hillard heintze file review recommendation # 23.2

Hillard Heintze File Review Recommendation # 23.2

Recommendation # 23.2 The FDRB should be tasked with review of all prior officer-involved shooting and

discharge incidents in which firearms are discharged at a moving vehicle to

• evaluate and identify commonalities with recommendations for policy and training as a

result of the review;

• oversee training and policy development aimed at eliminating the need for such actions;

• report to the Police Commission about the outcomes of the review and the actions taken

to overcome those situations that contribute to such incidents.

Complete Partially Complete In Progress

Not Started No Assessment

The San Francisco Police Department promulgated DGO 5.01 Use of Force which prohibits officers from shooting at or

from a moving vehicle unless the occupant of the vehicle is discharging a firearm at the officer. The policy requires

officers to consider the totality of the circumstances to determine whether their decision to discharge their firearm is

reasonable.

In drafting the policy, the department considered input from internal and community stakeholders, reviewed use of force

policies of similar police organizations, and reviewed guidelines recommended or published in police literature. The

policy has been modified or updated as new information is learned.

The Internal Affairs Unit and the Firearms Discharge Review Board is tasked with reviewing and making

recommendations on officer-involved-shooting incidents. This practice of review and auditing of incidents helps to

ensure the department conducts a robust review of officer-involved-shooting incidents for policy violations, including an

incident involving shooting at or from a motor vehicle. Remedial action for violating the policy is broad and includes

termination.

The department's response to this recommendation is considered complete. The team will continue to monitor the

department to ensure the policy and related practices are institutionalized.

I FDRB review all OIS and discharge incidents involving moving vehicles.

2 Identify and evaluate commonalities.

3 Develop recommendations for policy and training as a result of review.

4 Oversee policy and training development responsive to issues identified.

5 Report to Police Commission.

DYes 0 N ZN/A

DYes 0 N ZN/A

Yes 0 N ON/A

lYes 0 N ON/A

IYes 0 N ON/A

6 Inclusion of a continual review/improvement loop of development process /Yes 0 N ON/A

and adherence to policy.

1IPge

Hillard Heintze File Review Recommendation # 23.2

7 Evidence of supportive and remedial actions/outcomes. v' Yes 0 No 0 N/A

As discussed previously, the file needs to include an explanation on the conflict regarding DGO 5.02 prior to submitting

this recommendation to Cal DOJ for status designation.

2 1 P a g e

Collaborative Reform Completion Memorandum

Page 1 of 25 PSPPB Form 2001

Finding #23.2 SFPD policy provides for a variety of exceptions that allow officers to shoot at a moving vehicle, which effectively nullifies the general statement that officers are prohibited from discharging their firearm at the operator or occupant of a moving vehicle. The department’s pending draft order on use of force allows shooting at vehicles when there is an immediate threat of death or injury by means other than the vehicle. Recommendation #23.2 The FDRB should be tasked with review of all prior officer-involved shooting and discharge incidents in which firearms are discharged at a moving vehicle to:

• evaluate and identify commonalities with recommendations for policy and training as a result of the review;

• oversee training and policy development aimed at eliminating the need for such actions; • report to the Police Commission about the outcomes of the review and the actions taken to

overcome those situations that contribute to such incidents. Response Date: 11/05/2020 Executive Summary: Recommendation 23.2 was originally published in October of 2016. This recommendation concerns examining historical OIS data to identify commonalities in vehicle related OIS incidents, with the end goal of modifying SFPD Use of Force policy. At the time of the CRI publication, SFPD was concurrently drafting a revised Use of Force policy addressing vehicle related OIS incidents, which resulted in the combination of Department General Order (DGO) 5.01 (Use of Force) (Attachment # 1) and DGO 5.02 (Use of Firearms) (Attachment # 2). The revised DGO 5.01 addressed the need for policy change in this area. SFPD consulted with our oversight partners to determine if an extended historical review was still required for the purposes of policy development, and determined that a full historical review was not warranted in light of the revised policy. As a result, this recommendation was tailored to address compliance measures #4-#7. SFPD worked in cooperation with the community, Police Commission and other stakeholders to revise DGO 5.01, and fully implemented the policy in December 2016. SFPD members were trained with a combination of DGO’s, Department Bulletins (DB), and classroom instruction. Since the policy change, Firearm Discharge Review Boards (FDRB’s) are held regularly which result in a quarterly report to the Police Commission. This recommendation also includes documentation of a related case that resulted in discipline under this revised use of force policy.

(End of Executive Summary)



Recommendation 23.2 Solution Strategy and Technical Assistance Request: Recommendation 23.2 concerns the discharge of firearms at moving vehicles. The recommendation calls for an examination of past officer-involved shootings (OIS) and Officer-involved discharges (OID) that involved vehicles, to “… identify and evaluate commonalities.” This data could then be used to inform policy development, and serve as a catalyst to develop training to address the issues identified. The DOJ Collaborative Reform Initiative was published in October of 2016. Soon after the release of the CRI report, SFPD amended policy related to this topic and codified the change within the Department General Orders. Department wide training was conducted, and bulletins were issued to advise members of the amended policy. As a result of these changes, Commander Robert O’Sullivan of the Risk Management Office (RMO) requested technical assistance of our oversight partners with Hillard Heinz and California DOJ. The intent of the request for assistance was to determine if an extended examination of past OIS incidents involving vehicles was necessary, for the purposes of policy and procedure development:

(Email dated Tuesday, September 22nd, 2020) (Attachment # 3)



(Commander O’Sullivan email, continued)

On Tuesday, September 22nd, 2020, Hillard-Heintz replied regarding the request made by Commander O’Sulllivan:

( email response, dated Tuesday, September 22nd, 2020) (Attachment # 4)

As a result of SFPD’s restrictive policy change post CRI report, and the technical assistance provided above, SFPD’s response to Recommendation 23.2 was narrowed to address the training, reporting, audit, and discipline related compliance measures (CM #4 – CM #7).

End of Solution Strategy and Technical Assistance Request



Compliance Measures: Compliance Measure #1: “FDRB review all OIS and discharge incidents involving moving vehicles.” SFPD requested technical assistance related to this compliance measure. This request included permission to forego Compliance Measure #1 in light of the significant policy changes implemented by SFPD post CRI report publication. A lengthy review of past firearm discharges involving vehicles, for purposes of policy development, was determined not to be necessary. SFPD amended the Department General Orders, issued Department Bulletins, and conducted extensive practical training beginning in December 2016, within three months of the CRI publication. These policy changes are discussed in detail in Compliance Measure #4 - #7.

End of Compliance Measure #1 Compliance Measure #2: “Identify and evaluate commonalities.” Compliance measure #2 continues the recommendation to conduct a historical review of OIS’s involving vehicles, for the purpose of identifying and evaluating commonalities in these incidents. These commonalities would then be used to inform the policy making process. Similar to compliance measure #1, compliance measure #2 focuses on completing the historical study with the end goal of creating policy based off of the findings. A lengthy review of past firearm discharges involving vehicles, for purposes of policy development, was determined not to be necessary. This determination was reached after consultation with SFPD’s oversight partners, and a review of the policy changes implemented post CRI publication.

End of Compliance Measure #2 Compliance Measure #3: “Develop recommendations for policy and training as a result of review.” Compliance measure #3 directs the SFPD to develop policy and training as a result of the review. As discussed in the above compliance measures, a comprehensive review of historical OIS incidents involving vehicles was not conducted. This determination was made in light of the restrictive policy that took effect in 2016, and in consultation with our oversight partners at Hillard-Heintz and California DOJ. Extensive policy and procedure were developed as a result of emerging trends in law enforcement, and a growing consensus among law enforcement professionals at the time of SFPD’s policy change. These policies are discussed in depth in the following compliance measures.

End of Compliance Measure #3



Compliance Measure #4: “Oversee policy and training development responsive to issues identified.”

Responsive Documents:

1. Rescinded DGO 5.02 (Revised 3/16/1), titled, “Use of Firearms.” (Attachment # 2)

2. U.S. DOJ Memo and policy comments, dated May, 4th, 2016 (Attachment # 5)

3. Memo authored by Interim SFPD Chief Toney Chaplin, dated December 22nd, 2016. (Attachment # 6)

4. Department General Order 5.01 (revised 12/2016) – Use of Force (Attachment # 1)

5. Department Bulletin 16-219, “Policy Update Packet” dated December 27th, 2016.

(Attachment # 7)

6. Department Bulletin 16-221 “Rescinding DGO 5.02” dated December 27th, 2016. (Attachment # 8)

7. DGO 5.01 “Use of Force Update” PowerPoint, revised December 21st, 2016. (Attachment # 9)

CM #4 Response Summary: Prior to the release of the U.S. DOJ CRI report, the SFPD had been actively engaged in updating DGO 5.01, relating to the use of firearms and moving vehicles. In this compliance measure, SFPD provides historical perspective on existing SFPD policy at the time of the U.S. DOJ CRI review. SFPD then describes the policy development efforts and resulting adoption of a revised DGO 5.01 related to discharges at moving vehicles. SFPD notified members of this change via DGO and DB, and conducted training on the new policy in a 10 hr. Use of Force refresher course. (Attachment # 9) Compliance Measure #4 involves a three-step process.

1. Historical information and policy at the time of the CRI publication (2016). 2. Policy development summary and update / consolidation of policies (2016) 3. Completed policy and advisement to members through training, Department Bulletins, and similar

methods. (2016-present).

End of Compliance Measure #4 Response Summary



CM #4 (Step 1 of 3, a historical review of policy): Prior to the implementation of the amended DGO 5.01 (Attachment # 1) in 12/2016, SFPD Officers’ firearm /vehicle policy was codified in DGO 5.02 (Attachment # 2). This is the policy that was in-effect during the U.S. DOJ CRI review period, prior to the publication in October 2016. As of 12/27/2016, DGO 5.02 was rescinded. DGO 5.02 is included in Attachment # 2 for historical purposes. The intent of revising DGO 5.01 and subsequently rescinding DGO 5.02 was to provide a policy that prohibits members from discharging their firearm at or from moving vehicles (Please refer to DGO 5.01 for additional information). The fact that DGO 5.02 was rescinded in 2016 demonstrates that the policy is no longer in conflict with DGO 5.01. Firing upon a vehicle was generally prohibited, although several exceptions existed within the policy that ultimately were determined to be too broad to be effective:

(DGO 5.02, rescinded December 27th, 2016)

During the CRI policy review period, DGO 5.01 (Use of Force) and DGO 5.02 (Use of firearms) were in the process of being updated and consolidated. The U.S. DOJ provided technical guidance during this policy development process, prior to the release of the CRI report in October of 2016.



Evidence of the policy development process will be provided in the following section.

End of CM #4 (Step 1 of 3, a historical review of policy) CM #4 (Step 2 of 3, policy development summary): Prior to the release of the CRI report in 10/2016, the SFPD was actively engaged in updating and consolidating the policy related to firearms and motor vehicles. This process included hearings before the police commission, stakeholder input from a variety of sources, and consultation with subject matter experts. The U.S. DOJ, while still in the process of conducting the original CRI report, was requested to provide technical assistance related to DGO 5.01 (Use of Force), DGO 5.02 (Use of firearms), and a prospective policy related to Conducted Energy Devices. The net result of this request was a memo (Attachment # 5) from the U.S. DOJ to SFPD providing input and technical assistance on the policies under consideration.

(U.S. DOJ Memo Providing Technical Assistance, dated May 4th, 2016)



One of the key recommendations included combining DGO 5.01 and 5.02, to add clarity and reduce redundancy:

(Guidance regarding combining DGO’s)



Additional commentary and guidance was provided by the DOJ in the attached “redlined” 24-page document:

(Individual policy comments provided by DOJ/COPS) (Attachment # 5)

As a result of this policy development process, the SFPD consolidated DGO 5.01 and DGO 5.02, including updating the Use of Force as it relates to moving vehicles.



SFPD Chief Toney Chaplin issued a memo (Attachment # 6) on December 22nd, 2016 to the Commanding Officer of the PSPPB. The memo outlined this policy change, the rationale for the change, and specifically identifies the policy prior to implementation:

(Memo dated December 22nd, 2016)

End of CM #4 (Step 2 of 3, policy development summary)

CM #4 (Step 3 of 3, Completed policy and advisement to members):



On December 21st, 2016, the Police Commission approved DGO 5.01 (Use of Force) (Attachment # 1), which included the revised policy as it exists today. DGO 5.01, Section (VI)(G)(e) states:

(DGO 5.11, effective 12/27/2016)

On December 27th, 2016, SFPD issued Department Bulletin 16-219 (Attachment # 7), announcing the policy change and directing members to familiarize themselves with the contents:

(Department Bulletin 16-219)

On December 27th, 2016, SFPD also issued Department Bulletin 16-221 (Attachment # 8), rescinding Department General Order 5.02, which had been consolidated into DGO 5.01 (Use of Force):



(DB 16-221, dated 12/27/16)

In addition to the DGO revision and Department Bulletins, SFPD conducted training sessions to sworn members on DGO 5.01 and the related updates during a 10-hour use of force update class [See attached PowerPoint (Attachment # 9)]: (DGO 5.01 Powerpoint) (DGO 5.01, relevant section)

End of CM #4 (Step 3 of 3, Completed policy and advisement to members)

Compliance Measure #5: “Report to Police Commission.” Responsive Documents:



1. DGO 3.10, titled, “Firearm Discharge Review Board.” (Attachment # 10)

2. Firearm Discharge Review Board 3rd Quarter Presentation, dated September 2nd, 2020.

(Attachment # 11) 3. Police Commission Meeting Agenda with FDRB Presentation (Attachment # 12) 4. S.F. Police Commission Website Regarding FDRB: https://sfgov.org/policecommission/meetings/19

Compliance Measure #5 Response Summary: As discussed in compliance measure #1-3 above, the SFPD did not complete an extended historical review of all OIS’s involving vehicles for the purposes of policy development. SFPD implemented a restrictive policy in revised DGO 5.01, which provided for a narrowing of this recommendation with the approval of our oversight partners. Regarding reporting to the Police Commission, SFPD does continue to report to the Police Commission directly on the topic of vehicle- related OIS’s. SFPD completes quarterly Firearm Discharge Review Board (FDRB) meetings to complete OIS administrative adjudication, and then reports quarterly on FDRB outcomes to the Police Commission. The intent of the response below is to show the path from OIS investigation, to FDRB, to Police Commission for the purposes of reporting and partner oversight. Compliance Measure #5 involves a three-step process:

1. Policy review mandating quarterly reporting to FDRB and the Police Commission. 2. Presentation to FDRB on completed OIS investigations with supporting documentation. 3. Presentation to the Police Commission on the findings of the FDRB.

The quarterly FDRB and Police Commission meetings are also discussed in Compliance Measure #6, which concerns a continual review or audit loop for improvement and adherence to policy.

End of Compliance Measure #5 Response Summary CM #5 (Step 1 of 3, Policy Review Mandating Quarterly Review by FDRB and the Police Commission):



The Firearms Discharge Review Board is composed of SFPD Command Staff members, a member of the Police Commission, the SFPD Range Master, and the Director of the Department of Police Accountability. This board is the reporting mechanism which submits a finding recommendation on OIS cases to the Chief of Police, and the eventual notification to the Police Commission. The FDRB meets quarterly to review OIS cases, including those involving vehicles. Members review case materials, interview OIS investigating personnel, and discuss the facts and circumstances surrounding OIS incidents. Members then submit a finding recommendation of “In-Policy” or “Not in Policy” to the Chief of Police. The Police Commission later reviews the findings of the FDRB summary report and the Chief of Police’s decision, and take disciplinary action if appropriate. SFPD Department General Order 3.10, titled “Firearm Discharge Review Board,” (Attachment # 10) codifies the above procedure, including the presentation of the FDRB quarterly report to the Police Commission. DGO 3.10.

(DGO 3.10, Firearm Discharge Review Board)

End of CM #5 (Step 1 of 3, Policy Review Mandating Quarterly Review by FDRB) CM #5 (Step 2 of 3, Presentation to FDRB):



The FDRB convenes quarterly to review cases as discussed above. At the completion of the FDRB review, the FDRB forwards a recommendation of “in-policy” or “not in policy” for the Chief of Police to review and to “concur” or “not concur.”

(DGO 3.10, FDRB Function)

The Chief’s decision is publicly posted in a presentation that is posted on the SFPD website.

(FDRB Quarterly Report, September 2020) (Attachment # 11)

End of CM #5 (Step 2 of 3, Presentation to FDRB)

CM #5 (Step 3 of 3, Presentation to the Police Commission):



At the conclusion of the FDRB and the Chief’s decision on the incident, the Chair of the FDRB presents the findings of that quarter’s FDRB to the Police Commission. This presentation is made in the form of a PowerPoint presentation, typically with the investigating members present to assist with the review. DGO 3.10 (Attachment # 10) clarifies the responsibility of the SFPD to present the FDRB findings for review, and the authority of the Police Commission to review and take action as appropriate:

(DGO 3.10, Police Commission Responsibility)

Additionally, DGO 3.10 codifies the responsibility of SFPD to prepare the above shown quarterly reports and for Police Commission review:

(DGO 3.10, Quarterly Reports Required)

SFPD then presents the quarterly report to the Police Commission in the form of a PowerPoint and oral report:

(Summary of OIS presented to Police Commission, 9/2/2020) (Attachment # 11)



These regularly scheduled presentations are made available to the public to the full extent allowed by law as required in the DGO, both on the SFPD and Police Commission websites to assist in transparency and accessibility efforts.

(Police Commission Agenda / Minutes (website), including FDRB presentations) (Attachment # 12)

End of CM #5 (Step 3 of 3, Presentation to the Police Commission):



CM #6: Inclusion of a continual review / improvement loop of development process and adherence to policy. Responsive Documents:


2. Department Bulletin 19-100, titled, “New Training Division Unit: Field Tactics / Force Options (Attachment # 13)

Compliance Measure #6 Response Summary: SFPD has several programs which serve to enhance the policy development process, in addition to reviewing incidents for adherence to existing policy. Prominent examples include:

1. The administrative investigation (IAD) of OIS cases, where tactics and procedure are examined for compliance with existing policy.

2. The FDRB process, where Command Staff members can identify procedural issues and begin corrective action.

3. Regular Police Commission meetings where FDRB cases, high profile police incidents, and recurring policy discussions are held.

4. Field Tactics / Force Options Unit (FTFO): This unit was developed in 2019 with the purpose of reviewing serious police incidents from the perspective of training, and to develop responsive instruction when opportunities are identified. Additionally, FTFO participates in a range of boards including the FDRB.

Compliance Measure #6 includes one step encompassing the above related improvement loops at each individual level.




CM #6 (Step 1 of 1, Improvement loops and adherence to policy): IAD Investigation: SFPD immediately initiates an IAD investigation in every OIS. This protocol begins with a call-out to the initial scene, and involves an in-depth concurrent administrative investigation paralleling the criminal investigation. The actions of the Officers are evaluated with existing SFPD policy to determine compliance. IAD investigations can be the catalyst for policy development as unique investigations occur, and training or policy deficiencies are identified. FDRB Presentation: FDRB presentations involve the convening of various Command Staff and subject matter experts to consider individual OIS cases. The members view a high-level summary of the OIS incident, and have immediate access to the IAD investigators for in-depth policy review in each case. The FDRB provides additional overview for adherence to policy in individual OIS cases, but also serves as an opportunity for decision makers within the agency to proactively initiate policy development. Police Commission Meetings: Police Commission meetings are held weekly, and FDRB meetings are held quarterly to present individual cases for additional oversight. The Police Commission can also be the catalyst for policy change, and must review and approve any major policy development, such as a change to Department General Orders. An example of policy development and change was the revision of DGO 5.01 (Use of Force) relevant to discharges at moving vehicles, as described earlier in this document.



Field Tactics / Force Options (FTFO): FTFO was created in 2019 to provide expert analysis of OIS’s, and other serious incidents such as In-custody deaths (ICD). The FTFO office has been operating for approximately 1.5 years. In addition to participating in review boards, FTFO develops curriculum and policy recommendations from the perspective of training and instruction.

(Attachment # 13)



FTFO meets regularly to discuss recent incidents involving SFPD specifically, as well as emerging trends in policing nationwide.

(Excerpt from FTFO Procedural Manual) (Attachment # 14)



FTFO monitors emerging trends and specific incidents from the perspective of training and tactics, and uses this “lessons learned” approached to provide assessments for various review boards. Additionally, FTFO produces high quality training including video, practical exercises, and email notifications as needed to respond to emerging trends. FTFO also serves as a mechanism to provide expedited, relevant training to current issues to supplement the policy development process. The below example shows one example of this training distributed through email:



The below video was accompanied by a six-minute training video to inform and equip Officers with information to utilize right away. Please click here to view traffic training video issued by the FTFO Office.

(Traffic Stops Training Video Introduction)

(Excerpt from Traffic Stops Training Video)



End of CM #6 (Step 1 of 1, Improvement loops and adherence to policy) CM #7: Evidence of supportive and remedial actions / outcomes. Responsive Documents:


4. Memorandum authored by IAD Attorney , dated March 18th, 2019. (Attachment # 15) Compliance Measure #7 Response Summary: Revised DGO 5.01 provides for a more restrictive policy on the use of firearms and motor vehicles. This compliance measure directs SFPD to provide evidence of remedial actions and outcomes of incidents related to OIS’s and moving vehicles. In the example below, an incident occurred in 2018 involving an SFPD member discharging his firearm at the occupant of a moving vehicle. A comprehensive criminal and administrative investigation followed, resulting in the finding that the SFPD member acted out of policy related to firing at the occupant of a moving vehicle. After a thorough review of the incident, the SFPD member was released from employment as a result of this violation. Evidence of this action is contained in a memorandum authored by SFPD legal counsel on March 18th, 2019.




CM #7: (Step 1 of 1, evidence of supportive and remedial actions / outcomes.) On May 11th, 2018, a probationary Officer was involved in an OIS involving an on-duty shooting of a suspect in a moving vehicle. The SFPD Homicide unit conducted an in-depth criminal investigation, and IAD conducted a parallel administrative investigation. As a result of the preliminary review conducted by the Chief of Police, it was determined that the Officer discharged his firearm in violation of revised DGO 5.01(VI)(G)(2)(e) (Moving Vehicles), which states:

(DGO 5.01(VI)(G)(2)(e), moving vehicles) (Attachment # 1)

As a result of this finding, The Chief of Police released the Officer from employment with SFPD. This action is documented in the below memorandum, authored by IAD Attorney (below):

(Memo regarding release of SFPD Officer) (Attachment # 15)

End of CM #7 (Step 1 of 1, evidence of remediation / outcomes)