Where Austin stands on ‘8 Can’t Wait’ use of force policies

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AUSTIN (KXAN) — As demonstrations in Austin and around the country against police brutality continue, one specific call for policy change has been gaining a great deal of traction on social media: the #8CANTWAIT campaign.

It’s now clear that over the past week, these eight policy objectives have been placed on the radar of top leaders across the city of Austin— within City Council and within public safety.

Many Austin City Council members, including Austin Mayor Steve Adler, have called for these policies to be implemented in Austin. In fact, a resolution Council Member Greg Casar is sponsoring Thursday and which all council members have indicated they will support, aims to change Austin’s policing policies and tactics so that all eight areas are fully addressed. But information from activists, city leaders, and police leaders on these policy areas has been conflicting, which highlights the differing opinions over when and how police should use force.

The 8 Can’t Wait campaign assesses the policies of law enforcement departments across the country. According to the 8 Can’t Wait Campaign, Austin, currently, has three of the eight policies in effect.

The 8 Can’t Wait Policy analysis of Austin Police Department use of force in 8 policy areas. Screenshot from 8 Can’t Wait website June 10.

However, Austin Police leaders believe they are doing better than three out of eight. In an interview with KXAN Wednesday, Austin Police Chief Brian Manley explained “I believe APD has the spirit of all eight of those in effect.”

“We need to check on that policy — that we need to have that limits the ability severely to fire at a moving vehicle — to see if they would consider our language consistent,” Manley said, noting that his training commander is working with the 8 Can’t Wait Team to see improve APD’s wording on their current policies.

“The minor policy modifications we’re going to make will help on those other areas where it has been the expectation and it has been the training, it just has not been explicitly spelled out in policy,” Manley said.

APD confirmed to KXAN Wednesday morning that the department will be updating its policy on vascular neck restraints and carotid neck restraints to state that they are “not an approved tactic unless it is a deadly force situation.”

8 Can’t Wait

The campaign, a new initiative from Campaign Zero, calls for people across the country to ask their local leaders to put in place eight specific policies related to use-of force. Campaign Zero is led by well-known civil rights activist. Organizer DeRay McKesso aims to “end police violence in America” using data-based solutions and contributions from people around the country.  The Campaign Zero team cites research over the past four decades which indicates more restrictive use of force policies can reduce police violence.

At former President Obama’s recent town hall, he featured guests also involved with the 8 Can’t-Wait Campaign. The demands of the campaign have made their way around social media and into the inboxes of elected officials, including many here in Austin.

Austin Police employees are all told to abide by and stay up to date on the department’s general orders. APD provided KXAN with the version of these general orders updated on June 1 and that is the version we referenced for our reporting.

Jennifer Szimanski, the Public Affairs Coordinator with the Combined Law Enforcement Associations of Texas, said that APD is “definitely going to be more restrictive than your typical department” in Texas when it comes to use of force policies. She pointed out the APD’s general orders are long and details at around 800 pages.

She noted that “CLEAT fully supports the large majority of the 8 policies I’m seeing here and also believe they are in large part already in practice by much of Texas law enforcement at this time.”

Shooting at moving vehicles

The 8 Can’t Wait campaign calls for prohibiting shooting at moving vehicles in all cases. The campaign says APD does not have this policy in place because officers can still shoot at a vehicle that is being used as a weapon.

Austin Police General Orders say the order is not intended to restrict “an officer’s right to use deadly force directed at the operator of a vehicle when it is reasonably perceived that the vehicle is being used as a weapon against the officer or others.”

The orders also state that officers should use “good judgement” and not put themselves in the path of a moving vehicle unless “it reasonably appears” that moving out of the path of the vehicle would endanger other officers and the public.

Additionally, the order says that when officers come across a vehicle that is being operated in “a threatening manner,” officers should only leave a position of cover to escape, find better cover, or “if the need to apprehend the suspect or stop the threat outweighs the danger imposed to the officer or any other person.”

“Disabling a vehicle by use of a firearm will only be attempted under extraordinary circumstances,” the policy says.

A 2015 version of APD’s general orders which was obtained through an open records request by Campaign Zero has a line that says “disabling a vehicle by use of a firearm will only be attempted by units specially trained in and equipped for this tactic.” However, this wording is not contained in APD’s 2020 orders.

Chief Manley explained using deadly force against moving vehicles is an area that APD is working on with the 8 Can’t Wait campaign “to determine if our policy is compliant.”

“We have seen some policies that are compliant but we are trying to ensure that ours is,” he continued. ”We have a policy that puts very strict restrictions on shooting at moving vehicles, but it does not all-out ban them.  And part of that is the world in which we live in today where we realize that those inclined to use harm have utilized vehicles much more frequently and to much greater detriment.”

Manley cited examples such as when a driver killed dozens of people in 2016 in Nice, France by driving into a crowd and a driver in Charlottesville, VA in 2017 who killed one demonstrator after he drove into a crowd of counter-protestors.

“We have to recognize that vehicles are being used as weapons today and police departments have to have the ability to stop them if we can,” Manley said. “So that’s something we want to make sure that we are meeting the intent of the policy with it not being the all-out restricting the way [8 Can’t Wait has it] written.”

Austin City Council Member Greg Casar plans will bring forward a resolution at Thursday’s council meeting which, among other things, would require that “use of deadly force against individuals, including persons fleeing (in vehicle or on foot), shall be limited to situations where necessary for self-defense or defense of others against an imminent deadly threat, or threat of serious bodily injury.”

Casar explained Wednesday that he focused this policy on not using deadly force against people who are fleeing because of Mike Ramos. Ramos was shot and killed by Austin Police on April 24 while driving out of a parking spot during an incident with police. A custodial death report filed by Austin Police with the Texas Attorney General’s office stated that the officer who fired his patrol rifle at Ramos said he did so because he feared that Ramos would use the car he was driving as a deadly weapon. The circumstances around Ramos’ death are still being investigated by Austin Police and the Travis County District Attorney hopes to bring Ramos’ case before a grand jury this summer.

“What we’ve proposed for tomorrow is for people to not be shot at, for lethal force to not be used against somebody who is simply fleeing,” Casar said Wednesday.

He said this new policy would allow police to use deadly force against someone using a vehicle as a terroristic threat such as driving into a crowd.

“Our wording is less about somebody being in a moving car and more to the heart of the matter that we don’t want officers to be shooting at people who are fleeing like we saw in the Mike Ramos case,” he noted.

“I think that ultimately is what we’re hearing from the community that they don’t think it’s right for someone to be shot because they are fleeing,” he added.

All 11 Austin City Council members have indicated they intend to support Casar’s resolution as well as four other resolutions on police reform and racial justice.

Chokeholds, strangleholds and neck restraints

The 8 Can’t Wait campaign calls for banning the use of chokeholds, strangleholds, and other neck restraints in call cases. The campaign says APD’s policy does not explicitly ban chokeholds or strangleholds (such as carotid restraints).

“APD neither teaches nor allows the use of the vascular neck restraint or carotid neck restraint,” APD spokespeople told KXAN on Tuesday. Instead of targeting the airway, both types of restraints reduce blood flow and can lead to unconsciousness.

When KXAN asked for clarification, APD spokespeople sent an identical statement Tuesday night.

Wednesday morning, APD spokespeople re-sent the same statement, but added two new sentences at the end which read:

“Although not trained or allowed, our policy does not specifically state it is not an approved tactic. We will update our policy to state it is not an approved tactic unless it is a deadly force situation.”

Austin Police Chief Brian Manley explained this further in an interview Wednesday afternoon.

“When the whole discussion about 8 Can’t Wait came up, the issue of a neck restraint or a chokehold became a conversation in our community, which was a little surprising to us, if you had asked any officer in the Austin Police Department, they would know that we do not use chokeholds other than if it was a deadly force situation,” Manley said. “So we saw the need at that point to specify that in our policy and just directly state it, even though it was widely known and practiced in the department.”

Manley added that this change and several others to APDs general orders related to the 8 Can’t Wait guidelines will be made in the coming days.

Casar’s resolution before city council Thursday also aims to limit these types of neck restraints, reading,  “It is the stated policy of the City that the use of chokeholds and strangleholds is strictly prohibited as a policing tactic.”

“We see that there are loopholes, places where there could be improvisation by police officers, and we want to make sure that that improvisation does not result in a chokehold that could kill someone,” Casar explained.

Verbal warning

The 8 Can’t Wait campaign calls for requiring officers to give a verbal warning before using deadly force in all situations. The campaign says APD does meet its standards for this policy.

APD general orders say that “when feasible, a warning should be given before an officer resorts to deadly force” and that “a specific warning that deadly force will be used is not required by this order.”

“That is something that has been in our policy and we are compliant with that,” Chief Manley told KXAN.

This particular policy objective was the one Austin Police Association President Ken Casaday said he has questions about, saying that he doesn’t think he could ever agree on a literal interpretation of the campaign’s demands for this item which call for verbal warning before deadly force in all situations.

“There are situations where you just can’t give verbal commands,” Casaday said.

Other than this item, Casaday believes APD is compliant with all seven of the other demands from 8 Can’t Wait.

Requiring de-escalation

The 8 Can’t Wait campaign calls for requiring officers to de-escalate situations where possible, by communicating with subjects, maintaining distance, and otherwise eliminating the need to use force. The campaign says APD has no requirement to de-escalate situations when possible.

APD’s general orders say “when safe and reasonable under the totality of circumstances, officers shall use de-escalation techniques to reduce the likelihood for force and increase the likelihood of voluntary compliance.”

The policy notes that nothing in the de-escalation policy requires an officer to put themselves in harm’s way in order to de-escalate a situation. It also notes that quickly changing circumstances may mean officers need to abandon de-escalation efforts.

“Understanding that no policy can realistically predict every situation an officer might encounter, the Department recognizes that each officer must be entrusted with well-reasoned discretion in determining the reasonable deescalation techniques to use in a situation,” the policy sys.

Chief Manley believes APD does comply with the campaign’s objective on this item, noting that APD worked with community leaders and activists to develop a de-escalation policy. He said that when the department evaluates whether an officer’s use of force was appropriate, the very first question asked is whether de-escalation was possible.

Casar’s resolution on the Thursday council agenda aims to bring police policy closer to 8 Can’t Wait objectives by requiring that “use of force by APD shall incorporate de-escalation tactics in all circumstances.”

Exhaust all alternatives

The 8 Can’t Wait campaign calls for requiring officers to exhaust all other alternatives before using deadly force, including non-force and less lethal force options prior to using deadly force. The campaign says APD does not meet their standards on this item.

On its website, the campaign notes that while APD’s policy indicates deadly force may be required of officers when other means are impractical, APD’s use of force policy does not explicitly require that officers exhaust all other options before using deadly force.  

APD’s General Orders say, “it is the policy of this department to resort to the use of a firearm when it reasonably appears to be necessary under the circumstances.”

The orders also say officers have no duty to retreat and are only justified in using deadly force when an officer “reasonably believes” deadly force is immediately necessary to protect himself/herself or others from imminent threat of death or serious bodily injury. Deadly force is also justified in using deadly force to make an arrest or prevent the escape of an arrest when the officer has probably cause to believe the subject has committed (or intends to commit) an offense that would inflect serious bodily injury or death, the policy states. Additionally, the orders justify use of deadly force if an officer reasonably believes there is imminent or potential risk of serious bodily injury or death if the subject is not immediately apprehended.

Chief Manley believes his department is compliant with the campaign’s goals on this item, saying “our policy, by stating you will only use the amount of objectively reasonable force which appears necessary, covers that as well.”

Manley said that “while the type and extent of force may vary, it is the policy of this department that officers only use the amount of objectively reasonable force which appears necessary under the circumstances, to successfully accomplish the legitimate law enforcement purpose.”

Casar’s resolution before city council Thursday aims to address the campaign’s objective more directly by requiring that “deadly force shall not be used unless all reasonable alternatives have been exhausted.”

Duty to intervene

The 8 Can’t Wait campaign calls for requiring officers to intervene and stop all excessive force used by other officers and report these incidents immediately to a supervisor. The campaign says that APD does this already.

APD’s General Orders state that “any officer who observes another officer using force shall intercede to prevent further harm” if the officer knows that the force being used is not “objectively reasonable” and that officer has “reasonable opportunity to prevent the harm.” The policy also states that officers must also “promptly report these observations to a supervisor.”

“We have had a policy requiring officers to intervene for quite some time,” Manley said.

Use of force continuum

The 8 Can’t Wait campaign calls for Requiring a “force continuum” that restricts the most severe types of force to the most extreme situations and creates clear policy restrictions on the use of each weapon and tactic. The campaign says APD already does this.

Chief Manley said that APD uses the “Dynamic Response to Resistance Model” which he believes fulfills the objectives of the campaign for this item.

Comprehensive reporting

The 8 Can’t Wait campaign calls for Requiring officers to report all times they use force or threaten to use force against civilians (including pointing a firearm at someone). The campaign says APD does not meet their standards on this item.

Correction: APD does have a “response to resistance” policy which sets up the rules for reporting and reviewing uses of force which can be found in section 211 of APD’s General Orders. The initial incident report is written by the primary reporting employee for all force level incidents, the order says. Supplements to this report are required to be completed by all other employees who were involved in the force incident, all employees who witness a force incident and all employees assisting at a scene of a force incident. A supervisor is required to fill out a supplement to this report as well for Level 1 incidents.

A separate incident report is written to by APD’s Special Investigations Unite for all Level 1 incidents and in-custody deaths. The orders say involved employees need to notify their supervisor “as soon as practicable” of any force incident or allegation of use of force.

APD describes this policy as “very comprehensive with instructions for what and how to report.”

The department also requires that any “response to resistance” by a member of APD be documented “promptly, completely and accurately in an appropriate report.”

Chief Manley explained to KXAN about APD’s policy in this area that “we already require in policy that if an officer points a firearm and actively targets a person that they must document that in their report.”

At a crossroads

KXAN was forwarded a chain of emails sent from the Austin Police Commander of recruiting Mark Spangler to other police leaders which said Austin has eight out of the eight policies in place. This chain of emails indicate that over the past week, these eight policy items have made their way to every level of Austin Police leadership and to Assistant City Manager Rey Arellano’s office as well.

Chief Manley noted that APD has also made strides in the years prior to the 8 Can’t Wait Campaign to change its use of force policies and provide a more equitable response in Austin.

“We have implemented progressive policies to address the impacts of policing on our entire community but particularly on communities of color,” Manley said. “We have worked with our community leaders and council on freedom cities policies, on reducing arrests for low-level minor policy violations, I think we have done so much work here that is not being discussed because the focus right now is on the future of policing.”

Manley said he understands why the public’s focus is on reform.

“American policing is at a crossroads right now and we have to change and we will change and we will be better for it,” he said. “But we also have to recognize the great strides our profession has made along with the Austin police department, the men and women who serve here in Austin.”

Manley’s response to these eight policy demands come at a time when his leadership and the direction of the department are being called into question, with several community groups and city council members calling for new leaders at the helm of the city’s public safety efforts.

Chas Moore, the executive director of Austin Justice Coalition which has also called for Manley to be removed from his position, said APD is “clearly not as close as they think they are” to meeting the 8 Can’t Wait campaign’s demands.

“I think APD is delusional to think they have all these eight in the bag, clearly they have tons more work to do,” he said.

Austin City Council Member Greg Casar noted, “we have been talking for a really long time in this community about how to reduce needless harm from police interactions and we have been chipping away slowly but surely at more protections for the public and more rules and better rules for policing.”

“The 8 Can’t Wait campaign has found deficiencies in Austin’s rules,” Casar said.

He believes that a council approval of his resolution Thursday will bring APD completely in alignment with the campaign’s objectives.

“We are in a moment where people are galvanized and they want to see their local governments respond,” Casar said. “And they want to see us respond immediately.”

KXAN is working on an in-depth comparative analysis of each of these eight policy areas, refer to this link for updates.

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