Warren Chief objects standards
The hiring and use-of-force policies of three Trumbull County police departments have been certified through a state board geared toward improving the relationship between police officers and the public.
However, the chief of the county’s largest municipal department said the board’s standards don’t follow leading federal case law and his department won’t be seeking certification.
Warren police Chief Eric Merkel said the Ohio Collaborative Law Enforcement Agency Certification program, which is run through the Ohio Collaborative Community-Police Advisory Board, has a model policy guiding use of force that isn’t up to snuff.
So far, Bazetta, Liberty and most recently McDonald have received certification through the board. Several police departments are working to become certified, including Niles, Weathersfield, Newton Falls, Vienna, Brookfield, Hubbard and Hubbard Township.
Merkel said the departments might want to think twice and consult their attorneys as his department has done.
The term “objectively reasonable” is the term set by the U.S. Supreme Court as the test for when it is OK to use force against a person without violating constitutional rights.
The 1989 Supreme Court ruled in Graham vs. Connor that “objectively reasonable” means the officer is held only to the circumstances and facts he or she was aware of at the time the force was used, and is not asked to have perfect “20/20” hindsight vision. The actions of the officer are judged not by his or her intent, but whether or not the reaction is “objectively reasonable” knowing only what the officerknew at the time.
“Reasonably necessary,” which is the term used by the state board, asks arbitrators to use a more subjective approach by judging the entirety of the incident and perhaps making assumptions about circumstances the officer may not have been aware of when a split-second decision is made to use force. Supporters of the term say it communicates the guidelines in understandable terms, operating in cohesion with the “objectively reasonable” test.
McDonald police Chief Lou Ronghi’s provisional certification review from the Ohio Collaborative addresses use of force and use of deadly force in two ways — “Employees may only use the force which is reasonably necessary to effect lawful objectives” like stopping an offender from running away, reacting to someone resisting arrest, and protecting and defending someone from harm. The guiding principal for use of deadly force states, “The preservation of human life is of the highest value in the State of Ohio. Therefore, employees must have an objectively reasonable belief deadly force is necessary to protect life before the use of deadly force.”
Merkel said the same standard for deadly force should be used to guide officers in any situation that might use force.
Merkel said he isn’t the only person in the state concerned with the policy’s wording.
He supplied a September letter from Jay McDonald, the president of the Fraternal Order of Police of Ohio, addressed to leaders in law enforcement that warns the language suggested by the board puts police departments at risk.
Policies “have a tremendous impact on your officers both in a potential criminal or civil situation. These two phrases do not mean the same thing, and one has a basis in case law and the other has no basis in the law at all,” the letter states.
A statement from Chief Counsel Paul Cox states the Ohio FOP is “opposed to the new standard and recommends your agency not adopt that standard. The recommendation of the Collaborative creates an impractical and indistinct standard for judging police related uses of force. It is also in conflict with the test currently required by existing United State Supreme Court case law.”
Also included is a joint letter from presidents of the National Fraternal Order of Police and the International Association of Chiefs of Police, Chuck Canterbury and Terrence Cunningham.
“Improving the profession does not and should not mean that officers abandon the oath they took when they promised to protect citizens. We cannot reasonably expect law enforcement officers to walk away from potentially dangerous situations and individuals in the hope that those situations will resolve themselves without further harm being done,” it states. “Sound judgment, not their marksmanship or physical skills, is the reason our officers have the tools and authorities they possess.”
Merkel said the department isn’t pursuing certification for its hiring standards either because the process is a package deal. He said even if the board accepted his use-of-force policies for certification, he isn’t interested in being certified by an agency that isn’t requiring departments to follow federal court case law.
However, Warren residents shouldn’t be concerned the department isn’t seeking certification because a part of the department’s consent decree with the U.S. Department of Justice is amendments and reviews of the department’s policies, Merkel said.
Since the city began working with the DOJ in 2012, it has implemented policies that meet the highest legal standards for when force can be used, Merkel said. Any change to their policies would have to be approved by the DOJ, according to the consent decree.
Support for the board’s standards
Several of the departments, including McDonald and Hubbard, are using a policy creation, monitoring and training service called Lexipol to update their existing policies and help them meet the board’s standards.
Lexipol’s senior legal advisor, Ken Wallentine, said the “objectively reasonable” test is applied by courts — who have struggled to define the term — after force is used.
The policies Lexipol provides may use a different term, but the policy “is written to align with this concept of ‘objective reasonableness’ but provides additional explanatory language that makes it useable and understandable to officers on the street as well as laypersons such as city council members, community members and citizen review board members who may refer to the policy,” Wallentine said.
Wallentine adds that the policy “isn’t written to help lawyers scrutinize force decisions after the fact; our policy is written plainly and simply to help officers make force decisions that are constitutional, consistent with sound training and standards, and fair and just.”
Lexipol’s policy states officers, “shall use only that amount of force that reasonably appears necessary given the facts and circumstances perceived by the officer at the time of the event to accomplish a legitimate law enforcement purpose.”
And, Wallentine said, the complete meaning and understanding of the policy is driven home with daily training bulletins — which give scenarios and quizzes to test the officers’ awareness of the policies, ensuring the policies are fresh in their minds and understood.
Ronghi said he was attracted to Lexipol’s services because their team of attorneys are constantly reviewing policies and making sure they do follow the latest legal standards. Using the service saves them from paying for regular policy reviews and protects citizens and officers by ensuring officers know how they should act in certain situations, Ronghi said.
The daily bulletins can be accessed by officers from their smart phones and the scenario-based training ensures officers are referring to the electronically stored policies, instead of letting a book collect dust in a glove compartment, Ronghi said.
“I definitely sleep better at night knowing this is done,” Ronghi said.
The next step in McDonald’s certification is to receive an onsight visit from the certification board, something that will be done every two years if the department wants to keep certification.
Every year, the department will be asked to send in proof of officer training. This year, the board was looking for hiring and use-of-force policies, but Ronghi said he thinks the board might be asking for more in the future. Lexipol should make the process easy, Ronghi said.
Ronghi said he intends to remain a proactive police chief, not a reactive one, and also said it is important to embrace positive change.
Engaging with the public to foster a community of respect and responsibility will keep officers and members of the community safe and working well together, Ronghi said.
The department is paying about $3,200 a year for the service, and receiving discounts through the department’s insurance, for the first three years, Ronghi said.
In Hubbard, police Chief James Taafe said they already have a solid use-of-force policy, and it was updating their hiring policy that took the most work. Taafe said they are submitting their paperwork soon and working with Lexipol. The city auditor’s office said the department paid about $6,400 for the services this year, including a one-time implementation fee and a prorated subscription.
Hubbard Township police Sgt. Greg Tarr said the hiring policy is taking the most work to update, because the township already had many of the policies in place.
“I think it is important that departments follow these guidelines, if they haven’t already,” Tarr said. “It is an opportunity to asses what you have now and make changes where needed.”
Certification is not mandatory. A list of participants is posted online and a permanent list will be published in March.
The board website’s “questions and answers” page states departments can use their own wording as long as “it meets the overall intent of the Ohio Collaborative policy statements and associated standards.”
A message left with the Office of Criminal Justice Services seeking information about Merkel’s concerns was not immediately returned.