Montgomery County Police First Responders need defibrillators (AEDs). Please help save lives by signing our petition to County Executive Ike Leggett.

Montgomery County Maryland Government: Save lives by equipping Police First Responders with defibrillators (AEDs). Please sign our petition to County Executive Ike Leggett.

 Hundreds of communities all over the United States, urban, suburban, and rural have police AEDs, including Delaware and New Jersey state police, and Hagerstown and Gaithersburg municipal police. The Rochester Minnesota police have have had AEDs for 20 years and have saved over 100 lives. Help Montgomery County join the twenty-first century and save lives in the process. The life you save may well be your own.

Click here to sign:
http://www.change.org/petitions/montgomery-county-maryland-government-save-lives-by-equipping-police-cruisers-with-defibrillators-aeds

Or paste this link into your browser's address window.
http://www.change.org/petitions/montgomery-county-maryland-government-save-lives-by-equipping-police-cruisers-with-defibrillators-aeds

Further information:

There are many cases of sudden cardiac arrest each year.     

According to the CDC, there are over 8000 out-of-hospital cardiac arrests in MD every year. Cardiac collapses frequently result in 911 "code" calls in Montgomery County. Montgomery County Police responders are Certified First Responders in Maryland. They are trained in the use of AEDs. But when they respond, and even when they witness a collapse, they have no AEDs, and valuable minutes are lost.

Some Questions, Concerns and Answers:

Q1. What will it cost?

A. An upper limit estimate is $300K per year for three years, followed by $100K per year for maintenance and replacement [1].(This is equivalent to between 1% and 2% of the new ambulance fee funds to be obtained from insurance companies, or 1/3 of a cent per day for each family in Montgomery County.)

Q2. Will it take time and money to train the police in AED use.

A. No. The police already get training and retraining. They are Certified First Responders in Maryland. No additional training is needed.

Q3. But only one third of the Police First Responders will be covered the first year [2].

A. If AEDs are swapped out between officers starting and ending their duty shifts, the entire fleet could be covered the first year.

Q4. We've been told that to avoid confusion, the police should use the same AEDs that Fire and Rescue use, and these cost 2-3 times as much.

A. The Fire and Rescue EMT people we have spoken to have say this is totally unnecessary. All AEDs work the same way. When Fire and Rescue start transport, they can switch to their own AEDs if they choose. The additional EKG broadcast capabilities are superfluous for police first responders.

Q5. But responding to "code" calls will distract police from their law enforcement work.

A. The police prioritize their calls. Nobody is asking them to leave a "crime in progress" to respond to a "code" call.

Q6. It has been said that the Fire and Rescue, who do have AEDs, arrive as quickly as do police [3]. 

A. That is an average. It means that Police arrive first half the time, and minutes count. Every additional minute reduces the victims chances by 10%.

Q8. Can you give us an example?

A. Sure. Mr. Kareem Ali had an out-of hospital sudden cardiac arrest on October 10, 2010. The police were present. They called Fire and Rescue, and started CPR. But they had no AED. When Fire and Rescue arrived 10 minutes later, it was too late. They restarted his heart, but he never regained consciousness, and died two days later at Holy Cross Hospital.

Q7. Will this require negotiation with the union?

A. The union is with us on this. They are strongly in favor of AEDs [4]. The real question is: Can the County Government take "Yes" for an answer?

Q8. Do other jurisdictions have police AEDs?

A. Hundreds of communities all over the United States, urban, suburban, and rural have police AEDs, including Delaware and New Jersey state police, and Hagerstown and Gaithersburg municipal police. The Rochester Minnesota police have have had AEDs for 20 years and have saved over 100 lives.

Q9. Are there potential cost savings from police AEDs?

A. Yes. Police AEDs are becoming the "standard of care".  Not having them will soon be construed as negligence.  One successful lawsuit will dwarf the cost of AEDs, and make the County wish they had done this years ago.

 Q9. In Summary, what are we asking the county to do to do?

 A. We are Asking Montgomery County to put money in the police budget to equip police first responders with defibrillators (AEDs) in their vehicles. This simple measure will save lives, improve the police image, and increase respect from the community.

Q10. Do we have a vested interest in this measure?

A. Yes. It might save our own lives some day.

Notes:

[1] Costs are based on the Economic Impact Statement  in the packet for Montgomery County Council Bill 26-12 Swimming Pools - Defibrillators, that became law in October 2012.  This statement assumes a five year life for AEDs, a conservative estimate.

 [2] The MCPD has approximately 900 cars, or about 300 on duty each shift.

 [3] Response times for F/R and MCPD are in budgets and annual reports.

 [4] Fraternal Order of Police Lodge 35 letter to County Exececutive Ike Leggett.

Click here to sign:

http://www.change.org/petitions/montgomery-county-maryland-government-save-lives-by-equipping-police-cruisers-with-defibrillators-aeds

Local discretion to not hold detainees subject to immigration detainers

CARDOZO BENJAMIN N. CARDOZO SCHOOL OF LAW • YESHIVA UNIVERSITY JACOB BURNS INSTITUTE FOR ADVANCED LEGAL STUDIES BROOKDALE CENTER • 55 FIFTH AVENUE • NEW YORK, NY 10003-4391

FROM: Immigration Justice Clinic, Benjamin N. Cardozo School of Law

RE: Local discretion to not hold detainees subject to immigration detainers

DATE: April 16, 2010

QUESTIONS PRESENTED:

Does a locality have the legal authority to exercise discretion when to hold, and when not to hold, detainees at the locality’s expense on civil immigration detainers issued by the U.S. Immigration and Customs Enforcement agency (ICE)?

SHORT ANSWERS:

Yes, a locality has the legal authority to determine when it will hold an individual subject to a detainer issued by ICE. There is an ambiguous federal regulation, 8 C.F.R. § 287.7, that contains language which may be read to require local jails to hold individuals on civil immigration detainers. However, even assuming arguendo that the regulation purports to preempt the local discretion, the federal regulation is necessarily trumped by the anti-commandeering doctrine. Under that doctrine, the Tenth Amendment dictates that the federal government cannot require a locality to use local resources in furtherance of a federal objective and localities have legitimate local interests in declining to honor ICE detainers including, inter alia: avoiding the fiscal burden such detainers impose, fostering immigrant communities’ cooperation with local police, and promoting the unity of families.

DISCUSSION:

ICE issues immigration detainers to local jails when ICE suspects that a detainee is an ―alien‖ subject to civil immigration removal (deportation) proceedings. The only explicit statutory authority for ICE to issue detainers comes from I.N.A. §287(d), which provides:

(d) Detainer of Aliens for Violation of Controlled Substances Laws

In case of an alien who is arrested by a Federal, State or Local law enforcement official for a violation of any law relating to controlled substances, if the official (or another official)—

(1) has reason to believe that the alien may not have been lawfully admitted to the United States or otherwise is not lawfully present in the United States.

(2) expeditiously informs an appropriate officer or employee of the Service authorized and designated by the Attorney General of the arrest and or facts concerning the status of the aliens, and

(3) requests the Service to determine promptly whether or not to issue a detainer to detain the alien,

the officer or employee of the Service shall promptly determine whether or not to issue such detainer. If such a detainer is issued and the alien is not 2

otherwise detained by Federal, State or local officials, the Attorney General shall effectively and expeditiously take custody of the alien.

Purportedly acting pursuant to I.N.A. § 287(d), ICE has issued a regulation governing ICE detainers, which states, in pertinent part, that:

Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.

8 C.F.R. § 287.7(d) (emphasis added). The regulation can be read as purporting to require a locality to hold individuals in local jails for 48-hours beyond the time when they would otherwise have been released, in order to facilitate their transfer into ICE custody. However, elsewhere the same regulation characterizes detainers as ―a request‖ not a requirement. 8 C.F.R. § 287.7(a). In order to reconcile this apparent conflict, see generally Brotherhood of Ry. v. Rea Express, Inc., 523 F.2d 164, 169 (2d Cir. 1975) (explaining well established cannon of construction that apparent conflicts between different provisions must be resolved, when possible, by interpretation which gives effect to both provisions), it is possible to read § 287.7(d) not as requiring local jails to hold individuals subject to detainers but instead as imposing a limit on the maximum length of detention authorized by a detainer.1 Fortunately, it is not necessary to determine the precise meaning of the regulation in order to resolve the question at hand.

1 Moreover, as the discussion below explains, the latter interpretation of this regulation may be required under the constitutional avoidance doctrine. See Miller v. Johnson, 515 U.S. 900, 922 (1995) (―[W]e have rejected agency interpretations to which we would otherwise defer where they raise serious constitutional questions[.]‖). In addition, the federal government itself repeatedly refers to detainers not as commands but as requests. See, e.g., Response from U.S. Immigration and Customs Enforcement, Follow-Up Information to NGO Meeting on Detainers (December 2, 2009) (on file with Benjamin N. Cardozo Immigration Justice Clinic) (―ICE uses detainers to request that the LEA [Law Enforcement Agency] maintain custody of an alien who would otherwise be released‖ (emphasis added)). Finally, in New York, there is some reason to question whether New York City even has the authority to hold individuals on immigration detainers under New York State law. Cf. N.Y. A.G. Opinion No. 2000-1 (Mar. 21, 2000) (finding that ―state and local officers have no authority to arrest an individual under the [civil provisions of the] INA‖).

2 The presumption that a regulation is valid is of no consequence here because all of the binding constitutional jurisprudence points in the same direction. While the entity challenging the constitutionality of a regulation bears the burden persuasion, no deference will be afforded to an agency’s interpretation of constitutional law and, therefore, the court will evaluate the claim de novo. See generally Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984). The language from New York City v. United States about the ―substantial burden‖ in

Even assuming, arguendo, that the detainer regulation is mandatory, a locality nevertheless maintains the discretion not to hold individuals on ICE detainers. As a general rule, of course, states and localities are bound by federal law and any action in direct conflict with federal law is preempted. See generally U.S. Const. art. VI, § 2. The contemplated policy of not honoring all, or certain, ICE detainers could be interpreted as conflicting with the mandatory language of the detainer regulation, discussed above. Notwithstanding any conflict, however, a locality’s discretion whether or not to hold people pursuant to such detainers is squarely protected by the anti-commandeering doctrine.2 3

challenging the regulation in that case was specifically about ―[a] facial challenge to a legislative Act [which] is . . . the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.‖ 179 F.3d 29, 33 (2d. Cir. 1999) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). There would be no heightened burden here, challenging the constitutionality of a specific application of a federal regulation.

3 The anti-commandeering doctrine protects localities as well as states from federal interference. For example, in Printz v. United States, 521 U.S. 898 (1997), the Court held that those provisions of the Brady Handgun Violence Protection Act that ordered certain county level law enforcement officers to conduct background checks were unconstitutional.

4 This is an uncontroversial conclusion, as even the conservative restrictionist Center for Immigration Studies has concluded that:

It bears reiterating that any assistance that state or local police provide to the federal government in the enforcement of federal immigration laws is entirely voluntary. There is no provision of the U.S. Code or the Code of Federal Regulations that obligates local law enforcement agencies to devote any resources to the enforcement of federal immigration laws.

Kris W. Kobach, State and Local Authority to Enforce Immigration Law: A Unified Approach for Stopping Terrorists, Center for Immigration Studies Backgrounder (June 2004).

The anti-commandeering doctrine is derived from the Tenth Amendment of the Constitution and protects local authority by prohibiting the federal government from requiring any state or local3 government to adopt or enforce a federal regulatory program or policy. See Printz v. United States, 521 U.S. 898, 933 (1997); New York v. United States, 505 U.S. 144, 188 (1992). The federal government is not allowed to direct states to implement particular programs ―nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. . . . such commands are fundamentally incompatible with our constitutional system of dual sovereignty.‖ Printz, 521 U.S. at 945-46. One of the primary concerns behind the doctrine is based on political accountability because ―[a]ccountability is . . . diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not pre-empted by federal regulation.‖ New York, 505 U.S. at 169. Accordingly, the anti-commandeering doctrine is intended to protect state and local government’s discretion about how to utilize resources, determine the duties of its employees, and enact policies that impact their local relationship with citizenry.

The Supreme Court spoke directly to this issue in Printz. The Court rejected a federal law placing the burden of performing background checks of prospective gun buyers on local chief law enforcement officers, because it violated the anti-commandeering doctrine. In Printz the Court equated the tasks involved in performing background checks of prospective handgun buyers to a financial burden. 521 U.S. at 929-30. Further, the Supreme Court said that the federal government could not compel state officers to execute a federal law because ―the federal government’s power would be augmented immeasurably if it were able to impress into its service – and at no cost to itself – the police officers of the 50 States.‖ Id. at 935. Similarly, a local policy prohibiting the expenditure of resources on the enforcement of ICE detainers is protected. The federal government cannot coerce a locality into utilizing its own resources for the purpose of enforcing immigration laws.4

The United States Court of Appeals for the Second Circuit has considered a Tenth Amendment anti-commandeering claim specifically in the context of New York State confinement of 4

undocumented immigrants. Padavan v. United States, 82 F.3d 23 (2d Cir. 1996). In Padavan, several state senators sued the federal government seeking compensation for state expenses incurred as the result of the federal government’s alleged ―fail[ure] to control illegal immigration.‖ 82 F.3d at 25. One count of the complaint sought reimbursement from the federal government for the ―incarceration of illegal immigrants convicted of state felonies.‖ Id. at 29. Ultimately the Court correctly rejected this claim but critically it reasoned that, ―the district court properly dismissed the plaintiffs' Tenth Amendment claim‖ because ―the state's obligation to incarcerate illegal aliens stems from its own laws, and not from any federal mandate.‖ Id. (emphasis added). Implicit in the Court’s holding in Padavan is the recognition that if the federal government required states to hold immigrants, such a mandate would run afoul of the Tenth Amendment anti-commandeering doctrine.5

5 See also California v. United States, 104 F.3d 1086, 1093 (9th Cir. 1997) (considering the same Tenth Amendment claim for reimbursement of costs of state criminal incarceration of undocumented immigrants and ―concluding that California has failed to allege a Tenth Amendment violation because no federal mandate requires California to pursue a penal policy resulting in these costs‖ (emphasis added)); New Jersey v. United States, 91 F.3d 463, 466-67 (3d Cir. 1996) (explaining, in context of same type of claim, that the ―federal government . . . cannot require the states to govern according to its instructions‖ but denying the claim because the ―federal government has issued no directive to the State of New Jersey‖ and because ―the state's incarceration of illegal aliens [does not] . . . result from any command by Congress.‖).

6 See Marsha Weissman, Aspiring to the Impracticable Alternatives to Incarceration in the Era of Mass Incarceration, 33 N.Y.U. REV. L. & SOC. CHANGE 235, 244 (2009) (citing N.Y. City Alternatives to Incarceration Coal., Alternatives to Incarceration Programs: Cut Crime, Cut Costs and Help People and Communities, http://www.cases.org/Papers/ATIs.htm) (explaining that ―[a]ccording to the City’s Department of Correction, the average annual cost per jail inmate is $62,595‖ which works out to be approximately $170/day).

7 See ICE FOIA Response Letter to Nancy Morawetz dated Dec. 12, 2008. This calculation is based on the assumption that ICE actually picked up detainees at the expiration of the 48 hour period; however, there is substantial evidence that during this four year period inmates were routinely held beyond the 48 hours permitted by regulation.

8 See Committee on Criminal Justice Operations, Immigration Detainers Need Not Bar Access to Jail Diversion Programs, ASS’N OF THE BAR OF THE CITY OF N.Y., at p. 3 (June 2009) (explaining how, in practice, people with detainers have not been given appropriate non-incarceration diversion programs).

The monetary and non-monetary costs to localities of holding individuals on ICE detainers are substantial. For example, in New York City, the amount of money it costs just to house a detainee for just one day, is about $170.6 Using this estimate and ICE’s estimate that it has issued approximately 13,000 detainers on inmates in New York City custody between 2004-2008, the approximate costs to New York City of detaining inmates on ICE detainers over that four year period was nearly $4.5 million.7 However, it is critical to recognize that this estimate does not account for the full, or even the majority, of actual costs to New York City of honoring immigration detainers. Most immigration detainers are issued shortly after an individual enters New York City’s custody, often within the first 24-hours. Many detainees subject to these detainers would, but for the detainers, either be bailed out or would receive non-incarceration diversion programs.8 However, once a detainer is issued, families are no longer willing to spend their bail money just to see a loved one shuttled into immigration detention in some far off location and courts do not order appropriate diversion programs. As a result, many detainees spend substantial pre-trial periods in custody, when they otherwise would have been released on bail or to some diversionary program. By choosing to hold these individuals on federal 5

immigration detainers, states and localities are forced to absorb the extra costs of detaining individuals that would otherwise be released.9

9 Cities also incur the, admittedly less direct, costs of previously self-sufficient families becoming reliant on safety net programs when their loved one is detained or deported. See Ajay Chaudry et al., Facing Our Future: Children in the Aftermath of Immigration Enforcement, The Urban Institute (Feb. 2010).

10 The State Criminal Alien Assistance Program (SCAAP) is a payment program from the federal government to states and localities to subsidize some of the costs of incarcerating undocumented ―criminal aliens‖ in state or local custody during the pendency of their criminal cases. SCAAP only reimburses localities for undocumented ―aliens‖ who have at least one felony or two misdemeanor convictions and who were incarcerated in the correctional facility for at least four consecutive days during the reporting period. See Bureau of Justice Assistance, Office of Justice Programs, FY 2009 SCAAP Guidelines, http://www.ojp.usdoj.gov/BJA/grant/2009_SCAAP_Guidelines.pdf. In addition, not all correctional costs are covered by SCAAP. SCAAP only reimburses for the costs incurred from correctional officer salaries and not other correctional costs. Moreover, SCAAP does not even reimburse fully for the covered expenses because, as an under-funded program, it cannot only reimburse for a percentage of the covered costs. See DOJ Office of Inspector General Report on the SCAAP Program (January 2007), available at www.usdoj.gov/oig/reports/OJP/a0707/final.pdf.

While the costs to localities of holding individuals on ICE detainers are substantial, as a constitutional matter, the level of cost is not relevant. The Court in Printz specifically rejected the idea that a balancing analysis should be used to compare the cost to the state with the benefit to the federal government. The Court said ―[i]t matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary.‖ Printz, 521 U.S. at 935. The federal government requiring states to address particular problems or commanding the States’ officers to administer or enforce a federal regulatory program is ―fundamentally incompatible with our constitutional system of dual sovereignty.‖ Id. Thus, while there is a federal program that provides partial reimbursements to local jails to reimburse them for some expenses incurred as the result of holding some non-citizens in custody, this does not alter the analysis.10 As a practical matter, states and localities are not reimbursed for the majority of expenses incurred by holding individuals on ICE detainers. The Supreme Court has made clear that any forced outlay of resources is prohibited. Notably, the cost of holding individuals on immigration detainers is substantially greater that the ―discrete, ministerial tasks‖ the Supreme Court in Printz found impermissible to require of local law enforcement officials. 521 U.S. at 929. Moreover, even with full reimbursement there are, for example, some unreimbursable opportunity costs associated with using limited local jail space and personnel to hold ICE detainees.

It is conceivable (though unlikely) that Congress could elect in the future to fully reimburse states and localities for expenses related to holding individuals on ICE detainers. Congress could not, however, affirmatively require a local jail to honor such detainers and accept the reimbursement. While the required direct outlay of local money to cover the cost of housing, feeding and guarding detainees held on ICE detainers is perhaps the clearest violation of the anti-commandeering doctrine, money is only part of the issue. The anti-commandeering doctrine also protects against the federal government interfering with the local policy determinations of how best utilize limited resources and to meet the needs of the local citizenry. More importantly, the anti-commandeering doctrine is designed to protect localities from having their interests and political accountability compromised by the federal government forcing them to act contrary to their local interests. As the Supreme Court explained, ―even when the States are not forced to 6

absorb the costs of implementing a federal program, they are still put in the position of taking the blame for its burdensomeness and for its defects.‖ Printz, 521 U.S. at 930.11

11 There is also an important difference between the federal government placing an affirmative obligation on the state or local government to utilize its resources in a certain way, which is considered commandeering, versus the federal government prohibiting the state or local government from engaging in certain conduct, which would not be considered commandeering. See Reno v. Condon, 528 U.S. 141 (2000). In Reno v. Condon, Chief Justice Rehnquist stated that the federal policy does not violate the anti-commandeering doctrine because ―[i]t does not require the [state government] to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals.‖ Id. at 151.

12 For example, New York City recently settled a lawsuit for $145,000 for an individual who ICE failed to pick up after 48-hours detainer in city facility. See http://stateswithoutnations.blogspot.com/2009/09/deported-new-york-city-resident.html).

13 This is a particular concern in the domestic violence arena where some immigrant woman now fear calling the NYPD for assistance in domestic situations for fear that their loved one will end up in custody and then deported.

14 These same local concerns justify the local discretion under federal law, on a related issue: whether to regularly provide lists of foreign-born inmates in local custody to ICE. This is, in fact, an easier issue because there is no initial conflict with federal law. The only federal statue that comes close to this policy is 8 U.S.C. §1373. Section 1373 says the Federal, State or local government entities or officials ―may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving‖ information from INS ―regarding the citizenship or immigration status, lawful or unlawful, of any individual.‖ This statute was drafted to prohibit states and localities from prohibiting the sharing of information. The double negative is employed because Congress is cognizant that under the anti-commandeering doctrine it cannot affirmatively require the sharing of information. See generally New York City v. United States, 179 F.3d 29 (2d. Cir. 1999) (holding that former NYC Executive Order 124, prohibiting employees from voluntarily sharing immigration information, was preempted – but noting that such prohibition even of such voluntary information sharing may be permissible if it was part of a broader city privacy policy enacted to protect a local interest). Accordingly, nothing in § 1373 affirmatively requires local jails to generate lists or share data with ICE. Moreover, if § 1373 did contain such a requirement it would fail under the anti-commandeering doctrine for the same reasons set forth above.

There are several legitimate local interests that are undermined by enforcing ICE detainers, including, for example: (a) protecting a locality from liability for ICE’s conduct;12 (b) fostering immigrant communities’ cooperation with local police by ensuring that the delineation between local law enforcement and ICE is clear and local arrest is not a funnel to ICE detention;13 (c) protecting local families from being separated by the detention and deportation of loved ones.14 Forcing the local government to enforce federal policies would undermine these legitimate interests and violate the anti-commandeering doctrine because it would ―require state officials to assist in the enforcement of federal statutes regulating private individuals‖ and would ―require the State[] in their sovereign capacity to regulate their own citizens.‖ Reno v. Condon, 528 U.S. 141, 151 (2000).

Accordingly, localities have the discretion whether or not to use limited resources to hold individuals subject to ICE detainers beyond the time they would otherwise be released from custody and the federal government cannot, under the anti-commandeering doctrine, intrude upon that discretion.

Use of Force, Police, Montgomery County Maryland

IMPORTANT! DISCLAIMER: Postings on this site are the personal responsibility of the author, Mike Mage, and unless otherwise indicated, do NOT reflect the policy or position of the Montgomery County Chapter of the MD ACLU, the ACLU of Maryland, or the NAtional ACLU. Postings of documents are done in the interest of transparency and an informed public.

The Use of Force Policy below is the one now in force, but a new one (as of MArch 2010) is in final negotiations with local 35 of the Fraternal Order of Police. I will post the new one as soon as it is finalized.

USE OF FORCE

FUNCTION CODE: 131

EFFECTIVE DATE: 05-11-98

Contents:

I. Policy

II. Definitions

III. Use of Force

IV. Use of Force Reporting Requirement

V. Use of Force and Weapons Review Committee

VI. Training/Certification Requirements

VII. Proponent Unit

VIII. Cancellation

IX. Disclaimer

Appendix A: Use of Force Report, Criteria for Use

Appendix B: Authorized Deadly and Non-Deadly Force Weapons

Appendix C: Defensive Tactics

I. Policy

The need to use force, whether deadly or non-deadly, is one of the most demanding and critical decisions that a law enforcement officer must make. There are, however, situations when an officer must make the irreversible decision of whether or not to use deadly or non-deadly force. Such a decision can have a powerful and possibly harmful effect on the officer, the department, and the community. Recognizing that the department cannot make the decision, the department must, however, provide some guidance to aid in the exercise of that decision.

It is the policy of this department to allow its officers to use only that force which is reasonable and necessary to effect an arrest or to protect themselves or others from personal attack, physical resistance, harm, or death. The decision to exercise force of any level must be based upon the circumstances that the officer reasonably believes to exist. The decision to use such force is better predicated upon the danger posed by a subject confronted by the police than one based upon the general nature or category of an offense. Thus, policy based upon immediate danger can be clearer and more concise when considering use of deadly and/or non-deadly force. (CALEA 1.3.1, 1.3.2)

While the use of deadly force is most commonly associated with firearms, it is not limited to such weapons, but may include other so-called “non-deadly” protective instruments issued by the department such as expandable batons, OC spray, and flashlights, or any other means (to include hands) used by an officer.

II. Definitions

A. Deadly Force: Any use of reasonable and necessary force which is intended to, or likely to, cause death or serious physical injury.

B. Non-Deadly Force: Any use of reasonable and necessary force (other than that which is considered deadly force) which is applied to effect an arrest or to protect the officer or others from personal attack, physical resistance, harm, or death.

C. Protective Instrument: Any device, authorized by the department and utilized by a police officer, to apply force to another individual, e.g., OC spray, expandable baton, flashlight, etc.

D. Probable/Reasonable Cause: Facts and circumstances that would lead a reasonable person to believe that a crime has been committed and a particular individual has committed that crime.

E. Serious Physical Injury: Bodily injury that creates a substantial risk of death, causes a serious, permanent disfigurement, or results in long term loss or impairment of any bodily member or organ. (CALEA 1.3.2)

III. Use of Force

A. Levels of Force

The department recognizes four levels of force that may be applied by officers during the performance of their official duties. These are:

1. Communication/Verbal Control/Presence

In the daily performance of the job requirements, a police officer's presence represents an authorized government authority. Situations that an officer encounters may require not only the officer’s presence, but frequently some form of verbal or non-verbal communication. This communication may take the form of providing information, giving commands, asking or answering questions, physical gestures, conducting interviews, etc. It may also take the form of issuing specific instructions to individuals or groups, dealing with arguments, verbal assaults, threats, handling disputes, disagreements, etc. In the event that presence, communication, or verbal control is not sufficient to protect, control, or arrest, then the officer is justified to use reasonable and necessary force from the appropriate higher level options.

2. Physical Force

A situation between an officer and an individual, or individuals, may escalate to physical force. Physical force applied by officers may range from the slightest touching to the infliction of severe injury. Physical force entails the use of any and/or all human body parts, such as head, teeth, shoulders, arms, hands, knees, feet, etc. In the event that physical force is not sufficient to protect, control, or arrest, then the officer is justified to use reasonable and necessary force from the appropriate higher level options.

3. Protective Instruments

The use of verbal communication or physical force to control a situation which does not produce the desired effect, may necessitate that the officer employ a protective instrument in accordance with the established procedure and predicated upon section III.C, Non-Deadly Force. In the event that protective instruments are not sufficient to protect, control, or arrest, then the officer is justified to use other appropriate reasonable and necessary force.

4. Deadly Force

This is the use of firearms, protective instruments, or other force options which is intended to, or likely to, cause death or serious physical injury. Deadly force will only be used in accordance with the procedures described in section III.B, Authorized Use of Deadly Force.

While it is the expressed policy of the department that officers use the least amount of force possible, options are not predicated on a strict hierarchical sequence, nor must the officer always elect to start at the lowest level. The officer must evaluate the immediate circumstances and select the appropriate level of force to those particular circumstances. While consideration of the crime committed may play a role, it should not be the determining factor. Rather, it is the level of force being used against the officer and the immediate potential for death or serious physical injury to the officer or innocent bystanders and/or victims upon which officers should base their decision to use force of any level.

B. Authorized Use of Deadly Force

1. Defense of Self or Another

Officers may use deadly force to defend themselves, or another person from what they have reasonable cause to perceive as an immediate threat of death or serious physical injury. (CALEA 1.3.2)

2. Fleeing Felon

a. Officers may use deadly force to apprehend a fleeing felon only when they have reasonable cause to believe the suspect fleeing poses an immediate threat of death or serious physical injury to themselves or others, or

b. Officers may use deadly force to apprehend a fleeing felon when:

• There is probable cause to believe the crime committed was a felony of a violent type (one which involved the infliction or threatened infliction of serious physical injury or death), and

• There is probable cause to believe the person fleeing committed the crime or the person fleeing escaped while being held in legal custody as a suspect in a felony of a violent type, and

• Failure to immediately apprehend the person may place the officer, another law enforcement officer, or the public in immediate danger of death or serious physical injury.

NOTE: The officer's decision to use deadly force against a fleeing felon will be judged by the reasonableness of the officer’s actions given the facts and circumstances available to the officer at the time the force is employed. It will be judged more so on the circumstances of the immediate situation presented to the officer than on the type of crime committed. Section III.B.2, above, will be the controlling criterion.

C. Non-Deadly Force

Non-deadly force, as defined herein, may be used to effect arrests or to protect officers or others from personal attack, physical resistance, or injury, provided the force chosen is not excessive based upon the immediate circumstances of the confrontation. Non-deadly force may involve the use of protective instruments or defensive tactics (hands/body). Use of any force which is intended to, or likely to, cause death or serious physical injury will be governed by the use of deadly force requirements, section III.B. The selection of the protective instrument option does not preclude an officer from using an object or instrument to protect the officer or others which may not have been necessarily designed for such use or one with which the officer was not trained or certified, as long as the object is used in accordance with the limitations on force contained in this policy. (CALEA 1.3.4)

D. Other

1. The discharge of firearms to destroy dangerous/injured animals where no other alternatives are reasonably available is authorized and requires completion of the MCP 37, “Use of Force Report,” in accordance with Appendix A; no event report number (CR) or other report is required.

2. An officer may utilize deadly force in foreign jurisdictions only to defend the officer or another person from what the officer has reasonable cause to perceive as an immediate threat of death or serious physical injury.

3. Firearms may be drawn whenever officers have reason to fear for their safety or the safety of others.

4. When discharging a firearm for any reason, officers must exercise reasonable caution in order to avoid unnecessarily endangering the lives of bystanders. When possible, officers should give consideration to shooting background, bystanders, and location.

E. Prohibited Use

1. Warning shots are prohibited. (CALEA 1.3.3)

2. Shots fired from or at moving vehicles are prohibited unless the circumstances would authorize the use of deadly force. Officers will not intentionally place themselves in a position in front of an oncoming vehicle where use of deadly force would likely be the probable outcome. When confronted by an oncoming vehicle, officers will move out of its path, if possible, rather than fire at the vehicle.

F. Medical Care (CALEA 1.3.5)

1. Officers and supervisors will be required to obtain medical evaluation, as soon as possible or practical, for individuals:

a. Who show signs of any injury as a result of any use of force,

b. Who complain of any injury as a result of any use of force,

c. Who become unconscious either during or following any use of force, or

d. When the officer or supervisor reasonably believes an individual is in need of a medical evaluation as a result of any use of force.

2. Officers will notify their supervisors of all injuries complained of or sustained by subjects following any use of force.

IV. Use of Force Reporting Requirement

A. When to Report Use of Force or Firearms Discharge

The MCP 37, “Use of Force Report,” will be completed in the following circumstances:

1. Any time force is used to counteract a physical struggle (CALEA 1.3.6.d),

2. Following use of any force which results in an injury to an individual (CALEA 1.3.6.b),

3. When the individual claims an injury as a result of the amount of force used (CALEA 1.3.6.b),

4. Whenever force is applied by the use of a protective instrument (CALEA 1.3.6.c),

5. Whenever a firearm is discharged other than authorized target practice (see section III.D) (CALEA 1.3.6.a), or

6. Whenever a department canine inflicts injury to any subject or suspect in conjunction with a search, arrest attempt, or apprehension. (CALEA 1.3.6.a, 1.3.6.c)

NOTE: A Use of Force Report is not needed in those instances of accidental firearm discharges or in those instances where a firearm is displayed to assure officer safety.

B. The form will be completed prior to the end of the tour of duty and regardless of whether or not the officer is injured, an event report is filed, or a criminal charge is pending. It will be forwarded, via the chain of command, to the Chief of Police, who after review, will forward it to the Office of Staff Inspections. Forms completed after the destruction of an animal may be forwarded directly by the supervisor, via the unit commander, to the Office of Staff Inspections. In any event, no photocopies of the Use of Force Report will be kept in any location other than the Office of Staff Inspections.

C. This form will be used administratively to evaluate use of force department-wide and will not be used by the Office of Internal Affairs in any subsequent investigation. A quarterly analysis report of these forms will be made to the Use of Force and Weapons Review Committee, which, after review, will report its analysis and recommendations to the Chief of Police. (CALEA 1.3.7)

D. Officer's Responsibility

1. Officers will report immediately to their supervisor any use of force which meets the reporting requirements of section IV.A.

2. Officers will report any firearms discharge (except for any authorized range practice).

3. Officers will complete or provide information for the completion of event reports, charging documents, and the MCP 37.

4. Officers will complete any other reporting requirements.

5. Off-duty officers involved in a reportable use of force incident will immediately report the event to the on-duty supervisor in the district of occurrence and will be required to fulfill responsibilities of section IV.B of this directive.

E. Supervisor's Responsibility

1. Review the MCP 37 submitted by the officer for completeness. (CALEA 1.3.7)

2. Complete the MCP 37 if the officer is unable to complete it. (CALEA 1.3.6)

3. Complete the Supervisor's Section of the MCP 37.

4. Forward the MCP 37 to the Chief of Police via the chain of command prior to the end of the tour of duty.

5. Immediately notify the Office of Internal Affairs of all firearm discharges (whether accidental or intentional) by employees, regardless of whether the involved employee is on- or off-duty. In intentional shootings only, the supervisor will complete the entire MCP 37 providing the statement of facts. In the section for supervisor’s comments, the supervisor will indicate that the incident is under investigation and not provide any judgment about the circumstances. The exception to this is for authorized range practice or for the purpose of destroying animals.

6. Submit the original report for discharge of a firearm. Any supplemental report(s) will be filed by the investigator assigned the follow-up investigation.

7. Immediately notify a Homicide/Sex supervisor after a firearm discharge occurs in the following instances:

a. All intentional firearm discharges by an employee, whether injuries occur or not, with the exception of authorized range practice or the destruction of dangerous or injured animals, and

b. All accidental firearm discharges by an employee that results in an injury or death to a second party, not the involved employee.

8. Ensure that the officer fulfills all event reporting procedures as outlined in the Field Reporting System and sections IV.A and IV.B of this directive before the end of the officer's tour of duty.

9. Remove officers from line duty who have been involved in any use of force that results in death or serious physical injury and refer all officers involved to the

department's Traumatic Incident Program in accordance with that program's guidelines (see FC 310, “Administrative Leave”). (CALEA 1.3.8)

10. On-duty supervisors in the district of occurrence will ensure that off-duty officers involved in reportable use of force events will fulfill the requirements of sections IV.A and IV.B of this directive. The on-duty supervisor will complete the supervisor’s section of the MCP 37 and forward it, along with a copy, to the officer's assigned supervisor. (CALEA 1.3.6)

F. For situations requiring the use of the MCP 37, see Appendix A.

V. Use of Force and Weapons Review Committee

A. A Use of Force and Weapons Review Committee has been established by the Chief of Police. This committee will review all reports of the use of force and discharge of firearms by department personnel and report the results of this review, along with any conclusions or recommendations, to the Chief of Police on a quarterly basis. The committee will focus on overall operations and procedures and not on individuals. In addition, the committee will periodically evaluate the list of authorized departmental weapons and protective instruments and, in coordination with the Labor/Management Safety Committee, make recommendations concerning approval, adoption, and required training/certification.

B. The committee will be comprised of one lieutenant from each of the district stations, two lieutenants from the Investigative Services Bureau, the director of the Training Division, and the Deputy Chief of Police who will serve as the chair. The Office of Staff Inspections will be the repository for the Use of Force Reports and will provide quarterly reports to the committee and the FOP. A copy of the minutes of the meetings will be forwarded to the Office of Staff Inspections.

C. The Use of Force and Weapons Review Committee will establish additional review and reporting schedules, which will become an appendix to this directive. The committee will meet on at least a quarterly basis. (CALEA 1.3.7, 1.3.9, 1.3.13)

VI. Training/Certification Requirements

A. The authorization to carry and/or use any defensive tactic, protective instrument, or firearm is granted by the department to officers based upon completion of specified training courses and demonstrated competency under hands-on testing that has been monitored by a certified weapons instructor. The certification of weapons and protective instruments, as well as training in the department’s use of force policy, will be conducted annually. These certifications may only be renewed based upon requirements established by the Use of Force and Weapons Review Committee and approved by the Chief of Police. (CALEA 1.3.11)

B. The minimum training and qualification requirements for firearms are established by the Maryland Police Training Commission, FC 305.A, “Weapons, Handguns, and Holsters,” and FC 340, “Department Training.” All officers must receive a copy of, and be instructed in, the department’s use of force policies prior to being authorized to carry any weapons.

C. The Director, Training Division, is designated as responsible for the maintenance of certification records, approval lists for protective devices and defensive tactics, training materials, and approved lesson plans. The Director, Training Division, will establish appropriate documentation for issuance to officers.

D. Each officer must certify annually with all approved weapons that the officer is authorized to use. Failure to recertify annually on any protective instrument or every two years on defensive tactics will withdraw from the officer the authorization to carry or utilize that force option. In the case of issued equipment, such equipment will be immediately turned in at the Supply Section until recertification is completed. (CALEA 1.3.9, 1.3.10, 1.3.11)

E. For details on the specific approved weapons, including certification information, see Appendices B and C.

VII. Proponent Unit: Office of the Chief

VIII. Cancellation

This directive cancels Function Code 131, effective date 01-15-95, and Function Code 131.A, effective date 05-01-93.

IX. Disclaimer

This directive is for department use only and does not apply in any criminal or civil proceeding. This department policy should not be construed as creation of higher legal standard of safety or care in an evidentiary sense with respect to third party claims. Violations of this directive will only form the basis for departmental administrative sanctions.

Carol A. Mehrling

Chief of Police

Appendix A: Use of Force Report, MCP 37

Criteria For Use (CALEA 1.3.6)

Incident	Notifications and MCP 37 Instructions	Reports Required
Destroy an animal.	Forward to Office of Staff Inspections (direct from supervisor via unit commander).	No police report; No CR #; MCP 37 only.
Discharge of firearm; no injuries; not related to operations or calls for service.	Forward via chain (See IV.A); comply with OIA notification procedures.	Police report related to incident as required by Field Report Manual; firearm discharge referenced and MCP 37 completed.
Discharge of firearm; call- or investigation-related, without injuries; or injuries, regardless of call-related status.	Forward via chain (See IV.A); comply with OIA notification procedures; immediate notification of Homicide/Sex.	Police report related to incident as required by Field Report Manual; firearm discharge referenced and MCP 37 completed.
Any use of force on a citizen.	Forward via chain (See IV.A).	Police report related to incident as required by Field Report Manual, MCP 37 referenced; MCP 37 completed.
Use of a protective instrument.	Forward via chain (See IV.A).	Police report related to incident as required by Field Report Manual, MCP 37 referenced; MCP 37 completed.
Use of force against police officer (police officer assaulted).	Forward via chain (See IV.A).	Police report related to incident as required by Field Report Manual, MCP 37 referenced; MCP 37 completed.

Appendix B: Authorized Deadly and Non-Deadly Force Weapons (CALEA 1.3.10, 1.3.11):

A. Deadly force weapons (firearms) are described and authorized in FC 305.A, “Weapons, Handguns and Holsters.”

B. Minimum standards for annual firearms qualification is established by the Maryland Police Training Commission and is implemented by the MCP Training Division, Firearms Section, through FC 340, “Department Training.” These requirements are annotated annually by the Training Division, through scheduling of training and qualification firing for each officer on all currently authorized weapons. The Director, Training Division, will establish Standard Operating Procedures for individual qualification with additional weapons. Concurrent with all firearms and training qualification courses, all personnel authorized to carry weapons will be instructed with the policies outlined in FC 131, “Use of Force,” specifically addressing CALEA Standards 1.3.1 - 1.3.5.

C. Failure to qualify with authorized deadly force weapons will result in revocation of the authorization to carry that weapon until such time as re-qualification is accomplished. Re-qualification will be scheduled by the Director, Training Division. (CALEA 1.3.11)

D. Non-Deadly Force Protective Instruments (CALEA 1.3.4): Only the following protective instruments are authorized, and their training requirements are established as follows:

Item	Issued by Department	Training Requirement
Flashlight/ metallic	Yes	Entry Level and annually during In-Service
Riot Baton	Yes-limited	Entry level; other training annually upon assignment to unit authorized or special details and prior to deployment
Gas Grenades	Yes-limited	Entry level familiarization; In-Service annually to supervisors; overview to other personnel as determined in conjunction with In-Service mandates
OC Spray	Yes	Entry level or initial training by certified instructor; In-Service annually
Expandable Baton	Yes	Entry level or initial training by certified instructor; In-Service annually

E. The Use of Force and Weapons Review Committee will prescribe training hours and requirements for the protective instruments listed above, based upon recommendations from the Director, Training Division, and in accordance with CALEA requirements for annual re-certification. (CALEA 1.3.11)

F. The department also recognizes that officers carry folding type knives that are intended to facilitate emergency rescues from accidents. These knives are not authorized as a protective instruments.

G. The PR-24 and blackjack are no longer authorized protective instruments.

Appendix C: Defensive Tactics:

A. Original training in defensive tactics occurs at Entry Level. Retraining occurs during In-Service Training every two years.

B. The hours of training for defensive tactics will be determined by the Director, Training Division, who will maintain course descriptions and tactic lists.