach, cover, concealment, containment, verbal communication, etc.), tactical review of the de-escalation techniques that are applied prior to a use of force, training, warning of impending force application, demeanor, report writing (completeness, etc.), proper tool/equipment selection if applicable, Policy/SOP considerations, post-care/First Aid, PAT care (if appropriate) and any other relevant action items.
A checklist of topics outlining those topics discussed above has been developed to ensure each category is covered for each incident (when appropriate). The review by the UOFRB has resulted in officers being directed to obtain additional training, or the creation of in-service topics to cover trends or themes noted in uses of force; this is in addition to other disciplinary sanctions that may arise through these investigations.		 Implemented
22-08 The OPO recommends SPD remove the use of exceptional techniques from its policy manual. In the alternative, the Defensive Tactics Manual and policy should list the department’s expectations of what constitutes thorough documentation. Policies 301.11 (Use of Force ) and 344 (Report Preparation) provide department expectations of what constitutes thorough documentation.
Pursuant to State legislation passed in 2021, SPD’s Use of Force policy was modified and the term “exceptional technique” was removed from our Use of Force policy (301). “Exceptional technique” is still mentioned in our Control Devices and Techniques policy (308). Approved tactics and devices are listed in the Defensive Tactics manual. 		Not implemented
22-09 All requests for data and/or records that are not publicly or readily available from the public should go through the Public Records Request system. Further, it would be beneficial to sit down with the City Clerk’s Office to determine up front when requests do not need to go through the PRR process as well as agreeing when a case-by-case basis advisement is appropriate. Overwhelmingly public records requests are referred to Police Records for processing. However, in the interests of transparency there are times when the Spokane Police Department may facilitate the sharing of information that is not law enforcement protected outside of the public records request system. For example, there are times when generalized information or information that is shared publicly in other realms, for example crime trends, may be shared outside of the public records request system. If some of this generalized information had to go through a formal Public Records Request system, it would be contrary to community engagement efforts. Those releasing this type of information are expected to follow all appropriate laws related to redaction of sensitive or confidential information.
The City Administrator has advised that he will work with Legal and the City Clerk’s Office to review this recommendation and possible implementation.		 In progress
22-10 The OPO recommends SPD define in policy that the “bulk of the investigation is complete” is when SPD sends a case to the Prosecutor’s Office for review or when an investigation reaches a logical conclusion and is not referred to the Prosecutor’s Office. Further, SPD should require Records Clerks, subject matter experts, and employees who respond to PRRs are trained on Department policy and ensure that all responsive records are captured. The Spokane Police Department follows the Washington Supreme Court’s 2013 ruling in Sargent v. Seattle that open and active criminal investigations are exempt from public disclosure until the case has been referred to the prosecutor for charging or is no longer being investigated.
Spokane Police Department employees will complete a Field In-Service Training (FIT) once a year regarding public records requests. Those responding to PRRs do receive PRR training during on-boarding into their position. Spokane Police Department employees will complete a Field In-Service Training (FIT) once a year regarding public records requests.		 Partially implemented
22-11 The OPO recommends SPD reconsider Recommendation #23 from C19-040 where the OPO recommended SPD update its Policy 703.11, Release of Body Camera Videos to maintain compliance with case law on public record requests that involve internal investigation records. As with all other criminal investigative records, the Spokane Police Department releases body camera videos to the public once a criminal case is no longer active and the case has been referred to the prosecutor for charging or is no longer being investigated. This complies with Washington law. SPD Policy 703 further identifies guidelines regarding the appropriate release of body camera videos consistent with criminal justice purposes.
This guidance is in accordance with direction received from Legal counsel.		 Implemented
22-12 The City should consider establishing a policy and disclosure agreement for all employees, which outlines what is releasable to the public and provides guidance to employees on when it is necessary to utilize the public records request process. The Spokane Police Department does not have purview over other City departments and is not able to implement this proposal. The City Administrator has advised that he will work with Legal and the City Clerk’s Office to review this recommendation and possible implementation. In progress
22-13 Case updates should be solely between IA and the Chief/Designee. No other party should be allowed to influence or direct IA investigations. The Chief should withhold decisions on findings until investigations are complete and should direct IA investigators to give their best efforts in investigations regardless of where the information takes them. Case updates may occur between Internal Affairs’ staff and the Chief/Designee. At times members of Executive Staff are included in these discussions to provide input or recommendations into processes related to the investigation (e.g., administrative leave, temporary reassignment, discipline determinations, etc.). Depending on the investigation, members of the chain of command of the person being investigated may be updated as to the employee’s status (i.e., administrative leave). No other party influences or directs an Internal Affairs investigation other than the Chief, designee or those reviewing the investigation if they determine they need further information to formulate a recommendation. The Chief withholds his decisions on findings until the investigation is complete as he always has. Implemented

Contact Information

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opo@spokanecity.org

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Tim Szambelan
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