City of Cotati Police Department Study
September 23, 2021
Hills
3043 Gold Canal Drive, Suite 200
Rancho Cordova, CA 95670
(916) 859-
[email protected]
CITY OF COTATI POLICE DEPARTMENT POLICY COMPLIANCE REVIEW The following study, conducted by Lewis Consulting Services, is a review of Cotati Police Department’s compliance with areas of existing policy. Police and City leaders requested the study focus on policies that are considered “high risk” as it relates to the potential for negative outcomes and/or significant risk to citizens, staff, and ultimately City liability. The initiative to request such an introspective review is commendable and illustrates that the city understands their role leading a workforce faced with the difficult task of providing public safety services. By ensuring the department is appropriately adhering to policy and/or identifying areas in which policy and practice contradict, the leaders of this organization have demonstrated their commitment to safeguard their mission to provide quality public safety services.
Lewis Consulting Services’ experience, as it relates to conducting such a study is as follows:
James Lewis (Consultant-President)
James Lewis served more than 30-years with the Sacramento County Sheriff’s department in Sacramento California before retiring in March 2016 as the department’s 2nd in command. As the Undersheriff, James lead the day-to-day operations of the 2,000+ member department that serviced the 944 square miles of unincorporated Sacramento County.
Prior to his appointment to the role of Undersheriff, James served for 6 ½ years as the Chief of Corrections for Sacramento County where he oversaw the day-to-day operations of 2-jail facilities with an average daily population of 4,000 inmates as well as the operation of a full-service, county operated Correctional Health division, alternative sentencing program, civil operations, and court security.
Prior to appointment to the Sheriff’s Executive Staff, James commanded a patrol division that serviced a diverse unincorporated portion of Sacramento with more than 100,000 residents over 20 square miles. In addition to patrol command, James held commands in narcotics, air operations and security services, management positions in special operations, sheriff’s staff and supervisory positions in media, investigations, court security and corrections. This breadth of experience has provided opportunities to experience all aspects of professional law enforcement, giving him a unique perspective of the challenge’s agencies and their municipalities face.
Robert Chalfant, Esq., Litigation Manager
Mr. Chalfant has defended public entities on high profile claims in state and federal courts across California for over 20 years. 2001, The majority of his caseload involves constitutional law claims brought under 42 U.S.C. Section 1983 and all related state torts. He has tried to verdict civil rights cases in state and federal court and argued appeals on behalf of public entities before both federal and state courts of appeal.
Past cases include officer-involved shootings, unlawful searches and seizures, excessive force, use of tasers, use of restraints, use of canines, failure to protect inmates, deliberate indifference to inmate’s serious medical needs, malicious prosecution, substantive and procedural due process, takings, discrimination, sexual harassment, defamation, and cases brought under the ADA.
METHODOLOGY
The Cotati Police Department subscribes to Lexipol, a widely known reputable vendor that develops, provides, and maintains policy manuals for law enforcement agencies. This vendor has a diverse leadership/development team with extensive experience in the field. The product they provide has been tested, is routinely reviewed, and proven to be of the highest quality.
The importance of this relationship cannot be overstated, as failure to maintain and train to effective policies, in an environment in which conditions are in constant motion, is a recipe for unnecessary risk exposure.
The focus of this study is on the adopted policies compared to existing Cotati Police practices to ensure 1) the agency is compliant with policy as written and 2) that existing policies are appropriate for the task.
Areas of concentration are:
• CPD Policy 300-310: Use of Force
• CPD Policy 314: Vehicle Pursuits
• CPD Policy 804: Property and Evidence
To conduct this study we, in cooperation with Cotati Police Department (CPD) staff, reviewed written policy, both vendor supplied and those directed by Police administration, and compared these documents against actual practice. This document serves as the result of that review and will show areas of substantial compliance or areas in which improvements are needed.
USE OF FORCE (CPD POLICY 300-310):
Use of force is one of the most significant areas of risk for any police agency. The application of force and the determination as to whether that force was appropriate or necessary is scrutinized now more than ever. Oversight starts internally with police supervisory and executive staff, continues through the City Manager and then the elected City Council.
Additionally, oversight can include the local district attorney or the state attorney general in some cases. One would not have to look very far into law enforcement/community relations history to find examples in which failures in policy compliance or ineffective policy development had undesirable outcomes.
As a foundation, Use of Force as it relates to the profession of law enforcement is currently measured against what is considered a standard of what an officer would consider “objectively reasonable”. This standard and all aspects of use of force for law enforcement are covered in Penal Code, Government Code, and case law.
Question: Does existing CPD policy meet the current standard for a Use of Force policy? Substantial Compliance: The CPD Use of Force policy mirrors existing case law, includes recent changes relative to case law and is clearly within current standards. The way this policy is maintained is appropriate, and any updates are provided, reviewed, and acknowledged by CPD staff. Additionally, required as part of existing policy and statute is the public availability to department policy. CPD complies with this requirement, as all policies are easily accessible on the department’s website.
Question: Does CPD report Use of Force incidents to the State Department of Justice (DOJ) as required by Government Code § 12525.2?
Documentation Unavailable: CPD Policy 300.5.2, which aligns with Government Code § 12525.2 requires, as of January 1, 2017, the agency to report annually incidents involving use of force resulting in death or great bodily injury. At the time of this review, staff was unable to locate evidence of such reporting, although anecdotally members believe reporting is routinely completed. Given the lack of availability of this documentation, LCS is unable to determine compliance with this policy, however given the narrow nature of this requirement it is entirely possible there were no remarkable events to report.
Question: Do Cotati Police Officers receive training on the Use of Force policy? Substantial Compliance: As required under section 300.8 of the CPD policy manual, Officers review existing policy as part of their initial training and are required to demonstrate their knowledge of this policy during field training.
Recommendation: Given the evolutionary nature of this aspect of law enforcement, annual review, during annual evaluation periods and documentation of this review would ensure staff is aware of any changes to the Use of Force policy.
Question: Do Cotati Police Officer receive training on Use of Force, beyond what is required to graduate a basic police academy?
Substantial Compliance: CPD officers receive additional training at a minimum every (2) years during “Perishable Skills” training, hosted by the Santa Rosa Junior College. The curriculum includes practical exercises in which officers demonstrate hands-on proficiency in the trained techniques. In addition, CPD Executive Staff has committed to training that focuses on deescalation techniques and alternatives to use of force, which effectively equips officers with tools to avoid the use of force unless necessary.
Question: Does Cotati Police Department appropriately document incidents in which force was applied?
Substantial Compliance: As required in section 306.8 of CPD policy, officers that use force, demonstrate force, apply handcuffs or restraints during an arrest routinely include documentation of this application of force in their arrest/crime reports.
Notable Improvement to Requirement: In addition to the documentation in reports, CPD has developed an internal policy that requires officers to complete an internally generated “Use of Force Tracking and Reporting form”. This form, which is aligned with the spirit of existing policy, goes beyond what is required by policy and ensures the application of force, however slight is documented.
In reviewing these forms, LCS found instances in which this additional reporting form resulted in greater scrutiny over events that might otherwise have been dismissed as routine. Review of body worn camera footage, detailed accounts of officer’s/offender’s actions and documented supervisory acknowledgement of the event are significant positive outcomes from requiring this document as part of the overall documentation of an event.
Note: Currently the process by which the Use of Force Tracking and Reporting form is completed is following a supervisor’s review of incident reports. During this review, the supervisor will identify instances in which force was used and direct the completion of the UOF report. This form is again reviewed by a supervisor who will choose an appropriate course of action that may include:
• Additional interviews of witnesses, suspects
• Review of camera footage
• Require additional documentation in incident reports
• Initiation of administrative investigation
While the current process is capturing use of force incidents that may otherwise be inconspicuously contained in incident reports, CPD should consider a change in culture that would require the officer to initiate the report before supervisory review.
CPD Policy 300.5.1 requires officers to report, to a supervisor, any use of force that:
(a) The application caused a visible injury.
(b) The application would lead a reasonable officer to conclude that the individual may have experienced more than momentary discomfort.
(c) The individual subjected to the force complained of injury or continuing pain. (d) The individual indicates intent to pursue litigation. (e) Any application of a TASER device or control device. (f) Any application of a restraint device other than handcuffs, shackles, or belly chains. (g) The individual subjected to the force was rendered unconscious. (h) An individual was struck or kicked.
(i) An individual alleges unreasonable force was used or that any of the above has occurred.
The UOF reporting form, for any of the above instances creates an environment in which officers take additional ownership over their tactics and increase the transparency of their actions.
Continued supervisory review of both completed UOF reports, and incident reports will act as a safeguard to ensure documentation is appropriate and complete.
Question: In accordance with 300.9 of the CPD policy manual, does the department conduct an annual review of use of force incidents?
Review Unavailable: 300.9 of the CPD Policy Manual states: Annual Summary At least annually, the Operations Sergeant should prepare an analysis report on use of force incidents. The report should be submitted to the Chief of Police. The report should not contain the names of officers, suspects or case numbers, and should include:
1. (a) The identification of any trends in the use of force by members.
2. (b) Training needs recommendations.
3. (c) Equipment needs recommendations.
4. (d) Policy revision recommendations.
At the time of this review, staff provided use of force tracking and reporting forms as evidence of use of force analysis as required by this policy. While the review of these documents did not necessarily highlight the need for further action, tracking officer’s conduct through this medium and conducting a detailed annual analysis of the information contained in these reports could highlight patterns that require further scrutiny or identify officer’s actions that need further administrative investigation. Additional value in an annual analysis is the opportunity to identify the need for improvement in training, equipment, or practice.
At the time of this review, annual reporting was not readily available, as UOF descriptions are currently included in the narrative of the police reports. This required police staff to read the narrative of each police report to find UOF information. To make the UOF descriptions readily available for annual review and reporting, the internal tracking form previously mentioned was added at the end of 2020. Additionally, in 2021, the department worked with the Sonoma County Public Safety Consortium (SCPSC), Sonoma State University and Santa Rosa Junior College to develop and implement the use of force tracking module that can be used for bulk annual reporting from the records management system in future years. This system will also now be available for all law enforcement agencies in Sonoma County that are members of the SCPSC.
Question: Does CPD have a Deadly Force Review Board, as outlined in CPD Policy 302.4 et al.?
Out of Compliance: The Cotati Police department does not have a review board as outlined in 302.4 et al. of the CPD policy manual. The composition and purpose of this board is clearly defined in the policy and its mission effectively outlined. While incidents requiring assembly of the members of this review board perhaps have not presented themselves, a proactive measure to identify individuals and convene such a board to train for the potential is needed.
Question: Does the Cotati Police Department participate in the FBI’s National Use of Force Data Collection program?
In 2015, the FBI began collecting data on national police use of force. The National Use of Force Data Collection program is voluntary for all federal, state, local and tribal law enforcement, and investigative agencies. The data collected (as described on the FBI.gov website) covers:
“The collection and reporting of data includes any use of force that results in:
• The death of a person due to law enforcement use of force. • The serious bodily injury of a person due to law enforcement use of force. • The discharge of a firearm by law enforcement at or in the direction of a person not” (This last sentence is incomplete and needs revision?)
If agencies experience no qualifying use-of-force incidents within a month, they submit a zero report.
The FBI website indicates 5,030 of approximately 18,514 eligible agencies participate in this reporting1. This number represents less than 1/3 of eligible agencies participate in the data collection program. Given there is no requirement in CPD policy, and the program is voluntary, compliance is not an issue. However, CPD would demonstrate their leadership in the law 1 FBI National Use of Force Data Collection www.fbi.gov/services/cjis/ucr/use-of-force enforcement profession by participating in this program, which harvests invaluable data available for analysis and comparison.
Question: Do CPD officers receive training and certification to carry a Conducted Energy Devices?
Substantial Compliance: Only officers who have successfully completed department-approved training are issued and carry Conducted Energy Devices. The device provided, more commonly referred to as a Taser® (which references the brand name of the device) is the only approved device used by CPD.
Training, both initial and refresher, complies with best practices and is consistent with manufacturers recommendations, case law and existing policy. Use of the Taser during an event is documented on a Taser Use Report, as well as the Use of Force Review form. This documentation is also consistent with best practice and gives CPD staff the opportunity to more closely scrutinize the incidents in which the use of this device was deemed necessary.
Recommendation: Catastrophic events involving the use of a firearm when a Taser was intended have occurred due to improper identification of the weapon. This can occur when officers improperly carry or train to carry the Taser in an “off-hand” configuration. While training and policy dictate this configuration, verification during uniform inspection or routine interaction with supervisory or management staff as a safeguard will greatly reduce the potential for misidentification during events in which officers are under duress.
Currently, CPD does not include or document this observation as part of a routine uniform inspection process.
Question: Are CPD officers trained and authorized to carry/use other control devices as outlined in CPD policy 308.3?
Substantial Compliance: CPD policy dictates that only departmentally issued or approved controlled devices can be carried or used by CPD officers. Officers carrying these devices must have successfully completed department-approved training in the use of any controlled device.
Officers are trained in the use of traditional control devices during initial academy training and during perishable skills refresher training. Additional training for newly acquired techniques/devices occurs on an as needed basis
Recommendation: Include in an annual uniform inspection process documentation of which control devices are being carried and their compliance with existing policy.
Question: Are supervisory/management personnel trained in their responsibilities during an officer involved shooting?
Training Opportunity: Officer Involved Shootings (OIS) are among the most taxing events on a police agency. The impact from the shooting on the officer(s) mental health, the agency and the community require a well-planned initial response. After initial threats are mitigated and life saving measures are taken, supervisors responding to the scene must be prepared to effectively handle a variety of emotional, procedural, and legal issues. A composed comprehensive response is not an accident. Training, beyond what is considered “on the job training” that covers in depth the supervisory responsibilities is necessary to increase the odds of successfully navigating the challenges a supervisor will face.
Recommendation: Seek out an appropriate critical incident supervisor’s training course, that focuses on officer involved shootings and the supervisor’s role. Provide this training to all incumbent and future supervisors upon or prior to appointment.
VEHICLE PURSUIT (CPD POLICY 314)
Vehicle pursuits are among some of the most dangerous activities in which law enforcement engage. Personal safety, the safety of the subject being pursued, and the safety of the community are all considerations before initiating a pursuit and/or continuing one. CPD acknowledges these risks and maintains a culture that is both communicated to line staff and demonstrated by supervisors/administration actions that “public safety for all” is the highest priority.
According to the Department of Justice (DOJ), Bureau of Justice Statistics (BJS) from 1996 to 2015, an average of 355 persons were killed annually in pursuit related crashes2.
Question: Does CPD have a written policy that governs officer’s actions during pursuit driving?
Substantial Compliance: CPD does have a comprehensive pursuit policy. The policy utilizes best practices to effectively outline expectations.
Question: Does CPD comply with the requirement to report all pursuits to the California Highway Patrol (CHP) using form 187A?
Substantial Compliance: CPD reports all pursuits within the required timeline to the CHP using the CHP 187A form. This form is intended to provide the CHP with data to prepare an annual report presented to the California Legislature as required by Senate Bill 719, signed by Governor Arnold Schwarzenegger on October 4, 2005. This statistical report outlines the outcome of all reported pursuits.
Question: Does CPD participate in ongoing pursuit driving training? 2 Police Vehicle Pursuits, 2012-2013, Brian A. Reaves, Ph.D., Bureau of Justice Statistics, May 9, 2017 Substantial Compliance: CPD officers attend bi-annual Emergency Vehicle Operations Course (EVOC) training as part of a perishable skills training curriculum. This substantially complies with written policy, which was adopted to comply with Penal Code § 13519.8.
PROPERTY AND EVIDENCE (CPD POLICY 804):
Collecting, booking, and storing evidence is an essential function for every law enforcement agency. Integral to that process is properly maintaining a pristine chain of evidence to ensure the items can be effectively used in prosecutorial efforts.
To examine the property and evidence handling procedures, LCS reviewed current policy, toured the property room(s) and interviewed staff responsible for their maintenance. LCS conducted additional interviews with CPD administration to elicit concerns over the current state of the property section and determine if those concerns can be resolved through existing policy or amendments to policy/practice.
Question: Does existing policy (CPD Policy 804) mirror best practice for property and evidence handling?
Substantial Compliance: CPD policy does represent the industry standard for booking, storing, and securing property and evidence. The policy outlines appropriate procedures and expectations sections and progress from the initial collection to final disposition.
Question: Does the Cotati Police Department have safeguards in place to protect staff handling evidence?
Substantial Compliance: CPD follows established policy to ensure the safety of all staff. Safety considerations are especially important in the booking of firearms, edged weapons/syringes, and dangerous drugs.
Firearms, both confiscated and surrendered are checked to ensure all ammunition has been removed. Handguns are booked in boxes that are then stored in a separate room within the property section. Long guns are also stored in the firearms room, which is secured behind a locked door that is accessed by only those staff members that have a legitimate reason to access the room.
Sharp objects are booked in containers that limit the likelihood of injury during handling.
Syringes are similarly handled using containers that are designed to avoid accidental “sticks”.
Drugs are weighed and packaged in sealed containers to avoid accidental exposure. All narcotics substances are identified with a specific notation indicating the suspected substance, with special consideration for those packages suspected to contain especially dangerous substances like Fentanyl.
To safeguard staff handling packages containing possible dangerous drugs, officers make a conspicuous notation (sticker or other highly visible marking) on the outside of the packaging to alert staff. When so noted, the package remains sealed while in CPD possession and may only be opened by qualified staff at an approved lab.
NOTE: Current policy (CPD Policy 804.4.2) calls for the “presumptive test” of substances suspected to be drugs prior to booking. This procedure, both in the CPD and other agencies in the region has been abandoned. The reason for this shift in policy is concern for officer safety, specifically the accidental exposure to dangerous substances like Fentanyl. Officers use their experience and expertise to identify and document the suspected drug(s) prior to booking.
Question: Does CPD staff follow appropriate procedures for cataloging, storing, and releasing property/evidence (CPD Policy 804.3, 804.5)?
Substantial Compliance: CPD Policy outlines the procedure for handling property. Specific handling instructions are included for the various property likely to be booked into CPD facilities.
The procedures outlined in the policy manual have been developed as a guideline and represent best practice. However, improvements to these practices are in place at CPD. One such example is the use of a bar coding system to automate the booking procedure.
Officers booking property are required to affix and register a bar code to items of evidence/property before booking them into the property lockers. The system creates a record for that piece of evidence which is a living catalog for that item until its final disposition (destruction, release to owner, adjudication, or sale). This procedure represents an improved best practice as maintaining the record is efficient and easily retrieved.
Interviews with staff and random sampling of evidence stored in the CPD property room confirm compliance with policy. The experience of the Community Services Officer (CSO) responsible for maintaining the property room and her description of the process for maintaining, releasing, and storing property/evidence indicate appropriate steps are being taken.
NOTE: One concern expressed by staff related to chain of evidence and storage of large items. Space constraints as well as lack of access to the property room by staff after hours results in larger items being stored in areas where access can only be moderately controlled. While their concerns are valid.
CPD administration has developed a mitigation plan to incorporate a capital improvement project to secure a currently unused dog kennel in the garage of the CPD facility. Securing this area with additional fencing and lock will allow officers to place larger items in the cage, providing greater security for the items until they can be more appropriately stored or moved to a more secure location.
Question: Does CPD have procedure for booking items contaminated with bodily fluids, as outlined in CPD Policy 804.3.4 (Exceptional Handling)? Substantial Compliance: The California Department of Justice, Bureau of Forensic Services provides guidance on the collection and storage of items containing bodily fluids.3 Recommendations in this bulletin include:
• Allow stains to air dry as much as possible before placing in paper bag or envelope. • Package the “unstained control” separately from the evidence stain. • Package different evidence items in separate paper containers. • Ensure that the paper container is large enough to allow air circulation around evidence item.
• Clean paper can be placed on (or in) a bloodstained garment and the garment folded so that the paper prevents contact between different stains. Ensure that while items are drying that the stain pattern(s) are not altered or the stain(s) cross-contaminated with other wet stain(s).
• Metal or glass evidence item (e.g. knife or broken, glass bottle), should be secured with wire to the bottom of a cardboard box so that it does not pierce the sides of a paper container. If not secured, blood on a knife blade can become easily dislodged and lost.
Do not freeze metal or glass evidence items with blood or other body fluid stains.
Submit these items to the laboratory as soon as possible. • Tape seal, initial and date all paper bags or envelopes.
CPD staff is trained in both the collection and storage of this type of evidence. During the interview with the senior CSO responsible for this process, she was able to effectively describe the appropriate procedures as outlined in policy, which are recognized as best practice.
No contrary indications were noted during a tour of the facility.
Question: Does CPD follow established policy relative to the random and routine inspection of the property/evidence room?
Out of compliance: CPD policy 804.8 Inspection of the Evidence Room, requires:
(a) On a monthly basis, the supervisor of the evidence custodian shall make an inspection of the evidence storage facilities and practices to ensure adherence to appropriate policies and procedures.
(b) Unannounced inspections of evidence storage areas shall be conducted annually as directed by the Chief of Police.
(c) An annual audit of evidence held by the Department shall be conducted by a Sergeant (as appointed by the Chief of Police) not routinely or directly connected with evidence control.
3 Physical Evidence Bulletin, PEB 4 (rev 2002), Bureau of Forensic Services, Ca. DOJ (d) Whenever a change is made in personnel who have access to the evidence room, an inventory of all evidence/property shall be made by an individual not associated to the property room or function to ensure that records are correct, and all evidence property is accounted for.
CPD staff did not recognize the requirements outlined in the above policy, did not remember an occasion in which the required inspections were completed, nor did they have specific staff assigned to conduct audits/inspections.
The policy outlines best practices to ensure property is being properly stored, and all procedures are being followed. Regular inspections of the property facility are critical to catch deviations from policy before they expose the city to unnecessary liability.
CPD administration readily acknowledged the deficiency in this area and are currently developing plans to ensure compliance.
OUTSIDE OF SCOPE OBSERVATIONS
While interviewing CPD administration, it became clear their focus is on providing the highest level of service possible given the resources at their disposal. The Chief and his staff are thoughtfully progressive and appear to be constantly looking for ways to improve the way they police the community and provide for their staff.
RIPA
Racial and Identity Profiling Act (RIPA) was “formed as part of AB953 (Weber, 2016)4. The bill, among other things, requires police agencies to collect and report demographic data from police encounters. This requirement was phased in statewide, with small agencies needing to comply by April 1, 2023.
The project to properly implement comprehensive data collection and analysis using efficient technology, while worthwhile is both expensive and burdensome. Many of the agencies still waiting to develop a solution will soon feel the pressure of an impending deadline. CPD’s progress in developing and implementing racial profiling tracking before the statutorily required deadline is an example in which the department is proactively addressing emerging issues. This tracking process, which is automated and available for analysis is currently in testing and will come completely online in the 3rd quarter of 2021 4 Assembly Bill No. 953, Ch.466, Weber; https://leginfo.legislature.ca.gov