Recomendación: El deber de intervenir en casos de fuerza excesiva o impropia

Duty to Intervene in Cases of Improper or Excessive
Use of Force
Introduction
Campaign Zero's 8 Can't Wait initiative recommends that police departments' [r]equire officers to
intervene and stop excessive force used by other officers and report these incidents immediately
to a supervisor." "64 A duty-to-intervene policy creates an affirmative obligation on the part of
police officers to stop other officers from engaging in certain conduct prohibited by law or
department policy.65 65
Recently, this issue was brought to the forefront of public discourse as a result of the killing of
George Floyd by an officer in the Minneapolis Police Department who knelt on his neck for nearly
nine minutes while other officers on scene did not intervene.6 66 This incident reinforced the dire
need for police departments to require that officers hold each other accountable and stop the use
of excessive force when they see it.
Office of Police Oversight
Duty to Intervene in Cases of Improper or Excessive
Use of Force
Policy review findings
Terms used are vague or not defined
Some terms within the General Orders have specific meanings that may not be commonly
understood. As a result, it is crucial to define these terms so that both officers and the public
can clearly understand what APD requires of its officers.
"Intercede"
APD's current policy creates a duty to intercede rather than intervene. 67 OPO recommends
replacing the term "intercede" with the term "intervene." While these words may appear to be
interchangeable, they are not the same. The common meaning of the word "intervene" more
precisely communicates an expectation that officers verbally or physically intervene when
necessary to stop another officer from engaging in prohibited conduct. 68 Once adopted as the
appropriate term, "intervene" should be defined within the General Orders to ensure that readers
understand how it is applied to APD officer conduct.
"Promptly"
APD policy should define the term "promptly" as it relates to the reporting requirements of the
duty to intervene. In the alternative, APD should replace "promptly" with language that precisely
outlines the time frame within which officers must report their observations. As it stands, the
term "promptly" is vague and does not provide officers with any actual guidance about what is
required of them. 69
"Objectively Reasonable"
The definition of "objectively reasonable" should be improved for clarity and conciseness. APD's
current definition of "objectively reasonable" paraphrases the description of "reasonableness"
from the United States Supreme Court case Graham V. Connor, but it does not actually define the
meaning of the phrase "objectively reasonable." 70
First, the definition should explicitly state that it is a legal standard. Second, the definition of
"objectively reasonable" should not contain the word "objective." In other words, the word being
defined should not be used in the definition. Third, the addition of the language "without the
benefit of 20/20 hindsight" is redundant because the legal standard (and APD's definition) already
makes clear that one must consider the totality of the circumstances presented at the time of the
incident
Office of Police Oversight
Duty to Intervene in Cases of Improper or Excessive
Use of Force
The means of intervention is not specified
APD's current policy lacks clarity because it does not specify how officers are required to
intervene (e.g. verbally, physically, or both). 71 Clear policies allow officers to know exactly what
is
required of them. 72 Additionally, clear policies help to ensure appropriate enforcement by
allowing decisionmakers to hold officers accountable in a consistent and predictable manner.
APD's current policy requires additional clarification about how officers should intervene when
they observe conduct that would create a duty for them to do so.
The policy's scope is too narrow
APD's current policy only creates a duty in use-of-force situations and when "the officer knows
that the force being used is not objectively reasonable" and "has a reasonable opportunity to
prevent the harm. 75 APD's policy would be improved by broadening the parameters to create a
duty in situations beyond those involving use of force. In particular, the General Orders should
contain a centralized policy that sets forth a requirement for officers to intervene when they
witness any conduct by another officer that would constitute a violation of state law, federal law,
or APD policy.
Broadening APD's duty to intervene policy in this way would still create a duty to intervene in
use-of-force situations, but it would also create a duty to intervene in cases involving dishonesty,
bias-based profiling, harassment, and use of racial slurs or epithets, just to name a few. Ensuring
that APD officers follow use-of-force policies is extremely important, and it is equally important
for officers to follow all other APD policies as well. Adopting a policy that encourages officers to
hold each other accountable in this way would benefit both APD and the community. 75
The scope of duty is unclear
While APD's current policy says officers "shall intercede to prevent further harm," it does not
clearly outline when that duty ends. 76 In particular, APD's policy should clearly articulate that,
regardless of their original role on a call, every on-scene officer who witnesses a violation of
state law, federal law, or APD policy has a duty to intervene unless and until the conduct in
question has been stopped.
Duty to Intervene in Cases of Improper or Excessive
Use of Force
Department hierarchical issues are not addressed
APD's current policy does not address potential issues that could arise if an officer witnessed
someone of higher rank (e.g. a corporal, sergeant, lieutenant, etc.) engaging in conduct that
created a duty to intervene. 77 The policy should clearly articulate that the duty to intervene
creates an affirmative duty on the part of all officers of all ranks, and that the duty is created
despite APD's policies related to insubordination (General Orders 110.4.3 and 110.4.4). This is
necessary to relieve the fear officers may have about contradicting their superiors.
Reporting requirements are not defined
APD's current policy provides scant details about what is
required of officers in terms of reporting when they witness
conduct creating a duty to intervene. 78 Through Resolution 95,
City Council clearly articulated a desire for data gathered from
comprehensive reporting of incidents involving use of force
and the duty to intervene.7 79 APD's policy should be revised to
provide detailed reporting requirements that increase
accountability and transparency, and that memorialize
important data related to the incident (e.g. who was present,
the extent to which those present were involved, what
occurred, when it occurred, and how it occurred).
Current APD policies relevant to duty to intervene
The following APD policies are relevant to the duty to intervene:
200.1.2 Definitions; and
80
200.1.3 Duty to Intercede.
To view the full excerpts of these chapters, please turn to Appendix D.
Duty to Intervene in Cases of Improper or Excessive
Use of Force
Recommended policy changes
Move the policy out of the Response to Resistance chapter (General Order 200) and
into the General Conduct and Responsibilities Chapter (General Order 900):
This move is necessary to support the creation of a duty to intervene in situations beyond use of
force.
Create a definitions section within General Order 900 that includes the following
definition:
Intervene - To verbally or physically interact with another officer in order to prevent, stop, or
modify a result or sequence of events.
Change the following definition in General Order 200.1.2 Definitions:
Objectively Reasonable - A legal standard applied to use-of-force situations that judges whether
force was justified from the perspective of a reasonable officer on the scene and considering the
totality of the circumstances confronting the officer at the time of the incident.
Replace the current policy language with the following:
200.1.3 DUTY TO INTERVENE
Any officer who observes another officer use or prepare to use force that is not objectively
reasonable or engage in any conduct that would constitute a violation of state law, federal law,
or APD policy shall make every effort to safely intervene and stop the other officer. Any officer
who fails to intervene in accordance with this policy shall be subject to discipline of the same
severity as if they themselves engaged in the conduct in question.
(a) This policy creates a duty in instances when, after an initial use of force, a continued
application of force is no longer required.
(b) Intervening officers shall make every effort to safely intervene by verbal and physical
means as the situation requires; if verbal intervention is not enough to stop the act(s),
intervening officers shall make every effort to safely intervene through physical means.
Examples of physical intervention methods include, but are not limited to, the following:
1. Physically positioning oneself in between the officer(s) whose conduct is in
question and the other involved individual(s);
2. Using physical force to remove an officer from a particular area; or
3. Using physical force to stop an officer's physical contact with an involved
individual.
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Duty to Intervene in Cases of Improper or Excessive
Use of Force
(c) Upon witnessing an incident creating a duty to intervene, officers shall immediately
activate their body-worn camera systems if they are not already activated, and shall radio to
dispatch that they have observed an incident requiring them to intervene to stop the actions
of another officer.
(d) Once intervention is no longer required, officers who witnessed or intervened in the
incident must also immediately report their observations and involvement to a supervisor.
(e) In situations when an incident report would already be required, officers who witnessed or
intervened in the incident must include a detailed description of their involvement and the
events surrounding the incident. In situations that would not otherwise require an incident
report, this section creates a requirement. A detailed description includes, but is not limited
to, the following information:
1. Who was present (officers and civilians);
2. The extent to which those present were involved;
3. What occurred, when it occurred, and how it occurred.
(f) Notwithstanding General Orders 110.4.3 and 110.4.4, this policy creates an affirmative
duty to intervene regardless of rank or whether the intervening officer is of higher or lower
rank than the officer(s) whose conduct is in question.
(g) Regardless of their role during a call or original purpose for being in the vicinity, it is the
duty of every on-scene witness officer to intervene unless and until the conduct in question
has been stopped.
(h) Examples of scenarios creating a duty to intervene include, but are not limited to, the
following:
1. Use of physical force that is not objectively reasonable;
2. Escalating an encounter without a lawful, necessary purpose;
3. Stops, searches, and arrests that are unconstitutional or violate APD policy;
4. Theft or fraud;
5. Use of racial slurs or epithets;
6. Racial or bias-based profiling;
7. Sexual assault;
8. Harassment or sexual harassment;
9. Misrepresentation or dishonesty; and
10. Document falsification.
Office of Police Oversight