TOWN OF NEWBURGH POLICE DEPARTMENT
300 Gardnertown Road, Newburgh, New York 12550
Donald B. Campbell Phone: (845) 564-1100
Chief of Police Fax: (845) 564-1870
GENERAL ORDER NO: 03-25
Issue Date: March 24, 2011
Effective Date: March 10, 2003
Last Reviewed: March 24, 2021
Subject: USE OF FORCE
Distribution: All Sworn Personnel
Reevaluation Date: April 2022
Page: 1 of 13
Issuing Authority: Chief Donald B. Campbell
(Revised 11/19/93, 3/10/03, 01/01/07, 03/24/11, 03/24/21)
USE OF FORCE
The purpose of this policy is to establish guidelines for the use of necessary force and reporting requirements thereof by members of the Town of Newburgh Police Department which is consistent with Article 35 of the New York State Penal Law and in accordance with NY Executive Law §840(4)(d)(3), Executive Law §837-t and 9 NYCRR 6058. Per Executive Law §840, this policy shall be readily available to the public upon request and shall be posted on the department website.
A. Instrument - Any article, device, object, apparatus, implement, or tool used to affect cooperation and control by forceful means.
B. Restraining Force - Is the use of a minimal amount of physical strength or energy exerted to hold, restrain, gain cooperation and control etc., required to overcome resistance or reluctance to obey the direction of an officer. It includes grabbing, holding, or escort positions (excluding those which rely on pain compliance), and techniques for customary/compliant handcuffing.
C. Physical Force – Is the force employed that is greater than restraining force but not amounting to deadly physical force. It includes physical contact such as striking with the hands, feet, elbows, knees; fighting or any other physical or violent confrontation; compliance techniques including joint manipulation, takedown techniques, and pressure points/pain compliance.
D. Physical Injury – Is the impairment of physical condition or substantial pain.
E. Serious Bodily Injury (defined for reporting purposes per Executive Law §837-t) – Bodily injury that creates or causes:
1. a substantial risk of death; or
2. unconsciousness; or
3. serious and protracted disfigurement; or
4. protracted loss or impairment of the function of any bodily member, organ or mental faculty.
F. Serious Physical Injury – Physical injury which creates a substantial risk of death, or which causes death or serious protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.
G. Deadly Physical Force – Physical force which is readily capable of causing death or other serious physical injury.
H. Objectively Reasonable – An objective standard used to judge an officer’s actions. Under this standard, a particular application of force must be judged through the perspective of a reasonable officer facing the same set of circumstances, without the benefit of 20/20 hindsight, and be based on the totality of the facts that are known to that officer at the time that the force was used. [Graham, 490 U.S. at 396 (1989)]
I. “Display/Use/Deploy a chemical agent” – To point a chemical agent at a person or person; the operation of the chemical agent against a person in a manner capable of causing physical injury.
J. “Brandishes/Uses/Discharges a firearm” – To point a firearm at a person or persons; the discharge of a firearm at or in the direction of a person or persons.
K. “Brandishes/Uses/Deploys an impact weapon or electronic control weapon” – To point an impact weapon or electronic control weapon at a person or persons; the operation of an impact weapon or electronic control weapon against a person or persons in a manner capable of causing physical injury.
L. “Uses a chokehold or other similar restraint” – Any application of sustained pressure to the throat or windpipe of a person in a manner that may hinder breathing or reduce intake of air.
A. The federal and state standards by which use of force is measured are both founded in the basic premise of objective reasonableness. The amount of force that is used by officers shall be the amount of force that is objectively reasonable under the circumstances for the officer involved to effect an arrest, prevent an escape, or in defense of themselves or others. The standard of objective reasonableness, established by the United States Supreme Court in Graham v. Connor, is used in this policy and is intended to provide officers with guidelines for the use of force, including deadly physical force.
1. As the Supreme Court has recognized, this reasonableness inquiry embodies “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.”
2. A police officer may use only such force as is “objectively reasonable” under the circumstances. The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene. [Graham, 490 U.S. at 396 (1989)].
B. Officers shall use only the force necessary to affect lawful objectives. Officers shall use the amount of force necessary to effect cooperation and control of a situation which requires police intervention, and then only when all other reasonable alternatives have been exhausted, are ineffective, or are not available. Physical force used by any member other than outlined in this General Order shall be inconsistent with the goals of this department.
C. Physical force, when used, shall be the minimum force necessary for a given situation and shall be reasonable in degree to the extent that it is necessary to affect cooperation and control of the situation. In general terms, force is authorized to be used when reasonably believed to be necessary to affect a lawful arrest or detention, prevent the escape of a person from custody, or in defense of themselves or others.
D. During an encounter in which force has become necessary, the level of resistance or aggression displayed by the subject may vary at different points in the encounter. The level of force used by the Officer shall be adjusted to changes in the suspect's level of resistance or aggression.
E. Only issued or Department approved equipment shall be used when applying physical force, except in emergency situations when it may be necessary to use any instrument at the disposal of the member(s) involved. The following are the only weapons that are authorized for carry by members of this department:
1. Primary and secondary firearms,
2. Department issued Oleoresin Capsicum,
3. Department approved baton,
4. Less Lethal Devices (See General Order # 03-26 for all Less lethal devices protocol).
F. No member shall exceed the limits of his/her authority under Article 35 of the NY State Penal Law or violate the provisions outlined in this policy. Failure to adhere to Departmental use of force guidelines and use of force reporting requirements may result in disciplinary action.
A. Physical force may be used when it is lawful and when the demonstration of presence, demeanor, de-escalation, persuasion (commands or directions), advice and/or warning is found to be insufficient, or under the circumstances found to be impractical or ineffective, to obtain cooperation and control.
B. When used, force should be only that which is objectively reasonable given the circumstances perceived by the officer at the time of the event. The level of force used by the Officer shall be adjusted to changes in the suspect's level of resistance or aggression.
1. The guiding principles for de-escalation are patience, flexibility, and the desire to resolve each situation peacefully. De-escalation techniques are actions taken by members that are designed to eliminate the need to use force in order to resolve an event or situation. De-Escalation techniques may include: physical presence, body language, demeanor, commands, and directions; communication skills such as talking to a person using a tone of voice and language that is not aggressive or confrontational; creating space or placing barriers between the member and the person; waiting the person out when circumstances permit; permitting a person to move about when safe; permitting a person the opportunity to make statements or ask questions; slowing down the pace of an incident; tactical repositioning and requesting additional resources.
2. An officer shall use de-escalation techniques and other alternatives to higher levels of force consistent with training whenever possible and appropriate, before resorting to force and to reduce the need for force. Whenever possible and when such delay will not compromise the safety of the member or another person and will not result in the destruction of evidence, escape of a suspect, or commission of a crime, an officer shall allow an individual a reasonable amount of time and opportunity to submit to verbal commands before using force on the individual.
D. Levels of Resistance and Aggression
1. Members may use no more than the amount of force which is objectively reasonable to achieve a legitimate law enforcement objective. Circumstances will dictate how quickly, if at all, a member may be required to move from one level of force to another. In most cases, the degree of resistance or aggression displayed by a subject will be a primary factor in determining which level of force by a member is reasonable and required. Decisions to use force and at which level are dependent on the circumstances of each situation. Once a member achieves the desired level of control, their level of force must adjust to it. A subject’s reaction to a member’s attempts at control or restraint may be classified into five broad categories:
a. Compliant/Cooperative: The subject generally complies with the commands of the member and offers no resistance. In this instance the use of force is not authorized, but customary/compliant handcuffing and escort techniques are authorized.
b. Passive/Verbal Resistance: The subject passively resists the member’s attempts to gain compliance or is verbally abusive, insulting or taunting and refuses to comply with the member’s commands, but is not verbally threatening to cause imminent physical harm to the member or another person. A member should use verbal techniques to achieve compliance and if those techniques are unsuccessful, is authorized to take physical control of the subject by grabbing, holding, and /or using customary handcuffing techniques on the subject.
c. Active Resistance: The subject makes physically evasive movements to defeat a member’s attempt at control, that includes, but is not limited to, bracing, tensing, and moving away, or verbally threatens imminent harm to the member or another person or verbally signals an intention not to be taken into or retained in custody, providing the subject’s intent to physically resist is clear. The member is authorized to physically restrain and take control of the subject by grabbing, holding, forcibly handcuffing and/or using pain compliance techniques to include pressure points, or joint manipulation or takedowns, conducted electronic weapon, and/or chemical agent on the subject.
d. Physical Resistance: The subject engages in or is about to engage in resistance or aggression that is aimed directly at the member. This includes, but is not limited to, grabbing, pushing, punching, kicking, biting, throwing objects, attempts of the included conduct, or any behavior in which the member becomes the object of the subject’s actions. Physical resistance also includes that situation in which a member reasonably believes that the subject is using or is about to use the above degree of physical force against another person. The member is authorized to use the amount of force which is objectively reasonable to overcome the resistance or aggression by using chemical agent, physical skills, physical tactics or impact weapons, conducted electronic weapon, or any appropriate lesser means of force.
e. Deadly Resistance: The subject engages or is about to engage in such an escalated level of resistance or aggression that the member reasonably believes the subject’s actions constitute deadly physical force. It may include attempts to render the member unconscious, grabbing for the member’s firearm, blows to vital organs, stabbing, shooting, or any other action that would create a likelihood of causing the member’s serious physical injury or death. This category also includes a subject who a member reasonably believes is using or is about to use deadly physical force on another person. This level of resistance or aggression authorizes the member to use the amount of force objectively reasonable to preserve life or prevent serious physical injury and includes the use of deadly physical force.
E. Factors that may be used in determining the reasonableness of force include, but are not limited to:
1. The severity of the crime or circumstance; [Graham, 490 U.S. at 396 (1989)]
2. The level and immediacy of threat or resistance posed by the suspect; [Graham, 490 U.S. at 396 (1989)]
3. The potential for injury to citizens, officers, and suspects; [Scott v. Harris, 550 U.S. 372 (2007)]
4. The risk or attempt of the suspect to escape; [Graham, 490 U.S. at 396 (1989)]
5. The knowledge, training, and experience of the officer; [Graham v. Connor, 490 U.S. 386 (1989), Terry v. Ohio, 392 U.S. 1 (1968)]
6. Officer/subject considerations such as age, size, relative strength, skill level, injury or exhaustion, and the number of officers or subjects; [Sharrar v. Felsing, 128 F. 3d 810 (3rd Cir. 1997)]
7. Other environmental conditions or exigent circumstances. [Chew v. Gates, 27 F. 3d 1432, 1475 n.5 9th Cir. (1994)]
F. Health of Persons in Custody – In accordance with New York State Civil Rights Law Article 3, Section 28, a police or peace officer or other law enforcement entity, who has custody of a person must provide attention to the medical and mental health needs of a person in their custody and obtain assistance and treatment of such needs, which are reasonable and provided in good faith. Members will ensure they properly document on the Use of Force Report any requests for, or observe for themselves, any indications that a subject requires medical and/or mental health attention as well as the efforts of police to arrange for such treatment.
1. If it is necessary to use physical force, the officer shall immediately determine if the subject requires medical attention. If the subject suffered a physical injury and/or complains of injury or pain, the member of the Service involved shall transport, or cause the subject to be transported, to the nearest medical facility for a clinical evaluation.
2. In accordance with New York State Mental Hygiene Law Section 9.41, the immediate mental health needs of a person shall be based upon the reasonable cause to believe that a person, who appears to be mentally ill, is conducting themselves in a manner which is likely to result in serious harm to themselves or others. Officers are reminded that if circumstances indicate immediate emergency medical care is needed, the person with mental health needs will be transported to the closest available hospital regardless of whether it is a mental health facility.
G. USE OF DEADLY PHYSICAL FORCE
1. Deadly physical force may be used by an officer to protect themselves or another person from what the officer reasonably believes is an imminent threat of serious physical injury or death. Deadly physical force may consist of an officer’s firearm, or the use of any instrument or application of force that is likely to cause serious physical injury.
2. Deadly physical force may be used to stop a fleeing suspect where:
a. The officer has probably cause to believe the suspect has committed a felony involving the infliction or threat of serious physical injury or death; and,
b. The officer reasonably believes that the suspect poses an imminent threat of serious physical injury to the member or to others.
c. Where feasible, some warning, other than a warning shot, should be given prior to the use of deadly physical force.
3. Chokeholds and Obstruction of Breathing and Blood Circulation
a. Any application of pressure to the throat, windpipe, neck, or blocking the mouth or nose of a person in a manner that may hinder breathing, reduce intake of air or obstruct blood circulation, is prohibited unless deadly physical force is authorized (NY Penal Law § 121.13-a establishes the crime of Aggravated Strangulation).
4. Discharge of Firearms
a. Outside the necessity of force, a member may discharge their firearm in the following circumstances:
i. Animal: To put to death an animal which presents an immediate serious physical threat to the member or another person, or an animal so seriously injured that humaneness demands the immediate cessation of further suffering. Members must take into consideration their location and objects, building, property, and persons behind and around the animal to be euthanized.
ii. Firearms practice and qualification at approved ranges
b. Specific Prohibitions
i. Moving Vehicles: Discharging a firearm from a moving vehicle is prohibited, except as the ultimate measure of self-defense or the defense of another person when the member reasonably believes the occupants are using deadly physical force against the member or another person by means other than the vehicle. Members shall not discharge their firearms at or from a moving vehicle when the consequences of so doing will jeopardize the safety of other members of the Department or innocent bystanders.
ii. Warning Shots: No member will fire warning shots.
iii. Firing for Alarm: Firearms should not be discharged to summon assistance, except where the sworn officer’s safety or that of another person is endangered, and there is no reasonable alternative. Extreme care must be exercised in such situations to prevent injury to other persons.
iv. No member will draw, handle, or display any firearm, or use, operate, or discharge any firearm in a reckless manner, or in any manner contrary to department training.
H. PROHIBITED USES OF FORCE
1. Force shall not be used by an officer for the following reasons:
a. To extract an item from the anus or vagina of a subject without a warrant, except where exigent circumstances are present;
b. To coerce a confession from a subject in custody;
c. To obtain blood, saliva, urine, or other bodily fluid or cells, from an individual for the purposes of scientific testing in lieu of a court order where required;
d. Against persons who are handcuffed or restrained unless it is used to prevent injury, escape, or otherwise overcome active or passive resistance posed by the subject.
2. Retaliatory Force: Members are prohibited from using force against persons engaged in protected activities or gatherings, or to punish persons to include, but not limited to those fleeing, resisting arrest, or assaulting a member.
A. DUTY TO INTERVENE
1. Any officer present and observing another member of the Service using force that he/she reasonably believes to be clearly beyond that which is objectively reasonable under the circumstances shall intercede to prevent the use of unreasonable force, if and when the officer has a realistic opportunity to prevent harm.
2. Any officer who observes another member of the Service use force that exceeds the degree of force as described above shall promptly report these observations to a supervisor.
VII. REPORTING, INVESTIGATING, AND REVIEWING USE OF FORCE INCIDENTS
A. Members involved in use of force incidents as described below will notify their supervisor as soon as practical and shall complete a department Use of Force Report:
1. A charge for Resisting Arrest (PL 205.30), wherein any level of force is used, regardless of the lack of injury or complaint of pain.
2. Use of force that results in physical injury.
3. Use of force incidents that a reasonable person would believe is likely to cause an injury.
4. Incidents that result in a complaint of pain from the suspect except complaints of minor discomfort from compliant handcuffing.
5. Incident where a conducted energy device (CED) was intentionally discharged or accidentally discharged after being displayed.
6. Incidents where a firearm was discharged at a subject (Officer will additionally complete a Firearms Discharge Report) (NY Executive Law §837-v requires that any discharge of a weapon, while either on duty or off duty, in the direction of a person be verbally reported to the involved officer’s supervisor within six hours and a written report prepared within forty-eight hours of occurrence).
B. In addition to the aforementioned use of force reporting requirements and in accordance with New York State Executive Law §837-t and 9NYCRR 6058, officers will also submit the Use of Force Report for the following use of force incidents, (For definitions, refer to Subdivision II.):
1. When an officer engages in conduct which results in the death or serious bodily injury of another person.
2. In the absence of either death or serious bodily injury, when one of the following is initiated by an officer:
a. brandishes, uses or discharges a firearm at or in the direction of another person;
b. uses a chokehold or similar restraint that applies pressure to the throat or windpipe of a person in a manner that may hinder breathing or reduce intake of air;
c. displays, uses or deploys a chemical agent, including, but not limited to, oleoresin capsicum, pepper spray or tear gas;
d. brandishes, uses or deploys an impact weapon, including, but not limited to, a baton or billy; or
e. brandishes, uses or deploys an electronic control weapon, including, but not limited to, an electronic stun gun, flash bomb, or long range acoustic device.
C. After a use of force incident, the member will immediately determine whether they, the person, or any other members or persons present require medical treatment. Members on scene will provide first aid as needed, and notify dispatch to arrange for a medical/mental health evaluation and/or transport for required evaluation and/or treatment. The member will, as soon as practical, notify the shift supervisor of the use of force incident (If the use of physical force is only threatened, notification of a supervisor is not required). The supervisor will respond to the scene to begin the preliminary force investigation. The supervisor will investigate the circumstances and take any other measures deemed appropriate at the time such as:
1. Ensure and arrange for the medical and/or mental health evaluation and treatment for the suspect(s), other persons, and member(s) involved.
a. If an officer is injured, an APPLICATION FOR GML SECTION 207-c DISABILITY BENEFITS will be completed. If the member is incapacitated or otherwise unable to do so, a supervisor will initiate the paperwork on their behalf.
2. Ensure and arrange for scene security for processing, photographing, and evidence collection.
3. As needed, the supervisor may notify the Detective Lieutenant to request the assistance of an investigative and/or ID Detective. During off hours, an investigative or ID Detective may be called in with the approval of the on-call administrator.
4. Ensure and arrange for photographs to be taken to sufficiently document any injuries or lack thereof to suspect(s) or officer(s). Photographs will be taken if a person is subjected to any force in excess of restraining force, or is charged with Resisting Arrest, whether or not the person is injured or alleges injury. In addition, photographs will be taken whenever a person subjected to restraining force is injured or alleges injury. The required photographs are taken in addition to mug shots. An ID Detective or Tech will take the photographs, whenever possible. If an ID Detective or Tech is not available, any member may take photographs.
5. Photographs will be taken IAW General Order #11-14 (Photograph and Video Evidence). The photographs will consist of a Photo ID Card, and at minimum, will clearly depict the following body areas of the person:
a. Overall front and back areas (clothed)
b. Close-ups of all exposed areas (Face, neck, arms, hands, etc)
c. Close-ups of all injured areas (with and without scale)
d. Close-ups of all areas alleged by the person to be injured
e. Upon consent of the person, close-up photographs of the following unclothed body areas:
i. Front and rear torso (male), rear of torso (female), legs and feet.
D. No efforts shall be made to compel or force a person to submit to any photographs of the foregoing body areas. Consent and refusals will be properly documented in Case and/or Supplemental narratives.
Photographs will be taken of the scene and any evidence pertaining to the person’s injury/alleged injury, if applicable. Evidence will be secured and turned over to the ID section.
E. Photographers will document in a Supplemental Narrative their role pertaining to whose photographs they took and/or the location or items they photographed.
F. The arresting and/or booking officer will ensure injuries are documented in the Arrest Medical Report (as applicable).
G. When a member or members are involved in a use of force incident, they will document the incident in a TNPD Incident/Case Report including Supplemental Narratives (as needed), a use of force report, and a Firearms Discharge Report (as needed). Witness statements and any member’s individual notes will also be included in the case file. All required reports will be completed and turned in to the shift supervisor for review prior to the end of the member’s tour of duty for review by the shift supervisor.
H. In the event an involved officer is unable to complete the required paperwork prior to the end of the tour due to injury or other exigent circumstances, the officer may, upon approval of his or her immediate supervisor, complete it during their next tour. In the event an involved officer’s unavailability to complete the required paperwork is likely to extend beyond their next tour, the officer’s immediate supervisor will ensure that all required reports are initiated and are as complete as practically possible until the member returns.
I. The Sergeant will review for case file for completeness and will forward the Case Report and the Use of Force Report to the Detective Lieutenant. The Detective Lieutenant will review the Case Report and Use of Force Report and determine if the use of force incident meets the criteria in accordance with 9NYCRR6058 for submission to the NYS DCJS Use of Force Reporting Database and report the following as required:
1. Date of the use of force event;
2. Type of use of force;
3. Village, Town, or City, and County location of the event;
4. Law Enforcement Agencies involved;
5. Description of the circumstances of the event;
6. The race, sex, ethnicity, and age (or, if unknown, approximate age) of all persons engaging in the use of force; and
7. The race, sex, ethnicity, and age (or, if unknown, approximate age) of all persons suffering an injury from the use of force.
J. The Detective Lieutenant will then forward the Use of Force Report to the Chief of Police and/or their designee. The Chief of Police and/or their designee will review all reports of the use of force incident and make a determination as to whether:
1. Proper procedure was followed and was consistent with departmental policies,
2. Additional training is required,
3. A policy review and/or updates are required
K. Deadly Physical Force – Discharge of a Firearm
1. The discharge of a firearm while on duty (other than in training or for other lawful or permitted purposes) to prevent or terminate a person’s conduct, or to affect an arrest and/or subdue an offender, will be investigated as a use of deadly physical force regardless of the outcome of the event (death, injury or lack thereof, property damage, etc). Any such investigation will be conducted in conjunction with the Orange County District Attorney’s Office New York State Police and New York State Attorney General’s Office per their protocol.
L. Failure to adhere to Departmental use of force guidelines and use of force reporting requirements may result in disciplinary action IAW General Order #001-93- 1 (Rules and Regulations).
A. All members will receive annual use of force training and will demonstrate their understanding on the proper application of force. Per Executive Law §840 (4)(d)(2)(vii), additional topics include, but are not limited to, duty to intervene, prohibited conduct, conflict prevention, resolution and negation, de-escalation strategies and techniques, crisis intervention, firearms safety and qualification, and interacting with persons in an agitated condition.
A. Article 35 of the New York State Penal Law
B. New York State Division of Criminal Justice Services’ Municipal Police Training Council’s Use of Force Model Policy (September 2020)
C. New York State Executive Law §837-t and §840, subdivision (4)(d)(3), subdivision (4)(d)(2)(vii)
D. 9 New York Codes, Rules, and Regulations (NYCRR) Section 6058
E. New York State Civil Rights Law Article 3, Section 28
F. New York State Mental Hygiene Law Section 9.41